The Hopi music project is an example!

To give an example of how restorative justice might work to repair Institutional abuses of Indigenous cultural expressions, I now turn to a case study involving Columbia University’s Center for Ethnomusicology and its efforts to repair the illicit appropriation and abuse of ceremonial sound recordings from Hopi and other Indigenous communities. This particular restorative effort is still ongoing, but it provides a useful illustration for how restorative justice might function in context.

Between 1929 and 1968, Laura Boulton, an early ethnomusicologist and collector, traveled around the world making recordings of Indigenous peoples and other local communities. The self-proclaimed “Music Hunter” recorded nearly 30,000 recordings over the course of her career.226 Boulton released numerous albums containing recordings from this collection with multiple record labels, apparently without securing permission from the Indigenous communities or individuals with whom she worked.227 Then, in 1968, Columbia University purchased her collection of recordings in a deal estimated at $1.4 million (in 2023 dollars), providing Boulton with a named professorship and an annuity.228 Columbia used the recordings as research collateral for academic grants over the next five decades, forming a research center for the study of world music based on them and one of the most prestigious ethnomusicology PhD programs in the country.229

But, as Columbia Ethnomusicology Professor Aaron Fox has explained, the arrangements made between Boulton, her record labels, and Columbia University lacked important stakeholders. It appears Boulton never made any agreements with her Indigenous informants or their communities that would have allowed Boulton to lawfully reproduce, derive new works from, or distribute the recordings to the public.230 And yet her commercial production of Indigenous ritual material would seem to directly violate the IP and cultural rights laws, protocols, and norms of the Indigenous communities in which she worked, not to mention the common law rules of the day governing soundrecordings.231 Further, the cultural creativity she captured was poorly organized and poorly documented, and the catalogues, liner notes, and other materials she derived from the recordings often misrepresented the ceremonies she documented and failed to include basic identifying information, including the correct type of song, the originating Indigenous community, the performers, and the appropriate owner of each track.232 Boulton’s actions of course mirror those of many other collectors and Institutions of her time, and the problems that plague her collection are similar to those facing many Institutional collections of Indigenous cultural creativity today.

In 2003, Professor Fox decided to take responsibility for the Center’s complicity in the misappropriation and abuse of the Indigenous creative materials in the Boulton collection. The Center sought and received grant funding for Fox and a growing team of Indigenous scholars to begin discussions to return ownership and control over the respective recordings to their communities of origin.233 In doing so, these scholars worked within Indigenous communities to understand, among other things, the nature of the materials Boulton had taken, the harms her appropriations and Columbia’s abuses of the recordings had caused, and how the Indigenous communities expected Columbia to repair any damage done.

During numerous conferences and conversations with various stakeholders in the Hopi Tribe, for example, Tribal political and cultural leaders identified specific harms resulting from the appropriation and public dissemination of Hopi cultural creativity by Boulton and other researchers. While it would be impossible to make any causal connections, Tribal leaders knew that groups like the Boy Scouts of America, as well as several fraternal organizations, publishers, record labels, and others had obtained Hopi ceremonial expressions through collectors and Institutions like Boulton and Columbia. These organizations reproduced them, distributed them, performed them, and derived new creative works from them, causing considerable shame and frustration to the community and costing the Tribe significant time and money to police.234 Hopi academics like Professor Lomayumptewa Ishii noted that the ways collectors organized and narrated Hopi culture resulted in the development of unfavorable federal policies toward Hopi people.235 Many Hopi people also perceived renderings of Hopi ceremonial expressions in mainstream media, much of it likely derived from publicly available museum or archival materials, as hurtful and offensive. Products ranging from comic books to women’s shoes illicitly and incorrectly depicted Hopi katsinam and other important cultural figures and symbols.236 Tribal members worried that children would be confused about which sources of knowledge in their community were authoritative when confronted with alternate narratives available on the internet or through public-facing Institutions. Hopi religious and political leaders, concerned about future appropriations, have now closed their villages to the public during ceremonial periods out of fear of ceremonies being further appropriated and abused outside of Hopi control. The closing of villages to outsiders during public ceremonies is particularly hurtful because exclusionary acts like these go against the philosophy of Hopi.237

In addition to describing the harms caused to the Hopi community by unwanted and unauthorized appropriations of Hopi culture, Tribal members also outlined their vision for the future of the Boulton materials going forward. As I have discussed elsewhere, local stakeholders were not immediately unanimous on who should hold the copyrights in these materials.238 However, there was some general consensus on how these materials might be circulated under local Hopi law and protocol.239 These conversations revealed at least four preliminary categories of cultural expressions, including who should have ownership over each kind of material and who could access the recordings. The table below is not intended as a comprehensive or exhaustive restatement of Hopi governance of song and other forms of cultural expression, but it provides a glimpse into how conferencing can help victims and offenders in a restorative justice process design remedies that help restore ownership and access structures that in turn reduce or eliminate harm from illicit collecting and preservation activities going forward.

Having engaged in conferencing with Tribal stakeholders over the harms to the Hopi community from Boulton’s and others’ appropriations and the laws, protocols, and standards of care the community expects going forward, the Columbia team was faced with the challenging question of how to use the legal tools available to carry out the desires of the community going forward and to repair any damage caused by the Institution and its community.241