The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) offers an important example. UNDRIP is an instrument adopted by the UN General Assembly in 2007 and supported by the United States in 2011. UNDRIP’s purpose was to clarify the application of pre-existing human rights standards related to the specific needs and contexts of Indigenous people. A foundational principle upon which UNDRIP is premised is that Indigenous people must provide free, prior, and informed consent (FPIC) before nations whose jurisdictions contain their ancestral lands and communities take an action impacting their human rights. For the more than 476 million Indigenous people living in 90 countries around the world, UNDRIP and its expectations regarding FPIC are triumphs and represent an inflection point in the development of Indigenous human rights protections globally.
UNDRIP includes numerous provisions that address the rights of Indigenous people to protect and perpetuate their cultures and state duties to protect those rights. See, for example, Article 31 of UNDRIP, which states:
- Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
- In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.
Yet, in the United States, there’s been scant movement by the federal government to implement new legislation or regulations to protect these rights. Existing federal legislation like the Native American Graves Protection and Repatriation Act (NAGPRA), which requires federal agencies and institutions receiving federal funds to comply with numerous requirements regarding recordkeeping and handling of Native American remains and other cultural items, as well as the Indian Arts and Crafts Act (IACA), which prohibits the marketing and sale of goods falsely identified as Native American made, provide some help. Nevertheless, as is, the law is insufficient to protect Indigenous rights as outlined in UNDRIP and leaves Native American cultures highly vulnerable, allowing for extraction, use, capitalization, and abuse without specific notice to Native Americans, mutual benefit, nor free, prior, and informed consent.
Copyright law allows for the copying of traditional Native American histories, stories, songs, chants, prayers, dances, and designs. Copyright law also allows for the use of this cultural property for the creation of derivative, owned works without regard for Native American people’s rules, protocols, or traditions. Similarly, trademark law allows the use and registration of Native languages, symbols, and designs as trademark assets, though it has caused consternation in numerous newsworthy instances, not to mention deep concerns regarding the risk of consumer confusion about the Indigenous source or affiliation of such brands. Sadly, some Native people have even had to fight against the treatment of their languages as “dead” by the USPTO to afford their languages even similar treatment as English.
Like its intellectual property siblings, patent law allows for rights to inventions leveraging Native traditional knowledge and cultural property, without Native consultation or consent. Indeed, the perverse effect of current law is the more ancient and foundational the intellectual content is to Native people and their cultures, the more likely that law allows for use and exploitation. And in the worst cases, the content is capitalized as contemporary commercial intellectual property rights and weaponized against the Native people from whence it came to stop Native uses.
Unsurprisingly, because governments and their multinational corporate stakeholders have worked for decades to achieve increasingly harmonized intellectual property systems internationally, this is far from only a problem that Native Americans face in the United States. Indigenous people suffer it in their homelands around the world. Given the international nature of the problem, Indigenous people have advocated for international instruments that help within the UN’s intellectual property arm, the World Intellectual Property Organization (WIPO). Among those efforts is a WIPO Intergovernmental Committee (IGC) project to develop an international legal instrument regarding intellectual property, genetic resources, and traditional knowledge associated with the use of genetic resources. There is also separate, though related, work at WIPO to create one or more international legal instruments for the protection of traditional knowledge (TK) and traditional cultural expressions (TCEs).