By: Mackenzie Kinsella

Native American intellectual property (IP) has a history of being used without the permission and authorization from Indigenous communities. Indigenous IP encompasses traditional knowledge, genetic resources, and traditional cultural expressions. Traditional knowledge can include skills and practices concerning biodiversity, agriculture or health. Genetic resources could, for example, comprise of plants, seeds and medicine formulas. Traditional cultural expressions can involve folklore, symbols, designs, music, and performance. 

There is a complex and challenging relationship between IP systems and protection of Indigenous knowledge. Certain mechanisms for IP protection create gaps and barriers for Indigenous innovators. Often formal IP protections require the identification of specific individual creators and inventors, however, this “ownership” requirement stands in contrast with Indigenous conceptions of “ownership.” Additionally, Indigenous knowledge may not meet “originality” or “novelty” requirements under current IP standards. These gaps and barriers for Indigenous knowledge protection create opportunities for Indigenous knowledge to be used without consent from Tribes. 

Some examples of Indigenous IP being used without any tribal permission include, Stephanie Meyer’s use of the Quileute tribe’s origin story, which misappropriates and misrepresents Quileute traditions. Another example of misuse of Indigenous IP is Allergan’s use of the Saint Regis Mohawk tribe’s formula to make an eye drop drug, and transferring ownership of all of the Allergen’s eye drop patent back to the Tribe in order to attempt to attain sovereign immunity against specific legal challenges. These examples illustrate the difficulty and complexity that surrounds how Native Americans can protect their cultural properties. Current IP systems are not providing protection for Indigenous IP. However, the US Patent and Trademark Office (“USPTO”) is currently seeking input from Tribal Nations input regarding Indigenous IP.  

US Patent and Trademark Office Seeking Comments from Tribes

On October 24, 2023, the USPTO published two notices requesting input from Tribal Nations regarding protection of Indigenous IP. The USPTO intends to hold formal tribal consultations, which are two way government-to-government dialogues between Tribes and Federal agencies where Federal proposals are discussed. These tribal consultations are the first tribal consultations that the USPTO has held with Tribes. The USPTO’s proposed tribal consultations are to address any concerns regarding how the current IP system protects genetic resources and traditional knowledge that Tribes have. The consultations will be discussed with the World Intellectual Property Organization (WIPO), which is an organization that focuses on intellectual property world-wide and has been focused on protecting resources for Indigenous People. The WIPO Intergovernmental Committee’s negations could potentially lead to specific countries acceding to a treaty and creating legal instruments to protect genetic resources, traditional knowledge, and traditional cultural expression. These formal consultations have been applauded by the Native American Rights Fund (NARF) and the National Congress for American Indians (NCAI), the latter express how these consultations are necessary to move the United States federal government forward towards respecting Tribal Nations as the holders and guardians of these specific aspects of their cultures.

The First Notice by the USPTO offers 19 questions for Tribes and their representatives to provide their input on the IP protection of genetic resources and traditional knowledge. The First Notice comment period ended Monday January 22, 2024. The Second Notice by the USPTO involves hosting formal tribal consultations in January 2024. The USPTO alongside the WIPO, and other federal agencies will be focused on providing the USPTO insight into how Tribes foresee how the USPTO should make changes, and assist in defining what terms and phrases should be used. 

What Do These Formal Consultations Mean for Tribes? 

Previously, the USPTO has had a position of aligning with corporations and allowing access to Indigenous Intellectual Property at the expense of Indigenous communities. Now, the formal consultations, which will include federally recognized Tribal Nations, state-recognized Tribal Nations, and Native Hawaiians and their representatives, signal a shift in the USPTO’s previous position to one that recognizes the importance of protecting Indigenous People’s right to their intellectual and cultural property. The USPTO is interested in working with the WIPO to identify some soft laws regarding Indigenous knowledge. Some examples of this include publishing joint recommendations, best practices, and toolkits, which could be beneficial to Tribal Nations. However, Tribal organizations, like the Native American Rights Fund, have expressed that Indigenous peoples are concerned in how to ensure that these consultations are meaningful and produce an actual impact in the United States. 

In conclusion, these consultations provide hope for Indigenous communities to have the opportunity to express their concerns surrounding Indigenous knowledge. Furthermore, the ability to have a seat at this table, with the USPTO, signals a positive step towards ensuring the rights and heritage of Indigenous Peoples are safeguarded in the realm of IP.