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An Approach to New Law to Protect Cultural Property Rights

Native American cultural properties -- names, medicines, songs, histories, materials, symbols, designs, languages, places ? are not sufficiently protected and need to be.

Native nations can safeguard cultural property rights in tribal, federal and international law by articulating and asserting them, and by making a treaty with other Native Peoples.

Current federal Indian law does not adequately protect Native cultural property, even though numerous statutes and decisions contain important protections for cultural patrimony and resources.

Both domestic and international intellectual property laws are antithetical to Native cultural rights. Through them, corporations, schools, government agencies and individuals have appropriated Native cultural property as their own and secured national and international recognition of their "ownership" through copyrights, patents, trademarks, deeds and other mechanisms.

In addition to giving Native property to non-Natives, these mechanisms sometimes have been enforced against the actual Native owners.

Non-Native scientists, academicians and writers have profited from Native property and palmed off Native medicines, products and histories as their own, while the Native owners must pay to use or replicate them. Automobile manufacturers, breweries, clothing designers and food producers have taken Native names and images to market their consumer goods, all without recognition of Native cultural property rights or compensation for their use.

Various United Nations and World Trade Organization meetings over the past ten years have provided forums for theoretical tinkering with intellectual property law in order to accommodate "traditional knowledge," "cultural identity," "genetic resources" and "folklore" of Indigenous Peoples.

In light of this "progress" and bad paper, the wisest course of action is to avoid adopting the term intellectual property and its mechanisms altogether.

The first element of this approach toward new legal protections, then, involves Native Peoples changing the lexicon: from intellectual property references to cultural properties and cultural property rights.

The second and pivotal element involves each nation or related nations issuing a Declaration of Cultural Property Rights.

The declaration would list those cultural properties that are unique to the nation or its societies, clans, towns, moieties or other parts of the nation. Whether the listing would be spare or detailed would depend on what the nation wanted to be recognized and respected at the time of the declaration.

As important as the listing of the cultural property is the declaration that the nation's rights to the cultural property are prior and paramount rights. This language is used in federal Indian water law to recognize the original ownership or earliest use rights. Employing this term of art might help avoid any confusion about the right being asserted as of the date of the declaration.

Another aspect of the declaration should be a contextual note that all cultural property items identified belong to the nation or its component part as a whole, rather than to individuals, and could not have been alienated by any individuals.

This anticipates the defense by those who have appropriated the property that it was gifted or approved for use by one or another tribal person, or that the appropriator was adopted into the nation or tribal confidence and gained use rights. This also builds on the cultural patrimony definitions and provisions of the federal repatriation laws returning cultural property to Native Peoples.

The third element involves conveying the declaration to all appropriate federal entities, requesting that they apply the rule of respect and recognition or comity to the declaration and that they protect the cultural property through their own laws, procedures and practices.

Prime candidates for this are the Federal Trade Commission, Interior Department, Library of Congress and U.S. Patent & Trademark Office, in addition to other federal agencies dealing with cultural property covered in the declaration.

In meetings over the past decade, lawyers for each of these entities have expressed serious interest in this approach, primarily because they would have documents of reliance for their actions. Lawyers and courts love paper they can rely on and the declarations would represent tribal law and a right predating all other claims that may have been recognized prior to tribal notification.

The fourth element of this approach would be undertaken at the same time as the other three: Native nations can address the need for an international document of reliance by developing a Treaty Respecting the Cultural Property Rights of Native Peoples. Native Peoples have the sovereign power to make treaties with each other and have engaged in treaty making over countless generations.

A treaty among Native nations would be an international instrument, by definition ? the first recognizing and respecting Native cultural property. There is nothing in federal law to prohibit such treaty making, which should limit the potential for a credible challenge.

Native Peoples should only have to articulate what it is that needs protecting and transmit that information to the appropriate national and international entities, and should not have to compromise their sovereignty or contort their rights in order to fit into non-tribal processes.

Protecting cultural property through policy declarations and treaties with other Native Peoples. These are worthy exercises of Native sovereignty.