Wednesday, March 29, 2006
Who Owns (and will profit from) Native Culture?
I'll be participating in a conference at the University of North Carolina on Thursday (and traveling much of the weekend), so I'm going to be pretty quiet until next week. Plus, it looks like everyone's going to consumed for the next few days thinking about the new US News rankings.
Because the conference is on reparations, I thought I'd leave off with a post on a related topic:
One question that people are increasingly asking these days is: how can native people receive compensation for the products of their culture? 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. 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 we discussed earlier this week, there is also increasing talk of preservation of access to cemeteries on the mainland.
I thought again about this problem recently when I visited the Honolulu Academy of the Arts. They have a fabulous--and I do mean fabulous--exhibit of treasures taken by Captain Cook's crew back to Great Britain. It's called Life in the Pacific of the 1700s: The Cook/Forster Collection of the Georg August University of Göttingen. The treasures found their way
into Germany–-and so they’re now on loan from several German museums.
The exhibit is absolutely fascinating; I highly recommend it. There are clothes, including a stunning
mourning dress and simple but beautiful and elegant garb. There are also fish hooks of all sizes, mats, an extensive fish net, and weapons. Notable by their absence are 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. Check out the Honolulu Academy of Arts website to see a picture a heva, a Tahitian full-length mourning dress with headdress. The picture, which is stunning, just doesn't do it justice. Most of the other clothes in the exhibit are quite simple; often made out of organic materials (like coconuts). And I think they'll 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.... One way for that to happen is for clothes designers in Hawaii and elsewhere in the Pacific to get busy.
Special thanks to my colleague Carl Christensen, who told me some things about the exhibit that I didn't know.
Alfred L. Brophy
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https://lawprofessors.typepad.com/property/2006/03/who_owns_native.html
JOHN LOCKE, THE TWO TREATISES OF GOVERNMENT (1689, 1764); OF CIVIL-GOVERNMENT BOOK II; CHAP. V. Of PROPERTY:
§. 25. ... I shall endeavour to shew, how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners.
§. 26. God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life, and convenience. The earth, and all that is therein, is given to men for the support and comfort of their being. And tho’ all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of nature; and no body has originally a private dominion, exclusive of the rest of mankind, in any of them, as they are thus in their natural state: yet being given for the use of men, there must of necessity be a means to appropriate them some way or other, before they can be of any use, or at all beneficial to any particular man. The fruit, or venison, which nourishes the wild Indian, who knows no inclosure, and is still a tenant in common, must be his, and so his, i. e. a part of him, that another can no longer have any right to it, before it can do him any good for the support of his life.
§. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.
Posted by: Robert Schwartz | Mar 29, 2006 4:04:01 PM