This concept of intellectual property is a fascinating one-it is alien to the nations and one whose origins lie in pure unadulterated Capitalism. A lot of the foreign and alien is to be contended with now in this twenty first century.
The concepts of reservations, of being captive rather than independent, forced dependency rather that self reliance, governed rather than sovereign, being caught up in a maze of legislation that does not legislate in a just and equitable manner, and above all is not representative with little or no input are not only foreign but aberrations by their very nature.
It is a most pressing need to advocate for education-to learn the system and then to employ it to make the changes that will otherwise be impossible. If this is a nation of laws as politicians are so prone to say then the arena and the vehicle will have to be that.
The hunter gatherer days are gone, never to be again-population and resources attest to that and it is a thing that must be understood. There will be no restoration of land in any sizable or significant amount and it is the awareness of this that has shaped lawsuits whose reality, history, and agenda has been monetary compensation.
An argument can be made that in accepting compensation for land it amounts to nothing more than selling out, another step along the way of acculturation and decline. The argument could be also made since the reality is that claims to land and demanding the return will not prevail compensation is the next best thing. This argument might have validity if the monetary settlement were to have a direct and beneficial impact upon every member of the particular nation as recognized and equal co-owners-the reality is it seldom if ever does.
It isn’t just the continuous intrusions upon the land by mining, timber, and ranching interests that are producing loss and fueling communal and societal genocide but the rampant cultural vacumming that is occuring by non indigenous groups, hobbyists, and the explosion of false claims and wannabe “tribes”. This is usually accompanied by impassioned claims of the Cherokee princess in the family tree, having been taken under the wing of some benevolent “shaman” and being taught the “sacred ways” etc. etc., and a great and enduring respect for the nations and their beliefs.
Is the reader aware that are only three recognized Cherokee nations, and in excess of two hundred who are not? Is the reader aware that that it is not only the government who does not recognize them but the actual Cherokee themselves? What does that speak to you? Is the reader aware that there are faux tribes making land claims and seeking grants and financial support? The effect of this will be to divert monies away from those who are the most deserving and valid among claimants and lead to prolonged and unnecessary delays in addressing land claims. I see none of the respect and honor so often allude to in this. What is needed are allies, not mimics or those who sit at our table requiring that we count the silverware upon their departure.
Anyone who has any of the ancestry should be both proud and vocal about it, but the reality is that being some miniscule amount of anything does not make the person that, much the same as sticking a feather in your hair does not make one a bird. One can swim and yet is not a fish, gather nuts and not be a squirrel, and the cover story of being “red” is
a state of mind and has little to do with the blood is too laughable to even address. It is in it’s entirety the blood and living the life.
We are related-no doubt in a manner that many do not understand, but each of us, unless we are brothers and sisters by act of birth do not share a common parent or ancestry.
And so it is in this acquisition of knowledge, this learning the ways of this foreign system, I would advocate for a class action suit seeking protection for indigenous beliefs, teachings, traditions, and culture under the auspices of intellectual property.
I believe there is a precedent set in the Indian Arts and Crafts Act of 1990 that addresses the issue of authenticity in the selling of items, arts and crafts, labeled as authentic. Stiff penalties are levied where violations occur, and I count it a first, though belated, step. This may be an obscure or even novel interpretation but the basis of it is not trivial as is so much that wends it’s through the legal system now.
Obscure legal points are the articles of the Doctrine of Manifest Destiny, the language and intent of treaties, and whether an individual has the right to vote as in Elk vs Wilkins. Some may be offended by the position I take but offense is not my intent-the protection and continutation of what is being threatened is.
I would be interested in hearing any opinions to the contrary