The Association on American Indian Affairs together with Tribal Nations, Tribal organizations, and other institutions have released this press statement to educate the public, collectors and auction houses about how Native American sacred and cultural patrimony, as well as our ancestors remains and belongings are not “art” items for sale, but living parts of our continuing cultures. Rather, we encourage buyers to invest in contemporary Native American artists and their works.
Here, from the Maryland Journal of International Law:
Angela R. Riley and Kristen A. Carpenter have published “Owning Red: A Theory of Indian (Cultural) Appropriation” (PDF) in the Texas Law Review.
Here is the abstract:
In a number of recent controversies, from sports teams’ use of Indian mascots to the federal government’s desecration of sacred sites, American Indians have lodged charges of “cultural appropriation” or the unauthorized use by members of one group of the cultural expressions and resources of another. While these and other incidents make contemporary headlines, American Indians often experience these claims within a historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands, artifacts, bodies, religions, identities, and beliefs, all toward the project of conquest and colonization. Indian resources have been devalued by the law and made available for non-Indians to use for their own purposes. Seeking redresses for the losses caused by these actions, tribes have brought claims under a variety of laws, from trademark and copyright to the First Amendment and Fifth Amendment, and some have been more successful than others. As a matter of property law, courts have compensated—albeit incompletely—the taking of certain Indian lands and have also come to recognize tribal interests in human remains, gravesites, and associated artifacts. When it comes to intangible property, however, the situation is more complicated. It is difficult for legal decision makers and scholars alike to understand why Indian tribes should be able to regulate the use of Indian names, symbols, and expressions. Indeed, non-Indians often claim interests, sounding in free speech and the public domain, in the very same resources. To advance understanding of this contested area of law, Professor Riley and Professor Carpenter situate intangible cultural property claims in a larger history of the legal dispossession of Indian property—a phenomenon they call “Indian appropriation.” It then evaluates these claims vis-à-vis prevailing legal doctrine and offers a normative view of solutions, both legal and extralegal.
Grant Christensen has posted his paper, “Selling Stories or You Can’t Own This: Cultural Property as a Form of Collateral in a Secured Transaction Under the Model Tribal Secured Transactions Act,” on SSRN.
Here is the abstract:
The Model Tribal Secured Transactions Act was recently proposed by the National Conference of Commissioners on Uniform State Laws. This article takes the position that the model act, if adopted, will encourage economic development in Indian Country by creating a set of uniform rules which both non-Indians and Indians can utilize to promote lending. Critically – before it is widely adopted, this article implores the NCCUSL to consider including in the model act – language that would protect tribal cultural property; and in the absence of such language, encourages tribes to modify the act to accomplish this protection. The stakes include the potential loss of priceless real and personal, tangible and intangible, cultural property which itself form the linchpin of both tribal identity and cultural expression for many indigenous communities in the United States and beyond.
Here are the materials in Gopher v. Cascade County (D. Mont.):
Ms. Gopher seeks the return of a 13-star peace flag bundle and its contents. She contends that Cascade County has exercised illegal control over the Gopher family’s artifacts. She seeks an immediate injunction barring the effect of a November 12, 2012 state court order, the return of her family’s property which was subject to a probate action which commenced in Cascade County on July 22, 2010, and a stay of all state court proceedings.
The Montana Supreme Court ruled on this matter previously.
Here are the materials in Estate of Gopher:
In its order, the Blackfeet Tribal Court unequivocally declined to assert subject matter jurisdiction with respect to the flag, the subject of this appeal. The Blackfeet Tribal Court noted that the “flag is located in Cascade County and has never been on the Blackfeet reservation” and Dorothy was domiciled in Cascade County at the time of her death. The Blackfeet Tribal Court stated it “will not accept any further filings from the Gopher family in regards to the thirteen star flag until they have prevailed in their litigation in the State Court.” No evidence supports the siblings’ argument that the Blackfeet Tribal Court’s decision was made “prematurely or through error.” Because the Blackfeet Tribal Court has expressly declined to assert jurisdiction over the Estate property, it is clear that the District Court did not unlawfully infringe on the Blackfeet Tribe’s right of tribal self-government. Moreover, because Dorothy resided in Cascade County at the time of her death and the corpus of the Estate is located in Cascade County, venue was proper, and the District Court did not err when it assumed jurisdiction over the probate of the Estate.
Back in April I reported on a Paris auction house that sold 70 Hopi sacred items. The tribe asked the sale be halted saying the items were stolen and belonged on its reservation in northern Arizona. The Hopi religion is shrouded in secrecy, so the tribe was in a bind. Tribal leaders wanted the media’s help to bring attention to the sale, but they didn’t want to talk about what those items were.
One of the attorneys who tried unsuccessfully to stop the Paris auction purchased one of the sacred objects and has returned it to the tribe. Excerpt from the article:
M. Servan-Schreiber then bought one katsina at the auction to return it to the Hopi. He said, ‘It is my way of telling the Hopi that we only lost a battle and not the war. I am convinced that in the future, those who believe that not everything should be up for sale will prevail. In the meantime, the Hopi will not have lost everything since two of these sacred objects* have been saved from being sold.’
According to notes at the bottom of the article, another item was purchased by a family with the intent to return it to the tribe by the end of the year.
Previous coverage of the attempts to stop the Paris Auction here.
The glorious thing about being a critic and delivering big picture commentary is that you can do it with the blissful ignorance of not having any context whatsoever.
In the United States, for example, the 1990 Native American Graves Protection and Repatriation Act required every museum getting public funds to survey its collections; identify Indian remains and funerary, sacred and other objects; and consult with Indian tribes and ”repatriate” the artifacts if requested. Such objects may have been legitimately purchased a century ago from the tribes or have no issue clouding their provenance, but claims of ordinary property give way before claims of cultural property. The grievous sins of the past are now being repaid with a vengeance. And the risks of repatriation and the requirements of tribal consultation have led to promotional, uninformative and self-indulgent themes in exhibitions about American Indians.
The idea of cultural property also led to the Army Corps of Engineers’ bulldozing an archaeological site in Washington State in 1998 that had yielded a 9,200-year-old skeleton, known as Kennewick Man, the oldest ever found in North America. Without any evidence local Indian tribes claimed the skeleton was their cultural property — the bones of an ancestor — and they successfully prevented a complete scientific examination. The bulldozing was apparently a new form of protection, philistinism triumphing in the name of enlightened ideas.”