May 1998 Volume 20 Number 2

A Tourist Album and its Implications for the Intellectual Property Rights of Indigenous Peoples

by Laura Downey

Introduction

In the not-too-distant past, a collection of photographic images posed only the usual problems of any sort of archive: how to arrange and store the photographs so that they could be most easily accessed and best preserved. Increasingly, however, photographic archives which contain images of Native Americans -- the most photographed group of people in the world -- face additional ethical and legal problems as the tribes begin to claim the images as their intellectual property, requesting restricted access and publication, and, by implication, repatriation of the photographs themselves. This movement is led in some ways by the Hopi Tribe, which appears to be among the first to make specific claims regarding archival and photographic materials¹.

Intellectual property rights discussions concerning Native American materials are complicated, involving political and commercial issues as well as cultural ones. Up to this point policies for archival materials, where such policies exist, tend to focus on collections concerned with burial materials and sacred and ceremonial objects, following the example of the Native American Graves Protection and Repatriation Act (NAGPRA). Hence, the photographs of highest sensitivity are those which show sacred or ceremonial objects or acts.

This article will discuss the issues surrounding intellectual property rights of Native American Indians with regard to photographic materials, looking specifically at one album of photographs which includes images of the Hopi Snake Dance, one of the central ceremonies of the tribe.

This album is in the collection of the Archives of Photographs of the Arizona State Museum (ASM). A discussion of the album brings to light several interesting trends in the history of photography of the period, putting the sensitive Hopi images into perspective within the whole. The conservation of the album posed several interesting problems, so this aspect will also be discussed.

History and Treatment of the Album

The album, entitled "Arizona and New Mexico, 1900" was compiled in that year or shortly after by Charles Emerson Beecher, who was a professor of paleontology at Yale University. Beecher and several other Connecticut men traveled to the Southwest for about a month to visit the Hopi and tour other sights such as the Grand Canyon and the Painted Desert.

It is not clear exactly how these travelers learned about the Hopi ceremony or why they decided to make the trip; however, this was the first period of advertised tourism to the area, encouraged by books such as The Moki Snake Dance, which was published in 1900 by the passenger department of the Santa Fe railroad. The album contains photographs taken by Beecher and several of the other travelers, as well as various types of commercial photographs and images of sites encountered on the trip.

Examination of the album in June 1997 revealed that the cover was already completely detached from the textblock. The binding, which includes spacer tabs sewn into the signatures, was also deteriorated. Many of the pages were completely detached from the binding, having torn at approximately the point of the spacers. Other pages were partially torn at a similar point; a minority, primarily in the center of the album, were still intact. The paper of the pages is discolored and brittle; spot tests indicate the paper is acidic and contains lignin.

The photographs in the album are of various processes. The amateur shots appear to be gelatin printed-out prints; the travelers were possibly using the new Kodak portable cameras of the period. Other prints are photomechanical, and others are as yet unidentified.

The photographs were for the most part mounted only to one side of the pages. In most cases, the paper of the previous page shows staining corresponding to the photographs on the facing page. In several cases of previously detached pages, the staining does not match the existing photographs, suggesting that the pages were misplaced at some point after they became detached.

One might expect the photographs to have been significantly damaged by having such poor housing materials for nearly 100 years. However, although some fading and silver "mirroring" can be found, such damage is not extensive. This is not uncommon for albums, even those composed of very poor materials. It is thought that the fact that the album remains closed for much of its life, reducing air circulation, helps to protect the photographs within. In general, photograph conservators tend to prefer not to remove photographs from their original albums, or otherwise dismantle the album structure. The bindings are also potentially useful and informative for scholarship and should be preserved if possible.

So, the Beecher album presented a conservation dilemma: how to preserve the album format and binding, while making it possible to view and use the album? Even with careful handling, the album could not be repeatedly examined in its entirety without increasing damage. Its condition was complicated by the fact that so many of the pages - but not all of them - were detached from the binding.

On consideration it seemed the pages themselves were the least important part of this complex object, and the chosen solution to the problem was to simply "complete" the detachment of the pages, separating those still attached to the binding at an appropriate point on the page. This unusual step seemed radical in one way, but cautious in others: it enabled the album binding to be retained without change to its structure, while allowing treatment and better access to the album pages.

Therefore, after documenting the before treatment structure and condition, straight cuts were made in those pages which were not already loose. Work proceeded from front to back; a sheet of 5 mil Mylar was placed under each page to protect the one below it during cutting. Although it was originally hoped to make the cuts at some relatively consistent point in each page, in practice this was impossible because of the inconsistency of the photograph placement on each page, as well as the variability in the location of the existing tears. However, it is felt that a future researcher examining the binding should be able to distinguish between the pages cut during treatment, the spacer tabs which are uniform in dimension, and the torn pages.

A written record of the order of the pages was made at the same time as the detachment, and notes were made when the adjacent pages did not seem to match each other. This record makes it possible to recreate the order as it was found before treatment, and facilitated efforts at sorting out the proper order. Having established that order, the pages were numbered lightly in pencil to prevent further confusion.

The next stage of treatment was to mend and consolidate the individual photographs and pages, working in situ as much as possible. Loose or partially detached prints were carefully hinged into place using Japanese paper and wheat starch paste. Finally, the album pages were cornered onto acid-free cardstock sheets for support and protection during handling; the pages were then stored in a box in their numbered order.

Supports were made for the binding, which without the extended pages is even more delicate than before. The binding and cover were carefully wrapped in acid-free tissue and stored in a second box, to be kept in the archives adjacent to the box containing the pages.

This solution, like many in conservation, is a compromise. It is true that the album no longer exists quite as it originally was. However, no original materials have been discarded, and information about the original structure is still completely accessible by examination of the binding and cover materials. Also, the experience of looking at the album pages, while not exactly like looking through an album, is essentially similar.

A description of the rehousing is not complete without mentioning the manner in which the culturally-sensitive subject matter was dealt with.

The sensitive subject matter was confined to several pages towards the beginning of the album, which made it relatively easy to place them as a group in a 4-flap cardstock envelope. Thus, these pages are kept in order within the album, but are clearly different material which should be viewed only with special permission.

This is consistent with the Arizona State Museum's policies towards other sensitive materials. The aim is to prevent researchers from viewing the materials unexpectedly: i.e. the researcher will be made aware that the separated material is sensitive and that a special purpose is required before it can be viewed.

Intellectual Property Considerations

Hopi Tribal Council Resolution H-70-94 begins by acknowledging NAGPRA and authorizing the Hopi Cultural Preservation Office to administrate and make arrangements concerning the act between the Hopi Tribe, individual villages, and outside entities. It includes, however, a paragraph of wider significance:

"Be it further resolved by the Hopi Tribal Council that archival records, including field notes, audio tapes, video tapes, photographs; which describe and depict esoteric ritual, ceremonial and religious knowledge, be placed under restriction by museums and other repositories for public access and hereby are declared to be the cultural property of the Hopi people." ²

The Hopi Cultural Preservation Office has also issued a Protocol for Research, Publications and Recordings which further defines and elaborates the claims and intent of the tribe regarding intellectual property.

The Protocol includes sections on "Intent and Benefit to the Hopi Tribe," "Risks," "Tribal Consent," "Right to Privacy, "Confidentiality," "Use of Recording Devices," "Ownership," "Fair and Appropriate Return," "Indian Preference in Employment and Training," and "Review of Product or Research Results/Study."³ Both the Resolution and the Protocol mark new ground for the Tribe in making a legal claim for Tribal control of research and use of information and materials related to the Tribe, including historic photographic collections.

These claims are politically based, but encompass commercial and moral elements which are also essential to the problem.

The intellectual property rights of indigenous peoples is a new and evolving field within national and international politics, law, and economy. As Tom Greaves points out in an article entitled "The Intellectual Property of Sovereign Tribes," the issues for the tribes are tied to continued cultural and ethnic existence.⁴

Greaves explains the legal possibilities for tribes to gain such control over their cultural heritage, by means of patent, trademark, and tribal resolutions. However, much of his and others' discussion of trademark and control over publication is not directly relevant to the question of existing photo-archives. Tribal resolutions, such as the Hopi's, concerning approval of research proposals seem to target new research, especially on traditional medicine and other potentially profit-making subjects.⁵ Thus the focus is on the one hand new research and on the other, commercial gain.

Use of existing photographic archives is less clear-cut because the photographs were taken in the past, with or without "informed consent" of the tribe at the time. Political and ethical issues were usually considerably different at that time (and we in the present should be careful not to impose our standards on the past, though we may consider ours superior). Most existing photographs of Native Americans were not made with the intention of financial gain, and even projects such as Curtis' monumental twenty volume publication bankrupted the photographer, rather than making him money. In most cases, any commercial gains made from the images, such as the Santa Fe railroad's advertising campaigns, are also buried in the past.

It is in retrospect, now that these images have acquired the extra lenses of age, nostalgia, and layers of symbolic meaning, that we value them. However, it would be naive to too quickly reject the idea that historic photographs are not used for commercial purposes.

For example, many historical societies and museums, not to mention "for-profit" organizations across the country sell postcards and calendars using historical photographs of Indians. Also, "researchers" in archives may include, as well as academics, individuals such as Ken Burns, whose vastly popular television series make almost exclusive use of historic photographs, including many of Indians. Small wonder that the tribes would want some part, finally, in control and gain from this historic exploitation.

In seeking this control over their cultural "property," which in the broader discussion includes symbols, concepts and actions such as dance movements or ceremonies, as well as artifacts and documents such as photographs, tribes have few simple choices. As Greaves explains, existing law includes protection for patent and for trademark. Patents protect the individual creator of an invention for a limited time, and thus does not really fit the needs of the tribes. Trademark, however, can be adapted to tribal needs in some cases, though this use has limitations.⁶

The underlying problem, however, is that in this search for control over cultural/intellectual "property," the tribes are seeking rights which do not exist under national or international laws and customs for other cultural groups, especially those from Europe. Scotland, for instance, does not seek to trademark materials such as Scotch whiskey, although individual distillery firms, some Scottish, some not, do trademark their products. However, these firms are allowed to use Scottish imagery in their labels and advertising without incurring damages from either the Scottish government or individual clans.

As another example, even when imagery is sacred within the dominant Christian faith it is not necessarily protected from "misuse;" in fact, due to the US first amendment and underlying "separation of church and state" structure, free use of religious imagery for artistic and/or commercial purposes is usually ideologically accepted, even when this causes controversy. A famous example is the continuing struggle over the creation and display of Andre Serrano's photograph, Piss Christ.

Significantly, within the US the arguments over this work have focused first on the federal funding granted to the artist, and second on the content which is offensive to many Christians. In other words, the issue has been more whether the federal government should be involved in cultural programs at all, rather than whether respect for religious and cultural symbols should or can be legislated into creation and use of imagery.

Within these contexts, the efforts of the Hopi and other tribes to claim and control the use of their cultural heritage clearly come from a point of view radically different from the accepted white majority experience.

Libraries, archives, and museums, whether they house collections of photographs with Indian subject matter or not, exist with the purpose to preserve and make their collections accessible for study. In most cases, such institutions make their holdings available to researchers in the appropriate fields; often, depending on staff and facilities constraints, accessibility is broadened to any member of the public who is interested in viewing material. Also, internet sites - often including image databases - are becoming an important aspect of these institutions.

Librarians and archivists are therefore understandably reluctant to broadly restrict access to and use of substantial amounts of material, especially when there is no clear legal or ethical reason to do so. For the moment, it seems impractical and unlikely that Native American archival material will be repatriated on a wide scale.

Under NAGPRA, human remains, burial material, and ceremonial objects are being returned to tribal ownership; individual tribes find different solutions for the problem of what to do with repatriated remains. Reburial of human remains seems common; sometimes repatriated objects resume ceremonial use within the tribe; however, some tribes are now making their own museums and cultural centers, and still others find it expedient to leave repatriated objects "on loan" with the museums which previously housed them.

Even tribes which are currently building museums so far have few facilities for archival material, and very little in the way of Native trained archival staff or other infrastructure which would make Native repositories feasible.

Additionally, photographs as objects inhabit a gray area of existence. Unlike ceremonial objects, they were usually not made by tribal members, and were usually not possessed by them. Under copyright laws, rights to photographic images belong first to the maker of the photograph; copyright may also be held in some circumstances by the "owner" of the image. Laws protecting the privacy of individuals who are photographed have limitations; the privacy of cultural groups is not legally defined and in this context would probably be hard to apply unless the legal structures are changed to accommodate tribal claims.⁷

Therefore, repatriation of photographic materials seems unlikely and tribes such as the Hopi have concentrated on building relationships and agreements with individual institutions which hold relevant material. Several institutions in Arizona, including the Heard Museum and the Cline Library at Northern Arizona University, have informal agreements with the Hopi Tribe which restrict access to and use of photographs of sacred and ceremonial material or events, and di- rect any request for publication of images to the Hopi Tribe.⁸

The creation of these working arrangements, although they are informal, is in line with the Tribe's Resolution and Protocol, and thus a success for their undertaking. Other libraries and archives, however, are less willing to enter into such broad-based agreements.

A key issue in the management of these photographic collections seems to be a separation of sacred and ceremonial material from wider cultural and historical material. This can be difficult with cultures such as the Hopi, in which no real distinction is made within the culture between religion and "secular" life.

However, within Hopi culture, some aspects of religious ceremonies are considered "secret" and only the initiated may participate. Other aspects are "public" and anyone in the vicinity may view them. Historically, it seems that photography of "public" ceremonies - such as the Snake Dance - was restricted as an anti-exploitative measure rather than as a religious one.

It seems particularly unfortunate that images of Hopi religious secrets, such as altars, were also literally stolen. These images, as well as less sensitive ones, have been widely published, and effective limitation of them in many cases would be impossibly difficult for the moment, if in fact it proves legal to attempt.

However, it seems ethically appropriate for archives to limit access to these sacred materials, out of cultural respect. Some people hold that a distinction can be made between individual use (not publication) by tribal members and non-tribal members; a tribal member may feel harmed by seeing images of material outside that individual's initiation, while a non-tribal member would not have as negative a reaction.⁹

A policy based on cultural respect would in most cases limit casual use of secret religious and ceremonial material. Scholarly use of even these sensitive images, however, may be appropriate, and most archives would find it difficult to deny a legitimate request to study the material. In such a case, a responsible researcher would probably also be in touch with the Tribe or tribal members, as the Hopi Tribal Resolution and Protocol advise.

One gray area in the Resolution and Protocol is also a political one. An archive can well wonder who the appropriate person or entity is to ask for advice.¹⁰ Individual tribal members may not be informed, or may disagree with either tribal policies or the extent of the sensitivity of specific imagery. An institution may well prefer to deal with individual tribal members it is comfortable with; however, if the issues eventually become legal ones (which is possible as the Federal system begins more and more to honor Tribal Council and Court decisions¹¹) it will become more necessary to deal with the "official" tribal bodies. This in turn could conceivably overload entities such as the Hopi Cultural Preservation Office, in the cases where they exist. Other tribes do not have such offices, posing additional problems for archives.

It seems probable that many aspects of the problem would become clearer and easier for photographic archives with more knowledge of the material. With a better understanding of the content of the images, an archivist is better able to make decisions about use restrictions. For instance, if an archivist could gather and make available a little more knowledge and documentation of the content of ceremonial photographs, he or she could better inform a Native researcher who might be concerned not to see certain sensitive material requiring specific initiation.

With a better understanding of tribal entities, as well as clearer guideline from the tribes, better working relationships could be built. Few archives seek significant financial gains from their holdings; it would be a positive step for the tribes to recognize this and speak specifically to the unique problems of photographic holdings, within the broader context of intellectual property rights.

Gaining this additional knowledge and information is finally dependent on more research. Therefore, it seems best for photographic archives to remain as open to research as possible, within the parameters of cultural respect.

Acknowledgements

The author wishes to thank Olivia Primanis, Alexandra Bothelo, and Nancy Odegaard for their invaluable assistance.

Footnotes

1. Hopi Tribal Council, Hopi Tribal Resolution H-70-94, adopted May 23, 1994; third paragraph. A copy of this document was provided by the Hopi Cultural Preservation Office.
2. Hopi Tribal Resolution.
3. Hopi Tribe, Office of Historic and Cultural Preservation and Protection, Protocol for Research, Publications and Recordings, May 1995.
4. Tom Greaves, "The Intellectual Property of Sovereign Tribes," Science Communication 17, No. 2, 203-204.
5. Id., 209.
6. Id,, 204-206.
7. Pearce-Moses, Transcript and Summary of 'Hopi Culture and Archives Roundtable' held at the NAU Cline Library on August 11, 1997, p. 16.
8. Id., 3-4.
9. Emory Sekaquaptewa, interview with the author on November 18, 1997.
10. Pearce-Moses, Transcript, 13-14.
11. Greaves, 206.