Ooh, so scary, boys and girls!

Are GMO soybeans another “New Coke (TM)”  It’s midnight in the garden of good and evil, and I’m not sure anyone really knows beans.

After 40-ish years of being told that soybeans are very good for me, I am being told that they are now very bad for me, specifically because so many of them are GMOs (genetically modified organisms).  Being the stickler that I’ve been taught to be (and being interested in crop-plant genetic IP), I went looking for reliable primary sources.*  I found out:

• In the US. about 94% of the planted soybean acreage was given over to GMO strains in 2011 – up from about 9% in 1996.  Well, that just means the US crop has gone largely GMO; no more. no less.
• However, “[n]inety-eight percent of the soybean meal produced by U.S. farmers is fed to animals such as pigs, cows and chickens.”  That means all the GMO soy could be going for animal feed, in which case vegetarian consumers of US soy products could just be getting non-GMO soy.  This doesn’t necessarily mean it’s a fact, just that it’s possible.  As an analogy, consider “This garage is big enough for that truck to fit inside;” it’s not the same as being able to say “That truck IS inside this garage,” but it does eliminate the argument that “That truck CANNOT POSSIBLY BE inside this garage.”
• Soybeans for human consumption, including as tofu or soy-milk, are from a different family of cultivars (“vegetable” or “garden” cultivars) than soybeans for oil production (“field” cultivars).  Vegetable cultivars are much more expensive to grow in large quantity because mechanical combine harvesters shatter the pods, and because they often  must be harvested before reaching maturity which does not produce viable, “saveable” seeds for the following year.  Besides, vegetable cultivars are known to have very few problems with weeds or pests.  The particular cultivars used in “soyfoods” are produced in boringly low volumes and and nothing about them “is broken” that GMOs could “fix.”  These are two other strong suggestions that soyfoods are unlikely to be GMO.  In our truck/garage analogy, we now see some tire tracks of about the right type leading to the garage door.
• Compared to non-GMO soybeans, GMO soybeans require less pesticide for the same yield and are more adaptable to no-till agriculture.  Gosh, that sounds kind of green.
• Lest any single strain of soy “take over,” the USDA maintains “a collection of over 10,000 accessions of soybean seeds.”
• Last July, the European Food Safety Authority concluded that Monsanto’s Roundup-Ready (TM) strain, the most common and longest-established GMO bean, “ is as safe as its conventional counterpart with respect to potential effects on human and animal health and the environment in the context of its intended uses.” This is particularly interesting because it was the EU’s previous fussiness about GMOs that convinced many Americans that something must really be wrong with them (the GMOs, that is).
• As far back as 2003, Oxford researchers concluded “Current GM crops, including soybean, have not been shown to add any additional allergenic risk beyond the intrinsic risks already present. . . Biotechnology has been used to remove a major allergen in soybean demonstrating that genetic modification can be used to reduce allergenicity of food and feed.” The UK has been presented as spearheading the no-GMOs movement in the EU, but this casts at least a shadow of doubt.
• The “Soy Bad” articles on many of what I’ll (with all the charity I can muster) call “opinion sites” seem to focus on the badness of ALL soy, not GMO soy as distinct from non-GMO soy.  This even includes a “soy bad” article from a site called “Genetically Modified Foods, The Silent Killer.”** Some authors conditioned the badness on processing or non-fermentation (i.e., a type of “lack of processing.”)*** Several are dedicated to soy’s suboptimality as baby formula,**** including one that says it’s turning little boys gay.  Ohhh-kayyyy. . .  Most of the worries about GMOs in particular is “nobody knows what they’ll do long-term,” NOT “there is evidence that GMOs are unhealthier to consume than regular soy and here it is.”
• Meanwhile, many, many producers of vegetable-cultivar soybeans and the associated products say they now use only “identity-preserved”***** non-GMO beans (predictably their product is more expensive, but don’t you just feel better now?).  Monsanto, the producer of Roundup-Ready and other GMO beans, has even jumped on the bandwagon!  Recall that from the references above, it’s entirely possible that most or all of the vegetable cultivars used in soyfoods never were GMO in the first place.

To me, this whiffs suspiciously of the “New Coke (TM)” marketing game.******  For those too young to remember, that one goes like this:

1. Take a popular product.
2. Introduce a new version and quit producing the old one.
3. Make sure the consumers who loved the old product the most will hate or fear the new one.*******
4. When the black market for the old one shows sufficient profit to finance its own space program, grudgingly-but-magnanimously re-introduce the old product to a public who will be too relieved-and-exhilarated to notice, e.g., a higher price or any other side effect you’d like to sneak in.

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*E.g., articles with titles like “GM-Soy: Destroy the Earth and Humanity for Profit” did not make the first cut.^  Oh, P.S.: Any site that pops a “Give me all your contact info and Subscribe Now!!!” window up in my face, before I have a chance to skim even one paragraph, I rebuttably presume not to be a reliable primary source.  Just sayin’.

**Wherein, the author writing about beans missed a golden opportunity to incorporate the phrase “Silent but Deadly.”

***At least one fairly scholarly-looking paper concludes that fermented soy is better for digestive flora than unfermented soy.  This is distinct from “fermented soy is healthy but unfermented soy would just as soon kill you as look at you.”  And it also doesn’t say anything about GMO vs. non-GMO.

****Thankfully this is not a law review article, so I can say things like “Well, du-uh.”

*****Confusingly abbreviated “IP!” This will probably hurt the producers’ case with the particular consumer sector convinced that any plant with a patent, trademark, or copyright^^ is bound to kill us all.  And because of the multiple language-and-logic barriers involved, neither side may ever figure out where the problem started.  Unless they read this blog, of course.

******Coca-Cola(TM) is an IP wonder.  Its formula is possibly the most successful trade secret in the world.

*******Humans’ built-in change-resistance Gripe-O-Matic may do most of the job for you if you calculate the type of change well enough.

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^I mean, if I were to destroy the earth and humanity it would at least be for FUN and profit.

^^No, I don’t believe it’s possible to copyright a plant (as distinct from a picture, sculpture, poetic description, or interpretive dance about one).  Others apparently believe it is.

I couldn’t wait to see how they got out of THAT one.  I only hoped it would be more graceful than Disney’s purported “Michael-Jacksonizing” of the animated (now-white) Indians in the DVD version of their “Peter Pan.”

What the Syfy producers did was give the Neverland Indians clothing, regalia, tools, weapons, and architecture from nations all over the US and Canada, which were generally rendered  rather classily; no neon-colored feathers or plastic pony beads.  When we first meet them, they are singing what sounds very much like a Gyuto Monks’ Tibetan Buddhist chant!

So, kind of a mishmash.  Perhaps that’s who they are: the Mishmash Nation!

It’s bound to give scholars the red – uh, skin – any time costumes, props, or sets seem to be from a mix times or places.  But if I may play the wendigo’s advocate for a moment:

• Ancient peoples always seem to have “gotten around” a lot more than anyone thought; consider, for example, the Viking’s Buddha excavated at Lake Malaren, Sweden.
• Archaeological evidence confirms that First Nations had a continent-spanning trade network long before the importation of the horse.
• So in real life, Native folks had stuff from nations other than their own: traded goods, war trophies, things brought in by adopted members back before the BIA said “quit adopting people and start paying attention to blood quanta or kiss federal recognition goodbye”. . .

All right , a group still probably wouldn’t ALL have Lakota feather bonnets and ALL have Makah canoes and ALL have Tlingit hats the ways the Mishmash did.  And even if the land-bridge theory held true, did the Mishmash walk all the way from Tibet?  And if so, would the song remain the same?

But it was very pretty.  And the Indians seemed as “people-y” as any of the other characters. And the giant-mutant-octodile hunt was WAY cool.  So, on balance . . . ‘sall’ight.

Little by little, we’ll fix it though!  Thanks for your patience.

1971 also saw the success of the movie Billy Jack, whose Metis martial-artist hero fights for wild horses and runaway kids. The hippie generation (which became the politically-correct generation) hailed Natives in general as free-living, highly spiritual guardians of the earth, victims of The Man just like themselves. And they’d already been through so much, so quit being mean to them. The old-school Fictional Bad Indians pretty much died out, or were at least always carefully juxtaposed with fictional good Indians, – and stayed that way even when Hollywood started making Westerns again.

Until now. In Ringer, whose stars include “Buffy the Vampire Slayer” Sarah Michelle Gellar and “Horatio Hornblower” Ioan Gruffudd, Fictional Bad Indian Bodaway Macawi is an organized-crime boss with both Native and non-Native minions and apparently national connections, a sociopath who tortures and kills without remorse. He owns a Wyoming strip club and has been arrested for fatally dismembering one of the strippers, giving “employee severance” a whole new meaning.

Others have noticed Macawi; for example, there’s an ongoing discussion here. But I’m not reading a lot of outrage, just some lukewarm grousing. The producers and writers seem to have gone through some contortions not to give anyone the standing to sue (yep, finally some law in this post) and it’s resulted in a bewilderingly amorphous character. Macawi appears to have gone off the reservation in more ways than one: although he’s based in the Wind River part of Wyoming (Shoshone and Arapaho lands), there’s no hint of ties to a nation or even a family (ok, a passing mention of a brother. Whom he killed). He’s involved in a vice-related business but NOT GAMBLING (according to one of my law professors, the “regular” FBI couldn’t find organized crime in tribal casinos despite a whole lot of looking). Also unclear how his tentacles reach to NY and beyond, and yet he doesn’t even have a place to keep prisoners other than the basement of this tiny dump of a strip club. And his gang sells heroin, Really? In Wyoming? I’d have pegged that for meth country.

Oh well: He’ll get his; this isn’t real life, after all. If Buffy and Horatio don’t take him down, Walter White could stomp hm flat. Though that wouldn’t necessarily do the people of Wind River any favors.

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?

But(t) – even though Plaintiff was after a permanent injunction against marketing pretty much anything with a South Butt trademark, Defendant’s website is still up a month later and even features a “South Butt rap.” Score one for the smartalecks; I am so freaking glad the law hasn’t been able to suck all the humor out of the marketplace yet. A couple of the broader interpretations of trademark dilution and and the “goodwill-hitchhiking” aspects of unfair-competition law could do that someday if we’re not careful.

In case you haven’t been following this one, here’s a quick recap. The North Face is a big, famous maker of outdoor equipment and apparel; the class of high-tech, high-end gear that tempts adventurous yuppies to substitute it for experience, research, and local guidance, occasionally resulting in Darwin Award nominations. The South Butt was started by then-high-school-kid Jimmy Winkelmann, who also used the slogan “Never Stop Relaxing” (North Face’s is “Never Stop Exploring”). Last December NF filed a complaint against SB for trademark infringement, trademark dilution, and unfair competition.

Trademark infringement is when two marks on similar goods/services are so similar that consumers become confused; they might buy one of the brands by mistake, thinking they’re buying the other. Since identifying the source of goods and services is what trademarks have been for (for about 3000 years), a possible mis-identification defeats the whole social purpose. This was the part of the complaint that begged responses such as SB’s (former) online disclaimer: “”If you are unable to discern the difference between a face and a butt, we encourage you to buy North Face products.”

Unfair competition is, at its original core, a type of commercial fraud: passing off your goods as coming from someone else, or vice versa. That’s what those look-alike designer knockoffs sold on street corners are, but not really what SB did. However, a whole penumbra has built up around that core, embracing any taking of “free rides” on a competitor’s reputation. Undoubtedly NF put a lot of time, effort, and money into becoming a famous and reputable brand. And just as undoubtedly, an SB in the absence of a famous NF would not have that instant appeal to former buyers of Wacky Packages bubblegum cards. However, there would probably still be plenty of consumers (I daresay mostly under 18) who would still be interested in buying something that said “butt!”

Trademark dilution is a much newer cause of action (1995 at the US federal level, though a number of states have had it longer). And it ain’t even remotely about protecting consumers; it’s about protecting successful major investments in branding. Not that there’s anything wrong with that; it’s just rather a departure from the policy behind most previous trademark laws. If (and only if) you have a “famous” trademark (NF does), you can sue NON-competitors whose goods or services are nothing like yours if their use of a similar mark would somehow break consumers’ instant mental association between that mark and your products (“Let’s get a Pepsi.” “Oh, you mean the cola? Or that new lawn sprinkler I saw online?”). The revision of the federal Act in 2006 provided that plaintiffs only had to prove that dilution was “likely,” not that it actually happened. But this, too, really hinges only on the logo similarity.

SB’s defense, “it’s a parody,” is, from what I can tell, absolutely accurate. It’s a well-established defense. . . against copyright infringement. Trademarks, not so much – although courts have weighed it in the standard consumer-confusion tests and rarely find parodies infringing. A good discussion of the precedent can be found here starting on p.9.

So, what really happened in NF v. SB? We’re not likely to ever know for sure, so let’s speculate wildly with no actual basis whatsoever! First, all three complaints really only had the upside-down logo as leverage; the company name was a straightforward parody. For either an injunction or damages, NF probably would have had to show how many sales they plausibly lost to SB – probably very tough to calculate. There is the David v. Goliath factor; many judges hate smartaleck kids but few are that fond of big corporations who can’t seem to take a joke. And juries – are you kidding? Defendant, a clean-cut Midwestern kid (or if not, he would’a been “made over” into one for court) started the SB biz “to make money for college.” At the time of the lawsuit, he was a biomedical engineering freshman at UMo Columbia, so that was actually true. I wonder what might have gone differently if he did it to make money for beer or an electric guitar instead? Or went to clown college? No, NF probably stood to lose more sales from presenting itself publicly as a humorless bully (their customer base prides itself on fearlessness after all) than it ever was likely to lose to SB. You start down that road, might as well just put on the mouse ears.

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!

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*”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.

What this shirt is suggesting, to the legal eagle eye, is celebrity rights for the rest of us. The shirt has no legislative or judicial backing - yet. But, just maybe, this idea’s time has come:

When people think of intellectual property, they think of patents, copyrights, and trademarks. Maybe trade secrets. But celebrity rights – basically the right to control the use of one’s name and likeness, though other things* can get under the umbrella if it rains hard enough – are another type of IP.

Celebrity rights can traditionally only be claimed by celebrities. Because their faces are their fortunes, the law holds that if someone, without their consent, associates them with something that damages their ability to make a living in their accustomed occupation, that someone owes the celebrity money. Possibly the money that the celebrity lost because of his or her distorted reputation. Possibly the money that the wrongdoer made without cutting the celebrity in on the deal. Possibly both plus punitive damages, if the offense was really egregious. There can be exceptions for parodies that no reasonable person would confuse with the truth, as Jerry Falwell learned to his teeth-gnashing frustration.

Just plain folks didn’t need this protection, judges and legislators felt, because their foibles aren’t likely to be widely publicized.

In many parts of the world, that isn’t true anymore. The ubiquity of digital cameras and Internet connections, the Schadenfreude** inherent in human nature, and the possibility that any of us may become a schlemiel or schlimazel*** at any time, combine to give the Global Public Humiliation Fairy a much wider range of prey. YOU could be next!

This might not be such a healthy development for individual psyches or for society as a whole. If you want to lead, or create, or innovate, or explore, the first barrier you have to overcome is the fear of mockery. This is a big fear: studies have shown that people, on average, fear public speaking more than death. Well, most of us can manage to shrug off an episode of schlemielery or schlimazelry witnessed by less than ten people. Some can bounce back after a goof in front of up to a hundred people. What the hey, eventually they'll forget, right? Now, suddenly, if anybody nearby has a digital camera (and where I live EVERYBODY’S ^&%*# got them), you run the risk of your faux pas being uploaded to a global audience of millions, and saved in cache indefinitely. Years from now, you could get off a plane halfway around the world, and your business contact’s kid could collapse in hilarity at the sight of you, finally gasping out “Dance, monkey boy, dance!” or whatever name your Shameware went by. This prospect is enough to make even a recidivist extrovert like me want to hide under the bed.

Back in 1963 one non-celebrity, Victor DeCosta, a a part-time rodeo cowboy who billed himself as “Paladin” and handed out business cards that said “Have Gun, Will Travel” beginning in 1947, brought suit for trademark infringement and unfair competition, among other things, against CBS, which aired the “Have Gun, Will Travel” TV series beginning in 1957. He believed that CBS had misappropriated his persona to create its protagonist, and his case was pretty strong. Actor Richard Boone, who played the character “Paladin” on the show, looked and dressed strikingly like the plaintiff. Over the next thirty years, four juries awarded him damages and four appeals courts overturned the decisions because the relevant laws, though they kept changing enough for him to sue on different grounds, just never morphed into anything that fit his situation.

We who aren’t celebrities-for-a-living are now sitting ducks for the dark side of celebrity – having our least-flattering moments captured and displayed to the world like those two-bag-ugly cover photos in checkout-line tabloids. Yet we have no recourse, except for a few measly torts whose coverage is woefully incomplete. If somebody PhotoShops your picture so it looks ike you’re kissing a goat, you’ve got an action for defamation – IF you can prove you’ve never actually kissed one in your life. If a hidden camera films you trying on unflattering bathing suits in a store’s dressing room, you can claim invasion of privacy, but if you’re filmed walking around a public beach in a bathing suit with more “southern exposure” than you thought it had, that won’t work either.

Worse, what lawyers (as opposed to psychologists) call “self-help” – for example, investigating whether cameras have yet gotten small enough to fit up an obnoxious photographer’s nose if sufficient force is applied – isn’t an option either. Unfortunately, that’s battery, even if you take the batteries out first.

On the other hand, once EVERYBODY’s got their 15MB of shame online, the playing field might naturally level out again. Sort of like how polite the Old West was supposed to have gotten once everyone knew that everyone else had a gun. In the meantime (since hardly anybody actually knows what the law is) if you’re going to “be there” and “do that,” “getting the T-shirt” might help! As R Stevens says, “Never again will you have to worry about someone making you look silly on the internet. You’ll have beaten them to the punch by doing it first … in real life.”

* Such as the distinctive voice of Tom Waits and the phrase “Here’s Johnny!” used to identify Johnny Carson.

**The German language includes this specific word that means “delight at another’s misfortune.”
*** The Yiddish language, which may have more words for “fool” than any Arctic language has for “snow,” defines a “schlemiel” as someone who goofs up physically or socially, usually affecting others nearby, and a “schlimazel” as a frequent victim of others’ goof-ups. When the first schlemiel spilled the primordial soup, the first schlimazel was the one he spilled it on. And the bystanders who were out of range got some Schadenfreude. And found they wanted more.