Protecting American Indian Intellectual Property in the Twenty-First Century: The Case of the Cow Creek Tribe and Indian Motorcy
Struggles by indigenous peoples to preserve native property interests from within western legal systems, and in particular to assert native intellectual property rights, have been arduous. In recent years, however, these interconnected struggles have achieved significant inroads. The following discussion reviews recent developments in international human rights law and associated intellectual property rights law with particular reference to the efforts of one federally-recognized American Indian Tribe -- the Cow Creek Band of Umpqua Tribe of Indians in Oregon (the "Cow Creeks") -- to protect American Indian imagery from exploitation by a motorcycle company that markets its products under the name "Indian" along with imagery suggesting a connection to American Indian heritage.
During the first half of this century, one of the most popular brands of motorcycles in the world was manufactured in the United States under the name "Indian." 1953, however, was the last year a motorcycle was manufactured under the "Indian" trade name -- until this year. Beginning in the 1970's, there were numerous attempts to revive the Indian motorcycle and to gain control of the Indian motorcycle trademarks. Claims surrounding the revival of the Indian brand and new production of Indian motorcycles were eventually consolidated in a federal receivership proceeding (the Indian Trademark Case) in the U.S. Federal District Court in Denver, Colorado.(1) Because of the nature of the Indian Arts and Crafts Act of 1990, 25 U.S.C. ... 305a et seq., and regulations thereunder, specifically 25 U.S.C. ... 305e (IACA), the federal receivership court from the outset sought American Indian tribal involvement.
The Cow Creeks became involved in the Indian Trademark Case with encouragement from the federal Receiver. Their involvement, in addition to resolving certain issues arising under the IACA, had the potential to promote increased corporate responsibility in the use of Native American symbols for mass marketing purposes and to provide needed jobs and economic development for the Cow Creeks, their local community, and Native American communities nationwide. The Cow Creeks viewed their involvement in this federal case as a method to promote pride, dignity, and knowledge about Native American heritage. "We wanted people, when they see the `Indian' brand, to think about positive things like quality, durability and integrity," said Cow Creek Tribal Chairman Sue Shaffer.
Receivership assets have been sold (by the Receiver) to a consortium of Canadian companies now doing business in the United States under the name of Indian Motorcycle Company. This consortium has started to manufacture and sell the Indian motorcycle with only token involvement of Native Americans. The Cow Creeks, consequently, have filed a lawsuit against the Receiver and the Indian Motorcycle Company consortium.
The Relation between Intellectual Property Rights and Human Rights Law
International human rights law has its roots in a legacy of colonial conquest. It has a tendency to value individual and state rights at the expense of cultures and ethnic groups that are not full participants in state political systems -- the victims of systemic discrimination and oppression. However, the tools to overcome that discrimination and oppression are latent in international human rights law, and indigenous peoples and their advocates are beginning to discover those tools and wield them to create a better, more just world.
Intellectual property rights (IPR) law has a heritage that closely parallels international human rights law. It arose out of a public policy that exalted individual achievements, awarding concomitant rights to the intellectual accomplishments of individuals and charging the protection of such interests to the state. It consequently tended to diminish or ignore the accomplishments of groups lacking political standing within states. Numerous indigenous peoples' advocates have recently exposed the limitations of IPR law and have urged more communal, public trust-oriented alternatives to IPR law as ways to provide a more equitable accounting and compensation to indigenous peoples and traditional societies for the value of their intellectual and cultural traditions.
Yet the inadequacy of Western IPR law as regards indigenous knowledge can be exaggerated. Traditional IPR law is developing quickly in order to keep pace with rapidly evolving technology such as computer software, and such adaptations can, in turn, be adapted to protect evolving, communal indigenous knowledge in the international marketplace.
Critical analysis by leading scholars such as S. James Anaya, a specialist in international law, human rights, and Native American rights, also suggests that international human rights law is emerging as a potent tool that indigenous peoples can use to gain greater autonomy. As the larger struggle for autonomy is played out, international norms affecting the rights of indigenous peoples are unquestionably emerging and evolving.
The Cow Creek-Indian Motorcycle controversy is a revealing example of how the interplay between international human rights law and IPR law is developing increasing significance amongst American Indians in particular.
The Historical Struggle for Cow Creek Sovereignty
Many commentators have argued that peoples identified as "indigenous" are, on average, the single most disadvantaged peoples in the world today. Because many indigenous peoples, including the Cow Creeks, have been forcibly removed from their traditional homelands and may even be arrested for trespassing on them to hunt, fish, or gather for subsistence, many of them no longer live in a coherent community.
In 1854, the Cow Creeks became a landless people as the result of a treaty they entered into with the United States. The Cow Creeks have since struggled against long odds to retain their cultural integrity, identity, and sense of community. In 1982 they achieved a victory when the United States Congress formally confirmed in the Recognition Act that their tribe was a sovereign government as provided for in the Northwest Ordinance and the United States Constitution (Article 1, Section 8, clause 3 and Article VI, Section 2). The Cow Creeks are now attempting to buttress their political sovereignty through the United States legal system by asserting special intellectual property rights which they have by virtue of such sovereignty and the successes thus far achieved in protecting their cultural heritage.
North American Indians and the Case of the Cow Creek Band v. Indian Motorcycle
Until the past few years, North American Indians lacked a substantial, recognized framework within which to obtain recourse for the uncompensated exploitation of their intellectual and cultural property. But stiff criminal penalties now exist for either harboring or trafficking cultural objects in violation of either the Native American Graves Protection and Repatriation Act, 25 USC ...3001, et seq. (NAGPRA) or the Convention on Cultural Property Implementation Act, 19 USC ...2601, et seq., which implements the UNESCO Convention on the Means of Prohibiting and Preventing Illicit Import, Export and Transfer of Ownership of Cultural Property, 823 UNTS 231, 10 I.L.M. 289 (1971).(2) The IACA is a cousin to such recently-enacted legislation.
Legislative history indicates that statutes imposing penalties for violations of the IACA were drafted with the intent of giving the IACA the same force and effect as other emerging intellectual property laws. Gail Sheffield, a noted authority on the IACA, specifically suggests that the IACA can be read to create a new category of intellectual property -- Indian identity. She observes that this implied intent is buttressed by the IACA's statutory language, which provides that the initiation of a civil action and recovery of damages is available only to (1) an Indian who is a member of an Indian tribe, (2) an Indian arts and crafts organization, or (3) a tribe on behalf of itself. The non-Indian consumer is given no remedy under the IACA. Moreover, each of the parties that do potentially (providing all constitutional standing requirements are met) have standing under the IACA -- i.e., Indians -- are entitled to recover both punitive damages(3) and the greater of either treble compensatory damages or not less than $1,000 for each day on which the offer or display of merchandise that the public is misled to believe is of Indian origin is made.(4) Sheffield has observed that this $1,000 or more per day to each aggrieved party is neither compensatory nor punitive because it relates to the unauthorized appropriation of these parties' "property" -- their Indian identity.
In addition to the proscriptions imposed by the IACA (see 25 C.F.R. ...309.3) against the misleading use of the word "Indian" in connection with the sale of arts and crafts, both the United States Federal Trade Commission (FTC) and the United States Patent and Trademark Office have issued strong rulings prohibiting companies from selling or claiming ownership to names or trademarks using the word "Indian" if such uses would tend to mislead the public concerning who would benefit from the sale or marketing of such products.
The foregoing legal precedent has served to underpin a major lawsuit filed by the Cow Creeks against Indian Motorcycle Company and several affiliate companies in federal district court in Colorado.(5) Although this case is currently tied up in protracted litigation and the outcome remains uncertain, the claims brought by the Tribe have gained considerable visibility in the press and particularly in Indian Country. Most significantly, the Cow Creeks' claims have been endorsed by the oldest and largest representative of American Indian political interests, the National Congress of American Indians, which adopted a formal resolution at its 1999 Mid-Year Session (Resolution #VAN-99-007) which stated in pertinent part that the Cow Creeks' efforts have been "proper and commendable."
The Cow Creeks' claims against Indian Motorcycle Company and its affiliates are extremely detailed and allege numerous instances in which this motorcycle company and its affiliates have attempted to play off on traditional American Indian imagery and heritage to promote the sale of its "Indian" motorcycle and "Indian" motorcycle products.(6) To cite just one of numerous examples,(7) the Cow Creeks allege that the Indian Motorcycle Company defendants caused advertisements to be published in a widely-circulated American Indian newspaper featuring a photograph of Senator Ben Nighthorse Campbell on an Indian Motorcycle and referring to him as a "Native American icon," even though Senator Campbell has disavowed giving his permission to use his name or likeness in association with Indian Motorcycle.8 The argument is that this advertising by Indian Motorcycle Company misleads the public by falsely suggesting a connection between Indian Motorcycle and American Indians.
At the heart of this case, however, is the important assumption that by utilizing American Indian imagery to sell non-Indian products, Indian Motorcycle Company and its affiliates are stealing the intellectual property of all American Indians and interfering with efforts by American Indians to successfully enter this potentially lucrative market and thereby benefit the social, economic, and political vitality of American Indian tribes. This lawsuit is thus a prime example of how an indigenous group is asserting classic rights to intellectual property within the context of newly emerging human rights for indigenous peoples in the international legal arena.
The Cow Creek Band of Umpqua Tribe in Oregon is tapping emerging laws enacted to protect their heritage in order to more firmly secure associated intellectual property rights. Indigenous peoples throughout the world and their appointed representatives will increasingly be weaving such laws into strong advocacy positions, and the extent to which they successfully do so will reflect what has heretofore escaped their collective grasps: an objective, relatively universally accepted measure of their right to compensation for their intellectual property.
The authors wish to acknowledge and express their thanks for the editorial assistance of Mary Riley and Margo Stephenson.
References & further reading
Anaya, S.J. (1996). Indigenous Peoples in International Law. New York: Oxford University Press.
Cleveland, D.A. & Murray, S.C. (1997). The World's Crop Genetic Resources and the Rights of lndigenous Farmers. Current Anthropology 38, pp 477-516.
Dratler, J. (1994). Licensing of lntellectual Property. New York: Law Journal Seminars-Press.
Hitchcock, R.K. (1994). International Human Rights, the Environment, and Indigenous Peoples. Colorado Journal of International Environmental Law and Policy 5, pp 1-22.
Posey, D.A. (1996). Traditional Resource Rights: International Instruments for Protection and Compensation for Indigenous Peoples and Local Communities. Gland, Switzerland: IUCN.
Sheffield, G.K. (1997). The Arbitrary Indian, The Indian Arts & Crafts Act of 1990. Norman, OK: Oklahoma University Press.
Stephenson, D.J., Jr. (1994). A Legal Paradigm for Protecting Traditional Knowledge. In Intellectual Property Rights for Indigenous Peoples, A Sourcebook. Greaves, T., ed. Oklahoma City: Society for Applied Anthropology. Pp 181-189.
Stephenson, D.J., Jr. (1999). A Practical Primer on Intellectual Property Rights in a Contemporary Ethnoecological Context, in Ethnoecology: Situated Knowledge/Located Lives. Nazarea, V., ed. Tucson: University of Arizona Press. Pp. 230-248.
(1). The receivership began in 1995.
(2). See U.S.v. Corrow, 119 F. 3d 796 (l0th Cir. 1997), cert. den., __ U.S. __, 118 S.Ct. 1089, 140 L.Ed.2d 146 (1998) (finding an art collector guilty criminally under NAGPRA for trafficking American Indian items).
(3). Punitive damages are a monetary award that has the primary purpose of punishing the wrongdoer rather than making the victims of the wrongdoing whole.
(4). 25 U.S.C. ...305[e][a].
(5). Cow Creek Band of Umpqua Tribe of Indians v. IMCOA Licensing America, Inc., et al., Civil Action No. 99-Z-453 (Related to Civil Action No. 95-Z-777), United States District Court, Denver, Colorado.
(6). See Corrected First Amended Complaint, Cow Creek Band of Umpqua Tribe of Indians v. IMCOA Licensing America, Inc., et al., Civil Action No. 99-Z-453 (Related to Civil Action No. 95-Z-777), United States District Court, Denver, Colorado.
(7). Cited in the Complaint filed with the federal district court.
(8). Corrected First Amended Complaint, supra, paras. 40-41.
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