There are many criticisms of this Act, as it also forbids nonenrolled Indigenous peoples from marketing their goods as Indian or Native American. Were this statute to exist in a similar form in Canada, it is conceivable that only status Indians would be able to market their products as authentically Indigenous, as they are the only Indigenous peoples with such a strict administrative identity – though it is very likely the Inuit would be included, as well. This would leave out more than half a million non-status Indians and Métis who could not, by law, call their products Native American, Aboriginal, or Indigenous, or use the name of any First Nation to identify their product.
Nonetheless, Urban Outfitters may also be in violation of this Act. One popular way people in the United States get around these restrictions is to use terms like Native-American inspired or Indian style. Adding the qualifiers “inspired” and “style” are a disingenuous but often effective way to skirt the Act. If you have ever wondered at the prevalence of such terms, you now have additional context.
Another way these laws are skirted is to claim responsibility for violating them does not lay with you. As pointed out by Dr. Jessica Metcalfe on her website Beyond Buckskin, the popular handcrafting web store Etsy is a haven for cultural appropriation and possibly even trademark violation.13 When Dr. Metcalfe contacted the site about their Navajo-labelled goods in 2012, this was the response:
Each shop is run independently by the shop owner, and the shop owner is responsible for their content and use of our services. By agreeing to our Terms of Use all members assure us they will follow all applicable laws while using our site. Etsy cannot judge the legality of items or the seller’s ability to legally sell an item….14
The site chose to lay the onus on the shop owners who use Etsy to sell their goods. Such an approach forces a rights holder (such as the Navajo) to pursue each vendor individually, which is a much more arduous task than if the website itself were responsible for the legality of its content. Is this actually how the law stands? Is a site like Etsy able to skirt responsibility in this fashion? Well, a lawsuit launched in 2015 on behalf of shareholders of Etsy argues otherwise, claiming that a failure to weed out possible trademark violations threatened investor returns.15
Trademark laws and appellation rules will continue to evolve in response to efforts made to profit from evading these restrictions. I emphasize how seriously these issues are taken in settler courts so you do not dismiss the efforts of the Navajo nation to protect its brand. Whether the concept of trademark has any equivalent in traditional Navajo law or culture is not important. The Navajo have seized upon a tool available to them in order to protect the integrity of their nation’s name and to ensure that people who are not Navajo cannot simply claim to be associated with the Navajo nation. This is a route more Indigenous nations may begin to take to protect Indigenous intellectual property.
It is unfortunate traditional Indigenous laws are not respected enough to protect Indigenous intellectual property, and we are forced to use settler laws like this instead. However, when this case first emerged there was a firestorm of criticism from many settlers against the Navajo for pursuing Urban Outfitters. If you think this case is frivolous or interferes with freedom of expression, and so forth, please ensure you are not singling out Indigenous peoples with this criticism. If you take issue with intellectual property law, with appellation statutes, or with geographical indication laws, then your concerns are not limited to us and need not focus on this case only. If you support intellectual property laws, but hate that Indigenous peoples can use them, too, you might want to take a hard look in the mirror and ask yourself why you have such a double standard.
In chapter 10, I asked you to “check the tag on that Indian story.” I think, in general, checking the tags and labels and understanding what they mean is part of taking responsibility as consumers – whether you’re buying icewine, cheese, or Navajo products. There are many more opportunities now for consumers to ensure the products they purchase are legitimately Indigenous and actually benefit the artists; this should be a priority for those claiming to respect our cultures so much. If, however, you just want to be able to call your stuff “Native American” or “Navajo” without consequences, I’m afraid you’ve got some explaining to do.
Now, go forth, savvy consumers, and do your best!
NOTES
1.Ben O’Donnell, “China’s Fake Ice Wine Epidemic,” Wine Spectator, 2011, http://www.winespectator.com/webfeature/show/id/44430.
2.“Information for Future Wineries,” VQAOntario.ca, last accessed November 3, 2015, http://www.vqaontario.ca/FutureWineries/Overview.
3.“Icewine Regulations,” Canada Gazette, last modified December 2, 2014, http://laws-lois.justice.gc.ca/PDF/SOR-2014-10.pdf.
4.Madrid Agreement Concerning the International Registration of Marks of April 14, 1891.
5.Because I am a sci-fi addict, I’d like to point you toward the Southern Reach Trilogy by Jeff VanderMeer, which deals with the concept of terroir in a very interesting and creepy way.
6.The Navajo Nation, et al. v. Urban Outfitters Inc. et al., 1:12-cv-00195, in the US District Court for the District of New Mexico.
7.Elizabeth Fiedler, “Navajo Nation Sues Urban Outfitters Over Use of Name,” newsworks.org, 2012, http://www.newsworks.org/index.php/local/item/34760.
8.“Navajo Nation Sues Urban Outfitters for Trademark Infringement,” The Guardian, 2012, http://www.theguardian.com/world/2012/mar/01/navajo-nation-sues-urban-outfitters.
9.See note 8.
10.Niamh Pollak, “Change You Can Xerox,” trademarkblog.ca, 2008, http://trademarkblog.ca/change-you-can-xerox/.
11.John Dwight Ingram, “The Genericide of Trademarks,” Buffalo Intellectual Property Law Journal 2 (2004): 154, http://wings.buffalo.edu/law/biplj/biplj223.pdf.
12.The Indian Arts and Crafts Act, 1990, PL 101-644, http://www.iacb.doi.gov/act.html.
13.The Beyond Buckskin Boutique is one source of authentic Native American products and was launched in 2012, as a direct response to the Navajo nation vs. Urban Outfitters case. Dr. Jessica Metcalfe wanted to support Native American designers and artists by providing access to authentic products not available to the average person: http://shop.beyondbuckskin.com/.
14.Jessica R. Metcalfe, “Does Easy Condone Trademark Violation?” Beyond Buckskin (blog), 2012, http://www.beyondbuckskin.com/2012/02/does-etsy-condone-trademark-violation.html.
15.Altayyar v. Etsy Inc., 1:15-cv-02785, U.S. District Court, Eastern District of New York (Brooklyn). For more information: Christine Smythe, “Etsy Sued by Investors Alleging Firm Hid Products’ Trademark Risks,” insurancejournal.com, 2015, http://www.insurancejournal.com/news/national/2015/05/17/368456.htm.
12
All My Queer Relations
Language, Culture, and Two-Spirit Identity
I am a huge language geek. As in, I’m a little obsessed with language and how it relates to culture, to identity, and to understanding the world around me.
If you speak another language, or have even tried to learn another language, you realize pretty quickly that although you might be using a comparable term in one language as in another, the connotations involved can be radically different. When you translate a word, you don’t usually unpack those connotations. Without careful thought, you may simply switch from one context to the other, and not notice you’re no longer discussing the same things.
Not sure what I mean? Consider the English term justice. Let that word roll around in your head. I bet you can think of all sorts of variations on that term in English: natural justice, vigilante justice, impartial justice, social justice, and so on. Each variation is shaded by another layer of connotations, all rooted within a particular sociopolitical structure you have likely been raised slowly learning about (indirectly and directly).
The concept of what justice means varies depending on which sociopolitical context you’re in. It seems obvious when you think about it, but we don’t always consider
it enough. When I say this word to you in English, I am pretty certain you’ll have a somewhat comparable understanding of the term as I do (provided I’m thinking in English), though we may quibble on the details.
How I would choose to translate the word justice into another language would depend on what aspect of justice (in English) I was trying to convey. Unless there was an easy-peasy equivalent like justicia (Spanish) or justice (French). Of course, what justice means in different Spanish-speaking countries or in French-speaking jurisdictions may (and does) also vary widely; be careful about those supposed equivalents.
There is no easy equivalent I can think of in Cree, so I would have to be more specific. Would I mean kwayaskwâtisiwin? This word has connotations of straightness, of even-handed fairness. No connotations of a rigid procedure and notions of “innocent until proven guilty”; no images of a courtroom with a judge. Getting someone who is unfamiliar with English common-law procedural norms of justice to understand those norms would take some serious explaining, Lucy. It would necessitate translating cultural context. There is no single-word equivalent in Cree I could rely on; this makes it less likely I’ll fall into the trap of using a word that seems the same but is not.
It does not take a person long to figure these things out once they spend a bit of time considering them. Yet, that moment when you first realize an equivalent or translated term means something very different from the term in English is pretty amazing. Recognizing that the way people who speak that language perceive the term is different from the way you perceive it, because of historical and cultural specificities, means you’ve been given a very important insight (even if you do not fully understand those differences).
Peace, baby!
The word pêyâhtakêyimowin (pay-yah-tu-kay-YI-moo-win) often gets translated into English as “peace.” If you’re hasty, you might start using it in the same way you use peace in English – to mean an end to hostilities, perhaps. Except that’s not what it means.
pêyâhtakêyimowin refers to peace within yourself. I suppose the idea of inner peace might be an okay equivalent. Within the word pêyâhtakêyimowin, there are aspects of taking things slowly, being careful, being quiet, and not getting riled up. There are further cultural connotations involved in concepts like being careful, being quiet, and going slowly. At the very least, I have to provide you with four concepts in order to begin to give you a sense of what this word actually means.
You might argue peace can be used in that same way in English, and you’re probably right. However, the reverse is not true. I cannot use pêyâhtakêyimowin to mean an end to hostilities. It simply does not make sense. I’d have to use the word wîtaskîwin, and even then we would not necessarily think of what this means in the same way. (Fun fact for Albertans, wîtaskîwin = Wetaskawin.)
If you and I are talking and I have to speak in English because you don’t understand Cree, I’m probably going to default to the term peace. In my head, I have the idea of pêyâhtakêyimowin. In your head, you have your understanding of the term peace. Every time I use the word peace it is going to trigger English-language cultural connotations. You might start thinking of me as a flaky New-Age hippie if I say it too often. I might start forgetting that it makes you think of a specific thing, mistakenly believing you and I are on the same page in terms of its meaning.
This kind of thing happens all the time when you try to translate concepts into other languages. We use translation because it is necessary when dealing with people who do not speak our language; we are pretty aware that misunderstandings can occur and we need to be careful.
I came here to read about Two-Spirit identity; Why am I reading this language stuff?
Oh, right, sorry. I get carried away talking about language sometimes.
In my parents’ and grandparents’ time, the term berdache was used to refer to Indigenous transgender individuals. It was also used a fair amount to refer to Indigenous homosexual men.1
It wasn’t the most positive term. In 1990, during an intertribal Native American/First Nations gay and lesbian conference in Winnipeg, the term Two-Spirit was chosen to replace it.2
Some say the term was a translation from Anishinaabemowin (niizh manidoowag). The term was deliberately chosen to be an umbrella term; a specifically pan-Indigenous concept encompassing sexual, gender, and/or spiritual identity. I think it is a useful term because it is so broad, and the kind of terminology that acknowledges Indigenous beliefs and traditions is absolutely needed. However, like many pan-Indigenous concepts, it is sometimes overly broad. I also feel that because it is an English term, it becomes coloured by settler beliefs.3
Nation-specific terms
I have been trying to find Cree-specific terms for Two-Spirit identities for many years. Recently, it has become easier with groups like the Facebook group, Nêhiyawêwin (Cree) Word of the Day. Many of the terms have been forgotten, and few people know them. Still, sometimes when you ask, you receive.
Learning the words is not enough, however. Digging deeper and trying to understand the way Indigenous peoples viewed Two-Spirit individuals is also important. Without that, all we have are equivalents – words we cannot help but think of in the context of their English counterparts. Like it or not, most of us have been educated within the Canadian system, and European notions of homosexuality, gender, and sex have found their way into every nook and cranny of our minds. Decolonization involves becoming aware of this and consciously trying to reclaim what existed before. It also includes building new traditions if, within specific First Nations, Two-Spirit people were not accepted. This is no easy task.
Anyway, I want to highlight some of the terms used by Cree speakers, with many thanks to those who have shared what information they do have. Of course, there is going to be disagreement, especially regarding meaning and authenticity, on some of these terms. There have also been many cautions that these terms may simply be translations from English into Cree, as no one I spoke to expressed a strong familiarity with traditional roles for these people. Yet, I thought it was a good start.
I am not 100 percent certain of the pronunciation for these words. I may miss where a macron is needed to alter the sound of a vowel, but I’ll give it a shot!
napêw iskwêwisêhot (nu-PAYO ihs-gway-WIH-say-hoht): a man who dresses as a woman
iskwêw ka napêwayat (ihs-GWAYO ga nu-PAY-wuh-yut): a woman who dresses as a man
ayahkwêw (U-yuh-gwayo): a man dressed/living/accepted as a woman (I have seen this word used to refer to a castrated animal, so I’m not sure how respectful it is. Some have suggested this word can actually be used as a third gender of sorts, applied to women and men.)
înahpîkasoht (ee-nuh-PEE-gu-soot): a woman dressed/living/accepted as a man (also translated as someone who fights everyone to prove they are the toughest. Interesting!)
iskwêhkân (IS-gwayh-gahn): one who acts/lives as a woman
napêhkân (NU-payh-gahn): one who acts/lives as a man
A number of people claim there were no terms in Cree, people were not labelled in such ways, and despite there being pan-Indigenous notions of special roles for those now called “Two-Spirit,” this may not have been the case in Cree communities. Yet, in these discussions, one belief is very clearly shared by most: there was acceptance of fluid genders/sexual orientations and so on.
This does not mean Two-Spirit people are always accepted and honoured now; unfortunately, Two-Spirit people are most at risk for violence, and most excluded from ceremonies and community. Hence, there is the need to take a serious look at ensuring Two-Spirit people are centred, not merely paid lip service.
Love in the time of Indigenous resurgence
Reclaiming our traditions is more than learning our languages, but our languages do give us a way in, which should absolutely be explored.4 Overcoming colonially imposed views of sex, sexuality, gender, and identity is no small matter, particularly since Indigenous peoples are still experiencing colonialism in a very real way. We are not livin
g in post-colonial times, no matter what Canadian politicians claim.
Ideas about tradition-specific approaches to those now called “Two-Spirit” have been emerging for some time and are becoming the subjects of Indigenous scholarship.5 More important, Indigenous women and Two-Spirit people are on the ground, leading a resurgence movement in iyiniwi-ministik, the People’s Island.6 They draw on their traditional roles as protectors of the land and water to inform their work in our communities, and to root themselves in their specific sociopolitical orders to counter colonialism and to revitalize language and culture. Rather than being defined as a struggle against patriarchal gender roles and the division of labour, Indigenous women and Two-Spirit people combat the imposition of colonial barriers. Gender equality is not the goal; rather, it is to restore Indigenous nationhood, which includes gender equality and respect for gender fluidity.
As I write this, I can hear Khelsilem (Skwxwú7mesh-Kwakwaka’wakw), a community organizer from Vancouver, pointing out that not all Indigenous peoples have the same traditions, and that we need to have honest discussions about the diversity of our traditions to avoid perpetuating pan-Indigenous stereotypes. This is an important point, indeed, as not all Indigenous nations have the same traditions with respect to the fluidity of gender roles. Romanticizing ourselves as a collective, unfortunately, plays into “noble savage” stereotypes and does damage in the long run. With so many Indigenous people disconnected from their specific traditions, even so-called positive stereotypes are a form of continuing erasure.
Even among nations with traditional binary gender roles or hierarchical sociopolitical orders, there is nothing that compares to colonial patriarchy that mainstream settler feminism opposes. Our internal struggles with traditional roles are not analogous to the issues that settler peoples have with their traditions; therefore, using Western liberal theory to deconstruct them is inherently incongruous.
Indigenous Writes Page 14