It’s ‘Cultural Appropriation’ All the Way Down

James Anaya, the dean of University of Colorado law school, testified that the IGC ought to “obligate states to create effective criminal and civil enforcement procedures to recognize and prevent the non-consensual taking and illegitimate possession, sale and export of traditional cultural expressions.” His support for a new bureaucracy to monitor the borrowing of ancient patterns and place names invoked hipster clothier Urban Outfitters’ “Navajo” line, subject of a years-long legal battle that finally settled last year.

Cultural appropriation complaints have grown increasingly common in critiques of art, literature, cuisine, pop culture, and fashion. These complaints ignore the reality that as long as different cultures interact with each other, they’ll poach each other’s rhythms, patterns, hairstyles, and iconic images. From Dana Schutz’s controversial painting of Emmett Till at the Whitney Biennial to Miley Cyrus affixing a sequin to her forehead where, were she a Hindu woman, a bindi would be—contemporary identity politics commands endless proxy wars on the appropriation front. And they’re often overblown enough to make the more legitimate complaints of indigenous peoples look ridiculous by association.

Asked by THE WEEKLY STANDARD why the IGC was taking so long to crack down on the common practice, Fordham law professor Susan Scafidi brought up the asynchronicity of Western imperialist idea-ownership. “Balancing intangible property rights with the public domain is always challenging,” she said, via email. “And even more so in a context in which even the Western legal notion of ‘property’ is imported.”

Scafidi’s comment gets at the real, thorny issue that is far more complex than faux internet outrage about white women wearing hoop earrings or college students wearing sombreros to Cinco de Mayo parties. “Traditional knowledge and cultural expressions” are as free flowing, and difficult to regulate as the vague catch-all term makes them sound. Intellectual property protections, legally limited by time constraints, weren’t created with sacred secrets or millennia-old agricultural methods in mind.

“IP is designed for individuals or clearly defined organizations and emphasizes new finished products, as opposed to the collective cultural creativity of indigenous peoples which may evolve over many generations,” Scafidi said. Copyrighting a strain of music or trying to patent an Andean hallucinogen makes for some pretty hefty culture-appropriating, in other words.

And comparing cultural exchange to the theft of intellectual property ignores the value of cultural cross-pollination. A 2003 book by Michael Brown titled Who Owns Native Culture? remains the clearest and best written authority on a complicated question clouded by political correctness. Brown, who takes the middle road, is a former professor at Williams College and now heads up the 110-year old School for Advanced Research in Santa Fe, New Mexico. In an interview with THE WEEKLY STANDARD last week, Brown cited Kenan Malik’s recent New York Times op-ed in consciously controversial support of cultural appropriation—which coincided with but did not make reference to the IGC—as a credible defense of, quite simply, how art and culture happen.

Concerning the challenges that have hobbled the IGC lo these years, Brown, like Scafidi, recognizes divergent conceptions of time and intellectual property. “When you talk to Native Americans or indigenous people in other parts of the world and say, ‘We can give you 20 years of patent protection or 75 years of copyright protection,’ they’ll say, ‘This is an eternal form of knowledge,’” he told me, speaking from experience. “‘This precedes us by millennia and will presumably survive us by millennia, and we don’t accept the idea that these things have a legally defined lifespan beyond which they enter into the public domain.’”

Indigenous groups’ winning unlimited ownership of their intellectual property could easily backfire, he points out: “If you start making claims to eternal ownership of certain kinds of cultural properties by native people, then Sony is going to be lining up for the same thing.” Setting such a precedent to serve the historically put-down would inevitably benefit the world’s most powerful.

Another question that hobbles IGC: Who speaks for a culture? The Navajo Nation may elect its leaders, but, “Who speaks for the Maya, spread out over different nation states and subgroups,” he said, and described the diffusion of Mayan groups into Mexico, Guatemala, Belize, Honduras—“Some of those subgroups don’t recognize the authority of other Maya communities to speak for them and to determine how they use or exclude from use their cultural productions, so it’s a messy business.

Brown also argues that standardized regulations, hard as they are to reach, could actually be a gift to businesses wary of the unpredictable PR crisis.

“Companies don’t mind paying fees as long as they know what they are, and they have a predictable quality as part of the research process.” For now, fear of potential political blowback and expensive litigation have halted bioprospecting—the practice tracking down indigenous plant remedies for pharmaceutical research—more or less entirely. This, Brown said, is “a loss to humanity,” thanks to the stubborn tension at the crux of his work, that strain between “the rights of the source community that stewards this knowledge and the greater good of humanity that could benefit from its broader distribution.”

There’s even an appropriation battle at the heart of New Mexico’s statehood,I learned: the sun symbol that adorns the flag, the state seal, every official document, and innumerable New Mexican brands that were, legally, free to borrow it. Although the symbol was initially taken from a Zia Pueblo pot, an anonymous artifact in the old archival holdings of the School for Advanced Research, it turns out to have been a sacred icon; needless to say, the SAR returned the pot. In order to use the symbol on a New-Mexico-themed airplane they were dedicating, Southwest Airlines secured the Zia people’s blessing in a traditional ceremony featuring a Crow Dance and donated to the tribe’s scholarship fund. Southwest’s New Mexico plane falls within the rarely discussed “planes landing safely” end of the commercially motivated cultural appropriation spectrum. Controversy or the avoidance of cultural exchange for fear of controversy are, sadly, far more common.

The business of his organization in Santa Fe—SAR, as it’s commonly known—was “culturally appropriative” before it was cool (or back when it was still cool, depending on your perspective). Founded in 1907 by frontier-minded and Bryn Mawr-educated heiresses with cash to burn and a desire for authentic American archaeology, its original mission might have been plucked from Willa Cather’s southwest, specifically her 1925 novel The Professor’s House. Just about everything Brown told me about SAR’s history reminded me of that book: Every amateur explorer in the novel tries to make the Pueblo ruins his own, while her Emersonian hero, the professor Godfrey St. Peter, makes them more or less a monument to the American ideal in its interwar decay. It’s a wonderful book—and Cather’s masterpiece, according to A.S. Byatt.

Sometimes I think Willa Cather really wrote America into being; her writing about the West, anyway, marks the beginning of continental America’s meeting itself through literature. Censoring and banishing whatever’s deemed appropriative too often amounts to a dangerous disavowal of the cultural cross-influence that got us this far. When culturally appropriative literature becomes verboten, we’ll be disinheriting ourselves. Take any valuable American experience, and chances are it’s cultural appropriation all the way down.

Still the IGC meetings carry on; they’re adjusting the text, bit by bit. During live-streamed morning meetings on the third day, the committee chairman, Australian delegate Ian Goss, reminded members again that the documents remain a work in progress. Certain delegates expressed concern when a provision seemed broad enough to be misapplied, and suggested minute alterations to the text. More persnickety member states complained of the draggy 16-year process finalizing these unwieldy prohibitions and used their time to suggest time-saving methods of critique to other delegates..

Actually watching the proceedings one wonders if this is all there is, after centuries of cultural appropriation: a global bureaucracy glacially debating the shifting priorities of nearly 200 subcommittee members. And remember, this is a debate that began before the widespread use of the internet blew the doors off cultural borrowing.

But then, if you mute the dull talk of the deliberative world body to focus on reading, say, The Professor’s House (as I did last week, when Professor Brown’s Santa Fe stories put Cather’s Professor St. Peter on my mind) you’ll see what a truly great culture-appropriator can do.

Her pristine Pueblo ruins are a lost world apart from the workaday violence of modern life, formerly a retreat for St. Peter’s protege and son-in-law who’d died in the war. The natives’ grief becomes his. And, what lets one man in mourning meet untold sorrow in the beauty of a pillaged adobe palace, and every honest reader a little bit of the same in herself, can’t have been borrowed in vain. It’s a literary monument to the sacred secret. But there are those who would argue Cather had no right to create that monument.

“Not only popular dress, hairstyle, and music but more recently literature and art are at the forefront of the debate,” Scafidi noted. We may not live to see an international bureaucracy organized and proactive enough to catalog every book and painting that outstretches its author’s culture of origin. But there will be more complaints against painters, sculptors, literary writers and fewer freshman seminars assigning old novels that could now be deemed culturally appropriative, and fewer authors writing new ones. Censoring high culture is disservice to all humanity, really, chilling the impulse to create beautiful things that outlast us—like an adobe palace, or an unforgettable novel that borrowed one without the express permission of the Pueblo people.