Texas Law Review

Angela Riley & Kristen Carpenter Publish “Owning Red”

Matthew L.M. Fletcher1 Comment

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.

Ann Tweedy Review of Carpenter & Riley’s “Owning Red”

Matthew L.M. Fletcher

Ann Tweedy has reviewed Kristen Carpenter and Angela Riley’s article, “Owning Red: A Theory of (Cultural) Appropriation,” forthcoming in the Texas Law Review, for JOTWELL.

An excerpt:

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 the cultural expressions and resources of another. While these and other incidents are currently in the headlines, American Indians often experience these claims within an historical and continuing experience of dispossession. For hundreds of years, the U.S. legal system has sanctioned the taking and destruction of Indian lands and artifacts, bodies and 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 of 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 has 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, this Article situates intangible cultural property claims in a larger history of the legal dispossession of Indian property – a phenomenon we 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.

 

Blast from the Past: Vine Deloria Review of Dee Brown

Matthew L.M. Fletcher

Here is a short book review by Vine Deloria, Jr. of Dee Brown’s Bury My Heart at Wounded Knee, published in the Texas Law Review in 1972 (deloria-review-of-brown). An excerpt:

There are, to be sure, numerous tears shed on behalf of our red brothers. But there lies the tragedy of what Bury My Heart at Wounded Knee really means today. The tears are not shed for the tragedies of today, for the Menominee and the Klamath, for the Seneca and the Onondaga, for the Cochiti Pueblo and the Hopi. They are shed for Chief Joseph and Red Cloud, for Kicking Bird and Tall Bull, for Manuelito and Victorio. Captain Jack becomes a modern hero to Dee Brown’s readers. Elnathan Davis, Klamath warrior of the present, is unknown and his struggle is considered unreal and unnecessary because people don’t treat Indians that way any more.

The hell they don’t.

If today’s Indians have Dee Brown to thank for unveiling the truth of the past, they have Dee Brown to curse for making it so real that it has overshadowed them and relegated their contemporary struggle to esoteric notices in the back pages of the newspapers. Another Dee Brown, in 2040, will record the destruction of the red man in the period 1950 to 1980, and wonder at the treachery of the government, marvel at the speeches of Hank Adams, Dennis Banks, Lee Cook, Oren Lyons, and leave his manuscript, puzzled that American society could have learned so little in a century of experience.