When Invention Exploits Tradition: Gaps in Native American IP Law
Native American tribes possess rich cultural traditions passed down through oral histories, ceremonies, and artistic works that form a fundamental part of tribal identity [1]. Yet, legal gaps allow unprotected cultural heritage to be exploited. Federal statutes such as the Indian Arts and Crafts Act (1990), the Lanham Act (1946), the Copyright Act (1976), and the Patent Act (1952) do provide some protection, but their scope remains narrow, mainly covering only tangible material goods. Therefore, they leave intangible, communal, and sacred aspects of Native American heritage unprotected [2]. Non-Native entities have exploited and commodified these cultural assets without consent or compensation, stifling the economies of Native communities by diverting financial benefits away from Native artisans and businesses [3]. For example, OutKast’s 2004 Grammy performance of “Hey Ya!” used a Navajo song without permission, demonstrating how sacred cultural elements remain vulnerable to misappropriation under the current legal framework [4]. This event highlighted a critical gap in legal protections, namely that intangible cultural expressions are vulnerable to commercial exploitation without redress. Analyzing the limitations of federal intellectual property laws reveals how gaps in these legal frameworks leave Native American cultural heritage vulnerable to misappropriation and prevent Native communities from fully controlling or benefiting economically from their cultural assets.
Current intellectual property laws offer limited protection for Native American cultural expressions, leaving significant gaps that exclude intangible, communal, and intergenerational forms of tribal heritage. The Indian Arts and Crafts Act (IACA) of 1990 prevents the sale of counterfeit “Indian-made” products by requiring authenticity in advertising [5]. However, while IACA protects tangible Native artwork such as jewelry, baskets, and woven rugs, it fails to safeguard intangible cultural assets such as traditional dance styles or distinctive clothing designs [6]. By focusing solely on commercial goods, IACA fails to prevent the broader misuse of cultural elements. In the same way, the Lanham Act of 1946 provides protection but is limited to specific circumstances: it allows individuals and entities to trademark symbols, designs, or names that distinguish their commercial products from others to prevent consumer confusion [7]. While tribes can register trademarks for specific products they sell, the Lanham Act applies only to those products, leaving tribal names themselves vulnerable to misappropriation [8]. The Copyright Act of 1976 also fails to protect many Native American cultural expressions by covering only works that are “fixed in [a] tangible medium.” This exclusion leaves transgenerational spoken narratives — such as traditional storytelling and ceremonial songs — unprotected, as they pass down verbally and lack any documented, tangible form [9]. Additionally, the Copyright Act does not recognize works created collectively or over multiple generations, complicating tribes’ efforts to claim ownership of traditional stories and songs [10]. The Patent Act of 1952 presents another lapse. It requires public disclosure of discoveries in order to receive patent protection, which conflicts with some tribal traditions of maintaining cultural knowledge within their communities [11]. As a result, many Native American cultural expressions, such as traditional knowledge and communal art, do not meet the patent system’s rigid criteria and remain unprotected. Additionally, the Patent Act’s stringent requirements that discoveries be novel and non-obvious further exclude many cultural assets from patent protection [12].
As a result of these gaps in intellectual property laws, Native American cultural assets are misappropriated and exploited across various commercial sectors. For example, Jeep’s continued use of the “Cherokee” name, despite the Cherokee Nation’s requests to remove the name, highlights the Lanham Act’s limitations in protecting tribal names [13]. Similarly, in Navajo Nation v. Urban Outfitters (2016), the tribe sued the retailer for the unauthorized use of the “Navajo” name on their products. Despite the tribe holding a trademark and investing millions in protecting its cultural identity, the court ruled that Urban Outfitters’ use of the name “Navajo” did not clearly infringe on trademark law. The tribe’s name, the court reasoned, was descriptive and thus undeserving of the full grab of trademark protection. Additionally, it held that Urban Outfitters’ use of “Navajo” did not actually imply that the products were Navajo-made [14]. In a similar manner, the Copyright Act permits unauthorized appropriation, as seen in the Twilight series, where Stephanie Meyer fictionalized the Quileute tribe’s cultural narratives, symbols, and name without their consent or compensation [15]. Turning to patent law, the Federal Circuit ruled in Allergan v. Saint Regis Mohawk Tribe (2017) that tribal sovereignty immunity could not shield patented drugs from inter partes review, a legal process in which the U.S. Patent and Trademark Office reviews the validity of a patent. This decision underscores how existing patent laws fail to protect tribal knowledge from being contested by market competitors, which could invalidate tribal patents [16]. MMaintaining the secrecy of medicinal knowledge within tribes respects ancestral traditions, protects sacred practices, and ensures that vital cultural knowledge remains under tribal stewardship — yet it is this secrecy that hurt — yet it is precisely this critical adherence to tribal practices that precludes Native discoveries from legal protections.
Some critics argue that extending intellectual property protections to Native American cultural heritage could hinder innovation and economic growth. For example, Dennis S. Karjala and Robert K. Paterson argue that protecting intangible cultural heritage is dangerous because it requires overly protective patent and copyright statutes, which threatens those laws’ aims of eventually making information freely available in the public domain [17]. If cultural information never becomes publicly available, others cannot build on it or create new, related products and services. Such restrictions could stifle development and limit economic opportunities. These scholars also argue that granting perpetual rights to Indigenous groups would be both “practically impossible” and “theoretically unsound,” as it could create legal uncertainty, making it difficult for businesses to know whether they can lawfully build upon existing cultural elements [18]. According to Karjala and Paterson, information should remain freely accessible to all [19]. However, this perspective overlooks the economic potential of intellectual property for Native American communities. According to the World Intellectual Property Organization, intangible assets such as intellectual property hold substantial economic value globally, estimated at $74 trillion in 2022 [20]. With adequate protection, the intangible cultural assets of Native American tribes could represent an invaluable source of economic wealth for these tribes. Strengthening intellectual property protections would allow Native tribes to leverage their cultural assets for sustainable revenue and explore new economic opportunities beyond traditional industries like gaming [21]. Although critics argue that expanding such protections might limit broader commercial innovation by restricting public access to cultural elements, the economic benefits of protecting tribal heritage outweigh these concerns. Protecting Native American cultural property prioritizes the economic empowerment of historically marginalized communities.
Current federal intellectual property laws fail to adequately protect Native American cultural heritage, leaving tribes unable to fully control or economically benefit from cultural expressions vital to their tribal identity. While the IACA, Lanham Act, Copyright Act, and Patent Act offer some protections, they do not account for the intangible, intergenerational, and communal nature of Native culture. This analysis demonstrates how these legal gaps collectively fail to address the full scope of Native American cultural expressions. Addressing these vulnerabilities could require lawmakers to consider targeted legal reforms tailored to protect intangible cultural assets, such as expanding trademark protections for tribal names or recognizing communal and oral traditions under copyright law [22]. But ultimately, bridging these legal gaps is essential for safeguarding Native American cultural heritage and supporting the economic empowerment of Native communities.
Bibliography
[1] Richard A. Guest, “Intellectual Property Rights and Native American Tribes,” American Indian Law Review 20, no. 1 (1995): 113-14; Dennis S. Karjala and Robert K. Paterson, “The Case Against Property Rights in Old Intangible Indigenous Cultural Property,” Northwestern Journal of Technology and Intellectual Property 15, no. 2 (2017): 12-13.
[2] “The Indian Arts and Crafts Act of 1990,” U.S. Department of the Interior, accessed March 1, 2025, https://www.doi.gov/iacb/act.
[3] Dalindyebo Bafana Shabala, 2018, “Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes,” Akron Law Review 51, no. 4 (2018): 1134.
[4] Shannon Price, “Living Heritage, Stolen Meaning: Protecting Intangible Native American Cultural Resources Through the Right of Publicity,” UIC Review of Intellectual Property Law 20, no. 1 (2020): 31, https://repository.law.uic.edu/cgi/viewcontent.cgi?article=1486&context=ripl.
[5] “The Indian Arts and Crafts Act of 1990.”
[6] Price, “Living Heritage, Stolen Meaning,” 32; Guest, “Intellectual Property Rights and Native American Tribes,” 125.
[7] Guest, “Intellectual Property Rights and Native American Tribes,” 126-27.
[8] Ibid., 129.
[9] Price, “Living Heritage, Stolen Meaning,” 32.
[10] Trey V. Perez, 2023, “Native American Intellectual Property Protection: Altering Federal IP Law and the Indian Arts and Crafts Act to Aid Tribal Economic Development,” American Indian Law Journal 11, no.2: 13.
[11] Ibid., 10.
[12] Michael Wayland, “Chief of Cherokee Nation Wants Jeep to Stop Using Tribe’s Name on SUVs,” CNBC, last modified February 22, 2021, https://www.cnbc.com/2021/02/22/chief-of-cherokee-nation-wants-jeep-to-stop-using-tribes-nam e-on-suvs.html.
[13] Perez, “Native American Intellectual Property Protection,” 12.
[14] Karjala and Paterson, “The Case Against Property Rights in Old Intangible Indigenous Cultural Property,” 16-17.
[15] Perez, “Native American Intellectual Property Protection,” 10.
[16] Shabala, “Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes,” 1126-27.
[17] Karjala and Paterson, “The Case Against Property Rights in Old Intangible Indigenous Cultural Property,” 9.
[18] Ibid., 3, 30-31.
[19] Ibid., 31-33.
[20] Annie Brown, Jack Gregory, and Sacha Wunsch-Vincent, “Intangible Assets Grew to USD 74 Trillion. Which Are the Most Intangible-Asset Intensive Firms?” WIPO, last modified November 11, 2022, https://www.wipo.int/en/web/global-innovation-index/w/blogs/2022/intangible-assets.
[21] Perez, “Native American Intellectual Property Protection,” 5.
[22] Ibid., 13.