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Colonizing Fraud: The Jimmie Durham Dilemma

There are plenty of un-enrolled Indian artists who have the background to challenge the gatekeepers of Native identity – Jimmie Durham is not one of them.

Buzzwords have a shelf life because they begin to shed meaning from the time the cultural elite in the relevant community adopts them. “Decolonization” may be getting to that level of stale where it quashes original thought rather than, as originally intended, forces it.

A problem for us is knowing the “relevant community” when anybody who presumes to speak for circa five hundred tribal organizations about anything is likely to have their legs cut off or at least most of their hair. Cherokees are suspect because of our role in the process some take to be colonization—the pre-buzzword term being assimilation.

Our attitude has always been, as our Mohawk relative Robbie Robertson wrote in song, “take what you need and leave the rest.” If you think about Robertson’s line in term of colonists and indigenous, it pretty well upends the understanding of “assimilated” because both parties to the cultural collision are thinking that way.


“Colonized” parts company with “assimilated” because it introduces power in a way that produces a zero-sum game or worse. Worse because the zero-sum game lacks an exit ramp.

The definition of zero-sum game is if one party wins the other must lose. Mathematically, it’s a riff on a discovery by our indigenous cousins to the south, the Mayans, who opened a lot of conceptual doors when they beat the Europeans to the abstract idea of zero. The sum of all the goods in a zero-sum game is always zero because a positive gain by any player is shown as a negative loss to another player.

Since it must always mean loss to the colonized without any offsetting gain, “colonized” is always a bad situation to be avoided, even for people who have wallowed in assimilation for fun and profit.

Turning art into money is a capitalist enterprise. I’m a writer who took a long time to develop a cash flow from writing and I know musicians and craftspeople in the same boat. We hold the identity of artists because we do what we do whether or not it sells. One skinny winter, I had the thought I could deal with the holes in my clothing by stuffing in paper—my rejection slips—and tell myself my art was keeping me warm.

The markets bring together artists and persons with disposable income. If the markets didn’t exist, the artists would do well to invent them. If you had media of exchange before the colonists showed up, then the markets are not in essence colonial.

If all you had was barter, then your artists had to swap for necessaries between social occasions that might be called rendezvous or pow wows, when you could swap with strangers.

Are media of exchange “better” than bartering? I think so, but the argument to prove it is complex and subsumes so many value judgments that it’s more—pardon the expression—profitable to go with your gut.

This is so because the markets are voluntary. In the more popular ones, there are so many volunteers on the artist side that getting space is a challenge and so many on the buyer side that getting a place to park is an issue and the lines for food and drink get long. If you think capitalism is colonial and colonial is bad then you are privileged in not having to dive into the scrum.

You must concede the capitalism issue to get to Jimmie Durham because the essence of his fake Indian identity is that he has monetized it among the non-Indians who populate more of the buyer side than Indians do.

Durham does not present an issue of assimilation because no matter how you define “Indian,” he is not an Indian by any standard but self-identification, which is no standard at all.

He can’t be an assimilated Indian if he was never an Indian and I’ll take his word that he opposes colonization, at least when he is not the one doing it.

Notice that even though I’m Cherokee I’ve slipped into the generic term “Indian.” That’s on purpose, to make the point that because Durham has no tribal connections he could have picked on anybody. Cherokees get more than our fair share of the wannabe trade because there are so many of us and so many have geographically separated from our communities.

My point is only to caution my friends that they are vulnerable to being Durhamed, because I am forced to acknowledge that Durham has made himself a Cherokee problem. Only Cherokees are the gatekeepers of Cherokee bona fides.

Now I step out into naked opinion and if you disagree with this opinion, then you need to step back and re-analyze the Durham problem in accordance with your own ideas.

I believe the right to monetize a tribal name is a collective right, not an individual one, for two reasons.

First, an Indian is only an Indian in relation to a tribal community. Those of us who move away attenuate that relationship to varying degrees but if we break it entirely, all we have left is the fiction that blood carries culture.

Second, what represents tribal culture—both in style and in quality—is not an individual decision. Ward Churchill might still be playing Indian (he did pick on other tribes in addition to Cherokees) if he had not let his representation get so far out of hand that the tribes he faked started looking at his blood to determine if he had family ties so strong they were stuck with him.

Churchill’s assertion that anybody who was physically present in the World Trade Center when it came down was as much a cog in the capitalist machine as Adolf Eichmann was in the Nazi death machine was so preposterous nobody would claim him and legitimize his remarks as Indian. That includes people who regard capitalism as a death machine.

Nobody was saying Churchill could not express an opinion and nobody is saying Durham can’t be an artist. What they can’t do is claim to represent Cherokee culture because they are not Cherokee and no Cherokee community has adopted their representation.

I can understand a museum or a market not wanting to kick over the beehive of opinion on how Indian identity ought to be determined. I cannot understand the hands-off attitude when there is absolutely no claim to indigenous connections beyond self-identification.


To accept naked self-identification against the opinion of tribal communities is to admit that you, the museum or market, are willing to charge a premium for something that owns no claim to objective reality.

There are plenty of un-enrolled Indian artists who have the background and the cultural chops to challenge the tribal governments as gatekeepers of identity. Jimmie Durham is not one. To endorse his fraud is to profit from it, to pass his work off as having a cultural value it does not have.

This, incidentally, is why the Indian Arts and Crafts Act does not violate Durham’s free speech right to claim he is Cherokee. Free speech does not protect fraud. People get prosecuted every day for spinning tales about their products that are not true to part customers from their money. They are not privileged to steal in this manner because the method of stealing includes speech. An armed robbery also includes speech.

Fraud always includes speech. Fraud laws are not unconstitutional. And Jimmie Durham could always assert truth as a defense if he has any evidence of entitlement to the Cherokee name.

Steve Russell, Cherokee Nation of Oklahoma, is a retired Texas trial court judge and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.