19 July 2012

Traditional Knowledge and the US

'A Defense of Native American’s Rights over their Traditional Cultural Expressions' by Kay Mathiesen argues
The Protocols for Native American Archival Materials (PNAAM) recommend a set of best practices for dealing with Native American Traditional Cultural Expressions and Traditional Knowledge held in libraries and archives. “Traditional cultural expressions” (TCE) have been defined by the World Intellectual Property Organization (WIPO) as cultural materials created by the community that reflects that “community’s cultural and social identity” and are a “community’s heritage” “handed down from one generation to another” (WIPO 2005, 5). Traditional knowledge (TK) has been defined as “traditional technical know-how, or traditional ecological, scientific or medical knowledge” (WIPO 2005, 4). Thus, Native American TCE and TK would potentially include any materials that represent in some way the cultural heritage or knowledge that has been developed and passed down by Native American tribes and Native Hawaiians. 
The normative foundation of PNAAM’s recommendations is that Native American tribes have rights over the TCE and TK held in libraries and archives. It is important to note that the rights claimed in PNAAM are moral rights; a “moral right” creates an obligation for others to respect it, whether or not the right is encoded in law. As Joel Feinberg puts it, a person “has a moral right when he [or she] has a claim the recognition of which is called for...by moral principles, or the principles of an enlightened conscience” (Feinberg 1970, 253). Concern for the moral rights of others is nothing new to the library and archival professions. Consider, for example, the rights listed in the Library Bill of Rights, which do not necessarily have the force of law, but which are, nevertheless, held up as guides for the ethical conduct of library professionals (ALA 2002). 
In particular, PNAAM recommends that librarians and archivists recognize the rights of Native Americans to limit or deny access to Native American stories, images, and information. While there is anecdotal evidence that some non-tribal archives have formal or informal policies in line with some or all of the recommendations of PNAAM (Walters 2011), such policies and practices are not generally accepted within the archival profession. According to one archivist, “The Protocols call for sweeping power to control what is studied and written about Native American communities, which ... is incompatible with our basic professional tenets of open and equitable access to information, and the practice of free and open inquiry ...” (Bolcer 2009, 4). Others have objected that, “The Protocols challenge many ‘bedrock’ principles of American archival practice” (Society of American Archivists 2008). Concerns such as these have led both the Society of American Archivists (SAA) and the American Library Association (ALA) to refrain from endorsing PNAAM (SAA 2008, ALA Office for Information Technology Policy 2011). 
At heart, the controversy over PNAAM is based on a disagreement about the norms that ought to guide ethical practice in the archival and library professions. Like any profession, archivists have ethical codes that govern the practice of the profession (Danielson 2010, 301-337). “Ethics” have been defined as the “well-founded standards of right and wrong that prescribe what humans ought to do, usually in terms of rights, obligations, benefits to society, fairness, or specific virtues” (Velasquez and Andre 1986). “Professional ethics” are “the principles and standards that underlie a profession's responsibilities and conduct” (Davis 2003). Ethical responsibilities of archivists include the obligations to safeguard records from theft or destruction, to ensure equitable access to records, and to protect the privacy of the subjects of archival records. Work in archival ethics discusses the rationale for the codes and how they apply to specific cases (Cox and Wallace 2002, Benedict 2003, Danielson 2010). The issue of how to deal with Native American archival materials, however, has gained little attention from those writing on archival ethics in the United States. Karen Benedict’s 2003 Ethics and the Archival Profession: Introduction and Case Studies, for example, contains no case studies dealing with the issue of the proper treatment of Native American Archival materials. Elena Danielson’s 2010 book, The Ethical Archivist, briefly mentions the issue in a single paragraph, but does not cover the controversial ethical issues surrounding it. While there has been some description of archival projects involving materials held by Native American tribes (Christen 2011), these articles do not provide an in-depth discussion of the ethical issues involved. 
Globally, the ethical questions surrounding control over Indigenous TCE and TK have received much more attention. International organizations such as the United Nations (UN) and the WIPO have drafted statements asserting the rights of indigenous peoples to control access to their TCEs and TK (UN 2006, WIPO 2003). The Declaration of the Rights of Indigenous Peoples, for instance, states that indigenous peoples, “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions” (U.N. 2007, Article 31) Archivists in countries such as Australia have been grappling with these ethical issues for almost twenty years. The Aboriginal and Torres Strait Islander Protocols for Libraries, Archives and Information Services (ATSI Protocols), which served as an inspiration for PNAAM, was written in 1995 and was endorsed by the Australian Society of Archivists in 1996 (Aboriginal and Torres Strait Islander Library Information Resources Network 2005). Since that time, a significant scholarly literature has developed on the ethical and legal issues surrounding the ATSI Protocols (Nakata and Langton 2006). 
Given the increasing international attention to the question of Indigenous peoples’ rights over their TCE and TK, it is imperative that archivists and other LIS professionals in the United States engage in a serious discussion of the ethical issues involved. This paper seeks to advance this discussion by engaging in an ethical analysis of the key question involved: “Do Native Americans have a moral right to control access to their TCE and TK?” As a work of applied ethics, this paper “seeks a reasoned defense of a moral viewpoint” using “considered judgments and moral frameworks to distinguish justified moral claims from unjustified ones” (Beauchamp 2005, 23). The moral viewpoint defended here is that Native Americans do have a moral right to control access to their TCE and TK. Group privacy and the concept of restorative justice provide an ethical justification of this right. 
The case for the rights of Native American tribes to control access to their cultural heritage only makes sense when situated within its historical context. Thus, this essay begins with a short description of the history of suppression and appropriation of Native American cultures. In the second section of the paper, some of the controversial recommendations of PNAAM are summarized, and a number of objections that have been made to them are noted. The third section grapples with questions of methodology in ethics. John Rawls’ “overlapping consensus” approach is adopted as a method for resolving ethical conflicts between cultural groups. The fourth section surveys a number of proposed defenses of Native American rights over their TCE and TK, and argues that they fail to provide the basis for an overlapping consensus. The fifth section argues that the right to privacy, as extended to groups, does provide such a basis. The final section of the paper addresses objections to the group privacy argument, most notably, that recognizing Native American rights to their cultural information will put us on a slippery slope towards massive restrictions on access to information. It is argued that the nature, context, and history of Native American cultures are unique. Consequently, the right of Native Americans their TCE and TK as grounded in cultural privacy does not extend to other social, cultural, ethnic, or religious groups. 
It must be emphasized that I do not claim in this paper to speak for Native American tribes or individuals. I approach this topic as a non-native ethicist trained in western philosophical ethics. I have sought to construct an ethical argument that provides a basis for a shared understanding of the rights of Native Americans’ over their TCE. I am deeply indebted for my understanding of these issues to both my Native American students and to Native American and Indigenous scholars who have written so passionately and convincingly on these issues. For a deeper understanding of the perspectives of Native Americans, readers can do no better than to consult what Native Americans have written on this topic (see e.g., Nason 2001, PNAAM, Todd 1990, Tulalip Tribes 2003). 
Furthermore, it should be noted that no policy proposals or suggestions for implementation will be made here. I argue that there are grounds already accepted within the archival ethics to justify the rights of Native American’s to their TCE and TK. Exactly how these rights may be best respected through practices, policies, and laws is beyond the scope of this paper. Indeed, it would be inappropriate to make such suggestions here, as any such policies should be the result of dialogue and negotiation between Native American Tribes and those who handle their cultural materials. Such dialogue is a central theme of PNAAM and a key component of a restorative justice approach to the legacy of past injustices (Zion and Yazzie 2006).