Trevor Reed has posted “Restorative Justice for Indigenous Culture,” forthcoming in the UCLA Law Review, on SSRN. Here is the abstract:
One still unresolved aspect of North American colonization arises out of the mass expropriation of Indigenous peoples’ cultural expressions to European-settler institutions and their publics. Researchers, artists, entrepreneurs, missionaries, and many others worked in partnership with major universities, museums, corporations, foundations, and other institutions to capture and exploit Indigenous cultural creativity, often in violation of Indigenous peoples’ laws, protocols, and standards of care. Much of this cultural material remains in Institutional repositories today, where it has been treated as the raw material for settler research, creativity, and innovation, circulating outside the control of the Indigenous communities who created it. These institutions must grapple with their legacies of intellectual and cultural abuse towards Indigenous peoples and emerging industry norms that increasingly demand respect for Indigenous rights, while continuing to make knowledge resources available and accessible to the public, to the extent allowed by law. Faced with these two seemingly incommensurable objectives, many institutions have begun to adopt cumbersome, generally unenforceable internal policies and procedures that tend to limit access to Indigenous culture as a remedy for past abuses rather than looking to Indigenous communities for guidance on methods for repair and redress. This Article advocates for a different approach – one which merges restorative justice theory and well-established methods for “Open Source” or “Creative Commons”-style licensing into what I call restorative licensing. I further advocate for the integration of privately ordered licensing structures within the restorative justice process to ensure Indigenous expectations for repair and redress are met, and that Indigenous cultural expressions can circulate once again on terms consistent with Indigenous law, protocol, and standards of care.
