In an article published at the end of 2015 in Hyperallergic, a popular online arts magazine, on the 20 most powerless people in the art world, the editors listed Native Americans as No. 7, between Performing Artists (No. 6) and Cheryl LaPorte, the Virginia teacher who asked her students to copy the Islamic statement of faith as part of a lesson on calligraphy (No. 8). It mentioned the glacial progress in decolonizing museums and claiming sacred materials from auction houses, and called attention to the near absence of Native artists in the inaugural exhibition of the new Whitney Museum of American Art in New York City.

The Hyperallergic editors concluded by saying that some Native groups have settled for digital repatriation, referring to the new online version of the Codex Mendoza created by Mexico’s Instituto Nacional de Antropología e Historia, in collaboration with the Bodleian Library and King’s College, both at Oxford University. The Codex is a three-volume manuscript painted in Mexico City by Native Aztec painters in 1542, 20 years after the Spanish conquest of Moctezuma’s Empire. It is a compendium of Aztec life before the conquest, and it has been housed at Oxford since 1659.

It should be noted that the Codex Mendoza was not repatriated to any living Native group, but was instead virtually reclaimed by an agency of the Mexican government, which for the past century has constituted a national identity by claiming fictive roots in Moctezuma’s Mexico. Nevertheless, the case raises issues of intellectual and cultural property salient to the situation of Native peoples in the Southwestern U.S.

Last summer, Penguin and its related imprint Viking published two books on the history and traditional Native American religion of New Mexico’s Pueblo of Acoma: How the World Moves: The Odyssey of an American Indian Family and The Origin Myth of Acoma Pueblo. Both were projects of Peter Nabokov, a professor in the Dept. of World Arts and Cultures at UCLA, and author of many scholarly works on Native American history and architecture.

Three days after the books were reviewed in Pasatiempo on Sept. 18, 2015, Ray Rivera, editor of The Santa Fe New Mexican, received a letter of protest from Hon. Fred S. Vallo Sr., then governor of Acoma Pueblo. When Nabokov appeared for a reading at Albuquerque’s Bookworks on Sept. 23, he was confronted by members of Acoma Pueblo and others who demanded to know what right he had to publish the Pueblo’s sacred narratives. A similarly tense scene ensued at a reading the next day at Collected Works Bookstore in Santa Fe.

What went wrong? Aren’t bookstore readings usually love fests? Since September, members of Pasatiempo’s staff and I met twice with Acoma Pueblo leadership and with the Pueblo’s legal counsel, the Chestnut Law Offices. We also contacted Nabokov. Although we do not presume to speak for the leadership of Acoma Pueblo, or indeed for any Native American group, this article explores the issues involved. The matter reduces to a fundamental difference of opinion and worldview about cultural knowledge and intellectual property. On one side, we have the modern Western idea that all knowledge is available to everyone without any restrictions, while with regard to Acoma Pueblo, we understand that some kinds of knowledge are not for everyone. It is an open question whether such seemingly incompatible viewpoints can coexist without support from state or federal laws.

Nabokov’s silent partner in these books was an Acoma Pueblo man named Day Break (1861-1948), whose fascinating family saga is recounted in How the World Moves. Nabokov’s well-researched account is based on interviews he conducted with Day Break’s last surviving son, Wilbert, over 15 years, beginning in 1993. Like so many Native Americans of his generation, Day Break was sent to an Indian School, and there he took the name Edward Proctor Hunt, found inscribed in a Bible donated to the school. Nabokov relates how Christianity became important to Hunt during this period, and after he left the school he had difficulty reconciling his faith with the traditional beliefs and practices of his fellow Acoma. Clashes with the Native religious authorities at Acoma led Hunt to move to Santa Ana Pueblo. But his troubles persisted, and by the mid-1920s, he had also been expelled from Santa Ana. In 1927, Hunt and his family signed on with an Oklahoma-based Wild West show, and the troupe spent a season at a circus in Dresden, Germany. As Nabokov notes, this kind of Western spectacle was still popular in Europe in the 1920s, though its heyday was decades earlier, with “Buffalo Bill’s Wild West and Congress of Rough Riders of the World” show (1883-1906). In Germany, Hunt became Chief Big Snake, a Plains Indian caricature. While the Hunts spent only one season in Europe, the experience would establish a lifelong vocation of performing different Native American identities for Anglo Americans. The Hunts returned to the U.S. in 1928, and soon had an opportunity in Washington, D.C., which leads directly to the Nabokov controversy. Over the course of two months, Hunt, his sons Henry and Wilbert, and Philip Sanchez, an adopted son from Santa Ana Pueblo, worked as paid informants with a team of anthropologists from the Smithsonian Institution’s Bureau of American Ethnology (BAE). The BAE was founded in 1879 as a research institution dedicated to collecting and publishing data on the languages, culture, and religions of Native American tribes, which at the time were thought to be in imminent danger of extinction. At the BAE offices in the old Smithsonian Castle, Hunt recounted Acoma Pueblo’s foundational narratives, from the creation of the first humans, two girls, to their emergence into the world, the population of the Earth with plants and animals, the coming of the kachina spirits, the creation of Acoma religious societies and authorities, and finally a cycle of stories about the War Twins. The interviews, as well as about 70 ritual songs, were recorded on wax cylinders, and one of Hunt’s sons drew images of the kachinas mentioned in recordings, as well as of altars, prayer sticks, and other items, like the weapons given to the War Twins. When the book, The Origin Myth of Acoma and Other Records, was finally published by the BAE in 1946, the Hunts were not identified as informants, and were instead described as “a group of Pueblo Indians from Acoma and Santa Ana visiting Washington.” The report’s byline read Matthew W. Stirling, who in 1928 was the new director of the BAE. By the time the Acoma origin narrative appeared in print, Stirling was making his name for his work relating to the pre-Columbian Olmec civilization of Mexico.

Stirling’s publication is the most complete account of the origin narrative of any Pueblo group in the Southwest, and it remains a touchstone for outsiders who are interested in Native American spirituality, mytho-history, worldview, and culture. Anthropologists of Stirling’s era commonly took credit as compiler and editor of the data they collected from the field and from informants. But by not publishing the Hunts’ names — indeed, in suppressing them, as Nabokov writes — Stirling also paternalistically acted to protect the men. It is no secret that the pueblos of New Mexico maintained and continue to assert tight control over the release of sensitive religious or cultural information to outsiders. According to Nabokov and Wilbert Hunt, Edward was exiled from both Acoma and from Santa Ana, another of the Keresan-speaking pueblos, for being vocal about his Christian faith and for failing to participate in traditional cultural and religious activities. Reasons for the close control over ritual knowledge include the Catholic Church’s attempts to stamp out Native American religions during the Spanish Colonial period and the similar efforts of Protestant missionaries from the 1840s onward. Beginning in 1884, U.S. law forbade the practice of Native American religions, a law that was not entirely superseded until the passage of the American Indian Religious Freedom Act in 1978. And anthropologists themselves have not always behaved according to pueblo standards of decorum. At Zuni Pueblo, in the 1880s and 1890s, BAE anthropologists Frank Hamilton Cushing and Matilda Coxe Stevenson comported themselves so poorly that they have never been forgotten. It is said they forced their way into closed ritual performances and kivas, or underground ritual chambers. Although Cushing somehow got himself initiated into Zuni’s Bow Priesthood, he was also been implicated in the removal and replication of sacred materials like kachina masks and images of the War Gods.

Gov. Vallo’s letter of protest, which was published in full in The Santa Fe New Mexican on Sept. 23, 2015, details the response of the leadership of Acoma Pueblo to the publication of Nabokov’s books and to Pasatiempo’s review of the books. Vallo writes that Nabokov agreed to submit the manuscript of his new edition of the Acoma origin narrative to the Tribal Council, and to appear before that body to discuss possible publication. He writes further that while the manuscript was submitted to the Pueblo for review, Nabokov never appeared before the Tribal Council and that his actions and the eventual publication evince a fundamental lack of respect for tribal beliefs and practices. Vallo continues that the Origin Myth of the Pueblo of Acoma is the intellectual property of the Pueblo, and that since Edward Proctor Hunt did not have permission to relate the narrative to any outsider, neither did Nabokov have permission to republish it.

Can a tribal origin narrative be intellectual property? The latest George R.R. Martin novel and the new Star Wars film are both protected by U.S. copyright law. But what about the Bible’s Book of Genesis, the Lotus Sutra, or the Quiché Maya Popol Vuh? While a specific edition or translation of a text can be protected, aren’t sacred texts global human patrimony? The answer depends on who you are, whom you ask, and to which epistemological system you subscribe. In the Euro-American West, since the Enlightenment of the 1700s, many people and nations have been living with the assumption that knowledge is free to all. These sentiments have only been reinforced by the digital age and the internet, where an amazing breadth of humanity’s works and knowledge are at our fingertips. But is all knowledge really free to all? Edward Snowden proved that it is not. Those without internet connections and smart devices know this as well. Many people in the U.S. practice religions in which the knowledge base is esoteric, and revealed only gradually, and to those who are qualified. In meetings, Acoma Pueblo leadership and legal counsel have stressed that the Pueblo’s religious and cultural knowledge is carefully controlled, and imparted only gradually to tribal members. In a meeting with Pasatiempo staff, Acoma Pueblo’s Kurt Riley — then second lieutenant governor (and now governor) — stated that ritual knowledge is conveyed on a need-to-know basis, and that the Pueblo leadership should decide what to share and what to conceal. He continued that some information is never shared with the entire membership of the tribe, and is kept private by the traditional religious authorities. Acoma Pueblo is a sovereign body, with its own legal tradition. Individual Acoma people are not empowered to discuss any sensitive material with outsiders, and must appear before the Tribal Council if he or she wishes to work on a project such as Nabokov’s. It is tempting to compare the position of Acoma Pueblo leadership on the origin narrative with the wide dissemination of the Navajo tribal creation stories. As Seymour H. Koenig and Harriet Koenig write in Acculturation in the Navajo Eden: New Mexico, 1550-1750 (YBK Publishers, 2005), versions of the Navajo creation narrative were first published in the 1860s. Navajo religious experts, the so-called medicine men, are the traditional guardians of this knowledge, and for most of the past 150 years, no central authority has prohibited them from divulging culturally sensitive material. There has been more pressure with respect to visual culture, especially regarding the recording and publication of sand-painting designs, which are regarded as powerful, even dangerous embodiments of the Holy People, and not to be fixed on paper, film, or in digital formats. In contrast to this, among the pueblos of New Mexico, each town group is sovereign, and exerts control over the dissemination of its culture.

Documents obtained by Pasatiempo from Acoma Pueblo’s legal counsel reveal communications with Nabokov as early as June 2007, when the Pueblo became aware of the project to republish the origin narrative. Two months later, another letter to Nabokov (and to the chancellor of UCLA) demanded that he comply with Acoma tribal law and appear before the Tribal Council to request permission to publish. Another letter sent in January 2008 asked for a copy of the manuscript. While Nabokov replied to the Pueblo each time, no meeting happened and no manuscript was forwarded to Acoma. Two further communications in 2008 from Nabokov state that the work was delayed. Then there was no interaction until March 2015, when the Acoma Pueblo legal counsel discovered that the origin myth book was available for pre-order from several online retailers. After consulting with the Tribal Council, the attorneys again contacted Nabokov, reaffirming the demands of eight years prior: that he appear to request permission, submit the manuscript, and adding the new demand that he distribute all royalties earned to the Pueblo. Between March and August of last year, letters show the Pueblo continuing to make the same demands. Nabokov submitted a lengthy document justifying his republication of the origin narrative. He finally submitted the manuscript at the end of May, but the Pueblo was not able to review it until Aug. 11. The idea was to then set a date for a meeting with the Tribal Council. By this time, the book was actually published and the readings in Albuquerque and Santa Fe had been scheduled. As the readings approached, Acoma’s legal counsel sent Nabokov a letter asking that all sales of the origin narrative book be halted until after he could meet with the Tribal Council. That did not happen. Acoma Pueblo attorney Ann Berkley Rodgers told Pasatiempo that she does not believe that Nabokov ever seriously intended to work with the Pueblo.

Both in writing and in person at the Collected Works reading, Nabokov defended his publication of a new edition of The Origin Myth of Acoma Pueblo based upon the grounds that the original 1946 version is in the public domain, that it has been republished before (for example, by Forgotten Books in 2008), and that the text is widely available online. From a legal standpoint, Nabokov is on firm footing. Nothing the Bureau of American Ethnology published was copyrighted. It may have been illegal in Acoma Tribal Law for Edward Proctor Hunt to divulge the material, and in hindsight, Matthew W. Stirling’s actions appear unethical. But Stirling broke no U.S. law when Hunt’s party was interviewed in 1928, and none in 1946, when the book was published. New Mexico Sen. Martin Heinrich’s office told Pasatiempo that he has been in close contact with Acoma’s Tribal Council regarding its request to relocate the archives of the BAE from the National Museum of Natural History to the National Museum of the American Indian. In a letter to the Smithsonian, Heinrich wrote that “the majority of the information contained in the archives is related to indigenous people of the Americas,” and that he does not believe the National Museum of Natural History is the appropriate location to store the archives. One solution would be to fold these publications into the Smithsonian Institution Press, which does copyright its publications. Another idea is to have the newly copyrighted BAE materials administered through the National Museum of the American Indian in Washington, D.C.  Rodgers believes that this would be an important step in reducing what she characterized as “academic freeloading.”

On Sept. 25, the day after the Collected Works reading, Nabokov and his attorney, James Kawahara, finally appeared before the Acoma Pueblo Tribal Council. Although the council never releases minutes, Pasatiempo obtained a brief summary from Acoma’s legal counsel of the proceedings that had to do with Nabokov. The Tribal Council resolved not to request royalties from the sale of the Origin Myth of Acoma or discuss any further resolution until that body had an opportunity to discuss the matter with Acoma community leaders. When that process is complete, the Council will ask Nabokov to return to Acoma to again meet with the Tribal Council. The Council also ordered that in the meantime all sales of the origin myth book should be halted. Pasatiempo’s request for a statement from Nabokov was declined on the basis that pursuant to his meeting with the Tribal Council, he was requested to make no further public comment. Our attempts to question anyone at Penguin Books were also unsuccessful.

If Acoma Pueblo has no recourse in U.S. copyright law, are there other options to protect its cultural patrimony? What about NAGPRA? In 1990, the U.S. Congress passed the Native American Graves Protection and Repatriation Act (NAGPRA). The act stipulates that material culture items of a sacred nature as well as human remains belonging to a recognized Native American tribe must be returned to that tribe upon application. It also requires that every museum or institution that receives federal funding must undertake an inventory of its collections to determine what materials might qualify for NAGPRA repatriation. As a result of the legislation, in the past quarter century, a great quantity of sacred materials, grave goods, and sets of human remains have been returned to tribes from every kind of cultural institution in the U.S., from the Smithsonian to local historical societies. It is fair to say that both cultural and scientific institutions as well as tribes are still adjusting to life under NAGPRA. Not everything has been repatriated. Nor can everything ever be repatriated. Many tribes are not recognized by the U.S. government; many objects can no longer be attributed to a known tribe; there are problems with the definition of sacred or ritually important objects (is everything sacred?); and then there are those objects which cannot be repatriated because to do so would present a health hazard, meaning those works which were doused with arsenic or mercury compounds to retard decay and kill vermin. Brian D. Vallo, director of the Indian Arts Research Center at Santa Fe’s School for Advanced Research (and Fred S. Vallo Sr.’s son), also pointed out the significant cost of NAGPRA claims. In today’s world, are tribes that have casinos the only ones that can afford to file NAGPRA claims to recover sacred materials? Another issue is that NAGPRA applies only to material culture and tangible assets, like skeletons. It does not cover intellectual property, like the Acoma origin narrative. Former governor Vallo and other sources have told me that discussions are underway to devise proposals to expand NAGPRA’s scope to also encompass intellectual property. 

Acoma and other Southwestern Native American pueblos have had some success reclaiming sacred material from museums, auction houses, and even private collections. Between 1978 and 1992, Zuni Pueblo negotiated the return of 69 sacred sculptures of the War Gods, twin heroes who are key protagonists in Zuni cosmology and religion. The sculptures were removed from Zuni over the past 150 years under many circumstances, and some were even copies commissioned by or for anthropologists. Frank Hamilton Cushing made at least one. But in Zuni, no one person owns the War God images. As collective property, they cannot be sold or otherwise alienated from the Pueblo. Acoma’s attorneys told us that they regularly shut down eBay auctions of culturally sensitive materials. In many cases, the sellers have no idea that they are violating NAGPRA or the Antiquities Act of 1906, and they offer to voluntarily return the items to Acoma. Last year the Pueblo collaborated with Hopi to protest two auctions of ritual masks in Paris. But these cases all involve tangible property.

Until NAGPRA can be amended, or other laws passed, pueblos must settle for case-by-case resolution of intellectual-property disputes, such as the lawsuit the Navajo Nation has brought against Urban Outfitters, for its use of Navajo weaving designs on women’s clothing, especially underwear. Also, New Mexico’s Indian Affairs Committee will present a Joint Memorial at the 2016 State Legislature, requesting that the Attorney General and the Dept. of Cultural Affairs take steps to further safeguard Native American cultural items and cultural property from theft, wrongful sale, or alienation. The memorial is connected to the recent cases in Santa Fe of art dealers accused of misrepresenting objects as Native American. Presumably it could lead to legislation strengthening the U.S. Native Arts and Crafts Act (1990).

No matter whether you think Nabokov is right or wrong, and while the Acoma Tribal Council would still like the sales of the origin myth book to be halted, Nabokov has corrected a historical solecism. He restored the names of Edward Proctor Hunt and his family to the title page of the work they helped to produce. We live in a world in which Native, minority, and often post-colonial peoples still struggle to regain or establish agency. Those who were anonymous can now be named. The problem is that Hunt’s posthumous recognition is illegitimate from an Acoma Pueblo perspective. The complexities of this case prove that not all repatriations or restorations are possible, or even welcome. Whether we are discussing New Mexico’s Zia symbol — appropriated from Zia Pueblo — or the Acoma creation narrative, intellectual property is entwined with constructions of identity. Former governor Vallo stated that the United Nations considers intellectual and cultural property rights as human rights that every people should enjoy and control. As he concluded, “We like to tell our own story. Let us do it.” ◀