Emerging Research: Creative Sovereignties

BACKGROUND

Since 1985, the Research Center for Arts and Culture, founded at Columbia University’s School of the Arts, has conducted research on the condition and situation of living artists in the United States. In the mid-2000s the research began to focus on older living artists in both visual and performing arts. Two reports, ABOVE GROUND and STILL KICKING both gave rise to Legacy projects that served older artists. The most recent is the Performing Arts Legacy Project.

Legacy projects like these, now at the national social service organization for the performing arts and entertainment The Entertainment Community Fund, would benefit greatly from expansion to include and serve Native American elder artists. To that end, the CREATIVE SOVEREIGNTIES project is conducting interviews with elder artists in several parts of the country, to better understand their condition, needs and realities and to encourage ways in which the larger American population can enjoy and learn from their legacies.

ACTION PLAN

NATIVE AMERICAN ELDER ARTISTS AND THEIR LEGACIES

A message from Joan Jeffri, Founder and Director Emerita of the Research Center for Arts and Culture:

In addition to researching articles, books, seminars, convenings, visiting artists’ work, reviewing major legal issues concerning ownership, sale, and permissions for use of artwork in conferring with the Native American community, as well as studying with two Native American Stanford professors and Native American professors at other universities to learn more about the history and meaning of Native American culture in the United States, I feel strongly that the opinions and practices I need to hear about come from Native American artist elders themselves.

I am a researcher on the condition and situation of living artists and, more recently, on ways to preserve their legacies. I was educated in the arts at Boston University, the Bristol Old Vic Theatre School and Columbia University. My first career was as a performer. I was a professor and ran a graduate program in the arts and a research center for arts and culture at Columbia for three decades. Currently, I am a fellow at Stanford University’s Distinguished Careers Institute.  I am using this time, and my experience (35  years working with artists in many different media, documenting their situations and conditions), my resources, and what I can leverage, to enrich the arts with the art and culture of Native American elder artists who I generally see missing in the larger arts environment. I am especially interested in older artists, as I created two legacy projects to document their work over the last 15 years,  ART CART: SAVING THE LEGACY for visual artists ( https://artsandcultureresearch.org/art-cart/ and the PERFORMING ARTS LEGACY project, for older professionals in the performing arts (https://performingartslegacy.org ). Both of these reside in the Entertainment Community Fund, a national social services organization that assists professionals in the performing arts and entertainment (https://entertainmentcommunity.org ).

I am hoping to continue a lifelong conversation about how artists’ work is created, their own artistic practices, what protections there are for their art work and how effective they are, and their visions for how and where their work will be used/seen beyond their lifetimes. I will bring my knowledge back to those I interview for review and comment, as I deepen my understanding.

Some areas we might explore in oral, storytelling, performing and visual arts:

1. What type of artist do you consider yourself?
2. Where did your initial art experiences take place?
3. Were you formally trained in the arts? Where?
4. Do you consider yourself a professional artist? Why or why not?
5. Was your art learning passed onto you by ancestor, a teacher, others?
6. What role does community support play in your making art work?
7. Do you have methods to document and archive your work? Where does the work itself live?
8. Is the work widely accessible and, if so, how?
9. Are you interested in having your art work in the marketplace? Do you feel there are obstacles to this?
10. How do spirituality, storytelling and your native language influence your work?
11. Are there tensions between content in your artwork, ownership and protection of this content by your community, and commercial sales?
12. Who owns your artwork?
13. Are you interested in passing down your legacy, including your art, to future generations? Within your Nation or to a wider audience?
14. Are there programs that are helping you to do this?

My own research can be found at https://artsandcultureresearch.org and my personal career information at https://joanjeffri.com.

FAQ

You are invited to participate in an oral history on your art practice as a Native American elder artist. The purpose of this oral history is to understand the practices and processes that allow artists to create and implement their work, and save it for future generations. A former faculty member and researcher from Columbia University, currently a fellow in the 2023 Distinguished Careers Institute at Stanford University, Joan Jeffri, is overseeing this research.

REGISTER

Your registration information is for contact and internal information purposes only. After you register, all information connected to you will be assigned an anonymous, internal identification number. Your personal information will remain confidential.

LEGAL BIBLIOGRAPHY*

 Articles

• Jane Anderson, Anxieties of Authorship in the Colonial Archive, in MEDIA AUTHORSHIP, at 229, 232 (Cynthia Chris & David A. Gerstner eds., 2013) (discussing how western copyright law’s authorship requirement negatively impacts colonized subjects)
• Jane Anderson & Kim Christen, “Chuck a Copyright on It”: Dilemmas of Digital return and the Possibilities for Traditional Knowledge Licenses and Labels, 7 MUSEUM ANTHRO. REV. 105 (2013) (exploring the development of the TK licenses and Mukurtu as a way of getting around the limitations of IP law
• JANE ANDERSON,DUKE UNIV.SCH. OF L.,CTR. FOR THE STUDY OF THE PUB. DOMAIN, INDIGENOUS/TRADITIONAL KNOWLEDGE & INTELLECTUAL PROPERTY (2010) (going over the incommensurability of IP and Indigenous rights to culture)
• BOATEMA BOATENG, THE COPYRIGHT THING DOESN’T WORK HERE: ADINKRA AND KENTE CLOTH AND INTELLECTUAL PROPERTY IN GHANA (2011) (great ethnographic work on how IP in Ghana attempted to protect a communal Indigenous art form, and the fall-out from it.)
• Kathy Bowrey, Alternative Intellectual Property?: Indigenous Protocols, Copyleft and New Juridifications of Customary Practices, 6 MACQUARIE L. J. 66 (2006). (one of many pieces by Prof. Bowrey about Indigenous IP in Australia, and strategies for protecting it.)
• Stephanie Carroll et al., The CARE Principles for Indigenous Data Governance, DATA SCI. J. 1(2020),gida-global.org. (giving an overview of the global Data Sovereignty movement and its core principles)
• Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 YALE L.J. 1022, 1046–83 (2009) (discussing, among other things, the NCAA ban on racist mascots)
• Elizabeth Burns Coleman, Rosemary J. Coombe & Fiona MacArailt, A Broken Record: Subjecting ‘Music’ to Cultural Rights, in THE ETHICS OF CULTURAL APPROPRIATION 173, 193 (James O. Young & Conrad G. Brunk, eds., 2009) (explaining how Indigenous understandings of music is legally distinct from how IP understands it.)
• Rosemary J. Coombe, The Expanding Purview of Cultural Properties and Their Politics, 5 ANN. REV. L. & SOC. SCI. 393, 393–407 (2009) (a comprehensive overview of current issues in Cultural Property)
• ROSEMARY J. COOMBE, THE CULTURAL LIFE OF INTELLECTUAL PROPERTIES: AUTHORSHIP, APPROPRIATION, AND THE LAW (Stanley Fish & Fredric Jameson eds., 1998)
• Susan Corbett & Jessica C. Lai eds.,MAKING COPYRIGHT WORK FOR THE ASIAN PACIFIC: JUXTAPOSING HARMONISATION WITH FLEXIBILITY 75, 84 (2018). (edited volume discussing, among other things, challenges with using copyright to support Indigenous peoples in the South Pacific)
• Coulthard, Glen Sean. Red Skin, White Masks: Rejecting the Colonial Politics of Recognition. Minneapolis: University of Minnesota Press, 2014. (a philosophical argument distinguishing Indigenous political representation (multiculturalism) from true Indigenous sovereignty)
• Mique’l Dangeli, Dancing Chiax, Dancing Sovereignty: Performing Protocol in Unceded Territories, 48 DANCE RSCH. J. 74 (2016) (describing the repatriation of Indigenous dance from archival materials in Alaska)
• Kristen Dobbin, “Exposing Yourself a Second Time”: Visual Repatriation in Scandinavian Sápmi, 20 VISUAL COMMC’N Q. 128, 132–135 (2013)
• Christine Haight Farley, Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?, 30 CONN. L. REV. 1, 12–40 (1997) (seminal article discussing how IP law protects Indigenous IP)
• Gray, Robin RR. “Rematriation: Ts’ msyen Law, Rights of Relationality, and Protocols of Return.” Native American and Indigenous Studies1 (2022): 1-27. (innovative work reimagining repatriation discourse through an Indigenous feminist lens)
• James D. Nason, Traditional Property and Modern Laws: The Need for Native American Community Intellectual Property Rights Legislation, 12 STAN. L. & POL’Y REV. 255, 259 (2001)
• Raheja, Michelle H.Reservation Reelism: Redfacing, Visual Sovereignty, and Representations of Native Americans in Film, Lincoln: University of Nebraska Press, 2011. (discussing the impact of film on Indigenous sovereignty)
• Reed,Trevor. Fair Use as Cultural Appropriation. 109 Calif. L. Rev. 1373 (2021)
• Reed,Trevor. Creative Sovereignties: Should Copyright Apply on Tribal Lands, 67 J. Copyright Society USA 313 (2021)
• Riley, Angela R. & Carpenter, Kristen A., “Owning Red: Toward a Theory of Indian (Cultural) Appropriation,” 94 TEX. L. REV. 859, 877–78 (2015) (exploring Indigenous legal rights to prevent cultural appropriation)
• Angela R. Riley, The Ascension of Indigenous Cultural Property Law, 121 MICH. L. REV. 1 (2022) (cataloguing all current Tribal Intellectual property laws)
• Robinson, Dylan.Hungry Listening (U. Minnesota Press 2020) (important new book distinguishing Indigenous approaches to artistic creation and experience from settler-colonial art production and consumption)
• Robinson, Dylan. “Public Writing, Sovereign Reading: Indigenous Language Art in Public Space.” Art Journal 76, no. 2 (Summer 2017): 85–99. Revised April 24, 2019. (unpacking and critiquing the notion that Indigenous art accomplishes Indigenous political sovereignty)
• SUSAN SCAFIDI, WHO OWNS CULTURE?: APPROPRIATION AND AUTHENTICITY IN AMERICAN LAW (2005)
• CHRISTOPHER A. SCALES, RECORDING CULTURE: POWWOW MUSIC AND THE ABORIGINAL RECORDING INDUSTRY ON THE NORTHERN PLAINS 27 (2012) (discussing of the Indigenous recording industry, especially the politics around powwow recording)
• Stuart Schüssel, Copyright Protection’s Challenges and Alaska Natives’ Cultural Property, 29 ALASKA L. REV. 313, 314 (2012) (discussion of how IP law applies to Alaska Native IP)
• Rebecca Tsosie, Tribal Data Governance and Informational Privacy: Constructing “Indigenous Data Sovereignty”, 80 MONT. L. REV. 229, 245 (2019) (advocating for greater attention to Indigenous Data Sovereignty)
• Rebecca Tsosie, Reclaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights, 34 ARIZ. ST. L.J. 299 (2002) (seminal article dicusssing why Indigneous peoples need protection for their narratives, oral histories, etc.)
• Barre Toelken, The Yellowman Tapes, 1966–1997, 111 J. AM. FOLKLORE 381, 385 (1998) (describing how Navajo protocol limits the circulation of ceremonial songs and oral histories)
• MOLLY TORSEN & JANE ANDERSON, INTELLECTUAL PROPERTY AND THE SAFEGUARDING OF TRADITIONAL CULTURES 10-12 (WIPO 2010) (overview of IP protection for Traditional knowledge and Traditional cultural expressions)
• JAMES O. YOUNG, CULTURAL APPROPRIATION AND THE ARTS (2008)
• Coffey, Wallace, and Tsosie, Rebecca. “Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations,” Stanford Law and Policy Review 12 (2001): 186–221. (discussing the linkage between culture and Native American Sovereignty

Laws & Caselaw

• A. Res. 61/295, U.N. DOCS. A/RES/61/295, United Nations Declaration on the Rights of Indigenous Peoples, arts. 11 & 31 (Sept. 13, 2007) (two very expansive provisions of the UN Declaration on Indigenous Peoples’ rights to culture—supported by 144 nations, including the U.S.)
• Indian Arts and Crafts Act, Pub. L. No. 101-644, tit. I, 104 Stat. 4662 (1990)
• Native American Languages Act, 25 U.S.C. §§ 2901–2906,
• Examples of Tribal IP laws:
  • 8 Pascua Yaqui Tribal Code (PYTC) § 7-1-40
  • Human and Cultural Research Code of 2009, Colorado River Indian Tribes Tribal Council Ordinance 09-04
• Recent Indigenous IP-related cases in the U.S.
  • First Amended Complaint ¶¶ 1–3, 7, 90–92, Sealaska Heritage Inst., Inc. v. Neiman Marcus Grp. LTD, No. 20-cv-00002 (D. Alaska Aug. 29, 2020). (Neiman Marcus sued for appropriating a traditional ravenstail coat designed by National Endowment for the Arts fellow, Clarissa Rizal)
  • Navajo Nation v. Urb. Outfitters, Inc., No. CIV 12- 0195 BB/LAM, 2016 WL 7404747, at *1 (D.N.M. July 5, 2016) (Urban Outfitters sued for using the Navajo name on panties, flasks, and other items without permission.)
  • Pro-Football, Inc. v. Blackhorse, 112 F. Supp. 3d 439, 468–472 (E.D. Va. 2015), vacated, 709 F. App’x 182 (4th Cir. 2018). (Suit by Native American platiffs against the Washington Football Team to invalidate its racist trademark)
  • President & Fellows of Harvard Coll. v. Elmore, No. CIV 15-00472, 2016 WL 7494274, at *5–11 (D.N.M. May 15, 2016) (holding that copyrights in photographs of Hopi potter Nampeyo’s work did not include her “intricate pottery designs and forms,” only the creative elements contributed by the photographer)
  • Bell v. E. Davis Int’l, Inc., 197 F. Supp. 2d 449, 459 (W.D.N.C. 2002) (holding, inter alia, that the concept of a beaded craft imitating the appearance of a Native American head dress was not copyrightable).
  • Estate of Witko v. Hornell Brewing Co., 156 F. Supp. 2d 1092, 1095 (D.S.D. 2001) (Suit against Hornell Brewing for using the image and name of Lakota Chief Crazy Horse on malt liquor, which the Chief would have found abhorant).
  • Multimedia Games, Inc. v. WLGC Acquisition Corp., 214 F. Supp. 2d 1131, 1137 (N.D. Okla. 2001) (suit against a Tribal corporation for using software without permission.)
  • Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 357 (2d Cir. 2000) (suit against Tribe for allegedly using plaintiff’s script without permission in its museum)

Blogs / Websites / PR

• LOCAL CONTEXTS, https.://localcontexts.org(innovative TK label system that warns consumers to use goods only according to Tribal protocols)
• http://www.nativeappropriations.com(documenting appropriations of Native culture)
• Protocols for Native American Archival Materials, FIRST ARCHIVIST CIRCLE (Apr. 9, 2007),https://www2.nau.edu/libnap-p/protocols.html (policy recommendations for handling collections of Indigenous materials, recently endorsed by Association of College Research Libraries and Society fo American Archivists)
• Recent Tribal-University agreements where Tribes authorize universities to use their name/image as a mascot under certain conditions:
  • No. C-210–05 Florida State University – Seminole Mascots and Symbols, FLA. STATE UNIV. (June 17, 2005), available athttps://unicomm.fsu.edu/messages/relationship-seminole-tribe-florida/documents/Seminole-Tribe-of-Florida-2005-
  • Memorandum of Understanding Between the Ute Indian Tribe and the University of Utah, UNIV. OF UTAH (Mar. 3, 2020),https://administration.utah.edu/ute-mou [https://perma.cc/82WQ-KL5E].

*Deep thanks to Professor of Law Trevor Reed, Arizona State University, for providing this working legal bibliography on Native American creative work.