Correcting the Confidentiality Catch-22 of Indigenous Knowledge

Imagine a motion passes on a 6–3 vote: The City Council just certified the environmental impact report for a new housing development and approved the associated permits and licenses. The applicant, municipal planner, deputy city attorney (DCA), and the applicant’s counsel pack up their materials among a smattering of applause from supporters and resigned mutterings of the opposition. As they head toward the exit, the DCA and the applicant’s counsel pause to shake hands with you—the Tribal counsel—and other representatives of the Tribe.

“I’m glad we worked things out,” the DCA comments, and you nod. The environmental review process was a nightmare, from the moment you learned the initial project proposed to bulldoze two-thirds of a sacred site and disturb important nesting grounds. Yet you and your colleagues persevered through the consultation process and came to an agreement. The sacred site will remain undisturbed, the developer will implement mitigation activities during and after construction to protect the threatened species, and any artifacts uncovered will be immediately turned over to the Tribal Historic Preservation Officer.

The amicable resolution—based on real events—owes to the Tribe’s willingness to share its Indigenous knowledge (IK). IK, referred to by many other names, including traditional ecological knowledge, constitutes a body of information known about the local environment accumulated since time immemorial. Without access to this information, city planners otherwise would have remained unaware of the sacred site and presence of a threatened species.

This amicable resolution also owes to a legal carveout for culturally sensitive information in the California Public Records Act. Cal. Gov’t Code §§ 7927.000, 7927.005 (2023). Otherwise, the Tribe could not share its IK without fear of the information later being misused in contradiction to its customs and interests. Instead, the public version contained only a redacted and summarized version with detailed, sensitive information put into a confidential appendix to the environmental impact report.

Government Recognition of Indigenous Knowledge

Federal and state agencies increasingly acknowledge the value of IK for environmental protection and natural resource management. The information Tribal Nations provide can be key to determining environmental baselines, forecasting potentially significant impacts to natural resources, and developing effective mitigation measures. For example, these observations of the natural world are made over centuries, if not millennia, and can serve as longitudinal studies for how our climate is changing. Sharing sustainable forest management practices such as controlled fire—culture burning—is another salient example.

There has been, in recent years, a growing recognition of the value and importance of IK in environmental policy and land management decisions at both federal and state levels. This shift is evidenced by several key policy developments and regulatory changes that aim to integrate IK into decision-making processes. For example, in 2022, the Biden administration issued its Guidance for Federal Departments and Agencies on Indigenous Knowledge. Exec. Off. of the President, Off. of Sci. & Tech. Pol’y & Council on Env’t Quality, Guidance for Federal Departments and Agencies on Indigenous Knowledge 6, 19 (Nov. 30, 2022). The Guidance highlights lead agencies’ mandate to “make use of any reliable data sources” as relevant to IK’s inclusion and adds that lead agencies should “include Indigenous Knowledge as an aspect of best available science.” Id. The 2024 updated National Environmental Policy Act (NEPA) regulations also explicitly recognize IK as a form of “special expertise” and include IK as an example of “high-quality information.” 40 C.F.R. §§ 1501.8(a), 1502.15(b), 1506.6(b). Similarly, the Bureau of Land Management’s 2024 Conservation and Landscape Health Rule directs authorized officers to request Tribal Nations’ input into how their IK can improve the agency’s public land management activities. 43 C.F.R. § 6102.5(a)(6)(ii). Some state legislatures and agencies likewise expressed their commitment to incorporating IK into conservation and land management decisions. See, e.g., Cal. Fish & Game Code §1927.6(b); N.Y. Env’t Conserv. Law § 49-0113(j).

Appreciation for IK is growing around the globe. Jim Robbins, Native Knowledge: What Ecologists Are Learning from Indigenous People, Yale Env’t 360 (Apr. 26, 2018). To our north, Canada’s federal, provincial, and territorial governments are adopting statutory measures—both mandatory and discretionary—for incorporating IK into environmental review. See, e.g., Impact Assessment Act, S.C., 2019, c 28 art 22(1)(g) (Can.); Fisheries Act, R.S.C., 1985, c F-14 art 2.5(d); Yukon Environmental and Socio-economic Assessment Act, S.C., 2003, c 7, arts 39, 74(1).

What’s the Catch-22?

Despite the recognized mutual benefits of knowledge sharing, Tribal Nations and Indigenous peoples have good reason to retain tight control over their IK. The reasons are based in principle, cultural norms, and very pragmatic considerations. Public disclosure of sacred sites and critical natural resources can attract vandalism, theft, and worse. Would-be archaeologists and “pothunters” continue to desecrate sacred places and ancestors’ remains. See, e.g., Craig Childs, Pillaging the Past, High Country News (Apr. 28, 2008). Disclosure of information about natural resources can place tribes in a disadvantageous position when developing litigation strategies or negotiating with outside interests eager to exploit those resources. Indian Amendment to Freedom of Information Act: Hearing on S. 2652 Before the S. Subcomm. on Indian Affairs of the S. Comm. on Interior and Insular Affairs, 94th Cong. 16–17 (1976) (statement of Harley Frankel, Deputy Comm’r of Indian Aff., Dep’t of the Interior).

Moreover, the international community acknowledges Indigenous peoples and governments have specific rights to control their IK. Article 31(1) of the United Nations Declaration on the Rights of Indigenous Peoples (supported by, but not legally binding on, the United States) recognizes that “[Indigenous peoples] have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.” G.A. Res. 61/295, art. 31 (Sept. 13, 2007).

In the United States, the democratic precepts of governmental transparency and accountability clash with Indigenous data sovereignty and create a Catch-22 for tribes. Laws ensuring public access to government agency records means that IK tribes provide to federal agencies (like the U.S. Forest Service) must be made available to virtually anyone upon request. E.g., U.S. Fish & Wildlife, Tribal Consultation Handbook 24 (2018). Tribal Nations face a difficult choice: “[I]n going about the work of protecting cultural resources, tribes find themselves in a bind. The protection of one resource almost always requires the exchange of another: sensitive tribal information.” UCLA Sch. of Law, Native Nations L. & Pol’y Ctr., The Need for Confidentiality Within Tribal Cultural Resource Protection 5 (2020). “Tribes, knowing that departments must disclose agency-tribal communications at the submission of any FOIA request, may simply refuse to consult with the executive departments when they develop policies affecting trust resources.” Shannon Taylor Waldron, Trust in the Balance: The Interplay of FOIA’s Exemption 5, Agency-Tribal Consultative Mandates, and the Trust Responsibility, 26 Vt. L. Rev. 149, 193 (2001). However, specific carveouts for sensitive information about tribal cultural resources can strike an appropriate balance between both sets of interests.

Exemptions to Open Records Laws

Federal and state public records laws provide some exemptions that, in only very narrow circumstances, can apply to IK. FOIA, for example, offers nine exemptions, three of which are relevant: statutorily exempted matters (Exemption #3), trade secrets or commercial or financial information (Exemption #4), and deliberative process documents (Exemption #5). 5 U.S.C. § 552(b)(3)–(5).

Statutes offering limited protections under Exemption #3 include the Archaeological Resources Protection Act, 16 U.S.C. §§ 470bb, 470hh (archaeological resources at least 100 years of age); Cultural and Heritage Cooperation Authority, 25 U.S.C. § 3056(a)(1) (information relating to human remains or cultural items reburied on National Forest System land; and resources, cultural items, uses, or activities that have a traditional and cultural purpose, which a tribe provides under an express expectation of confidentiality); Federal Cave Resources Protection Act, 16 U.S.C. § 4304 (any “significant cave” as defined at 43 C.F.R. § 37.11); National Historic Preservation Act, 54 U.S.C. § 307103(a) (historic properties and traditional religious sites); and National Parks Omnibus Management Act, 54 U.S.C. § 100707 (“objects of cultural patrimony” within units of the National Park System).

Case law suggests the trade secret, commercial, and financial information exemption, Exemption #4, offers another pathway, albeit also in very limited circumstances. In Starkey v. U.S. Dep’t of Interior, for example, the U.S. District Court for the Southern District of California held that well and water-related information qualified as commercial or financial in nature. 238 F. Supp. 2d 1188 (S.D. Cal. 2002). The court specifically recognized public dissemination of those records could negatively impact the La Posta Band of Mission Indians’ ability to negotiate or litigate the question of its water rights. Id. at 1195.

The deliberative process exemption, Exemption #5, is less promising following the Supreme Court’s decision in Department of Interior v. Klamath Water Users Protective Ass’n. 532 U.S. 1 (2001). The Court in that case held that while documents prepared by outside consultants may qualify as intra-agency memoranda, those produced by parties advocating for their own interests do not. Id. at 1062–63.

Most states’ open records laws provide fewer, if any, protections for IK. Just two states have adopted explicit exemptions: California—home to 109 federally recognized and dozens more unrecognized tribes—and Washington—with 29 federally recognized tribes. California’s statutory carveout extends to records of Native American places, features, cultural, and sacred sites, as well as “archaeological site information and reports” obtained through government-to-government consultation at the state and local levels. Cal. Gov’t. Code §§ 7927.000, 7927.005 (2023). Washington’s exemption encompasses records of “sites of traditional religious, ceremonial, or social uses and activities of affected Indian tribes” and site information on traditional cultural places. Wash. Rev. Code Ann. § 42.56.300 (2)–(3).

Tribal Nations with trust and traditional lands in other states could still argue that public records exemptions for archaeological sites and resources should also apply to some forms of IK. These states include Arizona (Ariz. Rev. Stat. Ann. § 39-125), Georgia (Ga. Code Ann. § 50-18-72(a)(14)), Idaho (Idaho Code Ann. § 74-108 (1)), Iowa (Iowa Code Ann. § 22.7(20)), Kansas (Kan. Stat. Ann. § 45-221(36)), Louisiana (La. Stat. Ann. § 41.1609), Maine (Me. Rev. Stat. tit. 27, § 377), Maryland (Md. Gen. Prov. § 4-350), Michigan (Mich. Comp. Laws Ann. § 15.243(o)), Nebraska (Neb. Rev. Stat. Ann. § 84-712.05(15)), Pennsylvania (65 Pa. Cons. Stat. § 67.708(25)), South Dakota (S.D. Codified Laws § 1-27-1.5(13)), Utah (Utah Code Ann. § 63G-2-305(26)), Vermont (Vt. Stat. Ann. tit. 1, § 317(20)), Virginia (Va. Code Ann. § 2.2-3705.7(10)), and West Virginia (W. Va. Code Ann. § 29B-1-4(6)).

Also potentially applicable are state exemptions for information about rare or protected plant and animal species, such as in Colorado (Colo. Rev. Stat. Ann. § 24-72-204(2)(a)(X)), Georgia (Ga. Code Ann. § 50-18-72(a)(18)), Idaho (Idaho Code Ann. § 74-108(1)), Iowa (Iowa Code Ann. § 22.7(21)), Louisiana (La. Stat. Ann. § 41.4(20)), Maryland (Md. Gen. Prov. § 4-350), Massachusetts (Mass. Gen. Laws Ann. ch. 66, § 17D), Minnesota (Minn. Stat. Ann. § 84.0872), Pennsylvania (65 Pa. Stat. Ann. § 67.708(25)), Utah (Utah Code Ann. § 63G-2-305(26), Virginia (Va. Code Ann. § 2.2-3705.7(10)), and Wyoming (Wyo. Stat. Ann. § 16-4-203(b)(viii)). These provisions, however, are often subject to agency discretion.

Another avenue is any broad-based “good faith” exemption for information voluntarily submitted to an agency where maintaining confidentiality benefits the public interest. See, e.g., Or. Rev. Stat. Ann. § 192.355.

Stacking Up to Other Nations

California and Washington are ahead of the curve in the United States, but only keeping pace with two other former British colonies: Canada and Australia, which both provide robust protections for IK.

Canadian federal law provides both a general exemption in its Access to Information Act (ATIA) and more nuanced carveouts in environmental statutes. Legislatures in at least eight provinces and territories followed suit, with some notable aspects.

The ATIA establishes a blanket prohibition on disclosing records containing “information that was obtained in confidence from . . . an aboriginal government,” unless the First Nation consents or makes the information public. R.S.C. 1985, c A-1, art 13(1)–(2) (Can.); see also Can. Crown-Indigenous Rels. & N. Affs. Canada, Policy on Scientific and Indigenous Knowledge Integrity, arts 6.8, 7.4–7.5 (2019).

The Canadian Impact Assessment Act (IAA), generally analogous to NEPA, also prohibits disclosure of IK without written consent. However, there are three exceptions. The IAA prohibits disclosure except when (1) the IK is publicly available, (2) it is necessary for “procedural fairness and natural justice or for use in legal proceedings”—in which case the agency consults the IK provider and may establish conditions on use and disclosure—and (3) there is authorization in the prescribed circumstances—that is, it is agreed to beforehand in a specific situation. S.C. 2019, c 28, art 119 (Can.); see generally Impact Assessment Agency of Can., Guidance: Protecting Confidential Indigenous Knowledge Under the Impact Assessment Act. The Canadian Navigable Waters Act and Canadian Fisheries Act contain largely the same protections and limitations. R.S.C. 1985, c N-22, art 26.2 (Can.); R.S.C. 1985, c F-14, art 61.2 (Can.). Other Canadian agencies maintain policies stating their commitment to protect IK provided in confidence from unauthorized disclosure. See, e.g., Can. Nuclear Safety Comm’n, Indigenous Knowledge Policy Framework, art 2.1.3.

A survey of laws at the subnational level reveals interesting trends. In British Columbia, Nunavut, Nova Scotia, Ontario, the Northwest Territories, Yukon, and Alberta, the primary public records law contains a blanket exemption, in some cases discretionary and in others mandatory, where disclosure of shared IK could—either or both, depending on the jurisdiction—(1) damage intergovernmental relations between the province and certain public bodies, including an Indigenous governing entity (or aboriginal organization) or (2) reveal information received in confidence from one of those bodies. Relevant laws with discretionary exemptions include the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c 165, art 16(1) (B.C.); Access to Information and Protection of Privacy Act, S. Nu. 1996, c A-20, art 16 (Nvt.); Freedom of Information and Protection of Privacy Act, R.S.N.S. 1993, c 5, art 12 (N.S.); Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c F.31, art 15.1(1) (Ont.); Access to Information and Protection of Privacy Act, S.N.W.T. 1994, c 20, art 16(1) (N.W.T.). Public records laws containing mandatory exemptions include the Access to Information and Protection of Privacy Act, S.Y. 2018, c 9, art 68(1) (Y.T.), and Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c F-25, art 21 (Alta.)

These laws, such as British Columbia’s Freedom of Information and Protection of Privacy Act, may separately include a mandatory prohibition on disclosing information that could “harm the rights of an Indigenous people to maintain, control, protect or develop [their] cultural heritage; traditional knowledge; traditional cultural expressions, [or] manifestations of sciences, technologies or cultures.” R.S.B.C. 1996, c 165, art 18.1(1) (B.C.). Alternatively, refusing to disclose records on similar subject matter may be discretionary, as in Nunavut, Nova Scotia, Yukon, Alberta, and the Northwest Territories. S. Nu. 1996, c A-20, art 19 (Nvt.); R.S.N.S. 1993, c 5, art 19 (N.S.); S.Y. 2018, c 9, art 78(a) (Y.T.); R.S.A. 2000, c F-25, art 28(a) (Alta.); S.N.W.T. 1994, c 20, art 19(b) (N.W.T.).

The British Columbia and Yukon statutes prescribing each jurisdiction’s environmental review process prohibit disclosing IK provided in confidence, although there may be exceptions for situations akin to those detailed in the federal IAA. Environmental Assessment Act, S.B.C. 2018, c 51, art 75; Yukon Environmental and Socio-economic Assessment Act, S.C. 2003, c 7, art 121; Y.T. Env’t & Socio-econ. Assessment Bd., Rules for Evaluations Conducted by Designated Offices, arts 38–40, 42 (2010). Several provinces include similar exemptions for IK in other environmental protection and natural resource management statutes. See, e.g., Wildlife Act, R.S.B.C. 1996, c 488, art 100.3 (B.C.) (mandatory); Mineral Resources Act, S.N.W.T., 2019, c 23, art 63(1) (N.W.T.) (discretionary).

Notably, some provinces set a time limit on maintaining confidentiality. Nunavut and Yukon, for example, remove from protection information contained in records in existence more than 15 years. S. Nu. 1996, c A-20, art 16(3) (Nvt.); S.Y. 2018, c 9, art 68(2)(a) (Y.T.). But at least one definitively protects IK from that time limit on confidentiality. See, e.g., Mineral Resources Act, S.N.W.T., 2019, c 23, art 63(2) (N.W.T.).

Australian state and territorial laws offer exemptions for IK disclosure that share key similarities with their Canadian counterparts. Let’s look at four examples.

The Northern Territory’s Information Act prohibits public sector organizations (a term encompassing administrative agencies) from disclosing information about Aboriginal sacred sites and traditions without first seeking input from the relevant Aboriginal custodian, community, or group. Information Act 2002 (N. Terr.), ss 30(1)(c), 30(2)(c)–(d) (Austl.). The public sector organization may ultimately decide in favor of disclosure, subject to notifying the affected Aboriginal party. Id. s 30(3)–(4). A separate provision permits a public sector organization to shield information about Aboriginal sacred sites and traditions when it can demonstrate disclosure would not be in the public interest. Id. s 56. Additionally, the Northern Territory Aboriginal Sacred Sites Act distinctly prohibits agency staff from recording or communicating “information of a secret nature according to Aboriginal tradition,” enforceable by penalty or imprisonment. Northern Territory Aboriginal Sacred Sites Act 1989 (N. Terr.), s 38(1) (Austl.).

Queensland’s Right to Information Act references “section 29(2)” of two specific statutes, the Aboriginal Cultural Heritage Act and the Torres Strait Islander Cultural Heritage Act. These twin provisions proscribe the relevant agencies from disclosing, in documents, cultural heritage matters known to be of “secret or sacred nature” without the Aboriginal people or Torres Islanders giving their consent. Right to Information Act 2009 (Queensl.), sch 3, s 12(1) (Austl.).

The New South Wales Government Information (Public Access) Act establishes a presumption of public interest against disclosing information revealing traditional knowledge. Government Information (Public Access) Act 2009 (NSW), s 14, tbl 5 (Austl.). The statute also requires consultation prior to disclosing documents containing information on Aboriginal objects and places, as well information in plans of management about “places or items of Aboriginal significance.” Id. at sch 1, pt 12(4) (Austl.).

Tasmania’s Right to Information Act exempts information where disclosure is likely to adversely affect places of cultural significance. Right to Information Act 2009 (Tas), s 42(b). The statute also protects information where disclosure would be “contrary to the public interest.” Id. s 33(1). Criteria include when disclosure would “promote or harm the interests of [a] group of individuals” and when disclosure “would prejudice the ability to obtain similar information in the future.” Id. at sch 1, s 1(m)–(n). These exemptions are broad, but arguably inclusive of IK.

Taking the Next Step

This brief survey comparing the United States to foreign jurisdictions demonstrates two key points for Tribal Nations, policymakers, and legal professionals. First, there are many possible approaches to designing exemptions for IK. Second, enacting the necessary legislation is politically feasible in nation-states with histories of colonization similar to the United States.

The next step, from a scholarly perspective, is investigation into implementation and how effective the laws on the books are in practice. Expanding this research to encompass other former (and presently) colonized regions could also yield helpful insights.

The next step, from a pragmatic perspective, is for both the U.S. federal and state governments to take action to broaden their protection of IK from public disclosure. Legislatures should direct agencies to collaborate with Tribal Nations in piloting, testing, and refining IK exemptions in collaboration with Tribal Nations. Admittedly, prior legislative attempts to shield IK and other tribally sensitive information from public disclosure have not fared well. See, e.g., Indian Amendment to Freedom of Information Act, S. 2652, 94th Cong. (1976); Tribal Cultural Areas Protection Act, H.R. 6147, 118th Cong., § 10(g)(2) (2023). But this should not deter future efforts. Tribes also can begin taking immediate action to assert their data sovereignty. One option is to adopt tribal codes governing whether, in what circumstances, and under what conditions to share IK with local, state, and federal agencies.

Everyone benefits when tribes are willing to share their knowledge with the government agencies making decisions. Our environment, health, and well-being suffer when tribes, quite understandably, hesitate to do so. Importantly, neither prior failed attempts nor congressional gridlock should dissuade this effort. Tribal Nations understand the need to consider what impact our decisions will have seven generations into the future. Those who support tribal sovereignty must be in it for the long game, as well.