So now this remarkable personage can rest in peace? Nope, not yet. His three surviving sons are suing the town of Jim Thorpe under the Native American Graves Protection and Repatriation Act (NAGPRA, 25 U.S.C. 3001 et seq.), to have Jim Thorpe’s remains returned to Oklahoma for burial in the family plot near his birthplace (which has a historic marker now). Different facets of the controversy have been presented in the Wall Street Journal and the New York Times.

NAGPRA is a handy legal lever here, but is it really the right tool for the job? In the last half-century, federal statutes that bolster tribal sovereignty and Native cultural identity have seemed especially vulnerable to being crushed – or at least noticeably flattened – under the wheels of justice. One plaintiff tries to push the law just a little too far, and the court severely narrows the scope of the law or strikes it down altogether.

Under NAGPRA, “if . . . the cultural affiliation of Native American human remains. . . with a particular Indian tribe. . . is established, then the. . . museum, upon the request of a known lineal descendant of the Native American. . . shall expeditiously return such remains.” 25 U.S.C. 3005. Establishing Jim Thorpe’s cultural affiliation is not arduous. Even though he reportedly had no birth certificate, Kennewick Man he ain’t. His dad was half-Sauk, his mom half-Potawatomi. “Museum,” for NAGPRA purposes, “any institution or State or local government agency that receives Federal funds and has possession of, or control over, Native American cultural items.” A local government agency in Jim Thorpe, PA maintains the current Thorpe grave, and the town appears to receive federal funds for, among other things, a “Reading is Fundamental” program and a HUD Community Development Block Grant. Jack Thorpe, Jim Thorpe’s son (a lineal descendant of the least ambiguous kind) has requested the return of the remains. So, the turn-the-crank analysis shows Jim Thorpe as a pretty good candidate for repatriation at the town’s expense under NAGPRA as written.

Add the policy shading and the picture changes somewhat. NAGPRA was enacted in 1990 to curtail the historically prevalent treatment of Native remains and burial goods as curiosities, souvenirs, or debris. Although mainstream America had moved past most of the overt racism – 19th-century scientists’ proposals that Native skull dimensions signify inferior intellect, for example – there was still a sizable empathy gap due to different cultural perspectives. The excavation of European settlers’ bodies in Jamestown raised no hue and cry from their descendants; the public reaction was more akin to loitering at the edge of the hole going “Awww, cool!” The remains of famous non-Native outlaws were frequently featured in Old West traveling sideshows. In parts of the West Indies and the southern US, human remains were used in rituals derived from the Congolese Palo Mayombe tradition. However, treating one’s own ancestors’ remains nearly as badly really wasn’t an excuse.

Has there been that kind of disrespect, though, in the case of Jim Thorpe? Although the NY Times smirkingly calls the PA monument a “nifty roadside attraction,” Jim’s body is hardly on display for a nickel a peek. His granite mausoleum in an apparently well-kept, dedicated park is perfectly dignified, and even stands on soil brought in from his Oklahoma birthplace and from the stadium in Stockholm where he won his Olympic medals. His widow consented to the burial. OK, she was his third wife and none of the kids were hers, but his daughters also reportedly approved; because of this, the sons waited until all of them passed away before bringing the lawsuit.

The whole dispute, at least as reported in the press, seems much more like a family issue than a cultural issue. Disagreements about where people should be buried are extremely common when the deceased was married more than once – but only Natives can bring NAGPRA into play. From the tone of the reports, the parties are likely to settle; Jack bears the town no grudge, and the town’s increased tourist revenue is, by its own admission, virtually unrelated to the location of the actual grave. Like any law intended to redress generations of disfavored behavior in a few short years (can you say “school desegregation”?) NAGPRA is a big administrative hassle – but in the cases it was designed for, it’s there for good reasons. Let’s not stretch it till it breaks just yet, OK?

These authors are probably right. Piracy is largely an organized crime; pirate chieftains like Blackbeard, Jean Lafitte, Grace O’Malley, and Madame Chiang commanded sizable fleets. Organizations have to have rules if they want to grow and achieve.

Don’t get me wrong; pirates were (and still are) “not very nice persons at all.” They stole ships and their cargo for personal gain, took prisoners for ransom or slave-price (or addition to the crew if sufficiently useful), and killed anyone who got in their way. Not like, for instance, national navies and letters of marque, which confiscated suspected enemy ships and their cargo as prizes shared by the crew, took prisoners for exchange or impressment into service, killed anyone who got in their way, and were sanctioned by governments and mostly financed by taxes.

My point -and I do have one – is that 17th- 18th-century pirate codes reveal a professional culture exhibiting much more democracy, safeguards for dispute resolution, and merit incentives at all levels than could be found in most governments of their age, and far more than can be found in most legitimate business ventures of our own time. They could certainly be a model for contractual relationships among salvagers and others who, albeit within the local law, profit from things that they find (rather than make or buy).

Although pirates and indigenous tribes are cultures as different as night and day, they share one thing (apart from certain individuals identified with both groups during their lives) – a tendency to be either romanticized or demonized by people who don’t really understand how they live. Because they run around in comfortable clothes all the time and are not subject to the same laws and strictures that the outside viewer is, the outside viewer assumes they have no laws or strictures at all and turns them into symbols – either of untrammeled individual freedom or unrestrained savagery. In either case, nothing could be further from the truth.

Pirates had the original “motley crews” (although most of them had never seen an umlaut). Although the trade itself sometimes ran in families, their travels necessitated parleys, alliances, and mergers with individuals and groups of many ethnic and national backgrounds. Besides, the “model” pirate crew numbered 80 to 120, and crews of 200 or more were not uncommon. They realized, long before Ben Franklin did, that they must “hang together or all hang separately.” Lacking the inborn ties of blood and birthplace common to land-based criminal organizations, they needed another way to ensure loyalty and high performance.

Furthermore, the most successful pirate chieftains, apparently unlike their modern corporate counterparts, knew that good officers weren’t enough to make a ship profitable. Disaster at sea, inside or outside of a conflict situation, comes in many forms; a navigator, sailor, lookout, gunner, boarder, quartermaster, or powder-monkey could, at any given moment, find himself (or, more often that is generally credited, herself) the only one standing between a ship and its destruction.

Anyone who’s seen a movie with “mutiny” in its title will understand that there aren’t many worse situations than being stuck on a tiny floating object in a huge and treacherous ocean, wholly subject to the unpredictable whims of a pathological nutcase who happens to be in charge. Crown and Company ships were autocracies; dissent, however sensibly based and politely proposed, could be punished by imprisonment, flogging, or death. Many experienced sailors who joined pirate crews were fleeing just such situations and didn’t want to see them again. Pirate codes (which differed between organizations and even between individual ships) therefore incorporated checks and balances to avoid vesting too much power in any one person. One common measure was to have captains elected by the crew, and removable by it – without the risks and damaes of mutiny – for good cause, such as predation (on the crew, that is; predation on target ships was to be expected), cowardice, or poor judgment. Another was to give the captain control only in battle operations, and vest between-conflict control in the also-elected quartermaster (not unlike the “war chief / peace chief” dichotomy in some of the Plains Indian nations). Contemporaneous chronicler Charles Johnson called the typical pirate quartermaster “an humble Imitation of the Roman Tribune of the People; he speaks for, and looks after the Interest of the Crew.”* Nor did pirate captains generally draw much larger shares of the plunder, or enjoy much more private space, better provisions, or other privileges than the rest of the crew.

Quartermasters were, in their turn, reined in by Articles of Agreement or chasses-partie - mini-constitutions that were adopted by unanimous consent of the crew before an expedition began. Besides detailing the division of spoils, the Articles often imposed universal duties such as care of weapons, prohibited on-board fighting and fight-provoking behaviors such as gambling, set forth punishments for transgressions such as fraud or desertion, and defines compensation to be paid to anyone wounded in action. Those unwilling to live with the terms were usually free to leave at the first reasonable opportunity. Pirates who transferred between ships or joined fleets often compared different ships’ Articles, and a body of knowledge evolved about what worked and what did not. These bodies of knowledge sometimes developed into regional bodies of piratical customary law, such as the Caribbean “Jamaica Discipline.”

Fascinated by “outlaws’ laws,” but hate blood and bad smells? To learn more from a safe distance, you can read Colin Woodard’s “The Republic of Pirates” or listen to an NPArrr interview with him.

*Charles Johnson, A General History of the Pyrates: From Their First Rise and Settlement in the Islands . . . to which is Added a Short Abstract of Statute and Civil Law, in Relation to Pyracy. (2 vols., 1726-1728 [1999]).

An elder of the Wisconsin Oneida nation, part of the Haudenosaunee, once told me that every traditional Haudenosaunee prayer is a prayer of gratitude. That’s impressive. Would you rather be in charge of people who say “Thank you” all the time, or people who say “Gimme”?

On this Fourth of July, I feel it’s appropriate to say thank you to the Haudenosaunee for providing a model of federalism for the Founding Fathers – an example of how separate sovereignties (like the newly independent colonies) could function as a nation without losing their separate identities and all of their autonomy.

Many American political and legal figures talk a lot today about returning to the Founding Fathers’ priorities and values. Their opponents often point out that many of the Founding Fathers owned slaves, but nobody seems to say much about the treatment of the Native nations at that time.

Until shortly after the War of 1812, the Founding Fathers largely treated the Native nations as just that – separate nations with a right to be on the land they’d occupied for thousands of years. That’s why they made treaties, which are, by definition, agreements between sovereign nations.** When the American colonists were few and relatively weak, threatened by the much larger and better-equipped English army, they desperately needed Native allies for military aid, so they behaved very diplomatically indeed.

The Iroquois Confederacy (Mohawk, Oneida, Onondaga, Cayuga, and Seneca, joined by the Tuscarora in 1772) are believed by some scholars to have the oldest living participatory democracy in the world. Their traditional Constitution, the “Great Binding Law,” a beautiful piece of literature in its own right (as also were the Brehon Laws of Celtic Ireland – imagine laws written so people would WANT to hear and remember them!), can be read at http://www.indigenouspeople.net/iroqcon.htm.

While the colonial leaders were debating making a break for independence, the Continental Congress invited the leaders of the Six Nations to its meeting hall for an alliance ceremony, where the colonial delegates pledged their friendship “as long as the sun shines and water runs.” They asked that the colonies and the Six Nations act “as one people, and have but one heart.”***

Although everyone’s “Plan A” was for the Haudenosaunee and other Native nations to remain neutral during the Revolutionary War, America’s Revolutionary War eventually became the Haudenosaunee’s Civil War. Mohawk war leader Joseph Brant convinced factions from four of the Six Nations to support the British because the Crown’s Proclamation of 1763 prohibited further colonial settlements in the Native-occupied lands west of the Appalachians. The prohibition was intended to be temporary, and was motivated more by a desire to assert Crown control than by sympathy for the Natives, but it seemed like the best deal going at the time. The Oneida and Tuscarora refused to fight for the British and were eventually recruited to the American side, contributing not only warriors (some of whom fought British-backed Haudenosaunee at the Battle of Oriskany), but quartermasters as well; for example, the Oneidas who supplied Washington’s Valley Forge winter camp with grain.**** Since hitting enemy supply lines is a common war tactic, these quartermasters – many of them women – were definitely in harm’s way.

After the war, Brant and many of his followers accepted the Crown’s reward of a sizable land grant in Canada and got the heck out of Dodge. Washington had pursued a scorched-earth policy toward their settlements during the war, (despite repeated Oneida pleas to spare the villages of other Haudenosaunee nations) and things didn’t promise to get better afterward. This was the first major geographical fragmentation of the Haudenosaunee; wherever they went, they preserved their system of government and Great Binding Law.

The theory that the American Constitution and federalist structure were based on elements of the Haudenosaunee system is called the “Influence Thesis” in academic circles. It goes like this:

1. The union of states in the Articles of Confederacy and the Constitution bears a much closer resemblance to the Haudenosaunee system than to any European government that existed at that time.
2. Some of the language is too similar for mere coincidence to earlier Haudenosaunee historical documents. For instance, John Rutledge, head of the Constitutional Convention’s Committee of Detail, once opened a meeting with a quote attributed to a Haudenosaunee chief, circa 1520, which began, “We, the people, to form a union, to establish peace, equity and order . . .
3. Besides Rutledge, Benjamin Franklin, John Adams, and Thomas Jefferson, among other participants in the Constitutional convention, have been reported as contemporaneously expressing admiration for the Haudenosaunee system. Franklin’s most famous relevant comment, “It would be a very strange Thing, if six Nations of ignorant Savages should be capable of forming a Scheme for such an Union . . . and yet that a like Union should be impracticable for ten or a Dozen English Colonies,” doesn’t sound very respectful on its face, but some historians have interpreted it as a tactic for “shaming” the delegates into cooperating.
4. Some of the European philosophers whose work inarguably influenced the Convention – Locke, Hobbes, More, and Rousseau – were aware of the Haudenosaunee system and apparently admired it.
5. Some of the symbols on U.S. flags and seals, such as the Tree of Liberty and the bundle of arrows, are traceable to Haudenosaunee symbols of peace and of strength through unity.

However, there’s no big smoking gun (or peace-pipe) left lying around. The Constitution doesn’t have a note at the bottom that says “Portions copied with permission from the Haudenosaunee archives.” This opens the door to opponents who say any notion of Haudenosaunee influence on the Founding Fathers is so much revisionist hogwash.

At least part of the problem is something that happened 100 years later: Marx and Engels also wrote favorably about Haudenosaunee government. We don’t want to approve of the same things of which Communists approve, do we? One can tell that’s part of the problem because one of the most vocal opponents of the Influence Thesis, Dinesh D’Souza, calls the thesis “neo-Marxist ideology.” If you can see anything about communal property or dialectical materialism in the support for the influence thesis, please point it out, because I can’t find any.

Whatever one’s opinions of individual opponents of the thesis, who include Pat Buchanan, Robert Bork, and Rush Limbaugh , it’s true that Jefferson and others are also recorded as frequently exhorting all Natives to put aside their traditions and embrace the stay-put, one-family-one-farm mainstream-European pattern of land use – which tends to contraindicate any suggestion that he viewed Natives as any kind of role model. And some of the same incidental facts can work either for or against the thesis. For instance, images of Indians were used as symbols of individual freedom in broadsheets and other ephemeral mainstream literature of the time; some scholars even postulate that this symbolism was what drove the Boston Tea Party participants to dress as Indians (as opposed to the hope that the English would blame the property damage on actual Indians). In support of the thesis, one may argue that this meant admiration of Native culture was widespread. In opposition, one may argue that this meant few non-Natives had any clues about the complex and often very strict social structures in which Natives generally lived, and therefore knowledge of the Haudenosaunee government was probably not common among them either.

And nobody ever went broke overestimating the ignorance of mainstream Americans about cultures not their own. . . Still, the evidence does tend to pile up in favor of the Haudenosaunee system being AN influence on the constitution, whether or not it was the ONLY influence. So here’s to the “eminence grease” that eases the squeaky wheels of political evolution. Have a happy 4th!

_____________________

*”Iroquois” is a Frenchification of either the Haudenosaunee catch-phrase “I speak the truth” or of the neighboring Huron pejorative epithet “snake,” depending on whom you ask.

**The unfair nature of some of the early land deals was largely due to misunderstanding of what was, in fact, being sold. Most Native legal systems had no equivalent of the English-style “fee simple title” (exclusive and total ownership of land in perpetuity); their land-use entitlements were more similar to easements and licenses – sometimes nonexclusive use, sometimes use for a limited time or of a limited type).

***”Proceedings . . . with the Six Nations, 1775,” Papers of the Continental Congress, 1774-89, National Archives (M247, Roll 144, Item No. 134).

****Cara Richards, The Oneida People, (Phoenix: Indian Tribal Series, 1974), pp. 53-54.

The cross can be seen from freeways, public beaches, and other vantage points all over the city. Viewed out of context (as it is by any uninformed observer farther away then the parking lot), it may be a reminder of the role of Spanish missions in California history, or it may seem to announce “This is Christian territory” – reassuring to Christians, maybe not-so-much to others. Even in the context of the memorial function, it may compare any soldier’s death in the service of his or her country to Jesus Christ’s ultimate sacrifice of his life so that others could live, or it may look like “This is a memorial to Christian veterans; other veterans should go get their own.” Some atheists (some of whom were veterans, despite Fr. William Thomas Cummings’ 1942 contention that “there are no atheists in foxholes”) took exception to having their tax dollars support what they saw as a religious advertisement, and filed suit in 1989 to compel the city to either remove it or render the land on which it stood “non-public.” And many years of litigation ensued (sic).

The American Legion and Christian legal groups are launching an initiative to protect crosses on public war memorials from “secular attacks.” (You know a religious-freedom law is working when it can make even the most dominant, powerful religion in the land feel persecuted. : )) On the other hand, many of our country’s historic properties have religious connections – those of the people who made the history in the first place. What happens to the San Diego cross may affect what happens to other publicly-owned historic sites and artifacts.

Must government-supported historic preservation be confined to strictly secular subject matter? Let’s think about this. And for a change, let’s try to describe the existing law accurately.

Art. I, sec. 4 of the California state constitution guarantees free exercise of religion with “no preference or discrimination” and prohibits the establishment of a state religion. Courts have read this “No Preference Clause” broadly to prohibit even the appearance of preference for any particular religion. Furthermore, art. XVI, sec. 5 prohibits the state or any of its subdivisions (such as a city) from aiding or supporting any religious purpose or any institution controlled by a religious group. A few narrow exceptions may exist in art. 16, sec. 3 for institutions aiding the sick, the blind, and orphaned or abandoned children. This provision has also been read broadly; even short of financial support, governmental organizations in California may not "lend their prestige or power" to promote any religious sect.

Given that background, here is a timeline of legal decisions about the Mt. Soledad Cross:
1954: Private veterans’ group Mt. Soledad Memorial Association (MSMA), builds the present cross on city land with city’s permission. Construction funded privately; maintenance funding is mixed private and public. MSMA holds services there on Easter and Memorial Day by city permit; members of the public use it for the occasional wedding or baptism.

1991-93: Murphy v. Bilbray City ownership of land under cross violates CA constitution’s No-Preference Clause; if it is a war memorial, it is a sectarian war memorial appearing to honor only Christian veterans. Court order: Remove cross or sell land.

In response, the City sold a 222-square-foot “cutout” of land under the cross to MSMA, which expressed intent to keep the cross. The sale was approved by the voters as Proposition F, the “Save the Cross” proposition. The sale was negotiated and for fair-market value, but no other bids were sought.

1997: Murphy v. Bilbray Nature and process of land sale (tiny cutout, single Christian bidder) shows City preference for keeping the cross and is unconstitutional. Continued City ownership of surrounding land makes it appear to most visitors that the City still owns the cross.

The City then sold 1/2 acre around the cross in an open-bidding process. MSMA bid highest ($106,000) and was given title.

1998: Paulson brings motion to enforce injunction, complaining that sale is still unconstitutional because the City structured the bidding process to favor preservation of the cross and retained discretion to reject or accept any bid for any reason. The District Court decided this sale constitutional because of the larger area, open bidding, and MSMA’s plans to put up signs describing the land as private property.

2001: Paulson v. City of San Diego; Paulson appealed this decision to the 9th Circuit. The court held that the California constitution was no more restrictive than the Federal constitution on establishment of religion and applied the same test routinely used in similar cases under the federal constitution. The court found that the sale had a secular purpose – ending an unconstitutional government endorsement of religion by privatizing the land around the cross. The open bids were structured to neither prefer nor inhibit religion, and the state had no relationship with a religious organization except for the short amount of time and effort involved in consummating the sale. The extra boundary markers and signage planned by MSMA would prevent a reasonable person from perceiving that the cross still belonged to the city.

2002: The 9th Circuit granted Paulson’s petition to rehear his case en banc. The court held that the sale was unconstitutional: The request for bids stated that the land would be a war memorial that need not include the cross, but the cross was part of the sale, making it cheaper for organizations who wanted to keep the cross than for organizations who would have to spend extra money to replace it with a different kind of war memorial. Four judges dissented, stating agreement with the rationale of the original decision that the sale had been impartial enough to satisfy the state constitution.

2004: On remand, the District Court voided the sale, so the cross belonged to the city again. San Diego floated Proposition K, to sell the land and lease it back to MSMA, but the voters rejected it. Congress declared that if San Diego donated the Mt. Soledad site to the federal government, the site would be designated a national war memorial under federal control.

2005: The San Diego City Council adopted a resolution not to donate the site, but a citizens’ petition convinced the council to rescind it. Later, City voters passed Prop. A, mandating the donation to the federal government. The District Court invalidated Prop. A as unconstitutional for faulty city-council procedure in the face of uncertainties about who owned the land when the proposition was placed on the ballot whether the federal government (which had been decommissioning parks left and right) would maintain the site as parkland after acquiring it.

2006: District Court order in May: Remove the cross in 90 days or begin paying a $5,000-a-day penalty. In July, the Supreme Court ordered a stay . Three weeks later, Congress and the President seized the entire parkland by eminent domain, to be maintained by MSMA . The Feds would negotiate compensation, as they always must, but the City had no choice – and therefore could not be accused of any impropriety in the transfer; when one is forced, the question of whether or not one ends up enjoying it is immaterial. In November, the 9th Circuit heard the appeal anyway, ruling that it wasn’t moot because the transfer was not yet complete and the public controversy continued. The court ruled that the city’s choice to donate the land to the federal government was constitutional under the broad powers of governments to acquire and dispose of property. Requiring the city to remove the cross first would be an unconstitutional restraint on religion. Measure A was constitutional because the proposition was a neutral delegation of the decision to the democratic process, and open public debate on that decision had been going on for many years. Religious services held at the site were allowed by the City, not sponsored by it.

2007: The City’s latest appeal was declared moot because, after Congress passed the act taking the land, the City no longer had an interest. This does not mean there is no more controversy over whether crosses may dominate government-owned war memorials; it just means plaintiffs (who, the courts have acknowledged , have nothing against honoring veterans as some reports have suggested) will have to take on the federal government and prove violation of the federal First Amendment if they want to take this further.

If the cross is taken down, the site will still have plenty of other war-memorial content; the MSMA has installed many memorial stones with names and photos of individual veterans. Nor would taking down the Mt. Soledad cross mean that all the religious insignia on gravestones at military cemeteries must be eradicated, as some scare stories have suggested; even the much-maligned ACLU agrees that there’s a big difference between acknowledging the faiths of individual veterans, whatever those faiths may be, and the appearance that the government is operating “Christians-only” war memorials.

Many non-Christians feel that in a country that embraces religious freedom, they should not have to pretend to be Christian, in life or in death. Nothing necessarily against Christians; it’s just not what they are. Many particularly want to be identified with their actual beliefs if they die in the country’s service. The Department of Veterans’ Affairs is responding, though not always without resistance; it recently added the Wiccan pentacle to 38 other symbols that can be carved on headstones in military burial grounds such as Arlington National Cemetery. (Even though the DVA already offered Eckankar, Soka Gakkai, atheist, and humanist symbols, the Wiccans had an uphill ten-year battle). Veterans of future wars can thus expect to have their beliefs individually acknowledged.

So now (whew – finally!) let’s talk about historic property, and whether and when religious content can or should be edited out. beginning in 1923 , California has painted itself into a historic-preservation corner by denying all tangible or intangible support to historic properties with religious connections, such as the California missions. Religion drove a lot of California (and U.S.) history, and if we gloss that over, our understanding of history will be impaired.

True, the religions that produced the historical properties can maintain them, and many do. The disadvantage of this is that since they take financial responsibility, they are rightfully entitled to tell visitors only their side of the story. Although “history is written by winners,” exclusively one-sided histories are also obstacles to understanding. If a religiously neutral government operated a religiously-connected site, it could facilitate the presentation of multiple points of view, such as those of Native organizations that take exception to the notion that missionaries’ acts were 100% beneficial to their ancestors.

Compared to the old missions, the Mt. Soledad cross, though beloved by many locals, is not much of a historical heavy hitter (yet; ironically, the protracted conflict over it may end up enhancing its historical importance far beyond what it would have been if left alone). The 2006 9th Circuit opinion summarized the history of the Mt. Soledad site:

1913: Private citizens build a redwood cross on a 170-acre plot of city-owned land.
1916: City dedicates the land as parkland.
1923: Cross destroyed by vandals (apparently there actually were vandals in the “good old days” too)
1934: “Someone” builds a wood-and-stucco cross to replace it.
1952: Cross destroyed by windstorm (legally an “act of God”).
1954: City formally permits MSMA to build and maintain the present Latin cross as a war memorial.
The court left out the cross burned by the KKK on Mt. Soledad in 1923 after an African-American family moved into La Jolla, but it probably wasn’t up for very long. Also, it was 1989, after the first lawsuit commenced, when MSMA posted the first marker at the site identifying the cross as a war memorial; before that, it was commonly known to the public as an “Easter cross” that happened to host twice-yearly ceremonies honoring veterans.

If the strictures on public support for historical property “touched by religion” are rolled back,* there should be enforced standards for historical importance, relevance to history of the religious content, and the potential negative effects of an appearance of governmental religious preference. That last criterion probably needs some elaboration: People are most likely to worry about governmental religious bias if places they have to go to deal with the government – courthouses, city halls, police stations and vehicles, other government offices – are plastered with symbols of someone else’s religion. In those cases, they may well wonder if someone of a different faith can expect fairness from those working inside the buildings. If the symbols are in parks, or historic sites far outside city centers where religion is a pivotal part of the story – maybe not-so-much.

Link for the photo above is http://www.flickr.com/photos/23pixels/216654859/in/photostream/.

* There are those who believe the government should increase support for Christian symbols wherever they appear because the Founding Fathers were Christian. Some of the same people, however, vigorously oppose government support for functions traditionally identified with Christianity, such as care of the poor and sick. My understanding of this viewpoint does not seem to get better if I pick at it; maybe someone will come along who can explain this to my satisfaction.

1. Some images are traditionally classified “eyes only” for certain individuals or subgroups under certain circumstances.
2. The right to display some images traditionally had to be earned rather than bought.
3. Outsiders displaying the images often do not know or care about their meanings or the traditional rules for how they are to be displayed.
4. Some images are traditionally not intended for fixation in some types of media, or for any type of permanent fixation at all.
5. Even if none of the above objections apply and the image may be embodied in a commodity and sold, people who believe they should be entitled to a share of the proceeds aren’t getting any.

Many people from today’s dominant cultures find it difficult to identify with these issues. After all, most of the “big” religions tolerate, or even approve of, use of their symbols on items for sale to anyone, as long as it’s done respectfully. Members of these religions who see their symbol (for instance, a cross, a star of David, a Buddha, a MashaAllah) on a piece of jewelry, a bumper sticker, or a home decoration think “Oh, good – there’s another one of us.” Religions that encourage outsiders to convert appreciate the advertising, and even those that don’t encourage conversion may approve of the public acknowledgement. However, even they would disapprove of disrespectful use of their symbols – for example, on underwear (Mormon temple undergarments aside) or on toilet-cleaning brushes. On the cultural side, one U.S. example is everyone wearing green and sporting shamrocks – basically, pretending to be Irish – on St. Patrick’s Day, regardless of their actual ancestry. The Irish-Americans, who as a group are now throughly accepted in mainstream U.S. society after a long struggle to amass the mutually-reinforcing resources of wealth and political power, don’t mind this a bit; why shouldn’t the “less fortunate” experience how great it is to be Irish-American for one day a year? However, 120 years or so ago, when American bars and restaurants still routinely posted “No dogs or Irish” signs, Irish-Americans, relegated to the dirty, dangerous jobs no one else wanted (such as coal mining, railroad construction, and police work) might not have cast such a benevolent eye on a bunch of rich WASP posers singing “Too-ra-loo-ra-loo-ra” and sloshing green-dyed beer all over their “Kiss Me, I’m Irish” buttons on St. Paddy’s day. (But, of course, back then, it didn’t happen; even the Irish didn’t really want to be Irish back then).

Just as few people actually wake up in the morning thinking “Who can I oppress today?”, most buyers (and even some makers and vendors) of appropriated symbols are not thinking “Now to steal these folks’ culture, since they don’t have much else! Bwa-ha-ha-haaaa!” They’re thinking, “Wow, this thing looks cool. I’d like to have one, and I bet other people would think it was cool too.” (By this, I don’t mean to excuse appropriation of other cultures’ symbols, but only to offer insight into a common attitude among those who do so).

I happen to know firsthand whereof I speak. When I was seven years old, I became aesthetically infatuated with the star of David because I liked things that changed character depending on how you looked at them (“It’s a star, or it’s two big interlocked triangles, or it’s a hexagon surrounded by six little triangles. Wow! Cool”). My reflex was to make something that incorporated it. (I still have this reflex toward arrangements of shapes and lines I like, but now I think carefully before acting on it). I knew how to sew and embroider, so I made a simple crewelwork antimacassar, with the component shapes in different colors of yarn so you could look at them separately if you wanted, and draped it on our living-room rocker to surprise my (VERY Catholic) parents. Oh, they were surprised, all right! They acted awkward for a minute or two, then told me to give it to our Jewish next-door neighbors. My feelings were slightly hurt at the time by my parents’ apparent rejection of my handiwork for then-mysterious reasons, but now I realize they were pretty diplomatic about it, considering.

And, after all, we all DO know about certain symbols we’re not allowed to copy onto just anything – they’re called trademarks. In fact, artists from some of the same minority cultures that now complain about their symbols being appropriated have, from time to time, created works that, technically, infringed trademarks. They didn’t know they weren’t supposed to use those symbols; they probably couldn’t have found out easily, since even the missionary schools didn’t include intellectual-property law in their curricula; and, wow, some of those symbols looked cool. A great example (because it has a happy ending) is described in Gladys Reichard’s book, Weaving a Navajo Blanket. Back when the Dineh (Navajo) were much more isolated from the outside world than they are today, their weavers, like artists everywhere, scoured their environment for fresh inspiration. Labels on things being sold at the trading post, where the weavers went to sell their work, often provided new ideas. Once, one of the most prominent weavers told the manager of her local trading post that she was working on an exciting new project, but it was a secret. He looked forward to its completion because he always got good prices for her work. Months later, it was revealed: a large, beautifully made. . . faithful rendition of the Ivory Soap label! The weaver was very proud, but the trading-post manager despaired of ever selling it to the tourists and gallery owners who bought most of the local weaving he carried. Proctor & Gamble, the company that made Ivory Soap, found out about it, and – to its everlasting credit – did not file a trademark-infringement action against her, but bought the work for display in its corporate office.

So, you may ask, why don’t these cultures just trademark all the symbols they don’t want people copying? This would work in a few circumstances, but not many. First, the “owners” of the symbol would need to use it, or intend to use it, “in commerce.” Next, the symbol couldn’t be a “functional” part of the product. A religious medal would pass muster because, as a product, it’s a pendant necklace, and could still be one without the symbol on it. Sets of prayer beads might not, because the design is so bound up with the finished object’s purpose. The biggest obstacle, though will arise if the symbol has already been commodified and sold by outsiders (in some countries, if the outsiders registered the symbol as a trademark, and in other countries, including the U.S., even if they didn’t).

Here’s a hypothetical example based on a real situation. The real part: Wal-Mart wants to trademark the “smiley face” in the U.S., but London-based SmileyWorld, which holds a trademark on the smiley in more than 80 other countries, and whose honcho says he ivented it in 1968, opposes it. The Los Angeles County Museum of Art, has a 17th-century Tibetan phurpa (sometimes spelled “purba” or “phurba”) decorated, I kid you not, with a bunch of tiny SMILEY FACES!* (While looking for these links, I also discovered that the Martian crater Galle has looked like a smiley face for who-knows-how-long). Despite their long use of the symbol, the Tibetans (or, for that matter, the Martians) would find themselves unable to use the smiley as a trademark in any of SmileyWorld’s countries and would be vigorously opposed by both SmileyWorld and WalMart in the U.S.

Trademarks, with all their limitations for this purpose, are still better suited for protection of religious and cultural symbols than the other two IP rights applicable to symbols, design patents and copyrights. Patents require novelty and copyrights require originality, and both rights are awarded to the creator of the design. The symbols we’re discussing here are traditional; if anyone remembers who created them, that person is probably not still alive.

No existing IP right can keep symbols from being commodified, or seen, or fixed in a permanent medium, if they’re not supposed to be. Under conventional property law, even people who buy original “eyes-only-classified” religious or cultural artifacts from thieves may be protected as “bona fide purchasers” if they had no reason to know the thief was not authorized to convey the artifacts. Relatively new sui generis cultural-property laws, such as the U.S. Native American Graves Protection and Repatriation Act (NAGPRA) are often the only way to achieve the return of these artifacts. For example, under NAGPRA, museums and collectors were compelled to return Zuni Ahayu:da statues to the pueblo’s priests. These statues of the Zuni twin war gods are traditionally kept in protected limited-access shrines to rein in the gods’ destructive powers; traditional Zunis believe that the thieves’ removal of the statutes from the shrines caused specific disasters and a general spiritual imbalance. Where laws like NAGPRA do not apply, only good security practices by the custodians, or respect for the custodians’ customary rules by outsiders (such as the museums that allow Tibetan monks to destroy their traditionally-temporary sand paintings** after making them for public view) can prevent exposure problems with symbols of this class.

*I’m so profoundly delighted by the Tibetan smiley phurpa that I’ve asked permission to reproduce the photo on this site. Someone told me that the “smileys” are actually meant to be skulls, but skulls degenerate to smileys when you try to make them very small (this probably says something profound about the human subconscious). Skulls are a fairly common element of Tibetan ritual art, so this explanation is plausible.

** The Dineh (Navajo) are another culture famed for their temporary ceremonial sand paintings. Dr. Lori Alvord’s autobiography, The Scalpel and the Silver Bear, contains an account of how an old photograph of a nearly-forgotten Dineh sand painting identified the deer mouse as the vector for hantavirus in the early 1990s. Hantavirus had broken out periodically in Navajoland before, on widely separated occasions when particular atypical weather patterns caused a deer-mouse population explosion that drove the mice (and the viruses they hosted) into the human habitations they normally avoided. The earlier outbreaks, however, had not come to national attention because they were confined to areas that were then extrmely isolated. This photograph saved considerable Center for Disease Control resources and probably many lives, whether or not it was authorized when originally taken.

1. Go someplace that has flora or fauna with unusual or unknown characteristics.  In a lot of these places, the people who live there are poor.  Possibly, given more money, the locals would have already paved over the flora, killed off the fauna, and built modern roads, houses, and stores.  At least, when I visited the Peruvian Amazon a few years ago, that’s what a couple of the local folks I met said they’d prefer to do.
2.  Ask local healers which plants or animal parts are medicinal, and for what, and exactly how to prepare them and how they work. 
3. Go home with the collected knowledge and materials and lab-tweak them into a mass-producible, marketable, globally shippable product.
4. Patent it and make a lot of money.
5. Never pay the so-helpful locals one thin dime.

Some have argued that this business model is just fine.  After all, the visitors end up spending a huge (and readily calculable) sum of money to develop their products, and have to subsidize the projects that don’t pan out.  The money equivalent of the locals’ prior work is nearly impossible to quantify, and the normal human reaction is to ignore what one doesn’t understand.  At least one American legal scholar even proposes that, not only should the materials be fair game as the “common heritage of mankind,” but traditional knowledge should not be protected or compensated because it is “already in a public domain of sorts, albeit perhaps a very small” local one; all this flap about biopiracy is just poor people being greedy.  (Oh – and he proposes in the same paper that people who aren’t skinny are “obscene” and could easily become properly skinny if they weren’t simply lazy and lacking in willpower).

A counterargument goes like this: 

1. Without access to local knowledge, a researcher would have to evaluate, on average, 10,000 plant species to find one with promising medicinal qualities.  By contrast, 75% of traditional botanical cures are proven valid after scientific study. 
2. Whether or not the sources of materials used in the cures are a “common heritage of mankind,” the knowledge that the materials are cures, and how to prepare and use them (after all, many are poisonous in the wrong doses or without correct pre-processing), is a product of human effort, often over several generations. 
3. Sometimes the whole local community knows about the cures, but often the knowledge is restricted to certain individuals or closed societies of healers.  Even if that does constitute a “public domain,” things in the public domain aren’t necessarily free for the taking.  If you want a book whose copyright has expired, you still have to buy it (unless it’s been uploaded to a free-access Website somewhere). 

In short, locals’ knowledge is something they and their forebears worked to develop, it has economic value to the researchers, and the locals have a right to compensation for it.  Their poverty doesn’t figure in this argument; if researchers happened to discover that a Beverly Hills garden club had developed a potentially lucrative cure, those pearl-bedecked ladies who lunch would be entitled to compensation too.

The international Convention on Biodiversity is working to make sovereign governments responsible for protecting both their genetic resources and their traditional knowledge, and ensuring that local knowledge-holders get some share of the benefits when a cure is developed and widely marketed.  The US is not a member.  The approach has its critics, who point out that, among other things:

1. Many of the national governments now accountable for policing bioprospecting cannot afford the infrastructure to watch and intervene in the far-flung stretches of back-country where these activities often take place.
2. Many of the individuals and communities holding traditional knowledge are minorities that have not traditionally been well-served by their national governments.  They have understandably become reluctant to attract governmental attention, much less ask for help against prestigious visitors with money.
3. If national governments collect the shared benefits, the percentage that reaches those who actually contributed the knowledge is not necessarily guaranteed.
4. No one will be able to afford to develop new medicines anymore if traditional knowledge costs ANYTHING AT ALL, and then everyone in the world will get sick and die, and then they’ll be sorry.  This is the usual rhetorical refusal to recognize any middle ground between opening the floodgates and dying of thirst.

Still, CBD has raised a lot of international consciousness about the alternative of fair trade for traditional knowledge.  This is good.  However, some of the consciousness isn’t as accurate as it could be.  Many otherwise authoritative people keep going around claiming that if someone patents a product based on a traditional cure, the people who developed the traditional cure can’t use it anymore.  THIS IS NOT WHAT PATENTS DO in any country I know of.   Neither products of nature (like the raw materials) nor prior art (like the traditional knowledge) is patentable, because patents are only granted for new inventions.  Let’s be fair; the learned, albeit fat-bashing, fellow professional I cited above points this out too.  But it really can’t be said enough.

There is a potential loophole, using U.S. patent law as an example, but it’s not as wide as it looks.  To be “prior art” under U.S. patent law, something either has to be known in the U.S. or published anywhere in the world.  Many local communities don’t publish their traditional knowledge.  However, “known in the U.S.” covers the whole geographical area over which a U.S. patent can be enforced, so U.S. residents’ traditional knowledge is protected as prior art.  An unpublished foreign traditional cure is not prior art in the U.S., but neither can a U.S. patent prevent the traditional cure from being used outside the U.S. (though it can prevent the original knowledge-holders from exporting their cure TO the U.S.).

The net happiness of the human world would almost increase if products that kept people (or human-friendly animals and plants) healthy were readily available.  If biopiracy ever worked, it doesn’t work anymore now that the whole world is watching.  On my trip to Peru, my hardest-working traveling companion managed to fax LA from a town with no paved streets, two days down the Amazon from Iquitos.  Give fair trade a try.  It’s, well, fair.