Law and Cultural Appropriation

The word Cultural appropriation is originally derived from Sociologist writings of the late 20th Century (the 1990s) and is said to be first used by indigenous people of those countries who have had a history of Colonization like Canada and the United States (The Week 2019). In simple terms, it means the use of cultural expression and resources of one culture by another. However, this use is either inappropriate or unaccounted for. Further, usually, a dominant culture appropriates another dominated one and hence there is a certain power play associated with this concept (The Week 2019). The problem comes when it is found offensive by the marginalized groups and they don’t get to have a say when their culture is being appropriated by the other dominant group for fun, fashion and mostly out of ignorance, as opposed to knowledge of their culture.

Rationale

The term Cultural Appropriation has gained much attention recently. There have been many controversies associated with it. To state a few, Marks & Spencer were recently accused of cultural appropriation over a vegan biryani wrap. It was first claimed that there is nothing called veg biryani and secondly that it is not biryani and is a complete misrepresentation of the dish (The Week 2019). Further, in 2018 the fashion brand Gucci was accused of dressing up white models with turbans. The Sikh community took great offence and claimed that the turban is a symbol of faith and not a fashion accessory. This topic, therefore, warrants attention. It becomes relevant to analyze the topic to see if any recourse is available.

Objective

The author hereby seeks to firstly address the question that why is the phenomenon of cultural appropriation a wrong at all. This paper then proceeds to analyze cultural appropriation of American Indians by the US community in the light of Red skin football controversy and the cultural appropriation of the Hopi (Native Americans) community. It also talks about how various laws and law courts have failed to protect against these instances of Cultural Appropriations.

Method

The method adopted is the deductive approach, also called the top-down approach in which the works done by other authors and researchers are studied and analysed to reach a conclusion and address certain questions.

Analysis

The first question is why is it wrong at all? This is because it is usually done by a dominant group and this dominant group does not have the complete knowledge of the culture being appropriated which often leads to misrepresentation of the other culture (Riley and Carpenter 2016). Thus the dominated group feel that their culture is in a way being mocked at. It also becomes important to note that it is different from cultural exchange, as in cultural exchange the other group does not feel offended and the act is consensual (The Week 2019).

On the other hand, when it is done by the members of the dominated group it is because they want to fit into the other culture as opposed to standing out. Thus, a power-play comes into the picture. For example, many black women have reported that they cannot leave their hair open in its natural state in public places particularly if they are engaging in some formal work as it said to look “unprofessional” (The Week 2019). Thus when they straighten or colour their hair, it’s not done with a free will but because they want to fit into the main, more accepted culture.

Philip J Deloria (1998), a historian, has pointed out to the practice of “playing Indian” embedded in the American society wherein they draw upon stereotypes to mimic Indians (Faragher, 2000). The irony is they identify with the Indians on one hand as a liberated individual while on the other hand still consider them as the “savage other”. These stereotypes later also found their way into the laws and thus have formally allowed the oppression of Indians (Riley and Carpenter 2016).

Even today non-Indians have been using Indian names, imagery and symbols mostly for commercial purpose and without any Indian input (Brown 2003). Thus, the Indian tribes have been complaining of cultural appropriation. One of the NFL (American football league) team “Washington Redskins” has recently gained wide criticism for its logo and mascot (Riley and Carpenter 2016). It shows a Native American-Indian with a red face along with braids and feathers.

This is regarded as offensive and generically appropriating the Natives with this identity. Further, the term red skin is itself a racial slur (NAACP 2018) and is considered to be drawing on the stereotype of the skin colour of Native Americans and it also points towards the colonisation from where the term has emerged (Riley and Carpenter 2016). A history lecturer Darren R. Reid (2017) states that this works to reinforce an unrealistic stereotype, he says: “It is not up to non-Indians to define an idealized image of what it is to a Native American” (Reid 2017).

In 2014, the trademark trial and appeal board of the US had declared the use of name and mascot invalid and decided to cancel the trademark registration (Vargas 2014). On further appeal to the federal court in 2015, the decision of the trial court was held to be valid under the “Lanham act” in the case of Pro football Inc. v. Amanda Blackhorse (2015). Section 2 of this act does not permit trademarks which “may disparage” persons living or dead to be registered (Vargas 2014). The court drew on the dictionary, literary and individual evidence to conclude that this may disparage a substantial number of Native Americans. But the supreme court of the US in 2017 in another case had held that this practice would be an “unconstitutional infringement of freedom of speech.” This has thus negated the effect of the “Lanham Act” (Riley and Carpenter 2016).

A Native American tribe called the Hopi had tried to regain their cultural identity (the “Katsinam”) back but failed. “katsinam” is a mask which to the Hopi people is considered as sacred visages, living beings which belong to the clan and are even fed and cared for like the members of the family (Riley and Carpenter 2016). It holds great significance in their religious dance (Glasker 2005). They were taken away from them decades ago and in 2013, they were put up for auction in Paris at the Parisian auction house (Samantha 2015).

Had they been auctioned in the US and been under the control of a federal agency, they would be protected under the Native American Graves Protection and Repatriation Act since they are sacred objects which are used in traditional tribal culture under § 3001 and §3005 of the act (Riley and Carpenter 2016). But since the auctions took place in France, the French court did not recognise this and considered it to be a valid and legitimate auction. It said, “the claim that Hopi cultural patrimony is exclusively their property has no legal basis according to French law.”

Further even international laws, like the UNDRIP (United Nations Declarations on the Rights of Indigenous people), could not protect the cultural rights of these people. Article 40 of the act recognises the right of indigenous people for “access to and prompt decision” in case of a conflict with “states or other parties” and provides for effective remedies by giving “due consideration to the customs, traditions, rules and legal systems of the indigenous peoples concerned” and also to “international human rights” (Samantha 2015). But the flaw here is that this convention is not binding on the member states and is hence not enforceable in the French courts, thus once again failing to protect the cultural rights of their community from being appropriated (Samantha 2015).

Conclusion

It can be observed that the phenomenon of Cultural Appropriation is broad ranging from tangible properties like traditional objects to intangible things like trademarks but the law isn’t sufficient to address these problems. Even if there are laws present they are not applied to protect against this phenomenon due to the technicality of its application (Hopi example). The irony of the French government was that they had actively supported the UNDRIP law when it was passed by the general assembly but when it came to its implementation to protect the cultural objects of another nation, they miserably failed to do so.

This phenomenon is also justified mainly based on free speech with the help of trademark, patent and copyright laws, however, the author submit that this appropriation hinders the process of self-determination of tribes who have had a long history of conquest and colonisation (Red-skin controversy). It is even said that the “positive” stereotypes are meant to honour the native tribes as was argued by the Washington redskins, but this would be forcing one’s idea of what is an honour to those people who find it offensive.

Although the law is gradually recognising the rights of these people and positive changes are being made but the law can and must do better.

References

  • Nikic, Samantha K. 2015. “Liberte, Egalite, Fraternite: The United Nations Declaration Of The Rights Of Indigenous Peoples Fails To Protect Hopi Katsinam From The Auction Block In France.” Brooklyn Journal of International Law 41(1):407. Retrieved March 8, 2019 (https://heinonline.org/HOL/P?h=hein.journals/bjil41&i=415).
  • R. Riley, Angela, and Kristen A. carpenter. 2016. “Owning Red: A Theory of Indian (Cultural) Appropriation.” Texas Law Review. Retrieved March 5, 2019 (https://texaslawreview.org/owning_red/).

Sanya Zehra Rizvi from The West Bengal National University of Juridical Sciences, Kolkata

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