culture 2
When Euro-Americans adopt (often inaccurate) representations of indigenous American cultures, what do those adoptions index? Please use at least two articles to provide specific examples and compare them.
Citation:
Rosemary J. Coombe, The Properties of Culture and the
Politics of Possessing Identity: Native Claims in the
Cultural Appropriation Controversy, 6 Can. J. L. &
Jurisprudence 249 (1993)
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The Properties of Culture and the Politics
of Possessing Identity:
Native Claims in the Cultural Appropriation
Controversy
Rosemary J.
Coombe
Between March 21, 1992 and April 14, 1992 Canadians witnessed a remarkable
proliferation of controversy on the pages of The Globe and Mail. The issue was
“cultural appropriation” or “appropriation of voice” in fictional and nonfictional
writing. Articles, editorials, and letters to the editor considered the propriety of
depicting a culture other than one’s own, telling “someone else’s story”, and
whether it was possible to “steal the culture of another.”‘ The debate was remarkable
because of its emotional intensity, the absurdity of the analogies drawn in support
of the respective arguments, and the inability of the protagonists to recognize each
other’s terms of reference. Especially striking were the rhetorical tropes of pos-
sessive individualism adopted by all participants in the discussion.
I will use the controversy over cultural appropriation as a point of entry into
a wider set of concerns. First, I will examine the philosophical premises about
authorship, culture, and property that underlie this controversy and define the legal
arena in which it is likely to be evaluated. The West has created categories of prop-
erty-intellectual property, cultural property, and real property-that divide peoples
and things according to the same colonizing discourses of possessive individualism
that historically disentitled and disenfranchised Native peoples in North America.
Exploring the internal logics of intellectual property and cultural property laws,
I will question the concepts of culture and identity upon which they are based, using
developments in contemporary cultural anthropology, legal pragmatism, and cul-
tural criticism to put these concepts in issue. I will demonstrate that the law rips
asunder what First Nations peoples view as integrally and relationally joined, but
traditional Western understandings of culture, identity, and property are provoked,
challenged, and undermined by the concept of Aboriginal Title in a fashion that
is both necessary and long overdue.
Whose Voice Is It Anyway?
The recent Globe and Mail debate began with an innocuous article calling
attention to the Canada Council’s (the Council) concern with the issue of cultural
I am grateful to Amanda Pask and Deborah Root for stimulating discussions of these issues. I would also
like to thank Karen Clark for her research assistance and insightful commentary
1. Although the controversy died down, references and allusions back to it can be found throughout 1992.
Not having been in Canada since the end of 1992. 1 have not pursued the debates in the Canadian press
since December 20, 1993.
Canadian Journal of Law and Jurisprudence Vol. VI, No-2 (July 1993)
Coombe
appropriation.2 The term was defined to mean “the depiction of minorities or cul-
tures other than one’s own, either in fiction or non-fiction.” 3 Following a report
from its Advisory Committee for Racial Equality in the Arts, the Council deemed
cultural appropriation “a serious issue,”4 and acknowledged that “collaboration with
minority groups” 5 was an advisable strategy to avoid perpetuating social stereotypes.
Despite the fact that the Council had done nothing to change its existing policies,
formulate guidelines, rules, or impose any restrictions on funding, the controversy
evoked was swift and furious, and it quickly polarized upon familiar liberal terrain.
I will suggest that these poles-which I will designate as Romantic individualism
and Orientalism-operate as dangerous supplements6 that define an imperialist con-
ceptual terrain that structures our laws of property and may well structure all con-
temporary political claims for cultural autonomy and public recognition.
In a series of letters to the editor, the tyranny of the state over the individual
was evoked, and the transcendent genius of the Romantic author and his unfettered
imagination was affirmed. 7 Writers wasted no time evoking the totalitarian state,
the memory of the Holocaust, and the Gulag. As Timothy Findley forcefully inter-
jected:
Put it this way: I imagine-therefore I am. The rest-believe me-is silence. What has
happened here? Does no one understand? In 1933 they burned 10,000 books at the gate
of a German university because those books were written in unacceptable voices. German
Jews, amongst others, had dared to speak for Germany in other than Aryan voices. Stop.
Now. Before we do this again.'”
Joy Anne Jacoby evoked Russian anti-Semitism to urge the Council “to rethink
the implications of imposing any policy of ‘voice appropriation’ lest they find them-
selves imitating the Russian approach to cultural censorship;”, Ema Paris titled
2. Stephen Godfrey, “Canada Council Asks Whose Voice Is it Anyway?” The Globe and Mail, March
21, 1992 at C-I and C-15.
3. Ibid. at C 1.
4. Ibid.
5. Ibid.
6. The term “dangerous supplement” is borrowed from Jack Balkin, who borrows it from Jacques Derrida
in “Deconstructive Practice and Legal Theory” (1987) 96 Yale L. J. 743.
7. I use the gendered pronoun deliberately here because I am referring to a cultural concept-the Romantic
author—rather than any actual authors. The author in Westem European history is a figure who occupies
a decidedly male gendered position. For further discussion, I refer the reader to Sandra Gilbert & Susan
Gubar, The Madwoman in the Attic: the woman writer and the nineteenth-century literary imagination
(New Haven: Yale University Press, 1979).
8. Letter to the Editor, The Globe and Mail, March 28, 1992 at D-7. Reprinted in OUT Magazine: Canada’s
National Gay Arts/Entertainment Monthly, June 1992. Canada’s gay and lesbian communities have
been disproportionately affected by the Supreme Court of Canada’s recent decision to uphold Canada’s
obscenity laws. See R. v. Butler (1992) 89 D.L.R. (4th) 449. A victory for mainstream feminists has
become an opportunity for federal officials to seize and confiscate gay and lesbian erotica. This has
created a climate of opposition to state censorship amongst gay and lesbian activists which perhaps
accounts for the reprinting of Findley’s letter in a gay journal. As I will suggest, however, opposition
to the repression of the alternative representations of minority groups cannot be maintained solely in
the name of “Freedom of Expression” without thereby becoming complicit with the relations of power
at work in the contemporary deployments of the term.
9. Letter to the Editor, The Globe and Mail, March 28, 1992 at D-7.
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her intervention in the debate “A Letter to the Thought Police”.'”
Other critics proclaimed the absolute freedom of the author’s imagination. Neil
Bissoondath affirmed the autonomy of his ego in a quotation resplendent with the
-r’ of Romantic individualism:
I reject the idea of cultural appropriation completely…l reject anything that limits the imag-
ination. No one has the right to tell me who I should or should not write about, and telling
me what or how I do that amounts to censorship…I am a man of East-Indian descent and
I have written from the viewpoint of women and black men, and I will continue to do
so no matter who gets upset.”
Richard Outram declared that for the past 35 years he had been appropriating the
“voices of men, women, dogs, cats, rats, bats, angels,…mermaids, elephants…[and]
salamanders”‘I and that he had no intention of consulting with them or seeking their
permission:
In common with every writer worthy of his or her vocation, I refuse absolutely to entertain
any argument demanding that I do so, or that I am to be in any way restricted in my choice
of subject matter. I will not, in short, submit to such censorship….”
Russell Smith confidently asserted that “appropriation of voice is what fiction is””
while Bill Driedger lamented that “if cultural appropriation had never been per-
mitted Puccini could not have written La Bohme, Verdi’s Aida would never have
been performed, we would never have thrilled to Laurence Olivier in Hamlet and
we would have been denied the music of Anna and the King of Siam.”‘”
In these constructions of authorship, the writer is represented in Romantic terms
as an autonomous individual who creates fictions with an imagination free of all
constraint. 6 For such an author, everything in the world must be made available
and accessible as an ‘idea’ that can be transformed into his ‘expression’ which thus
becomes his ‘work’.’ 7 Through his labour, he makes these ‘ideas’ his own; his pos-
session of the ‘work’ is justified by his expressive activity. As long as the author
does not copy another’s expression, he is free to find his themes, plots, ideas, and
characters anywhere he pleases, and to make these his own (this is also the model
10. The Globe and Mail, March 31, 1992 at A-16.
11. Supra, note 2 at C-15.
12. Letter to the Editor, The Globe and Mail. March 28, 1992 at D-7.
13. Ibid.
14. Letter to the Editor, The Globe and Mail April 3, 1992 at A-3.
15. Letter to the Editor, The Globe and Mail, March 28. 1992 at D-7.
16. For a discussion of the relationship between Romanticism and imperialism in the nineteenth century
see Jonathan Arac & Harriet Ritvo, eds, Macropolitics of Nineteenth.Century Literatre; Nationalism.
Exoticism, Imperialism (Philadelphia: University of Pennsylvania Press. 1991). For a discussion that
situates early copyright law in the larger context of colonialism and the relation between mimesis and
altedrty see Rosemary J. Coombe, “Occupying the Colonial ImaginatiouPreoccupations of Posteolonial
Politics: A Critical History of Copyright” in Peter Jaszi & Martha Woodman.ee eds, The Politics and
Poetics of Intellectual Property in a Postcolonial Era (Durham, NC: Duke University Press, forth-
coming).
17. For a discussion of the similar and simultaneous logic of European colonialism see Timothy Mitchell.
Colonising Egypt (Berkeley: University of California Press, 1988).
Coombe
of authorship that dominates Anglo-American laws of copyright).'” Any attempts
to restrict his ability to do so are viewed as censorship and as an unjustifiable restric-
tion on freedom of expression. The dialectic of possessive individualism and liberal
democracy is thereby affirmed. 19
But if the fictitious being of the Romantic author coloured one side of the debate,
the essentializing voice of Orientalism dominated the other.’ The article that began
the debate was titled “Whose Voice is It Anyway?”‘ The question presupposed
18. For critical considerations of “authorship” as it originated and continues to figure in our intellectual
property laws (most obviously in copyright but also, I would contend in publicity rights, trademark
and patent regimes), see Mark Rose, “The Author as Proprietor Donaldson v. Becket and the Genealogy
of Modem Authorship” (Summer 1988) 23 Representations 51; Mark Rose, Authors and Owners
(Cambridge: Harvard University Press, 1993); Martha Woodmansee, “The Genius and the Copyright:
Economic and Legal Conditions of the Emergence of the ‘Author’ (1984) 17 Eighteenth Century
Studies 425; Peter Jaszi, “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship'” (1991)
Duke L. J. 455; David Lange, “At Play in the Fields of the Word: Copyright and the Construction of
Authorship in the Post-Literate Millennium” (1992) 55 Law and Contemp. Problems 139; Jessica
Litman, “The Public Domain” (1990) 39 Emory L. J. 965; Litman, “Copyright as Myth” (1991) 53
U. of Pitt. L. Rev. 235; Peter Jaszi, “On the Author Effect: Contemporary Copyright and Collective
Creativity” (1992) 10 Cardozo Arts and Entertainment L. J. 293; Martha Woodman see, “On the Author
Effect: Recovering Collectivity” (1992) 10 Cardozo Arts and Entertainment L. J. 279. Many of these
articles also consider the idea/expression dichotomy. For a recent discussion of the difficulties of main-
taining the stability of the idea/expression distinction in copyright law, see Amy B. Cohen, “Copyright
Law and the Myth of Objectivity: The Idea-Expression Dichotomy and the Inevitability of Artistic
Value Judgements” (1990) 66 Indiana L. J. 175.
19. Critical legal scholars have written extensively about the inadequacies of Romantic individualism and
its understanding of subjectivity, cultural agency, and freedom of speech, (albeit under the umbrella
term of liberalism). J. M. Balkin, “Ideology as Constraint” (1991) 43 Stan. L. Rev. 1133; James Boyle,
“Is Subjectivity Possible? The Postmodern Subject in Legal Theory” (1991) 62 U. of Col. L. Rev. 489;
Boyle, “The Politics of Reason: Critical Legal Theory and Local Social Thought” (1985) 133 U. of
Penn. L. Rev. 685. Paul Chevigny, More Speech: Dialogue Rights and Modern Liberty (Philadelphia:
Temple University Press, 1988); Rosemary J. Coombe, “Publicity Rights and Political Aspiration: Mass
Culture, Gender Identity, and Democracy” (1992) 26 New Eng. L. Rev. 1221; Rosemary J. Coombe,
“Objects of Property and Subjects of Politics: Intellectual Property Laws and Democratic Dialogue”
(1991) 69 Texas L. Rev. 1853; Coombe, “Room for Manoeuver: Toward a Theory of Practice in Critical
Legal Studies” (1989) 14 Law and Social Inquiry 69; Coombe, “‘Same As It Ever Was’: Rethinking
the Politics of Legal Interpretation” (1989) 34 McGill L. J. 603; Drucilla Cornell, “Institutionalization
of Meaning, Recollective Imagination and the Potential for Transformative Legal Interpretation” (1988)
136 U. of Penn. L. Rev. 1135; Drucilla Cornell, “Toward a Modern/Postmodern Reconstruction of
Ethics” (1985) 133 U. of Penn. L. Rev. 291; Cornell, The Philosophy of the Limit (New York:
Routledge, Chapman and Hall, 1992); Cornell, Beyond Accommodation: Ethical Feminism,
Deconstruction, and the Law (New York: Routledge, Chapman and Hall, 1991); Stanley Fish, Doing
What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies
(Durham: Duke University Press, 1989); Owen Fiss, “Why the State?” (1987) 100 Harv. L. Rev. 781;
Fiss, “Free Speech and Social Structure” (1986) 71 Iowa L. Rev. 1405; Alan Hutchinson, “Talking
the Good Life” (1989) 1 Yale J. of Law and Liberation at 17; Mary Joe Frug, Postmodern Legal
Feminism (New York: Routledge, Chapman and Hall, 1992); Martha Minow, “Identities” (1991) 3
Yale J. of Law & Humanities 97; Dennis Patterson, “Postmodernism/FeminismiLaw” (1992) 77 Cornell
L. Rev. 254; Gary Peller, “The Metaphysics of American Law” (1985) 73 Cal. L. Rev. 1152; Pierre
Schlag, “The Problem of the Subject” (1991) 69 Texas L. Rev. 1627; “Fish v. Zapp: The Case of the
Relatively Autonomous Self’ (1988) 76 Georgetown L. J. 37 and other sources cited therein. No such
list could claim to be exhaustive.
20. The term “Orientalism” is drawn from Edward Said’s pathbreaking work of the same title (New York:
Vintage Books, 1979). Although Said’s work was concerned to explicate the rhetorical strategies and
informing tropes of late eighteenth and early nineteenth Orientalist scholars, the term has come to stand
for a mode of representing the other that projects upon non-Western peoples qualities and characteristics
that are mirror opposites of the qualities the Vest claims for itself. Moreover, such approaches have
a tendency to deny other societies their own histories, to present them as internally homogeneous and
undifferentiated, ‘timeless,’ defined and subsumed by unchanging ‘traditions,’and unable to creatively
deal with outside influences, or interpret the impact of external forces. Often, to ‘Orientalize’ also means
to represent others as both feminine and childlike, and in need of representation by Western authorities.
21. Supra, note 2.
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that a “voice” was both unified and singular and could be possessed by an individual
or a collective imagined as having similar abilities to possess its own expressions.
This debate was connected to earlier public discussions in which Native writers
insisted that white writers refrain from telling stories involving Indians so as to
enable Native peoples to claim “their own history.”- Questions of “Who’s stealing
whose stories and who’s speaking with whose voice” had been posed by Native
cultural activists as cases of “cultural theft, the theft of voice.”‘ Canadians were
told that “stories show how a people, a culture, thinks”2’ and such stories could
not be told by others, without endangering the authenticity and authority of cultural
works. The Canadian publishing and broadcasting industries had long been accused
of stealing the stories of Native peoples and thus destroying their essential meanings
in authentic traditions. Native artists asked if “Canadians [had] run out of stories
of their own” 6 and claimed that the telling of Native stories was theft, “as surely
as the missionaries stole our religion and the politicians stole our land and the res-
idential schools stole our language.” As I will suggest later, however, the tropes
of cultural essentialism and possessive individualism evoked here are belied by
the very expressive forms for which Native peoples seek recognition and the speci-
ficity of the historical struggles in which they figure.
As Alan Hutchinson suggested, the three week newspaper debate generated more
heat than light.? He proposed that in the struggle to eliminate invidious social
inequalities, we need to hear the voices and understand the experiences of those
who have been marginalized to cultivate imaginative means for dealing with dom-
ination. But, in making this argument, he too adopts the tropes of possessive indi-
vidualism, in which authors ‘have identities’ which may or may not ensure ‘their
own work’s authenticity’ (and Canada has a singular culture, albeit a conversational
one):
It does matter who is speaking, but identity is neither entirely dispensable nor completely
determinative…the hope is that by increasing the membership in the larger community
of those who have previously been absent, the overall authority and authenticity of that
body of work will be improved.?
Most of those who supported the Canada Council and its Advisory Committee
for Racial Equality rested their arguments on a set of assumptions that, I will sug-
gest, are equally problematic, equally Eurocentric, and employ the same tropes
of possessive individualism as those of their opponents. Proponents of the Canada
Council’s suggestion defended their position on the grounds of the integrity of cul-
tural identity. Speaking on behalf of the Canada Council, director Joyce Zemans
22. Lenore Keeshig-Tobias, “Stop Stealing Native Stories”. (January 26, 1990) The Globe and Mad
A-7.
23. Ibid.
24. Ibid.
25. Ibid.
26. Ibid.
27. Ibid.
28. “Giving Smaller Voices a Chance to be Heard”, (April 14, 1992) Tie Globe and Mail A- 16.
29. Ibid.
Coombe
claimed that cultural appropriation is a serious issue because “we have a new need
for authenticity. In our society today, there is a recognition that quality has to do
with that authenticity of voice.”‘ Susan Crean, chair of the Writers Union of
Canada, analogized the issue to a legal claim of copyright, in which any unlicensed
use of authorial property is theft.”
It seems to be assumed in these arguments that Canada is either a country with
its own culture or one in which there are multiple discrete cultures, but that one
always has a singular culture of one’s own, that one has a history of one’s own,
and that one possesses an authentic identity that speaks in a univocal voice fully
constituted by one’s own cultural tradition. As I will argue in more detail, these
are extremely contentious propositions that themselves embody contingent concepts
integral to Western histories of colonialism and imperialism. Moreover, I will sug-
gest that the concepts of culture, authenticity, and identity that define these argu-
ments are constructed around the same philosophy of possessive individualism that
define our legal categories of property.
The challenges that postcolonial struggles32 pose for Canadian society cannot
be met by our traditional reliance upon categories of thought inherited from a colo-
nial era. The conceptual tools of modernity are ill-equipped to deal with the
30. Supra, note 2, at C-I.
31. Ibid at C-15.
32. I have chosen deliberately to use the term postcolonial rather than the term multicultural, and the lan-
guage of struggle rather than the currently fashionable discourse of cultural diversity, because these
alternative terms emphasize rather than obscure the very real histories of colonialism from which all
peoples in Canada are still emerging, and the very real relations of power and domination inherited
from our diverse colonial pasts that continue to shape social relations of difference in this country.
Multiculturalism seems to assume a social field of equivalent differences, that can be subsumed under
a single policy of tolerance, without regard for the very real psychic, social, economic, and cultural
damage done by histories of Western imperialism. For critical discussions of multiculturalism see,
Kooglia Moodley, “Canadian Multiculturalism as Ideology” (1983) 6 Ethnic and Racial Studies 320,
and Chandra Mohanty, ” On Race and Voice: Challenges for Liberal Education in the 1990’s” (1990)
14 Cultural Critique 179. The literature discussing postcolonialism is vast. There is a general agreement
that the reception and interpretation of two texts-Edward Said’s Orientalism, supra, note 20 and Frantz
Fanon Black Skin, White Masks (New York: Grove Press, 1967)-mark the beginnings of the devel-
opment of the discourse, but it has now expanded across several disciplinary fields. For a fine overview
see Patricia Seed, “Colonial and Postcolonial Discourse” (1991) 26 Latin Am. Research Rev. 181.
For recent criticism of the term and its range of extension see Arun P. Mukherjee, “Whose Post-
Colonialism and Whose Postmodemism?” (1990) 30 (2) World Lit. Written in English 1; Ella Shohat,
“Notes on the ‘Post-Colonial”‘ (1992) 32 Social Text 99; Helen Tiffin, “Post-Colonialism, Post-
Modernism and the Rehabilitation of Post-Colonial History” (1988) 23(1) J. of Commonwealth Lit.
169; Ruth Frankenberg & Lata Mani, “Crosscurrents, Crosstalk: Race, ‘Postcoloniality’ and the Politics
of Location” (1993) 17 Cultural Studies–(forthcoming) also reprinted in Smadar Lavie & Ted
Swedenburg, eds, Displacement, Diaspora and the Geographies of Identity (Durham, NC: Duke
University Press, forthcoming in 1994). Linda Hutcheon has written that “Canada [i]s still caught up
in the machinations of Empire and colony, imperial metropolis and provincial hinterland”; a context
in which the debates about post-colonialism have historically specific relevance, given the experience
and ongoing manifestations of British Empire, and the arrival of immigrants from other post-colonial
nations. Furthermore, she suggests that “when Canadian culture is called post-colonial today the ref-
erence is very rarely to the Native culture, which might be the more accurate historical use of the term
… Native and Metis writers are today demanding a voice (Cuthand; Armstrong; Campbell) and perhaps,
given their articulations of the damage to Indian culture and people done by the colonizers (French
and British) and the process of colonization, theirs should be considered the resisting, post-colonial
voice of Canada.” See “‘Circling the Downspout of Empire’: Post-Colonialism and Postmodemism”
(1989) 20 (4) Ariel 149 at 149 and 156.
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conditions of postmodernity in which we all now live.” To make this argument,
I will delineate the conceptual logic that developed in the nineteenth century colo-
nial context to categorize art, culture, and authorial identity. This European art/cul-
ture system continues to dominate discourses about art, culture, and identity in the
Western World, and seems to mark the contemporary limits of the legal imaginary. ‘
The European Art/Culture System
In his influential work The Predicament of Culture, historian James Clifford
discusses “the fate of tribal artifacts and cultural practices once they are relocated
in Western museums, exchange systems, disciplinary archives, and discursive tra-
ditions”3 Clifford delineates an “art-culture system”, developed during the nine-
teenth century in the context of global colonialism and imperialism as a means of
categorizing artistic and cultural goods. I will suggest that these categories continue
to inform our laws of property, and that these categories may no longer be appro-
priate in a postcolonial context.
As many contemporary cultural critics suggest, the concepts of art and culture
are mutually constitutive products of the European upheavals and expansions of
the early nineteenth century, the ascendancy of bourgeois values, the spectre of
mass society, imperialist expansion, and colonial nile.” To quickly summarize, art
in the eighteenth century primarily referred to skill and industry, whereas culture
designated a tendency to natural and organic growth-as in ‘sugar beet culture’.
Only in the early nineteenth century was art as an imaginative expression abstracted
from industry as a utilitarian one. The emergence of an abstract, capitalized Art,
33. For longer discussions of the distinctions between modernity and postmodernity see Rosemary J.
Coombe, “Beyond Modernity’s Meanings: Encountering dte Postmodern in Cultural Anthropology”
(1991) 11 Culture II1; Coombe, “Publicity Rights and Political Aspiration”. supra. note 19; Mike
Featherstone, Consumer Culture and Postmodernism. (London: Sage Publications. 1991) at 1-12; David
Harvey, The Condition of Postmodernin’ (Oxford: Basil Blackwell, 1989); and Fredric Jameson,
Postmodernism, or, The Cultural Logic of Late Capitalism (Durham: Duke University Press. 1991).
The term postmodem has been adopted into legal discourse in a rather idiosyn atic and restricted man-
ner that concerns itself primarily with the social construction of the subject or self (see sources cited
supra, note 19) but largely ignores the social, economic, and cultural conditions that define the sire
of postmodernity and its relationship to the globalization of capital or postcolonial politics. The vexed
relation between postmodernism (a concept that privileges the Western World) and postcolonialism
is addressed by Hutcheon, Tiffin, & Mulkherjee, supra, note 32.
34. 1 use the term “imaginary” in the Lacanian sense to refer to an agent’s compulsion to seek “an iden-
tificatory image of its own stability and permanence (the imaginary)” in “the order of images, rep-
resentations, doubles, and others.” Elizabeth Grosz, Jacques Loran: A Feninist Introduction (New
York. Routledge, Chapman and Hall. 1990) at 35.
35. James Clifford, The Predicament of Culture: Twentieth Century Etlnograply. Literature. and Art
(Cambridge: Harvard University Press, 1988 ) at 215.
36. See Patrick Brantlinger, Crusoe’s Footprints: Cultural Studies in Britain and America (New York:
Routledge, Chapman and Hall, 1990); James Clifford, supra. note 35; Rosemary J. Coombe, “Beyond
Modernity’s Meanings”, supra, note 33; Renato Rosaldo, Culture and Truth: Renakng Soeial Analysis
(Boston: Beacon Press, 1989); Raymond Williams, Culture and Societ–1780-1950 (New York:
Columbia University Press, 1983); Raymond Williams, Kcywords: A 1 ,cab:dary of Culiure andSv i
(New York: Oxford University Press, 1983). For a related discussion of the development of copyright.
its concepts of authorship, expression, and work in terms of their relationship to European colonialism
in Africa, India, and the Middle East, see Rosemary J. Coombe, “Occupying the Coonial Imagination”,
supra, note 16.
Coombe
equated with individual creativity and expressive genius, was developed in the same
period as the concept of capitalized culture, as a noun or the end product of an
abstract process of civilization. Tracing this development through the German,
French, and English languages, Raymond Williams shows how the term ‘culture’
developed three sets of referents:
(i) the independent and abstract noun which describes a general process of intellectual,
spiritual and aesthetic development,… (ii) the independent noun, whether used generally
or specifically, which indicates a particular way of life, whether of a people, a period,
a group, or humanity in general, from Herder and Klemm… (iii) the independent and
abstract noun which describes the works and practices of intellectual and especially artistic
activity…In English (i) and (iii) are still close; at times, for internal reasons, they are indis-
tinguishable as in Arnold, Culture and Anarchy (1867); while sense (ii) was decisively
introduced into English by Tylor, Primitive Culture (1870)…. The decisive development
of sense (iii) in English was in [late nineteenth and early twentieth centuries]. 37
It was possible by the end of the nineteenth century to speak of ‘Culture’ with
a capital C-representing the height of human development, the most elevated of
human expression as epitomized in European art and literature-as well as plural
‘cultures’ with a small c-imagined as coherent, authentic ways of life characterized
by “wholeness, continuity and essence.”‘ These two concepts of culture dominate
“the limits of a specific ideological consciousness, [marking] the conceptual points
beyond which that consciousness cannot go, and between which it is condemned
to oscillate.”39 They may also mark the limits of the legal imaginary.
Clifford begins his discussion of Western classifications with a critical review
of a 1984 exhibit at the Museum of Modem Art in New York (MOMA) titled
“‘Primitivism’ in 20th Century Art: Affinity of the Tribal and the Modem” which
documented the influence of tribal objects in the works of modernist masters such
as Picasso, Brancusi, and Miro.10 In the early twentieth century, the exhibit suggests,
these modernists discover that primitive objects are in fact powerful art and their
own work is influenced by the power of these forms. A common quality or essence
joins the tribal to the modem in what is described under the universalizing rubric
of ‘affinity.’ An identity of spirit and a similarity of creativity between the modem
and the tribal, the contemporary and the primitive, is recognized and celebrated
(a movement that continues to hold persuasive power in the Western World, if the
recent television series Millennium is any indication).
The humanist appeal of the exhibit, however, rests upon a number of exclusions,
evasions, and stereotypes. One could, for example, question the way modernism
appropriates otherness, constitutes non-Western arts in its own image and thereby
discovers universal ahistorical human capacities by denying particular histories,
local contexts, indigenous meanings, and the very political conditions that enabled
Western artists and authors to seize these goods for their own ends. Needless to
37. Williams, Keywords, ibid. at 90-91.
38. Clifford, supra, note 35 at 233.
39. Clifford, supra, note 35 at 223 citing Fredric Jameson, The Prisonhouse of Language: Narrative as
a Socially Symbolic Act. (Ithaca: Cornell University Press, 1981) at 47.
40. Clifford, supra, note 35 at 189-214.
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say, the “imperialist contexts that surround the ‘discovery’ of tribal objects by mod-
ernist artists” just as “the planet’s peoples came massively under European political,
economic, and evangelical dominion,” is not addressed in the MOMA exhibit.
Indeed, the emphasis is upon the narrative of European “creative genius recognizing
the greatness of tribal works,”‘” thereby bestowing upon these objects the status
of ‘art’ in place of their former lowly designation as ethnographic specimens. As
Clifford states, “[Tihe capacity of art to transcend its cultural and historical context
is asserted repeatedly.” 2 The category of art, however, is not a universal one, but
an historically contingent European category, in which the artistic imagination is
universalised in the European image under the name of a putatively ‘human’
Culture.
The “appreciation and interpretation of tribal objects takes place”, according
to Clifford, “within a modem ‘system of objects’ which confers value on certain
things and withholds it from others.”‘ Clifford delineates the “art-culture system”
that developed in the nineteenth century as a way of categorizing expressive works
of aesthetic value in a context of European imperialism and colonialism and the
collection of objects in imperialist forays around the globe.” Using a classificatory
grid, he demonstrates how two categories have dominated our understanding of
expressive works and their proper placement, and two subsidiary categories have
encompassed those objects not so easily subsumed by the dominant logic. First,
he designates the zone of “authentic masterpieces” created by individual geniuses,
the category of ‘art’ properly speaking. Secondly, he designates the category of
“authentic artifacts” created by cultures imagined as collectivities.” Objects may,
therefore, be exhibited in galleries, as examples of a human creative ability that
transcend the limitations of time and place to speak to us about the ‘human’ con-
dition; representing the highest point of human achievement, they are regarded as
41. Ibid. at 196.
42. Ibid. at 195.
43. Ibid. at 198.
44.Ibid. at 215-51.
45. Clifford’s other two categories are inauthentic masterpieces (counterfeits and illicit copies) w hich would
seem to include all works that infringe copyright, and inauthentic artifacts (mass produced objects
and crafts) which would fall into the realm of items not protected by law; such as crafts, or given a
lesser degree of protection due to their status as commercially produced objects (as industrial design).
Ibid. at 223. Clifford points out that objects often pass from one zone to another, in terms of the way
that they are socially valued. Hence, works that deliberately copy other works in artistic statements,
such as the anti-art or anti-aesthetic movement in the 1980’s, are sought as original works of art by
collectors, hence moving from the zone of inauthentic to the zone of authentic masterpieces as their
artists achieve renown (See Hal Foster, Tire Anti-Aesthetic: essays on postmodern culture Port
Townsend: Bay Press, 1983) and Hal Foster, Recodings: art, spe, tacle and cultural poitics (Port
Townsend: Bay Press, 1985) for discussions of artistic work in this tradition). Similarly; examples of
early commercial packaging may cease to be seen as inauthentic artifacts and become valued as authen-
tic artifacts that embody the culture of a particular era in history. Some commercialized mass produced
painting from the Third World may become valued either as the work of a culture, or eventually, as
the work of an individual artist, as is currently the case with barbershop signs from West Africa. It
is important to note here that the law assigns works a category and a degree of protection at the time
of origin, not at shifting points of public reception. Hence, an artistic work that copies the work of
another, regardless of the social critique or political point the artist believes she is ma.king. is a copyright
infringement and remains one even if the artworld comes to regard the work/opy as an authentic mas-
terpiece. Works do not move through legal categories as quickly as they are revalued in the social world.
Elsewhere I suggest that this works to the detriment of third world peoples. See Coombe, Cultural
Appropriations: Intellectual Propeny Colonialism, and Contemporary Politics lNew York: Routledge,
Chapman and Hall, forthcoming).
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testaments to the greatness of their individual creators. Alternatively, objects may
be exhibited in museums as the authentic works of a distinct collectivity, as integral
to the harmonious life of an ahistorical community and incomprehensible outside
of ‘cultural context’-the defining features of authentic artifacts.
For an object to be accepted as an authentic artifact, it must locate itself in an
untouched, pristine state that bespeaks a timeless essence in a particular cultural
tradition. That which is recognized as authentic to a culture cannot bear any traces
of that culture’s contact with other cultures; particularly it must bear no marks of
that society’s history of colonialism which enabled such works to make their way
into Western markets. The tribal life from which such objects magically spring are
permitted no histories of their own, relegated to an ahistorical perceptual present,
perceived as essential traditions that are vanishing, being destroyed, or tainted by
the forces of modernization. The capacity of ‘tribal’ peoples to live in history, and
to creatively interpret and expressively confront the historical circumstances in
which they live, using their cultural traditions to do so, cannot be contemplated,
except under marginalised categories like ‘syncretism’ which suggest impurity and
decline; “aboriginals apparently must always inhabit a mythic time” 6. Those cul-
tural manifestations that may signal the creative life rather than the death of societies
are excluded as inauthentic, or, alternatively, denied cultural, social, or political
specificity by becoming incorporated into the universalizing discourse of art.
Tribal objects may transcend their original placement; for example, when
African objects become elevated and recognized as art, these “artifacts are essen-
tially defined as masterpieces, their makers as great artists. The discourse of con-
noisseurship reigns. … personal names make their appearance….” i.e., art has
signature.47 When non-Western objects fully pass from the status of authentic artifact
to the status of art, they also escape the ahistorical location of the ‘tribal’, albeit
to enter into a ‘universal’ history, defined by the progression of works of great
author/artists (the canon of civilization). They become part of a ‘human’ cultural
heritage-Culture capitalized-rather than objects properly belonging to the ‘cul-
tures’ defined by the discipline of anthropology in the nineteenth and early twentieth
centuries.
These categories of art, Culture, and culture, and the domains of authentic mas-
terpieces and authentic artifacts to which they relate, are mirrored in our legal cat-
egories for the valuation and protection of expressive objects. Laws of intellectual
property (copyright in particular) and laws of cultural property reflect and secure
the logic of the European art/culture system that Clifford outlines. Laws of copy-
right, for example, developed to protect the expressive works of authors and
artists-increasingly perceived in Romantic terms of individual genius and tran-
scendent creativity-in the service of promoting universal progress in the arts and
sciences. Copyright laws protect works, understood to embody the unique person-
ality of their individual authors, and the expressive component of the original is
so venerated that even a reproduction or imitation of it is deemed a form of theft.
46. Clifford, supra, note 35 at 201-02.
47. Ibid. at 204-06.
Culture and Property
Although the history of copyright has been more critically investigated else-
where, ‘ a few points are central to my argument. The idea of an author’s rights
to control his expressive creations developed in a context that privileged a Lockean
theory of the origin of property in labour in which the expressive creation is seen
as the author’s ‘work’ albeit mental work that creates an ‘Original’ arising spon-
taneously from the vital root of ‘Genius’ 9 Originality in mental labour as opposed
to manual labour enabled the author to claim not merely the physical object pro-
duced, but the literary or artistic expression itself–the ‘work’ properly defined.
As William Blackstone wrote in the late eighteenth century, in the context of
literary copyright (although the same ideas were soon extended into the artistic
sphere) the work is neither the physical book, nor the ideas contained in it, but the
form of the expression which the author gives to those ideas.
The identity of a literary composition consists intirely in the sentinent and the lanuage-;
the same conceptions, cloathed in the same words, must necessarily be the same com-
position: and whatever method be taken of conveying that composition to the car or the
eye of another, by recital, by writing, or by printing, in any number of copies or at any
period of time, it is always the identical work of the author which is so conveyed. and
no other man can have a right to convey or transfer it without his consent….”I
Literary or artistic works were incorporeal entities that sprang from the “fruitful
mind” of an author,; one of many organic metaphors that proliferated in the
Romantic ideology of creativity and resonated with Hegelian theories of personality.
The work carries the imprint of the author’s personality and always embodies his
persona, wherever it surfaces, and whatever the sources of its content or the quality
of the ideas it expresses—“even the humblest creative effort is protected because
personality always contains something unique. It expresses its singularity…that
which is one man’s alone. ‘ ‘ n
In the same way that intellectual property laws (dominated by the expressive,
inventive and possessive individual) legitimize personal control over the circulation
of texts, laws of cultural property protect the material works of culture, namely,
objects of artistic, archaeological, ethnological, or historical interest. Culture may
be defined here in either of the two ways established in the nineteenth century-as
the universal heritage of humankind-culture with a capital C-or in the plural
48. See especially Jaszi, Towards a Theory of Copyright”, sitpra. note 18; Rcm”Tha Author as Propriet ,
supra, note 18; Woodman see “The Genius and the Copyright”, supra. note 18. John Feather.
“Publishers and Politicians: The Remaking of the Law of Copyright in Britain 1775-1842 The Rights
of Authors” (1989) 25 Publishing History 45 argues that the centrality of authorship in copyright and
the belief that the author should be the main beneficiary of literary work was not fully established in
Britain until 1814 and reflects the ascendency of Romantic reconceptualizations of the creative process.
For further historical studies of ‘authorship’ see the entirety of (1992) 10(2) Cardozo Arts and
Entertainment L. J. 279-725.
49. 1 am paraphrasing Edward Young, Conjectures On Original Composition (London: 1759) as cited in
Rose, “The Author as Proprietor”, supra, note 18.
50. William Blackstone, Commentaries on the Lavs of England. 4 Volumes (Oxford: Clarendon Press.
1765-69) vol. 2 at 405-06.
51. William Enfield, Observations on Literary Property (London: 1774) at 21.
52. Bleistein v. Donaldson L’thographing Co. 188 US. 239 at 250 (1903) interpreting the nineteenth century
cultural critic John Ruskin. These Romantic and pre-indstrial concepts continue to dominate copyright
doctrine even in a post-industrial age in which individual Romantic authors are increasingly difficult
to find in the bureaucratic and corporate structures of today’s culture industries.
Coombe
anthropological sense, in which different cultures lay claim to different properties.”
These two positions on the nature of the ‘culture’ that can rightfully possess the
property at issue define the poles of an ongoing controversy in legal scholarship.
John Henry Merryman, the most prolific of the legal scholars writing in this field,
defends a position he defines as “cultural internationalism” which he describes in
Enlightenment terms as a commitment to “the cultural heritage of all mankind”
to which each people make their contribution and in which all people have an inter-
est.’ This attitude towards cultural property emerges from the law of war and the
need to cease military activities when cultural objects are endangered, and to treat
those responsible for offences against cultural property as having committed a crime
against humanity. It is enshrined in The Convention for the Protection of Cultural
Property in the event of armed conflict enacted in the Hague on May 14, 1954.”
The other position on cultural property that Merryman defines and denigrates
is “cultural nationalism”56 in which particular peoples have particular interests in
particular properties, regardless of their current location and ownership. This attitude
towards cultural property is embodied in The Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership
of Cultural Property of November 14, 1970″Y (hereinafter UNESCO 1970), in which
“the parties agree to oppose the impoverishment of the cultural heritage of a nation
through illicit import, export, and transfer of ownership of cultural property, agree
that trade in cultural objects exported contrary to the law of the nation of origin
is illicit and agree to prevent the importation of such objects and facilitate their
return to source nations.”’58 As of 1986,58 nations had become parties to UNESCO
1970; many of these signatories have policies that prevent all export of cultural
property, thus making any international trafficking of cultural property ‘illicit’ 9
Merryman derides cultural nationalism as motivated by ‘Romantic
Byronism’-a curiously Eurocentric term that he indiscriminately applies to all
nations with an interest in the preservation and repatriation of significant cultural
objects. ° For Merryman, such a position can only be seen as irrational because in
53. An overview of the treaties that define the parameters of the international law of cultural property may
be found in Joseph F. Edwards, “Major Global Treaties for the Protection and Enjoyment of Art and
Cultural Objects” (1991) 22 Toledo L. Rev. 919.
54. John Henry Merryman, “Two Ways Of Thinking About Cultural Property” (1986) 80 Am. J. of
International L. 831; John Henry Merryman, “The Public Interest in Cultural Property” (1989) 77 Cal.
L. Rev. 339.
55.249 U.N.T.S. 240.
56. It would appear that Merryman equates nationhood with statehood and is not prepared to recognize
the existence of more than one nation within a sovereign state. Hence he finds demands for the repa-
triation of objects from cultural groups rather than nations to be ‘awkward’ and ’embarrassing’ events.
See “The Public Interest”, supra, note 54 at 351. He also sees one of the major values of cultural objects
to be their embodiment of truth, envisioned as a source of certainty about the authenticity of the human
cultural past-not in terms of an object’s role in the ongoing lives of peoples and communities. See
Rebecca Clements, “Misconceptions of Culture: Native Peoples and Cultural Property under Canadian
Law” (1991) 49 U. of Tor. Faculty. of L. Rev. 1 for a good discussion of the possibilities afforded to
First Nations peoples for the repatriation of sacred objects under cultural property laws.
57. 823 U.N.T.S. 231, reprinted in 10 International Legal Materials 289 (1971) as cited in Merryman,
“Two Ways of Thinking”, supra, note 54 at 833.
58. Merryman, “Two Ways of Thinking”, supra, note 54 at 843.
59. Ibid.
60. Ibid. at 833.
Culture and Property
the “source nations” who dominate amongst signatories to UNESCO 1970, the sup-
ply of cultural artifacts far exceeds the internal demand—“they are rich in cultural
artifacts beyond any conceivable use.”” Because such nations are relatively poor,
he believes that they would be better off exporting such objects to locations where
they are valued according to free market principles.
In addition to “Romantic Byronism,” Merryman cites the notion of national cul-
tural patrimony and political symbolic uses of cultural property as possible reasons
for the popularity of “Cultural Nationalism”, but he lumps such considerations
together with “lack of cultural expertise and organization to deal with cultural prop-
erty as a resource like other resources to be managed and exploited.”‘ The pos-
sibility that other peoples may entertain other values is considered no more nor
less likely than their sheer ignorance and ineptitude in recognizing cultural property
as an exportable resource. Merryman seems to find it offensive that source nations
have the exclusive voice in determining whether or not cultural objects will be pro-
hibited from export, when dealers, collectors, and museums are deprived of any
input into the decision. 3 The interest of dealers, collectors, and museums in such
decisions is self-evident; in market terms, they best recognise the value of such
objects, and are in the best position to see that value realized on the market.
It is not that Merryman fails to recognize any other values than those of the mar-
ket; rather, it is that the universal human values embodied in such cultural objects
are assumed to be best recognized by those who will pay the market price. He sug-
gests that a ‘cosmopolitan attitude’ would situate those objects where they could
best be preserved, studied, and enjoyed. Cultural objects will move to the locus
of highest probable protection through the market, because those who are prepared
to pay most are most likely to preserve their investment.’ He makes the case that
many source nations retain cultural works that they do not adequately conserve
or display and that if such works were removed to another nation, they would be
better preserved, studied, and exhibited, or more widely viewed and enjoyed. As
Merryman sees it:
… cultural nationalism finds no fault with the nation that hoards unused objects in this
way, despite the existence of foreign markets for them…. They forbid export but put much
of what they retain to no use. In this way they fail to spread their culture, they fail to exploit
such objects as a valuable resource for trade, and they contribute to the cultural impov-
erishment of people in other parts of the world.”
Merryman seems to find it impossible to entertain the possibility that others
might value objects for reasons beyond those of the market, or that there are alter-
native modes of attachment to objects which do not involve their commodification,
objectification, and reification for the purposes of collection, observation, and dis-
play. One suspects, however, that Merryman would likely object to the movement
of Rembrandts from the Netherlands to Lagos, despite the fact that Rembrandt’s
61. Ibid. at 832.
62. Ibid. at 832 n. 5.
63. Ibid. at 844-45.
64. Ibid. at 849.
65. Ibid. at 847.
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paintings might be “over-represented” in their country of origin where they cannot
possibly be put to their full use, that the Dutch “fail to spread their culture” to the
Third World, and that they thereby “contribute to the cultural impoverishment of
people” in Africa. The existence of vast and seldom displayed holdings in European
and North American museums does not appear to have led to any movement
amongst “cultural internationalists” to establish better museums in Niamey, Lima,
or Nanjing despite the vastly larger numbers of people whose “cultural impover-
ishment” might thereby be alleviated by exposure to the sublime. The “cosmopoli-
tan” attitude Merryman espouses appears more Eurocentric than worldly, more
monocultural than respectful of cultural difference, and less concerned with the
purported “interests of all mankind” than with the interests of maintaining Westem
hegemony.
A more sympathetic and sophisticated case for “cultural nationalism” is made
by John Moustakas in a law review note titled “Group Rights in Cultural Property:
Justifying Strict Inalienability.”’67 Concerned that Greece has been dispossessed of
some of its greatest cultural and artistic patrimony, and that the “looting and pillage
of cultural heritage continues wholesale”‘ as evidenced by thriving black markets,
Moustakas argues that neither international conventions nor national laws have
recognized that new concepts of ownership must be created to deal with emerging
notions of national cultural identity. Existing laws in both national and international
arenas presuppose the alienability of all property, including cultural property,
according to market principles. Moustakas argues for recognition of strict market
inalienability for cultural properties integrally related to group cultural identity,
extending Margaret Jane Radin’s test of “property for personhood”69 to collectivities
conceived as persons.
The nexus between a cultural object and a group, culture, or nation should be
“the essential measurement for determining whether group rights in cultural prop-
erty will be effectuated to the fullest extent possible-by holding such objects
strictly inalienable from the group.'”” Just as:
…the term property for personhood might describe property so closely bound up with our
individual identities that its loss ’causes pain that cannot be relieved by the object’s replace-
ment’,… property for grouphood expresses something about the entire group’s relationship
to certain property…. Some property can be essential to the preservation of group identity
and group self-esteem.”
Against those who would argue that such a position is paternalistic, he argues
that the concept of “communal flourishing” provides an important justification for
66. Ibid. at 850.
67. (1989) 74 Comell L. Rev. 1179.
68. Ibid. at 1182. Ironically, Greece, the country of origin for classical Westem or European culture, is
often now portrayed as a nation that has degenerated from its classical origins such that it is no longer
an appropriate custodian for those objects that define classical European Culture. For a discussion of
Greek nationalism that defines the cultural struggles of Greek peoples in terms of these historical per-
ceptions see Michael Herzfeld, Anthropology Through the Looking Glass: Critical ethnography in
the margins of Europe (Cambridge: Cambridge University Press, 1987).
69. Margaret Jane Radin, “Property and Personhood” (1982) 34 Stan. L. Rev. 957 at 959ff.
70. Moustakas, supra, note 67 at 1184.
71. Ibid. at 1185 n. 17 referring to Radin, supra, n. 69 at 959.
Culture and Property
holding such property inalienable 2 Using the Parthenon Marbles (the term Elgin
Marbles has the effect of ceding legitimacy to British seizure) as his example,
Moustakas argues for recognition that some properties can only properly belong
to groups as constitutive of group identity, that such properties cannot be alienated
because future generations are unable to consent to transactions that threaten their
existence as a group, and that commodification and fungibility are inappropriate
ways to treat constitutive elements of grouphood and are inimical to communal
flourishing.
‘Cultural nationalism’ employs the rhetoric of possessive individualism in its
support for the rights of groups to claim certain objects as part of their essential
identities. Anthropologist Richard Handler has written extensively about the logic
of possessive individualism in contemporary claims to cultural property.” Drawing
upon C.B. Macpherson’s famous work, ‘ Handler argues that possessive individ-
ualism–the relationship that links the individual to property as it was initially for-
mulated in Locke’s labour theory of value-increasingly dominates the language
and logic of political claims to cultural autonomy. Focusing upon the idea of cultural
property as manifested in sixty-odd years of historic preservation legislation in the
province of Quebec, he explicates the tropes used to defend the protection of a
unique cultural heritage. In discussing “le patrimoine”, people in Quebec “envision
national culture as property and the nation as a property-owning ‘collective indi-
vidual.”‘ 75
The modem individual is a self-sufficient and self-contained monad who is com-
plete as a human being:
Not only is one complete in oneself, one is completely oneself. By this I mean that we
conceive of the individual person as having, as we say, “an identity.” Identity means “one-
ness,” though it is oneness of a special sort…”sameness in all that constitutes the objective
reality of a thing.”‘ 6
The second aspect of modem individualism that Handler points to is its pos-
sessive element. In modem culture, an individual is defined by the property he or
she possesses and such individuals naturally seek to transform nature into forms
of private property. Modernity has extended these qualifies to nation states and eth-
nic groups who are imagined on the world stage and in political arenas as “col-
lective individuals.” Like other individuals, these collective individuals are
72. Ibid. at 1185.
73. See Richard Handler, “Who Owns the Past? History. Cultural Property, and the Logic of Possessive
Individualism” in Brett Williams, ed., The Politics of Culture (Washington: Smithsonian Institution.
1991), 63-74; Handler, “On Having a Culture: Nationalism and the Preservation of Quebec’s
Patrimoine” in George W. Stocking, ed., Objects and Others: Essays on Alusetuns and Material Culture
(Madison: University of Wisconsin Press. 1985), 192-217. For others %ho have pointed out the pecu-
liarity and contingency of Western individualism see Louis Dumont. Front Mandeville to Marx: The
Genesis and Triumph of Economic Ideology (Chicago: University of Chicago Press. 1977); Louis
Dumont, Essays on Individualism: Modern Ideology in Anthropological Perspective (Chicago:
University of Chicago Press, 1986) and of course. Alexis de Tocqueville. Demezracy in America. trans.
H. Reeve, esq., 4th ed., rev. & cor. from 18th Paris Ed. New York: J. & H. G. Langley, 1841.
74. C. B. Macpherson, The Political Theor of Possessive Individualism: Hobbes to L-ke (Oxfork Oxford
University Press, 1962).
75. Handler, “On Having a Culture”, supra, note 73 at 194.
76. Handler, “Who Owns the Past”, supra. note 73 at 64.
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imagined to be territorially and historically bounded, distinctive, intemally homo-
geneous, and complete unto themselves.’ In this worldview, each nation or group
possesses a unique identity and culture which is constituted by its undisputed pos-
session of property. Groups increasingly imagine themselves as individuals prizing
their possession of culture and history:
…it is our culture and history, which belong to us alone, which make us what we are, which
constitute our identity and assure our survival…within cultural nationalism a group’s sur-
vival, its identity or objective oneness over time, depends upon the secure possession of
a culture…[and] culture and history become synonymous because the group’s history is
preserved and embodied in material objects—cultural property.’
Material objects, therefore, come to epitomize collective identity-as articulated
by a 1976 UNESCO panel in the principle that “cultural property is a basic element
of a people’s identity,” 9 used to legitimate the repatriation of objects of overriding
importance to group identity. Being is equated with having (and excluding and con-
trolling).
This collective individual is imagined like a biological organism to be precisely delimited
both physically and in terms of a set of traits (its culture, heritage, or ‘personality’) that
distinguishes it from all other collective individuals. The nation is said to ‘have’ or ‘pos-
sess’ a culture, just as its human constituents are described as ‘bearers’ of the national
culture. From the nationalist perspective, the relationship between the nation and culture
should be characterized by originality and authenticity. Cultural traits that come to the
nation from outside are at best ‘borrowed’ and at worst polluting; by contrast, those aspects
of national culture that come from within the nation, that are original to it, are ‘authentic’.
The rhetoric of cultural nationalism clearly bears traces of the same logic that
defines copyright. Each nation or group is perceived as an author who originates
a culture from resources that come from within and can thus lay claim to exclusive
possession of the expressive works that embody its personality. There is, however,
a significant difference in the scope of the claims that can be made on behalf of
a culture, and those that can be made on behalf of an individual author. Copyright
laws enable individual authors not only to claim possession of their original works
as discrete objects, but to claim possession and control over any and all reproduc-
tions of those works, or any substantial part thereof, in any medium.8′ Cultural prop-
erty laws, however, enable proprietary claims to be made only to original objects
or authentic artifacts. The Western extension of Culture to cultural others was
77. Cultural property laws are not the only laws that envision culture in terms of monolithic traditions.
Kristin Koptiuch writes movingly of the way the “cultural defence” has been constructed in criminal
law as a means of espousing cultural relativism and a politically sensitive response to the dilemmas
of cultural difference, but has done so using the tropes of a colonial discourse on the Orient that deems
it ahistorical and essentializes Western constructions of racialised gender difference that permit sexual
violence against Asian women. (Fellowship proposal to the Center for the History of Consciousness,
Santa Cruz, 1992). Like Koptiuch I think it is important to excavate the colonial past stratified in
Western forms of knowledge.
78. Handler, “Who Owns the Past”, supra, note 73 at 66.
79. Ibid. at 67.
80. Handler, “On Having a Culture”, supra, note 73 at 198.
81. These basic premises form the part of all copyright regimes and there is no particular reason to privilege
any specific statutory enactment of these principles here.
Culture and Property
limited to objects of property, not to forms of expression. The full authority of
authorship, however, was confined to the Western World.
To make this concrete, let us return to the Picasso painting. When a primitive
statue, produced in a collectivity for social reasons, makes its way into a Picasso
painting, the statue itself may still embody the identity of the culture from which
it sprang, but any reproduction of it (that resembles Picasso’s ‘work’) may be legally
recognized as the embodiment of Picasso’s authorial personality. The possession
of a culture is profoundly limited, whereas the possession of the author extends
through time and space as his work is reproduced. Royalties flow, not to the statue’s
culture of origin, but to the estate of the Western author, where the fruits of his orig-
inal work are realized for decades after his death.
In his discussion of ‘possessive collectivism’, Handler agrees with the principle
of repatriation as a matter of fair play, but suggests that the cultural identity argu-
ment used to support it has the insidious effect of reproducing and extending
Western cultural ideologies of possessive individualism on a global scale.,” The
problem with restitutionist arguments, he posits, is that they make use of metaphors
“borrowed from the hegemonic culture that the restitutionists are attempting to
resisL”‘ -‘ Arguing from recent developments in anthropology, Handler forcefully
asserts that cultures are not bounded, continuous over time, or intemally homoge-
nous, that traditions are actively invented and negotiated and reimagined as social
agents negotiate their political lives and relationships.” The culture that groups
assert as belonging to them and as essentially embodied in particular pieces of prop-
erty is, he suggests, not an objective thing that has possessed a continuous meaning
and identity over time, but the product of current needs and interpretations:’ It is,
however, as politically dishonest to deny the objective identity of those making
culturally nationalist claims as it is to assert an internationalism that privileges the
nation-building imperialist enterprises of European countries in the name of ‘uni-
versal human values’ or the ‘common heritage of mankind.’ Both positions are
interested human inventions.
Contemporary Properties of Culture and Identity
The European art/culture system and the legal categories that support and sustain
it constitute a limited vision of human expressive possibility and a limited under-
standing of our various modes of cultural attachment to the phenomena which give
meaning to our lives. Ultimately, these categories serve only to culturally impov-
erish the Western self, while they Orientalize the other. By deeming expressive
creations the private properties of authors who can thereby control the circulation
of culturally meaningful texts through our intellectual property laws, we deprive
ourselves of immense opportunities for creative ‘worldmaking’—a phenomenon
82. Handler, “Who Owns the Past?”. supra. note 73 at 67.
83. Ibid. at 68.
84. Ibid. at 68.
85. Ibid. at 69.
86. 1 borrow this term from Nelson Goodman. Iys of llbrldnzaking (Hassods: Harvester Press. 1978).
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I have explored more fully elsewhere.” Denying the social conditions and cultural
influences that shape the author’s expressive creativity, we invest him with a power
that may border on censorship in the name of property.m By representing cultures
in the image of the undivided possessive individual we obscure people’s historical
agency and transformations, their internal differences, the productivity of inter-
cultural contact, and the ability of peoples to culturally express their position in
a wider world. The Romantic author and authentic artifacts are both, perhaps, fic-
tions of a world best foregone.
Anthropologists have spent the better part of the last decade discrediting the
once pervasive disciplinary mode of representing cultures as homogeneous, static,
or timeless, and as governed by uncontested systems of meaning, codes of conduct,
or traditions conceived in juridical terms. 9 Recognising culture as contested, tem-
poral and always emergent in worldly political struggle, they have emphasized the
invention of tradition, and the cultural productivity generated by differences within
cultures, at the borders between cultures, and in the ongoing negotiation of situated
identities.
The creative negotiation of socially situated identities has also been a theme
of contemporary pragmatism, exemplified in legal literature by Martha Minow and
in cultural criticism by bell hooks. Minow points out that:
As a founding parent of pragmatism, [William] James would reject any approach to the
riddle of identity that sought the essence of a person or group. Rather than search for
essences or intrinsic qualities of people or concepts, the pragmatists looked to purposes
and effects, consequences and functions.0
Minow suggests that most legal treatments of identity questions fail to acknowl-
edge that the cultural, gender, racial, and ethnic identities of a person are not simply
intrinsic to that person, but emerge from relationships between people in negoti-
ations and interactions with others; “It]he relative power enjoyed by some people
87. See Coombe, “Objects of Property and Subjects of Politics”, supra, note 19, and Coombe, “Publicity
Rights and Political Aspiration”, supra, note 19. See also Lange, “At Play in the Fields of the Word”,
supra, note 18.
88. See Diane Conley, “Author, User, Scholar, Thief” (1991) 9 Cardozo Arts and Entertainment L. J. 15;
Wendy Gordon, “An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent,
and Encouragement Theory” (1989) 41 Stan. L. Rev. 1343; Gordon, “Toward a Jurisprudence of
Benefits: The Norms of Copyright and the Problem of Private Censorship” (1990) 57 U. of Chi. L.
Rev. 1009; Litman, “Public Domain”, supra, note 18; Litman, “Copyright as Myth”, supra, note 18;
David Lange, “Recognizing the Public Domain” (1981) 44 Law and Contemp. Problems 147; David
Vaver, “Intellectual Property Today: Of Myths and Paradoxes” (1990) 69 Can. Bar Rev. 98.
89. Although it is impossible to draw up a complete list of works addressing these themes, the most general
and influential of works include James Clifford, The Predicament of Culture, supra, note 35; George
Marcus & James Clifford, Writing Culture: The Poetics and Politics of Ethnography (Berkeley:
University of Califomia Press, 1986); George Marcus & Michael Fischer, Anthropology as Cultural
Critique (Chicago: University of Chicago Press, 1985); Renato Rosaldo, Culture and Truth, supra,
note 36. For discussions in particular contexts see Janice Boddy, Wombs and Alien Spirits: Women,
Men and the Zar Cult in Northern Sudan (Madison: University of Wisconsin Press, 1989); Rosemary
J. Coombe, “Beyond Modernity’s Meanings”, supra, note 33; Coombe,”Same As It Ever Was”‘, supra,
note 19; Coombe, “Context, Tradition and Convention: The Politics of Constructing Legal Cultures”
(1990) 13(2) Association for Political and Legal Anthropology Newsletter 15; Coombe, “Barren
Ground: Reconceiving Honour and Shame in the Field of Mediterranean Ethnography” (1990) 32
Anthropologica 221.
90. Martha Minow, “Identities” (1991) 3 Yale J. of Law & the Humanities 97 at 97-98.
Culture and Property
compared with others is partly manifested through the ability to name oneself and
others and to influence the process of negotiation over questions of identity.”‘
Lawyers and judges who address legal questions of identity should keep in mind its kalei-
doscopic nature. They should examine the multiple contributions given to any defimition
of identity. They ought to examine the pattern of power relationships within which an
identity is forged. And they need to explore the pattern of power relationships within which
a question of identity is framed…. Who picks an identity and who is consigned to it?–
As we shall soon see, it is precisely the inability to name themselves and a con-
tinuous history of having their identities defined by others that First Nations peoples
foreground when they oppose practices of cultural appropriation.
In an effort to create a critical consciousness of racism and its eradication, cul-
tural critic bell hooks also adopts a pragmatic approach to questions of identity 9′
She asserts that cultural critics must confront the power and control over repre-
sentations in the public sphere, because social identity is a process of identifying
and constructing oneself as a social being through the mediation of images. ‘ Hence
minority peoples need to critically engage questions of their representation and
its influence on questions of identity formation. As we shall see, Native peoples
are particularly concerned with the ahistorical representations of “Indianness” that
circulate in the public sphere and the manner in which such imagery mediates the
capacities of others to recognize their contemporary identities as peoples with spe-
cific needs in the late twentieth century.
Hooks asserts that an identity politics, however necessary as a stage in the lib-
eration of subordinated peoples, must “eschew essentialist notions of identity and
fashion selves that emerge from the meeting of diverse epistemologies, habits of
being, concrete class locations, and radical political commitments.”,- A return to
‘identity’ and ‘culture’ is necessary, in hooks’ perspective, more as a means of locat-
ing oneself in a political practice, than in the embrace of the positivism projected
by cultural nationalism.l Hooks links this political project to a feminist anti-essen-
tialism which also links identity to a history and a politics rather than an essence:
Identity politics provides a decisive rejoinder to the generic human thesis, and the main-
stream methodology of Western political theory…if we combine the concept of identity
politics with a conception of the subject as positionality, we can conceive of the subject
as non-essentialized and emergent from historical experience…’
In the face of white supremacy, issues of black identity cannot be dismissed,
and critiques of essentialism must recognize the very different positions occupied
by oppressed groups in society. Abstract and universalizing criticisms of essen-
91. Ibid. at 98-99 citing Angela Harris, “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stan.
L. Rev. 581 at 584.
92. Ibid. at 112.
93. bell hooks, Yearning: Race, Gender, and Cultural Politics (Toronto: Between the Lines Press. 1990).
94.Ibid. at5.
95. Ibid. at 19.
96. Ibid. at 20.
97. Ibid. at 20 citing Linda Alcoff, “Cultural Feminism versus Post-structuralism: The Identity Crsis in
Feminist Theory” (1988) 13 Signs 405 at 432-33.
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tialism may appear to oppressed peoples as threatening-once again preventing,
…those who have suffered the crippling effects of colonization or domination to gain or
regain a hearing…. It never surprises me when black folks respond to the critique of essen-
tialism, especially when I denied the validity of identity politics by saying, “Yeah, it is
easy to give up identity, when you’ve got one.” ”
Critiques of essentialism are useful, Hooks suggests, when they enable African
Americans to examine differences within black culture-for example the impact
that class and gender have on the experience of racism. They are also necessary
to condemn notions of “natural” and “authentic” expressions of black culture which
perpetuate static, ahistorical, and stereotyped images of black people’s lives and
possibilities.” As long as the specific history and experience of African Americans
and the cultural sensibilities that emerge from that experience is kept in view, essen-
tialism may be fruitfully criticized; “There is a radical difference between repu-
diation of the idea that there is a black ‘essence’ and recognition of the way that
black identity has been specifically constituted in the experience of exile and strug-
gle.’,100
First Nations peoples face similar dilemmas in their representation of identity
in contemporary Canadian society. When they specify their unique histories, they
are often accused of essentialism, but when they write or paint, their work is often
criticized for not being ‘authentic’ or sufficiently ‘Indian’.’ ° When First Nations
peoples make claims to ‘their own’ images, stories, and cultural themes, however,
they do not do so as Romantic authors nor as timeless homogenous cultures insist-
ing upon the maintenance of a vanishing authenticity. They do not lay claim to
expressive works as possessive individuals, insisting upon permissions and royalties
for the circulation of authorial personas in the public realm.”” Nor is their assertion
of cultural presence made in the name of an ahistorical collective essence, but in
the name of living, changing, creative peoples engaged in very concrete contem-
porary political struggles. 3 The law, however, affords them little space to make
98. Ibid. at 28.
99. Ibid. at 28.
100. Ibid. at 29.
101. On accusations of essentialism see Loretta Todd, “What More Do They Want?” in Gerald McMaster
& Lee-Ann Martin, eds, Indigena: Contemporary Native Perspectives (VancouverfToronto: Douglas
& McIntyre, 1992) 71-79. Lee Maracle notes that publishers are absolved of charges of censorship
when they choose not to publish Native works (often returning works to writers with “Too Indian”
or “Not Indian enough” written on them by non-Native editors who presume the authority to judge
the works’ authenticity) while she is accused of “being a fascist censor” for objecting to non-Native
use of Native themes and stories. See Lee Maracle, “Native Myths: Trickster Alive and Crowing” (Fall
1989) Fuse Magazine 29.
102. 1 do not wish to suggest here that artists and authors of First Nations ancestry do not wish to have their
works valued on the market, or that they would eschew royalties for works produced as commodities
for an exchange value on the market. That would be essentialist indeed! Instead, I am suggesting that
in the debates surrounding cultural appropriation, Native peoples assert that there are other value systems
than those of the market in which their images, themes, practices, and stories figure and that these
modes of appreciation and valuation are embedded in specific histories and relationships that should
be accorded respect. Copyright laws, of course, only protect individual authors against the copying
of their individual expressions, and do not protect ideas, or cultural themes, practices, and historical
experiences from expropriation by cultural others.
103. The best demonstration of this is to be found in Native art and literature where issues of identity are
engaged in innovative fashions that often employ European cultural forms to examine the specificity
Culture and Property
their claims””‘. As Amanda Pask explains in a brilliant discussion of the issue,
Native peoples face a legal system that divides the world up in a fashion both for-
eign and hostile to their sense of felt need:
At every level the claims of aboriginal peoples to cultural rights fall outside the parameters
of Western legal discourse. As neither state actors, nor individuals, their claims can be
heard neither in the international regimes governing cultural property, nor in the domestic
regimes governing intellectual property. This pattern repeats itself internally in each
regime: in cultural property law the competing legal values that frame every question are
those of national patrimony and the ‘universal heritage of mankind’: in intellectual property
the interests to be balanced are those of ‘authors’ conceived of on an individualistic model
and ‘the public’ in their interest in preserving a common public domain. In all cases, abo-
riginal peoples must articulate their interests within frameworks which obliterate the posi-
tion from which they speak. c”
As Pask suggests, the opposition between private, personal interests and uni-
versal ones is understood to cover the field of all possible claims, and, as we have
seen, when group rights are entertained, they are often conceived in individualistic
terms that freeze and essentialize culture in the name of identity.
Even more debilitating for Native claims, perhaps, is the law’s rigid demarcation
between ideas and expressions, oral traditions and written forms, intangible works
and cultural objects, personal property and real property. The law rips asunder what
First Nations people view as integrally related, freezing into categories what Native
peoples find flowing in relationships. They do not separate texts from ongoing cre-
ative production, or ongoing creativity from social relationships, or social relation-
ships from a people’s relationship to an ecological landscape that binds past and
future generations in relations of spiritual significance.
The powerful conceptual framework of the European art/culture system seems
so deeply embedded in our legal categories of intellectual and cultural property,
that they seem immutable, but the claims of non-Western others to objects and rep-
resentations may well force these Western categories under new forms of scrutiny.
As new subjects engaged in postcolonial struggles occupy the categories bestowed
of Fust Nations history as it figures in contemporary political struggles and the need to forge alliances
with other subordinated groups. The Romantic notion of art for art’s sake is often challenged, as is
the art/culture system that relegates Native expressive foits to an ethnographic rmalm. or altemataCl,;
claims them as art, but only to deny their claims to cultural specificity and political engagement. For
discussions see the various artists whose work is featured in McMaster & Martin. supra. no’e 101 and
the essay by Cree art instructor Alfred Young Man. -The Metaphysics of North American Art- in
McMaster & Martin, supra, note 101 at 81-99.
104. 1 do not wish to suggest that intellectual property la%%s hold no potential for protecting some of the
interests of Native peoples. Individual Native artists may well afford thmselves of copyright proctions
but collective rights, collective authors, and claims of intergenerational creation cannot be entertain-d.
Trademark law, were it to be diligently enforced, might afford protection against false representations
of “Indian” or “Native” production in the market. Section 9 of the Tradentarks Act could be amended
to prohibit representations of Native peoples and motifs in commercial contexts, unless the consmnt
of band councils were obtained. Collectives of Native peoples might ,ell use the common law tort
of passing off to prevent misrepresentations of Native origins in advertising and sales. More general
themes, narratives, and artistic styles, however, cannot be protected because they are likel) to e viewed
as ideas rather than expressions.
105. Amanda Pask, “Making Connections: Intellectual Property. Cultural Propert). and Sovereignty in the
Debates Concerning the Appropriation of Native Cultures in Canada” ( 199318 Intellectual Property
J. (forthcoming).
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upon us by an ignoble past, they may well transform them and eventually perhaps
help to crumble the colonial edifice upon which these categories are founded. To
understand First Nations claims, we must venture beyond the European categories
that constitute the colonial edifice of the law; only by considering Native claims
“in context” will we be able to expand “the borders of the legal imagination”.’6
Listening to Native Claims “In Context”
The cultural appropriation debate raises numerous issues and engages many pro-
tagonists. I cannot engage all of these arguments here. Rather than attempt to con-
struct a solution to a problem, I will suggest instead that my readers attempt to
understand the issues differently. Whereas it may be impossible to delineate formal
rules defining, sanctioning, and prohibiting specific acts of “cultural appropriation”,
it is possible to enact and practice an ethics of appropriation that attends to the speci-
ficity of the historical circumstances in which certain claims are made, in which
they must be assessed. I will attend to the specific claims about cultural appropri-
ation made by Native peoples and suggest that we consider acts of cultural
“borrowing” “in context”.
The call to consider claims “in context” has been explored by Martha Minow
and Elizabeth Spelman as a characteristic that unites philosophical pragmatists,
feminists, and critical race theorists.” 7 In making decisions, an emphasis on context
requires a sensitivity to the nuances of the particular historical situation in which
a claim emerges and the distinctive needs of the persons involved. Against assump-
tions of liberal legal and political theory that treat principles as universal and the
individual self as the proper unit of analysis, the call to context is a call to consider
the structures of power in society and the systemic legacies of exclusion involving
the group based characteristics of individuals. 3
Minow and Spelman argue that attention to the contingencies of a situation-the
particular cultural and historical background of the persons involved-neither in-
capacitates us from making moral judgments nor undermines the possibility of
criticism across contexts. 9 Instead, a contextualist approach suggests that all human
beings are always in social contexts and make judgments contextually, and that
any form of abstraction to general principles involves a choice of relevant contexts.
Exponents of abstraction, who stress the need to develop principles which apply
across contexts (as did the letter writers cited earlier), are themselves situated in
ways that limit their understandings and these limitations must be reflected upon
in attempting to understand a context for judgment. Abstract theories of freedom
of expression, authorship, ownership, and censorship, are “rooted in particular con-
texts and operate within context with real and particular effects that often benefit
106. I borrow this phrase from Patrick Macklem, “First Nations Self-Government and the Borders of the
Canadian Legal Imagination” (1991) 36 McGill L. J. 382.
107. Martha Minow & Elizabeth Spelman, “In Context” in M. Brant & W. Weaver, eds, Pragmatism in
Law and Society (Boulder, Co.: Westview Press, 1991) 247 at 247.
108. Ibid. at 248-49.
109. Ibid. at 249-55.
Culture and Property
some people more than others.””‘ Contextualist approaches, moreover, generally
do appeal to some more abstract moral or political theory to justify their procedures.
Like Cornell West, I point to context here as a means of challenging a political the-
ory that speaks in the name of abstract individual rights with the specific situated
experiences of others whose lives bespeak the exclusions effected by those prin-
ciples.”,
Native peoples in Canada are making specific claims to stories, imagery, and
themes based upon very specific historical trajectories and the specific needs of
people engaged in the contemporary political struggles in which these stories strate-
gically figure. I shall argue that the claims of First Nations peoples to control the
circulation of Native cultural texts cannot be facilely analogized to prohibiting
Shakespeare’s writing of Hamlet or the Third Reich’s prohibition of Jewish writing,
under the rubric of freedom of speech, without doing violence to the integrity of
Native struggles for political self-determination. Specific historical experiences
and contemporary political struggles provide the relevant context for considering
claims of cultural appropriation. Only by situating these claims in this context, can
we understand how supposedly abstract, general, and universal principles (like
authorship, art, culture, and identity) may operate to construct systematic structures
of domination and exclusion in Canadian society. An evaluation and judgement
of Native claims of cultural appropriation without this knowledge of context cannot
but reinforce these larger patterns of injustice.
Rather than a weakness or a departure from the ideal of distance and impersonality,
acknowledging the human situation and the location of a problem in the midst of com-
munities of actual people with views about it is a precondition of honesty in human judg-
ments….The call to make judgements in context often seems misleading if it implies that
we could ever make judgements outside of a context; the question is always what context
matters or what context should we make matter for this moment…[l]n many contemporary
political and legal discussions, the demand to look at the context often means a demand
to look at…structures of power…. Rather than an injunction to immerse in the unique par-
ticularities of the situation, the emphasis on context often means identifying structures
that extend far beyond the particular circumstance. But perhaps it is not so surprising that
this should be named a contextual move against the backdrop-the context by
default-created by Western liberal legal and political traditions that emphasize as ideals
individual freedom, equality, universal reason, and abstract principles. Because persistent
patterns of power, based on lines of gender, racial, class, and age differences, have
remained resilient and at the same time elusive under traditional political and legal ideas,
arguments for looking to context carry critical power. In this context, arguments for context
highlight these patterns as worthy of attention and, at times, condemnation. Attention to
context implies no particular political agenda, but it does signal a commitment to consider
and reconsider the meaning of moral and philosophical purposes in light of shifting cir-
cumstance.”‘
10. Ibid. at 258.
M11. See discussion of West, ibid. at 257.
112. Ibid. at 269-70.
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Representation Without Representation: Visibility Without Voice
Native peoples discuss the issue of cultural appropriation in a manner that links
issues of cultural representation with a history of political powerlessness. In North
American commercial culture, imagery of Indians and the aura of “Indianness”
is pervasive, but living human peoples with Native ancestry are treated as dead,
dying, vanishing or victimized, and in need of others to speak on their behalf. I
will try to avoid speaking “on behalf of’ Native peoples here, employing direct
quotations drawn from articles and public statements by Native authors wherever
possible to delineate the context in which claims of cultural appropriation are made.
It quickly becomes clear that issues of culture and the proper place of texts cannot
be separated from issues of spirituality, political determination, and aboriginal title
to traditional lands.
In July of 1990, representatives of 120 Indian Nations, international organi-
zations and fraternal organizations met in Quito, Ecuador at the first indigenous
continental gathering in history titled “500 Years of Indian Resistance”. The
Declaration of Purpose that emerged from the meeting set forth “the necessary con-
ditions that permit the complete exercise of our self-determination and this in turn
must be expressed as complete autonomy for our Peoples.'” In the Declaration,
territorial rights were deemed the “fundamental demand of the Indigenous Peoples
of the Americas”, to which end other goals were affirmed. These included,
our decision to defend our culture, education, and religion as fundamental to our identity
as Peoples, reclaiming and maintaining our own forms of spiritual life and community
coexistence, in an intimate relationship with our Mother Nature.”
This nexus of ecological, spiritual, cultural, and territorial concerns is central
to any understanding of cultural appropriation. Thus, I will argue, simplistic reduc-
tions of Native concerns to trademark or copyright considerations and the assertion
of intellectual property rights fail to reflect important dimensions of Native aspi-
rations and impose colonial juridical categories on postcolonial struggles in a fash-
ion that reenacts the cultural violence of colonization. As many Native writers strive
to assert, knowledge of this history of cultural violence is a prerequisite to under-
standing the issues involved in cultural appropriation. Such cultural violence
includes the seizure of land, government suppression of Indian religious practice,
the prohibition on the speaking of Indian languages in residential schools, the expro-
priation of ceremonial objects for museum collections, the unauthorized excavation
of indigenous graves and collection of material culture by archaeologists, the def-
inition and description of Native culture by non-Native anthropologists, the loss
of Indian status to children of mothers who married non-Natives, the apprehension
of aboriginal children from reserves, the separation of families, the withholding
from a generation of children of their very identity as First Nations people, and
a related legacy of sexual abuse.
113. “Declaration of Quito, July 1990: Indigenous Alliance of the Americas on 500 Years of Resistance,”
(1991/2) 23 Borderlines 2-3.
114. Ibid. at 3.
Culture and Property
Central to all of these practices is the experience of having Native cultural iden-
tity extinguished, denied, suppressed, and/or classified, named, and designated by
others. As Robert Allen Warrior, a member of the Osage nation writes,
Our primary focus as Indian people must be on establishing our right to a land base and
a cultural and political status distinct from non-Natives…. ‘We won’t allow Canada to
call us ethnic, a minority or a class.’…Indian people are forever being discovered and redis-
covered, being surrounded by thicker and thicker layers of mythology. And every gen-
eration predicts our inevitable and tragic disappearance.”‘
This history cannot be fully explored here. I will, however, highlight some of those
dimensions of Native experience in Canada that figure most prominently in Native
discussions of cultural appropriation.
In 1887, Sir John A. Macdonald declared that “The great aim of our legislation
has been to do away with the tribal system and assimilate the Indian people in all
respects”. 6 In 1920, Superintendent-General Duncan Campbell Scott was even
more to the point: “I want to get rid of the Indian problem…Our objective is to con-
tinue until there is not a single Indian in Canada that has not been absorbed.”””
After the 1812 War with United States, British colonizers no longer required aboriginal
peoples as allies-or for that matter, as explorers or traders. Their value rapidly diminished.
with the result that aboriginal tribes became stigmatized as obstacles to the progressive
settlement of Canadian society. Moreover, by refusing to relinquish their identity and
assimilate into ‘higher levels’ of ‘civilization’, aboriginal peoples were dismissed as an
inferior and unequal species whose rights could be trampled on with impunity. Aboriginal
lands were increasingly coveted by colonists intent on settlement and agriculture. Policy
directives were formulated that dismissed aboriginal peoples as little more than imped-
iments to be removed in the interests of progress and settlement.
A policy of assimilation evolved as part of this project to subdue and subordinate abo-
riginal peoples. From the early nineteenth century on. elimination of le ‘Indian problem’
was one of the colony’s-later the Dominion’s-foremost concerns. Authorities rejected
extermination as a solution, but focused instead on a planned process of cultural change
known as assimilation. Through assimilation, the dominant sector sought to undermine
the cultural distinctiveness of aboriginal tribal society; to subject the indigenes to the rules,
values, and sanctions of Euro-Canadian society; and to absorb the de-culturated minority
into the mainstream through a process of ‘anglo-conformity’. The means to achieve this
outward compliance with Euro-Canadian society lay in the hands of missionaries, teachers,
and law-makers.”8
Aboriginal peoples’ relations with the state have for years been governed by
the Indian Acts of 1876119 and 195 11- and their implementation by the Indian Affairs
Department (LAD). The original Victorian Act defined who, legally, was an Indian,
115. “The Sweetgrass Meaning of Solidarity: 500 Years of Resistance.-(19 l9I/2) 23 Borderines 35 at 37.
116. As quoted in J. R. Miller. Skyscrapers Hide the Hcavens: A History of Indian.1 “lte Relations m Canada
(Toronto: University of Toronto Press, 1989) at 189.
117. As quoted in Miller, ibid. at 207.
18. Augie Fleras & Jean Leonard Elliott, The ‘Nations 1i7thin’: Abariginal State Relations in Canada.
the United States, and New Zealand (Toronto: Oxford University Press. 19921 at 40 Icitations omutted).
119. Act to Amend and Consolidate the Laws Respecting Indians 1876 Statutes of Canada. 39 Vtctoria.
Chapter 18.
120.An ActRespecting Indians 1951 Statutes of Canada. 15 George VI. Chapter 29.
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and gave the IAD sweeping powers “to invade, control, and regulate every aspect
of aboriginal life,”” curbing constitutional and citizenship rights in the paternalistic
guise of Indian protection, while suppressing aboriginal languages, culture, and
collective identity.
The 1876 Indian Act created the legal framework for the paternalistic administration of
aboriginal affairs by a federal agency. The Act consolidated existing Indian legislation
in the provinces and territories, and delineated the responsibilities of the federal govern-
ment towards aboriginal peoples as stipulated in the BNA Act of 1867. It also established
the principle of government control over and responsibility for managing aboriginal assets
(land, funds, and properties). Perception of aboriginal peoples as wards of the state, in
need of superior guidance and protection, gave rise to the colonialist/paternalistic character
of the Department. Aboriginal people were seen as inferior legal minors who had to be
pacified, controlled, managed, and educated in hopes of achieving the ultimate goal of
enfranchisement (loss of Indian status) and absorption into society….
The Department’s early policy and administration were consistent with the provisions
of the Indian Act. Foremost among its objectives were the protection (guardianship), set-
tlement, and assimilation (through exposure to Christianity and the arts of civilization)
of aboriginal peoples, and, through agricultural self-sufficiency, their transformation into
productive citizens of the country. The success of the Department’s policy was to be mea-
sured by the numbers of enfranchised Natives-that is, those who formally renounced
Indian status and assumed all the rights, duties, and obligations of citizenship in Canada.”
Indian identity has thus been defined and determined by a bureaucracy com-
mitted to its disappearance. “Reflecting the commitment to assimilate and ‘civilize’,
Departmental policy has historically labelled aboriginal peoples a ‘problem’ whose
cultural and social idiosyncrasies preclude smooth absorption into society.””‘ In
other words, the existence of Indian ‘cultures’ was an obstacle to Indian people’s
incorporation into a larger ‘universal’ human community as citizens of a nation
state. Since World War II the strategy has shifted from cultural assimilation to the
eradication of poverty-a process in which “the communal (read ‘communistic’)
aspects of tribal life”’24 were seen as barriers to the process of modernization (which
at this time was viewed as a universal process that would inevitably occur in the
same fashion for peoples around the world). In both cases, any autonomous Native
cultural identity was seen as an obstacle to government objectives.
Although government policies to assimilate aboriginal peoples and undermine
their cultural autonomy were numerous, the residential school and agricultural work
programmes, social welfare policies, and religious suppression figure prominently
in the memories of First Nations peoples. Most Native peoples were cut off from
their traditional land base and consequentially from cultural ways of life by the
uprooting and resettlement that these programmes entailed. At the residential
schools in which aboriginal children were routinely placed, Native languages were
prohibited, and many people have memories of severe beatings and punishments
for “speaking Indian”.
121. Fleras & Elliott, supra, note 118 at 74.
122. Ibid. at 76-77.
123. Ibid. at 79.
124. Ibid.
125. Joane Cardinal-Shubert, “In the Red” (Fall 1989) Fuse 20-28 at 21.
Culture and Property
In the 1960s, provincial child welfare agencies were bestowed with increased
powers to apprehend aboriginal children from reserves. Now “known as the 60s
scoop,…some reserves lost almost all the children of that generation who were
nearly exclusively adopted into white foster homes, many in the United States.”‘1:
Many of these children lost all contact with their relatives and many were adopted
into families that withheld information about their Native ancestry. Only years later
would they become aware of their personal histories and seek knowledge of the
cultural heritage they had been denied.
Another way in which the government controlled Indian identity was through
the policy of denying Indian status to the children of Native married to non-abo-
riginal men. Some argue that this policy resulted in a social devaluation of abo-
riginal women and contributed to their negative self-esteem:
For those without status because of marriage with non-aboriginal males, penalties included
deprivation of Indian rights, ostracism from involvement in band life, and exclusion from
housing and jobs. Not even the repeal of the offending passage, section 12(11(b), of the
Indian Act in 1985 has eased the barriers for some women. In abolishing the discriminatory
sections of the Indian Act that had stripped any Indian woman of status upon marriage
to a non-Indian, Bill C-31 reinstated all non-status Indians who had lost status for financial,
educational, or career reasons….To ensure band control over membership and resources,
only women who had lost status because of marriage became eligible to join the band
or to partake of reserve land or benefits. Although children of reinstated women were
also entitled to band resources, they stand to lose this status unless they marry into ‘sta-
tus’.1
27
This long colonial history of having Indian identity legally defined by a gov-
ernment simultaneously determined to eliminate all vestiges of that identity in
Canadian society has left a bitter residue of distrust. Native peoples express great
anger at continually having their cultural identity named, defined, and affirmed
by others, in a manner that freezes categories of Indianness for bureaucratic pur-
poses both unrelated and oblivious to indigenous values.’1 Many Natives saw the
Canadian government policy of not recognizing as Indians any Native women mar-
ried to white men or their children as particularly imperialist. -‘ In a commentary,
both upon Imperial Oil’s sponsorship of The Spirit Sings exhibition at the Glenbow
museum,’31 and upon the government marriage policy, Hachivi Edgar Heap of Birds
created a work for the Banff Centre in support of the Lubicon Cree. His work incor-
porated a billboard that read “Imperial Canada Doesn’t Make Indians. Native
People Recognize Themselves.”’11
126. Richard Hill, “One Part Per Million: White Appropriation and Native Voices” (Winter 1992) Fuse
12-22 at 15.
127. Fleras & Elliott supra. note 118 at 19.
128. As Commanche activist Paul Smith notes. Native peoples in North America are always being asked
“How much Indian are you?”. No one, however, “asks black people. ‘How much black are you?'”.
Such racist notions of Indian identity are colonial impositions; they have nothing to do with Native
understandings of community membership and belonging. See Paul Smith. “Lost in America” ( 1991-
2) 23 Borderlines 17 at 17.
129. Hachivi Edgar Heap of Birds (1991/2) 23 Borderlines 19 at 19.
130. 1 will discuss the Glenbow controversy infra at text between footnotes 133-137.
131. Supra, note 129. Hachivi Edgar Heap of Birds is Associate Professor of Painting at the University
of Oklahoma, headsman of the Tsistsistas (Cheyenne) Elk Warrior Society.
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The government suppressed aboriginal spiritual practices as a central means to
achieve its policies of cultural assimilation and to destroy the social integration
of Native communities. For example, the Northwest coast Potlatch ceremony was
outlawed from 1884132 until 1951, and sweat lodge and sun dance ceremonies were
prohibited until the cultural revivals of the 1960s.'” As will become clear, this his-
tory of government-directed alienation of Native peoples from cultural traditions
is now being repeated. Now, however, First Nations peoples feel themselves alien-
ated from their histories by artists and entrepreneurs, who appropriate these same
ceremonies as spiritual commodities to be bought and sold on the market. Again,
the specific history and pain of ceremonial prohibition is ignored when New Age
entrepreneurs profess spiritual resources to be the fruits of a ‘human Culture’ freely
available to all in need of spiritual sustenance.
Loss of ceremonial objects and reliquae accompanied the displacement of Native
languages and ceremonies. Systematically collected by museums and private col-
lectors, they were valued as authentic artifacts of a dying culture and a “vanishing
race”. When Indian expressive works were appreciated, in other words, it was in
terms of their historical value as representative of an anthropological culture, not
as the ongoing expressions of peoples engaged in contemporary struggles. This
“imperialist nostalgia”–the longing for the return of something one is engaged
in colonizing and destroying–continues today. Witness the controversy over the
1988 Glenbow Museum exhibit, in which Native peoples complained that they were
being treated like historical artifacts, rather than human contemporaries. As part
of the Olympic Arts Festival, the Museum gathered 15th, 16th, and 17th century
North American Indian artifacts from around the world for an exhibit entitled “The
Spirit Sings”. The Lubicon Cree Indians, involved in a bitter land claim dispute
with the federal and provincial governments for fifty years, launched a boycott
against the exhibit. They found it particularly hypocritical that the oil companies
sponsoring the exhibit should publicly celebrate Indian material culture while
(through their oil drilling activities in northern Alberta) they were actively engaged
in decimating Native ways of life. Objectifying, displaying, and glorifying the proud
cultural past of peoples whose contemporary lands and livelihoods were being
doomed to extinction by those doing the celebrating puts into crude relief the
relationship between universal human Culture and the anthropological cultures it
allegedly values.”
Joane Cardinal-Shubert argues that the Glenbow exhibit took ceremonial relin-
quiae out of their contexts in community life, portrayed them as lifeless objects
132. An Act to Further Amend the “Indian Act, 1880” 1884 Statutes of Canada, 47 Victoria, Chapter 27.
133. Cardinal-Shubert, supra, note 125 at 21.
134. See the discussion in interviews by L. Doolittel, H. Elton & M. Laviolette, “Appropriation: When Does
Borowing Become Stealing?” (1987) Last Issue 5(1): 20 at 30-33. Further background may be found
in Michael M. Ames, “Free Indians from their Ethnological Fate: The Emergence of the Indian Point
of View in Exhibitions of Indians” (1987) 5(2) Muse 14. Many international museums did eventually
refuse to lend objects to the Museum in support of the Lubicon boycott, and there is certainly evidence
that museums are beginning to take the claims of subaltern peoples with regard to objects and rep-
resentations far more seriously. See, for example, Turning the Page: Forging Nev Partnerships Beneen
Museums and First Peoples (Ottawa: Assembly of First Nations and the Canadian Museums
Association, 1992) and of course, the ‘recent’ Royal Ontario Museum exhibit Fhff and Feathers. which
is actually five years old, first opening in Brantford at the Woodlands Cultural Centre in 1988.
Culture and Property
and “pushed the notion that Native culture was dead, wrapped up, over and col-
lected.” 35 Native artists from across the continent participated in protest exhibits
at the nearby Wallace and Walter Phillips galleries. In one particularly trenchant
authorial “work” Rebecca Belmore sat herself down under a sign that read
“Glenbow Museum presents” and titled her self/work “Artifact #67 1-B”.”6 In so
doing she drew ironic attention to the relationship between the claims of “cultural
internationalism” to guardianship of all objects having cultural meaning, the claims
of Romantic authorship to the ideas it deems human Culture (or public domain),
those expressions it claims as properties, and the status of those cultural others who
can lay claim only to authentic artifacts as evidence of their specific identities.
The resurgence and revival of Native cultural pride and ceremonial practice in
the 1960s by a newly politicized people made the return of expropriated cultural
objects imperative, for their presence in these religious practices was felt to give
contemporary community life historical meaning and continuity.”” The development
of the idea of u’mista amongst the Kwakiutl people is instructive. Several people
were tried under the anti-Potlatch laws in 19 2 2.Y, In these trials, it was agreed that
those charged need not serve jail sentences if participating villages would forfeit
their ceremonial objects.
The federal government paid the owners a total of fourteen hundred and fifty dollars and
fifty cents for several hundred objects, which were crated and shipped to Ottawa. There,
what came to be known as the Potlatch Collection, was divided betveen the Victoria
Memorial Museum, later the National Museum of Man and now the Canadian Museum
of Civilization, and the Royal Ontario Museum.”‘
Kwakiutl anthropologist and curator Gloria Cranmer Webster is involved in the
movement to “repatriate” these objects that developed momentum after the 1951
repeal of the anti-Potlatch provisions of the Indian Act,) and the revitalization of
the Potlatch ceremony in contemporary celebrations of cultural identity. For
Webster, the need to repossess these ceremonial objects”‘ is an integral part of the
135. Supra, note 125 at 23.
136. A photograph of this perfornance/work may be found on the last page of Turning the Page. supra.
note 134 at 19.
137. See Cardinal-Shubert supra, note 125 and Rebecca Clements. “Misconceptions of Culture-. supra.
note 56.
138. The case is discussed in great depth in Douglas Cole & Ira Chaikin, An Iron Hand Upon the People:
The Law Against the Potlatch on the Northwest Coast (Vancouver. Douglas & McIntyre, 1990). The
case does not appear to have been reported.
139. “From Colonization to Repatriation” in McMaster & Martin. eds, Indigena, supra. note 101 at 25-
38.
140. An Act Respecting Indians 1951 Statutes of Canada, 15 George Vl, Chapter 29.
141. To quote Vebster:
“…In the late 1960s we still remembered what had happened more than forty years earlier. \\de began
to work towards the return of our treasures from the museums. The National Museum of Man agreed
to repatriate its part of the collection on the condition that museums were built in Alert Bay and Cape
Mudge which were to divide the collection. The Kwagiufl Museum opened in Cape Mudge in 1979
and the U’mista Cultural Centre opened in Alert Bay a year later. A request to the Royal Ontario
Museum for the return of its part of the collection was not met until 1988 and we’re still waiting for
the balance of the collection to be returned from the Museum of the American Indian. that is in New
York” (supra, note 139 at 37).
For a recent discussion of repatriation efforts and legal frameworks in the United States see Stephen
Plazmian, “Objects of Controversy: The Native American Right To Repatriation” (1992) 41 Am. Univ.
L. Rev. 517.
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contemporary political struggle to reconstruct and redefine Native culture and iden-
tity:
We do not have a word for repatriation in the Kwak’wala language. The closest we come
to it is the word u’mista which describes the return of people taken captive in raids. It
also means the return of something important. We are working towards the u’mista of
much that was almost lost to us. The return of the potlatch collection is one u’mista….
We are taking back from many sources information about our culture and our history to
help us rebuild our world that was almost shattered during the bad times [when, she says
earlier], “it was believed we were truly the ‘vanishing race’.” Our aim is the complete
u’mista or repatriation of everything we lost when our world was turned upside down
as our old people say. The u’mista of our lands is part of our goal and there is some urgency
to do it before the provincial government allows any more clear-cut logging, destroying
salmon-spawning streams which effect the livelihood of many of our people.,”
For Webster, the repatriation of material culture is not a possessive or proprietary
claim to the essence of an undivided traditional identity-as cultural nationalists
might see it-but part of a larger contemporary struggle for Native self-determi-
nation that includes cultural as well as territorial control in the quest for political
sovereignty.
But if ceremonial objects have been decontextualized-alienated and removed
from the cultural practices of historical communities and collected to be displayed
as frozen objects in the museums that document Westem imperialism-ceremonial
practices themselves are now alienated in a fashion that many Native peoples find
just as insidious. “New Age” religious organizations sell “Indian spirituality”–mar-
keting participation in “Indian ceremonials” like sun dance and the sweat lodge
ceremonies. Some entrepreneurs even offer to tum consumers into shamans if they
purchase a weekend-long course of study!4 3 In some feminist circles, Indian spir-
itual themes are employed in the name of the essential female.'” While many see
these appropriations as simple romanticism, many people find them far more insid-
ious. For example, Paul Smith, a Commanche activist, suggests that progressive
non-Indians should be prepared “to call romanticism the thuggish racism it really
s “45is.”s
The use of Native motifs, imagery, and themes in the “spirituality” marketed
as New Age religion is particularly offensive, both because of its commodification
and its distortion of Native traditions. That which is spiritual cannot be sold and
must be treated with care and respect. Many non-Native peoples also feel that spir-
ituality should not be ‘owned’ but they believe that it must therefore belong to all
people equally-as part of the public cultural domain fully available for the sus-
tenance of all humanity (and, as we shall see, as ideas available for reworking into
authorial expressions). For Native peoples, however, spirituality is not a thing that
can be reified or abstracted from real human communities integrally balanced in
a relationship with the earth.
142. Supra, note 139 at 37.
143. Referred to in Smith, supra, note 128.
144. See Cardinal-Schubert, supra, note 125.
145. Paul Smith, “Lost in America”, supra, note 128 at 18.
Culture and Property
We have many particular things which we hold internal to our cultures. These things are
spiritual in nature…They are ours and they are not for sale. Because of this, I suppose
it’s accurate to say that such matters are our “secrets”, the things which bind us together
in our identities as distinct peoples. It’s not that we never make outsiders aware of our
secrets, but we–not they-decide what, how much, and to what purpose this knowledge
is to be put. That’s absolutely essential to our cultural integrity, and thus to our survival
as peoples…. Respect for and balance between all things, that’s our most fundamental
spiritual concept’ 4
The commodification of Indian spirituality is understood to pose the threat of
cultural dissolution’ 7 Spiritual knowledge cannot be objectified and exchanged
as a commodity or learned as an act of self-discovery:
White people are often eager to learn about our spirituality, apparently seeing it as the
latest self-help opportunity. Counter to this notion, however, is the way spirituality in its
transference as knowledge and experience is constructed in First Nations cultures. It is
based on respect and is meant to be taught in somewhat specific and often personal ways,
the meanings of which are ruined by translation into a classroom or mass venue. The same
is true for spiritual images that get used in ways wildly out of their cultural context. I can’t
tell you how hurtful it is to have a sacred image come back to you horribly disfigured
by a white artist. If a Frst Nations artist chooses to use our culture in a new or different
way, then that will be a subject for debate within our culture. If a white artist uses and
invariably alters our cultural images, then this is an intervention in our culture, another
of many.'”
Ward Churchill argues that representations and misrepresentations of indigenous
spirituality are so ubiquitous in academies of higher learning that Native peoples
cannot represent their experiences of their religious traditions without being con-
tradicted and corrected by non-Native “experts” who have assumed the power to
define what is and is not truly Indian.’ Mdtis film and videomaker Loretta Todd,
defines this inability to speak on your own behalf as constitutive of the experience
of cultural appropriation:
For me, the definition of appropriation originates in its inversion, cultural autonomy.
Cultural autonomy signifies a right to one’s origins and histories as told from within the
culture and not as mediated from without. Appropriation occurs when someone else speaks
for, tells, defines, describes, represents, uses, or recruits the images, stories, experiences,
dreams of others for their own. Appropriation also occurs when someone else becomes
the expert on your experience.’
The experience of everywhere being seen, but never being heard, of constantly
being represented, but never listened to, being treated like an historical artifact rather
146. Barbara Owl, a White Earth Anishnabe, cited in Ward Churchill. “Colonialism, Genocide and the
Expropriation of Indigenous Spiritual Tradition in Contemporary Academia” (199 112) 23 Borderlines
39 at 41.
147. Former American Indian Movement (AIM) leader Russell Means suggests that this appropriation is
a form of cultural genocide, ibid. at 41.
148. HIll, supra, note 126 at 17-18.
149. Supra, note 146. Churchill makes several unsubstantiated claims about the reception of Castaneda
and Andrews in universities and an incomprehensible attack on ethnomethodology that give me pause.
but the sincerity of the conviction that Native peoples have continually been misrepresented by non-
Native academics cannot be doubted.
150. L. Todd, “Notes on Appropriation” (1990) 16 Parellelogramme 24 at 24.
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than a human being to be engaged in dialogue is a central theme in many complaints
of cultural appropriation. As Ojibway poet Lenore Keeshig-Tobias suggests, it is
precisely because Native people are so seldom publicly heard, recognised (or
rewarded in the market) for recounting their historical experiences that non-Native
representation of these themes is so offensive.’ The Canadian public seems
intensely interested in things Indian, but they seem to have no interest in hearing
Native peoples speak on their own behalf. When Native writers try to assert that
they are better situated to tell these stories, they are accused of trying to shackle
the artistic imagination of authors and as advocating censorship, but what these
critics do in making such responses is to reinscribe Native peoples as objects of
human Culture, rather than authorial subjects in their own right-contributors to
Culture, rather than merely objects of it-capable of the expressive work that
defines us as human, rather than merely serving as sources of ideas for the expres-
sive works and proprietary claims of others.
After years of having their languages outlawed and their cultural specificity sup-
pressed for the purposes of extinguishing it, First Nations peoples now watch the
Canadian government subsidize non-Native citizens (through arts grants and film
subsidies) to sympathetically portray Indian culture and convey the momentous
tragedies that Indians experienced at government hands. It is as if there were no
Natives living in the community who could speak on their own behalf and as if
these historical experiences have not left very real psychic scars on real human
beings in our communities. As Keeshig-Tobias puts it, “people…would rather look
to an ideal Native living in never-never land than confront the reality of what being
Native means today in Canadian society.12 Or, as Gerald McMaster and Lee-Ann
Martin simply ask:
We wish to know and you need to understand why it is that you want to own our stories,
our art, our beautiful crafts, our ceremonies, but you do not appreciate or wish to recognize
that these things of beauty arise out of the beauty of our people.
33
Possessive Individualism Revisited: Art, Authorship, and Cultural Identity
Earlier I suggested that by considering Native claims of cultural appropriation
“in context,” the assertions of cultural identity, authenticity, authorial freedom, artis-
tic license, freedom of expression, and censorship in this debate might take on dif-
ferent dimensions. Issues that appeared black and white might emerge cast in very
complex shadows. First Nations peoples, I have suggested, are often forced to make
their claims using categories that are antithetical to their needs, and foreign to their
aspirations.
In his discussion of cultural nationalism and the Eurocentric concepts that dom-
inate that discourse, Handler eventually concedes that despite the epistemological
bankruptcy of the metaphors of possessive individualism, they have become the
151. Keeshig-Tobias, “Stop Stealing Native Stories”, supra, note 22 at A-8.
152. Keeshig-Tobias, ibid.
153. “Introduction” in Indigena, supra, note 101 at p. 17.
Culture and Property
dominant metaphors of world political culture. Subaltern groups and less powerful
nations must articulate their political claims in “a language that power under-
stands,”‘s’ and the language that power understands engages the possessive and
expressive individualism of the European art/culture system as its conceptual limits.
He regrets the fact that “in a world made meaningful in terms of our individualistic
moral and legal codes”, disputants in the contemporary “culture wars…have agreed
to a worldview in which culture has come to be represented as and by ‘things”‘ ”
possessed by persons and cultures.
First Nations peoples may well be compelled to articulate their claims “in a lan-
guage that power understands”‘”‘ but in the substance of their claims they contest
the logic of possessive individualism, even as they give voice to its metaphors.
Native peoples engage in “double voiced rhetoric”‘” when they employ the tropes
of a dominant language-simultaneously engaging and subverting these metaphors
through the character of the claims they make in the voice of the Other.
The perils of making claims in the language of possessive individualism, writ
large, however, are real ones, as Native peoples in Canada have discovered. For
example, in a presentation on Native cultural autonomy and the appropriation of
aboriginal imagery at a meeting of independent film makers, Metis videomaker
Loretta Todd quoted Walter Benjamin; she was promptly accused of appropriating
Western culture!’s She responded that she was part of Westem culture-as a prod-
uct of colonization, how could she be otherwise?-and Benjamin was part of that
culture. Her interlocutors informed her that white use of Native imagery was equiv-
alent to her use of Benjamin, because Native imagery was now simply a part of
contemporary culture-with a Capital C.1″
Other white Toronto artists, self-proclaimed “environmentalist tribesmen” (as
a group they title themselves the Fastwurms) responded to questions about the pro-
priety of their employment of Native ritual themes by slandering their aboriginal
critic as “a self-appointed spokesperson for Native artists.”‘” In speaking for a cul-
ture to which one makes a proprietary claim, one always risks allegations that the
identity one must possess to make such claims is not the undivided one demanded
of the property holding possessive individual. Cree writer Richard Hill comments
upon the domination of public discourse about Native issues by non-Native speak-
ers who then attempt to silence Native interventions in the debate by questioning
their authenticity and representativeness:
After all, I’m well aware of how many First Nations people support the demands for
sovereignty over our own culture, including such articulate writers as Lenore Keeshig-
Tobias and Loretta Todd, to name just two. I hope to add my own writing to this discourse
154. Handler, “Who Owns the Past?”, supra, note 73 at 71.
155. Handler, “On Having a Culture”, supra, note 73 at 215.
156. Handler, “Who Owns the Past?”, supra, note 73 at 71.
157. For a discussion of this phenomenon in literary works by First Nations authors see Barbara Godard.
“The Politics of Representation: Some Native Canadian Women Writers” in W. HNcw, ed., Native
Writers and Canadian Writing (Vancouver University of British Columbia Press. 1990) 183-205.
158. Loretta Todd, “Notes on Appropriation”, supra, note 150 at 24.
159. Ibid.
160. Dai Skuse, Kim Kozzi, & Napoleon Brousseau, Letter to the Editor, (1989-90) 13 Parellelogranime 2.
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because each voice that is raised makes it much more difficult for white people to disregard
us, as the FastWurms did with Cardinal-Shubert by naming her concerns “a personal
gripe.” This denial and trivialization of personal experiences of racism is infuriating. Their
accusation that Cardinal-Shubert appointed herself to represent her own culture can be
recognized as an attempt to alienate her from the “good Indians” they imply exist, silently
supporting the Fastwurm’s appropriations.’
This tactic of deeming some people of aboriginal ancestry to be “real Indians”
while denying the ability of others to speak on behalf of Native concerns is rem-
iniscent of the historical policies of colonial authorities who arbitrarily conferred
and withheld Indian status on spurious grounds that did not recognize indigenous
practices defining community membership. There is also embedded in this argu-
ment the notion that all Native peoples must agree for them to have a position that
can be recognized as “Native” but as Paul Smith reminds us, “We have differences
in political opinion. After all, we come from hundreds of nations and histories.”’16 2
Curiously, however, there is a constant insistence that aboriginal peoples must
represent a fully coherent position that expresses an authentic identity forged from
an uncomplicated past that bespeaks a pristine cultural tradition before their voice
will be recognized as Native. No one, of course, asks non-Native authors what gives
them the authority to speak on behalf of artistic licence or what criteria of repre-
sentativeness they fulfil in order to make claims in the name of the authorial imag-
ination. Nor do we expect uniform positions on the parameters of freedom of
speech. The ability to speak on behalf of “universal” values is assumed, even as
we argue what their contents might be, whereas people of aboriginal ancestry are
often challenged when they name themselves and their experiences. In many ways,
this logic mirrors that of the law and its categorizations. In dividing intellectual
property and cultural property, authors with intellect are distinguished from cultures
with property. Those who have intellect are entitled to speak on behalf of universal
principles of reason, whereas those who have culture speak only on behalf of a
cultural tradition that must be unified and homogeneous before we will accord it
any respect. Such arguments are generally used, moreover, to silence and delegit-
imate particularly unwelcome Native voices, rather than to invite more participants
to contribute their viewpoints and join the debate.
Artists have recently demonstrated more concern with issues of cultural appro-
priation, and the colonial histories that inform their work, but they have done so
in a manner that focuses more attention on the cultural influences upon individual
imaginations than upon the lives and contemporary circumstances of Native peo-
ples. When Toronto artist Andy Fabo was chastised for his use of the symbolism
of the sweat lodge ceremony, he defended his work against Cardinal-Shubert’s accu-
sation of ‘cultural plagiarism’ on personal grounds:
The first art museum that I ever visited was The Museum of The Plains Indians in
Browning, Montana. I was eight years old at the time and for better or worse, the expe-
rience had an incredible impact on me.”6
161. Hill, “One Part Per Million”, supra, note 126 at 13.
162. Smith, supra, note 128 at 18.
163. Andy Fabo, Letter to the Editor (1989-90) 13 Parellelogramme 4.
Culture and Property
The museum figures here less as an edifice of imperialism than as the mysterious
origin of a personal fetish–as indeed an artist might personally experience it. For
a gay artist concerned with questions of AIDS, healing, and othemess, the sweat
lodge might indeed constitute a powerful symbolic image, but Fabo’s use of it illus-
trated no knowledge of the legacy of power that enabled him to exploit its symbolic
excess.
Liz Magore, another artist whose work has figured prominently in debates about
appropriation recently foregrounded the issue in her photography. As Richard Hill
describes her show:
I notice the photographs on the nearby wall in black and white that depicted a man pad-
dling a canoe, a blond hippie looking woman in a headband, people camping on the beach,
etc…the title of the photo of the blonde woman was called “Cheyenne type’…. This must
be done ironically but how can I say for sure whether Magore’s work was ironic. Maybe
she was trying to point out the overlap of cultures, or the richness of First Nations culture
as a resource for white artists. I left the work not knowing quite what was going on….
Perhaps it was merely another case of white people talking about themselves using First
Nations culture as their medium? Sometime later I read a statement by Magore about the
photographs mentioned above. She said that she wanted to deal with her personal history
of appropriating from First Nations cultures “slowly and gently,” and indeed she does.
So slowly and gently, in fact, that the work loses any serious claim to criticality. In effect.
it seems to do more to prop up old stereotypes than to aggressively call them into question.
This is especially true when the work is shot in the context of a national gallery which
inevitably lends its authority to the piece…. She defends her project on the grounds that
although the photos are embarrassing, a disavowal of my own history is equally uncom-
fortable…. ”
Artists who address such issues seem more concerned with delineating the influence
of Native images in their own personal histories and in the dominant culture from
which they draw their artistic inspiration than in acknowledging the actual histories
of colonization in which those images came to figure as part of a national conscious-
ness. When non-Native artists claim that Native images are a part of the cultural
heritage, they are not wrong, but they are incredibly selective. To claim Native spir-
itual practices, traditions of motif and design, as part of contemporary culture (while
bypassing the history of racism, institutional abuse, poverty, and alienation, that
so incorporated it) in the name of one’s personal history, is simply to repeat the
process by which the painful realities of contemporary Native life are continually
ignored by those who feel more comfortable claiming the artifacts they have left
behind. Once again the Romantic author claims the expressive power to represent
cultural others in the name of a universalized cultural heritage.
Aboriginal Title
Self-determination and sovereignty include human, political, land, religious, artistic, and
moral rights. Taking ownership of these stories involves a claim to Aboriginal title over
images, culture, and stories.”
164. Hill, supra, note 126 at 20.
165. McMaster & Martin, “Introduction”, supra, note 101 at 17.
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In discussions of cultural appropriation, First Nations peoples strive to assert
that the relationships that stories, images, motifs, and designs have to their com-
munities cannot be subsumed under our traditional European categories of art and
culture and the possessive individualism that informs them. It is difficult for Native
peoples even to speak about ‘rights”‘ to cultural practices or creative skills that
are passed between individuals generationally through matrilineal inheritance. 67
Some stories are considered so powerful that one story teller seeks permission
before repeating a tale told by another.” To equate the need for such permissions
to a copyright license is to reduce the social relationship between Native story tellers
to one of contract and the alienation of market exchange relationships. These rela-
tionships, however, are ongoing ones which bind generations in a spiritual rela-
tionship with land, customs, and ancestors based upon traditions of respect, not
values of exchange.
When Loretta Todd discusses First Nations concepts of ownership in the context
of cultural appropriation, she discusses property in terms of relationships that are
far wider than exclusivity of possession and rights of alienation that dominate
European concepts.
Without the sense of private property that ascended with European culture, we evolved
concepts of property that recognized the interdependence of communities, families, and
nations and favoured the guardianship of the earth as opposed to its conquest. There was
a sense of ownership, but not one that pre-empted the rights and privileges of others or
the rights of the earth and the life it sustained…. Ownership was bound up with history….
Communities, families, individuals, and nations created songs, dances, rituals, objects,
and stories that were considered to be property, but not property as understood by the
Europeans. Material wealth was re-distributed, but history and stories belonged to the
originator and could be given or shared with others as a way of preserving, extending,
and witnessing history and expressing one’s worldview.’
First Nations peoples are engaged in an ongoing struggle to articulate, define,
exercise, and assert Aboriginal Title, not only in terms of a relationship to territory,
but in connection to the cultural forms that express the historical meaning of that
relationship in specific communities. For Native peoples in Canada, culture is not
a fixed and frozen entity that can be objectified in reified forms that express its
identity, but an ongoing living process that cannot be severed from the ecological
nexus in which it lives and grows. As Winona La Duke expresses this:
There are many things Cree people have taken for granted over countless generations.
That the rivers will always flow, the sun and moon will alternate, and there will be six
166. David Alexis writes that rights are a further imposition upon Native peoples:
“Indian people do not think in terms of rights but in terms of responsibility. Whatever flows from the
fulfilment of those responsibilities are the gifts in life. The demanding of status from one’s mere exis-
tence is ludicrous. The so-called fishing rights won by Indian people are not a gift bestowed by white
people because of recognition by the white people of those rights. Those so-called “rights” are the
result of traditional people fulfilling responsibilities to fisheries through traditional ceremony and
lifestyle…a gift from the creation [that results from] a fulfilment of responsibility through Indian belief.”
“Obscurity as a Lifestyle” (1991-2) 23 Borderlines 15.
167. Cardinal-Shubert, supra, note 125 at 20.
168. Keeshig-Tobias, supra, note 22.
169. Todd, “Notes on Appropriation”, supra, note 150 at 26.
Culture and Property
seasons of the year. The Cree also have assumed that there will always be food from the
land, so long as the Eeu-the Cree, do not abuse their part of the relationship to the animals
and the land…. To me this is the essence of culture and the essence of the meaning of life.
From where I sit on James Bay, it seems almost trivial to talk about other things–so called
religion, literature, spirituality, and economics…. If [due to the activities of Hydro Quebec
and Ontario Hydro] there are no longer six seasons of the year, the waters no longer flow
in their order, and places where people have prayed, been buried, and harvested their food
cease to exist as “land”, is that not the essence of cultural destruction…?11
In her language, La Duke indicates how foreign it is to divide issues of ‘so called’
culture-religion, literature, and spirituality-from discussions of ‘land’-whose
very position in quotation marks indicates the strangeness of using a noun that alien-
ates it as a thing separate from social and cultural relationships.
As Loretta Todd states, “Aboriginal Title is the term under which we negotiate
with the colonizers…which asserts a reality that existed before Native peoples were
positioned as Other.”‘”‘ In coming to acknowledge and affirm this reality, non-
Native peoples must begin to recognize the contingency and peculiarity of their
own concepts of property and the colonial foundations on which it is built. The
abstraction, commodification, and separation of land from people’s social lives and
from the cultural forms in which we express meaning and value as human beings
living in communities, represent only a peculiar, partial, and limited way of dividing
up the world. The range of Western beliefs that define intellectual and cultural prop-
erty laws-that ideas can easily be separated from expressions, that expressions
are the singular products of the individual minds of Romantic authors, and that
these expressive works can be abstracted from the meaningful worlds in which they
figure to circulate as the signs of unique personality, that cultures have essences
embodied in objects that represent unbroken traditions-are not universal values
that express the full range of human possibility, but particular, interested fictions
emergent from a history of colonialism that has disempowered most of the peoples
on this planet. By listening seriously to claims of cultural appropriation in context,
and attending to the possibilities afforded by Aboriginal Title, we wil better under-
stand the properties of culture(s) and the politics of possessing identity in a con-
temporary world.
170. Winona La Duke, “The Culture of Hydroelectric Power” (1991-2) 23 Borderlines 42 at 43.
171. Todd, supra, note 150 at 32.
The N e w Age Movement’s Appropriation of
Native Spirituality: Some Political Implications
for the Algonquian Nation
SUSANNE MISKIMMIN
University of Western Ontario
In the predawn darkness, a line of figures can barely be discerned as
they slip into the makeshift sweat lodge. Inside, in the oppressive heat,
they encircle the fire and concentrate on purifying the mind, the body and
the earth. Sweet grass is thrown on the fire to aid this process of
purification. In turn, each individual gives homage to the spirits. One
honours Kitche-Manitou, one the Four Directions, another acknowledges
the summer solstice while a fourth gives thanks to the Goddess. It is a
scene becoming more and more c o m m o n in the suburbia surrounding
large Canadian cities. It is the N e w Agers.
The participants are, for the most part, “white” and of Euro-Canadian
heritage. The leader, however, is often a person claiming “mixed blood”,
although more often than not this claim to native heritage is only the
most tenuous genetic thread linking an otherwise “white” individual to a
vague and uncertain Indian ancestor. This thread is embellished and
relished. Even individuals with absolutely no possible claim to native
heritage are in fact making that claim, or are culturally adopting what is
genetically lacking. This desire to be Indian has much to do with the
New Age Movement which has sparked a new interest in traditional
native spirituality. Native spirituality is revered for its connection to the
earth and its respect for harmony and balance in all things and Indians are
envisioned to be the spiritual healers of Euro-Canadian maladies. A
market for Indian religious experience has developed throughout North
America and “guides” such as those noted above have come forward to
give spiritual counselling. In actual fact, the N e w Age Movement’s
approach to native spirituality is a “grab bag” of native spiritual
traditions, with an emphasis on Algonquian and Plains spiritual belief
combined with holistic healing and “human potential” language.
206 SUSANNE MISKIMMIN
Not surprisingly, many entrepreneurs have embraced this fad as an
opportunity for great profit. They sell sweat lodges or vision quests
which promise individual and global healing. Or they sell books and
weekend retreats which propose to teach traditional ceremonies to bring
out the Indian in everyone. A visit to the local N e w A g e Shop reveals
a bevy of items created to enhance the spirituality of the N e w Ager.
Here, you can buy sweet grass for purifying, shaman’s rattles and drums
for that at home ritual, dream catchers, medicine wheels or tools of
divination, such as “Sacred Path Cards” and “Medicine Cards”. These
cards are heralded as “an extraordinary tool for self-discovery which
draws on the strength and beauty of Native American spiritual tradition.
Developed by [a] Native American medicine teacher… this unique system
distils the essential wisdom of the sacred tradition of many tribal
traditions and shows users the way to transform their lives.” Each card
depicts a symbol of native spirituality and an accompanying text relates
an “authentic” native story to aid in interpretation and direct meditation.
N e w Agers are responding to a genuinely felt emotional need within
dominant society. Despairing of their feelings of spiritual emptiness and
the lack of meaning in their lives, N e w Agers look to others for succour
rather than seeking transformation from within. Those w h o embrace
native spirituality, for the most part, believe that in doing so they admire
and express respect for First Nations. O n the surface, this attitude toward
native heritage may indeed appear a positive thing; that native spiritual-
ity is being revered and celebrated. In this paper, I hope to illustrate that
this is not the case. Stereotyping, appropriation and the politics of
primitivism are intrinsic to the N e w Age Movement’s “adoption” of
native spirituality and a dispute over ownership and authenticity has
resulted.
In her article “The tribe called Wannabee: playing Indian in America
and Europe”, Rayna Green (1988) traces the history of the “whiteman’s”
tendency to emulate Indians from the time of initial contact to the
present. This tendency, which she coins “playing Indian”, offers an
unique opportunity to escape the conventional and often highly restrictive
boundaries of the “whiteman’s” fixed cultural identity. Green finds that
the role of “playing Indian” began to have spiritual implications in the
late 19th century and was connected to several important notions: that
APPROPRIATION OF NATIVE SPIRITUALITY 207
Indians inhabit the spirit world, that Indians are wise and skilled in
healing, and that a medium directed by a guiding spirit can speak to, or
instruct, others. M a n y of these spirit guides were perceived to be Indian.
A precursor of the N e w Age fascination with Algonquian spirituality
began in the 1960s, when counter culture hippies, wearing headbands,
love beads, fringed jackets and feathers and inspired by such cult books
as those of Carlos Castaneda, began to show up on Southwestern mesas
and reservation areas in search of peyote cults and a state of “higher
consciousness” (Green 1988:44).
Two early forms of “guruism” constitute the major literary forms in
North American culture which led to the birth of the N e w Age Move-
ment. In the first of these, the persona of a famous Indian leader offers
the “truth” of the human condition through the voice of a wise, old, (and
now conveniently dead) chief. In the second mode, the old guru gives
the teachings through the transcriptions of a non-native student. Indian
“truth” and wisdom are purveyed by the “white Indians” to an audience
which prefers the white shaman to the real Indian (Green 1988).
One of the more notorious authors to write in an Indian persona was
Jamake Highwater, an alleged Cherokee/Blackfoot from either Montana
or Canada (the story varies), born by his own assertion in several
different years. Prior to his “rebirth” as an Indian, Highwater appeared
as Jay Marks, a non-Indian whose main literary claim to fame was his
“authorized” biography of rock star Mick Jagger in the late 1960s. In
response to having been revealed by a native newspaper to be of
Armenian Jewish heritage, Highwater, clad in expensive “Santa Fe Chic”
clothing, insisted that he is Indian because — and I quote — “I say I am”
(Highwater 1981).
Two recent works in the “guru” genre attract attention because of
their phenomenal success — Carlos Castaneda and Lynn Andrews (Green
1988). Castaneda’s series of works on the teachings of Don Juan were
tendered both as serious anthropology and as an authoritative treatise on
Indian life. Lynn Andrews capitalized on Castaneda’s success and her
own interest in feminism with her account of the teachings of her wise
spiritual guide, Agnes Whistling Elk, whose apparent life’s ambition was
to unburden herself of her people’s sacred knowledge to the first available
“white” woman. These works, along with Highwater’s, have been
208 SUSANNE MISKIMMIN
instrumental in engendering the vast and avid demand for native religious
experience.
The image of native people held by many Euro-Canadians has been
imprisoned in history. This has made it possible for N e w Agers to
identify with images of First Nations people in the past and attempt to
possess part of this identity, without considering the impact of this
appropriation on the present. A s D o n Alexander writes, “From cigar
store Indian, to cowboy and Indian movies, to the ‘noble savage’, native
people live in a prison of images not of their o w n making” (1986:45).
These pervasive images, removed from the daily reality of native peoples,
mask their struggles for empowerment. They do not reflect the history
of native people but rather express another heritage; those representations
of natives by the non-native social imagination which fragments and
freezes native identity. Native peoples exist within a milieux of images
and contradictory symbols which result from history, consumerism and
popular culture. These images have silently contradicted the lived
experiences of native people and have worked to construct a discourse of
subordination. They are pervasive and powerful and their influence on
native identity has political implications. These images are intrinsic to
the debates surrounding aboriginal rights and resources, cultural tourism
and cultural trespassing, intellectual property and cultural appropriation.
Further, the concern for “authenticity” and the “desire to rescue
‘authenticity’ out of destructive historical change” as Clifford puts it
(1985:121) denies culture its dynamic quality. Indians are today what
they have always been (constructed as it is): silent, stoic, mystical and
clad in beads and feathers. A contemporary First Nations person is
deemed less “authentic” than the distorted caricature residing in the Euro-
Canadian imagination. This notion that native people today are not “real”
or “authentic” makes the appropriation of aspects of their cultural heritage
a non-issue.
The N e w Age Movement’s conception of native spirituality is
superficial at best; it seems they are after a quick spiritual fix. They
cling to the positive aspects of spirit forces and deny the dualistic nature
of the spiritual world. As an Ojibwe friend recently elaborated,
Spiritual learning is a lifelong process; it has taken m e m y whole life
to learn what I know about m y tradition. H o w can a N e w Ager expect
APPROPRIATION OF NATIVE SPIRITUALITY 209
to learn all there is to know just from one book or a weekend course?
What they know of native spirituality is so superficial, it makes it look
as if it’s not real or genuine; not something to be taken seriously.
The concern is for the reaction of those Euro-Canadians w h o have had
limited experience concerning First Nations people themselves and are
forming their impressions of them based on what N e w Agers are doing.
Further, the N e w A g e Movement’s approach to native spirituality does
not acknowledge the cultural diversity among native people and creates
a “generic” Indian. Such a perception fosters the idea that the First
Nations are not viable nations — nations that have ownership and
jurisdiction over natural resources. Such a perception also implies that
there is no political foundation for First Nations, that they exist, for the
New Age Movement, merely as a spiritual guides.
It has been suggested that when N e w Agers see h o w “white” people
have historically oppressed others and how they are coming very close to
destroying the earth, they often want to disassociate themselves from their
“whiteness”. They do this by opting to “become Indian”. In this way
they can escape responsibility and accountability for “white” racism
(Smith 1994:70). This dissociation also allows the individual to continue
to benefit from the colonialism of which they are part, but to not take
responsibility for it. Certainly, N e w Agers want to become only part
Indian. They do not want to acknowledge First Nation struggles for
cultural survival, treaty rights, self-determination or an end to substance
abuse. They do not want to acknowledge that which would deny them
their romanticized vision of Indian reality. Rather, N e w Agers see
Indians as “gurus” w h o exist to meet their consumerist needs.
Andrea Smith writes that
The New Age movement completely trivializes the oppression we as
Indian women face: Indian women are suddenly no longer the women
who are forcibly sterilized and tested with unsafe drugs such as Depo
Provera; we are no longer the women who have a life expectancy of
47 years; and we are no longer the women who generally live below
the poverty level and face a 7 5 % unemployment rate. No, we’re too
busy being cool and spiritual. [Smith 1994:71]
A further concern regarding the N e w Age Movement is its appropria-
tion of native voice in the telling of native stories. Native stories are
powerful and often sacred. Stories affect change, impart strength and
heal. Stories convey the social values that the community deems
210 SUSANNE MISKIMMIN
essential and storytelling situates people in the world and keeps them
connected to it and each other. Stories are the fabric of native societies
and if they are appropriated by others, native people will no longer
control the process that is the very weave of their societies (Walkem
1993). Given the importance of stories in transmitting First Nations
cultures, a mistelling represents a destruction.
The question of ownership of stories and the licence of outsiders to
tell the stories of other cultures are issues that are currently being
debated. M u c h of the colonialist existence of the past few hundred years
has silenced native voices. Native stories were largely appropriated and
retold by non-native experts in such fields as anthropology, history and
in the political realm. Not surprisingly, the appropriated stories distort
the realities of native histories, cultures and traditions. Underlying this
practice is the assumption that these “experts” have the right to retell
native stories because of their place in dominant society. What is
disturbing about those w h o would appropriate the voices of native
peoples is that they do not see their actions as political or as a continua-
tion of their o w n colonialist past. The appropriation of native voices
through the telling of their stories is a political act; it dislocates First
Nations people and attempts to restructure reality: it is assimilationist
(Walkem 1993:38).
It has been suggested that cultural appropriation is not necessarily a
bad thing all of the time, and that the world cultures are already very
entwined. However, such thinking assumes that individuals are playing
within an even field. This is not the case. The history of colonialism has
led to significant inequities and to the exclusion of communities not
regarded as belonging to the “mainstream” of society from telling their
o w n stories.
As Smith (1994) comments, respecting the integrity of native people
and their spirituality does not mean that there can never be cross-cultural
sharing. However, such sharing should take place upon the initiative of
First Nations. Interested individuals should acknowledge and become
involved in native political struggles and should develop an ongoing
relation with native communities based on trust and mutual respect.
W h e n this happens, native people may invite a non-Indian to take part in
a ceremony, but it will be on native terms.
APPROPRIATION O F NATIVE SPIRITUALITY 211
REFERENCES
Alexander, Don. 1986. Prison of images: seizing the means of representation. Fuse,
February/March 1986, 45-^6.
Clifford, James. 1985. Histories of the tribal and the modern. Art in America, April
1985, 164-177.
Green, Rayna. 1988. The tribe called Wannabee: playing Indian in America and Europe.
Folklore 99(l):30-55.
Highwater, Jamake. 1981. The primal mind: vision and reality in Indian America. New
York: Harper & Row.
Smith, Andrea. 1994. For all those who were Indian in a former life. Cultural Survival
Quarterly 17(4):70-71.
Walkem, Ardith. 1993. Stories and voices. Fuse, summer 1993, 31-38.
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