Indigenous Peoples’ Intellectual Property
There are two kinds of property under the law: real and intellectual. Just like there are two kinds of people: natural and juridical.
Land is real property. Inventions are intellectual property.
We are natural people. Corporations are juridical people.
All people, whether natural or juridical, are combinations of nature (real property) and nurture (intellectual property) — memes and genes.
I started IP² Foundation to focus on indigenous peoples’ intellectual property — their memes —through working with both natural and juridical people. IP² aims to solve problems of indigenous IP appropriation through IP protections.
IP² was born out of my work with Alianza Arkana in Pucallpa, Peru, 2L summer of a dual degree in law in international development at Tulane Law School in New Orleans.
New Orleans unique in the U.S. for not only its culture and character but also its legal system. It is laissez faire, sure, but more interestingly for a student of international law it is in the only state in the United States with a civil law system. All the other states use common law.
The Louisiana legal system is weird, but perfect for me to study applied anthropology, via law and international development, focused on alleviating poverty among ayahuasca-endemic indigenous tribes in the upper Amazon because the countries touching the upper Amazon also use civil law.
Together with One Small Planet Foundation, a family foundation in The Mushroom Farm, IP² is working in a mini-factory, gallery, and education foundation, and legal defense fund for the Shipibo-Conibo IP of kené art called Kené Rao.
Kené Rao has both real and intellectual components — both physical and digital elements — embroidery machines, fabrics, educational event space, and a digital studio for product photos and podcast interviews.
Together with Vine Ventures, a venture capital firm on the cutting edge of consciousness culture, IP² is working in an ayahuasca farm (with other crops too, like chacruna and piri piri, yucca and sangre de drago) in Santa Clara (in Pucallpa, not California) cultivated in a co-op co-owned by its Shipibo-Conibo operators called RAODAO. Rao means medicine in Shipibo. DAO means corporation in crypto. RAODAO is a vehicle for developing the most popular Shipibo-Conibo IP: plant medicines.
These two IP² projects, RAODAO and Kené Rao, focus on two kinds of IP: plant medicines and art.
Plant medicines and art are the main sources of revenue for Shipibo-Conibo people. But there are a lot of people who are not Shipibo-Conibo making a lot more money than Shipibo-Conibo people off of Shipibo-Conibo plant medicines and art markets without paying royalties or licensing fees. Shipibo-Conibo IP is heavily appropriated and IP² is working to change that.
You will find appropriation of indigenous peoples’ intellectual property running rampant all over the world.
Indigenous IP Appropriation in Art
When an androgynous model strutted down the New York Fashion Week catwalk wearing a geometric patterned eye-popping indigenous-inspired dress, controversy bubbled across the Internet.
A popular blog, Native Appropriations, called out the dressmaker, KTZ, for copying a Crow design from Indigenous designer Bethany Yellowfeather, who got it from her grandmother.
These kinds of appropriations fuel both high fashion and low: Coachella bros in Native American headdresses and basic bitches in Aztec crop tops yell dubstep war cries in high-noon sun dance reverence at music festivals everywhere.
Why? For one, the money is good. Indigenous art can be big business. The Indian Arts and Crafts Commission estimated that sales of native art in the United States totaled $1 billion annually 10 years ago. In light of recent interest, it’s likely higher today. In the global context, with an estimated 370 million indigenous peoples across 90 countries, sales of this kind of art total tens of billions of dollars per year. So where does the money do? Much of it goes to people who are not indigenous.
A Vietnamese craftsman in Seattle made $500,000 dollars annually producing fake “Native Art” until legal action from the Federal Trade Commission brought him down.
An auction in Paris saw 24 ancient Hopi katsinam sell for $530,000 to an anonymous American buyer. The managing partner of Skadden Arps, Paris, on of the world’s top law firms argued the case to stop the auction, but unsuccessfully.
75–80 percent of all art displayed and sold as “native” in Alaska is not actually made by Alaska Natives at all according to the Alaska Department of Commerce and Economic Development. Half of all “Native Art” sold in the United States is not native-made.
This diverts funds from already disenfranchised demographics. The United Nations’ State of the World’s Indigenous Peoples (2009) sets the scene:
The situation of indigenous peoples in many parts of the world continues to be critical: indigenous peoples face systemic discrimination and exclusion from political and economic power; they continue to be over-represented among the poorest, the illiterate, the destitute; they are displaced by wars and environmental disasters; the weapon of rape and sexual humiliation is also turned against indigenous women for the ethnic cleansing and demoralization of indigenous communities; indigenous peoples are dispossessed of their ancestral lands and deprived of their resources for survival, both physical and cultural; they are even deprived of their very right to life. In more modern versions of market exploitation, indigenous peoples see their traditional knowledge and cultural expressions marketed and patented without their consent or participation.
Inserted into this maelstrom with saving grace like The Little Dutch Boy’s finger in the dike comes art. As humanity moves deeper into the technological womb, the commodity fetish around “primitive” gets stronger. The increasing scarcity of natives (indigenous groups are disappearing at an alarming rate) creates value, and from that morbid value-add comes income potential for the very people disappearing.
Some self-commodification of indigenous identity has proven profitable for many indigenous groups. Indigenous peoples can benefit from taking active roles in the inevitable commodification of their own identities through creating art and asserting legal rights in the art market. They win, in other words, when they develop a brand.
Many Indigenous communities already rely on art for a primary source of income. Among southwestern tribes in the United States, arts and crafts were a primary source of income for about 85 percent of all families. But to many indigenous peoples, art is more than just a source of income. One native artist described it as a source of self-esteem and identity within the native community. Indigenous art is insurance against time’s eraser, a reminder for future generations like family heirlooms, and a revitalization of indigenous culture.
Hollowell’s opening quote in The Market for Native Arts and Crafts captures the view:
My people will sleep for one hundred years. When they awake, it will be the artists that give them back their spirit.
In Heart of Darkness, rivets hold the world together. Rivets keep Marlow from losing his mind in the indigenous world. Rivets, for Joseph Conrad, were the objects that best symbolized civilization. If we flip the script into a tale of Indigenous person taking the opposite journey, downriver into the teeming morass of the city, art is rivets. Fixating on traditional dress, songs, dances, patterns, and masks provides a rock in a raging river.
Ok, what does this mean for the non-indigenous artist who wants to incorporate indigenous elements in art? Contemporary artistic expression incorporating indigenous elements should be celebrated against the backdrop of colonization and its suppression of indigeneity. Maybe the Coachella bros are not wrong: they do it for the love.
As it is here, so it is with most-all legal issues: good people fall on both sides of the law. Appropriation happens, but it has justifications.
Here are a few case studies from the law.
Navajo Nation v. Urban Outfitters
On May 21, 2012, the Navajo Nation filed suit against Urban Outfitters and its subsidiaries Anthropologie and Free People for advertising and selling goods under the “Navajo” and “Navajo” name and mark. The Navajo plaintiffs alleged six counts: (1) Trademark infringement of the Navajo’s own NAVAJO trademarks pursuant to § 32 of the Lathanm Act; (2) Trademark dilution pursuant to § 43 of the Lanham Act; (3) Unfair competition and false advertising pursuant to § 42 of the Lanham Act; (4) Violations of the Indian Arts and Crafts Act (IACA); (5) violations of the New Mexico Unfair Practices Act; and, (6) violations of the N.M. Trademark Act.
Among the 20 Urban Outfitters goods the Navajo Nation named as violators in its complaint were gems like: the “Navajo Hipster Panty,” for those hot mornings by the estate pool before Coachella at the Polo Club, a “Techno Navajo Quilt Oversized Crop Tee,” and the favorite of controversy, a “Navajo” flask. Urban Outfitters sold its Navajo goods online, in catalogs, and in physical stores throughout the United States and internationally.
The Navajo Nation claimed that its own NAVAJO mark was being infringed because it has already become famous (a key element in the legal argument) and inherently implied Najavo origin (another key element). Known by the name “Navajo” since at least 1849, the Navajo registered their NAVAJO trademark in 1943. Currently, they have 86 registered NAVAJO-incorporating trademarks.
Outside of the Navajo lines, Free People and Anthropologie’s brand images revolve around on appropriations and celebrations of native products and styles. From the brand names themselves to products like Free People’s “miniature size tipi for cats” worth a thousand words.
The most salient part of Navajo Nation v. Urban Outfitters for us here is the Navajo Nation’s IACA (Indian Arts and Crafts Act) claim. The court stated that the IACA is “a truth-in-advertising law” designed to prevent products from being marketed as Indian made when they are not in fact made by Indians. The Navajo Nation claimed that Urban Outfitters unlawfully misrepresented that its products were “Indian products” within the meaning of the IACA. See next page for the IACA definition of “Indian Products.”
The IACA authorizes injunctive relief (stopping or compelling action) treble damages (3X money multiplier), punitive damages, and attorney’s fees for any Indian, Indian tribe, or Indian arts and crafts organization who brings a successful claim against a violator. That is:
“A person who, directly or indirectly, offers or displays for sale or sells a good, with or without a government trademark, in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian tribe or Indian arts and crafts organization.”
It has provisions enabling claims against manufacturers, wholesalers, and other parties involved in the distribution chain of the misrepresented product. And it has a criminal provision that makes knowingly misrepresenting Indian products a felony. Temporally limited, the IACA only applies to arts and crafts made after 1935.
The IACA defines “Indian” broadly as a person who (a) is a member of an Indian tribe; or (b) is certified as an Indian by and Indian Tribe.
It leaves the definition of ‘Indian product’ up to the Secretary of the Interior, which defines 11 categories of ‘Indian products’: jewelry and related accessories; baskets and related weavings; other weavings and textiles including feather blankets and star quilts; beadwork, quillwork, and moosehead tufting, including on bags and boots; apparel made or substantially decorated by an Indian; regalia, including headdresses; woodwork, including flutes, talking sticks and shaman staffs; leatherwork and fur including horse masks, saddles, and arm bands; pottery and ceramics; sculpture, carving, and pipes including katsina; dolls and toys like yo-yos and stick game articles (like lacrosse sticks); and fine art and painting.
So how effective is it? From 2006 through 2010, the Indian Arts and Crafts Board (IACB) received 649 IACA complaints. Most of the complaints and violations involved retail stores. Out of the 649, the IACB identified 148 violations. Of these, it referred 117 for further investigation. According the Department of Justice, no federal prosecutions were initiated from those investigations.
Since the IACA passed, the federal government has only filed five IACA cases against violators. Of those five, three were successful cases. Of those three, only one saw the IACA charge stick. The other two were United States v. Wayne Eagleboy (D.S.D. May 3, 2000), in which an artist, who was not a member of a federally-recognized Indian tribe, faced one count of possession of eagle feathers in violation the Bald and Golden Eagle Protection Act, one count of possession of hawk parks in violation of the Migratory Bird Treaty Act (MBTA), and two counts of IACA violations, but was ultimately found guilty for only the feather charges and received a sentence of 1 year probation; and United States v. Jerry Lee Boose (E.D. Mich. Mar 19, 2002), in which the defendant faced two IACA violation counts, one count of embezzlement and theft from a tribal organization, and one count of mail fraud, and was sentenced only for the mail fraud. The third was United States v. Rose Morris (D.N.M. Dec 5, 2007).
Knowledge dispels ignorance: education is the preferred solution. The U.S. Government Accountability Office (GAO) reports, “Federal and state agencies have relied largely on education efforts rather than law enforcement actions to curtail misrepresentation of Indian arts and crafts.” It goes on to say that the efforts are hampered by ignorance of the law and competing law enforcement priorities.” The GAO report identified only one private party who brought a successful civil IACA claim.
All this makes Navajo Nation v. Urban Outfitters more relevant. The federal district court in New Mexico where the case played out held that the Navajo Nation had a sufficient claim of likelihood of confusion as to source and endorsement under the Lanham Act and plausible claims for misrepresentation under the IACA. The court ordered mediation, but the mediation was unsuccessful. The case is going to trial in mid-2015. It could produce a “seminal ruling” on the effectiveness of trademark law in protecting indigenous art. On a practical level, the case provides a present lesson: the key to the Navajo Nation’s success was proactive registration and employment of numerous “Navajo” trademarks. In short, they built their brand.
Without a solid foundation in commerce, the Navajo Nation’s claims would have collapsed. For tribes without such an extensive history of engagement with colonist society, and indigenous peoples still unassimilated, foreign concepts of “copyrights” and “trademark laws,” make Navajo-level name protection less readily available.
Proactive trademark registration can benefit any tribe. Resources for help creating tribal corporations and registering trademarks can be found at the end of this chapter.
Rights to territory and self-determination remain principal concerns. But lawsuits for territorial rights and self-determination are more difficult and more multilaterally complex than copyright and trademark suits. When litigating territorial rights, indigenous peoples fight multinational natural resource corporations with revenues larger than most countries employing some of the highest-paid and reputable law firms in the world. When litigating rights to self-determination, indigenous peoples go up against States. The fighters are mismatched. But in the ring of indigenous art, the fighters are more even. Instead of countries and multinationals, the parties are artists, fashion brands, and auction houses. If you are an indigenous artist or practitioner looking to register a trademark, file an IACA complaint for misrepresentation, or bring a civil action under the IACA, look to the recipes section at the end of this chapter. If you are a non-indigenous artist looking to incorporate indigenous elements into your art but don’t want to infringe on trademarks like Urban Outfitters, look to the resources at the end of this chapter for a database.
FTC v. Lyngoc
Remember the Vietnamese craftsman making $500,000 annually producing Native-inspired crafts in Seattle? This is his case. In 1996 the FTC filed an action in federal district court in Alaska against Ivory Jacks fossil mammoth and fossil walrus ivory trading company (fossil mammoth walrus ivory because non-Natives are prohibited from purchasing new ivory, harvested by natives, by the U.S. Marine Mammal Protection Act (MMPA) — which has the unfortunate effect of causing mining in archaeological sites), its owner Native art dealer Kurt Tripp, Vietnamese carver Ngoc Ly, and Northwest Tribal Arts, co-owned by Tripp and Ly. The duo produced several thousand Native-style carvings and sold them as “Native-made,” produced by a pair of fictional Eskimo carvers they made up called “Ron Komok” and “Eddie Lyngoc.”
Through the artifice of Ron Komok and Eddie Lyngoc, Tripp sold the carvings Ly produced wholesale, to retail outlets throughout Washington and Alaska, accompanied by fake biographies describing Ron Komok’s Native American heritage and training in the ways of tribal carving, and hashtags like literally #nativemade. The pieces sold at retail for $120 to $4,000 or more, averaging $250 and $500 for the most popular. Several thousand pieces sold. Tripp and Ly’s annual business revenues were in the multimillions.
Meanwhile, the real Ron Komok slept homeless on the streets in Seattle, while Tripp and Ly ran amok with his name. They paid him once to use it, since he was an Alaska Native from Nome, but they didn’t pay him royalties.
The FTC settled their case with Tripp and Ly with the following consent decrees: a $20,000 fine for each of Tripp and Ly; a prohibition from falsely representing any art object as Native made; a proactive requirement for Tripp and Ly to take proactive steps confirm with their suppliers the origins of objects and validate authenticity of any pieces sold as “Native-made” with a written biography of the artist; a requirement to conspicuously label all Native-made objects valued at $100 or more as “Native-made”; and a requirement to display a prominent poster, where customers can see it, stating that only those items marked as “Native-made” are made entirely by Native Americans.
But problems with synonyms are rampant. “Native-made” signs in stores exist alongside others in a masquerade parade: “Native-style,” “Native-inspired,” “Made in a Native Alaskan Village,” “Designed by an Alaska Native artist,” “Inspired by the indigenous cultures of the great state of Alaska,” switching faces like a Bian Lian in the Sichuan opera. The economics of it seem unstoppable. Native people cannot meet the market demand for Native art, which increases prices, attracts competition, and grows the market for cheaper copies and counterfeits.
Tight regulations on inputs for ‘native art’ like walrus tusks, spiraling narwhal horns from the unicorn of the sea, and eagle feathers; like sustainable harvesting of charismatic megafauna by Indigenous tribes; complicate the supply chain bringing Native-made art to the Native Art marketplace. Native artists bear some costs of the labyrinthine bureaucratic form-filing needed for the certification process and legal contracts of sale, and some costs get passed on the consumers, driving up prices of authentic “Native-made” art.
Overcoming the marketing obstacle, indigenous peoples can participate in the rampant global growth of the “commodification of ethnic identity” by commodifying themselves. This is rocky ground, and caution is needed, but the peril of inertia urges the journey onwards. Riley argues that indigenous peoples are using “whatever means are available” while waiting for national and international laws that provide adequate protections. Indigenous peoples, themselves influenced by basic economic principles like profit maximization, do in fact take advantage of indigenous stereotypes in order to sell the most goods (like carvings) and services (like shamanic healing) to tourists consuming cultural experiences.
In fact, ironically incorporating gives tribes more actionable rights, and easier ones to exercise effectively, than they had as sovereigns, semi-sovereigns, or unrecognized tribes. Tribal corporate codes and internal rules can draw on tribal law, which, as Malinowski the great anthropologist reported in 1926, rivals Western legal systems in comprehensiveness — at least among Trobriand Islanders. The more legal entities indigenous people create, the stronger their legal agency and better the trademark, copyright, and privacy protections that result.
The Silver Hand
We were driving to the Grand Canyon and we stopped at a gas station selling “Hopi Indian” crafts. My friend said, “Oh, should we get one?” and I said, “Do you really believe they are real? We’re at a gas station right now.” We didn’t buy anything.
The Silver Hand program in Alaska is considered by many to be the most effective “Native-Made” authentication trademark in the United States.
In its physical form, the Silver Hand is oval tag or sticker with a curved “AUTHENTIC NATIVE HANIDCRAFT FROM ALASKA” on its top half and a bony silver hand logo on its bottom half. In its legal form, the Silver Hand is a state-sponsored registry program, free of charge, for any person residing in Alaska who can prove one-quarter or greater Alaska Native ancestry and produces Authentic Native Handicrafts.
The Silver Hand defines an “Authentic Native Handicraft” as “an article made in the state which is composed wholly, or in some significant respect, of natural materials, and which is produced, decorated, or fashioned by an Alaksa Native.”
Just like “Native-Made” signs breed look-alikes, so does the Silver Hand tag. Lack of public education for shop-owners and retailers and inadequate enforcement of violations by government agents causes many to consider the Silver Hand “virtually meaningless.” Native artists in remote areas have problems accessing the program and its materials, causing geographical discrepancies in program enrollment. The FTC works intermittently to remedy the situation. In 2002 it initiated a public awareness campaign. Regardless, the Silver Hand remains considered one of the most successful programs certifying authenticity of Native-made in the United States. Grassroots certification programs can provide practical solutions for developing systems of protection most where remoteness and lack of financial resources limits capacity for legal actions like trademark registration.
Authenticity is a value-add. According to the FTC, people are willing to pay more up to 30–40 percent more for authentic Native-made goods. Contextual information accompanying art increases its value. That value-add is why Tripp and Ly created Ron Komok and Eddie Lyngoc. Consumers buy the story.
So, if you are an indigenous artist, what can you do? You can create more value for your work by including information about the piece’s origin and register your work through certification programs like the Silver Hand if you can. Some resources can be found at the end of this chapter. If you are an artist looking to make indigenous-inspired art, clearly label your art as “Native-inspired” or use a similar synonym in order to avoid illegal misrepresentation.
These are just a few case studies to give you an idea of the scope of the problem. Between appropriation of indigenous peoples IP in art and plant medicines, we have our hands full and our heads filled with visions.