Brian Sheets has published “Papers or Plastic: The Difficulty in Protecting Native Spiritual Identity” in the Lewis & Clark Law Review (also SSRN).
Here is the abstract:
Sellers of Native ceremonies offer the opportunity to non-Natives to participate in ceremonial traditions with roots in Native spiritual communities—for a price. These “plastic shamans” have appropriated some Native ceremonies, sometimes with fatal results. Commodifying these spiritual practices removes important communal identities from their sources and furthers the stereotype that Native communities and their cultural practices are relics of the past—a concept reinforced through divorcing cultural practices from vibrant, modern Native societies struggling to maintain an identity. In response to ceremonial appropriation by plastic shamans, some Native spiritual communities have sued operators of botched ceremonies, and have further advocated for legal protection of Native ceremonies in Western legal concepts. However, Western law misses the mark. While spiritual identity is offered protection through exemptions to generally applicable laws, the Western requirement of a bright-line object to represent spiritual identity does not allow for the protection of an intangible ceremony from appropriation. Furthermore, Western concepts of intellectual property are market based, and directly conflict with the intent to protect Native ceremonies from being commodified. These conflicting values demonstrate the tension in protecting spiritual identity. And when Native cultural composition, transformative ceremonial practice, and distributions of ceremonies between Native groups are taken into account, the difficulty becomes even more apparent.
This Comment explores the approach of current Western laws seeking to protect cultural heritage, and then applies one Native proposal through a First Amendment analysis to demonstrate the difficulty of protecting Native spiritual identity in Western law. Some of the current means of protecting and preserving Native spiritual identity make appropriation even easier through documentation requirements. While there is a compelling reason to protect Native ceremonies from appropriation, Western courts are limited in their ability to favor one group’s religious practices over another. This Comment concludes that while difficult to protect in law, public awareness is the most likely cure to prevent shopping for spirituality—enlightenment and selfactualization cannot be bought off-the-shelf with the clerk asking at checkout “paper, or plastic?”