There are many reasons for Native Americans, and especially Native American women, to rejoice at the nomination of Rep. Deb Haaland (D.- N.M.) to serve as Secretary of the Interior. Rep. Haaland, an enrolled member of the Pueblo of Laguna, who also has Jemez Pueblo heritage, is one of the first Native American women to be elected to Congress. Prior to her election in 2019, she was chair of the State of New Mexico Democratic Party, active in local politics and community organizing and the owner of a small business. She is a single mother, who struggled, often living paycheck to paycheck, to educate herself and her daughter. Rep. Haaland will need to make her voice heard on such urgent problems as poverty, domestic violence, water rights, treaty enforcement and access to health services disproportionally affecting the Native American population. But there may be reason to hope that her role in overseeing Indian Country and the Bureau of Indian Affairs will also result in better protection of Native American cultural resources, which remain vulnerable to exploitation. More vigorous enforcement of federal statutes designed to protect Native American cultural property would be an important step in this direction. An impetus for more significant change would address the inability of our current intellectual property regime to protect intangible cultural resources.
We have previously written about the failure of traditional copyright and trademark law to protect indigenous culture globally and the need for special legal protection. Like other indigenous populations, Native Americans have long struggled to protect their cultural property, which includes not only tangible artifacts but intangibles such as stories, language, ceremonies, songs and symbols.
Two federal statutes in particular offer protection for certain types of Native American cultural property.
The Native American Graves Protection and Repatriation Act (NAGPRA), enacted in 1990, 25 U.S.C. Section 3001 et seq., requires federal agencies and museums receiving federal funds to repatriate or transfer from their collections certain Native American cultural items – human remains, funerary objects, sacred objects and objects of cultural patrimony – to lineal descendants, and to Indian tribes, Alaska Native Corporations, and Native Hawaiian organizations. NAGPRA also provides procedures for the planned excavation or inadvertent discovery on federal or tribal lands of human remains, funerary objects, sacred objects and objects of cultural property. According to Wikipedia, since the Act was passed, “… the human remains of approximately 32,000 individuals have been returned to their respective tribes. Nearly 670,000 funerary objects, 120,000 unassociated funerary objects, and 3,500 sacred objects have been returned.” However, the law has been criticized on numerous grounds. For example, determining who defines Native American identity has been problematic, and the statute does not provide for self-recognition.
The Indian Arts and Crafts Act of 1990 as amended by the Indian Arts and Crafts Enforcement Act of 2000 (collectively, “IACA”), 25 U.S.C. Section 305 et seq., is a truth-in-advertising statute. It prohibits a person from directly or indirectly offering for sale, selling, or displaying for sale, a good “in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization . . .” 25 U.S.C. Section 305e(b). While in theory IACA reserves to Native Americans the right to keep imitators out of the market and thus the right to profit from their own authentic products, there are disagreements about its effectiveness. Technical amendments have made some improvements in who has standing to sue and the procedure for enforcement. The reality remains, however that there has been little to no federal enforcement of IACA.
A recent civil suit provides an example of cultural appropriation. In April 2020 the nonprofit Sealaska Heritage Institute (SHI) sued Neiman Marcus and related companies in federal court in Alaska, alleging that a "Ravenstail Knitted Coat" sold in store and online for more than $2500 violated IACA. The suit also alleges infringement of copyright in a robe called "Discovering the Angles of an Electrified Heart.” The robe was created in 1996 by the late artist Clarissa Rizal, who was named a National Heritage Fellow by the National Endowment for the Arts. SHI is the exclusive licensee of the copyright. The suit also alleges false designation of origin under the Lanham Act and corresponding provisions of state law. According to the attorney for SHI, the case is the first time in the U.S. that an entity has been sued for copyright infringement of a traditional pattern. According to SHI’s news release:
Ravenstail weaving is a unique, intricate and highly complex geometric art style invented by Native people of the northern Northwest Coast. Existing written and traditional evidence supports the manufacture and use of Ravenstail robes by the Tlingit, and the use of blankets in this weaving style by the Haida, Tsimshian and Sugpiaq/Alutiiq tribes. Contemporary weavers of these tribes, such as Haida weaver Evelyn Vanderhoop, also highlight the claim to this weaving tradition based on oral history passed down from generation to generation.
After jurisdictional challenges and a motion to dismiss arguing, inter alia, that the term “Ravenstail” is not legally protected, on December 31, 2020, it was announced that the case will be settled. SHI President Rosita Worl stated:
We are grateful for the amount of public attention this lawsuit and issue have received…One of our goals was to put a national spotlight on this issue, and the widespread interest in this story indicates to us that the public is as concerned as we are about protecting our cultural heritage.
Had the claims in the Neiman Marcus case been fully litigated, the plaintiffs might have prevailed on their copyright claim because the traditional design was fixed in a tangible medium of expression. However, much of Native American heritage has no tangible form, and neither IACA nor NAGPRA provide any protection for stories, funerary ceremonies, traditional knowledge, language or other intangible attributes. Likewise, copyright law protects individual authors and does not extend to communal resources, nor does it address property that has been handed down through the generations. Patent and trademark law are similarly problematic. For example, the novelty requirement in patent law will prohibit protection of most intangible cultural property, which typically is passed down through the generations. Trademark law’s requirement of commercial use will foreclose its use to keep property out of the market altogether. For a more complete discussion of these and related issues, see “Living Heritage, Stolen Meaning: Protecting Native American Cultural Resources Through the Right of Publicity,” 20 UIC (University of Illinois at Chicago) Rev. Intell. Prop, L31 (2020).
An interesting solution to the problems of protecting intangible cultural property problem was proposed in the article referenced above – namely, the creation or modification of state right of publicity statutes that would recognize Native American rights in tribal law and custom and create communal remedies for cultural appropriation:
Appropriation and unauthorized commercialization of Native American cultural resources robs tribes of the ability to author and control their own identity, to determine for themselves which aspects of that identity are and are not for sale. The right of publicity evolved specifically to protect this ability; it could be employed to help bolster the Native American appropriation claims that Western intellectual properly has for so long ignored. Id., at 45.
While this is an interesting proposal, the decades long history of states’ right of publicity legislation suggests this will not be a quick solution, even in states with a meaningful Native American population advocating for such change.
It is interesting to note that UNESCO has just announced 29 additions to its Representative List of the Intangible Cultural Heritage of Humanity, adding such diverse cultural traditions as sauna culture in Finland; wine horses in Spain; camel racing in the United Arab Emirates and Oman; and knowledge, know-how and practices pertaining to the production and consumption of couscous in Algeria, Mauritania, Morocco and Tunisia. UNESCO also maintains a List of Intangible Cultural Heritage in Need of Urgent Safeguarding, which, in addition to providing international recognition, offers opportunities to apply for funding.
Whether Rep. Haaland’s appointment will be the impetus for providing more meaningful remedies to Native Americans for appropriation of their communal heritage remains to be seen.