Issues of Cultural & Intellectual Property
Definitions
Cultural Property: physical items that a culture or subset of that culture claims as their own
Intellectual Property: knowledge of the culture, environment, or past that a culture or subset of that culture claims as their own
For American Indians, these have always been crucial issues. Both physical items and knowledge have been taken from their culture, often as part of “scientific colonialism”
Scientific colonialism: scientific colonialism is defined as the process whereby the center of gravity for
acquisition of knowledge about a people is located elsewhere than with the people themselves.
Anthropologists have been especially guilty of the practice.
Floyd Westerman’s song, Here Come the Anthros, reflects it, as does the source for the song from Vine Deloria, Jr.
His first important book was Custer Died for Your Sins: An Indian Manifesto in 1969. In it he took on the study of Indians, especially by anthropologists.
An extended excerpt from his chapter "Anthropologists and Other Friends:"
INTO EACH LIFE, it is said, some rain must fall. Some people have bad horoscopes, others take tips on the stock market. McNamara created the TFX and the Edsel. Churches possess the real world. But Indians have been cursed above all other people in history. Indians have anthropologists.
Every summer when school is out a veritable stream of immigrants heads into Indian country. Indeed the Oregon Trail was never so heavily populated as are Route 66 and Highway 18 in the summer time. From every rock and cranny in the East they emerge, as if responding to some primeval fertility rite, and flock to the reservations.
"They" are the anthropologists. Social anthropologists historical anthropologists, political anthropologists, economic anthropologists, all brands of the species, embark on the great summer adventure. For purposes of this discussion we shall refer only to the generic name, anthropologists. They are the most prominent members of the scbolarly community that infests the land of the free, and in the summer time, the homes of the braves.
The origin of the anthropologist is a mystery hidden in the historical mists. Indians are certain that all societies of Near East had anthropologists at one time because all these societies are now defunct.
Indians are equally certain that Columbus brought anthropologists on his ships when he came to the New World. How else could he have made so many wrong deductions about where he was?
While their historical precedent is uncertain, anthropologists can readily be identified on the reservations. Go into any crowd of people. Pick out a tall gaunt white man wearing Bermuda shorts, a World War II Army Air Force flying jacket, an Australian bush hat, tennis shoes, and packing a large knapsack incorrectly strapped on his back. He will invariably have a thin sexy wife with stringy hair, an IQ of 191, and a vocabulary in which even the prepositions have eleven syllables.
He usually has a camera, tape recorder, telescope, hoola hoop, and life jacket all hanging from his elongated frame. He rarely has a pen, pencil, chisel, stylus, stick, paint brush, or instrument to record his observations.
This creature is an anthropologist.
An anthropologist comes out to Indian reservations to make OBSERVATIONS. During the winter these observations will become books by which future anthropologists will be trained, so that they can come out to reservations years from now and verify the observations they have studied.
After the books are writen, summaries of the books appear in the scholarly journals in the guise of articles. These articles "tell it like it is" and serve as a catalyst to inspire other anthropologists to make the great pilgrimage next summer.
The summaries are then condensed for two purposes. Some condensations are sent to government agencies as reports justifying the previous summer's research. Others are sent to foundations in an effort to finance the next summer's expedition west.
The reports are spread all around the government agencies and foundations all winter. The only problem is that no one has time to read them. So five-thousand-dollar-a-year secretaries are assigned to decode them. Since the secretaries cannot read complex theories, they reduce the reports to the best slogan possible and forget the reports.
The slogans become conference themes in the early spring, when the anthropologist expeditions are being planned. The slogans turn into battle cries of opposing groups of anthropologists who chance to meet on the reservations the following summer.
Each summer there is a new battle cry, which inspires new insights into the nature of the "Indian problem." One summer Indians will be greeted with the joyful cry of ,"Indians are bilingual!" The following summer this great truth will be expanded to "Indians are not only bilingual, THEY ARE BICULTURAL!"
You may be curious as to why the anthropologist never carries a writing instrument. He never makes a mark because he ALREADY KNOWS what he is going to find. He need not record anything except his daily expenses for the audit, for the anthro found his answer in the books be read the winter before. No, the anthropologist is only out on the reservations to VERIFY what he has suspected all along-Indians are a very quaint people who bear watching.
The Result: A changed anthropology?
The repatriation issue
Although there were hints of it much earlier, the questions about property began in the mid-1960s as one aspect of the repatriation issue, especially focused on the return of human remains.
Included with the remains were “objects of cultural patrimony,” that is, sacred objects or other objects a tribe considered important
State laws that passed by the early 1980s tended to cover only skeletal remains, and skeletons got the most “press.”
Some museums, most notably the Peabody at Harvard and the Field Museum in Chicago, began returning such objects by the late 1980s.
In 1986, the World Archaeological Congress (WAC) took it as a serious issue at its first Congress in the UK.
In 1989 WAC hosted an intercongress in South Dakota on Archaeological Ethics and the Treatment of the Dead, out of which came the Vermillion Accord:
1. Respect for the mortal remains of the dead shall be accorded to all, irrespective of origin, race, religion, nationality, custom and tradition.
2. Respect for the wishes of the dead concerning disposition shall be accorded whenever possible, reasonable and lawful, when they are known or can be reasonably inferred.
3. Respect for the wishes of the local community and of relatives or guardians of the dead shall be accorded whenever possible, reasonable and lawful.
4. Respect for the scientific research value of skeletal, mummified and other human remains (including fossil hominids) shall be accorded when such value is demonstrated to exist.
5. Agreement on the disposition of fossil, skeletal, mummified and other remains shall be reached by negotiation on the basis of mutual respect for the legitimate concerns of communities for the proper disposition of their ancestors, as well as the legitimate concerns of science and education.
6. The express recognition that the concerns of various ethnic groups, as well as those of science are legitimate and to be respected, will permit acceptable agreements to be reached and honoured.
In late 1989 the National Museum of the American Indian Act was passed with two major elements.
· The Smithsonian was to inventory and repatriate human remains and grave goods to genetically or culturally affiliated tribes.
· The legislation put into place the National Museum of the American Indian
By 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) was passed, which essentially said that any agency with any kind of federal involvement was to inventory such remains in their possession and repatriate them.
The law has been controversial.
Also in 1990, the WAC passed its first code of ethics:
Members agree that they have obligations to indigenous peoples and that they shall abide by the following principles:
1. To acknowledge the importance of indigenous cultural heritage, including sites, places, objects, artefacts, human remains, to the survival of indigenous cultures.
2. To acknowledge the importance of protecting indigenous cultural heritage to the well-being of indigenous peoples.
3. To acknowledge the special importance of indigenous ancestral human remains, and sites containing and/or associated with such remains, to indigenous peoples.
4. To acknowledge that the important relationship between indigenous peoples and their cultural heritage exists irrespective of legal ownership.
5. To acknowledge that the indigenous cultural heritage rightfully belongs to the indigenous descendants of that heritage.
6. To acknowledge and recognise indigenous methodologies for interpreting, curating, managing and protecting indigenous cultural heritage.
7. To establish equitable partnerships and relationships between Members and indigenous peoples whose cultural heritage is being investigated.
8. To seek, whenever possible, representation of indigenous peoples in agencies funding or authorising research to be certain their view is considered as critically important in setting research standards, questions, priorities and goals.
Members agree that they will adhere to the following rules prior to, during and after their investigations:
1. Prior to conducting any investigation and/or examination, Members shall with rigorous endeavour seek to define the indigenous peoples whose cultural heritage is the subject of investigation.
2. Members shall negotiate with and obtain the informed consent of representatives authorised by the indigenous peoples whose cultural heritage is the subject of investigation.
3. Members shall ensure that the authorised representatives of the indigenous peoples whose culture is being investigated are kept informed during all stages of the investigation.
4. Members shall ensure that the results of their work are presented with deference and respect to the identified indigenous peoples.
5. Members shall not interfere with and/or remove human remains of indigenous peoples without the express consent of those concerned.
6. Members shall not interfere with and/or remove artefacts or objects of special cultural significance, as defined by associated indigenous peoples, without their express consent.
7. Members shall recognise their obligation to employ and/or train indigenous peoples in proper techniques as part of their projects, and utilise indigenous peoples to monitor the projects.
The new Code should not be taken in isolation; it was seen by Council as following on from WAC's adoption of the Vermillion Accord passed in 1989 at the South Dakota Inter-Congress.
More recently, there has been a similar concern with intellectual property.
The questions are profound:
1. Can the past be owned or controlled?
2. Is the past a public heritage?
3. Do people have a right not to be studied?
4. What are the ethical considerations surrounding private or sacred knowledge?
5. Should people be compensated for the knowledge they “share?”
6. Do Indigenous people have fewer rights to intellectual property than others?