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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 possessive individualism adopted by all participants in the discussion.
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.
2. Godfrey Stephen, “Canada Council Asks Whose Voice Is it Anyway?” The Globe and Mail, March 21, 1992 at C–l and C–15.
3. Ibid. at C1.
6. The term “dangerous supplement” is borrowed from Jack Balkin, who borrows it from Derrida Jacques 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 Western European history is a figure who occupies a decidedly male gendered position. For further discussion, I refer the reader to Gilbert Sandra & Gubar Susan, 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.
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.
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 Arac Jonathan & Ritvo Harriet, eds, Macropolitics of Nineteenth-Century Literature: 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 alterity see Coombe Rosemary J., “Occupying the Colonial Imagination/Preoccupations of Postcolonial Politics: A Critical History of Copyright” in Jaszi Peter & Woodmansee Martha, eds, The Politics and Poetics of Intellectual Property in a Postcolonial Era (Durham, NC: Duke University Press, forthcoming).
17. For a discussion of the similar and simultaneous logic of European colonialism see Mitchell Timothy, Colonising Egypt (Berkeley: University of California Press, 1988).
18. 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 Rose Mark, “The Author as Proprietor: Donaldson v. Becket and the Genealogy of Modern Authorship” (Summer 1988) 23 Representations 51; Rose Mark, Authors and Owners (Cambridge: Harvard University Press, 1993); Woodmansee Martha, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’” (1984) 17 Eighteenth Century Studies 425; Jaszi Peter, “Toward a Theory of Copyright: The Metamorphoses of ‘Authorship’” (1991) Duke L. J. 455; Lange David, “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; Litman Jessica, “The Public Domain” (1990) 39 Emory L. J. 965; Litman , “Copyright as Myth” (1991) 53 U. of Pitt. L. Rev. 235; Jaszi Peter, “On the Author Effect: Contemporary Copyright and Collective Creativity” (1992) 10 Cardozo Arts and Entertainment L. J. 293; Woodman Martha 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 maintaining the stability of the idea/expression distinction in copyright law, see Cohen Amy B., “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). Balkin J.M., “Ideology as Constraint” (1991) 43 Stan. L. Rev. 1133; Boyle James, “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. Chevigny Paul, More Speech: Dialogue Rights and Modern Liberty (Philadelphia: Temple University Press, 1988); Coombe Rosemary J., “Publicity Rights and Political Aspiration: Mass Culture, Gender Identity, and Democracy” (1992) 26 New Eng. L. Rev. 1221; Coombe Rosemary J., “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; Cornell Drucilla, “Institutionalization of Meaning, Recollective Imagination and the Potential for Transformative Legal Interpretation” (1988) 136 U. of Penn. L. Rev. 1135; Cornell Drucilla, “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); Fish Stanley, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Durham: Duke University Press, 1989); Fiss Owen, “Why the State?” (1987) 100 Harv. L. Rev. 781; Fiss , “Free Speech and Social Structure” (1986) 71 Iowa L. Rev. 1405; Hutchinson Alan, “Talking the Good Life” (1989) 1 Yale J. of Law and Liberation at 17; Frug Mary Joe, Postmodern Legal Feminism (New York: Routledge, Chapman and Hall, 1992); Minow Martha, “Identities” (1991) 3 Yale J. of Law & Humanities 97; Patterson Dennis, “Postmodernism/Feminism/Law” (1992) 77 Cornell L. Rev. 254; Peller Gary, “The Metaphysics of American Law” (1985) 73 Cal. L. Rev. 1152; Schlag Pierre, “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 West 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.
22. Keeshig-Tobias Lenore, “Stop Stealing Native Stories”, (January 26, 1990) The Globe and Mail A–7.
28. “Giving Smaller Voices a Chance to be Heard”, (April 14,1992) The Globe and Mail A–16.
30. Supra, note 2, at C–l.
31. Ibid atC–15.
32. I have chosen deliberately to use the term postcolonial rather than the term multicultural, and the language 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, Moodley Kooglia, “Canadian Multiculturalism as Ideology” (1983) 6 Ethnic and Racial Studies 320, and Mohanty Chandra, “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 BlackSkin Frantz Fanon, White Masks (New York: Grove Press, 1967)—mark the beginnings of the development of the discourse, but it has now expanded across several disciplinary fields. For a fine overview see Seed Patricia, “Colonial and Postcolonial Discourse” (1991) 26 Latin Am. Research Rev. 181. For recent criticism of the term and its range of extension see Mukherjee Arun P., “Whose Post-Colonialism and Whose Postmodernism?” (1990) 30 (2) World Lit. Written in English 1; Shohat Ella, “Notes on the ‘Post-Colonial’” (1992) 32 Social Text 99; Tiffin Helen, “Post-Colonialism, Post-Modernism and the Rehabilitation of Post-Colonial History” (1988) 23(1) J. of Commonwealth Lit. 169; Frankenberg Ruth & Mani Lata, “Crosscurrents, Crosstalk: Race, ’Postcoloniality’ and the Politics of Location” (1993) 17 Cultural Studies —(forthcoming) also reprinted in Lavie Smadar & Swedenburg Ted, 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 reference is very rarely to the Native culture, which might be the more accurate historical use of the term … Native and Métis 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 Postmodernism” (1989) 20 (4) Ariel 149 at 149 and 156.
33. For longer discussions of the distinctions between modernity and postmodernity see Coombe Rosemary J., “Beyond Modernity’s Meanings: Encountering the Postmodern in Cultural Anthropology” (1991) 11 Culture 111; Coombe , “Publicity Rights and Political Aspiration”, supra, note 19; Featherstone Mike, Consumer Culture and Postmodernism, (London: Sage Publications, 1991) at 1–12; Harvey David, The Condition of Postmodernity (Oxford: Basil Blackwell, 1989); and Jameson Fredric, Postmodernism, or, The Cultural Logic of Late Capitalism (Durham: Duke University Press, 1991). The term postmodern has been adopted into legal discourse in a rather idiosyncratic and restricted manner 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 space 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, & Mukherjee, supra, note 32.
34. I use the term “imaginary” in the Lacanian sense to refer to an agent’s compulsion to seek “an identificatory image of its own stability and permanence (the imaginary)” in “the order of images, representations, doubles, and others.” Grosz Elizabeth, Jacques Lacan: A Feminist Introduction (New York: Routledge, Chapman and Hall, 1990) at 35.
35. Clifford James, The Predicament of Culture: Twentieth Century Ethnography, Literature, and Art (Cambridge: Harvard University Press, 1988 ) at 215.
36. See Brantlinger Patrick, 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; Rosaldo Renato, Culture and Truth: Remaking Social Analysis (Boston: Beacon Press, 1989); Williams Raymond, Culture and Society—1780–1950 (New York: Columbia University Press, 1983); Williams Raymond, Keywords: A Vocabulary of Culture and Society (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 Colonial Imagination”, supra, note 16.
37. Williams, Keywords, ibid, at 90–91.
38. Clifford, supra, note 35 at 233.
39. Clifford, supra, note 35 at 223 citing Jameson Fredric, 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.
41. Ibid, at 196.
42. Ibid, at 195.
43. Ibid, at 198.
44. Ibid, at 215–51.
46. Clifford’s other two categories are inauthentic masterpieces (counterfeits and illicit copies) which 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 Foster Hal, The Ann-Aesthetic: essays on postmodern culture (Port Townsend: Bay Press, 1983) and Foster Hal, Recodings: art, spectacle and cultural politics (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 authentic 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 making, is a copyright infringement and remains one even if the artworld comes to regard the work/copy as an authentic masterpiece. 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 Property, Colonialism, and Contemporary Politics (New York: Routledge, Chapman and Hall, forthcoming).
46. Clifford, supra, note 35 at 201–02.
47. Ibid, at 204–06.
48. See especially Jaszi, “Towards a Theory of Copyright”, supra, note 18; Rose,“The Author as Proprietor”, 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. I am paraphrasing Young Edward, Conjectures On Original Composition (London: 1759) as cited in Rose, “The Author as Proprietor”, supra, note 18.
50. Blackstone William, Commentaries on the Laws of England. 4 Volumes (Oxford: Clarendon Press, 1765–69) vol. 2 at 405–06.
51. Enfield William, Observations on Literary Property (London: 1774) at 21.
52. Bleistein v. Donaldson Lithographing Co. 188 U.S. 239 at 250 (1903) interpreting the nineteenth century cultural critic John Ruskin. These Romantic and pre-industrial 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.
53. An overview of the treaties that define the parameters of the international law of cultural property may be found in Edwards Joseph F., “Major Global Treaties for the Protection and Enjoyment of Art and Cultural Objects” (1991) 22 Toledo L. Rev. 919.
54. Merryman John Henry, “Two Ways Of Thinking About Cultural Property” (1986) 80 Am. J. of International L. 831; Merryman John Henry, “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 repatriation 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 Clements Rebecca, “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. 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.
60. Ibid, at 833.
61. Ibid, at 832.
62. Ibid, at 832 n. 5.
63. Ibid, at 844–45.
64. Ibid, at 849.
65. Ibid, at 847.
66. Ibid, at 850.
67. (1989) 74 Cornell L. Rev. 1179.
68. Ibid, at 1182. Ironically, Greece, the country of origin for classical Western 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 perceptions see Herzfeld Michael, Anthropology Through the Looking Glass: Critical ethnography in the margins of Europe (Cambridge: Cambridge University Press, 1987).
69. Radin Margaret Jane, “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.
72. Ibid, at 1185.
73. See Handler Richard “Who Owns the Past? History, Cultural Property, and the Logic of Possessive Individualism” in Williams Brett 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 Stocking George W. ed., Objects and Others: Essays on Museums and Material Culture (Madison: University of Wisconsin Press, 1985), 192–217. For others who have pointed out the peculiarity and contingency of Western individualism see Dumont Louis From Mandeville to Marx: The Genesis and Triumph of Economic Ideology (Chicago: University of Chicago Press, 1977); Dumont Louis Essays on Individualism: Modern Ideology in Anthropological Perspective (Chicago: Univ rsity of Chicago Press, 1986) and of course, de Tocqueville Alexis Democracy in America, trans. Reeve H. esq., 4th ed., rev. & cor. from 18th Paris Ed. New York: J. & H.G. Langley, 1841.
74. Macpherson C.B. The Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: 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.
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.
82. Handler “Who Owns the Past?”, supra, note 73 at 67.
83. Ibid, at 68.
84. Ibid, at 68.
85. Ibid, at 69.
86. I borrow this term from Goodman Nelson Ways of Worldmaking (Hassocks: Harvester Press, 1978).
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 Conley Diane “Author, User, Scholar, Thief” (1991) 9 Cardozo Arts and Entertainment L. J. 15; Gordon Wendy “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; Lange David “Recognizing the Public Domain” (1981) 44 Law and Contemp. Problems 147; Vaver David “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; Marcus George & Clifford James Writing Culture: The Poetics and Politics of Ethnography (Berkeley: University of California Press, 1986); Marcus George & Fischer Michael Anthropology as Cultural Critique (Chicago: University of Chicago Press, 1985); Renato Rosaldo, Culture and Truth, supra, note 36. For discussions in particular contexts see Boddy Janice 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. Minow Martha “Identities” (1991) 3 Yale J. of Law & the Humanities 97 at 97–98.
91. Ibid, at 98–99 citing Harris Angela “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stan. L. Rev. 581 at 584.
92. Ibid, at 112.
93. hooks bell Yearning: Race, Gender, and Cultural Politics (Toronto: Between the Lines Press, 1990).
94. Ibid, at 5.
95. Ibid, at 19.
96. Ibid, at 20.
97. Ibid, at 20 citing Alcoff Linda “Cultural Feminism versus Post-structuralism: The Identity Crisis in Feminist Theory” (1988) 13 Signs 405 at 432–33.
98. Ibid, at 28.
99. Ibid, at 28.
100. Ibid, at 29.
101. On accusations of essentialism see Todd Loretta “What More Do They Want?” in McMaster Gerald & Martin Lee-Ann eds, Indigena: Contemporary Native Perspectives (Vancouver/Toronto: Douglas & Mclntyre, 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 Maracle Lee “Native Myths: Trickster Alive and Crowing” (Fall 1989) Fuse Magazine 29.
102. I 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 of First 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 forms to an ethnographic realm, or, alternatively, claims them as art, but only to deny their claims to cultural specificity and politicalengagement. For discussions see the various artists whose work is featured in McMaster & Martin, supra, note 101 and the essay by Cree art instructor Alfred Young Man, “The Metaphysics of North AmericanArt” in McMaster & Martin, supra, note 101 at 81–99
104. I do not wish to suggest that intellectual property laws hold no potential for protecting some of the interests of Native peoples. Individual Native artists may well afford themselves of copyright protections but collective rights, collective authors, and claims of intergenerational creation cannot be entertained. 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 Trademarks Act could be amended to prohibit representations of Native peoples and motifs in commercial contexts, unless the consent of band councils were obtained. Collectives of Native peoples might well use the common law tort of passing off to prevent misrepresentations of Native origins in advertising and sales. Moregeneral themes, narratives, and artistic styles, however, cannot be protected because they are likely to be viewed as ideas rather than expressions.
105. Pask Amanda “Making Connections: Intellectual Property, Cultural Property, and Sovereignty in the Debates Concerning the Appropriation of Native Cultures in Canada” (1993) 8 Intellectual Property J.(forthcoming).
106. I borrow this phrase from Macklem Patrick “First Nations Self-Government and the Borders of the Canadian Legal Imagination” (1991) 36 McGill L. J. 382.
107. Minow Martha & Spelman Elizabeth “In Context” in Brant M. & Weaver W. eds, Pragmatism in Law and Society (Boulder, Co.: Westview Press, 1991) 247 at 247.
108. Ibid, at 248–49.
109. Ibid, at 249–55.
110. Ibid, at 258.
111. See discussion of West, ibid, at 257.
112. Ibid, at 269–70.
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.
115. “The Sweetgrass Meaning of Solidarity: 500 Years of Resistance,” (1991/2) 23 Borderlines 35 at 37.
116. As quoted in Miller J.R. Skyscrapers Hide the Heavens: A History of Indian-White Relations in Canada (Toronto: University of Toronto Press, 1989) at 189.
117. As quoted in Miller, Ibid, at 207.
118. As quoted in Fleras Augie & Elliott Jean Leonard The ‘Nations Within’: Aboriginal State Relations in Canada, the United States, and New Zealand (Toronto: Oxford University Press, 1992) at 40.(citations omitted).
119. Act to Amend and Consolidate the Laws Respecting Indians 1876 Statutes of Canada, 39 Victoria, Chapter 18.
120. An Act Respecting Indians 1951 Statutes of Canada, 15 George VI, Chapter
121. Fleras & Elliott, supra, note 118 at 74.
122. Ibid, at 76–77.
123. Ibid, at 79.
125. Joane Cardinal-Shubert, “In the Red” (Fall 1989) Fuse 20–28 at 21.
126. Hill Richard “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 Smith Paul “” (1991–2) 23 Borderlines 17 at 17.
129. Hachivi Edgar Heap of Birds (1991/2) 23 Borderlines 19 at 19.
130. I 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.
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 Doolittel L. Elton H. & Laviolette M. “Appropriation: When Does Borrowing 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 representations far more seriously. See, for example, Turning the Page: Forging New Partnerships Between Museums and First Peoples (Ottawa: Assembly of First Nations and the Canadian Museums Association, 1992) and of course, the ‘recent’ Royal Ontario Museum exhibit Fluff and Feathers, which is actually five years old, first opening in Brantford at the Woodlands Cultural Centre in 1988.
135. Supra,note 125 at 23.
136. A photograph of this performance/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 Cole Douglas & Chaikin Ira An Iron Hand Upon the People: TheLaw Against the Potlatch on the Northwest Coast (Vancouver: Mclntyre, 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 VI, Chapter 29.
141. To quote Webster: “…In the late 1960s we still remembered what had happened more than forty years earlier. We 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 Kwagiutl 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 Platzman, “Objects of Controversy: The Native American Right To Repatriation” (1992) 41 Am. Univ. L. Rev. 517.
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.
146. Barbara Owl, a White Earth Anishnabe, cited in Ward Churchill, “Colonialism, Genocide and the Expropriation of Indigenous Spiritual Tradition in Contemporary Academia” (1991/2) 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. “Notes on Appropriation” (1990) 16 Parellelogramme 24 at 24.
151. Keeshig-Tobias, “Stop Stealing Native Stories”, supra, note 22 at A-8.
152. Keeshig-Tobias, ibid.
153. “Introduction” Indigena,Supra, note 101 at p. 17.
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 New W.H. 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.
160. Dai Skuse, Kim Kozzi, & Napoleon Brousseau, Letter to the Editor, (1989–90) 13 Parellelogramme 2.
161. Hill,“One Pan 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.
164. Hill, supra, note 126 at 20.
165. McMaster & Martin, “Introduction” supra, note 101 at 17.
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 mereexistence 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.
170. Winona La Duke,“The Culture of Hydroelectric Power,” (1991–2) 23 Borderlines 42 at 43.
171. Todd, supra, note 150 at 32.
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