Abstract

Excerpted From: Trevor Reed, Restorative Justice for Indigenous Culture, 70 UCLA Law Review 516 (August, 2023) (297 Footnotes) (Full Document)

Just outside the Sealaska Heritage Institute (SHI) offices on a rainy Juneau, Alaska, summer day one could see smoke and flames begin to engulf a $2500 Neiman Marcus jacket as it lay burning on the street. The ceremonial fire marked the end of a federal intellectual property (IP) case that pitted a major fashion retailer against the interests of a highly regarded Indigenous artist and her community. While symbolizing closure for the artist's family, the fire also represented perhaps a new step forward toward remedying ongoing, institutionalized abuses of Indigenous cultural expressions still happening around the United States.

The through line of the Sealaska Heritage Institute case is one that is all too familiar to Indigenous cultural creators. In 1996, Tlingit artist Clarissa Rizal, a National Endowment for the Arts National Heritage Fellow, created a spectacular Yéil Koowú or Ravenstail coat design, titled “Discovering the Angels of an Electrified Heart,” innovating on the traditional Ravenstail weaving genre well known within the arts community of Alaska and beyond. As a preeminent artist in the genre, Rizal's work--including the celebrated Ravenstail coat at issue--had been exhibited by museums, galleries, and other institutions around the country until the artist's death in 2016, after which the coat was licensed exclusively to the cultural-preservation nonprofit Sealaska Heritage Institute. But in 2019, fashion retailer Neiman Marcus began selling a cardigan-like jacket it called “Ravenstail Knitted Coat,” which Rizal's community quickly identified as a direct copy of Rizal's design. No permission had been secured from Rizal, her estate, Sealaska Heritage Institute, or her community for the use of the coat. After discovering the alleged appropriation, a member of the Tlingit and Haida Tribal Council administration notified Neiman Marcus of the infringing product, but Neiman Marcus took no action. The lawsuit followed, in which copyright and trademark infringement claims were advanced in addition to violations of the Indian Arts and Crafts Act. Like most Indigenous IP cases, the litigation ended in a confidential settlement. And yet, the publicly available details about the settlement are somewhat remarkable: it provided for, among other things, the imposition of the Tlingit Nation's traditional IP remedies against Neiman Marcus--an outcome that likely would not have been possible had the case gone to trial.

Sealaska Heritage Institute and other contemporary cases in which Indigenous peoples have used IP to combat cultural appropriations represent the beginnings of a long overdue reckoning in the United States regarding the nation's legacies of intellectual and culture abuse toward Indigenous peoples. In the wake of the murder of George Floyd, the national spotlight has begun to shine anew on the ways Black, Brown, and Indigenous bodies and minds have been abused, including the ways that disparaging and stereotyped Black and Indigenous misrepresentations have persisted as state-protected intellectual properties, harming individuals and communities. As a result, racist and disparaging sports mascots and consumer brands, which had survived decades of legal challenges and activism, were suddenly pulled in a matter of months. Monuments honoring instigators of colonial and racial violence have been removed. Commissions to investigate the trauma and losses of life and culture resulting from America's Indian residential schools have been organized and a report has been released. And public-facing museums, universities, and other institutions have begun to acknowledge acts of colonial dispossession which furnished the lands, resources, data, and material from which they were built.

But while Indigenous peoples appear to be succeeding in the court of public opinion, it is not yet clear whether they will successfully obtain legal control over their intellectual properties and representations of identity currently held and used by major corporations, universities, museums, and other public-facing institutions (hereinafter “Institutions”). In recent years, Native American Tribes and their members have seen some limited success asserting trademark, copyright, and privacy claims to protect their Tribal names, insignia, fashion designs, and individual identities against a variety of organizations. Claims like these, however, are still typically dismissed or end in confidential settlements that may benefit the Tribes in certain strategic ways, but do not necessarily set forward legal precedents that could remedy abuses of Indigenous cultural expressions going forward. Even those socially conscious corporations who have taken action on their own to retire racially disparaging trademarks or to remedy past abuses of Indigenous culture have not necessarily taken the critical step of making full restitution to the communities they harmed on the communities' terms. While some have begun to offer scholarships, grants, and other kinds of support to Communities of Color, few have apologized or admitted wrongdoing; compensated victims for the specific harms they have experienced; or, perhaps most importantly, transferred ownership or control over the offending cultural expressions or representations back to the relevant communities. The non- profit sector has likewise failed to take comprehensive steps regarding restitution for its abuses of Indigenous intellectual properties. While some public-facing organizations, including federally-funded museums and universities, have returned human remains and certain kinds of ancestral belongings back to Native American Tribes, Alaska Native corporations, and Native Hawaiian Organizations under federal mandates, few of these Institutions have reassigned intellectual properties they or their partners possess back to their communities of origin. Indeed, few have taken even the minimal step of agreeing to be bound by Indigenous laws, protocols, or community norms regarding the care of Indigenous intellectual properties they continue to hold and manage.

The most straightforward solution to this widespread epidemic of intellectual and cultural abuse by Institutions would be for the United States to finally recognize and allow enforcement of Indigenous IP and cultural rights--including both European-descended and Indigenous rights--against all those within the United States. But given that such a transformation of our American IP infrastructure lies somewhere in the future, this Article advocates for restorative licensing as a preliminary step: an approach that combines both restorative justice and privately ordered licensing principles in a way that repairs harms caused to Indigenous communities and, in time, works toward reintegration of offending Institutions and their publics into a shared, more equitable community. Building on frameworks established in other restorative justice contexts, the proposed restorative licensing process includes: (1) the offending Institution accepting responsibility for its past abuses of the affected Indigenous community's cultural expressions, including violations of applicable federal or Tribal laws, protocols, and standards of care; (2) the Indigenous community setting forward its expectations for restitution and redress for those abuses, including what conditions the Indigenous community will place on future circulations of its IP; and (3) the Institution's commitment to meet those expectations in a binding agreement, and, if the Indigenous community so chooses, the reciprocal grant of a conditional license to the Institution for continued possession and use of the community's intellectual properties if such expectations are followed, and all patrons and downstream users of the community's IP enter into licenses with identical conditions. If the community's expectations are not met, the cultural expression, including all copies, must be returned to the Indigenous community with the Institution becoming subject to remedies available under federal and Tribal law.

The framework I advocate for here is restorative because it aims to make Indigenous victims of abusive IP practices whole through transformative dialogue with offending Institutions, while also providing Institutions with a path forward to repair the effects of their past abuses. As the offending Institution carries out its restorative licenses with Indigenous communities, the psychological, cultural, and intellectual harms inflicted on the community can be repaired and their sovereignty over their cultural expressions restored. Through this process, an Indigenous community may ultimately choose to establish normalized relations with the Institution, potentially even leading to future collaborations.

The mode of intervention here takes the form of licensing or private ordering rather than public law because U.S. Congress and courts have thus far failed to formally recognize and provide enforcement via public law for Indigenous peoples' now widely recognized rights to govern their creative and cultural expressions. But there are also other significant justifications for this approach. First, many Indigenous sovereigns conceive of authority over cultural expression as fundamentally relational, rather than a product of absolute territorial dominion upon which Western theories of sovereignty are often based. Networks of private agreements establishing obligations and duties that connect Institutions, patrons, and Indigenous communities may be a better fit for the ways Indigenous peoples regulate their cultural expressions than public law, which may change as one crosses borders. Second, the proliferation and relative success of End User License Agreements, open source licenses, and Creative Commons licenses reveals how private ordering can sometimes overcome--at least to a limited extent--legislative inertia, which tends to stifle innovation, adaptation, and diversification. While in some cases private ordering is used purely to garner greater corporate profits, private ordering also allows creative communities to incrementally generate a creative sphere more conducive to their specific forms of cultural production than might otherwise be attainable.

Resolving IP disputes through a restorative justice framework may be a novel way of addressing the concerns of Indigenous communities over cultural appropriations. But it builds on several strands in current scholarship at the intersection of IP and Indigenous law. These include efforts of Critical Race IP theorists to “map[], theoriz[e], and remak[e] understandings” of IP governance in ways that move beyond normalizing and reinforcing intellectual whiteness and toward creating structures founded on “restorative justice.” It also draws from the groundbreaking work of K.J. Greene, who proposed a theory of redress for the music industry's intellectual abuses of Black artists nearly fifteen years ago. As with his proposed reparations structure, restorative licensing attempts to move beyond “royalty accounting or copyright infringement” toward “engender[ing] redress, healing and transformation.” Finally, this work draws upon the pathbreaking theoretical work of Indigenous cultural and IP scholars who have emphasized the critical need for recognition of Indigenous IP systems to repair harms caused to Indigenous peoples and their sovereignty.

Part I describes some of the ways settler Institutions and their collaborators have abused Indigenous peoples' cultural expressions. I then describe the ways Indigenous peoples might draw on federal and Tribal public law to hold Institutions accountable for these abuses. Part II explores the available remedies for violations of Indigenous peoples' rights in their cultural expressions, including emerging soft law remedies now employed by many progressive Institutions. Finding the available remedies generally inadequate, Part III turns to restorative justice as a potential remedial mechanism, and advances arguments for why restorative justice principles may help remedy abuses of Indigenous cultural expressions where current remedies fail. Part IV develops the concept of restorative justice specifically for the IP environment, arguing that restorative justice for IP abuses may require the incorporation of “open source” like private ordering to allow the restorative agreement reached by the parties to have efficacy within the offending Institution's community. In the context of Indigenous IP, such private ordering is necessary to overcome current judicially imposed limitations on Indigenous sovereignty.

[. . .]

Indigenous communities are increasingly active in protecting and promoting their culture, and many are turning to IP and cultural rights laws as a means of accomplishing this. At the same time, universities, museums, corporations, and other Institutions want to appropriately safeguard and circulate Indigenous cultural expressions in their possession while also repairing the historical harms occasioned by their sometimes illicit and unethical collection, preservation, management, and dissemination activities involving Indigenous culture. Restorative justice provides a framework whereby Indigenous communities and Institutions can begin to repair these harms. They can do this by bringing Indigenous communities, Institutions, and their communities to the table on equal footing and allowing Indigenous communities to articulate the specific harms they have experienced and their expectations for redress, which should enable Institutions to formulate an enforceable plan for repair and redress that meets those expectations. As I have argued, such a plan will necessarily entail a binding commitment by the Institution to abide by Indigenous laws, protocols, and standards of care as a condition of future possession, management, and distribution of Indigenous culture in their collections, or a promise to completely repatriate that culture back to the community of origin. Importantly, these agreements may not be sufficient by themselves to bring about repair. If the parties agree that the Institution can continue possessing, using, and managing Indigenous culture, that agreement should also include a mechanism--restorative licensing--whereby patrons and follow-on users who access Indigenous culture through the Institution are likewise bound to these same conditions.

While restorative licensing may draw upon privately ordered licensing structures to fulfill its ultimate purposes, the use of such a framework by Indigenous communities is unlike those of software manufacturers or creative communities seeking to encourage free culture or to advance any other settler ideology. Rather, restorative licensing is intended to correct for the impact of settler-colonialism on Indigenous peoples' ability to govern their own cultural creativity and to ensure its ongoing production and circulation. Indigenous policies and legal structures already exist to protect Indigenous cultural expression but are currently not given sufficient legal effect under settler law. The proliferation of restorative licensing aims to compensate for this by normalizing (decolonizing) relations between Indigenous victims, Institutional offenders, and the public over the circulation and use of Indigenous culture going forward.

Trevor Reed (Hopi) is a Professor of Law at the Sandra Day O'Connor College of Law at Arizona State University.