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The Color of Creatorship began with a look at “Blurred Lines” and the complicated and contradictory resolution that resulted from Robin Thicke’s initial lawsuit against Marvin Gaye’s estate. In part, Williams was a so-called “hard case” because it pitted people of color against one another in a manner that required the erasure of one or more forms of systematic discrimination while also refusing to take a critical look at the persistent problems of racial capitalism.

The amicus brief that sided with Gaye addressed only part of the problem of the case. Though it produced important counterscripts to the racial scripts and racial feelings that had disenfranchised Black creators before the 1970s, it also oversimplified the political economy of the situation in which copyright law—and indeed all intellectual property law—operates. 

The history of literature arguably is a history of appropriation. Early written texts show traces of preceding oral traditions, and later written texts incorporate and reinvent earlier ones. In fact, sometimes it is neither possible nor desirable to read a text without being aware of its relationship to a previous one (think Wide Sargasso Sea and The Wind Done Gone, the not-so-secret sharers of Jane Eyre and Gone with the Wind). Because of the fact that we often read one text in the context of its predecessor(s), an academic industry has grown up around the subject of intertextuality. 

Intellectual property issues may of course come into play whenever an appropriated text is under copyright, but one might think an author otherwise on safe footing when drawing upon earlier works. Alice Randall and her publisher had to defend The Wind Done Gone against charges of copyright infringement brought by the estate of Margaret Mitchell (Schur). Jean Rhys, however, encountered no opposition when she provided voices to Edward Rochester and his first wife, Antoinette Cosway, in Wide Sargasso Sea.  

On Settler Traditions of Place and Obsessions With Ownership Tewa philosopher Gregory Cajete (1994, 1999) emphasizes the importance of place within Indigenous epistemologies (see also Basso 1996; Deloria and Wildcat 2001; Kawagley and Barnhardt 1999; Pena 1998). The significance of place ˜ is connected with “bodies of knowledge, and practices resulting from direct interaction with the natural world” (Cajete 1994, 39). Cajete’s epistemology of place provides an analytic model of how to assess place as a progenitor of knowledge within the Western world. As indigenous epistemologies are rooted in a particular conception of nature, so is Western epistemology. However, the Western bodies of knowledge have been developed out of a deeply rooted anthropocentrism and hierarchized vision of the world (Plumwood 2002). White supremacy, heteropatriarchy, and colonialism coexist with anthropocentrism in the Western body of knowledge to create settler traditions of place. This is seen in the history of the slave trade, plantations, conceptions of manifest destiny, and the many other forms of violence enacted in pursuit of ownership. The Western body of knowledge produces a fetish of ownership that sits at the foundation of settler traditions of place. The Western imaginary encourages ownership and domination of the land, while simultaneously curtailing the possibilities and parameters of ownership in a racialized and gendered manner, delimiting who can own, what can be owned, and how things should be owned. In the United States, historical and contemporary examples of white-settler epistemic constructions of the natural world help illustrate settler traditions of place and their intersecting components (racialized, gendered, and economized understandings of land, self, and others). Terra nullius and the settler colonial push westward serve this notion in the historical register. Terra nullius, or the belief that prospective land for colonizing/settling is in fact empty, was predicated upon an understanding that only so-called civilized societies/peoples can own land (Pateman and Mills 2007). Despite the presence of many Indigenous nations in North America, European colonizers perceived the continent as empty, because only so-called uncivilized peoples populated it. The ongoing occupation of Indigenous lands and the extreme reluctance of settlers operating with the prevailing epistemology to acknowledge this reality provides ample evidence of contemporary settler relations to place. But a more specific example of how the white settler knowledge regime encourages a continued drive toward ownership can be seen in industrial agriculture and the genetic modification and patenting of crops and other products. As part of settler traditions of place, industrial food production and genetic engineering exhibit white supremacist, capitalistic, and settler understandings of the world. In pursuit of property, the West plunders natural resources from around the world and has laid claim to ownership over vast swaths of nature through patents and copyrights. In Biopiracy, Vandana Shiva (1997) powerfully illustrates how the Western world has pirated the seeds, plants, and knowledge of Indigenous peoples across the globe. These actions are justified by racialized and gendered perceptions of Indigenous knowledge holders, marking them as uncivilized and incapable of owning or properly cultivating their knowledge, seeds, and plants. The stolen seeds and plants are cultivated and manipulated at the genetic level, and subsequently patented for continued ownership and profit. The actors participating in these actions are situated within the white settler epistemology as successful and rational. From this perspective, these settler actors are simply realizing their full potential. These acts of settling are not the simple accumulation of property to individually settle-down, but are part of a continuous drive to pursue and consume property of all kinds and add it to a settled dominion. Industrial agriculture is the byproduct of the dominant Western epistemology that has normalized and rationalized the aggressive accumulation of massive amounts of land and other properties. This remains the norm despite the fact that the actions resulting from this knowledge system have displaced, dispossessed, and exploited many—primarily Indigenous communities and communities of color, but also poor white settlers. But due to the racialized nature of the Western knowledge regime, epistemic conditions have been cultivated in such a way that this deleterious perception of reality remains the norm for many of those who are oppressed by its mass operationalization. The need for a full understanding of the logic of domination that flourishes across Western society has been emphasized by activists, scholars, and educators alike, making an argument that there needs to be an intimate examination of taken-for-granted assumptions about the world (Martusewicz et al., 2011). Settler traditions of place impact the possibilities of place-based education, and if this educational model is broadly oriented toward social and ecological justice, then the body of knowledge that emerged from settler interactions with the natural world must be understood in its entirety. THREE CAMPS OF PLACE-BASED EDUCATION The praxis and scholarship surrounding place-based education has dealt with these epistemic traditions, but in an inconsistent manner. In response, I see placebased scholarship as falling into several camps that utilize/understand place and epistemology in a variety of ways. To simplify things, practitioners and scholars tend to fall within one of three camps: (1) The liberal place-based education cohort, most notably represented by David Sobel, is primarily concerned with fostering an education that begins with the community and the environment. This relationship is facilitated through an ideal of enlightened localism that seeks to create greater balance between the human and more-than-human while developing an academically successful pedagogy rooted in one’s “homeground” while remaining aware of the relationships between places and the larger ecological and social world (Sobel 2004, ii; Smith and Sobel 2010). Liberal place-based education challenges the dominant culture’s relationship with the natural world, but does little to challenge the taken-for-granted knowledge at the foundation of their perception of reality, specifically how a community comes into being through settlement, or how a community might be economically and socially fractured by white supremacy and capitalism. (2) The critical place-consciousness camp finds its spokesperson in David Gruenewald (2003)/Greenwood (2009, 2013a, 2013b). The bridged socialecological education found in Sobel’s work is also at the foundation of Greenwood’s conception of a place-based education. But his conception of critical-place consciousness pushes the boundaries by emphasizing the socially constructed nature and inherent conflict of places that are wrapped up in issues of colonization, race, class, gender, as well as “the ideological and material legacy of our collective inhabitation and place-making” (Greenwood 2013a, 93). Critical place-conscious education differs from the liberal interpretation, because “while place-based education is often framed as a method to improve school outcomes, place-conscious education can be framed as a philosophy that challenges educators to rethink the assumptions of schooling in the context of the places we inhabit and leave behind” (Greenwood 2013a, 95). The critical position does offer an explicit epistemic critique within its framework (Greenwood 2013a), but in this process of unlearning and shifting one’s epistemic position, it must be understood that Western conceptions of place play a deeper role in maintaining social realities. As such, place-based education must not only focus on how previous understandings of place can limit one’s ecological knowledge, relationship, and future, but must also center the role of place in maintaining settler colonialism and other systems of domination (Calderon 2014). 3) The most longstanding place-based educational tradition can be found embedded in the multitude of indigenous epistemologies and models of education. Indigenous place-based education has been represented by the work of Gregory Cajete (1994, 1999), Angayuqaq Oscar Kawagley and Ray Barnhardt (1999, 2005), and Vine Deloria, Jr. and Daniel Wildcat (2001). Often, Indigenous modes of education offer differing perspectives on place and education primarily due to the nature of their operative knowledge systems, which carry preexisting ethics of social and ecological sustainability (Barnhardt and Kawagley 2005; Cajete 1994, 1999; Kawagley and Barnhardt 1999). Critical place-based education’s goal to go against the epistemic grain works in tandem with many Indigenous scholars. Kawagley and Barnhardt (1999) illustrate one of the primary tensions that needs to be reconciled when attempting a place-based education in schools dominated by Western perceptions of reality—Indigenous cultures maintain that “humans have a responsibility for maintaining a harmonious relationship with the natural world”; Western cultures harbor an anthropocentric ethic that reinforces the perceived right to “exercise dominion over nature to use for personal and economic gain” (120). This ethic of dominion is intimately connected with racialized and gendered ideas of private/embodied property and what kind of person has the right to own places. Schools that are dominated by an Anglo-American perception of reality are not placeless, because particular conceptions of place are already engrained into schooled knowledge, and preexist contemporary pedagogies of place. A prefigured relation to place is enmeshed with social technologies used by white settler societies to make sense of the social world. Although place is geographically and culturally specific, common interpretations of place are transmitted through ideologies and knowledge systems that travel beyond geographic specificity. Guided by available knowledge, the places with which we identify carry ontological implications (Basso 1996); the social world that we exist in shapes who we are and how we know ourselves in relation to the world—we are all emplaced (Greenwood 2013a). Our emplaced lives are embedded with socio-political, -cultural, -economic, and socio-epistemic implications (Marker 2006; Medina 2013; Pena 1998). As ˜ David Greenwood (2013a) suggests, to “really know a place is to understand how environment, culture, and politics have worked to shape it, and to appreciate that any particular place may have diverse and competing meaning for different groups or individuals” (94). With this in mind, it is crucial for future theorizations of place education to consider the epistemic norms associated with the politics of place. This consideration requires place-based educators to contextualize ecology and domination within the colonial mind (Greenwood 2009, 2013a). Place-based education must attend to the traditions informing contemporary politics of place that remain infected with the logics of domination.

In addition, many 'end of the world' narratives interpellate subjects of white privilege by assuming that readers are not (currently) affected by the harms distributed unequally by global structures of environmental racism. For instance, Barnosky and Hadley) state, if you are anything like we are, you probably think of pollution as somebody else's problem…you probably don't live near a tannery, mine dump or any other source of pollution'. For many people of color, living near a source of pollution may be nearly inescapable as a result of structural-material discrimination, including zoning practices and the accessibility of housing. 30 Viewing ecological harms as 'someone else's problem' is a privilege afforded to those who have never been forced contemplate the destruction of their communities or worlds.31 At the same time, these authors - along with many others working in the genre - invoke narratives akin to 'all lives matter' or 'colour-blindness’ that erase unequal distributions of harm and threat. For instance, during their international travels for scientific research and leisure, Barnosky and Hadley (italics ours) describe a dawning awareness that the problems we were writing about were everybody's problems no one was escaping the impacts. . . including us'. They go on to frame as equivalent flooding in Pakistan that displaced 20 million people and killed 2000 with the inconveniences caused by the temporary flooding of the New York subway system in 2012. In addition, they cite evidence of endocrine disruption in American girls caused by pollution, stating that the youngest of the cohort are African American and Latina but that "the most dramatic increase is in Caucasian girls. In this framing, even though BIPOC children remain most adversely affected, white children are pushed to the foreground and framed as more urgently threatened in relative terms. These comparisons background the disproportionate burden of ecological harm born by BIPOC, and reflect a stark calculus of the relative value of white and BIPOC lives. The 'all lives matter' logic employed here constructs a universal human frailty in which responsibility for ecological threats is attributed to humans' in general, and the assignment of specific culpability is avoided. While Newitz avers that assigning blame [for ecological harm] is less important than figuring out how to. .. survive, we argue that accurately attributing responsibility is crucial to opening up futures in which it is possible to dismantle the structural oppressions that unequally distribute harms and chances for collective survival.

Preoccupation with the subjects of whiteness in end of the world' discourses is also reflected in the framing of BIPOC communities as threats to the survival of 'humanity'. These fears are perhaps most simply and starkly expressed in anxieties over population decline within predominantly white countries, paired with palpable fear of rising birth rates amongst BIPOC communities. Chillingly, such fears are often connected to the mere biological survival of BIPOC, and the reproductive capacities of Black and Brown bodies - especially those coded as "female', and therefore fertile' within colonial gender binaries. For instance, in his treatise on "over'-population, American settler science writer Alan Weisman addresses the 'problem' raised by the likely significant increase of survival rates (especially amongst children) as a result of widely-available cures for illnesses such as malaria or HIV. Since, he avers, it would be "unconscionable to withhold these vaccines, Weisman suggests that malaria and HIV research funding should also promote family planning - that is, control of BIPOC fertility - since 'there's no vaccine against extinction' Here, BIPOC survival and reproductivity is literally - even if not strictly intentionally - framed as an incurable disease that could culminate in 'extinction'. Although some of these discussions examine total growth in human populations globally,38 much of this research focuses on relative population sizes, usually of BIPOC-majority places to those inscribed as white. For instance, British doctor John Guillebaud predicts a 'birth dearth' in Europe while likening 'unremitting population growth' in other parts of the world to "the doctrine of the cancer cell' 39 Although these regions are described in various ways throughout the genre - for instance, as 'poor' or 'developing', the areas slated for growth are almost always BIPOC-majority. For example, Hungarian demographer Paul Demeny argues that Europe's population is steadily shrinking 'while nearby populations explode. Drawing on Demeny's work, Homer-Dixon warns of a future 3:1 demographic ratio between North Africa/West Asia and Europe, along with 70% growth in Bangladesh, 140% growth in Kenya, and a doubling of the populations of Iraq, Saudi Arabia, Pakistan, and Nigeria. Directly after sharing these statistics, he appends a list of international news reports referring to, for example, clashes between Indigenous communities in Kenya, riots in Shanghai, and murder rates in Mexico. In so doing, he directly juxtaposes BIPOC population growth with stereotypes of violence and 'incivility'.

Admittedly, a framework that delves deeper into actual or potential harms to the author or their creative environments may not sit well with advocates for an expansive public domain. 293 As Professor Lessig and others have argued, culture is typically conceived of as a social text, a shared referent between individuals in a society that grows in meaning and value as it is freely used. 294 The more a cultural referent is used and reused, the more it is enriched, diversified, and increased in value. 295 While in theory fair use should balance the public's interest in access to cultural referents against the incentives necessary for creators to produce and develop them, these commentators believe fair use's fact-intensive inquiry "in practice becomes the right to hire a lawyer," thus stifling creative progress. 296 Thus, these scholars advocate for a fair use test that minimizes consideration of the potential harms to authors in favor of greater public access. 297

While arguments for expanding the settler public domain may dismiss or refocus the second factor by making broad assumptions about the nature of authorship, these arguments may not fully account for the loss of creativity that may result as creators and their creative networks - particularly Indigenous ones - lose confidence that their investments in creativity will be protected.

Many Americans are beginning to feel irrevocably connected to technology. This has created a rift within the American psyche wherein one part cannot imagine a world without such stimulation, immediate gratification, and communication, while the other part longs for tranquility, silence, and solitude. "For many non-Indian peoples, who are increasingly disillusioned with capitalist ethics, materialism, lack of family networks and support, and the general degradation of the environment, Native Americans represent both a romanticized golden past and a hope for a return to a simpler life in the future." It is within this paradigm that Americans are turning to stereotyped utopias of the Native American lifestyles and peoples, where Indians represent a complete rejection of technological advancement in favor of primitivism. It is the belief that the American Indian " was a savage, at just about the stage in civilization the white man was just a few centuries back.' »7 Within this view there is the assumption of a linear moral development model that connects savagery to the beginning of man's time on earth, with modernization and morality as the end result. Therefore, if Americans are unsatisfied with the status of modernity, they can look back and mimic stereotypes of indigenous life as a way to escape technological anxieties, and engage with the traditions of the past.

The notion of "playing Indian" dates back to media representations of westward expansion. However, a new utopian fascination with Native American life began in the 1970s and 1980s. These pivotal decades marked a surge of social awareness and advocacy with the subsequent Chicano, Free Speech, and Feminist movements. It was during this time of self-determination that Native American identity was reformed. A "newfound, but largely romanticized, respect for native peoples' connection with the land and environment emerged in the 1970s in conjunction with the civil rights movement and an increasing awareness of ethnic diversity and alternative lifestyles." This trend was pervasive and focused on Native American "spiritual purity" and relation to the land.?

Despite these powerful contributions, we also identify some important issues associated with SCT in Australian academic debates about the NT intervention. The first is a direct con-sequence of one of SCT’s vital contributions, arising from the theory’s present tense iteration of settler colonialism. By emphasizing continuities in colonial relationships between the past and the present, SCT can depict colonization as structurally inevitable, and can be deployed in ways that re-inscribe settler colonialism. We suggest that SCT’s struggle to narrate its own ending can be countered by approaching the theory as an account of settler desires which makes visible our own frames of reference. This in turn exposes a range of possibilities and political visions outside these frames. Such an approach is significant in countering potentially pro- blematic misuses of SCT that erase its location as a settler discourse. Such erasures problematically empower academics to speak with neutral descriptive authority over bothsettler and Indigenous realities. Firstly, by disturbing settler colonialism’s narratives of progress, SCT attributes a peculiar suspended temporality to the settler project. This can portray settler colonialism as an inevitable structure likely to exist across time– the fact that the past persists in the present implies that this past will also persist in the future. Foundational scholar Patrick Wolfe has been labelled ‘very much a structuralist stuck in a poststructuralist world’. 63 As we have outlined, this structur-alism is particularly useful in identifying the operation of political hierarchies. However, it can also excuse us from human political action in the present by presenting this action as futile or already determined. 64 The role of political activists is to wait for the structurally determined future, and at most to prepare others for its arrival. The particular challenge of SCT’s analysis is that it does not give an account of such a trans-formed future, or of the conditions for settler colonialism’s demise. This can lead to a theoretical and political impasse and result in a kind of colonial fatalism. Such fatalism can be deployed to imply a moral equivalence between different forms of settler political interaction with Indigenous people, and, at its worst, to deny the legitimacy of Indigenous resistances. Structuralist narratives are able to posit radical change, but only if this change is built into the structures they describe– for example because these structures are subject to internal contradictions or are inherently unstable. Settler colonial structures, however, appear as highly stable and‘ relatively impervious to regime change’. 65 Therefore, at the same moment settler scholars finally see the depth and reach of settler colonialism in the present they feel unable to find ‘post settler colonial passages’. 66 This tendency is reinforced by SCT’s capacity to identify significant commonalities in the objectives of conservative and progressive policy approaches, as discussed above. It shows that traditional ‘decolonizing’ pathways such as treaty making, reconciliation and formal apolo-gies may also serve colonial ends by absorbing and extinguishing Aboriginal political difference without disturbing the foundational structures of settler dominance. As Australian anthropologist Deborah Bird Rose notes, this makes it ‘difficult to offer a critique of the colonizing features without calling into question the whole decolonizing project ’. 67 If every settler action is framed as always already colonizing, then individuals are excused from anti-colonial action in the present and Indigenous people are destined to be victims of an unstoppable colonizing state. 68 As bell hooks argues in relation to US race relations, this is useful to those in a position of dominance: ‘so many White people are eager to believe racism cannot be changed because internalizing that assumption downplays the issue of accountability. No responsibility need be taken for not changing something if it is perceived as immutable.’ 69

The prescription for decolonization – that is, a normative project committed to the liberation of the colonized and the overturning of colonial relationships of power (Kohn and McBride, 2011: 3) – is indeed one of the most counter-hegemonic implications of the settler colonial paradigm as applied to Israel-Palestine, potentially shifting it from a diagnostic frame to a prognostic one which offers a ‘proposed solution to the problem, or at least a plan of attack’ (Benford and Snow, 2000: 616). What, however, does the settler colonial paradigm offer by way of envisioning decolonization? As Veracini (2007) notes, while settler colonial studies scholars have sought to address the lack of attention paid to the experiences of indigenous peoples in conventional historiographical accounts of decolonization (which have mostly focused on settler independence and the loosening of ties to the ‘motherland’), there is nevertheless a ‘narrative deficit’ when it comes to imagining settler decolonization. While Veracini (2007) relates this deficit to a matter of conceptualization, it is apparent that the structural perspective of the paradigm in many ways closes down possibilities of imagining the type of social and political transformation to which the notion of decolonization aspires. In this regard, there is a worrying tendency (if not tautological discrepancy) in settler colonial studies, where the only solution to settler colonialism is decolonization – which a faithful adherence to the paradigm renders largely unachievable, if not impossible.

To understand why this is the case, it is necessary to return to Wolfe’s (2013a: 257) account of settler colonialism as guided by a ‘zero-sum logic whereby settler societies, for all their internal complexities, uniformly require the elimination of Native alternatives’. The structuralism of this account has immense power as a means of mapping forms of injustice and indignity as well as strategies of resistance and refusal, and Wolfe is careful to show how transmutations of the logic of elimination are complex, variable, discontinuous and uneven. Yet, in seeking to elucidate the logic of elimination as the overarching historical force guiding settlernative relations there is an operational weakness in the theory, whereby such a logic is simply there, omnipresent and manifest even when (and perhaps especially when) it appears not to be; the settler colonial studies scholar need only read it into a situation or context. It thus hurtles from the past to the present into the future, never to be fully extinguished until the native is, or until history itself ends. There is thus a powerful ontological (if not metaphysical) dimension to Wolfe’s account, where there is such thing as a ‘settler will’ that inherently desires the elimination of the native and the distinction between the settler and the native can only ever be categorical, founded as it is on the ‘primal binarism of the frontier’ (2013a: 258). It is here that the differences between earlier settler colonial scholarship on Israel-Palestine and the recent settler colonial turn come into clearest view. While Jamal Hilal’s (1976) Marxist account of the conflict, for instance, engaged Palestinians and Jewish Israelis in terms of their relations to the means of production, Wolfe’s account brings its own ontology: the bourgeoisie/proletariat distinction becomes that of settler/native, and the class struggle the struggle between settler, who seeks to destroy and replace the native, and native, who can only ever push back. Indeed, if the settler colonial paradigm views history in similar teleological terms to the Marxist framework, it does not offer the same hopeful vision of a liberated future. After all, settler colonialism has only one story to tell – ‘either total victory or total failure’ (Veracini, 2007).

The scyborg’s medium is assemblage. When we take assemblages seriously as both analytical of power and as the medium for it, then the question becomes, how do you hack assemblages? The scyborg is a sculptor of assemblage—s-he splices one machine to another, de/links apparatuses from/to one another, places machines to work in making new machines, disassembles and reassembles the machine. The scyborg can connect Black radical thought to the paper-producing academic–industrial complex and set the print command to “manifesto.” The scyborg is like R2D2 in the Death Star, opening escape tunnels, lowering and raising doors to new passageways, making the death machine run backward, and ultimately releasing the plans for its destruction. The scyborg is an artist in the un/patterning of relations of power.[19] The scyborg loves dirty work.[20] Scyborgs do not care whether the assemblage they are retooling is first, second, or third world. Categorical thinking is not the point. Nothing is too dirty for scyborg dreaming: MBA programs, transnational capital, Department of Defense grants. Scyborgs are ideology-agnostic, which creates possibilities in every direction of the witch’s flight—not just possibilities that we like. This is why some of you are not always decolonial in behavior. Thankfully, your newly assembled machine will break down. Some other scyborgs will reassemble the busted gears to drive decolonial dreams. To dream it is to ride the ruin. Scyborgs are creating the free university. Scyborg desires are connecting the neoliberal motor that drove President Obama’s campaign for tuition-free community college to antipoverty organizing and to critical education. One of the interesting ways this is being done is by connecting free universities to the rhetoric of democracy and citizenship. Democracy is not decolonization. Democratization will expand, at best, the normative class of citizens through reinvestments in settler colonialism and new articulations of antiblackness. However, “democracy” as a discourse was also ready material for assemblage, a gear to attach to build the free university. The dream of universal education is born from the reality of exclusive schooling. This dream may shift as educational expansion creates new imbalances, such as inflated credentials, the devaluing of unschooled knowledge, new gaps between educational training and employment, or gaps between the trained workforce and the available supply of jobs. However, in building the free university assemblage and watching it fall apart, perhaps something unpredictable will come of its ruin. As to what, and whether the free university will be decolonizing, will be answered in scyborg assemblage. To be very clear, I am not advocating for rescuing the university from its own neoliberal desires but rather for assembling decolonizing machines, to plug the university into decolonizing assemblages. Close to my heart, Roses in Concrete Community School opened its doors in 2015 in Ohlone, what some call Oakland, California. This school is part of a larger self-determination project for a mostly Black and Brown community, in which we hope for a pre-K–16 educational institution, community-based economies, and land.[21] Also in 2015, also in what is now called Oakland, longtime Indigenous educators and activists Corrina Gould (Chochenyo/Karkin Ohlone) and Johnella LaRose (Shoshone Bannock) created the first women-led urban Indigenous land trust built upon “the belief that land is the foundation” that can bring all peoples together in “the return of Chochenyo and Karkin Ohlone lands . . . to Indigenous stewardship.” Sogorea Te’ Land Trust also reworks Western concepts of “land tax,” nonprofit status, and inheritance. Decolonizing land relations is the heart that reworks this machinery. Sogorea Te’ not only calls on but indeed provides an avenue for people living in Ohlone lands “to heal from the legacies of colonialism and genocide, to remember different ways of living, and to do the work that our ancestors and future generations are calling us to do.”[22] Nearby Roses in Concrete is an abandoned U.S. Navy base the size of a small town. California community colleges are talking expansion, while the tuition-free college movement had nearly found a federal reality under President Obama. A scyborg might connect these pieces—might imagine how the machines of freedom schools and free community colleges could purchase land, land that could become part of an Indigenous land trust. Roses in Concrete has a sister school in Aoteroa that originated from a Māori bilingual program Te Whānau o Tupuranga (Centre for Māori Education) and Fanau Pasifika (Centre for Pasifika Education), which became a school in 2006 and then became Kia Aroha College in 2011. Similar to Roses, Kia Aroha College is built on a holistic “scholar warrior” culture that developed the school over twenty-five years into a “culturally-located, bilingual learning model based in a secure cultural identity, stable positive relationships, and aroha (authentic caring and love).”[23] This craft of creating Indigenous space in an urban colonial context requires a constant rearrangement of settler law, Indigenous rights, state educational ministry systems, built schooling environments, and community systems of Indigenous education. Furthermore, these associations between school makers in Māori/Pasifika and in U.S. ghetto colonial contexts produce new shared scyborg flight plans. These technologies are driven and repurposed by scyborg desires. Where I am now, on Kumeyaay land at UC San Diego, we are at the confluence of the engineering apparatus, the naval and sea industries, the U.S.– Mexican border, the white utopian project of Black exclusion, the settler project of Native disappearance, the transnational project of international (read model Asian) recruitment. Scyborgs might reorganize these technologies into third university organisms with decolonizing programs: a project of water, a project of transnational/Indigenous solidarity, a project of Black assertion, a project of islands. As I write, Eve Tuck and K. Wayne Yang (my other I) are supporting a collective of collectives, the Land Relationships Super Collective, that connects different land-based movements across North America with one another to share strategies, resources, learnings, and so on. As Eve and I are both university professors, the university plays into this as an institution that must be refused, and yet also as an organism, an assemblage of machines, that we can make work, make space in, make liquid enough to allow us to contribute to land rematriation projects directly. The third world university will be built by scyborg labor. This is not a revolutionary call for scyborgs of the world to unite. This is a call to gear-in and do the dirty work of desiring machines. Through desires’ dirty work, we might recommission these first world scraps into a third world machine.

The indigenous movement is integral to the future of the planet and a winning left.

It is impossible to describe the totality of this picture — of acute land theft, poverty, oppression, surveillance, policing, and extraction — as anything other than colonialism.

Their captivating, organized, and massively popular movement to stop Dakota Access and protect water that sustains life called Americans and the world to the cause of indigenous rights like never before.

But it would be a terrible mistake to characterize the victory at Standing Rock as fleeting, or as an out-of-the-blue eruption. Indians and their indigenous cousins around the world have long been organizing, litigating, and fighting for wins like Standing Rock.

Whereas this theory of the public domain has served to undergird claims for traditional knowledge protection, so too has it proved a stumbling block. In the [*106] last decade, we have seen indigenous peoples and the poor, not unlike the Kerala rubber-tree farmer, turning their attention to appropriating intellectual property to their own ends. 37 Today, claims by indigenous people and the poor go beyond equitable benefit sharing; increasingly, the poor seek to own copyrights, trademarks, and patents in their own cultural and scientific innovations. 38 Strikingly, the traditional advocates for preserving the public domain have flipped. "Native peoples once stood for the commons," 39 but with the imbalance of TRIPs being more and more apparent, advocates of the poor are turning their attention to securing affirmative intellecual property rights for their own cultural and scientific innovations. Paradoxically, however, the concepts of "traditional knowledge," the "public domain," and "cultural environmentalism" are now proving to be obstacles to understanding poor people's knowledge as intellectual property. Claims by native peoples to hold intellectual property are resisted as threats to the public domain, or as the false consciousness of neo-liberalism, or as a radical assault on our intellecual property tradition, which encourages and promotes cultivation, not stewardship. 40

We should be wary of these declarations and "the romance of the public domain" itself. 41 Anupam Chander and I have argued that, while the banner of the public domain is taken up for all of humanity, a binary view of "intellectual property versus the public domain" may not be to the benefit of the world's poor. 42 Often, we argued, the benefits of an open-access commons go to the richest and the strongest. Differences in wealth, gender, and class determine whether one will in fact be able to convert the riches of the commons into lucrative property. This is what we call the "romance of the commons: the belief that because a resource is open to all by force of law, it will indeed be equally exploited by all." 43 Concerns arising from efficiency alone obscure the disparate effects of the commons on the poor. Staying attuned to the distributional effects of the public domain, in contrast, may require thinking about poor people's [*107] knowledge in "uncommon property" 44 terms, facilitating their capability to exert greater control over their property and to extract compensation from their knowledge.

Admittedly, a framework that delves deeper into actual or potential harms to the author or their creative environments may not sit well with advocates for an expansive public domain. 293 As Professor Lessig and others have argued, culture is typically conceived of as a social text, a shared referent between individuals in a society that grows in meaning and value as it is freely used. 294 The more a cultural referent is used and reused, the more it is enriched, diversified, and increased in value. 295 While in theory fair use should balance the public's interest in access to cultural referents against the incentives necessary for creators to produce and develop them, these commentators believe fair use's fact-intensive inquiry "in practice becomes the right to hire a lawyer," thus stifling creative progress. 296 Thus, these scholars advocate for a fair use test that minimizes consideration of the potential harms to authors in favor of greater public access. 297

While arguments for expanding the settler public domain may dismiss or refocus the second factor by making broad assumptions about the nature of authorship, these arguments may not fully account for the loss of creativity that may result as creators and their creative networks - particularly Indigenous ones - lose confidence that their investments in creativity will be protected.

Finally, indigenous communities are passing their own laws that put pressure on and provide legitimacy for national courts to adopt similar stances. 103 For example, the Hopi claim an interest in "all published or unpublished field data relating to the Hopi, including notes, drawings, and photographs, particularly those dealing with religious matters." 104 Similarly, the Apache have demanded "exclusive decision-making power and control over Apache "cultural property' … defined as "all images, text, ceremonies, music, songs, stories, symbols, beliefs, customs, ideas and other physical and spiritual objects and concepts' relating to the Apache, including any representation of Apache culture offered by Apache or non-Apache people." 105 Indigenous laws are the frontlines of intellectual property in terms of innovation and departure from existing legal frameworks, but they draw on existing mechanisms such as copyright to demand benefits, sharing arrangements such as joint-copyright over research which would convert them into legal co-authors of the materials produced, or trademark to protect the creation of new artifacts akin to the IACA. 106

The relationship between federal intellectual property laws and Native American tribes and artists is a unique and sacred one the United States owes a duty to protect tribes through treaty obligation and as "domestic dependent nations"152 and must take steps to amend federal trademark, copyright, and patent law to better protect the interests of tribes and boost economic development. Additionally, amending the IACA to provide broader protection for Indigenous artists who fall outside the Act's definition of "Indian" could further strengthen tribal fiscal growth. Laying a strong foundation for growth in tribal arts can pave the way for both economic and cultural development across the many tribes throughout the United States and should be a priority moving forward to support tribes reclaiming their sovereignty.

‌The intellectual property legal regime is a powerful one, its component parts comprising a complex body of law, an existing mind share, and a cache-all of which have developed over the years, and from which all peoples should benefit. Thus, if the workings of the intellectual property machine involve culturally-specific components, that machine should not be discarded when it is found ineffectual for all cultures; rather, the machine should be reconstructed such that it works for all cultures. The inclusion of indigenous peoples' cultural knowledge, inventions, expressions, and works within an intellectual property regime requires some rewiring of the parts, but does not diminish the potential legal value of the machine itself. This Article discusses the means by which indigenous interests can, and should, be incorporated into intellectual property law. 9 Copyright laws, in their current formulation, are inadequate to protect the fruits of human creativity of indigenous peoples. Thus, I will argue that copyright laws can, and must, be expanded in three ways so as to protect and maintain the vitality of the artistic and literary works of indigenous cultures: incorporating collective and communal authorship; expanding originality requirements to reflect collective and communal authorship; and applying limits on the duration of protection in a broader community context. I also propose that a variety of intellectual property mechanisms be drawn upon to provide special protection for "sacred" cultural works.In Part One, I use the debates over terminology to illuminate briefly some of the cultural issues at play with respect to the protection of the literary, artistic, and scientific works of indigenous peoples. In Part Two, I discuss the parameters of "intellectual property" and introduce the concept and operation of copyrights. In Part Three, I argue that the legal construction of authorship within the copyright context must be expanded to accommodate indigenous interests. In this Section, I examine in detail notions of authorship as they are embedded in intellectual property law and show that they run contrary to fundamental principles of authorship held by indigenous peoples. I argue that authorship must be reconstructed to accommodate cultural difference. I discuss developments toward that end in Australian case law and suggest additional intellectual property concepts that can be drawn upon to further that objective. In Part Four, I address the need to recast originality requirements to reflect an expanded notion of authorship, and in Part Five, I explore the various alternatives to basing the duration of rights on the "life of the author" within this expanded framework, noting both practical and policy conflicts over the duration of rights. Finally, in Part Six, I advocate special protection for sacred cultural works, and explore some of the already established legal mechanisms, in addition to copyright, through which this protection can be sought.

The development of the Indigenous renaissance in Canada and beyond has produced complicated quandaries of Indigenous peoples’ knowledge systems intersecting with Eurocentric knowledge systems. As Justice Abella of the Supreme Court of Canada (SCC) insightfully noted: “As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous people, inequities are increasing revealed and remedies urgently sought.” 2 As the cognitive curtains have been opened surrounding the holistic Indigenous peoples’ knowledge systems, they reveal the injustices of the Eurocentric concepts of intellectual property law, which includes ownership and commercial privileges. These systemic injustices arise from the long, dark chronicle of the Eurocentric fictions of terra nullius (no one’s territory), 3 gnaritas nullius (no one’s knowledge), 4 and lex nullius (no laws) and the demesne (public domain) being applied to Indigenous peoples. The Eurocentric knowledge systems and laws generated these fictional concepts to explain the unknown continent and peoples not mentioned in the Bible. 5 They were used to justified unauthorized access, taking, using, and uncompensated appropriation by Europeans of existing Indigenous territories and knowledge systems. They operated to deny any legal protection to the Indigenous inhabitants’ knowledge. 6

These systemic and cognitive injustices toward Indigenous knowledge systems were crafted by the tendentious constructs of Eurocentric diffusionism, 7 colonialism, 8 racism, 9 and cognitive imperialism. 10 Together they formed the core of Eurocentrism 11 and its intellectual property regime. 12 Eurocentrism is a constructed knowledge system created in Europe to establish its invidious universality and superiority of European thought. Its universalism assumed and validated cultural and cognitive imperialism and incorporated the belief in the inequality of race and the subordination of non-European knowledge systems, languages, and cultures. Eurocentrism’s hegemonic universalism excludes rather than includes. It was designed to replace and acquire other knowledge systems through a process of epistemicide, 13 which generated the concept of the vast public domain.

Imagination tends to be associated with the ability to generate ideas in the mind about things that cannot be perceived with the senses, including alternative or fictional realities. It is connected to diverse mental processes, including learning, meaning making, and creativity (Zittoun and Cerchia, 2013). Importantly, as Kind and Kung (2016) have pointed out, imagination has at least two seemingly contradictory functions. On the one hand, it is necessary to learn about the world as it is or was and to acquire new knowledge through (re)construction (Salis and Frigg, 2019)—in sum, to gain an understanding of social reality. On the other hand, imagination serves as a form of freedom from (Kind and Kung, 2016), or even resistance to, reality. Fulfilling this second function, imagination can serve as a reservoir of ideas protected from the challenges posed by various forms of rationality (Freud, 1958; Hairston, 2016) and can give rise to novelty and change. The ability of imagination to facilitate escape from reality by mentally generating alternatives, whether those are fictional worlds, utopian, or dystopian futures (Stoetzler and Yuval-Davis, 2002), is key for many social change processes, especially for social movements (Hawlina et al., 2020). Together, these two functions enable individuals to both know reality and to possibly change it.

Recently, research in the cognitive sciences has focused on a specific dimension of the second function: imagination as future thinking or “prospection”—the mental processes involved in constructing scenes of the future or new experiences (Gilbert and Wilson, 2007; Szpunar et al., 2014?; Thomas, 2019). The mental processes of “future event simulation” (Szpunar and Schacter, 2018) appears to share a common brain mechanism with memory, that is, the simulation of past events and the imagination of fictional worlds (Mullally and Maguire, 2014). This link raises important questions for the role of imagination in transformative change.

In a letter to online shop Patowl, the Ministry identified printed t-shirts that carried designs mimicking the labor-intensive hazme si puedes (“do me if you can”) embroidery of the Zapotec Indigenous people of the community of San Antonino Castillo Velasco, Oaxaca.

Further, Culture Minister Alejandra Frausto demanded a “public explanation on what basis it could privatize collective property.”13 However, Mexican Indigenous communities have few channels to seek legal remedy from Zara, Anthropologie, and Patowl or any legal deterrence from subsequent acts of appropriation. They must instead turn to public pressure as a source of accountability.

Intellectual property and human rights make strange bedfellows. Or, at least, so one would have thought until recently. Within a context of globalization and the increasing commodification of content, intellectual property and human rights are interacting in a variety of fora in unexpected ways. The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' (2) rights to protection and ownership of culturally specific "properties," (3) including arts, sacred works and knowledge, biocultural knowledge, ethnobiological knowledge, and cultural expressions. Participants in the ongoing theoretical debates decidedly differ over whether intellectual property rights are the appropriate mechanism by which such cultural works or embodiments should be protected. Some authors argue for a new legal regime specifically designed for indigenous peoples to protect and benefit from the expressions, knowledge, and works of their culture. (4) Others argue that property laws themselves should be sufficient. (5) Still others argue that natural resource laws can serve as a vehicle for the protection of cultural properties from exploitation by third parties. (6) Problems commonly outlined by these authors are significant, and dislodge some of the rooted legal operatives of intellectual property laws. (7)

However, if one deals with intellectual property exclusively as a subject matter, rather than a bundle of specific legal operatives established in international and domestic legal systems, the inclusion of indigenous peoples' cultural and scientific knowledge, expressions and artistic and literary works fits squarely within that realm. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership (as evidenced even by the use of the term "intellectual properties"). (8) But whatever their origins, the fact remains that those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, particularly in light of increasing globalization of markets and commodification of content, is to deny indigenous peoples both a powerful legal shield and a powerful legal sword. It is essential that, when found inadequate or inapposite, intellectual property laws are not discarded, but rather adapted to accommodate indigenous situations.