Who Owns (and will profit from) Native Culture

Since I'm recycling posts from years and years ago--like "who owns American folk culture?  Parker Brothers, apparently"--and also thinking about issues of cultural property again, I thought I'd blow some dust off a post on native culture from propertyprof back in March 2006.

One question that people are increasingly asking these days is: how can native people receive compensation for the products of their culture?  Or, in the words of Williams College Professor Michael Brown's important 2003 book, Who Owns Native Culture?  These questions come up in all sorts of places: Keith Aoki's written a lot about native rights to property--like seeds (Seeds, & Deeds: Recent Skirmishes in the Seed Wars, 11 Cardozo J. Int'l & Comp. L. 247 (2003)).  Madhavi Sunder has the latest contribution to theorizing why traditional communities deserve compensation for preserving traditional knowledge here.  And in Hawaii this is increasingly a topic of much concern because of local products, like the sacred taro plant, are being genetically engineered and appropriated for use by non-Hawaiians.  And the preservation of sacred places is a topic that we're hearing a lot about in Hawaii.  As I  discussed here, there is also increasing talk of preservation of access to cemeteries on the mainland.

I thought about this problem when I visited the Honolulu Academy of the Arts back in 2006.  They had a fabulous--and I do mean fabulous--exhibit of treasures taken by Captain Cook's crew back to Great Britain. It was called Life in the Pacific of the 1700s: The Cook/Forster Collection of the Georg August University of Göttingen.  Here's a link to the National Museum of Australia page on the treasures; it appears the exhibit traveled to Australia after Honolulu. 

The treasures from found their way from the Pacific into Germany in the eighteenth century –- and so they went on loan from several German museums.  There were clothes, including a stunning mourning dress (an image of the heva, the mourning dress, is above) and simple but beautiful and elegant garb.  There were also fish hooks of all sizes, mats, an extensive fish net, and weapons.  Notable by their absence were religious objects.

One of the many things that struck me was how beautiful the clothes are.  Let's face it: they're destined for Seventh Avenue in New York City.  The heva, which is stunning, just doesn't do the heva justice.  Most of the other clothes in the exhibit are quite simple; often made out of organic materials (like coconuts).   And I think they could be a huge hit in the marketplace.  Now, we just need to figure out a way to insure that the descendants of the people who created this work receive some compensation....

Comments

[Patrick S. O'Donnell]

Al,

Matthew Fletcher* informed me of this recent paper on this topic as well: Kristen A. Carpenter, Sonia K. Katyal, and Angela R. Riley, "In Defense of Property," 118 Yale L.J. 1022 (2009). Available: http://yalelawjournal.org/118/6/riley.html

*For those who don't know: Matthew L.M. Fletcher is an Associate Professor at Michigan State University College of Law and Director of the Indigenous Law and Policy Center; he blogs at Turtle Talk.