Owning the Sun: Can Native Culture Be Protected through Current Intellectual Property Law?
Kelley, Jill Koren, The Journal of High Technology Law
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.
II. 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)
A. 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. …