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Owning Red

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Owning Red:
A Theory of Indian (Cultural) Appropriation
Angela R. Riley & Kristen A. Carpenter
Abstract
In a number of recent controversies, from sports teams use of Indian mascots to
the federal governments desecration of sacred sites, American Indians have
lodged charges of cultural appropriation or the unauthorized use by members
of one group the cultural expressions and resources of another. While these and
other incidents are currently in the headlines, American Indians often experience
these claims within an historical and continuing experience of dispossession. For
hundreds of years, the U.S. legal system has sanctioned the taking and destruction
of Indian lands and artifacts, bodies and religions, identities and beliefs, all
toward the project of conquest and colonization. Indian resources have been
devalued by the law and made available for non-Indians to use of their own
purposes. Seeking redresses for the losses caused by these actions, tribes have
brought claims under a variety of laws, from trademark and copyright, to the First
Amendment and Fifth Amendment, and some have been more successful than
others. As a matter of property law, courts have compensated albeit
incompletely-- the taking of certain Indian lands and has also come to recognize
tribal interests in human remains, gravesites, and associated artifacts. When it
comes to intangible property, however, the situation is more complicated. It is
difficult for legal decision-makers and scholars alike to understand why Indian
tribes should be able to regulate the use of Indian names, symbols, and
expressions. Indeed, non-Indians often claim interests, sounding in free speech
and the public domain, in the very same resources. To advance understanding of
this contested area of law, this Article situates intangible cultural property claims
in a larger history of the legal dispossession of Indian property -- a phenomenon
we call Indian appropriation. It then evaluates these claims vis vis prevailing
legal doctrine, and offers a normative view of solutions, both legal and extralegal.

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Owning Red:
A Theory of Indian (Cultural) Appropriation
Angela R. Riley* & Kristen A. Carpenter**
The State reward for dead Indians has been increased to $200 for every red-skin
sent to Purgatory. This sum is more than the dead bodies of all the Indians east of
the Red River are worth.
--THE DAILY REPUBLICAN, Winona, Minnesota, Sept. 24, 1863
I. Introduction
In July 2015, a federal court upheld cancellation of the Washington Redskins
trademarks --depictions of a red-skinned Indian head in feathers that serves as the
NFL teams name and mascot on the grounds that the marks were disparaging
under the Lanham Act.1 Redskin2 is a term widely used in the 19th century to

Professor of Law, UCLA School of Law and Director, UCLA American Indian Studies Center.
Professor of Law and Associate Dean for Research, University of Colorado. We would like to thank the
following colleagues for their inspiration, comments, and conversations about these topics: Richard Allen, Greg
Ablavsky, Jim Anaya, Stuart Banner, William Boyd, Devon Carbado, Rick Collins, Matthew Fletcher, Carla
Fredericks, Carole Goldberg, Lorie Graham, Ray Halbritter, Cheryl Harris, Sonia Katyal, Sarah Krakoff, Leigh
Kuwanwisiwma, Ben Madley, Marshall McKay, Terry Mogart, Patrick Naranjo, Addie Rolnick, Wenona Singel,
Joe Singer, Rebecca Tsosie, Charles Wilkinson, Rob Williams, and Bill Wood. With additional gratitude to our
deans, Rachel Moran and Phil Weiser, for research support and to participants in workshops and conferences at
Harvard Law School, Suffolk University Law School, Yale Law School, UCLA Law School, and the University
of Colorado, for helpful comments. We appreciate the research assistance of Karen Kwok and Addie Rockwell.
1
See Pro-Football, Inc. v. Blackhorse, __ F.3d. __, 2015 WL 4096277 (2015) (upholding Trademark Trial and
Appeal Boards decision to cancel registration of six marks using the R-Skins term and imagery pursuant to the
Lanham Act, 15 U.S.C. 1052(a) (2000) (marks that disparage persons living or dead may be refused
registration)). For an earlier version of the lawsuit, see Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d (BNA) 1705
(T.T.A.B. 1999) (cancelling the R-skins marks on grounds that they were disparaging under the Lanham Act),
revd 284 F. Supp. 2d 96, 128 (D.D.C. 2003) (reversing the TTABs cancellation decision based on equitable
doctrine of laches). For a thoughtful discussion of the value of trademarks as public goods that play a role in
questions of discrimination and equality, particularly in the context of the R-Skins, see Sonia K. Katyal,
Trademark Intersectionality, 57 UCLA L. REV. 1601, 1632-38 (2010) (reexamining the nature of the trademark
itself and its intersection with critical race theory and antidiscrimination law).
2
We use the full name of the team here at the beginning of the essay, for claritys sake. For subsequent
references, however, we adopt the abbreviation R-skins, following the practices of media outlets and others
that have stopped using the term based on their understanding that it is a racial epithet. David Uberti,
Journalism Says Goodbye To R-Skins, A List of News Organizations That No Longer Use The Team Name,
COLUMBIA JOURNALISM REVIEW, (Nov./Dec. 2014); see also Associated Press, Judge Refuses to Use R-Skins
**

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describe the ostensibly red skins of Indians, for which various governments
offered and paid bounties.3 Today, the term is highly controversial, with many
American Indians contending through lawsuits and social commentary that it
has developed into an enduring racial slur, used to intimidate, humiliate, and harm
contemporary American Indians.4 While the R-skin marks and other Indianinspired sports mascots have been challenged for decades by members of the
American Indian community,5 their supporters have defended them just as
strongly.6 Washington team owner Dan Snyder insists, for example, that the Rskins name is meant to honor Native Americans7 and will, in any event,
never be changed.8
When non-Indians utilize Indian imagery, iconography, and other symbols
particularly for commercial purposes and without Indian input Indian tribes and
individuals increasingly claim such usages constitute cultural appropriation.9
Name in Ruling, WASHINGTON POST, July 15, 2014 (U.S. District Judge Peter J. Messitte issued a pretrial
ruling last week in a lawsuit against the team in which he explicitly refused to use the R-Skins name.).
3
See THE DAILY REPUBLICAN, Winona, Minnesota, Sept. 24, 1863 (pictured and quoted in Baxter Holmes,
Update: Yes, A 'Redskin' Does, In Fact, Mean the Scalped Head of a Native American, Sold, Like a Pelt, for Cash,
ESQUIRE.COM, June 18, 2014, http://www.esquire.com/blogs/news/redskin-name-update) (describing the meaning
and history of the term R-Skin).
4
See MERRIAM-WEBSTERS COLLEGIATE DICTIONARY 1044 (11th ed. 2007) (defining redskin as a noun
usually offensive meaning American Indian). Compare VINE DELORIA, GOD IS RED: A NATIVE VIEW OF
RELIGION (1972) (arguing for an understanding of religion through the ideas of Native peoples and attempting to
reclaim Red).
5
See Kevin Belson, R-Skins Name Change Remains Activists Unfinished Business, NEW YORK TIMES, A1,
October 10, 2013 (recounting Cheyenne activist Suzan Harjos 40-year involvement in the movement to change
the name); Erik Brady, A New Generation of American Indians Challenges R-Skins, USA TODAY, May 10, 2013
(on contemporary iterations of the anti-mascot campaign); Erik Brady, Native American high school student gives
emotional speech on impact of Indian team names, USA TODAY, July 23, 2014 (describing on American Indian
youths experiences with mascots in high schools); Jacqueline Keeler, The NFL Perpetuates Stereotypes that Fuel
Racism, Domestic Abuse, INDIAN COUNTRY TODAY, February 8, 2015 (linking violence against women and
intimate partners to stereotyping).
6
See, e.g., Eugene Volokh, Freedom of Speech, Cyberspace, and Harassment Law, 2001 STAN. TECH. L. REV. 3,
43-45 (warning against broad speech restrictions based on claims of harassment and hostile environment,
referencing the R-Skins and other Indian mascot names).
7
Daniel Snyder Defends 'R-Skins', ESPN NEWS SERVICE, August 6, 2014,
http://espn.go.com/nfl/story/_/id/11313245/daniel-snyder-R-Skins-term-honor-respect (quoting Dan Snyder
as saying [T]he name really means honor, respect. We sing 'Hail to the R-Skins.' We don't say hurt
anybody. We say 'Hail to the R-Skins. Braves on the warpath. Fight for old D.C.' We only sing it when we
score touchdowns.)
8
See Erik Brady, Daniel Snyder says R-Skins will never change name, USA TODAY, May 10, 2013,
http://www.usatoday.com/story/sports/nfl/R-Skins/2013/05/09/washington-R-Skins-daniel-snyder/2148127/. In
any case, the Lanham Act does not require the name to change; it only removes intellectual property protection for
the name, thus defeating the monopoly rights of the mark holder.
9
See MICHAEL BROWN, WHO OWNS NATIVE CULTURE? 2-3 (2004) (identifying emergence of the term
cultural appropriation as part of the rhetoric of a social movement to address the flow of cultural
elements from indigenous societies to the larger world); Compare Lorie Graham & Stephen McJohn,

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Wide-ranging examples include Victorias Secret models walking the runway in


Indian headdresses, Urban Outfitters marketing Navajo Flasks and Navajo
Hipster Panties, 10 Boy Scout Troops mimicking Pueblo Indian dances,11 and the
many sports teams with Indian mascots.12 But strategies to address cultural
appropriation are fraught, partly because, as a recent debate in the NEW YORK
TIMES suggests, the term itself is imprecise and deeply contested. In their leading
work on the topic, Bruce Ziff and Pratima Rao have defined cultural appropriation
as the taking--from a culture that is not one's own, of intellectual property,
cultural expressions or artifacts, history, and ways of knowledge.13 Cultural
appropriation may reference practices of adaptation and borrowing prevalent
in expressive contexts from literature14 to music15 with benefits of collaboration
and innovation.16 As Rebecca Tsosie and others have explained, when it comes to
minority groups, cultural appropriation often occurs in a societal context of power
imbalance, racism,17 and inequality, rather than in an atmosphere of fair, open,
Indigenous Peoples And Intellectual Property, 19 WASH. U. J.L. & POL'Y 313 (2005) (critiquing Browns
book and arguing for ways in which intellectual property law, negotiation, and human rights precepts work
together to address indigenous claims to heritage protection).
10
See generally, Sasha Huston Brown, An Open Letter to Urban Outfitters on Columbus Day, RACIALICIOUS.COM,
(Oct. 10, 2011)(describing the companys mass marketing of distasteful and racially demeaning apparel and
decore).
11
See, e.g., The Koshare Indian Dances, http://www.kosharehistory.org/dancers.html.
12
See CAROL SPINDEL, DANCING AT HALFTIME: SPORTS AND THE CONTROVERSY OVER AMERICAN INDIAN
MASCOTS (2000).
13
Bruce Ziff & Pratima V. Rao, Introduction to Cultural Appropriation: A Framework for Analysis, in
BORROWED POWER: ESSAYS ON CULTURAL APPROPRIATION 1 (Bruce Ziff & Pratima V. Rao eds., 1997). See also
Berryman, Toward More Universal Protection of Intangible Cultural Property, 1 J. INTELL. PROP. L. 293, 296 &
n.9 (1994) (discussing the protection, on international and national levels, of intangible cultural property,
defined as elements of expression, thought, or actions embodied in the physical cultural object).
14
See, e.g., JULIE SANDERS, ADAPTATION AND APPROPRIATION 1-2 (2005) (investigating how literature is made by
literature and the intertextual quality of adaptation and appropriation among literary works); WALTER DE
GRUYTER, ADAPTATION AND CULTURAL APPROPRIATION: LITERATURE, FILM, AND THE ARTS 4 (Pascal Nicklas and
Oliver Linder eds., 2012) (concerning the interplay between adaptation and cultural appropriation in literature);
CHRISTIAN HUCK ET AL., TRAVELLING GOODS, TRAVELLING MOODS 103 (2012) (discussing how books function as
both objects and subjects of cultural appropriation).
15
See, e.g., Olufunmilayo B. Arewa, From J.C. Bach to Hip Hop: Musical Borrowing, Copyright, and
Cultural Context, 84 N.C. L. REV. 547 (2006) (on challenges of applying copyright law in music, especially
across differing cultural norms about borrowing, sampling, privacy, and authorship); 2013 Was the Year of
Cultural Appropriation, THE HUFFINGTON POST (Dec. 24, 2013),
http://www.huffingtonpost.com/2013/12/23/2013-year-in-cultural-appropriation_n_4468583.html (identifying
different instances of cultural appropriation in music in 2013); Jeff Chang, Azealia Banks, Iggy Azalia and
Hip-Hops Appropriation Problem, THE GUARDIAN (Dec. 26, 2014),
http://www.theguardian.com/music/2014/dec/24/iggy-azalea-azealia-banks-hip-hop-appropriation-problem
(discussing the cultural appropriation problem in Hip-Hop music).
16
Rosemary J. Coombe, The Properties of Culture and the Politics of Possessing Identity: Native Claims in the
Cultural Appropriation Controversy, 6 CANADIAN J.L. & JURIS. 249, 268 (1993) (comparing the problems Africans
Americans and Native Americans face in claiming ownership of the representations of their respective cultures).
17
For insightful articles discussing the divide between thinking of Indianness as a political class versus a racial

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multilateral exchange.18 This is particularly true when the creations and products
of the source culture are taken under oppressive conditions19 and not adequately
protected by law or respected by society.20 In some instances, cultural symbols
have even been borrowed and used by segments of majority societies not only for
their own enjoyment or profit, but expressly to harm minorities.21
In the American Indian context, attempts to address cultural appropriation through
legal strategies can be challenging. The experience of cultural appropriation is
broad and nuanced, while the law is typically narrow and obtuse. As an initial
matter, American law contains numerous vestiges of racial injustice against
Native peoples that directly bear on the protection of tangible properties, like
lands, as well as intangible cultural resources, like ceremonies and religions. The
Supreme Court has held, for example, that sacred sites and attendant ceremonies
on federal lands are not protected by the First Amendment, and that aboriginal
title is not protected by the Fifth. Because tribal cultures are inextricably linked to
lands, other natural features, religious objects and symbols, songs and ceremonies
alike, cultural appropriation claims can traverse established legal doctrines from
intellectual property to free exercise of religion to the taking of land. Within the
field of property, Indian cultural resources, such as sacred lands, religious
artifacts, and ritual songs, may fall into categories of real, personal, or intellectual
property, respectively.22 Such categories are counterintuitive for some tribal
peoples who take a more holistic approach to cultural resources. One Lakota
activist recently explained, Just as our traditional homelands were stolen and
one, in which Indians are subject to racial discrimination, see, Sarah Krakoff, Inextricably Political: Race,
Membership, and Tribal Sovereignty, 87 WASH. L. REV. 1051 (2012) (demonstrating the political dimensions of
Indian identity); Addie C. Rolnick, The Promise of Mancari: Indian Political Rights as Racial Remedy, 86 N.Y.U.
L. REV. 968 (2011) (exploring why the racialization of American Indians is understudied); Bethany Berger, Red:
Racism and the American Indian, 56 UCLA L. REV. 591 (2009) (explaining how the racialization of American
Indians helped shape law and policy); and Carole Goldberg, Descent Into Race, 49 UCLA L. REV. 1373 (2002)
(arguing against a purely racial or purely political view of Indian identity).
18
Rebecca Tsosie, Reclaiming Native Stories: An Essay on Cultural Appropriation and Cultural Rights, 34 ARIZ.
ST. L. J. (2002) (explaining the harm caused by cultural appropriation).
19
See generally Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's
Multiple Ports of Entry, 115 YALE L. J. 1564, 1583 (2006) (contrasting governments like the United States, which
has largely been free to make its own laws without colonial interference, and those that have changed under
oppressive conditions).
20
PATTY GERSTENBLITH, ART, CULTURAL HERITAGE, AND THE LAW: CASES AND MATERIALS 3-20 (3d. ed. 2012)
(describing the rapidly emerging fields of art and cultural heritage law).
21
See, e.g., Michael W. Twitty, Cultural Appropriation in America Can Be Audacious: Just Look at The Ku
Klux Klan, THE GUARDIAN, July 18, 2015 (summarizing work of historians William D. Pierson and Elaine
Parsons arguing the Klan co-opted and perverted African spirituality, aesthetics and culture in their mission
of restoring white supremacy to the American South).
22
Kristen A. Carpenter, Sonia K. Katyal, and Angela R. Riley, In Defense of Property, 118 YALE L. J. 1022
(2009).

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expropriated without regard, so too has our very cultural identity.23 Such
sentiments suggest a broad approach to identifying, addressing, and remedying
tribal injuries under the rubric of cultural appropriation.
The U.S. legal system does not easily accommodate such a holistic approach to
cultural appropriation. While the law has begun to recognize Indian interests in
real and personal property albeit with less than satisfactory rights or remedies
from the perspective of tribes the law struggles even more poignantly with
Indian claims to intangible property. As scholars have noted, indigenous
expressions, symbols, and ideas often constitute collective, intergenerational,
religious, and spiritual properties, which by their nature excludes them from
protection under prevailing intellectual property laws.24 For indigenous peoples,
then, there is little protection against the appropriation of intangible cultural
attributes even though it may constitute distortion, theft, offense,25 or
misrepresentation,26 each with an attendant set of legal, social, and ethical issues.
Acknowledging the contested nature of cultural appropriation, especially in the
American Indian context, the Article makes two primary claims, one descriptive
and one normative. First, we draw on Indian history and American Indian law to
situate cultural appropriation in the larger frame of the legal dispossession of
Indian property generally -- a phenomenon we call Indian appropriation. As we
describe, Indian appropriation is the process by which the U.S. legal system has
historically and continues today to facilitate and normalize the taking of all
things Indian for others use. From lands to sacred objects, to bodies to identities,
23

Brown, supra note _, at _.


See, e.g., Richard A. Guest, Intellectual Property Rights and Native American Tribes, 20 AM. INDIAN L. REV.
111 (1996); Susan Scafidi, Intellectual Property and Cultural Products, 81 B.U. L. REV. 793 (2001) (discussing
how cultural products have no legal protection because of their inability to meet the criteria for intellectual
property protection); Shubha Ghosh, Traditional Knowledge, Patents, and the New Mercantilism (Part II), 85 J.
PAT. & TRADEMARK OFF. SOCY 885 (2003) (noting the poor fit between intellectual property protections and
traditional knowledge); Margaret Chon, Intellectual Property From Below: Copyright and Capability for
Education, 40 U.C. DAVIS L. REV. 803 (2007) (discussing the social justice implications of copyright in the
education context); Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U.C.
DAVIS L. REV. 971 (2007) (discussing the link between human rights and intellectual property laws); Peter Yu,
Reconceptualizing Intellectual Property Interests in a Human Rights Framework, 40 U.C. Davis L. Rev. 1039
(2007) (same); Kal Raustiala, Density & Conflict in International Intellectual Property Law, 40 U.C. DAVIS L.
REV. 1021 (2007) (contemplating international regimes and intellectual property laws); MADHAVI SUNDER, FROM
GOODS TO A GOOD LIFE: INTELLECTUAL PROPERTY AND GLOBAL JUSTICE (2012) (discussing how intellectual
property laws may assist in promoting human freedom as well as economic development).
25
See JAMES O. YOUNG AND CONRAD G. BRUNKE, THE ETHICS OF CULTURAL APPROPRIATION (2009) (analyzing
ethical dimensions of claims regarding the appropriation of aboriginal culture in Canada).
26
The seminal work identifying the problem of misrepresentation of minority groups is EDWARD SAID,
ORIENTALISM (1979).
24

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we explain how Indian appropriation has occurred through the mechanism of


American law for over four hundred years. While a theory of Indian appropriation
is apparent and intuitive to those in the field and to Indian people, our contribution
here is to advance its wider acceptance in legal doctrine and theory. It also serves
as the foundation for our normative claim.
Our second objective is to advance an argument that goes to the heart of the
debate over cultural appropriation. In explicating the cultural harm experienced
by Indian people in the face of cultural appropriation,27 we engage with the
doctrinal features of the law to show what it does and does not do to limit
cultural appropriation. In doing so, we focus primarily on cases of intangible
cultural appropriation and take on the hard questions of whether law can or should
play a role in regulating it. Can the law limit the use of symbols like the R-skins
without running afoul of other American rights and values? Should non-Indians be
allowed to wear Indian headdresses? What is so wrong with playing Indian?
Can Indian-inspired designs be available for integration into the fashion designs of
non-Indians? Why shouldnt indigenous peoples traditional knowledge be treated
merely as raw material that can then be utilized to create medicines that could
benefit all of society?
In addressing these and other tough questions, we assert that indigenous peoples
own laws, methodologies, and cosmologies are deeply relevant to legal discourse
and should be treated seriously when it comes to understanding and redressing
harms caused by cultural appropriation, including racial discrimination and
interference with tribal self-determination.28 At the same time, we concede
ground where necessary. In a multicultural society founded on free expression,
we agree that federal and state laws do not and should not prevent all forms of
cultural appropriation. We demonstrate, nevertheless, that it may be possible to
advance tribes interests in antidiscrimination and self-determination through
other venues; therefore, we also highlight non-legal forms of advocacy -- social
media, education, and activism to address these claims.
The Article proceeds as follows. Part II makes the case for Indian appropriation
as a continuing phenomenon of U.S. legal history. It traces the myriad ways in
which colonial and then federal policy has sought to diminish Indian peoples hold

27

Tsosie, supra note _, at _.


Matthew L.M. Fletcher, The Supreme Courts Legal Cultural War Against Tribal Law, 2 INTERCULTURAL HUM.
RTS. L. REV. 93, 97 (2007) (detailing how federal policy drove tribal law underground, and tribes are now
revitalizing those laws).
28

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over their own lands, resources, religious, and even identities and make those very
same things available to non-Indian individuals and entities. This Part also
examines instances wherein the law has begun to change in the real and personal
property realms in an age of self-determination, in particular. Part III evaluates
contemporary cultural appropriation claims against prevailing doctrines of real,
personal, and intellectual property law, focusing largely on intangible property.
Ultimately, we contend that, as a matter of both racial justice and tribal selfdetermination, tribes and tribal advocates should push the bounds of both law and
activism to address cultural appropriation.
II.

Indian Appropriation

In her transformative work, Whiteness as Property,29 Cheryl Harris changed the


way legal scholars think about property in the U.S. by exposing the process
through which race and skin color, specifically became constructed and
commodified.30 Through the lens of the racialized history of the formation of the
United States, Harris demonstrates how whiteness became property, a highly
privileged and legally protected space within the American law and society.
Historically, this was a form of property that Whites possessed and that African
slaves were denied. Here we argue that, in a strange twist of the story shaped by
the features of settler colonialism, Redness, too, became property. With the taking
of land and lives, non-Indians were free to appropriate Indian territory, bodies,
and eventually all aspects of Indian life, turning Red into the property of nonIndians.31
As is well known, European monarchs, colonies, white settlers, states, and the
federal government acquired territory by taking or purchasing it from Indians.
Chief Justice Marshall wrote in 1823 that, before conquest, American Indians
were the absolute owners and proprietors of the soil32 comprising the U.S.;
today they hold about 4% of that original territory.33 The dispossession of Indian
lands went hand in hand with the purposeful destruction of Indian culture,
economies, and life ways, all to make way for the settlement and development of
the country. What may be less well known is that despite major recent legal
29

See Harris, Whiteness, supra note _.


See also, Rolnick, supra note _; Berger, supra note _.
31
See Rebecca Tsosie, The New Challenge to Indian Identity: An Essay on Indigeneity and Whiteness, 18 WASH.
U. J. L. & POLY 55 (2005) (drawing the link between racial identity and property).
32
Johnson v. MIntosh, 21 U.S. (8 Wheat.) 543, 545 (1823).
33
See CHARLES WILKINSON, BLOOD STRUGGLE: THE RISE OF MODERN INDIAN NATIONS 207 (2005).
30

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advances acknowledging and remedying Indian property losses, in some


instances, federal and state governments, individuals and entities, are still
appropriating Indian lands, cultures, and other resources for their own purposes
today. Indeed, we argue that U.S. law and policy has long facilitated the process
of non-Indians owning Red -- by which we mean the widespread practice by
which non-Indians claim and use Indian resources for themselves -- and this
phenomenon continues to this day.
Consider several examples. In 2014, Congress gave 2,400 acres of sacred Apache
lands to multinational foreign mining company Rio Tinto.34 The sweetheart
deal made outside of the regular process puts the Apaches unique burial,
medicinal and ceremonial grounds are at risk by removing many of the legal
protections that apply to mining on public lands.35 As one commentator recently
observed, If Oak Flat were a Christian holy site, or for that matter Jewish or
Muslim, no senator who wished to remain in office would dare to sneak a
backdoor deal for its destruction into a spending bill no matter what miningcompany profits or jobs might result. But this is Indian religion. Clearly the
Arizona congressional delegation isnt afraid of a couple of million conquered
natives.36 As a result of the transfer, Rio Tinto may be able to circumvent, either
partially or fully, decades of statutory programs meant to protect Indian sacred
sites and vulnerable landscapes.37
Oak Flat is an example of Indian appropriation in the context of real property. On
the personal property front, Hopi religious leaders on the mesas of Arizona are
currently attempting to stop Parisian auction houses from selling their sacred
katsinam or friends. The katsinam are beautifully adorned visages or masks that
the Hopi believe embody sacred, living deities, and who bring rain and corn to the
people. The katsinam are never meant to leave Hopi they are brought to life and
nurtured as living beings by families - but because of their value as art they
have been stolen over decades from the tribe and are now being sold for thousands
34

Michael McAuliff, Congress Raids Ancestral Native American Lands with Defense Bill, HUFFPOST POLITICS,
Dec. 3, 2014 http://www.huffingtonpost.com/2014/12/03/ndaa-land-deals_n_6264362.html (describing how the
House and Senate Armed Services Committee had decided to use the lame-duck session of Congress and the
National Defense Authorization Act to give 2,400 acres of the Tonto National Forest in Arizona to a subsidiary of
the Australian-English mining giant Rio Tinto).
35
See McAuliff, supra, note _.
36
See, e.g., Lydia Millet, Selling Off Apache Holy Land, N.Y.TIMES, May 29, 2015 (describing the Apache
occupation of Oak Flat).
37
See, e.g., National Historic Preservation Act, 16 U.S.C. 470a(d)(6)(A) (2006); see also Dean B. Suagee,
Historical Storytelling and the Growth of Tribal Historic Preservation Programs, 17 NAT. RESOURCES & ENVT
86, 8687 (2002) (describing 1992 amendments to the NHPA and implementing regulations).

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of dollars to collectors. Despite causing a deep sense of loss and violation to the
Hopi people, neither French nor U.S. law require return of the katsinam.38
With respect to claims of appropriation of intangibles, consider the example of
Boy Scout Troop 232, which for generations has taught non-Indian children
Koshare Indian Dances. These dances were copied decades ago from the Tewaspeaking Pueblo Indians, for whom the mimicry of sacred, secret rituals thousands
of years old by people not initiated into their clan system is believed to be deeply
harmful.39 As one member of the Santa Clara Pueblo Indian tribe has stated:
[K]nowledge of culture and tradition is what has enabled the Tewa people to
survive as a separate people. When the objects and ceremonies that embody
[Tewa] traditions, and the meanings attached to them, are no longer controlled by
the Tewa people, the resulting confusion can disrupt the intergenerational
transmission of the cultural knowledge that forms the basis for Pueblo sovereignty
today.40 No U.S. intellectual property laws protect the Tewa against these forms
of appropriation.
Despite or perhaps because of the limits of the law, community members have
taken to activism and social media to articulate publicly what is wrong with
Indian appropriation and effectuate change. Tribal members, from high school
students to NCAA athletes, are speaking out publicly and powerfully to describe
the pain, discrimination, and violence fostered by Indian mascots.41 The
#notyourmascot hashtag and the Proud to Be advertisement against the R-skins
have flooded Twitter, Facebook, and other social media platforms.42 SouthPark,
the Daily Show, and the New Yorker have all lampooned the idea that the R-skins
honor American Indians.43 Meanwhile, an entire generation of American Indian

38

http://nativenewsonline.net/currents/the-hopi-tribe-gains-support-of-arizona-congressional-delegation-to-haltsale-of-sacred-items-by-paris-auction-house/.
39
See, The Koshare Indian Dances, http://www.kosharehistory.org/dancers.html. For testimony and photos of the
Koshares, in which they identify themselves as bands, chiefs, and braves of the Sioux, Kiowa, and Navajo, see The
World Famous Koshare Indian Dancers, http://www.angelfire.com/co2/koshare/koshare.html. For an account of
the Koshare relationship with the Zuni Tribe, see DELORIA, PLAYING INDIAN, supra note _, at 152-53.
40
See, Patrick Victor Naranjo, A Lesson from the Pueblo Revolt of 1680 about Cultural Appropriation and Tribal
Sovereignty: What Santa Clara Pueblo Can Do to Protect Tewa Cultural Property, 50 (2012), available at
https://escholarship.org/uc/item/67k238h9.
41
See, infra notes __ - __.
42
http://indiancountrytodaymedianetwork.com/2014/02/08/inside-notyourmascot-super-bowl-twitter-storm
43
See, http://deadspin.com/south-park-trashes-the-washington-R-Skins-watch-the-h-1638915706; Ian
Shapira, 'Daily Show' airs segment pitting R-Skins fans against Native Americans Controversial segment pits
Washington fans against Native Americans over the team's name, WASHINGTONPOST.COM, Sept. 26, 2014;
http://www.huffingtonpost.com/2014/11/24/new-yorker-R-Skins-rips-with-new-thanksgivingcover_n_6211598.html

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bloggers, including Jessica Metcalfe of Beyond Buckskin44 and Adrienne Keen


of Native Appropriations,45 post real-time discussions, debates, and news
stories, detailing on-going instances of Indian appropriation, while also
highlighting stories of innovative expressions of Indian culture in fashion and best
practices for non-Indians who wish to collaborate with Indian artists.46 When a
Lakota sacred site, lost generations ago to treaty violations, went on the open
market, another Indian social media group Last Real Indians -- sprung into
activist mode, mounting an online fundraising campaign and convincing tribes to
join in, toward the successful purchase of the site for $9 million.47 Through law
and politics, speech and activism, Indian people are reclaiming Red. But how did
they lose it in the first place?
At the time of European contact, the Americas were home to hundreds of preexisting, indigenous nations. These tribes represented vast diversity in terms of
their respective religions, social structure, culture, language, and systems of
government.48 Tribes had resided on these lands since time immemorial, and their
origin stories typically describe how the people came to live where they do and
instruct them in practices and values that allow them to thrive in their homeland.49
Thus, indigenous peoples define their relationship to certain places and landscapes
as having a sacred nature.50 This relationship is one of mutual inter-dependence,
with humans having obligations or covenants that they must perform in order to
live in harmony with the plants, animals, waters, and mountains.51 Organized
around these principles, tribal religions often pervade identity, kinship,
governance, subsistence, and social order and serve as a way to define and
maintain the tribal existence, even in contemporary times.52

44

http://www.beyondbuckskin.com/
http://nativeappropriations.com/
46
https://bloggingcircle.wordpress.com/2015/06/10/trust-doesnt-mean-never-having-to-say-youre-sorry/
47
http://lastrealindians.com/sioux-tribes-purchase-pe%C2%92sla/
48
Riley, Supreme Court, supra note _, at 369.
49
Laura Adams Weaver, Native American Creation Stories, in ENCYCLOPEDIA OF WOMEN AND RELIGION IN
NORTH AMERICAN 83, 83 (2006) (asserting that origin stories typically begin with an earthdiver or emergence
story).
50
This is true of indigenous peoples around the globe, not only those in the United States. See, e.g., EDWARD
BERNBAUM, SACRED MOUNTAINS OF THE WORLD (1990) (describing the ways in which diverse societies relate
in religious or spiritual terms to mountains).
51
See Weaver, supra note _, at 211 (explaining that Native ceremonies involve a process of continuous revelation
and provide the people with the necessary information to enable them to maintain a balance in their relationships
with the earth and other forms of life).
52
See, e.g., Joel W. Martin, Rebalancing the World in the Contradictions of History: Creek/Muskogee, in NATIVE
RELIGIONS AND CULTURES OF NORTH AMERICA: ANTHROPOLOGY OF THE SACRED 85, 86 (Lawrence E. Sullivan ed.,
2000) (stating that the Creek religion is dynamic, truly historical, and continually innovative).
45

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Homelands or aboriginal territories tie Indians to all the other components of their
existence, linking cultural, philosophical, religious, and political sovereignty
together.53 Our previous work has explained the property component of Indian
culture and demonstrated how the deprivation of property for indigenous peoples
means a devastating loss of all the other attributes of Indian identity or, simply,
their peoplehood.54 Each tribe has its own linguistic, religious, cultural, and
ancestral tie to specific lands of origin. The sacred homeland of the Navajo
people, for example, is known as Dinetah, a place located within the four
mountains that mark the traditional boundaries of Navajo territory to the East,
South, West, and North.55 Navajo have believed, from the time of their creation,
they have a spiritual obligation to stay within their homeland, nurture it, and
respect the four sacred mountains.56 The Navajo connection to Dinetah was so
strong, the tribe fervently fought against relocation by the U.S. government in the
1860s. But the army, led by General Sherman, forced their relocation by the
Long Walk to Bosque Redondo where they were kept in captivity for four years.
When they were finally able to negotiate a treaty to leave the prison camp, the
Navajos took a much smaller reservation so they could be back at Dinetah and
within the four sacred mountains. This is where the Navajo reside today, and to
this very day, live out sacred obligations in and to the space, directing prayers to
the four mountains.57 Within this territory, the Navajo people have their own selfgovernment, manage a vast land base, and protect cultural resources.58
The Navajo example is only one of hundreds. These connections exist for all
Native people between their aboriginal homelands and their tribal culture and
identity.59 Thus, when land disputes functioned as the site of conflict for Indians
53

Kristen A. Carpenter, Real Property and Peoplehood, 27 STAN. ENV. L. J. 313, 348-355 (2008).
See Kristen A. Carpenter, Sonia K. Katyal, and Angela R. Riley, In Defense of Property, 118 YALE L. J.
1022 (2009).
55
Around 180,000 Navajo (of 225,000 total) reside on their 16.2 million acre reservation, where many
maintain a traditional lifestyle, speaking the Navajo language, living in hogans, grazing sheep, weaving, and
maintaining Navajo spiritual and healing traditions. CLAUDEEN ARTHUR ET AL., BETWEEN SACRED
MOUNTAINS: NAVAJO STORIES AND LESSONS FROM THE LAND 2 (1982) (situating Navajo life between the four
sacred mountains).
56
See Sarah Krakoff, A Narrative of Sovereignty: Illuminating the Paradox of the Domestic Dependent
Nation, 83 OR. L. REV. 1109, 1122 (2004) (Place is central to Navajo culture and identity, and understanding
the modern Navajo Nation necessitates an understanding of the interconnectedness between the Din [the
Navajo people] and their land base.).
57
See RUTH ROESSEL, NAVAJO STORIES OF THE LONG WALK PERIOD 40-41 (1973) (quoting Navajo elder Howard
W. Gorman).
58
NAVAJO NATION CODE tit. I, 205(A)-(G) (2005) (identifying and setting forth standards of care for six
sacred mountains).
59
S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL LAW (2d ed, 2012) (identifying increased sensitivity
to the oppression of indigenous peoples and the resulting international response [in which] indigenous peoples
54

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and European settlers at the point of contact, it also served as ground zero for
indigenous peoples fight for their cultural survival. Because Native people are so
intricately linked with their lands as places of creation and ceremony, locations
of burial grounds where they could connect with and care for ancestors, and
critical sites to procure water, food, and game removal of Indian people from
their land meant removing them from many of the activities that tied them to their
tribal lifeways and identities. Subsequently, tribes witnessed the mass
appropriation of Indian bodies, funerary items, and material goods by non-Indians,
much of which was funded and supported by the U.S. government. Until
eventually, wrapped in the myth of the vanishing Indian, non-Indians also
appropriated Indian culture, to the point of actually playing Indian and
performing Indian identity. 60
This Part traces some of the major transformations in the relationship between
colonizing forces and Native peoples. Several key themes including land
dispossession, the racialization of Indians, religious persecution, and White
fascination with and consumption of Indian culture and identity span the
subsections. The goals of Part II are to provide the historical foundations for this
piece, and to show the links between the appropriation of land, human remains, art
and artifacts, religion, and finally, Indian culture and identity.
a. Colonizing Red
When Europeans arrived on this continent, they needed land upon which to settle.
The lands they discovered, however, were already occupied. 61 In many early
encounters, European settlers recognized utility in interacting with Indians to gain
their expertise in survival. From these earliest times, Europeans relationship with
Indians was fraught with a curious blend of dependence, longing, and violence.
On the one hand, Pilgrims famously relied on neighboring tribes for help with
hunting and cultivating food in their new surroundings62 -- and at the very same
time, there were documented reports as early as the 1600s of pilgrims digging up
Indian graves and taking out funerary objects as objects of curiosity and
treasure.63
have ceased to be mere objects of the discussion of their rights- or lack of rights and have become real
participants in an extensive multilateral dialogue that has also engaged states, international institutions, and
others.).
60
Deloria, supra note _.
61
See generally KAREN KUPPERMAN, INDIANS AND ENGLISH: FACING OFF IN EARLY AMERICA (2011).
62
Kupperman, supra note _, at 183.
63
Jack F. Trope and Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act:

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Ultimately, however, Indians were an obstacle to European settlement, and


conflict for land and influence ensued throughout the eastern seaboard..64 Colonial
governments incentivized their citizens to hunt Indian people by awarding
bounties for proof of an Indian killing. The first head bounty was put into place
during the Pequot War by Connecticut militiamen in 1637.65 Numerous others
followed, with Massachusetts having the most of any of the colonies.66 In upper
New York, French officials expanded scalp bounties to Indian women in 1694.67
Massachusetts followed with yet another innovation in 1697: the Commonwealth
awarded bounties for killing Indian children under the age of ten.68 Eventually, as
one leading historian has documented, [p]olicymakers offered bounties for
Native American heads or scalps in at least twenty-three states or their colonial,
territorial, or Mexican antecedents.69
Into the colonial period, it was religion -- rather than race or color -- that served as
the primary distinction between colonizers and Indians. 70 From the perspective of
Europeans, Indians pagan beliefs made their ascension to equality (in this life and
the next) impossible.71 Indians were savage infidels with whom the English did
not want to become too closely associated, believing that they had a separate
civilization and moral code.72 Thus, the savagery of the Indian was used as a
proxy for inferiority, one which would only turn to skin-color differences in the
mid-18th century.73
Racial categories - the simple color-coded labels of white, red, and black developed first in the major slaveholding regions of the country.74 By 1740 the
Background and Legislative History, 24 ARIZ. ST. L. J. 35 (1992).
64
Examples of violent conflict over lands stretch from King Philips War in the 17th century through the so-called
Indian Wars of the 19th century. See JILL LEPORE, KING PHILIPS WAR AND THE FORMATION OF AMERICAN
IDENTITY (1999); ROBERT M. UTLEY, INDIAN WARS (2002).
65
Benjamin Madley, Reexamining the American Genocide Debate: Meaning, Historiography, and New Methods,
AMERICAN HISTORICAL REVIEW 98 (February 2015).
66
Madley, supra note_, at 98.
67
Madley, supra note _, at 98.
68
Madley, supra note _, at 98.
69
Madley, supra note _, at 98.
70
NANCY SHOEMAKER, A STRANGE LIKENESS: BECOMING RED AND WHITE IN 18TH CENTURY NORTH AMERICAN 129
(OXFORD UNIV. PRESS 2004) (2006).
71
See generally, ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSE
OF CONQUEST (1990) [hereinafter WILLIAMS, WESTERN LEGAL THOUGHT]; WILLIAMS, SAVAGE ANXIETIES, supra
note _.
72
WILLIAMS, SAVAGE ANXIETIES, supra note _, at _.
73
Shoemaker, supra note _, at 129.
74
Shoemaker supra note _, at 129.

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notion of red Indians [began] the trajectory toward widespread acceptance.75 As


the process of racialization crept along in the colonial period, the Indian as an
exotic, primitive other piqued the curiosity of settlers, who adopted Indian
identities as a show of their own rebellion from the British. As recounted in Philip
Delorias work, there are documented accounts of whites playing Indian, in
ostensible homage to the Indians fighting spirit and unrelenting fervor to
maintain their lands, as early as the 1700s.76 For colonial settlers dissatisfied with
British rule, Indians came to be seen as the ultimate warriors and rebels. When
Samuel Adams led protesters to dump tea into the Boston Harbor in 1773, for
example, they were dressed as Mohawk Indians.77 Whatever the symbolism,
however, colonists had come to see Indians as different in terms of race and
religion, as well as socially, politically, and economically incompatible.78 Only a
few years later, in 1776, these same rebels wrote in their Declaration of
Independence from British rule that the King had failed to protect the colonies
from merciless Indian Savages.79
By the end of the colonial period, Indian tribes, still a formidable force but greatly
reduced since the point of contact, were not only savage infidels but Red ones at
that. Indian status was increasingly constituted not only by perceptions of religion
and culture, but also through red skin. These markers of hierarchy and difference
would be used to justify the appropriation of Indian lands, bodies, material
culture, and even identity.
b. Acquiring Red The Treaty Era (1776-1871)
By the time of the formation of the United States,80 leading demographers indicate
that the Native population had been reduced by as much as 95% since the point of
contact, due to war, genocide, and disease.81 And the racialization of Indians was

75

Shoemaker supra note _, at 130.


DELORIA, PLAYING INDIAN, supra note _, at 10-37.
77
See DELORIA, PLAYING INDIAN, supra note _, at 31-32, 66-68.
78
See generally Shoemaker, supra note 107. For a review of important historical works tracing the development of
racial concepts and identities in different regions of North American, across specific tribes and time periods, see,
e.g., Joshua Piker, Indians and Race in Early America: A Review Essay, 3 HISTORY COMPASS 1-17 (2005).
79
THE DECLARATION OF INDEPENDENCE (U.S. 1776).
80
As a wealth of literature details, Indian tribes were contemplated by the Constitution, but never expressly
included with in it. See Wenona Singel, The First Federalists, 62 DRAKE L. REV. 775, 785-86 (2014) (describing
the place of Indian tribes outside of, but in relation to, the U.S. Constitution).
81
RUSSELL THORNTON, AMERICAN INDIAN HOLOCAUST AND SURVIVAL: A POPULATION HISTORY SINCE 1492 43-44
(1987). See generally JARED DIAMOND, GUNS, GERMS, AND STEEL 211 (1997) (putting the population at 20 million
Natives at the time of European contact).
76

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complete.82 During this period, as the importance of differentiation between the


races grew, whiteness was increasingly constructed as a labored creation of racial
ideology.83 For example, settlers mistakenly attributed to racial differences the
fact that Indians were extremely vulnerable to European diseases.84 Because the
settlers were not impacted to the same extent by infection, and possessed limited
understanding of the science of epidemic, greater survival rates amongst white
settlers confirmed their suitability to America, and Indians inability to survive
in their own homelands.85
With such devastating reductions in the number of Native peoples, settlers
continued to remove the remaining Indians from desired territories, and began to
see them as symbolic of a free, pagan, and disappearing race, whose land, material
culture, and identity could be taken and then consumed and assumed by Whites.86
As Deloria has thoroughly documented, by the late 1700s fraternal societies had
formed in which members dressed up as Indians, including face paint and
buckskin, while carrying bows, arrows, and pipes.87
Entranced by the
unknowable knowledge of the sort possessed by the enigmatic Indian,88
inductees of organizations like the Society of Red Men and the Improved
Order of Red Men underwent initiation ceremonies and were given Indian names
to mark the passage from paleface to Red Man. These organizations used Indian
hierarchies -- sachems, chiefs, councils, squaw sachems, and warriors,
ceremonies, costumes, and hierarchies all modeled on their perception of secret
Indian mysteries.89 According to Deloria, these organizations served to
instantiate the Americanness of elite individuals in the new Republic, linked
82

There is a rich body of literature detailing the construction of race in early America. See, e.g., JOYCE E.
CHAPLIN, SUBJECT MATTER: TECHNOLOGY, THE BODY, AND SCIENCE ON THE ANGLO-AMERICAN FRONTIER 160
(2001). CIRCE STURM, BLOOD POLITICS: RACE, CULTURE, AND IDENTITY IN THE CHEROKEE NATION OF OKLAHOMA
(2002); THEDA PERDUE, MIXED BLOOD INDIANS: RACIAL CONSTRUCTION IN THE EARLY SOUTH (2003); J.W.
SWEET, BODIES POLITIC: NEGOTIATING RACE IN THE AMERICAN NORTH, 1730-1830 (2003); SHOEMAKER, supra note
107, at 129. To some extent tribes themselves participated in the racial distinctions that facilitated slavery, with
for example wealthy plantation owners in the Cherokee Nation owning African-descended slaves. See, e.g., TIYA
MILES, THE HOUSE ON DIAMOND HILL: A CHEROKEE PLANTATION STORY 113-14 (2010) (describing the experience
of slaves of Cherokee plantation owner Joe Vann). See also TIYA MILES, TIES THAT BIND: THE STORY OF AN AFROCHEROKEE FAMILY IN SLAVERY AND FREEDOM 50-51 (2005) (noting the vulnerability of slave women who lacked
a Cherokee clan for protection).
83
Chaplin, supra note _, at 160. See REGINALD HORSMAN, RACE AND MANIFEST DESTINY: THE ORIGINS OF
AMERICAN RACIAL ANGLO-SAXONISM 189-90, 231 (1981) (studying the origin of racialism in America).
84
Chaplin, supra note _, at 160.
85
Chaplin, supra note _, at 160.
86
See DELORIA, PLAYING INDIAN, supra note _.
87
DELORIA, PLAYING INDIAN, supra note _, at 46-7.
88
DELORIA, PLAYING INDIAN, supra note _, at 60.
89
DELORIA, PLAYING INDIAN, supra note _, at 60.

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together through secret, enigmatic fraternal organizations promoting multilayered


identities of patriotism, political engagement, and service.90
While these societies were playing Indian, real Indians may well have been the
last thing on their collective mind.91 Certainly the Society of Red Men and other
prominent groups in New York and other segments of eastern society were not
sticking up for Indian rights. In the 1800s tribes were losing their lands to violent
conflict and increasingly lopsided treaty negotiations, often conducted in the
shadow of violence.92 The United States (as successor to the colonial powers)
signed hundreds of treaties with Indian tribes, a power confirmed in the U.S.
Constitution.93 Most treaties during this period transferred Indian lands to the
U.S. in exchange for payment in the form of goods, annuities, education, or health
services, and almost always for the guaranteed protection of the United States so
that tribes could continue to live in and control their own territory.94 As states and
their citizens grew ever hungrier for land, a number of important questions about
the status of Indian property rights reached the courts.
The first major precedent in federal Indian law, the 1823 case of Johnson v.
MIntosh, addressed, among other things, the question of whether Indians could
convey good title to Whites.95 Although the case would prove so determinative to
their rights, no Indian was a party to the case, which was instead brought by a land
speculator who had acquired title originally conveyed by an Indian tribe, against
another white citizen who had acquired title to ostensibly overlapping lands from
the U.S.96 Chief Justice Marshall set the scene by noting that before the arrival of
90

DELORIA, PLAYING INDIAN, supra note _, at 60-61.


DELORIA, PLAYING INDIAN, supra note _, at 60.
92
DELORIA, PLAYING INDIAN, supra note _, at 60. See e.g., Treaty with the Wyandot, Etc., 1805 July 4, 1805, 7
Stat. 87; Treaty with the Ottawa, Etc., 1807 Nov. 17, 1807, 7 Stat. 105; Treaty with the Chippewa, Etc., 1808 Nov.
25, 1808, 7 Stat. 112; Treaty with the Ottawa, Etc., 1816 Aug. 24, 1816, 7 Stat. 146; Treaty with the Wyandot,
Etc., 1817 Sep. 29, 1817, 7 Stat. 160; Treaty with the Chippewa, 1820, Jun. 16, 1820, 7 Stat. 206; Minn. V. Mille
Lacs Band of Chippewa Indians et. al., 119 U.S. 1187 (1999).
93
U.S. Const. art. II, 2, cl. 2. See generally, Robert N. Clinton, A Brief History of The Adoption of The United States
Constitution, 75 IOWA L. REV. 891 (1990); Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 YALE L.J. 1012
(2015) (arguing that the Commerce Clause does not, by itself, give Congress plenary power over Indian Affairs).
94
Most of the several hundred treaties between the U.S. and tribes are collected in CHARLES J. KAPPLER, ED.,
INDIAN TREATIES: 1778-1883 (1972) (facsimile reprint of 2 Indian Affairs: Laws and Treaties (Charles J.
Kappler ed., 1904)). For general background on the American Indian treaty tradition, see generally FRANCIS
PAUL PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY (1994).
95
Johnson v. MIntosh, 21 U.S. (8 Wheat.) 543 (1823).
96
For book length treatments on the doctrine of discovery and the Johnson case, see LINDSAY ROBERTSON,
CONQUEST BY LAW: HOW THE DISCOVERY OF AMERICA DISPOSSESSED INDIGENOUS PEOPLES OF THEIR LANDS
(2007); ROBERT MILLER ET AL., DISCOVERING INDIGENOUS LANDS: THE DOCTRINE OF DISCOVERY IN THE ENGLISH
COLONIES (Oxford Univ. Press 2012); BLAKE A. WATSON, BUYING AMERICA FROM THE INDIANS: JOHNSON V.
91

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Europeans, Indians were the absolute owners and proprietors of the soil.97 But
this state of affairs could not continue, in his view, because Indians were fierce
savages, whose occupation was war.98 The defendants in the case invoked
argument, inspired by John Locke, that the indigenous inhabitants of the continent
were unable to establish property rights because they had not mixed their labor
with the earth.99 And while Marshall expressly declined to rest the decision the
arguments that agriculturists, merchants, and manufacturers, have a right, on
abstract principles, to expel hunters from the territory they possess, he considered
that the character of the Indians might afford some apology for the treatment
they received at the hands of Europeans and Americans.100
The upshot in Johnson was, according to the Court, that Indians were not entitled
to all the rights afforded to white landowners.101 Most significantly for this
decision, Indians did not have a right to convey land titles cognizable in the
courts of the conqueror. Instead, Indians had only a right to occupy land, and
this right could be extinguished by purchase or conquest pursuant to the
Doctrine of Discovery. This system of Indian title, wherein ultimate title is held
by the United States and a title of occupancy is held by the relevant Indian
nation, remains to this day.102 In short, the property rights of Indian tribes had
been diminished from their original state.
The decision in Johnson was foundational to the jurisprudence of American
property law and Indian law alike. Immediately, the U.S. became the sole buyer of
Indian lands, which lost competitive value in the market.103 In the long run, the
courts built on the holding and dicta of Johnson to future diminish Indian property
rights.104 In all of this, as Robert A. Williams, Jr., has written, attitudes and
MCINTOSH AND THE HISTORY OF NATIVE LANDS RIGHTS (Univ. of Okla. Press 2012) Banner, supra note 95. See
also, Eric Kades, The Dark Side of Efficiency: Johnson v. McIntosh and the Expropriation of Indian Lands, 148
Univ. Penn L. Rev. 1065 (2000) Matthew L.M. Fletcher, The Iron Cold of the Marshall Trilogy, 82 N. DAKOTA L.
REV. (2008).
97
Johnson, 21 U.S. (8 Wheat.) at 545.
98
Johnson, 21 U.S. (8 Wheat.) at 590.
99
WILLIAMS, WESTERN LEGAL THOUGHT, supra note _, at 228-9.
100
Johnson, 21 U.S. (8 Wheat.) at 590.
101
See, Joseph William Singer, Original Acquisition of Property: From Conquest and Dispossession to
Democracy and Equal Opportunity, 86 IND. L. J. 763, 767 (2011) (describing the split title of Indian lands)
[hereinafter Singer, Original Acquisition].
102
Singer, Original Acquisition, supra note _, at 767. See, Joseph William Singer, Erasing Indian Country: The
Story of Tee-Hit-Ton Indians v. United States in INDIAN LAW STORIES 244-245 (Carole E. Goldberg, Kevin W.
Washburn, & Philip F. Frickey eds., 2011).
103
See Fletcher, supra note _; Kades supra note _.
104
See infra note _ (describing Tee-Hit-Tons extension of Johnson in support of holding that aboriginal title is not
compensable).

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impressions about Indians lack of property rights were paramount.105 The


influence of the Lockean view of lands and Indians, for example, had great
impacts. Locke, of course, had famously written that, in the beginning, all the
world was America.106 Under this view, the indigenous inhabitants of the
continent were unable to establish property rights because they had not mixed
their labor with the earth.107 By leaving it wild, as the theory went, Indians had
wasted the land and therefore could not acquire the same kinds of possessory
rights associated with fee ownership that whites could acquire. Thus America
was, in a sense, uninhabited, open, free for the taking by Whites.108
These visions of Indians, appearing in law and philosophy, were also reflected in
the 19th centurys literature. James Fennimore Cooper published The Last of the
Mohicans, which enshrined the myth of the vanishing Indian and the noble
savage sealing these images in the American consciousness. The book remains a
staple of American literature today. And, by the mid-nineteenth century,
colonizers had, indeed, cleared most of the eastern part of the United States of
Indians.109 This movement and disappearance of Indians in the east continued to
fuel the view that the Indian would ultimately entirely disappear; thus, all things
Indian were available for appropriation.
Disputes regarding the ownership and settlement of lands did not cease after
Johnson. 110 The pressure for remaining Indian lands in the east intensified so
greatly that the federal government passed a series of Removal Acts in the early
1800s, which forced most of the remaining eastern Indians to migrate west of
the Mississippi River.111 In Georgia, for example, Cherokee Indians faced
decades of pressure by state and local powers including increasingly violent
incursions by militias in the 1820s and 1830s -- to relinquish their treatyprotected lands. But the Cherokee people had an entire society, economy, and
cosmology deeply grounded in their homeland.112 They did not want to give up

105

See, e.g., WILLIAMS, LIKE A LOADED WEAPON, supra note _, at 118-19.


John Locke, The Second Treatise, in TWO TREATISES OF GOVERNMENT 49 (Peter Laslett ed., Cambridge Univ.
Press 1960) (1698).
107
WILLIAMS, WESTERN LEGAL THOUGHT, supra note _, at 228-9.
108
See DELORIA, PLAYING INDIAN, supra note _, at 64-67.
109
DELORIA, PLAYING INDIAN, supra note _, at 64.
110
See BANNER, supra note 96, at 3-4. See generally LINDSAY ROBERTSON, CONQUEST BY LAW: HOW
DISCOVERY OF AMERICA DISPOSSESSED INDIGENOUS PEOPLES OF THEIR LANDS; ROBERT J. MILLER: NATIVE
AMERICA, DISCOVERED AND CONQUERED: THOMAS JEFFERSON, LEWIS & CLARK, AND MANIFEST DESTINY
(2006).
111
BANNER, supra note _, at 191.
112
See JAMES MOONEY, HISTORY, MYTHS, AND SACRED FORMULAS OF THE CHEROKEES (1972 reprint).
106

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their cabins, corn fields, or the graves of their ancestors to the whites who wanted
to possess them.113 The Cherokee Nation famously brought several lawsuits
challenging the removal policy based on their treaties with the U.S which
recognized their land base.114 The Supreme Court agreed in Worcester v. Georgia
that the state could not force the Cherokees to accede to its demands.115 Despite
this ruling, the U.S. convinced several Cherokee politicians without the support
of the Principal Chief or majority of citizens -- to sign the Treaty of the New
Echota of 1835 agreeing to remove to Indian Territory. To enforce the terms,
soldiers invaded Cherokee homes, took their personal possessions, and corralled
children, elders, and adults into stockades, where many died of disease and other
causes. In 1838, the Cherokees were relocated to Indian Territory, a devastating
experience during which approximately 4,000 people, or approximately one
quarter of the population, died.116
The violent removal and dispossession of Indians is a story told and retold of the
Trail of Tears, the Trail of Death, the Long Walk, and numerous other relocations
that the government forced on Indian tribes.117 By the turn of the century, more
than thirty Indian tribes had been removed from eastern lands and upper
Midwest to the Indian Territory to make room for white settlement and western
movement. These vacancies118 seemed to fuel White interest in the material
culture left by former Indian inhabitants. As Trope and Echo-Hawk explain in
their seminal history on the subject, by the 1840s burgeoning theories of physical
anthropology fueled scientists to unearth Indian graves and take the crania to
prove that Indians were racially inferior and doomed to extinction.119 Indian
graves were looted as common course, with Indian goods exhumed and sold to
museums and private collectors, many of them ending up in Europe. Federal laws
113

Cherokee citizens made these points in various forums including letters to their newspaper. See, e.g., Letter
from Aquohee District, CHEROKEE PHOENIX, April 15, 1829,
http://www.wcu.edu/library/DigitalCollections/CherokeePhoenix/Vol2/no05/pg2col5.htm (last visited Mar. 3,
2015).
114
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
115
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
116
These figures are somewhat contested, with population lost estimates as low as 2,000 and as high as 10,000,
depending on the methodology. For discussion, see CHARLES C. ROYCE, THE CHEROKEE NATION OF INDIANS 170
78 (1975); RUSSELL THORNTON, THE CHEROKEES: A POPULATION HISTORY 74 (1990).
117
See LYNN R. BAILEY, THE LONG WALK: A HISTORY OF THE NAVAJO WARS, 1846-68 (1964) (describing the
Long Walk of the Navajo); DAVID EDMUNDS, THE POTAWATOMIS: KEEPERS OF THE FIRE, 327, 337 (1987)
(referring to the Trail of Death or the removal of the Potawatomis).
118
See Charrier v. Bell, 496 So. 2d 601 (1986) (in contest between state and amateur archaeologist, court noted
Indians had not abandoned their grave sites, but rather had been forced out in the 1830s).
119
Jack F. Trope and Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act:
Background and Legislative History, in REPATRIATION READER: WHO OWNS AMERICAN INDIAN REMAINS 40
(Devon Mihesuah ed., 2000).

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ultimately made Indian human remains and associated funerary objects property
of the United States government. In 1868, for example, the Surgeon General
ordered all U.S. Army field officers to send Indian skulls to the Army Medical
Museum, again, to confirm claims of racial inferiority. Many were taken from the
remains of Indians that had perished during massacres by the U.S. Army.120
At the same time, the assault on actual Indians continued in a literal and deadly
fashion. When Indians resisted white expansion, whether refusing to cede their
lands or continuing to hunt off reservation, governments put bounties on their
red-skins as rewards for Whites to kill Indians and bring in body parts as
proof.121 The bounties on red skins increased in number and geography, with
Indian hunting spreading to the south and the west, sometimes funded by local
militias, and oftentimes by the United States.122 Bounties were paid for proof of
Indian dead, demonstrated by bringing in the skin of actual dead Indian human
beings. In California, state-sponsored genocide was well-documented during the
Gold Rush era, with some estimates suggesting the Native population there
diminished from a quarter of a million to 20,000 people during the mid-19th
century.123 Thus racial violence, both through forced removal and extermination
practices, facilitated the oppression of Indians in the 19th century. In addition to
enacting more laws that would shrink the Indian land base, the federal government
also instituted programs, which literally reduced the Indian to the skin that
covered the body, and monies paid for their murder, not unlike bounties offered
for animal pelts during the same period.124 An advertisement in a Minnesota
newspaper in 1863 read, The State reward for dead Indians has been increased to
$200 for every red-skin sent to Purgatory. This sum is more than the dead bodies
of all the Indians east of the Red River are worth.125
c. Whiting Red: Allotment and Assimilation (1871-1934)
Reflecting the decreased power of the Indian tribes, Congress ended treatymaking with the tribes in 1871,126 after which federal Indian policy was pursued
120

Jack F. Trope and Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act:
Background and Legislative History, in REPATRIATION READER: WHO OWNS AMERICAN INDIAN REMAINS 40
(Devon Mihesuah ed., 2000).
121
See THE DAILY REPUBLICAN, Winona, Minnesota, Sept. 24, 1863.
122
See Madley, supra note _, at 126.
123
See RUSSELL THORNTON, AMERICAN INDIAN HOLOCAUST AND SURVIVAL 49 (1992).
124
See Madley, supra note _, at 115.
125
THE DAILY REPUBLICAN, Winona, Minnesota, Sept. 24, 1863.
126
See Act of Mar. 8, 1871, ch. 120, 16 Stat. 544, 566 (codified as amended at 25 U.S.C. 71 (2006)) ([N]o
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through executive orders, congressional acts, and judicial decisions.127 As it


consolidated power over Indian bodies on reservations, the federal government
quickly turned to dominating and destroying Indian lifeways, through a new
policy of assimilation. Lawmakers believed that the eradication of Indian
cultures was a key step in break[ing] up the tribal mass and paving the way for
political and geographic domination by states and the federal government.128
Federal policy attacked the twin strongholds of tribal land and culture to further
dispossession. The rough concept was that if Indians were induced to abandon
subsistence cultures, they would no longer need the large tracks of land that
supported those activities, which could then be made available to white
settlement.
To eradicate Indian culture, the government targeted religion and education. The
federal Indian Commissioner claimed that encouraging Indians to put aside all
savage ways would help them achieve salvation through Christianity.129 At the
turn of the century, the government outlawed a number of Indian ceremonies and
sacraments, and penalized such practices with both incarceration and denial of
treaty food rations. Famously, the U.S. Army shot and killed several hundred
Lakota people while they prayed before a Ghost Dance at Wounded Knee, South
Dakota. From the governments perspective, these efforts were meant to remove a
badge of servitude to savage ways and traditions which are effectual barriers to
the uplifting of the race.130 Once Indian religions were dead, the plan was to
inculcate Indians in Christian belief and practice. Toward this end, the federal
government partnered with Christian denominations to fund schools that would
Kill the Indian in him and Save the Man.131 Some of these schools were on
reservations, while others were purposefully located far away so as to diminish the
influence of families on Indian children. Government and religious authorities
independent nation, tribe, or power with whom the United States may contract by treaty[, but] nothing herein
contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and
ratified with any such Indian nation or tribe.).
127
CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW 24 (1987). See Robert T. Anderson, Treaty
Substitutes in the Modern Era in Alexandra Harmon, Ed., The Power of Promises: Rethinking Indian Treaties in
the Pacific Northwest 321-338 (2008).
128
WILKINSON, BLOOD STRUGGLE, supra note 68, at 19 (quoting President Theodore Roosevelt as imposing
assimilation and allotment policies as a mighty pulverizing machine to break up the tribal mass); see Allison M.
Dussias, Ghost Dance and Holy Ghost: The Echoes of Nineteenth-Century Christianization Policy in Twentieth
Century Native American Free Exercise Cases, 49 STAN. L. REV. 773805 (1997) (describing assimilation
programs that worked directly on religion).
129
Report of Commissioner of Indian Affairs W.A. Jones supra note _, at 727.
130
Report of Commissioner of Indian Affairs W.A. Jones, supra note _, at 727.
131
DAVID WALLACE ADAMS, EDUCATION FOR EXTINCTION: AMERICAN INDIANS AND THE BOARDING SCHOOL
EXPERIENCE, 18751928 52 (1995).

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notoriously employed coercive means to convince Indian families to enroll their


children and if they truly resisted, then sometimes their children were simply
taken against their will and in either event, sent away for education in English,
Christianity, and manual labor skills.132 During the school year, many Indian
children were subject to sexual violence and other forms of abuse by boarding
school staff; during the summers, they were often sent to white families as
domestic workers.133
With respect to land, the Allotment Act of 1887 authorized the executive branch
to take the treaty-guaranteed lands owned by tribes and split them into smaller
parcels (or allotments) to be divvied among individual Indians. As President
Theodore Roosevelt famously stated: The time has arrived when we should
definitely make up our minds to recognize the Indian as an individual and not as a
member of a tribe. The General Allotment Act is a mighty pulverizing engine to
break up the tribal mass. It acts directly upon the family and the individual.134
Tribes and individuals often resisted, sensing that the division of collective lands
would bring economic, social, and cultural upheaval and devastation,135 and also
with an awareness among hunting and gathering tribes that they could not be
turned into farmers on the harsh plains overnight.136 Nevertheless, the federal
government coerced allotment agreements with tribes.137 And so-called
surplus lands left over became available for non-Indian settlement.

132

See id. at 2124 (stating that the three aims of Indian education were to provide children with the rudiments of
an academic education, teach individualization over tribal community interests, and promote Christianization); see
generally TIM GIAGO, CHILDREN LEFT BEHIND: THE DARK LEGACY OF INDIAN MISSION BOARDING SCHOOLS (2006)
(providing a first-hand account of a students experience at an Indian boarding school); AWAY FROM HOME:
AMERICAN INDIAN BOARDING SCHOOL EXPERIENCES, 18792000 (Margaret L. Archuleta et al. eds., 2000)
(providing an historical and pictorial overview of Indian boarding schools in the nineteenth and twentieth
centuries).
133
See, e.g., TIM GIAGO, CHILDREN LEFT BEHIND: THE DARK LEGACY OF INDIAN MISSION BOARDING SCHOOLS
(2006) (account by journalist and boarding school survivor, Tim Giago). For scholarly treatments of Indian
boarding schools, see TSIANINA LOMAWAIMA, AWAY FROM HOME: AMERICAN INDIAN BOARDING SCHOOL
EXPERIENCES, 1879-2000 (describing positives and negatives of boarding school experiences); DAVID WALLACE
ADAMS, EDUCATION FOR EXTINCTION: AMERICAN INDIANS AND THE BOARDING SCHOOL EXPERIENCE, 1875-1928
(1995).
134
WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW, supra note _, at 24.
135
See Kristen A. Carpenter, Contextualizing the Losses of Allotment Though Literature, 82 N.D. L. REV.
605, 622-23 (2006) (detailing cultural and socioeconomic impacts of the federal governments allotment of
tribal lands).
136
See Angela R. Riley, The Apex of Congress Plenary Power over Indian Affairs: The Story of Lone Wolf v.
Hitchcock, in INDIAN LAW STORIES (Goldberg et al., eds 2011).
137
See, e.g., WILLIAM T. HAGAN, TAKING CHEROKEE LANDS: THE CHEROKEE (JEROME) COMMISSION, 1889-1893
(describing the coercive tactics that federal commissioners used to negotiation allotment agreements with twenty
tribes in Indian Territory that ceded fifteen million acres of land and paved the way for Oklahoma statehood).

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Lone Wolf, a Kiowa leader, and others, brought suit on behalf of the several tribes
challenging abrogation of the Treaty of Medicine Lodge and attempted to halt the
governments allotment of their lands. But the Supreme Courts 1903 opinion in
Lone Wolf v. Hitchcock legitimized Congress decision and opened up the KCA
reservation to white settlement. The Court held that allotment was merely a
change in the form of Indian tribal investment and, in any event, the treaty
abrogation was nonjusticiable by the courts. There would be no limit, it seemed, to
Congress power to act for better or worse in regards to Indians. 138
A Senator from Pennsylvania said at the time of the decision:
It [Lone Wolf] is a very remarkable decision. It is the Dred Scott decision No. 2,
except that in this case the victim is red instead of black. It practically inculcates
the doctrine that the red man has no rights which the white man is bound to
respect, and, that no treaty or contract made with him is binding. Is that not about
it?139
Indian land holdings were reduced by approximately 90 million acres during the
allotment period.140 As Principal Chief Wilma Mankilller of the Cherokee Nation
later stated, allotment had the precise impact on the Indians it was intended to
have it caused a massive deprivation of property, and also came dangerously
close to completely destroying Indian culture and society:
What happened to us at the turn of the century with the loss of land, when our land
was divided out in individual allotments, had a profound irreversible effect on our
people. . . . When we stopped viewing land ownership in common and viewing
ourselves in relation to owning the land in common, it profoundly altered our
sense of community and our social structure. And that had a tremendous impact
on our people and we can never go back.141
Ironically, as the assault on Native religions and lifeways continued, Americans
more and more took fetishized the Indian, whose culture they believed was on the
precipice of extinction. Mainstream society in Europe and the U.S. had also
developed an appetite for collecting Indian material culture. 142 Vast amounts of
138

Lone Wolf v. Hitchcock, 187 U.S. 553, 568 (1903).


Senator Matthew Quay (R. Pennsylvania), U.S. Congressional Record 2028 (1903).
140
See Judy Royster, The Legacy of Allotment, 27 ARIZ. ST. L. J. 1, 13 & n. 58 (1995).
141
Wilma Mankiller, in THE NATIVE AMERICANS, TURNER BROADCASTING SYSTEM (Turner Broadcasting Systems
1992).
142
DOUGLAS COLE, CAPTURED HERITAGE: THE SCRAMBLE FOR NORTHWEST COAST ARTIFACTS 286-310 (1985)
139

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Indian art, artifacts, and other prized possessions moved from Indian ownership to
whites. Some of these transfers were likely illegal when they happened either
through theft, coercion, or the alienation of communal goods by tribal members
that they had no right to sell. Other goods were likely sold in desperate need for
money to buy foods and goods, reservation conditions were all but unbearable,
with numerous accounts of starvation, disease, and death by the elements.
Once the actual Indian wars ended, Wild West Shows became wildly popular. In
these, cowboys and Indians played out romantic images of epic Western battles,
concretizing the image of a Sioux Warrior on a horse as the definitive picture of
an American Indian.143 According to historians, between 1883 and 1933, hundreds
of Indians performed in these shows in the United States and around the world.144
Similarly as Americans look[ed] away from Europe and toward the West to
discover the uniqueness of their culture,145 turn of the century filmmakers
became captivated with the American West.146 In many of these early films,
directors filmed Indians on reservations, both to promote the West and to show the
governments success in containing Indians.147 Relatively inexpensive and easy
to produce, Westerns became a booming genre in American film in 1909,148 and
in many149 of these films Indians were silent and stoic.150
In addition to watching Indians in shows and movies, white Americans also
played Indian in private clubs and in public displays. The Boy Scouts set up a
structure around Indian identity and tribal roles in the early 1900s and then this

(One historian notes A staggering quantity of material, both secular and sacred . . . left the hands of their
native creators and users for the private and public collections of the European world By the time it ended
there was more Kwakiutal material in Milwaukee than in Mamalillikulla, more Salish pieces in Cambridge
than in Comox. The City of Washington contained more Northwest Coast material than the state of
Washington and New York City probably housed ore British Columbia material than British Columbia
itself.).
143
See L.G. MOSES, WILD WEST SHOWS AND IMAGES OF AMERICAN INDIANS: 1883-1933 4 (Univ. New Mex. Press
1996); CAROL SPINDEL, DANCING AT HALFTIME: SPORTS AND THE CONTROVERSY OVER AMERICAN INDIAN
MASCOTS 108-114 (2002).
144
Moses, supra note _, at 4-5.
145
Brodie, supra note _, at 17.
146
ANDREW BRODIE SMITH, SHOOTING COWBOYS AND INDIANS: SILENT WESTERN FILMS, AMERICAN CULTURE, AND
THE BIRTH OF HOLLYWOOD 9 (2003).
147
Brodie, supra note _, at 18.
148
Brodie, supra note _, at 37.
149
An exception to the rule, Indian director/actor James Young Deer and his actress wife Lillian Red Wing, made
the most distinctive contributions to the genre-depicting Native Americans more sympathetically and in more
complex ways than any other silent-era filmmakers in the early 1900s. Smith, supra note 9, at 72.
150
Kilpatrick, supra note _, at 36.

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was extended to the Camp Fire Girls as well.151 One group of Scouts, the Koshare
troop, was founded in 1933 with a specific Indian structure. Its hierarchy was
characterized by the papoose, the brave, and chiefs, and it used Navajo and Sioux
tribes as names for patrols. Some of the more (in)famous Indian-inspired sports
mascots were also developed during this period. Along with numerous other
sports franchises, the Cleveland baseball team adopted Indians name in 1914.152
In 1926, the University of Illinois mascot Chief Illiniwek made his halftime show
debut, and started wearing a war bonnet made of turkey feathers shortly
thereafter.153 In 1930, the University of North Dakota athletic teams started calling
themselves the Sioux the fighting would come later.154 In all of these ways,
Indians had become, by the 1930s, largely figments of the American imagination- except for the real Indians trying to survive allotment and assimilation, as well as
the Great Depression, on reservations throughout the U.S.
d. Red in the Eras of Reorganization and Termination (1934-1960)
When it became clear that Indians had insufficient lands, training, and capital to
become farmers in one generation many reservations had become extremely
poor destitute places by the 1930s155 -- the governments own Meriam Report
forced the government to conclude what many had feared all along: allotment
was a resounding failure. Led by Commissioner of Affairs John Collier and the
reformist attitudes of white sympathizers across the nation, the federal
government launched a new policy of reorganization that would strengthen
tribal governments and make new funding available for programs to support
Indians on reservations.156 In 1934, Congress passed the Indian Reorganization
Act (IRA) to end and reverse the impacts of assimilation-era policies by ending
allotment. Among other things, it provided for the organization of tribal
governments, improvement of federal administration of Indian affairs, and a
comprehensive scheme of land acquisition and consolidation. The Reorganization
151

DELORIA, PLAYING INDIAN, supra, note _, at 110-112.


Jack A. Guggenhiem, The Indians Chief Problem: Chief Wahoo as State Sponsored Discrimination and a
Disparaging Mark, 46 CLEV. ST. L. REV 211, 213-14 (1998).
153
Brendan S. Crowley, Resolving the Chief Illiniwek Debate: Navigating the Gray Area Between Courts of Law
and the Court of Public Opinion, 2 DEPAUL J. SPORTS L. & CONTEMP. PROBS. 28, 31 (2004).
154
Jason Finkelstein, What the Sioux Should do: Lanham Act Challenges in the Post-Harjo Era, 26 CARDOZO
ARTS & ENT. L. J. 301, 302 (2008-2009).
155
During the allotment period some resistant families lost their farms when others wrongfully claimed them as
part of their allotments, ROSE STREMLAU, SUSTAINING THE CHEROKEE FAMILY: KINSHIP AND THE ALLOTMENT OF
AN INDIGENOUS NATION 171 (2011).
156
See generally TOM HOLM, THE GREAT CONFUSION IN INDIAN AFFAIRS: NATIVE AMERICANS AND WHITES IN THE
PROGRESSIVE ERA (2005) (identifying how Native American sense of identity helped them resist the U.S.
governments attempted assimilation).
152

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Era saw some recognition of Indian culture, including the passage of the Indian
Arts and Crafts Act to fund tribal artisan programs.
But once again the pendulum of Indian policy quickly swung, this time to
eradicate the federal governments ongoing obligation to tribes by means of three
major mechanisms: the settlement of ancient Indian claims, the termination of the
federal-tribal relationship, and the extension of state law over reservation lands.
The Indian Claims Commission Act (ICCA) of 1946 granted tribes access to the
U.S. Court of Claims for claims sounding either in law or equity, and created a
commission to investigate and settle all claims arising before 1946.157 The ICCA
had a remedial aspect, namely to assess reparations for each tribe in accordance
with its individual history and the amount of blame appropriately fixed upon the
government for their losses,158 but largely failed to meet these goals. In one
famous and emblematic case, for example, the attorney for the Sioux tribes sued
for compensation for taking of the Black Hills, all while the tribes wanted actual
restitution of these sacred lands.159 Nevertheless Congress hoped that settling
ancient grievances would allow Indians to cast off the last of their bitterness
toward the United States and assimilate fully into the dominant culture.160
Congress in 1953 adopted an official policy of Termination by which it would
terminate the federal-tribal relationship.
The goal of House Concurrent
Resolution 108 was as rapidly as possible to make Indians within the territorial
limits of the United States subject to the same laws and entitled to the same
privileges and responsibilities as are applicable to other citizens of the United
States.161 From another perspective, the federal government was interested in
opening up additional Indian resources for development while also diminishing its
own financial obligations to tribes. One of the first tribes targeted for the policy
were the Klamaths who owned valuable timber in Oregon, which the government
quickly sold, distributing only a meager portion of the proceeds to tribal
members.162 Congress passed Public Law 280 extending state criminal law and
civil adjudicatory jurisdiction to reservations or former reservations in a number

157

Indian Claims Commission Act of 1946, Pub. L. No. 726, ch. 959, S 2(5), 60 Stat. 1049-50.
Indian Claims Commission Act ch. 95, 60 Stat. at 469.
159
See Sioux Nation of Indians v. United States, 601 F.2d 1157, 1172 (Ct. Cl. 1979); See David H. Getches,
Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law, 84 CALIF. L. REV.
1573, 1586 (1996) (describing conflict with the attorney).
160
Indian Claims Commission Act ch. 95, 60 Stat. at 468.
161
H.R. Con. Res. 108, 83D Cong. (1st Sess. 1953).
162
Donald Fixico, Termination and Restoration, THE OREGON ENCYCLOPEDIA,
http://oregonencyclopedia.org/articles/termination_and_restoration/#.VYMFouv4vFI.
158

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of states.163 Between 1953 and 1964, 109 tribes were terminated; approximately
2,500,000 acres of Indian land were removed from trust status; and 12,000 Native
Americans lost tribal affiliation.164
And perhaps one of the greatest blows to Indian land and culture came in 1955
ironically, only one year after the Courts path marking opinion in Brown v. Board
of Education. 165 In a push to exploit resources in the state of Alaska, the federal
government took and sold hundreds of thousands of acres of timber in the
aboriginal territory of the Tee-Hit-Ton Indians, a subgroup of the Tlingit peoples.
The tribe ultimately filed a takings lawsuit, which reached the Supreme Court in
Tee-Hit-Ton Indians v. United States.166 The Court held that the Alaskan Natives
original Indian title was not property within the meaning of the Fifth
Amendment; therefore, the United States had no obligation to pay just
compensation for the land. In language ringing with racism out of place, even for
its time, Justice Reeds reasoned:
Every American schoolboy knows that the savage tribes of this continent were
deprived of their ancestral ranges by force and that, even when the Indians ceded
millions of acres by treaty in return for blankets, food and trinkets, it was not a
sale but the conquerors will that deprived them of their land.167
As a result, thousands of Alaska Natives who were in living subsistence lifestyles
based on hunting and gathering, had no title to their lands. Indeed, Tee-Hit-Ton
paved the way for exploitation of Alaskas oil and other natural resources and for
Congress later to turn Alaska Native villages into corporations via the Alaska
Native Claims Settlement Act. Although roundly criticized as racist and
discriminatory by lawyers, scholars, and human rights tribunals alike, it has never
been overruled or repudiated by the Supreme Court.168 To this very day, Indian
163

Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. 1162, 28 U.S.C.
1360 (2000)); CAROLE E. GOLDBERG ET AL., PLANTING TAIL FEATHERS: TRIBAL SURVIVAL AND PUBLIC LAW 280,
(1997); DUANE CHAMPAGNE AND CAROLE E. GOLDBERG, CAPTURED JUSTICE: NATIVE NATIONS AND PUBLIC LAW
280 (2012).
164
History and Culture: Termination Policy 1953-1968, AMERICAN INDIAN RELIEF COUNCIL,
http://www.nrcprograms.org/site/PageServer?pagename=airc_hist_terminationpolicy.
165
Brown v. Board of Educ. of Topeka, 75 U.S. 753 (1955); Stacy L. Leeds, The More Things Stay the Same:
Waiting on Indian Laws Brown v. Board of Education, 38 TULSA L. REV. (2002) (commenting on Plessy v.
Fergusons ultimate overruling by the Supreme Court, while Lone Wolf remains binding law).
166
348 U.S. 272 (1955).
167
Tee-Hit-Ton, 348 U.S. at 289-290. This language was a pointed rejoinder to language in Felix Cohens
Handbook of Federal Indian Law attesting to the importance and sacred quality of tribal treaty rights. See Riley,
Supreme Court, supra note __.
168
See Inter-Am-Com H.R., Mary and Carrie Dann, Report N. 99/99 (Sep. 27th, 1999); Leeds, supra note 224

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lands held as aboriginal title (the original right of indigenous occupancy) are
excluded as compensable property interests under the 5th Amendment of the U.S.
Constitution, a deprivation of rights that applies only to Indian property
interests.169
By mid-century, from the perspective of the dominant society anyway, conquest
was nearly complete. Whites had removed, killed, and destroyed Indian people to
facilitate the taking of Indian lands. With Indians pushed out of the way -- either
literally through removal, disease, or genocide or metaphorically, via policies of
forced assimilation -- whites became free to claim not only Indian lands, but
Indian bodies, identities and Indian cultures, for their own purposes. As tribes
tried to navigate the new reorganization policy and programs, non-Indians
curiously ramped up their appropriation of Indian culture. Sports teams took on
Indian names, as in the Boston Braves, who later became the Boston R-Skins
before moving to Washington in 1937.170 In movies and television, cowboys and
Indians reigned supreme,171 with often with non-Indian actors playing Indian
characters in popular shows like The Lone Ranger and Gunsmoke.172
e. Contesting Red in the Period of Self-Determination (1960-1980)
In reality, of course, even during the darkest periods of relocation, assimilation
and termination, American Indians had neither gone extinct nor relinquished
claims to their resources. In this section, we focus on the period of selfdetermination,173 beginning roughly in the late 1960s and early 1970s, when
American Indians mounted what Charles Wilkinson has called a last stand for
Native people.174 American Indian people on reservations and in cities alike
(commenting on Plessy v. Fergusons ultimate overruling by the Supreme Court, while Lone Wolf remains binding
law). See, e.g., Joseph William Singer, Well-Settled, The Increasing Weight of History in American Indian Land
Claims, 28 GA. L. REV. 481, 483-86 (1994); Joseph William Singer, Erasing Indian Country: The Story of Tee-HitTon Indians v. United States in INDIAN LAW STORIES 229-59 (Carole E. Goldberg, Kevin W. Washburn, & Philip
F. Frickey eds., 2011).
169
Tee-Hit-Ton, 348 U.S. at 272. Compare Eddie Mabo and Others v. The State of Queensland, 107 ALR 1
(Austl. 1992); Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, Inter-Am. Ct. H.R. (ser. C) No. 79 (2001)
(holding that Nicaraguas obligation to protect property rights under Article 21 of the American Convention on
Human Rights encompassed interests defined by the Awas Tingni peoples own customary law of land tenure).
170
Holmes, supra note _; Katyal, supra note _.
171
WILLIAM INDICK, THE PSYCHOLOGY OF THE WESTERN: HOW THE AMERICAN PSYCHE PLAYS OUT ON SCREEN 2
(2008).
172
MICHAEL RAY FITZGERALD, NATIVE AMERICANS ON NETWORK TV: STEREOTYPES, MYTHS, AND THE GOOD
INDIAN 15 (2013).
173
See WILKINSON, BLOOD STRUGGLE, supra note _, at 5860, 17789, 263.
174
See WILKINSON, BLOOD STRUGGLE, supra note _, at xiii. While Part II analyzes the self-determination era,
especially from the 1970s to 2000s, the federal self-determination policy continues to this very day; thus, there is

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became engaged in a modern tribal sovereignty movement with a particular


focus on the collective rights of tribes. In both major court cases and activism
across the country,175 tribal leaders and community members called for an end to
termination and renewal of tribal self-governance; for the enforcement of treaty
rights to hunt, fish, and gather; and to achieve both modern economic progress
and revitalization of ancient cultural traditions.176
One of the notable markers of the Indian self-determination movement was that,
unlike in previous eras when federal policy makers decided that they knew what
was best for Indians, this time they listened to tribal leaders who had, for their
part, become formally educated, organized a national advocacy organization, and
joined forces to develop a strategy based on history, culture, and law.177 Pushed
in part by this multi-faceted wave of advocacy, President Nixon made an historic
speech that would become known for ushering in the period of selfdetermination. Noting, first, that Indians were at the bottom of every scale of
measurement--employment, income, education, health he then tied this to a
history of injustice and deprivation (or, in our terminology, appropriation).178
To reverse course, Nixon announced a federal policy in favor of tribal selfdetermination in the areas of education, economics, government, and culture.179
The spirit of the new policy would be for the Indian future to be determined by
Indian acts and Indian decisions,180 for example, by creating partnerships in
which Indian tribes could administer federally-funded programs on reservations.
In addition, the self-determination policy had a specific provision to address a
major incident of appropriation. As Nixon acknowledged, For 64 years, the Taos
Pueblo has been trying to regain possession of this sacred lake and watershed area
in order to preserve it in its natural condition and limit its non-Indian use. The
Taos Indians consider such action essential to the protection and expression of
their religious faith.181 Immediately responding to Nixons call, Congress passed
therefore some overlap between this discussion and Part IIIs focus on the global human rights movement in the
2000s.
175
WILKINSON, BLOOD STRUGGLE, supra note _, at 129-149.
176
See WILKINSON, BLOOD STRUGGLE, supra note _, at xiii.
177
WILKINSON, BLOOD STRUGGLE, supra note _, at 89-205.
178
Nixons 1970 Address to Congress http://www.presidency.ucsb.edu/ws/?pid=2573 (This condition is the
heritage of centuries of injustice. From the time of their first contact with European settlers, the American Indians
have been oppressed and brutalized, deprived of their ancestral lands and denied the opportunity to control their
own destiny.)
179
See id. at 18998 (explaining President Nixons policies toward Indian affairs and the programs started by the
Office of Economic Opportunity).
180
http://www.presidency.ucsb.edu/ws/?pid=2573
181
http://www.presidency.ucsb.edu/ws/?pid=2573

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legislation to return the lake and 48,000 acres of surrounding lands to Taos
Pueblo.182
More broadly, Congress passed the Indian Self-Determination and Education
Assistance Act of 1974 to support tribal programs in for economic development
and education.183 Several years later, the American Indian Religious Freedom Act
of 1978 (AIRFA) reversed past federal policy aimed at eradicating Indian
religions, as follows:
[I]t shall be the federal policy of the United States to protect and preserve for
American Indians their inherent right of freedom to believe, express, and exercise
the traditional religions of the American Indian, Eskimo, Aleut, and Native
Hawaiians, including but not limited to access to sites, use and possession of
sacred objects, and the freedom to worship through ceremonials and traditional
rites.184
As a number of community members, lawyers, and scholars have documented, the
self-determination period inspired renewed efforts to seek legal redress for the
deprivation of lands, treaty rights, and religious freedoms. As tribal people came
together around community development, they also recommitted to many of the
cultural and subsistence traditions that sustained them, and that required the
protection of lands and other resources.
In the category of land claims, several tribes filed lawsuits against state and local
governments, alleging violations of federal laws known as Indian Non-Intercourse
Acts, which prohibited the purchase of Indian lands by anyone other than the
federal government.185 In some early claims, questions of Indianness and race
served as a bar, as in the case of the Mashpee Tribe whose land claim was derailed
by a jury decision that the tribe had not been a tribe for two key dates during its
history.186 In a series of cases involving the Oneida Indian Nation of New York,
182

The Taking and Restoration of Blue Lake, NATIVE AMERICAN RIGHTS FUND ANNOUNCEMENTS 3 (1979),
available at, http://www.narf.org/wordpress/wp-content/uploads/2015/01/nlr5-1.pdf (discussing the taking of Blue
Lake from the Taos Pueblo and its restoration under special religious circumstances).
183
See Indian Self-Determination and Education Assistance Act of 1974, P.L. 93-638, 25 U.S.C. 450 (statement
of U.S. policy towards Indian Self-Determination in education).
184
American Indian Religious Freedom Act, 42 U.S.C. 1996 (2006).
185
See e.g., An Act to Regulate Trade and Non-Intercourse with the Indian Tribes, ch. 33, 4, 1 Stat. 137 (1790);
Indian Trade and Intercourse Act of 1793, ch. 19, 8, 1 Stat. 329; Current version at 25 U.S.C. 177 (2000)
186
Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940 (D. Mass. 1978), affd sub nom. Mashpee Tribe v. New
Seabury Corp., 592 F. 2d 575 (1st Cir.), cert. denied, 444 U.S. 866 (1979); Gerald Torres and Kathryn Milun,
Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case, 4 DUKE L. J. 625 (1990).

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the Supreme Court held that the federal courts had jurisdiction over NonIntercourse Acts violations,187 and then, that the tribes claims were not barred by
statutes of limitations or equitable defenses. In affirming that the defendants had
unlawfully purchased the tribes reservation lands,188 these cases cleared the way
for a series of cases under the Non-Intercourse Acts to proceed through the courts.
During roughly the same time period, several Indian tribes pursued litigation and
received settlements of both land and money through federal legislation.189
Controversies over jurisdiction have followed, somewhat hampering opportunities
to restore the tribal land base for economic, governance, and cultural purposes.190
Nevertheless, where politically possible, legislative solutions have provided
greater recovery from Indian appropriation. One such example in the realm of
tangible cultural property is the 1990 Native American Graves Protection and
Repatriation Act (NAGPRA).191 NAGPRA was passed to give tribes a right of
consultation regarding new disruptions of Indian gravesites on federal and tribal
lands, and required federally funded museums to inventory and repatriate human
remains, funerary objects, and items of cultural patrimony to tribes.192 Because of
the success in recovering items necessary for particular ceremonies and rituals,
some tribal ceremonial practices were revived. With the opportunity for
repatriation, in their own communities, elders taught ceremonial practices to the
youth, and many tribes experienced a revival of traditional religions.193 Many
tribes have initiated repatriation actions, often investing substantial time, energy
and resources in successful cases.194
One of the most fraught efforts to undo Indian appropriation has been in the area
of religion. 195 Despite passage of the American Indian Religious Freedom Act of
187

Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974).


County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985) (Oneida II).
189
See Getches et al., supra note _, at 1573 (2005).
190
Padraic I. McCoy, The Land Must Hold the People: Native Modes of Territoriality and Contemporary Tribal
Justifications for Placing Land into Trust through 25 C.F.R part 151, 27 AM. INDIAN L. REV. 421 (2002/2003).
191
Native American Graves Protection and Repatriation Act, 25 U.S.C. 3003(h)(1)(A) (2006).
192
Native American Graves Protection and Repatriation Act, 25 U.S.C. 3003(h)(1)(A) (2006).
193
See Amy Bowers & Kristen A. Carpenter, Challenging the Narrative of Conquest: The Story of Lyng v.
Northwest Indian Cemetery Protective Association, in INDIAN LAW STORIES 489, 503-533 (Carole Goldberg et al.
eds., 2011) (describing resurgence of Yurok religious and cultural practices from the 1970s-present); See
CHARLES WILKINSON, THE PEOPLE ARE DANCING AGAIN: THE HISTORY OF THE SILETZ TRIBE OF WESTERN OREGON
365 (describing renewal of Siletz Indian religious practices in the 1990s, including the rebuilding of a dance
house and loan from the National Museum of American Indian of ceremonial regalia).
194
See Coming Home: Yurok Tribe Celebrates 'Repatriation' of Cultural Items, TIMES-STANDARD, July 12,
2014.
195
See Kristen A. Carpenter, Limiting Principles and Empowering Practices in American Indian Religious
Freedoms, 45 CONN. L. REV. 387. 421-35 (2012) (describing holdings in three seminal Indian religion cases of the
188

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1978, the courts have failed to protect Indian religions on par with others. In Lyng
v. Northwest Indian Cemetery Association, for example, the Court held that the
Free Exercise clause did not protect the Yurok, Karuk, and Tolowa tribes sacred
High Country sites from timber development.196 Lyng was remarkably
transparent in the relationship between conquest of the land and eradication of
Indian religion.197 According to Justice OConnor, the tribes had no right to
protect the sacred sites within their aboriginal territory because the U.S. had
acquired title and thereby the legal power to destroy the site and the Indian
religion too.198
While Indians were fighting battles to practice their religions, non-Indians were
actively engaged in mimicking and engaging in their own version of these very
same religions. Some non-Indians went so far as to bring cases claiming rights to
use peyote and eagle feathers.199 This was at best ironic given that the Supreme
Court had held in Employment Division v. Smith that states could criminalize the
ritual ingestion of peyote even when taken as a sacrament of the Native American
Church, a church with 300,000 American Indian members, without violation the
First Amendment.200 Indeed, after Smith, Indian members of the Native American
Church were faced arrest, incarceration, and discrimination solely because of
their form of worship.201 Congress finally passed an exemption for enrolled tribal
members to possess peyote,202 an exemption that non-Indians continue to
challenge today, arguing that they too should be entitled to take the sacrament,
even though peyote is severely restricted and in limited supply in the U.S.203
1980s and 1990s).
196
See Lyng v. Nw. Ind. Cemetery Assn., 485 U.S. 439, 452-53 (1988).
197
See Kristen A. Carpenter, A Property Rights Approach to Sacred Sites Cases: Asserting a Place for Indians as
Non-Owners, 52 UCLA L. REV. 1061 (2005).
198
As Justice OConnor wrote, Even if we assume that we should accept the Ninth Circuit's prediction, according
to which the GO road will virtually destroy the ... Indians' ability to practice their religion, the Constitution
simply does not provide a principle that could justify upholding respondents' legal claims.Whatever rights the
Indians may have to the use of the area those rights do not divest the Government of its right to use what is, after
all, its land. Lyng, 485 U.S. at 452-53.
199
See, e.g., Alexander Tallchief Skibine, Culture Talk or Culture War in Federal Indian Law, 45 TUL. L. REV.
89, 95-98 (2009) (describing line of federal cases in which non-Indians have brought Establishment Clause
challenges to special legislative exemptions granting Indians rights to possess eagle feathers for religious
purposes).
200
In 1965, Congress listed peyote as a Schedule I hallucinogen on the list of controlled substances under the
Controlled Substances Act. 21 U.S.C. 812(c) (2006). State laws prohibiting and regulating peyote possession
date back to the 1920s. THOMAS CONSTANTINE MAROUKIS, PEYOTE AND THE YANKTON SIOUX: THE LIFE AND
TIMES OF SAM NECKLACE 181 (2004).
201
ECHO-HAWK, supra note 100, at 317
202
42 U.S.C. 1996a(b)(1) (2006).
203
See State v. Mooney, 98 P.3d 420, 422 (Utah 2004) (overturning conviction of non-Indian who possessed
peyote and claimed membership in Oklevueha Earthwalks Native American Church).

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In this latter portion of the 20th century, the age old phenomenon of Playing
Indian took on some new dimensions. Indian culture had been popularized by
various social movements, including environmentalism and new age religion.204
Non-Indians adopted Indian clothing, sought out medicine men, and claimed
Indian identities. Several prominent experts on Indian religion and culture,
including Carlos Castaneda and Jamake Highwater, turned out to have faked
either their Indian subjects or their own identities.205 Although racial, ethnic, and
other forms of identity are increasingly thought to be fluid in American society,206
Indian communities and federal law alike are quite clear that it is a distinctly tribal
prerogative to identify members.207 Still, in the mid-to-late twentieth century, as
Indians increasingly moved from reservations to urban and suburban life, and nonIndians found meaning in Indian values and experiences, no matter how
stereotyped, the borders of Indian identity became blurry enough to slip
across.208
Any slippery-ness in social and legal categories of Indian-ness, however, did not
disrupt persistent power dynamics. If non-Indians could become Indian when it
suited them, Indians and tribes still faced ongoing challenges to their rights, based
on their legal Indian status and societal perceptions of it. As critical race scholars
have argued more broadly, hierarchies of power often impose a requirement of
performative identity on members of minority groups.209 This is certainly the case
in modern Indian law and politics. In some instances, remedial legislation itself
imposes expectations about Indian identity that are linked to the past. NAGPRA,
204

See DELORIA, PLAYING INDIAN, supra note _, at 154-180.


See, MICHAEL BROWN, UPRIVER: THE TURBULENT LIFE AND TIMES OF AN AMAZONIAN PEOPLE 151-52 (2014).
See generally LAURA BROWDER, SLIPPERY CHARACTERS: ETHNIC IMPERSONATORS AND AMERICAN IDENTITIES
(2000).
206
See generally, ELLEN SAMUELS, FANTASIES OF IDENTIFICATION: DISABILITY, GENDER, RACE (2014) (challenging
the belief that embodied social identities are fixed, verifiable, or visible through modern science).
207
See, Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978). Today, Members of Santa Clara Pueblo are
seeking to define the complicated boundaries between membership which is hotly contested at Santa Clara -- and
individuals religious and cultural obligations within their society. See Santa Clara Pueblo v. Martinez, 436 U.S.
49 (1978) (upholding the patrilineal membership rule of the tribe). Rina Swentzell, Testimony of a Santa Clara
Pueblo Woman, 14 KAN. J.L. & PUB. POL'Y 97 (2004) (relating the point of view of a Santa Clara Pueblo woman);
Gloria Valencia-Weber, Santa Clara Pueblo v. Martinez: Twenty Five Years of Disparate Cultural Visions, 14
KAN. J.L. & PUB. POL'Y 49 (2004) (commenting on the decision). Gloria Valencia-Weber, Rina Swentzell, & Eva
Petoskey, 40 Years of the Indian Civil Rights Act: Indigenous Women's Reflections, in THE INDIAN CIVIL RIGHTS
ACT AT FORTY 39 (Kristen A. Carpenter et al., eds. 2012) (updating situation of women at Santa Clara Pueblo).
208
DELORIA, PLAYING INDIAN, supra note _, at 185.
209
See DEVON CARBADO AND MITU GULATI, ACTING WHITE: RETHINKING RACE IN A POST-RACIAL AMERICA 16
(2013) (arguing that decisionmakersimplicitly or explicitly demand that African Americans work their
identities to satisfy decision-makers racial expectations).
205

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for example, requires tribes to show that certain items were used in traditional
religious practices in order to qualify for repatriation as sacred objects.210
Scholars have argued that this provision may impel tribal people to present
evidence of unchanging authenticity as a litigation strategy.211 In the Supreme
Court, tribal rights quite often depend on the justices narrow perceptions of
Indian race and identity.212
III. Reclaiming Red
We have argued that from the perspective of many American Indians, the U.S.
legal system and facets of American society have treated all things Indian as a
resource for non-Indians negatively impacting the sovereignty, cultural survival,
and safety and security of Indian people. Using historical, legal, and scholarly
insights, we have described the circumstances that led to the development of
Indian appropriation, how it has shaped the existence of Indian peoples since the
point of contact, and also how it continues to bear on indigenous peoplehood
today.
In this, the Articles final Part, we have two central goals. First, we seek to
describe indigenous peoples contemporary efforts to guard against Indian
appropriation and their concomitant desire to do so in a way that allows them to
live vibrant, free, and dynamic cultural lives. We show how they are pushing back
against appropriation through tribal, domestic, and international law, but also
more than ever in history using the tools of technology to mobilize a movement.
Then, we turn our attention to cases of cultural appropriation, with a particular
focus on tangibles.
We give brief treatment to examples of on-going
appropriation of real and personal property, showing how legal advancements in
recent decades -- though slow in coming and still inadequate have at least begun
to address some of the devastating losses experienced by Indian people.
But our primary focus is on the appropriation of intangible cultural property. It
remains exceedingly difficult for Indian tribes to situate claims of intangible

210

NAGPRA defines sacred objects as specific ceremonial objects needed . . . for the practice of traditional
Native American religions by their present day adherents. 25 U.S.C. 3001(3)(c).
211
See GREG JOHNSON, SACRED CLAIMS: REPATRIATION AND LIVING TRADITIONS (2007) (describing
performance of Native culture in proceedings of the NAGPRA Review Committee and other settings). See also
S. Alan Ray, Native American Identity and the Challenge of Kennewick Man, 79 TEMP. L. REV. 89 (2006)
(describing importance of identity in NAGPRA litigation))
212
See Adoptive Couple, 133 U.S at 2552, 2557 (referencing Baby Girls blood quantum); Nevada v. Hicks, 533
U.S. 353 (2001) (expressing distrust of tribal courts).

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cultural appropriation in legal terms. Lawyers and scholars often perceive


intangible property as different unbounded and non-rivalrous and raise
concerns of free speech and public access in response to Indians attempts to reign
in instances of appropriation. Efforts to use trademark,213 copyright,214 and
patent,215 respectively, to protect against appropriation have been met with
significant opposition. This is the case even though, as with traditional lands and
religious artifacts, intangible components of tribal cultures are extremely
important to the self-determination of tribes striving to recover from conquest and
colonization.216
In looking at intangible cultural appropriation, we focus, first, on what we
designate the easy cases: places where law has grossly failed to protect against
Indian appropriation and where it could and should do more. In doing so, we
return to the iconic R-skins case to look at legal strategy, but also indigenous
advocacy occurring as much in expressive forums -- from The Daily Show to
national, televised ad campaigns to Facebook -- as it does in legal venues. Next,
we turn to harder cases of Indian appropriation. From headdresses to designs to
songs and ceremonies, we attempt to articulate Indian cultural harm, demonstrate
the importance of tribal perspectives to inform these cases, and, ultimately,
highlight alternative methods of affecting change amidst the oftentimes quite
proper -- limits of law.217
a. Red Social Movements and the Law
In the U.S. today, American Indians are mobilizing to build on the gains of the
self-determination era to live their sovereignty, which is perhaps the most
effective way to keep Native culture vital. In the last few years, tribes and
individual Indians have embraced law (where available), rallied for legal changes
(in laws absence), and engaged technology to mount opposition to Indian
213

In the case of the R-Skins, for example, which seems to present a relatively easy case of disparagement under
the Lanham Act, the American Civil Liberties Union has filed briefs supporting the speech interests of the
Washington Football Team in using the mascot.
214
See Angela R. Riley, Recovering Collectivity: Intellectual Property Rights in Indigenous Communities, 18
CARDOZO ARTS & ENT. L.J. 175 (2000) (Explaining lack of remedies for unauthorized use of Ami origin song by
the pop music group Enigma, which sold over 5 million copies of an album containing pirated recording of Lifvon
Guos traditional singing.).
215
See Francesco Mauro and Preston D. Hardison, Traditional Knowledge of Indigenous and Local Communities:
International Debate and Policy Initiatives, 10 ECOLOGICAL APPLICATIONS 1263, 12631269 (2000).
216
More specifically, the recovery of tribal cultural values and practices is a key facet of life in Indian Country,
relevant to everything from updating tribal law to addressing health issues, responding to climate change and
promoting child welfare.
217
These ideas draw heavily from the definitive work on the topic. Tsosie, supra note _.

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appropriation. Targets of Native activism range from attempts to: recover real
property that has been appropriated, or to save sacred sites from desecration;
repatriate art, artifacts, human remains, and other items of cultural patrimony that
have been taken from Indian people through colonization; and use existing law to
end harmful, discriminatory representations of Indian people, among numerous
others.
What accounts for the robust mobilization of indigenous peoples in the
contemporary age?218 Our personal and professional experiences in the field have
revealed the convergence of several phenomena that seem to have at least partially
inspired such engaged and far-reaching indigenous advocacy today.219 First, while
Indian appropriation continues,220 indigenous peoples are increasingly empowered
to address it through law. Though we certainly acknowledge laws limitations
and even potential for violence221 hard law unquestionably has the power to
move the needle in regards to Indian rights. And its doing so. Laws articulating
protections against Indian appropriation have increased, both in terms of number
and depth in recent decades. We attribute these legal developments at tribal,
national, and international levels to overlapping, but distinct causes, a few of
which we briefly highlight here.
In the international realm, for example, as we fully explored in our recent work on
indigenous rights in international law,222 in just the past few decades, the
particular rights of indigenous peoples as peoples has begun to have greater
recognition in international law.223 This phenomenon -- combined with what has
been deemed a human rights culture224 -- has inspired the creation of varied and
multidimensional laws that guard against appropriation in numerous ways. Such
218

See Wilkinson, supra note _ (Focusing on the Siletz tribe of Oregon); Fixico, supra note _ (arguing that federal
Indian law has an important role to play in the recovery of Indian nations.
219
In the last year, following up on pro bono projects and other matters, the authors have travelled together to
Kiowa and Caddo Counties in Oklahoma to discuss Longhorn Mountain with Kiowa leaders; to Tahlequah,
Oklahoma, to meet with Cherokees involved in cultural and language matters; to Moenkopi and Hotevilla on the
Hopi Reservation to hear the perspectives of Hopi Cultural Preservation Experts on the unlawful appropriation and
sale of the Hopi katsinam; and to Santa Clara Pueblo, New Mexico, for Feast Day.
220
At the end of 2014, Congress passed a bill giving 2,400 acres of land in Tonto National Forest to the foreign
multinational mining company Rio Tinto. These lands contain sacred sites within the aboriginal territory of the
Apache people, who fear the impacts of mining on religious activities presently conducted there including comingof-age ceremonies for young women. See Michael McAulliff, Congress Raids Ancestral Native American Lands
With Defense Bill, HUFFINGTON POST, Dec 3, 2014.
221
Robert M. Cover, Violence and the World, 95 YALE L. J. 1601 (1986).
222
Kristen A. Carpenter and Angela Riley, Indigenous Peoples and the Jurisgenerative Moment in Human Rights,
102 CALIF. L. REV. (2014).
223
Anaya, supra note _, at 68.
224
Helen Stacy, Relational Sovereignty, 55 STAN. L. REV. 2029 (2003).

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laws address rights to live collectively, rights to land and culture, rights to
intangible and traditional knowledge, rights to self-determination, and rights to
equality in society and education. The 2007 adoption by the United Nations
General Assembly of the U.N. Declaration on the Rights of Indigenous Peoples
(UNDRIP) and the subsequent 2010 endorsement by the United States marked a
particular moment for American Indians.225 Since the adoption of ILO 169, which
was the first international articulation of robust rights of tribal peoples, the
international system has flourished in terms of protections of indigenous
peoples.226 Regional human rights systems in Africa and the Americas, too, have
increasingly engaged the issues faced by the worlds indigenous populations. And
some of the most important indigenous rights cases have come out of the InterAmerican Commission and Court on Human Rights, respectively.227 The
intellectual property rights of indigenous peoples are also increasingly recognized
as a human rights issue, which has afforded stronger articulations for protections
for traditional knowledge and traditional cultural expressions.228 These can be
seen in instruments, such as the Convention on Biological Diversity,229 and has
become a core feature of the work of the World Intellectual Property Organization
(WIPO) in recent years.230
Nationally, although Indian tribes have fared poorly before the federal courts in
the last few decades, tribes have become more powerful players in the democratic
225

G.A. Res. 61/295, 12, U.N. Doc. A/RES/61/295 (Sept. 13, 2007) [hereinafter UNDRIP]; see also WALTER R.
ECHO-HAWK, IN THE LIGHT OF JUSTICE: THE RISE OF HUMAN RIGHTS IN NATIVE AMERICA AND THE UN
DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES 3 (2013) (describing the UNDRIP as a landmark event
that promises to shape humanity in the post-colonial age). The UNDRIP advances and particularizes protections
for minority groups recognized in earlier instruments like the International Covenant on Civil and Political Rights,
International Covenant on Civil and Political Rights, G.A. Res. 2200, 21 U.N. GAOR, Supp. (No. 16) at 52, U.N.
Doc. A/6316 (1967), and the International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200, 21
U.N. GAOR, Supp. (No. 16) at 49, U.N. Doc A/6316 (1967).
226
International Labour Organisation No. 169s Covenant on the Rights of Indigenous and Tribal Peoples,
International Labour Organisation Convention (No. 169) Concerning Indigenous and Tribal Peoples in
Independent Countries art. 3, June 27, 1989 (entered into force, Sept. 5, 1991).
227
See, e.g., Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, Inter-Am. Ct. H.R. (ser. C) No. 79 (2001)
available at http://www1.umn.edu/humanrts/iachr/AwasTingnicase.html (holding that Nicaraguas obligation to
protect property rights under Article 21 of the American Convention on Human Rights encompassed interests
defined by the Awas Tingni peoples own customary law of land tenure).
228
See generally, See Erica-Irene Daes, Intellectual Property and Indigenous Peoples, 95 AM. SOC'Y INT'L L.
PROC. 143, 147 (2001); Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40
U.C. DAVIS L. REV. 971 (2007) (explaining the importance of intellectual property rights protection to peoples
in the developing world); Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights
Framework, 40 U.C. DAVIS L. REV. 1039 (2007) (linking protection for intellectual property rights to human
rights for the worlds poor).
229
See, id.
230
Id.

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process. Despite being a tiny, relatively disempowered minority within minority


cultures Native Americans comprise about 1.5% of the total United States
population and have the highest rates of poverty of any minority group
American Indians continue to fight vociferously for Indian rights and resources.
Coalition politics have undoubtedly facilitated some successes. In 2010, Indian
tribes were successful in getting legislation passed that would allow for more
extensive sentencing of Indian offenders in Indian country, under certain
circumstances.231 Following the momentum of focusing on peace, safety,
security, and justice, in 2013, tribes and allies successfully lobbied Congress for
laws that recognize inherent tribal criminal jurisdiction over non-Indian domestic
violence offenders in Indian country to combat a culture of abuse of Native
women.232 And, a fairly receptive executive branch has fostered a culture of
respecting Indian rights by supporting trust land acquisitions,233 promulgating
guidelines for Indian child welfare,234 and reconsidering standards for tribal
federal recognition.235
And Indian tribes themselves are using a variety of strategies and approaches that
seem to have inspired more engagement with law and legal institutions in recent
years.236 More and more, tribes establish tribal courts, take advantage of
expanded criminal jurisdiction, create tribally-supported programs of diversion
versus detention, amend or construct constitutions, enact cultural preservation
codes, and work to set up legal and social structures to ensure the continuation of
language, culture, identity, and sovereignty at every opportunity. And, of course,
tribes and Indian people have been actively engaged in advancing all of these laws
at the tribal, national, and international levels.237
Beyond the strict structures of law-creation, we also find that a great deal of
Native advocacy and activism has been inspired by an ethos of self-determination
and cultural revitalization, made possible by burgeoning ideas of post-colonial
intellectual liberation and opportunities through technology, respectively.
Indigenous peoples are, in their advocacy and daily lives, confronting head-on
231

Tribal Law and Order Act, 25 U.S.C. 2801 (201).


Re-Authorization of the Violence Against Women Act, 42 U.S.C. 1370 (2013).
233
Press Release, U.S. Dept. of the Interior, Salazar, Washburn Commend Passage of Violence Against Women
Act: Legislation Recognizes and Affirms Tribal Court Jurisdiction over Non-Indians in Domestic Violence Crimes
(Feb. 28, 2013), http://www.bia.gov/cs/groups/public/documents/text/idc-041146.pdf
234
http://www.indianaffairs.gov/cs/groups/xraca/documents/text/idc1-030521.pdf
235
http://www.charkoosta.com/2015/2015_07_02/DOI_recognition_of_tribes.html
236
Stephen Cornell and Joseph P. Kalt, Sovereignty and Nation-Building: The Development Challenge in Indian
Country Today, 22 AM. INDIAN CULTR. AND RES. J. 187,188 (1998).
237
Carpenter and Riley, supra note _.
232

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very difficult questions about the contested nature of property, culture, and
identity in todays world, toward outcomes that are both meaningful and just.
This is illustrated in movements like Idle No More, which had its birth in
Canadian First Nations around the abrogation of treaty rights by the Canadian
government.238 The cause grew through social media, and has spawned a global
indigenous movement around key issues of unauthorized extractive industry on
Native lands and violence against Native women.
These phenomena fuel a system of belief around an understanding of Native
cultures as living and constantly evolving. Rather than accepting static or
monolithic versions of Indian identity, tribes are expressing their rights to change
and evolve noting that they have the right to be traditional and modern239 -- as
self-determining peoples and individuals in the contemporary age.240 In these
iterations, which we see as brimming with power and potential to redress Indian
appropriation, Native people have full agency and so full ethical responsibility
-- for how they choose to define and represent their cultures and identities.241
Indian artists, designers, comics, and writers push the boundaries of what it means
to perpetuate Indian culture and Indian arts by being innovative, cutting edge,
and relevant to todays contemporary Indian culture. In this sense, Indian cultural
sovereignty is linked to Indian claims to land, culture, and identity, which are
complicated and multivalent, transcending conventional legal categories and even,
in some cases, historical enmities.
Other efforts by American Indian tribes to reclaim the links among land, culture,
and identity are more localized, gaining less media attention, but no less critical to
the daily wellbeing of Indian people and nations. In the Cherokee Nation, for
example, to this very day, ceremonial people tend the sacred fire brought with
them across the Trail of Tears to new ceremonial grounds where they continue to
practice ancient religions.242 At the very same time, the tribe is entering into
238

See THE WINTER WE DANCED: VOICES FROM THE PAST, THE FUTURE, AND THE IDLE NO MORE MOVEMENT (The
Kino-Nda-Niimi Collective ed., Arbeiter Ring Publishing 2014) (2014)(collection of voices from the Idle No
More Movement and insight on the future of the movement).
239
See Rosemary J. Coombe, Protecting Traditional Environmental Knowledge and New Social Movements in the
Americas: Intellectual Property, Human Right, or Claims to an Alternative Form of Sustainable Development?, 17
FLA. J. INT'L L. 115, 132-33 (2005) (crediting anthropologist Marshall Sahlins with coining phrase indigenization
of modernity, meaning indigenous peoples' attempt to retain traditional ways while using tools of modern world).
240
See Colleeen ONeill, Rethinking Modernity and the Discourse of Development in American Indian History,
An Introduction, in BRIAN HOSMER AND COLLEEN ONEILL, AMERICAN INDIAN CULTURE AND ECONOMIC
DEVELOPMENT IN THE TWENTIETH CENTURY 3 (challenging dichotomies of modern and traditional, culture and
development, as inapposite to the lived reality of American Indians in the 20th century).
241
See BARKER, supra note _, at 225.
242
CHAD CORNTASSEL SMITH ET AL., BUILDING ONE FIRE: ART AND WORLD VIEW IN CHEROKEE LIFE (2010) (on

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contracts with Apple to support language revitalization, including technology that


allows people to use the Cherokee syllabary on their iPhones.243 These activities,
occurring alongside deeply contested claims over tribal membership, marriage
equality, and child welfare serve to keep tribal values alive and available for
guidance in deciding hard questions facing tribal citizens today.244 Across the
state, Kiowa people are trying to protect Longhorn Mountain, a place that
traditional Kiowas describe being revealed to them by the Creator during their
ancient migrations and where, today, they gather cedar for prayers and
ceremonies. Originally within the tribes treaty territory, Longhorn was later lost
to allotment. Today, the Kiowas cedar gathering activities are threatened by
development of the mountain as a gravel mine.245 And just recently, after years of
unsuccessful federal litigation, the Navajo Nation filed a claim in the InterAmerican Commission on Human Rights in March 2015, asking the Commission
to intervene to protect a mountain holy to the Navajos and a dozen other tribes
from pollution by treated sewage effluent. The Dine people are protected by the
four sacred mountains; it is their home, and the place from which they originate.
Caring for the mountains as a place to gather plants, medicines, and other
resources for ceremony and prayer is essential to the continued vitality of the
Navajo people. Thus, framed in Western legal terms, the current petition argues
that the decision of the U.S. Forest Service to permit desecration of the sacred San
Francisco Peaks violates basic human rights to religion and culture.246
As these and other examples suggest, there is no single strategy, legal or
otherwise, for reclaiming tribal land, culture, and identity or to push back
against Indian appropriation. Sometimes there is success through litigation, but
oftentimes indigenous claims transcend and challenge established legal categories.
Moreover, there are few seamless transitions from the traditional to the
traditional Cherokee worldview and ceremony).
243
See Slash Lane, Apple Partners with Cherokee Tribe to Put Language on iPhone, APPLE INSIDER (Dec. 23,
2010); see also Cherokee Consortium Word List, http://www.cherokee.org (showing hundreds of new words
and phrases in Cherokee ranging from iPad and internet address, created through a process involving language
experts from the three federally recognized Cherokee).
244
See AP, Cherokee Court Dismisses Gay Marriage Suit, BOSTON GLOBE, August 4, 2005,
http://www.boston.com/news/nation/articles/2005/08/04/cherokee_court_dismisses_gay_marriage_suit/
(describing argument of same-sex Cherokee couple in marriage equality case that traditional Cherokee terms for
spouses, meaning cooker and companion, were not gender specific). See also S. Alan Ray, A Race or A
Nation, Cherokee National Identity and the Status of Freedmens Descendants, 12 MICH. J. OF RACE AND LAW,
387, 387-463 (2007).
245
See Logan Layden, Longhorn Mountain: Sacred Kiowa Spiritual Site and Future Limestone Mine, State
Impact, State Impact, NPR, August 15, 2013, http://stateimpact.npr.org/oklahoma/2013/08/15/longhorn-mountainsacred-kiowa-spiritual-site-and-future-limestone-mine/.
246
Petition at 1, Navajo Nation v. U.S., Inter-Am. Commn H.R., (Mar. 2, 2015).

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contemporary amongst indigenous communities, as they work to heal from the


losses of the past and confront the realities of the present. In this sense, tribes are
wonderfully like all nations, dealing with impossibly hard questions around issues
of dissent, inertia, change, and possibility as they push forward and govern for the
future of their people. From this perspective, tribes deal with a delicate balance of
ensuring continued cultural survival while not being too wedded to a stagnant or
antiquated notion of cultural preservation.247 And yet, given the history of Indian
appropriation, tribes have a special duty and mission to carefully consider the
impact of law on the persistence of Indian culture in a modern world.248
b. The Possibilities of Law: The R-skins and Other Easy Cases
Despite the innovations by which indigenous peoples are using multiple strategies
to impact social change and protect against Indian appropriation, and despite some
successes, the fact is that the law can and must do better. As this subpart strives to
show, in some instances relatively minor changes in the law could achieve great
protections against Indian cultural appropriation. Thus, we title these the easy
cases, but not without clarification and caution. Though we identify these as
easy in relative terms, we refer here only to doctrinal challenges. In many other
ways, they like most sites of conflict in the real world are complex and
nuanced. It is risky in the first instance to articulate an Indian perspective on
any of these scenarios. American Indian tribes and Indian people are not
monolithic. There remains a wide range of views on all issues involving cultural
appropriation within Indian communities. To suggest otherwise is to essentialize
Indian people in a way that is neither accurate nor useful. At the same time, we
highlight a few examples here where there does appear to be overwhelming
consensus that the law has failed indigenous peoples, and that it must address
these instances of appropriation and injustice.
1.

Oak Flat and the Hopi katsinam


To return to earlier examples, consider two cases from the realm of real and
personal property, respectively: the case of Oak Flat and that of the Hopi
katsinam. Oak Flat is a place of great religious and cultural significance for the
San Carlos Apache. According to Apache cosmology, it has been a holy place
and the site of girls coming of age ceremonies, prayers, and pilgrimages since
247

Sam Deloria, New Paradigm: Indian Tribes in the Land of Unintended Consequences, 46 NAT. RESOURCES J.
301, 313 (2006).
248
Deloria, supra note _, at 314.

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time immemorial. Because of its importance, it has been under the ownership and
protection of the U.S. Forest Service. Until now.249 In a back-handed deal in
December 2014, Congress guaranteed Oak Flat to Rio Tinto, an Australian-British
mining company by slipping it into a rider on the National Defense Authorization
Act, which could not be rejected. Commentators note that [t]he land grab was
sneakily anti-democratic even by congressional standards, which gives the
mining company 2,400 acres including Oak Flat to mine without oversight.250
A repeal of the rider a relatively straightforward change in the law could save
Oak Flat and uphold a basic American value: religious freedom.251 The tribe and
its allies have been protesting to protect the holy site since December.
Similarly, calls for repatriation of the Hopi katsinam also presents a powerful case
with a relatively straightforward doctrinal fix. With only 18,000 Hopi remaining
in the world, the tribe is embroiled in a struggle with the international art world
around the sale of its sacred katsinam.252 The katsinam living beings who belong
to clans, play a role in Hopi religion, and were taken from Hopi mesas decades
ago -- have recently emerged from several decades of black market art
transactions. As sacred objects used in a traditional tribal religion, the katsinam
would be eligible for repatriation under NAGPRA, as a matter of U.S. law, if they
were being held in a federally-funded museum or institution within the United
States. But, given that the katsinam surfaced in France, neither NAGPRA nor any
other U.S. law mandates their return. And as news outlets like the New York
Times have reported, [w]hile foreign nations routinely rely on international
accords to secure American help in retrieving antiquities from the United States,
Washington has no reciprocal agreements governing American artifacts
abroad.253 Again, this presents a relatively simple doctrinal fix that could work
to protect the Hopi and countless other tribes in reclaiming valuable cultural
property that, in some cases, is essential for ceremonies, religious practices, and
healing. The creation of mutually enforceable agreements is all that would be

249

Lydia Millet, Selling Off Apache Holy Land, THE NEW YORK TIMES (May 29, 2015),
http://www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html?_r=0
250
Millet, supra note _.
251
Millet, supra note _.
252
See Tom Mashberg, Hopis Try to Stop Paris Sale of Artifacts, N.Y. TIMES, April 3, 2013.
253
Mashberg, supra note _. This is because, in cultural property terms, the United States is a market nation
rather than a source nation. When American cultural property has been transported to foreign markets, it has
been indigenous cultural property of, which has never gained the kind of political momentum needed for the
creation of laws to prevent it. For the foundational work in the area, see, John Henry Merryman, Two Ways of
Thinking About Cultural Property, 80 AM. J. INTL L. 831, 832 (1986) (detailing the differences between source
nations and market nations in regards to cultural property). See also, LAURA S. UNDERKUFFLER, THE IDEA OF
PROPERTY: ITS MEANING AND ITS POWER 110 (2003) (describing cultural property).

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necessary to assist the Hopi in repatriating the sacred katsinam.254 Despite tacit
support for Hopi from the U.S. government,255 the auction houses have refused to
halt the sales, although, as described infra, the Hopis have been able to change the
minds of private art collectors and navigate the return of some katsinam to Hopi
villages.256
These two examples present only a tiny snapshot of the kinds of cases that deprive
indigenous peoples of the same rights and opportunities to culture, religion, and
the ability to flourish as peoples. And they also present rare instances of places
where relatively minor and politically feasible changes in the law could help to
recover real and personal cultural property. Our prior work fully explores
numerous similar scenarios, so we will not recount them here. Instead, we shift
our gaze to the harder questions, those of intangible cultural property.
2.

The Washington R-skins


We are seeing, in ways we have never before, American Indians asserting that
certain sports mascots are harmful to Native people. And popular culture icons,
politicians, and the media have increasingly gotten on board. In what is perhaps
an allegory for the entire movement, John Stewart recently devoted a segment of
The Daily Show to the R-Skins controversy.257 Four fans dressed head-to-toe in
R-skins gear described how much the team and its rituals mean to them, and the
ways in which they believe the name honors American Indians. Two of them said
they were actually part Indian themselves, and all claimed they were deeply
misunderstood by those who would ascribe racist motives to use of the R-skins
name. Then correspondent Jason Jones brought into the set several American
Indians, giving the fans the ostensible opportunity to share their stated respect
for them and explain how the mascot communicates that respect. Instead some of
the fans grew upset by the surprise arrival, later saying they had been ambushed
254

See, e.g., Honor Keeler, Indigenous International Repatriation, 44 AZ. ST. L. J. 705 (2005). In the Hopi case,
the U.S. State Department has supported the tribe to some extent, but unlike in other instances of endangered
cultural property, there are no mutual agreements preventing export and import of the katsinam, pursuant to the
UNESCO Convention of 1970, http://portal.unesco.org/en/ev.phpURL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html.
255
See The Hopi Tribe, Katsina Kwaatsi purchased at Auction in Paris, France: Returned to the Hopi Tribe,
July 16, 2013, http://www.hopi-nsn.gov/wp-content/uploads/2013/06/07162013_Katsina-Kwatsi-Returned-tothe-Hopi-Tribe.pdf
256
Dennis Wagner, Foundation Buys Masks for Hopi at Paris Auction, USA TODAY, Dec. 12, 2013,
http://www.usatoday.com/story/news/nation/2013/12/12/foundation-buys-masks-for-hopis-at-paris-auction/4002853/.
257
THE DAILY SHOW, THE R-SKINS NAME: CATCHING RACISM, Sept. 25, 2014,
http://thedailyshow.cc.com/videos/189afv/the-R-Skins--name---catching-racism.

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by Indians and made to look racist. The fans had thought they would be able to
give their opinions on the R-skins without rebuttal.258
Indeed, the time when people can use racial slurs for American Indians without
rebuttal appears to be ending. The strategy to end racist sports mascots, for
example, is diffuse and pervasive, including legal and non-legal methods, and
American Indians have joined the cause both as tribes and as individuals. Using
social media, Indian activists have created hashtags, started petitions, and
organized marches asserting that they are Not Your Mascot and its time to
Change the Name.259 Along with SouthPark and the Daily Show, the American
Indian satire group The 1491s has lampooned the NFL, the team, its owner, and
its fans for their insensitivity in continuing to use the name.260 Shareholder
actions and divestment campaigns are now targeted at FedEx, the owner of the
stadium where the R-skins play.261 In politics, President Obama, Attorney General
Holder, and fifty U.S. senators have weighed in in favor of a name change.262
Though public attention is now focused on the controversy over the name, the
fight to change it began decades ago. Suzan Harjo is a Cheyenne tribal member,
recently awarded the Presidential Medal of Freedom for her work on American
Indian religious and cultural freedoms.263 In her long career, she has been a radio
host, advocated for the return of tribal lands, and directed the National Congress
of American Indians. But forty years ago, she was a young woman who moved to
D.C. and attended a Washington R-Skins football game. As she recently told a
journalist, Fans sitting nearby, apparently amused that American Indians were in
258

See Ian Shapira, The Daily Show springs tense showdown with Native Americans on R-Skins fans,
WASHINGTON POST, Sept. 19, 2014, http://www.washingtonpost.com/local/the-daily-show-springsshowdown-with-native-americans-on-R-Skins-fans/2014/09/19/c6c5f936-3f73-11e4-b03fde718edeb92f_story.html.
259
See Jacqueline Keeler, Inside the #NotYourMascot Super Bowl Twitter Storm, INDIAN COUNTRY TODAY MEDIA
NETWORK, (Fed. 8, 2014).
260
See Ian Shapira, 'Daily Show' airs segment pitting R-Skins fans against Native Americans Controversial
segment pits Washington fans against Native Americans over the team's name, WASHINGTONPOST.COM, Sept.
26, 2014.
261
See Mark Holan, What Oneida Tribe of Wisconsin, Fedex Share in Common, Washington Business Journal,
June 23, 2014, http://www.bizjournals.com/washington/blog/2014/06/what-oneida-tribe-of-wisconsin-fedexshare-in.html?page=all.
262
See Theresa Vargas and Anyss Shin, President Obama says Id think about changing name of R-Skins,
WASHINGTON POST, Oct. 5, 2013.
263
See also Kevin Belson, R-Skins Name Change Remains Activists Unfinished Business, NEW YORK TIMES, A1,
October 10, 2013 (describing Cheyenne activist Suzan Harjos 40-year involvement in the movement to change
the name); Erik Brady, A New Generation of American Indians Challenges R-Skins, USA TODAY, May 10, 2013,
http://www.usatoday.com/story/sports/nfl/R-Skins/2013/05/09/native-americans-washington-mascotfight/2148877/ (describing contemporary activism on the issue).

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their midst, pawed their hair and poked them, not in an unfriendly way, but in a
scary way.264 Harjo became the lead plaintiff in an early action to cancel the
teams trademarks as disparaging under the Lanham Act.265 In Harjo v. ProFootball, the TTAB ruled that the marks were disparaging racial designations for
American Indians,266 but reviewing courts reversed on grounds that the plaintiffs
had waited too long to assert their claims.267 Undeterred, Harjo reached out to the
next generation of Indian leaders, recruiting Amanda Blackhorse and others who
had more recently reached the age of majority such that their claims would not be
barred by laches.268 As other leaders have acknowledged, Harjo led this fight
early on and contemporary activists stand on her shoulders.269
During this long struggle over the name, efforts were made to educate and explain
the racially discriminatory roots of the name. An article published in Esquire
magazine detailed the development of the name, noting that, during the bloodiest
periods of colonization, states actually placed a bounty on the skins of Native
Americans, inducing settlers and citizens to kill them and bring in their hides for a
bounty. By reducing Indians to their ostensible color and the very skin that
covered their bodies, the term facilitated dehumanization, racialized dispossession
and discrimination -- tactics that colonizers have long used to dispossess the
colonized.270 Comics running in Native newspapers placed Indian mascots
alongside caricatured depictions other racial minorities to demonstrate the ongoing discrimination and to point out that today, few other minority groups remain
caricatured and denigrated in the way that American Indians are by the R-skins, or
Chief Wahoo of the Cleveland Indians, or countless other mascots across the
country.
American Indian tribes also began to put their resources behind efforts to educate
and to advocate for the name-change. Along with the Oneida Indian Nation of
264

Belson, supra note _.


See Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d (BNA) 1705 (T.T.A.B. 1999) (cancelling the R-skins
marks on grounds that they were disparaging under the Lanham Act), revd 284 F. Supp. 2d 96, 128 (D.D.C.
2003) (reversing the TTABs cancellation decision based on equitable doctrine of laches).
266
Harjo v. Pro-Football, Inc., 50 U.S.P.Q.2d (BNA) 1705 (T.T.A.B. 1999)
267
Pro-Football, Inc. v. Harjo, 415 F.3d 44 (D.C. Cir. 2005).
268
Belson, supra note _.
269
Belson, supra note _ (quoting Ray Halbritter, Nation Representative, Oneida Indian Nation).
270
See WILLIAMS, LOADED LIKE A WEAPON, supra note _, at 116 (the language of racism organized around
stereotyped differences will invariably be relied upon to justify any differential treatment between colonizer and
colonized groups) (relying on ALFRED MEMMI, THE COLONIZER AND THE COLONIZED (1965). For another famous
formulation, see, e.g., EDWARD SAID, ORIENTALISM 70 (1979) (describing that the European encounter with the
Orient turned Islam into the very epitome of an outside against which the whole of European civilization was
founded.). Berger, supra note _; Rolnick, supra note _.
265

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New York, the Yocha Dehe Wintun Nation of California has invested substantial
amounts of money, raised through economic development activities, in the
campaign. During the 2014 NBA finals, Yocha Dehe paid for a short film, entitled
Proud to Be, to run in seven major cities during halftime.271 Aesthetically
beautiful and deeply intoned, the ad showed 60-seconds of Native American
people, in each instance proud to be strong, brave or resilient, Hopi, Navajo or
Cherokee, an athlete, lawyer, or mother, but never a Redskin.272 For its part, the
Oneida Nation has worked with the National Congress of American Indians on
high-level outreach to National Football League players and others.273
These tribes were not always economically or politically empowered. The Yocha
Dehe tribe, like many tribes in Northern in California, experienced genocide
during the gold rush of the 1850s.274 They went nearly extinct and the
survivors were forcibly removed from their aboriginal lands and suffered severe
poverty for decades. 275 Only in the 1980s was the tribe restored to a small land
base and able to initiate economic development. The Oneida Nation, for its part,
fought in the Revolutionary War on the side of the colonists, signed treaties with
George Washington, and subsequently lost all of its land, save for 32 acres, to
illegal purchases by the state of New York. 276
Why do these tribes, recovering from the worst of conquest and colonization, now
spend their precious resources to fight the R-skins? Because, as they tell it, their
members continue to face discrimination based on perceptions of Indian race and
culture.277 They cannot thrive, in school, at work, or in public places when they
are called racial epithets, denied jobs, or physically assaulted.278 While no one
wants to be perceived as the culture police, tribal leaders and members alike argue

271

Theresa Vargas, Anti-R-Skins Ad Airing During NBA Finals, WASHINGTON POST, June 10, 2014.
National Congress of American Indians, Proud to Be, http://www.youtube.com/watch?v=mR-tbOxlhvE (last
visited March 3, 2015).
273
See Vargas, supra note _.
274
See Yocha Dehe History, http://www.yochadehe.org/heritage/history (last visited Mar. 3. 2015).
275
See Yocha Dehe History, http://www.yochadehe.org/heritage/history (last visited Mar. 3. 2015).
276
For a legal account of the challenges of the Oneida to regain sovereignty and property, see, City of Sherrill v.
Oneida Indian Nation of N.Y., 544 U.S. 197, 213 (2005) (holding that the Oneida Nation could not re-assert
jurisdiction over former reservation lands, because the embers of sovereignty long ago grew cold). And the
administrative process meant to provide relief has not been strictly limited as well. See Carcieri v. Salazar, 555
U.S. 379 (2009) (limiting federal authority to take land-into-trust to tribes that were under federal jurisdiction in
1934).
277
See Yocha Dehe Wintun Nation, Yocha Dehe Tribal Leaders Speak out for Change the Mascot, June 6, 2014,
https://www.youtube.com/watch?v=wSX8XktA43Q ,
278
See Yocha Dehe Wintun Nation, Yocha Dehe Tribal Leaders Speak out for Change the Mascot, June 6, 2014,
https://www.youtube.com/watch?v=wSX8XktA43Q ,
272

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that these harms must be addressed, as much through education and awareness as
through the law. 279
Despite this momentum towards change, there is undoubtedly a vocal counterposition. Scholars have argued that the sports context, playing Indian is so
much a part of American life that Indians and Indian imagery now actually belong
to white America.280 As the Washington Team likes to point out, not all American
Indians find the R-skins and other Indian sports mascots offensive.281 Some Indian
high schools located on reservations play under these names. Others argue that the
time and resources devoted to the anti-mascot campaign could be better spent, and
still others seem genuinely not to object to the R-skins, Chief Wahoo, or other
prominent depictions. For some people, such mascots are at least a minimal
reminder to the dominant society that Indians have not disappeared, that Indians
are still here. These are opinions that the American Indian community is working
out in emails and on Facebook pages, in conversations among tribal and urban
community members alike as they work on the project of healing nations and
rearticulating identities.282
The Washington Team, for its part, is not giving up. Owner Dean Snyder
continually reiterates that he will not willingly change the name, and he has waged
his own battle by relying particularly on the economic resources of the team to try
to influence sympathetic Indians in under-resourced communities. Pro-Football,
Inc., for example, donated the funds to build a playground on the Chippewa-Cree
279

See also Paul Hiebert, A Native American Expert on No Doubts Controversial Video and
Cultural Appropriation, FLAVORWIRE.COM, Nov 12, 2012, http://flavorwire.com/344807/what-a-native-americanexpert-thinks-about-that-controversial-no-doubt-music-video (Its not like I see myself or any native scholar
or activist or tribe as a gatekeeper for the nations taste. Its not that you have to get permission to use anything
that involves something Native. Its about assuming responsibility and not being surprised if people react by
saying, You screwed up. Its not about censorship; its about being clear on the motivations that are inspiring the
appropriation.).
280
Naomi Mezey, The Paradoxes of Cultural Property, 107 COLUM. L. REV. 2004, 2006 (2007). Cf. See Christine
Haight Farley, Registering Offense: The Prohibition of Slurs as Trademarks 1 (2014) (noting that harm occurs
when someones cultural identity is literally, and legally, owned by another entity and by trademarking a racial
referent, the message is that the referent is owned.).
281
See Christian Dennie, Native American Mascots and Team Names: Throw Away the Key; The Lanham Act is
Locked for Future Trademark Challenges, 5 SETON HALL J. SPORTS & ENT. L. 197, 212 (2005)(One survey,
taken of 425 Native American tribal leaders concerning the Washington R-Skins' use of the term redskin, found
72.24% of the leaders were opposed to the use of the term. In contrast, another survey conducted by Sports
Illustrated found 83% of Native Americans who do not live on reservations approved of the use of Native
American mascots and team names. In addition, 67% of Native Americans polled who live on reservations
approved of the use of Native American mascots and team names, while only 32% were opposed.). See also
Katyal, supra note _, at 1604 & n. 6 (noting that in earlier cancellation actions against Pro-Football, the courts
struggled with survey data and that there are difficulties with the empirical work in this area).
282
Million, supra note _; Barker, supra note _.

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Reservation in Montana283 and worked with the Zuni Tribe to offer prizes to Zuni
artists willing to incorporate the mascot into their art works.284 Dan Snyder
personally offered box seat tickets to the outgoing President of the Navajo Nation,
much to the embarrassment of many Navajo Nation members, particularly when
the tribe has protested the name.285 Synder announced the formation of its
Original Americans Foundation to to provide resources that offer genuine
opportunities for Tribal communities .286 In each of these instances, Snyder and
Pro-Football, Inc., are offering what seem to be tokens gifts of tens or even
hundreds of thousand dollars here and there to shore up their claims that
American Indians support the name.287 All of this occurred as the team filed in
federal court to challenge the TTABs decision to cancel the marks.288
In July 2015, a federal court upheld the TTABs cancellation of the Washington
R-Skins trademarks on the grounds that the marks may disparage a
substantial composite of the Native Americans and bring them into contempt or
disrepute pursuant to the Lanham Act.289 The Court drew on (1) dictionary
evidence, (2) literary, scholarly, and media references, and (3) statements of
individuals and groups in the referenced group to conclude that that the R-Skins
Marks consisted of matter that may disparage a substantial composite of Native
Americans during the relevant time period (1967, 1974, 1978, and 1990).290 In all
three categories, the court determined that the evidence weighed in favor of a
finding of disparagement under the Act. Moreover, the court rejected arguments
by Pro-Football, Inc. that the Lanham Act was unconstitutional on either Fifth
Amendment or First Amendment grounds.
Distinguishing between the
registration of the marks at issue in the case as opposed to the marks
themselves, the Court found that the registration was not property within the
283

Washington R-Skins Original Americans Foundation,


http://www.usatoday.com/story/sports/nfl/2014/07/31/washington-R-Skins-original-americans-foundation-indiantribes/13422205/.
284
ICTMM Today Staff, R-Skins Want Natives to Made R-Skins: No Drunk Artists Need Apply, Indian Country
Today, Aug. 8, 2014, http://indiancountrytodaymedianetwork.com/2014/08/08/R-Skins-want-native-made-RSkins-art-no-drunk-artists-please-156312
285
Sarah Larimer, Navajo Nation President Says he Talked Business with Dan Snyder at R-Skins Game,
WASHINGTON POST, Oct. 14, 2014, http://www.washingtonpost.com/blogs/dc-sports-bog/wp/2014/10/14/navajonation-president-says-he-talked-business-with-dan-snyder-at-R-Skins-game/.
286
Washington R-Skins Original American Foundation, http://www.washingtonRSkinsoriginalamericansfoundation.org/.
287
Letter from Dan Snyder, http://files.R-Skins.com/pdf/Letter-from-Dan-Snyder-32414.pdf.
288
Ian Shapira, R-Skins Defend Name: Ask Federal Court to Overturn Trademark Decision, WASHINGTON POST,
Aug. 14, 2014, http://www.washingtonpost.com/local/R-Skins-defend-name-ask-federal-court-to-overturntrademark-decision/2014/08/14/3f05b76e-2189-11e4-958c-268a320a60ce_story.html
289
Blackhorse v. Pro-Football, Inc., 1:14-cv-01043-GBL-IDID (7.8/15) (E.D. Va.).
290
Id. at 36.

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meaning of the Fifth Amendment. On the First Amendment issue, the court again
clarified that the dispute was over trademark registration; accordingly, regardless
of the courts decision about registration, the marks could continue to be used in
commerce, and may still maintain common law trademark protection.
Additionally, the court determined that the cancellation of the registration of the
marks was government speechnot private speech-- to which the First
Amendment does not apply.291
This decision interpreting the Lanham Act builds on a relevant, and somewhat
conflicted, body of jurisprudence around trademark registration. In addition to
prohibiting trademarks that are disparaging, the Lanham Act also prohibits
registration of trademarks that are immoral deceptive or scandalous.292 In
recent instances, slurs like the n-word and others have been denied
registration,293 though the jurisprudence remains mixed when it comes to other
terms and images relating to subordinated groups.294 Scholars examining these
cases highlight the nuanced role that intellectual property law, and trademark in
particular, plays in regulating market and expressive concerns. 295 Some scholars
have suggested that trademark law may not go far enough to address the
discrimination experienced by minority groups in cases like the R-skins,296 while
still others have characterized the cancellation of the racially disparaging marks as
an impermissible limitation on speech.297
291

Id. See, Walker v. Texas Division, Sons of Confederate Veterans , 135 S.Ct. 2239 (2015) (holding that the state,
as a matter of government speech, could reject specialty license plates depicting the Confederate Flag).
292
15 U.S.C. 1052(a) (2006).
293
See Rogers Cadenhead, Actor Tries to Trademark N-Word, WIRED MAGAZINE, Fe. 23, 2006,
http://archive.wired.com/science/discoveries/news/2006/02/70259; see also Katyal, supra note _ (reviewing
USPTOs treatment of marks that appear to represent or invoke racial and sexual minorities).
294
See, e.g., Todd Anten, Note, Self-Disparaging Trademarks and Social Change: Factoring the
Reappropriation of Slurs Into Section 2(a) of the Lanham Act, 106 Colum. L. Rev. 388 (2006) (reviewing
cases).
295
See Katyal, supra note _; see also Farley, supra note _, at 1 (Limited as it may be, the refusal of the U.S.
Trademark and Patent Office (USPTO) to grant federal registration to offensive marks plays some role in
protecting the public from racist or otherwise highly offensive trademarks. The USPTO does so even though
such actions may appear to some as a form of censorship and even though such determinations may embroil
the office and courts in differing standards of cultural sensitivity.)
296
See Farley, supra note _, at 18 (([I]f minority groups are injured by the use of trademark and the only
remedy provided by trademark law is cancellation of the registration of the trademark, then the effort and expense
of challenging the trademark may have been wasted.).
297
In an interesting turn of events, the American Civil Liberties Union has entered the fray in the Pro-Football
case, submitting an amicus brief that argues even if the contested marks are racially disparaging, the government,
cancellation would violate case law prohibiting viewpoint discrimination under the First Amendment. See
Eugene, ACLU Argues that Cancellation of the R-Skins Trademark Violates the First Amendment, THE
WASHINGTON POST, March 6, 2015. The United States has filed to intervene for the purpose of defending the
constitutionality of the Lanham Acts disparagement clause. See Pro Football, Inc. v. Blackhorse, Civil Action

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From our vantage point, the R-skins case much like the predicaments of the
Hopi katsinam and the Apache sacred sites of Oak Flat is an easy one. That is,
the doctrinal lever that must be exercised in order to prevent against the harmful
cultural appropriation is available, applicable, and straightforward. Trademark
law has, in fact, provided a remarkably clear avenue for redress, given its
language regarding disparaging marks. In our view, the remarkable history of
the term itself, combined with the overwhelming evidence of Indian appropriation
and blatant racism against Indian people throughout our history, a finding that the
mark is disparaging is not only feasible, it is required. The law supports this view,
and constitutional protections for speech do not inhibit it.298 After all, even if the
marks lose federal trademark protection, the Washington Team will still be able to
use them.299 Ironically, then, even a win for the American Indian plaintiffs
presents merely a compromise resolution. But one which would at least in some
potentially significant ways mitigate the extent to which the mark could be used to
silence, intimidate, and oppress Indian people.
3.

Leveling the Playing Field


In addition to the cases mentioned, there are other similarly easy cases involving
the intangible cultural property of Indian people. Some arise through federal laws
that set forth protections relevant to Indians or Indian tribes specifically, enacted
pursuant to Congress plenary authority over Indian Affairs and its concomitant
promise to deal with Indians through a relationship of trust. Though they are
limited, Congress has enacted specific statutes, including the Native American
Graves Protection and Repatriation Act,300 to at least modestly protect these
creations.
Due to a flood of counterfeit goods into the art market in the early 20th century,
Indian artisans many of whom relied entirely on the sale of original, handmade
art, jewelry, and crafts to make a living Congress passed the 1935 Indian Arts
and Crafts Act (IACA). By the time of passage of the act, tribes had largely been
confined to reservations where economic opportunity was scarce. Indian tribes
had a long and renowned history as jewelry makers, designers, and weavers, and
No. 1:14-cv-1043 (GBL/IDD) Notice of Intervention by the United States to Defend a Federal Statute, Jan. 9,
2015, http://pdfserver.amlaw.com/nlj/DOJ%20pro-football%20notice%20of%20intervention.pdf
298
Compare Esha Bhandari, Youre Not Wrong, Youre Just an A**hole, ACLU (Mar. 26, 2015, 12:30pm),
https://www.aclu.org/blog/speakeasy/youre-not-wrong-youre-just-ahole
299
The Team may even retain state common law protections for its marks, irrespective of federal cancellation.
300
This statute is discussed extensively in our previous work.

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this had provided one of the greatest economic opportunities to Indians on the
reservation. In order to protect this market, the IACA was advanced to promote
the artwork of Native artists and protect consumers against false imitations in the
marketplace. Functioning largely as a truth in advertising law, the statute
imposes civil and criminal penalties for works that unlawfully and erroneously
employ a tribal designation.
By governing wrongful attribution -- but not the creation or sale of the items
generally -- the IACA is intended merely to guarantee the authenticity of Native
cultural products. When consumers purchase Indian goods, such as Ojibwe
baskets, Hopi Kachinas, or Apache turquoise earrings, for example, the buyer is
guaranteed of the products' authentic origin. In turn, Indian artists are afforded
proper attribution. Importantly, then, the IACA serves the interests of both
manufacturers and consumers but does not impede artistic expression. Tribal
leaders have testified before Congress about the importance of protecting this
source of economic possibility for Indian people. But their concerns are broader,
noting that Indian people look to the Creator for inspiration and thank Him for
the talent, the ideas, the colors, and the materials to make the Arts and Crafts.301
The testimony emphasizes the spiritual connection that Native people have to their
art, as well as the importance of maintaining standards for that art, which links
Native people to their cultural as well as economic survival and well-being.302
Despite the Acts limited reach, it has been challenged repeatedly on First
Amendment grounds.303 Thus far, like the decision to cancel the R-skins
trademarks, it has survived such challenges.
We also find the Navajo Tribes lawsuits regarding Urban Outfitters use of Navajo
Panty and Navajo Flask to be similarly easy cases. Though the litigation is ongoing and therefore we acknowledge there may be information gleaned in
discovery that we do not yet have access to the cases on their face seem fairly
straightforward. In response to Urban Outfitters sale of the Navajo Panty, along
with a whole line of Navajo-labeled products adorned in vaguely Indian-looking
prints, the Navajo Nation filed a trademark infringement suit.304 The Navajo own the
301

The Implementation of the Indian Arts and Crafts Act of 1990: Oversight Hearing on Pub. L. No. 101-644
Before the S. Comm. on Indian Affairs, 106th Cong. 23 (2000) at 109 (Written Testimony of Traditional Court
(Clan Elders) of Ho-Chunk Nation) (as cited in Jennie Woltz, The Economics of Cultural Misrepresentation: How
Should the Indian Arts and Crafts Act of 1990 Be Marketed?, 17 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 443
(2007)).
302
Id.
303
See Native Am. Arts, Inc. v. Vill. Originals, Inc., 25 F. Supp. 2d 876, 880-81 (N.D. Ill. 1998).
304
Complaint in Navajo Nation v. Urban Outfitters, Case 1:12-cv-00195, Filed Feb. 28, 2012,
https://turtletalk.files.wordpress.com/2012/02/uo_complaint_as_filed.pdf.

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trademarks to their own name, which they consistently use in the certification of
goods in commerce. This includes trademarks that would seemingly preempt those
used by Urban Outfitters. In explaining their position, a tribal spokesman cited both
economic and dignitary dimensions of the tribes objections: For some of our
Navajo or native artisans, that's what sells their products. Attaching the name Navajo
to their item generates income. To the larger world, we are Navajo, and we take
pride in being Navajo. We dont want our name to be associated with anything
that isnt Navajo."305 Or, as a Lakota activist put it more generally: Just as our
traditional homelands were stolen and expropriated without regard, so too has our
very cultural identity.306
Without knowing more, it would be premature to adjudicate these cases out of
context. But the information that has been disseminated thus far lends itself to the
inference that Urban Outfitters is, indeed, violating the trademarks of the Navajo. To
add to this, of course, is the dignitary harm. There is something particularly
offensive not unlike the Crazy Horse Malt Liquor Case discussed herein to
attaching the Navajo name to underwear and especially alcohol, perhaps the most
destructive, addictive substance to ever reach Indian country. But the Navajo are
fighting back, using Western intellectual property law as another trademark holder
would be able to do -- to stake their claims over their own cultural identity and their
future.
c. Indian cultural appropriation and the limits of the law: the hard cases
1. Of headdresses, designs, and dances
In a recently published conversation in the New York Times debate series,
commentators from various perspectives dialogued around questions of cultural
appropriation. Adrien Keene, a citizen of the Cherokee Nation and author of the
blog, Native Appropriations, attempted to address questions around the
appropriation of Indian intangibles, including designs and headdresses. In her
response, she begins by laying out the historical and racial dimensions of cultural
appropriation in the Indian context. She cites to the lawful suppression of Indian
305

See Stephanie Siek, Navajo Nation Sues Urban Outfitters for Trademark Infringement, CNN.com, March 2,
2102, http://inamerica.blogs.cnn.com/2012/03/02/navajo-nation-sues-urban-outfitters-for-alleged-trademarkinfringement/. See also Jenna Sauers, Urban Outfitters and the Navajo Nation: What Does the Law Say,
JEZEBEL.COM, Oct. 13, 2011 (In my personal opinion, Navajo is a people not a pattern.) (quoting Susan Scafidi).
306
Sasha Huston Brown, An Open Letter to Urban Outfitters on Columbus Day, RACIALICIOUS.COM, Oct.10,
2011.

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religions, assimilationist policies, and other acts of (legal) violence against Native
peoples to situate her response about contemporary instances. In regards to nonIndians wearing headdresses, Keene explained that for the communities that wear
these headdresses, they represent respect, power and responsibility. The headdress
has to be earned, gifted to a leader in whom the community has placed their trust.
When it becomes a cheap commodity anyone can buy and wear to a party, that
meaning is erased and disrespected, and native peoples are reminded that our
cultures are still seen as something of the past, as unimportant in contemporary
society, and unworthy of respect.307 Even given this baseline presumption about
the harm caused to Native communities by cultural appropriation which Keene
says is an insidious, harmful act that reinforces existing systems of power -Keene quickly concedes that non-Native designers should be allowed to
incorporate Native iconography and imagery into their work. Instead of a
prohibition on such uses, she advocates for collaboration, partnership, equal
power, and respect.308
Keenes commentary highlights several themes that are deeply embedded in
debates over cultural appropriation today, particularly in the indigenous context:
racism, historical injustices, inequality, power imbalances, and the importance of
context, to name a few. To explain Native peoples discomfort with non-Indians
wearing headdresses, for example, it is necessary to go back to the indigenous
perspective drawn from that specific community and examine the meaning to
the tribe. Without such context, its impossible for non-Indians in contemporary
settings to grasp the offense and harm that indigenous people feel when sacred
objects and imagery are coopted, commercialized, and commodified for nonIndians benefit.
At the same time, in our experience in the field and in the academy, Keenes view
is emblematic of the overwhelming position of Native peoples that such
representations should not be legally banned. For one thing, both because of
constitutional limitations and practical ones, federal law cannot, and likely should
not, intervene to prevent all cases of Indian appropriation.309 But, beyond this,
many contemporary Indian people seek, above all, respect and understanding
rather than restrictive legal action. Discourse around these issues almost always
307

http://www.nytimes.com/roomfordebate/2015/08/04/whose-culture-is-it-anyhow/the-benefits-of-culturalsharing-are-usually-one-sided
308
Id.
309
See Volokh, supra note _, at 46. For purposes of this piece, we cabin off tribal law, which is free to evolve and
deal with questions of Indian appropriation as it wishes, to the extent the tribes are able to assert civil jurisdiction
over offenders. See, Riley, Straight Stealing, supra note _, at 91.

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focuses on a lack of education and exposure to Native people and to Indian


country evidenced, for example, by depictions of Indians almost always as
Hollywood versions of a 19th century, male Sioux warrior rather than on an
insistence that the law prohibit what Indian people should be gauged by respect
and consideration for others.
Moreover, Native people -- like all people -- are artists, artisans, comedians,
actors, playwrights, and theorists, all of whom desire freedom themselves to
speak, to criticize, and to entertain. For example, the 1491s the group that
appeared on John Stewart in critique of the Washington team use their satirical
work to critique structural and institutional racism against Native people by
parodying the dominant cultures concept of them. In doing so, in one popular
youtube video, Im an Indian, Too, 1491s member, Ryan Red Corn, appears
without a shirt and in a headdress.310 Both the lyrics and visuals combine to make
the point that Americans are fascinated with playing Indian and glom on to
specific tropes and iconography in order for non-Indians to claim Indianness.
Though the entire production is a critique of the dominant culture, the use of the
headdress in this way may nevertheless also be seen as shocking, disrespectful, or
inappropriate to some Indian people. It is not difficult to see that federal laws that
completely prohibited the use of headdresses outside of specific tribal contexts
which would, also problematically, have to be defined by each tribe could
unduly inhibit the ability of even Native people to critique the dominant culture
(or even their own cultures, for that matter).
Similar problems arise in the fashion industry and with Native-inspired design
features. The burgeoning Crow fashion designer Bethany Yellowtail, for
example, has promoted her work as seeking to authentically represent Indigenous
designs.311 In the media, her creations have been contrasted with those of nonIndians who use Indian design features in their work, decontextualized from
meaning, and some who have actually copied Yellowtails own designs without
attribution.312 But Yellowtail herself draws inspiration from multiple places,
inspired in part by photos of her ancestors as they began to mix traditional Crow
regalia with European design. Yellowtails own stated goal is to carve out a
space where an authentic voice and an authentic representation of Native America

310

https://www.youtube.com/watch?v=9BHvpWP2V9Y
http://www.byellowtail.com/about/ (emphasis added).
312
http://indiancountrytodaymedianetwork.com/2015/02/20/bethany-yellowtail-gutted-crow-design-dress-newyork-fashion-week-159319. Copying is a common practice in the fashion industry. See, RAUSTIALA AND
SPRIGMAN, THE KNOCK-OFF ECONOMY.
311

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exists and thrives."313 But, as an artist in an industry that relies on inspiration and
creativity, Yellowtail states: For me, my mission is not about trying to combat
cultural appropriation" . . . if were combating cultural appropriation while just
being true to ourselves, then that's a bonus."314 Again, even Yellowtails own
position demonstrates that overly restrictive federal laws against appropriation
could inhibit the freedom to innovate, manipulate, and modify even ancient
traditions.
The problem of indigenous creations not fitting neatly into intellectual property
regimes has been exhaustively documented in the scholarly literature as well as in
popular culture. The problem is illustrated by an example discussed in the
introduction, the Koshare Boy Scouts. Despite the fact that the Pueblos express
deep harm and concern over the Koshare Boy Scouts troops that pretend to be
Pueblos engaged in ceremony, existing federal law does not protect against the
appropriation. Though Native people attempt to explain the harm done to them
and to the world through such actions, it is difficult for tribal members to convey
the distortion of religion, the feeling of the erasure of identity, and the
ahistorical stereotyping it produces, particularly in the language of Western law.315
Similar themes emerge in instances of non-Indian self-help gurus that operate forprofit sweat lodges to give tourists an Indian religious experience.316 Or
bikini-clad Victorias Secret models that walk the catwalk in Indian
headdresses.317
In our experience, while Native people oftentimes feel harmed and wronged by
such acts of appropriation, for the most part calls to action are not for laws, but for
understanding. This may feel like an anticlimactic resolution to a complicated
issue. But it leads to several conclusions.
First, Native people want
understanding, respect, and equality in American society, which may not be
possible through the dictates of law, but should be a focus of education and media.
313

http://www.huffingtonpost.ca/2015/05/14/bethany-yellowtail-fashion_n_7275208.html
Id.
315
See, Patrick V. Naranjo, A Lesson from the Pueblo Revolt of 1680 About Cultural Appropriation and Tribal
Sovereignty: What Santa Clara Pueblo Can Do to Protect Tewa Cultural Property at 5 (on file with the UCLA
AISC Library) (The appropriation of these ceremonies directly threatens Tewa survival. It facilitates harmful
misuse and misunderstanding of the life-affirming rituals through which the Tewa people ensure their continued
existence. It also threatens to erode the cultural and religious distinctions on which the tribal-federal relationship is
based. At a representative level, it erases Tewa tribal identity, replacing it with historicized representations of
Indians in popular culture.).
316
See, Mark Lacey, James Arthur Ray, New Age Guru, Guilty in Sweat Lodge Deaths, N.Y. TIMES, June 22, 2011
(reporting on high profile case in which self-help guru was held guilty of negligent homicide in the deaths of
three individuals during a sweat lodge ceremony near Sedona).
317
Felicia Fonseca, Victoria's Secret apologizes for use of headdress, AP ALERT, Nov. 13, 2012.
314

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Moreover, as discussed more fully infra, tribal law has an incredibly powerful role
to play here. Because of limited jurisdictional reach, it cannot go as far as
necessary to prevent actions by non-Indians, but tribal members remain attentive
to tribal law and to the demands and desires of their own communities. And,
finally, as fully set forth in subpart 4 infra, Native people are as dynamic, diverse,
ambitious, reverent, and irreverent as all people. Overly restrictive federal laws
that might protect Indians in one instance could be stifling in others.
2. The problem of traditional knowledge
Traditional knowledge constitutes the knowledge, know-how, skills and practices
that are developed, sustained and passed on from generation to generation within a
community, often forming part of its cultural or spiritual identity.318 Around the
world, traditional knowledge is increasingly recognized as a valuable, contested
resource, especially in pharmaceuticals, biotechnology, and related industries,
with countries and companies often exploiting the developing south in this
context. For some perspective, note that in August 2012 alone, Brazil fined 35
American companies a combined $44 million for biopiracy. India cancelled or
withdrawn over thirty patent applications from 2009 to 2011.319
Indigenous peoples in the U.S. and around the world have deep stores of TK in
agriculture, habitat preservation, ecology, medicine, and other realms.320
Increasingly indigenous peoples seek to protect their TK, both for their own use
and against exploitation by others. 321 One of the challenges is that third parties
have asserted intellectual property rights to TK such medicinal plants,
cosmetics, foods products,322 and even geneticsoriginating in Indian
communities.323 For example, universities and corporations have entered
indigenous communities without disclosure, consent, or compensation, harvested
information and materials, and used these sometimes with little transformation

318

http://www.wipo.int/tk/en/tk/
Nick Meynen, Recognizing Biopiracy, Environmental Justice Organizations, Liabilities, and Trade (October
30, 2014) http://www.ejolt.org/2012/08/recognizing-biopiracy/.
320
See MELISSA K. NELSON, ED., ORIGINAL INSTRUCTIONS: INDIGENOUS TEACHINGS FOR A SUSTAINABLE FUTURE
(2008).
321
See JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION
SOCIETY 127-29 (1996) (telling the story of a drug company that developed a remedy for Hodgkins disease from
vinca alkaloids derived from the rosy periwinkle of Madagascar).
322
See, e.g., World Intellectual Property Organization 127 (discussing allegations of bioprospecting of rice by
University of Minnesota scientists on Leech Lake Indian reservation).
323
See, e.g., Hilary Cunningham & Stephen Scharper, Human Genome Project Patenting Indigenous People,
https://www.dartmouth.edu/~cbbc/courses/bio4/bio4-1996/HumanGenome3rdWorld.html.
319

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or innovation to secure valuable patents.324 Indeed, patent law has become more
globally pervasive through the World Intellectual Property Organization
(WIPO) and its Agreement on Trade-Related Aspects of Intellectual Property
Rights (TRIPS).325 In some instances, parties with patents to products wild
rice for example originating in indigenous communities have used them to
exclude Indians from their own ongoing use or in a way that causes contamination
with genetically modified products.326
One response from intellectual property lawyers is that indigenous peoples should
seek their own patents (or alternatively trademarks or geographic indicators), so
that they can establish and exploit their own resources. But this answer is often
unsatisfactory. First, indigenous peoples development of traditional knowledge
often departs from doctrinal elements of federal and state law. Typically,
indigenous peoples have developed traditional knowledge through hundreds of
years of collective residence in a particular landscape, testing and improvement of
practices, and intergenerational transmission of knowledge. But to prosecute a
patent, for example, the applicant must show that its invention is a patentable
subject matter (as defined by Congress), useful, novel, and not previously
disclosed, factors that may be difficult to demonstrate in the context of collective,
intergenerational knowledge production. Patent law privileges scientific
innovation, not relatedness with the natural world. And so, for example, while one
may not patent a plant or gene pool, one may patent the process for altering a
species or isolating genetic markers in a lab, activities more likely to be done by
biotechnology firms and scientists than indigenous peoples. Secondly, and
perhaps most importantly, even if indigenous could in some instances meet these
factors, the very cultural norms that give rise to the traditional knowledge such
as collective stewardship of resources, reciprocity with the natural world, and
religious privacy may prevent the kinds of disclosure and use required to
establish a patent.327 Placing certain forms of TK in the public domain, as prior

324

See generally, Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the (not-so-brave) New
World Order of International Intellectual Property Protection, 6 IND. J. GLOBAL LEGAL STUD. 11, 47 (1998)
(writing, specifically, about commercial plant breeders using traditional indigenous varieties of seeds, making
slight improvements on them, patenting them, and then selling them back to the indigenous communities for a
profit.)
325
See Madhavi Sunder, The Invention of Traditional Knowledge, 70 LAW & CONTEMP. PROBS. 97, 112 (2007)
(asserting that TRIPS has focused on teaching the worlds poor how to protect the intellectual property of the
wealthy West) [hereinafter Sunder, Invention].
326
http://indiancountrytodaymedianetwork.com/2002/07/15/dont-meddle-manoomin-say-ojibwe-87891
327
See http://indiancountrytodaymedianetwork.com/2002/07/15/dont-meddle-manoomin-say-ojibwe-87891.
See also CLINT CARROLL, ROOTS OF OUR RENEWAL, ETHNOBOTANY AND CHEROKEE ENVIRONMENTAL
GOVERNANCE (2015) (describing Cherokee values regarding wild plants and the natural world).

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art or after the expiration of a patent, for example, may be untenable for
indigenous peoples whose cultural norms may dictate more limited disclosure.
In some instances, indigenous peoples may want to try to compete in the realm of
intellectual property to protect and exploit their traditional knowledge, but, in
other instances, legal solutions may not fit either their resources or values. On the
international stage, U.S. tribes and other leaders have taken a leading role in
negotiations at the WIPO regarding its emerging programs, norms, and
agreements on acknowledge and protect indigenous traditional knowledge.328
Through extensive research and meetings with indigenous peoples, WIPO has
developed technical assistance for those who would like to document their
traditional knowledge329 and a set of model laws for nation states regarding the
protection of folklore.330 Perhaps most provocatively, negotiations are currently
underway in WIPOs Intergovernmental Committee on Intellectual Property and
Genetic Resources, Traditional Knowledge and Folklore towards the development
of an international legal instrument for the effective protection of traditional
cultural expressions and traditional knowledge, and to address the intellectual
property aspects of access to and benefit-sharing in genetic resources. Indigenous
peoples have been deeply involved in these discussions, with the Tulalip Tribes
from Washington State leading the effort among U.S. tribes. From the perspective
of the Tulalip representatives, the tribes well-established treaty-rights to hunt,
fish, and gather, extent to the right to regulate protect and traditional knowledge
associated with those activities. As Terry Williams testified to WIPO:
Under the treaty of Point Elliott, we have reserved rights and a government-to
government relationship. In the treaty, we never surrendered our right over TK,
traditional cultural expressions (TCEs) or genetic resources. As governments, we
have the right to govern our own systems of knowledge, expressions and genetic
resources according to our tribal and customary laws. While our approach may be
related to the specific historical relationship to the United States, we believe that
this approach is also supported in the rights acknowledged for all indigenous
peoples in the United Nations Declaration on the Rights of Indigenous Peoples.
Some of the issues discussing in the WIPO process include how and whether
indigenous traditional knowledge can be meaningfully protected within the
boundaries of intellectual property law, or whether special measures are necessary
328

http://www.wipo.int/tk/en/igc/panels.html
http://www.wipo.int/tk/en/resources/tkdocumentation.html.
330
http://www.wipo.int/export/sites/www/tk/en/folklore/1982-folklore-model-provisions.pdf
329

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and possible. A number of international instruments including the Convention on


Biodiversity and U.N. Declaration on the Rights of Indigenous Peoples may bear
on these negotiations. Substantively, the U.N. Special Rapporteur has noted that
indigenous peoples traditional knowledge is protected under the U.N. Declaration
on the Rights of Indigenous Peoples articles on self-determination and antidiscrimination, as well as its many provisions calling for the protection of
indigenous culture, religion, land, and health.331 Even more specifically, UNDRIP
Article 31 provides:
Indigenous peoples have the right to maintain, control, protect and
develop their cultural heritage, traditional knowledge and
traditional cultural expressions, as well as the manifestations of
their sciences, technologies and cultures, including human and
genetic resources, seeds, medicines, knowledge of the properties of
fauna and flora, oral traditions, literatures, designs, sports and
traditional games and visual and performing arts. They also have
the right to maintain, control, protect and develop their intellectual
property over such cultural heritage, traditional knowledge, and
traditional cultural expressions.
Article 31 also provides that in conjunction with Indigenous Peoples, States shall
take effective measures to recognize and protect the exercise of these rights.
From a process perspective, indigenous leaders have called for the UNDRIPs
provisions on free, prior, and informed consent (FPIC) to govern in
transactions and relationships among indigenous peoples and states or others who
seek to obtain their traditional knowledge.332 While this standard is nascent, at
best, it has been adopted as a matter of best practices by some industry groups,333
and is also consistent with standards of medical care with particular applicability,
perhaps, in the context of genetic traditional knowledge.
Beyond domestic legal regimes and international human rights, Indian tribes are
increasingly revitalizing and updating their own, often ancient, laws customs on
the protection and regulation of traditional knowledge.334 More generally, tribal
331

http://www.wipo.int/tk/en/igc/panels.html
http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_16/wipo_grtkf_ic_16_inf_5_d.pdf
333
http://www.indianlaw.org/sites/default/files/resources/FPIC_ILRC_Position.pdf
334
For example, after a the Leech Lake Tribe became aware of University of Minnesota researchers interests in
patenting a wild rice genome and the NorCal corporation applied for a patent on a wild rice strain, both of which
Leech Lake people believed would interfere with their traditional subsistence ricing activities, the tribal council
several resolutions calling for protection and regulation of such activities. Leech Lake Tribal Council Resolution,
02-79, Feb 28, 2002; http://www.llojibwe.org/drm/ordinances/Resolution%20No.%2002-79%20(2-28-02)%20B332

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governments along with national and governmental organizations are increasingly


developing standards for researchers to obtain informed consent from, and share
the fruits of their research with, the indigenous communities who comprise their
subjects.335
3. (Other) Indian Mascots: Beyond the Beltway
As we described above, the case of the Washington R-Skins, for all the
controversy surrounding it, may be an easy one from a doctrinal perspective. For
one thing, even if the cancellation is upheld, it does not mandate a name change.
But there are, of course, hundreds if not thousands of universities and schools with
Indian mascots that present harder cases, either because they are not regulated by
federal law, moves to changes mascots would effectively mean banning its use by
the institution, or because the marks may fall along a continuum of acceptable to
offensive. Where then do we place professional teams like the Cleveland Indians
and Chicago Blackhawks, college mascots of the Florida Seminoles and Golden
State Warriors, and high school names ranging from the Natick Redmen (in
Massachusetts) to the Sequoyah Indians (in Oklahoma).336 Or the Tecumseh
Savages, located in the heart of Potawatomi County, Oklahoma, home to
numerous federally recognized tribes.337
With respect to professional or other teams that have or are applying for federal
registration Indian mascots as trademarks, the cases will probably be worked out
as a matter of trademark law and the market. The TTAB and courts have
tremendous experience applying the standard of disparagement over the years
with current cases ranging from the Slants (an Asian American Rock band) and
Khoran (as a mark for wine) 338 Is the word Indians on its own disparaging?
1.pdf (calling for end to research and patents on wild rice); See also Leech Lake Tribal Council Ordinance 99-01,
Protection and Preservation of Wild Rice Beds, July 10, 1998,
http://www.llojibwe.org/drm/ordinances/Wild%20Rice%20Beds%20-%20Ordinance%20No.%209901%20(July%2010%201998)%20B-1.pdf (enacting protections for wild rice beds).
335
See, e.g., Hopi Tribe Research Protocol, Hopi Cultural Preservation Office, Protocol for Research,
Publication and Recordings: Motion, Visual, Sound, Multimedia and other Mechanical Devices,
http://www8.nau.edu/hcpo-p/ResProto.pdf; see also Canadian Institutes of Health Research, Aboriginal
Knowledge Translation, June 2009, http://www.cihr-irsc.gc.ca/e/41392.html;
336
Compare Gavin Clarkson, Racial Imagery And Native Americans: A First Look at the Empirical Evidence
Behind The Indian Mascot Controversy, 11 CARDOZO J. INT'L & COMP. L. 393-395 (2003) (as of 2003 more than
10.6 percent of the high schools across the country had Indian mascots). The NCAA has a well-known policy
requiring schools with Indian mascots to consult with relevant tribes. See NCAA Policy applies core principles to
mascot issue, Aug. 15, 2005, http://fs.ncaa.org/Docs/NCAANewsArchive/2005/Associationwide/policy+applies+core+principles+to+mascot+issue+-+8-15-05+ncaa+news.html
337
See http://www.tecumseh.k12.ok.us/ (last visited 8/14/15).
338
See Eugene Volokh, The R-Skins and The Slants: How an Asian American band name case may affect the R-

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Almost certainly not. Clevelands Chief Wahoo, with his maniacally grinning
Indian in red face? Perhaps. We have every confidence that tribes and Indian
people will bring claims when they feel it appropriation, and that the agencies and
the courts will thoughtfully analyze and assess the standards underlying the
Lanham Act as they do in other contested areas. Other forms of advocacy, from
shareholder actions to protests, will help teams decide whether it is worth it for
them to continue to use marks that certain segments of the population may find
offensive. These activities and attitudes will likely evolve over time.
In college sports, the National College Athletic Associations (the NCAA) issued
a 2005 decision to prohibit NCAA colleges and universities from displaying
hostile and abusive racial/ethnic/national origin mascots, nicknames or imagery at
any of the 88 NCAA championships.339 Citing its own principles of cultural
diversity and gender equity; sportsmanship and ethical conduct and
nondiscrimination the NCAA provided that schools with Indian mascots and/or
logos could continue to use them without penalty if they sought and received
consent from the relevant Indian tribe. If the relevant tribe did not consent, the
offending institution had either to change the mascot or continue to use the mascot
but be prevented from hosting NCAA post-season championship events.340
When first announced, NCAAs mascot policy was very controversial, but now in
its tenth year, it appears to have led to innovative collaborations. While Florida
State University, for example, had already enjoyed a relationship with the
Seminole Tribe of Florida, the NCAA policy required it to revisit and deepen it.341
Meetings with the Seminole Tribe led the team to adopt uniforms with Seminole
patchwork, retire a headdress (Seminoles never wore them) and change the
booster club from the Scalp Hunters to the Spirit Hunters. The team checks
with the tribe regularly regarding depictions of Seminoles, their history, and
culture. The relationship is ongoing and stretches beyond athletics to the rest of
the University with a new Seminole history course, honorary degrees for esteemed
tribal leaders, and gifts exchanged between the University and tribal council.
Skins trademarks, THE WASHINGTON POST, July 8, 2015, https://www.washingtonpost.com/news/volokhconspiracy/wp/2015/07/08/the-R-Skins-and-the-slants-how-an-asian-american-band-name-case-may-affect-the-RSkins-trademark/.
339
Press Release, Nat'l Collegiate Athletic Ass'n, NCAA Executive Committee Issues Guidelines for Use of
Native American Mascots at Championship Events (Aug. 5, 2005), available at
http://www2.ncaa.org/portal/media_and_events/press_room/2005/august/20050805_exec_comm_rls.html
340
Gary T. Brown, Policy applies core principles to mascot issue, NCAA News Aug. 15, 2005, at 1, 19.
341
http://www.washingtonpost.com/sports/colleges/florida-states-unusual-bond-with-seminole-tribe-puts-mascotdebate-in-a-different-light/2014/12/29/5386841a-8eea-11e4-ba53-a477d66580ed_story.html See also
http://catawbanationproject.blogspot.com/2010/05/mascot-issue-and-catawba-indian-nation.html

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From descriptions of the tribe and University alike, the Universitys MBA
program even highlights the Seminoles success in business. These changes seem
to be deep and enduring. By contrast, when the University of North Dakota could
obtain the consent of one of two federally recognized tribes to use the Fighting
Sioux moniker, it decided to retire the name, notwithstanding significant pressure
from donors to keep it and ongoing charges of political correctness and racial
discrimination. And it should be noted that the Seminole Tribe of Oklahoma
opposes all mascots. While not universally successful, then, it would seem that the
NCAAs approach can lead to relationship building and advances in education,
consistent with tribal self-determination and anti-discrimination norms.342
These are principles that could well be applied to differentiate the use of Indian
mascots by high schools (and even middle and elementary schools), albeit with
particular attention to the vulnerabilities of teenagers and children, and the
demographics of certain communities. At the secondary school level, there
appears to be great diversity in the demographics of the schools with Indian
mascots. A 2003 study found that more than 10.6 percent of the high schools
across the country had Indian mascots.343 Of these, 94% were racial in nature
(referring to Indians generally, with names such as Indians, Warriors, Braves, and
R-Skins), whereas only 6% were tribal (referring to specific Indian tribes, such as
Mohawks, Seminoles, and Apaches).344 In terms of geography, high schools
across the country-- from the Northeast (where the Indian population and tribal
land bases are very small), to Oklahoma (home to over 35 federally recognized
Indian tribes, with many schools and counties having a significant Native
population), to the West (where there is a real mix, with large tribes with
significant land bases in places like Arizona, but smaller tribes with little
reservations in California)have Indian mascots. They are found in urban and in
rural areas. Some, as noted above, are even located on Indian reservations or in
Indian country.
We do not contend that every mascot that relates to Indians is offensive and ought
to be changed. Undoubtedly, some high schools with large Indian populations
prefer to play under these names. For many, it is a symbol they can identify with,
that gives them pride, and that ties them to their history in a particular place, and
is not a mockery or a symbol of disempowerment. For some, it is as simple as not

342

http://indiancountrytodaymedianetwork.com/2012/07/02/why-debate-over-university-north-dakotas-fightingsioux-mascot-important-121802
343
Clarkson, supra note _, at 393-95.
344
Clarkson, supra note _, at 396.

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finding the mascots offensive or feeling that time and resources should be put
towards different causes.345 For others, the use of the name may be evidence of a
reclaiming, similar to new meaning given to terms like queer and bitch in the
last few decades.346 We acknowledge these are not easy cases, either legally or
otherwise. And there are numerous factors that might come into play in terms of
assessing the continued viability and wisdom of an Indian mascot, as well as the
critically important question in the educational context of whether Indian students
in these institutions are harmed either as individuals or as groups. Similar
spillover discriminatory impacts could be harmful to Indian community members
and/or local tribes as well. Some scholars theorize that the demographics of
reservation and Indian country communities reduce the opportunities for
humiliation, discrimination, and violence that Indians experience when, as in most
of the country, they are dramatically outnumbered and disempowered.347
Miwok teenager Dahkota Franklin Kicking Bear Brown has spoken prominently
and from the heart about the experience of being a Native teenager on a football
team that plays against another team called the R-skins.348 Kids from his own
school dressed up a female student as a Pocahottie and pretended to attack her
on the field, while opposing fans chanted Kill the R-Skins. He explained feeling
fear, shame, pain, and invisibility: All of these actions, along with many more,
hurt my heart. All of these screaming fans dont know how offensive they are. Or
that they are even in the presence of a Native. Most of the time, they dont even
know that Natives still exist. Beyond the immediate experience, Dahkota
described potential educational impacts including that his own teachers,
influenced by stereotypes and looking for R-skins, do not see Indian kids as real

345

See Christian Dennie, Native American Mascots and Team Names: Throw Away the Key; The Lanham Act is
Locked for Future Trademark Challenges, 5 SETON HALL J. SPORTS & ENT. L. 197, 212 (2005)(One survey,
taken of 425 Native American tribal leaders concerning the Washington R-Skins' use of the term redskin, found
72.24% of the leaders were opposed to the use of the term. In contrast, another survey conducted by Sports
Illustrated found 83% of Native Americans who do not live on reservations approved of the use of Native
American mascots and team names. In addition, 67% of Native Americans polled who live on reservations
approved of the use of Native American mascots and team names, while only 32% were opposed.). See also
Katyal, supra note _, at 1604 & n. 6 (noting that in earlier cancellation actions against Pro-Football, the courts
struggled with survey data and that there are difficulties with the empirical work in this area).
346
See, Alan R. Velie, Indian Identity in the Nineties, 23 OKLA. CITY. L. REV. 189, 205 (1998) (noting that Indian
college students formed subgroups and called themselves Skins).
347
Native Appropriations, Missing the point on the Red Mesa Redsk*ns,
http://nativeappropriations.com/2014/10/missing-the-point-on-the-red-mesa-redskns.html/ (last visited Mar. 3,
2015).
348
See, Erik Brady, Native American high school student gives emotional speech on impact of Indian team names,
USA TODAY, July 23, 2014, http://ftw.usatoday.com/2014/07/native-american-student-speech-center-americanprogress.

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Indians, and thereby ignore the many social and educational issues they face as a
group.349
The school that Dahkota Brown, as one of very few Indian kids, attends in
California could probably do well to learn from the NCAA and its member
schools about outreach to tribal communities and support for tribal students. On
the other hand, it is also important not to paint all of these schools with a broad
brush. Red Mesa School on the Navajo Reservation uses the R-Skins as its
mascot, and students have been very vocal about supporting that name.350 In the
capital of the Cherokee Nation, the Sequoyah Schools use the Indians as their
mascot. For the most part, news accounts and community attitudes would indicate
that students, parents, and tribal leaders, alike, support those teams and their
names. It may be that in a majority Indian community, these issues play out
differently than in other places. Students at Red Mesa are immersed in Navajo life
on a daily basis, and Navajo students are surrounded by other Navajo students.
Students at the Sequoyah Schools can study Cherokee language and participate in
activities of the Cherokee Nation, which is a major force in the region. As
Adrienne Keene suggests, context matters, and when your audience, team, and
school is nearly 100% Native, students are less likely to see whites
misrepresenting their cultures or to fear racial violence.351 We do not have a
universal judgment to offer about these schools or their mascots. Instead, we
suggest that here too, the right approach is to view these cases through the twin
lenses of anti-discrimination and tribal self-determination; to make sure that
Indian children are empowered more broadly in their educations, and to listen to
Indian kids, parents, and tribes, about how they want to represent themselves in
2015 and beyond.
Though it is beyond the scope of this Article, we would argue that schools
consider a number of questions when they form policy on school mascots. Some
salient factors might include: Has the relevant Indian community and/or individual
students expressed harm, discrimination, or offense arising from the use?352 Has
the school or school system consulted with the relevant tribes, families, and
349

See Erik Brady, Native American high school student gives emotional speech on impact of Indian team names,
USA TODAY, July 23, 2014, http://ftw.usatoday.com/2014/07/native-american-student-speech-center-americanprogress.
350
http://www.washingtonpost.com/local/in-arizona-a-navajo-high-school-emerges-as-a-defender-of-thewashington-R-Skins/2014/10/26/dcfc773a-592b-11e4-8264-deed989ae9a2_story.html
351
Native Appropriations, Missing the point on the Red Mesa Redsk*ns,
http://nativeappropriations.com/2014/10/missing-the-point-on-the-red-mesa-redskns.html/ (last visited Mar. 3,
2015).
352
Clarkson, supra note _, at 393-400 (Clarkson discusses these issues in his 2003 survey).

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students? What percentage of the surrounding population (town or county or state)


is Native American? What percentage of the student body is Native American?
What is the origin of the mascot? Is the mascot tribal or racial in nature? If it is
tribal, does the designated tribe have input into the depiction of the mascot and the
use of potentially sacred or religious iconography, such as feathers or drums?
Though this does not fully answer the question regarding Indian mascots in
secondary schools, the literature emphasizes that the most salient question in this
context is whether the mascot impedes the ability of Indian students to learn and
fully thrive in an educational environment. If that question is answered in the
affirmative, we see that as dispositive of the inquiry.
4.

Drawing from tribal law


Native people who are enmeshed in their cultures and tribal communities are
significantly driven by considerations of tribal law353 and tribal norms354 in
regarding what is considered to be permissible behavior, particularly when it
comes to cultural matters. Yet, tribal laws influence over non-Indians is limited
because of strict jurisdictional rules. In general, tribes do not have regulatory
jurisdiction over non-Indians outside of their reservations (and increasingly
limited jurisdiction, even within them).355 As a result, even when there is a tribal
law regarding appropriation that might provide limits and remedies in cases of
appropriation, these cannot be applied extra-territorially.
The most famous case highlighting this divide is that of In re Tasunke Witko, also
known as the Crazy Horse Malt Liquor Case. In this particularly famous example,
descendants of the Lakota religious leader Crazy Horse challenged the use of the
revered Sioux leader, Crazy Horse, to sell a high alcohol content malt liquor in
stores bordering the Sioux reservation. Relatives explained that Crazy Horse
fiercely protected his likeness and also opposed alcohol consumption, a wellknown scourge to Indians. The descendants first sought, and won, protection in
the legislative process, when Congress passed a law that prohibited the use of
Crazy Horses name and likeness to sell alcohol. But Hornell prevailed in a first
amendment lawsuit, and the law was struck down as unconstitutional.356
353

See generally MATTHEW L.M. FLETCHER, AMERICAN INDIAN TRIBAL LAW (2011).
See generally JOHN BORROWS, CANADAS INDIGENOUS CONSTITUTION, 23-55 (2010) (distinguishing among
various types of indigenous custom, law, and norms); JOHN BORROWS DRAWING OUT LAW: A SPIRITS GUIDE
(2007) (engaging with indigenous customary law).
355
See Sarah A. Krakoff, Tribal Civil Jurisdiction over Nonmembers: A Practical guide for Judges, 81 COLO. L.
REV. 1187 (2010).
356
Hornell Brewing Co. v. Brady, 819 F. Supp. 1227 (E.D.N.Y.1993).
354

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Subsequently, the descendants sued in tribal court, alleging that, as a matter of


privacy, publicity, and other rights under Lakota law, the Hornell Brewing
Company should not be able to continue in the unauthorized use of the name and
image of Crazy Horse and Sioux warriors fighting the U.S. Calvary in the
Lakotas sacred Black Hills, to sell malt liquor.357 Remedies were available under
tribal law that would not be provided for in the state or federal courts. Among
other things, Crazy Horses relatives sought restorative justice for the
transgression, including apology, blankets, sweet grass, and other goods.
Moreover, there were causes of action for violations of publicity rights and
reputation that were cognizable under Lakota law, but not elsewhere. Despite the
opinions of the tribal court and the Rosebud Sioux Supreme Court, Hornell
continued to challenge the tribe on jurisdictional grounds. Ultimately, the Eighth
Circuit held that the tribal court did not have jurisdiction to hear the case because
the company was located off the reservation.358 This prevented the tribal law
cause of action from being heard, and also changed the parameters for restorative
justice.359 In this, and in countless other matters, indigenous peoples have tried to
assert protections over their songs and stories, prayers and symbols, based on
indigenous cosmologies and/or tribal law, but this has been exceedingly
difficult.360
Despite these challenges, tribal law has an important role to play in defining the
limits of intangible property protection, both inside and outside of Indian country.
Tribal notions of ownership can define which individuals, families, and clans, for
example, can utilize certain designs in tipi adornment. Tribal law similarly will
speak to questions of ceremonial obligations and duties, and who is and is not

357

In the Matter of the Estate of Tasunka Witko, a.k.a. Crazy Horse v. G. Heileman Brewing Co., Civ. No. 93 204, slip op. (Rosebud Sioux Tribal Ct., October 25, 1994). Professor Frank Pommersheim was the author of the
Rosebud Sioux Supreme Court decision. See, Frank Pommersheim, Tribal Court Jurisprudence: A Snapshot from
the Field, 21 Vt. L. Rev. 7, 28-30 (1996) (The breadth of the theory of this case reflects a unique confidence in
the competence of the Rosebud Sioux Tribal Court to adequately hear claims rooted in dominant society
jurisprudence, Lakota tradition and custom, and federal law.). See also, Nell Jessup Newton, Memory &
Misrepresentation: Representing Crazy Horse in Tribal Court, 27 CONN.L.REV. 1003 (1995); Joseph William
Singer, Publicity Rights and the Conflict of Laws: Tribal Court Jurisdiction in the Crazy Horse Case, 41
S.D.L.REV. 1 (1996).
358
Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998).
359
The parties later settled out of court for terms including an apology, as well as customary remedies including
horses, blankets, and tobacco. See Elizabeth Stawicki, Crazy Horse Dispute Settled, MINNESOTA PUBLIC RADIO,
April 26, 2001.
360
See, e.g., Olufunmilayo B. Arewa , From J.C. Bach to Hip Hop: Musical Borrowing, Copyright, and Cultural
Context, 84 N.C. L. REV. 547 (2006) (on challenges of applying copyright law in music, especially across differing
cultural norms about borrowing, sampling, privacy, and authorship).

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allowed to conduct or participate in ceremonies. Tribal conceptions of justice can


drive decisions about the ability of individual tribal members to commodify and
sell specific goods, or designate how goods can and should be reproduced so as
not to violate tribal norms.
Even where tribal law is not applicable, the concepts of harm, duty, responsibility,
and justice can inform the actions of both tribal members and those who the come
in contact with around issues of cultural appropriation. Returning to the Hopi
katsinam, for example, although American and international law failed to produce
results for the Hopi, that was not the whole story. One of the wealthy art dealers
that had purchased the katsinam for private use, Monroe Warshaw, stated publicly
that he would probably never "return the katsinam he purchased to the Hopi.
Warshaw was subsequently vilified in the press. In an unexpected move, he took
a trip out West, making several visits to Hopi. Although he had stated at one point
that [t]he culture that created a work might not necessarily be the best one to
preserve it,361 Warshaw ultimately had a change of heart after being invited to
attend a sacred Hopi ceremony. Leigh Kuwanwisiwma, director of the Hopi
Cultural Preservation Office simply explained that: He became convinced, and
thats what happened.362 After Warshaws trip to Hopi, he returned two objects
which he purchased for around $40,000 at no cost to the tribe.363
Kuwanwisiwma said that he and the Hopi people appreciated Warshaws
actions. And though he would not be specific about what would happen to the
katsinam, he said they will be kept safe. The sacred objects will be returned to
one of the Hopi villages, to the Kachina priests who have stewardship over these
types of items he said.364
Warshaw was ultimately touched by Hopi law the system of duties and
responsibilities that make Hopi who they are. Experiencing this enabled Warshaw
to understand the depth of connection the Hopi have to the katsinam and the vital
importance they play in the community. Today, the preservation and use of the
katsinam are, again, subject to Hopi law, which will dictate their future care and
destiny.
IV. Conclusion

361

Hendricks, supra note _, at _.


Hendricks, supra note _, at _.
363
Hendricks, supra note _, at _.
364
Hendricks, supra note _, at _.
362

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If we take seriously what Indian people are saying, it appears that appropriations
and misrepresentations of Indian culture diminish the well-being of individual
Indian people, and, correspondingly, the health, welfare and self-determination of
tribes as collectives. These dynamics are, in our view, deeply grounded in
historical and contemporary circumstances that are inextricably attached to law.
Native peoples continue to assert that these instances of appropriation in some
cases of land, some material culture, and in others of intangible cultural property
cause harm to tribal communities. This harm can take many forms and does not
impact all American Indians in the same way. Some are concerned about
collective harm to the tribe and universe, focusing on the role that rituals and
ceremonies play in keeping the tribe and all the earth in balance.365 Others
describe how acts of appropriation and misrepresentation foster humiliation and
discrimination, particularly in the educational context.366
We have attempted to set forth a theory of Indian appropriation, demonstrate its
historical roots, then detail contemporary responses to it by Native peoples, as
well as present measured and feasible legal modifications that could go to
remedying these wrongs. These are blurry lines, undoubtedly. But even when the
law is complicated, where there is political will, society can and must seek
social justice remedies in the name of fairness, equality, and nondiscrimination.
The fact remains that contemporary society is replete with cases where existing
laws or only modest extensions of those laws can protect against numerous
cases of Indian appropriation and heal some of the dramatic, historical wrongs of
the past. We find this to be case in the instances of the Hopi katsinam, Oak Flat,
and R-skins team, among others, where the United States must fully embrace its
obligation to fulfill its trust responsibility towards Indian peoples.367 Remedies in
these cases an others like them-- advance Indian sovereignty, autonomy,
365

See Patrick Victor Naranjo, A Lesson from the Pueblo Revolt of 1680 about Cultural Appropriation and Tribal
Sovereignty: What Santa Clara Pueblo Can Do to Protect Tewa Cultural Property, 50 (2012), available at
https://escholarship.org/uc/item/67k238h9.
366
See American Psychological Association, Summary of APA Resolution Recommending the Immediate
Retirement of American Indian Mascots, Symbols, Images, and Personalities by Schools, Colleges, Universities,
Athletic Teams, and Organizations (2005) (a growing body of social science literature that shows the harmful
effects of racial stereotyping and inaccurate racial portrayals, including the particularly harmful effects of
American Indian sports mascots on the social identity development and self-esteem of American Indian young
people.); See also Erik Stegman and Victoria Phillips, Missing the Point: The Real Impact of Native Mascots and
Team Names on American Indian and Alaska Native Youth, Center for American Progress, July 2014 (surveying
current research about the impact of mascots and team names on the mental health and self-esteem of American
Indian students, including experiences of hostile education environment and suicide).
367
Johnson v. MIntosh, 21 U.S. (8 Wheat.) 543 (1823); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.)1 (1831);
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

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governance, and self-determination. These provide the best opportunity possible


for the cultural survival of Indian people.
At the same time, as other recent events regarding the complicated and
sometimes dark history of race relations in this country demonstrate, answers
are difficult to come by. And, sometimes, the law has only modest potential to
address historical wrongs that have become so deeply embedded in our society
that all actions are tainted with that history.368 Thus, we are inspired by the
thoughtfulness, passion, and activism of Indians, tribes, and allies, who continue
to explore other mechanisms through art, expression, comedy, film, and
technology to highlight historical and contemporary wrongs and push for
change.
Native studies scholar Bruce Duthu has said, When lands have been lost and
cultures have been decimated, one of the last things left to be appropriated from
Native cultures is their very dignity.369 American Indian land, culture, and
identity have all been acquired by non-Indians for their own purposes, whether the
settlement of the country or development of a broader American identity, often at
the cost of the wellbeing of Indians. Today, many American Indians have decided
that its time for the legacy of Indian appropriation to end. Through their
advocacy, legal and non-legal, indigenous peoples are resisting the longstanding
concept that all things Indian are free for taking or definition by non-Indians.
They are claiming the pieces of land, culture, and identity fractured, diminished,
and changed reassembling and reconfiguring them to support indigenous selfdetermination today. American Indians are now reclaiming Red, with all of
challenges and possibility, for the next generation.

368

In the U.S. Capitol building, from whence Congress exercises its plenary power over Indians, hangs a painting
entitled, Columbus and the Indian Maiden, dating to 1875 by the Italian painter Constantio Brumidi. The image is
one personalizing his ostensible discovery of the New World through the body of an Indian woman, as he lifts
her veil and looks out upon the landscape. Even today, the painting hangs over the door of the Indian Affairs
Committee Room.
369
See Hiebert, supra note _ (interview with Bruce Duthu).