The absence of race in IP law leads to the normalization of knowledge as white and valuable

“Intellectual property’s economic structure is ‘always already’ raced,”42 because capitalism’s orientation to knowledge is always already raced. Betsy Rosenblatt, for instance, demonstrates about copyright law that “it rewards appropriation of materials perceived as primitive, raw, or ‘folk’ by purveyors of dominant culture, while punishing appropriation of materials that it associates with higher culture or views as already completed.”43 As such, copyright law operates as “the language of the colonizer.”44 Kara Swanson similarly shows about patent law that its “ideology of slavery reached into the technical bureaucracy of the patent office, an arena of law and of the administrative state frequently considered outside politics.”45 As such, patent law implicates “an ultimate claim of whiteness as intellectual property.”46 Knowledge, in both instances, is ordered in a manner that centers whiteness and its attendant estimations of the value of creation and knowledge. Trademark law too produces and entrenches visual economies of whiteness. Rosemary Coombe writes that trademarks “denied or downplayed the cultural and ethnic differences of some ‘Americans’” through “the medium of the consuming body and embodiment…of others whose claims to an American subjectivity were complicated by contemporary relations of subjugation.”47 Put differently, America’s visual culture, as constituted through trademark law, constituted whiteness as valuable by objectifying people of color. One way that the “scopic regime”48 of trademark law operated was through the articulation of people of color as primitive, i.e. from a time past. As Coombe puts it, in the late nineteenth and early twentieth centuries “we see preoccupation with the frontiers of civilization and the containment of the primitive.”49 In the sections that follow, I explore how Harjo and Blackhorse not only reinforce temporally based race discrimination by portraying Native Americans as primitive but also illustrate how the manipulation of time through legal procedure can advantage certain litigants over others, with considerable racial and colonial consequences.50