Seed Keepers and Sovereignty

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By Professor Victoria Sutton

December 01, 2024

“We cared for our corn … as we would care for a child; for we Indian people loved our gardens, just as a mother loves her children.”

—-Buffalo Bird Woman, Hidatsa Seed Keeper (1917)

Guest Opinion. The first Thanksgiving whether it is Plymouth, Massachusetts or Jamestown, Virginia, the food that was served was traditional food provided by the regional Tribal Nations. The original documents describe the Plymouth Colony feast as a “feast of freshly killed deer, assorted wildfowl, a bounty of cod and bass, and flint, a native variety of corn harvested by the Native Americans, which was eaten as corn bread and porridge.” Traditional food of Native Americans shared with the first colonists. The historical and tragic pathway that followed that first Thanksgiving which led America to forcibly remove Native Americans to reservations and destroy their connections and knowledge to these traditional foodways happened over the next two hundred years. Now, a renewal is underway to restore traditional food by asserting Native Nations’ sovereignty over their traditions of food.

Sovereignty in international law signals the exercise of power over people and territory and the right of self-governance for a nation-state. Native Nations in the United States have sovereignty, with some diminishment as a “domestic, dependent nations,” but there is still significant sovereignty over territory, health, safety and citizenship. As part of that, “food sovereignty” is the assertion of control and self-determination over the food traditions and health of the citizens of Native Nations in the United States.

There is also a significant decolonization part to food sovereignty for Native Nations. The past reservation food commodity distribution program, better described as “rations” were flour and oil basics. This deviation from a traditional diet of nature derived plants and animals led to a drastic change in health and a loss of traditional ecological knowledge of these foodways. Sometimes there was no food at all. Much of these rations in the reservation era were sold by corrupt Indian Agents and managers to ready buyers for cheap commodities, leaving Native Americans confined to reservations with no other resources to obtain food, starving.

Further, forced removals from homelands to reservations meant a change in ecology and a change in plants. In oral histories, the Western Cherokee Nation brought seeds from their Georgia, Tennessee, Alabama and North Carolina homelands to plant in their reservation lands in Oklahoma. The Seed Keepers made sure that the three sisters seeds came with them — squash, beans and corn. Today, they still protect and propagate the same or similar line of seeds that they brought with them in the late 1800s.

The Seed Keepers

The indigenous practice of keeping seeds is seen throughout the world. Subsistence farming requires replanting from the previous year’s seeds. Seed Banks have become important to Native Nations’ renewal efforts of their food sovereignty practices.

Laws to Protect Seeds

If a museum stored heritage seeds that were associated with the sacred practices of a Tribal Nation, today; is there a law that would be most useful for the Tribal Nation to obtain these heritage seeds? The Native American Graves and Repatriation Act (NAGPRA) would give the Tribal Nation (if federally recognized, now), to make a legal claim for repatriation of their cultural objects, and in some cases seeds may be sacred objects.

Cultural items means a funerary object, sacred object, or object of cultural patrimony according to the Native American traditional knowledge of a lineal descendant, Indian Tribe, or Native Hawaiian organization.

Calling a living relative, like a sacred seed, for example blue corn for the Hopi Nation, an “object” is an objectionable term, but we are left to analyze this type of case limited to the statutory and regulatory language.

Another threat to traditional heritage seeds is the genetic drift from other plants that could contaminate traditional varieties. For example, wild rice considered sacred to the Anishinaabeg Tribes (Ojibway), has been threatened by the University of Minnesota’s genetic engineering program for rice. Rice tends to be more highly susceptible to germ seed genetic contamination, and so needs higher protection. It became so risky that Bayer Crop Sciences discontinued its program of genetically engineering rice, ending with a $750 million settlement for contamination of rice varieties. The White Earth Band of Ojibway passed at least one ordinance for the protection of manomin (wild rice) considered sacred to the Tribe and is part of their origin story and the reason they live where they now reside. This ordinance gives rights to manomin for its existence in its traditional form.

The Enola Yellow Bean case also suggests that cultural appropriation of seeds can be economically costly. One farmer in Colorado decided to patent a yellow bean he found on a vacation to Mexico. He simply selected the yellow beans among a variety of colors and patented them in the United States. He was then able to grow the seeds, sell them, and block the importation of the traditional farmers in Mexico who were exporting the seeds to the United States. Although they were the long-time protectors of the seeds, they were taken and patented in the U.S., taking their own property rights to the seeds. The patent was granted in 1999 but was not cancelled until 2011. The United States Court of Appeals for the Federal Circuit (almost always the court of last resort for patent appeals), held that the claims of the Yellow Bean patent were invalid for being obvious, and anticipated by the traditional knowledge and genetic resources of indigenous peoples and traditional farmers in Mexico. The patent was cancelled January 25, 2011.

Legal tools for protecting sacred seeds

In summary, NAGPRA in many cases, tribal ordinances to give seeds rights and even patent protection in some cases can be used to protect sacred seeds for food traditions and used as a way to assert sovereignty over traditional foodways. Three hundred years after the first Thanksgiving recognizing the resilience and importance of food traditions to self-governance of Native Nations, the health and well being of Native America is being renewed.

To read more articles by Professor Sutton go to:  https://profvictoria.substack.com/ 

Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.