American Indian and Tribal Intellectual Property Rights

by Robert J. Miller, Professor, Lewis & Clark Law School, Portland, Oregon

Excerpt from the article:

American Indians, Alaskan Natives and their tribal governments are extremely interested in a wide array of issues that might fit within the rubric of intellectual property law. This article will briefly highlight some of these subjects. The argument for IP protection regarding other more speculative issues have not yet been recognized by courts, but they are being raised and developed at this time.

Any discussion of issues regarding federally recognized tribes and their members has to begin with the understanding that tribes and their citizens have a political, government-to-government relationship with the United States so that actions the federal government takes that helps or harms tribes do not raise equal protection questions. The United States also has a trust responsibility towards tribes and Indian people and has a legal obligation to protect these entities in many different settings. This trust responsibility might arguably extend to IP issues.

Indian Arts & Crafts Act

In 1935, Congress enacted the Indian Arts & Crafts Act which created an Indian Arts & Crafts Board in the Interior Department to promote and protect Indian artistic endeavors as part of tribal economic development.

standards for the use of the trademarks, to charge for licenses to use the marks, and to register the marks with the U.S. PTO and assign them to Indians and tribes free of charge.

The Act protects Indian works of art by creating felony criminal sanctions for, among other things, counterfeiting a Board trademark, and by creating civil causes of action for tribes, the U.S. Attorney General, and Indian arts and crafts organizations, which include treble damages, punitive damages, attorney fees, and injunctions, against anyone falsely representing that goods are Indian made.6 The Executive Branch has enacted regulations pursuant to this Act which extend this federal trademark protection to Navajo all-wool woven fabrics, Alaskan Native hand made products, and Navajo, Pueblo and Hopi silver and turquoise products.

Commentators have opined that this Act and its protection for “Indian products” could possibly be given a broad reading by courts and be used to protect items such as traditional seeds, cultural ideas and expressions, and property other than just the usual works of arts and crafts.

Download the entire article: American Indian and Tribal Intellectual Property Rights (pdf)

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