Owning the sun: can native culture be protected through current intellectual property law?

• Author: Kelley, Jill Koren

1. Introduction

   Intellectual property laws in the United States encourage great inventors, artists and performers to share their inventions, crafts and artistic expressions with humankind. (1) These laws illustrate the value associated with safeguarding original creations within a protective legal framework. (2) Typically, a specified artist or inventor must be aware of the duration of protection for their innovations as well as the control intellectual property laws impart upon their expressions. (3) However, this Western concept of a limited monopoly over a symbol, song or ceremony contradicts Native American conceptions of cultural property and what it means to them and their existence both as a sovereign community and as an individual. (4)

   This paper asserts that while American intellectual property laws have been significant resources to preserve personal expression, the scope of these laws may be insufficient to adequately safeguard the unique structure of American Indian cultural property. (5) The struggle for preservation of Native American identity is intimately linked to physical land, religious art and symbols, stories, music and medicines. (6) This paper explores how federal intellectual property laws apply to Native American cultural property, as well as the limitations the current legal regime encounters when applied to such property. This writing will also propose modifications to the legal regime in order infuse the gaps between intellectual property laws and Native American cultural property. In doing so, it will examine the principles embodied in the concept of droit moral, or 'moral rights', how European states have incorporated this concept into their intellectual property laws, and how these principles may further the evolution of cultural protection through domestic law.

2. The Significance of Culture for Native Americans

   Recently, a major debate has emerged in the field of intellectual property over the issue of the protection of Native American cultural property. (7) The need for adequate safeguards of traditional knowledge, genetic resources and folklore (TKGRF) (8) by means of intellectual property is not a new concern for Indian peoples, but as Native voices have grown stronger in the international human rights arena, the demand for the protection of cultural property has been heard louder by federal governments. (9)

   1. The Concept of Cultural Property

      There is a White River Sioux legend that somewhere among the Badlands of South Dakota hides a small cave. (10) Inside this cave, an elderly Sioux woman has lived for thousands of years. (11) Dressed in rawhide, she works on a blanket strip which will eventually be a part of a buffalo robe. (12) Her companion, a large black dog named Shunka Sapa, constantly watches over her as she makes her blanket strip from the quills of porcupine. (13) Near them, an earthen pot filled with wojapi, a traditional Indian berry soup, slowly cooks above an eternal fire. (14) Every now and then, the old woman slowly rises from her chair and goes to the pot to stir the wojapi. (15) In the moment her back is turned away from Shunka Sapa, he gnaws at her work and pulls the porcupine quills out of her blanket strip. (16) This way she never makes any progress, and her quillwork remains a project forever unfinished. (17) The Sioux people say that if she ever does finish the strip, at the very moment the last quill completes the design, the world will come to an end. (18)

      This Sioux tale is not unlike countless other Indian legends which weave symbolism, ritual and religion into important cultural metaphors and messages. (19) This story may also fold into a metaphor that the existence of Indian culture will survive through a lengthy yet continuous balance between respect of cultural property and effective legal mechanisms to protect sovereign interests. The power and substance of such stories embody important and powerful spiritual principles that figure prominently in tribal, family and band-specific oral and cultural traditions. (20) Like many Indian stories, the author of this Sioux legend is unknown; its ownership interests exist as cultural property. (21)

      Cultural property usually refers to "prehistorical and historical objects that significantly represent a group's cultural heritage, whether the group is a tribe or other localized community, a cultural or ethic group, or a nation qua political entity." (22) Legal scholars characterize the range of cultural property as "all of the tangible materials ... tangible forms of culture produced by humans to adapt to and exercise control over their environment ... the technological and other associated knowledge considered significant by the members of a culture." (23)

      James A. Nason describes cultural property as an antiquated concept with a definition that has varied considerably over time. (24) Nason recounts the concept of cultural property of the ancient Western world, where such possessions were "essentially their politically centralized treasures, e.g., the 'treasure hoard' of King Priam of Troy, or the treasury collections of medieval European kings and emperors." (25) In these societies, cultural property was important community patrimony; its loss through military defeat could further destroy the sense of community to which it was tied. (26) The nature between a sovereign group and cultural property can "be represented by tangible cultural property, and demoralized or destroyed by the removal of such property, [this issue] continues to be an important ideological and property concept today." (27)

      However, cultural property in the context of Native American culture is wider-ranging than the Western politically-focused application. In its broad view, it includes all material and intangible knowledge considered significant to protect spiritual, social and artistic interests of a community. (28) Special Rapporteur Erica-Irene A. Daes, (29) an advocate for the realization of self-determination for indigenous peoples, lends guidance on why Native Americans are closely bound to the concept of cultural property: "Indigenous peoples regard all products of the human mind and heart as interrelated, and as flowing from the same source: the relationships between the people and their land; their kinship with the other living creatures that share the land." (30)

   2. Concerns for the Protection of Cultural Property

      When the balance between respect for cultural property and the legal safeguards surrounding these objects runs askew, tensions between property appropriators and property owners may intensify. (31) In 1999, the Zia Pueblo Indians of New Mexico voiced resentment over the unauthorized use of their religious symbol, an image of a crimson circle with lines extending outward in each of the cardinal directions--the same image which appears on the state flag of New Mexico. (32) This spiritual symbol of the Zia Pueblo, the Zia Sun, has appeared on food, buildings, automobile license plates and even public toilets. (33) The Sun symbol "reflects the pueblo's tribal philosophy, with its wealth of pantheistic spiritualism teaching the basic harmony of all things in the universe." (34) Isidro Pino, a leader of one of the tribe's religious societies, testified in a public hearing that knowledge of the Sun symbol "is a community property;" it is used in Zia sacred rituals ranging from childbirth to funerals. (35)

      In 1994, the Zia peoples demanded reparations for the state's use of their Sun symbol, requesting one million dollars for each year that the symbol had been used by the state on their flag and letterhead. (36) Although New Mexico had been using the Sun symbol since 1925, this sudden compensatory demand was triggered by a trademark application submitted by a Santa Fe-based motorcycle tour company which used the symbol in its logo. (37) The Zia peoples objected to the idea that private businesses might profit from the use of a symbol strongly identified with the community's religious practices. (38) While the situation was eventually addressed by the U.S. Patent and Trade Office (USPTO) through public hearings, the issue of whether patent and copyright safeguards have adequately protected Indian culture remains insufficiently answered in federal legislative response. (39)

      American Intellectual Property Law and Cultural Property

      While the significance of intellectual property continues to grow in our vastly expansive global market economy, innovations in policies for the protections of Native American cultural property have been less than prolific. (40) In a discussion of their relationship to Indian cultural property, we must first explore the doctrines of intellectual property most commonly applied to Native American cultural property--copyright, patent and trademark law. (41)

      Copyright, Patent and Trademark Law

      United States intellectual property is based on an "economic incentive" theory; the intellectual property laws "impart a limited monopoly upon [the work of] the author and creator, thus maximizing their protection of the economic investment of the work." (42) Such protection allows the "economic philosophy behind the clause empowering Congress to grant patents and copyrights ... the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare." (43)

      The rights allocated through copyright laws apply solely to original works, fixed in a tangible medium of expression by individual authors, for a limited period of time. (44) A copyright grants to the owner the limited rights to: (i) reproduce the work; (ii) display or perform the work; (iii) make derivative works; and (iv) distribute the work. (45) These rights may be abrogated by particular exceptions such as the "fair use" doctrine and compulsory licensing. (46) Recent amendments to U.S. copyright laws have extended narrowly-defined rights of attribution and integrity to creators of visual works of...