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    January 22, 2024 HUMAN RIGHTS

    Advancing International Intellectual Property Negotiations to Protect Indigenous Cultures

    By Makalika Naholowa’a

    This past fall, the U.S. Patent and Trademark Office (USPTO) issued an uncommon request for public comment and notice of Tribal consultation regarding protections for Native American culture and traditional knowledge in the intellectual property system. This effort is a part of the USPTO’s work to develop U.S. positions on legal instruments being negotiated at the intellectual property arm of the United Nations (UN). Several legal instruments currently under negotiation could usher in an era of mutually beneficial collaboration and exciting innovations between Indigenous people and other parties, public and private. U.S. support for Indigenous rights in these international processes would offer hope to all Indigenous people for the future of these instruments. For Native Americans, there would be additional cause for optimism that urgently needed legal changes in the United States could be enacted to protect Native American cultures and related Indigenous human rights. 

    Indigenous people from around the world contribute to work at the UN to develop international legal instruments that clarify Indigenous human rights. These instruments can take numerous forms, including declarations, recommendations, best practices, toolkits, treaties, or international agreements. The UN also provides important spaces for Indigenous people to advocate for action by nations in their countries that implement such legal instruments. Both achieving agreement to international legal instruments and implementing action at the national level can require extensive time and advocacy, as diverse interpretation, conflicting laws, competing priorities, and uneven political will all can pose significant challenges to progress. Without instruments and implementing measures, however, UN-level victories regarding human rights can ring hollow, as Indigenous human rights threats and abuses continue, posing existential threats to Indigenous cultures and communities. 

    Under UNDRIP, Indigenous people must provide free, prior, and informed consent before nations take actions impacting their human Rights.

    Under UNDRIP, Indigenous people must provide free, prior, and informed consent before nations take actions impacting their human Rights.

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    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: 

    1. 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. 
    2. 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). 

    These negotiations are a continuation of efforts ongoing at the WIPO IGC since 2009 and can result in meaningful legal instruments that set international norms and guide the implementation of laws in countries, including the United States, which is participating. Within the U.S. government, the USPTO takes the lead among other federal agencies and coordinates and develops U.S. positions on issues before the WIPO IGC. To inform its positions, the USPTO is asking for both public comment and holding Tribal consultations with Tribal governments, Tribal members, Native Hawaiians and their representatives, and inter-Tribal organizations. Public comments are due in January 2024 and written comments following Tribal consultation meetings from Native peoples, governments, and organizations will be due in February.

    Among the broad issues being considered, the USPTO is asking Native people to provide feedback on fundamental issues being negotiated in the WIPO IGC, including possible definitions of traditional knowledge and traditional cultural expressions, parameters that should be placed on the scope or term of protection of TK and TCEs, and whether TK and TCEs that are widely known to the public should be subject to any protections at all. Developing these core concepts and appropriate protections in U.S. law to advance Native human rights is critical, and U.S. political will in the WIPO IGC process may well be determinative of whether there is a successful outcome and, in turn, whether adequate reforms to U.S. law will be forthcoming. At the same time, reaching an agreement on these international legal instruments in a manner that both achieves the aims of the UNDRIP, is reasonably practical to implement, and is palatable to a diverse polity will no doubt require creativity, skill, and iteration.

    As Native people, allies, and the U.S. government continue to work on these issues, one challenge will be the longstanding, acute exclusion of Native people in the legal profession and the intellectual property bar in particular. In the United States, Native Americans are the most underrepresented racial group in the legal profession. The number of Native American lawyers with experience practicing in intellectual property matters may be less than 25. Across the entire U.S. legal academy, there are less than five Native American professors whose scholarship centers on intellectual property, and that number was lower five years ago. 

    As a result of this exclusion, there is a deeply constrained, overburdened, and under-resourced community of experienced lawyers with the legal and cultural competence to do this work well and lead the legal efforts to develop viable solutions. That said, after generations of under-resourcing and exclusion in many professional communities, Native people are conditioned to tackle formidable challenges with small but mighty teams resourced with two fish to feed the masses. But there is in this story a call for all in the profession to reflect on the importance of inclusion. Everyone can contribute to improvement, from every part of the legal pipeline from those that influence admissions standards and testing to law school admissions professionals to licensing bodies, to hiring partners and managers, to clients making decisions about who gets business and therefore the tickets to thrive in law firms where the vast majority of lawyers practice. Inclusion and capacity building are critically important in this area. The cultural integrity and human rights of more than 574 peoples, and their distinctive contributions to the richness of our national heritage, are at stake. 

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    Makalika Naholowa’a

    President of the National Native American Bar Assocatiation (2023-24)

    Makalika Naholowa’a is president of the National Native American Bar Association (2023–24) and executive director of the Native Hawaiian Legal Corporation.