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OFFICIAL
INSIGNIA, CULTURE,AND NATIVE AMERICANS:
An Analysis of Whether Current United StatesTrademark Law
Should Be Changed to Prevent the Registration of Official TribalInsignia
Alexis A. Lury(1)
I. Introduction
The United States is a multinationaland multicultural(2)country. As such, the United States must constantlybalance the interests of the numerous cultural, ethnic, politicaland racial groups that exist within itsborders. However, differences exist even within eachof these groups. Of particular concern to the UnitedStates and its people are the role and position of minoritycultures that live and exist in the United States.(3) ThisArticle will focus exclusively on Native Americans and NativeAmerican tribes.
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In the United States Native Americansare a "national minority,"(4)which denotes a kind of cultural group.(5) However,herein lies one problem: "culture"(6) is a broad term that may refer tovery specific elements of a particular group or to more generalelements that in effect expands the group.(7) Recently,Native Americans have turned to intellectual property laws"as a means to assert their self-determination, secureeconomic independence, and protect their culturalidentities."(8)
This Article focuses on NativeAmericans and the recently proposed changes to the Lanham Act,the United States' federal trademarkact. Specifically, this Article will examine section302 of the Trademark Law Treaty Implementation Act,(9) which requires the Commissionerto study the effects of changing current trademark law to preventthe registration of official Native American tribal insignia astrademarks. Section II will provide a brief history ofthe relations between the United States government and NativeAmericans since the 1700s. Section III will provide anoverview of United States trademark law and will situate section302 in the context of United States trademarklaw. Section IV will attempt to define the <-- 1 J. INTELL. PROP. 137, 139 --> harms thatwould be protected by changing section 1052(b), the section ofthe Lanham Act that section 302 proposes to change, to includeNative American tribal insignia. Section V willbriefly consider the effects of the changes and will then attemptto determine whether the proposed change is meant to be morerestrictive towards Native Americans than section 1052(b)currently is toward other groups. This section willalso propose criteria for determining what qualifies as officialtribal insignia. Section VI will consider how toimplement the change to section 1052(b). Section VIIwill conclude that the changes section 302 proposes should bemade, but that this should be viewed only as an initial step tochanging United States trademark law to better reflect NativeAmericans' and others' concerns.
II. The History of the United States' Treatment of NativeAmericans
The United States has used variousmechanisms in dealing with Native Americans throughout itshistory. Initially, it seemed that Native Americanswould be protected, as reflected by the Northwest Ordinance of1787:
The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress, but laws founded in justice and humanity shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.(10)
However, by 1830, "influential leaders . . . proposedmoving the eastern tribes to the western territories."(11) For this reason, thetime period from 1830-1850 was referred to as the Removal Era.(12)
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By the second half of the nineteenthcentury, the United States began a policy of assimilation whereIndians were forced to adopt white ways.(13) Theidea, which was supported by Thomas Jefferson, was that"with adequate resources and coaxing Indians could be'civilized' and live in harmony with their white neighbors."(14) Far from merely"coaxing," the assimilation efforts essentiallyprohibited Native Americans from engaging in their own culturalpractices.(15) Additionally,"allotment was advocated as a means of further civilizingIndians by converting them from a communal land system to asystem of individual ownership."(16)
Then, in 1934, the IndianReorganization Act of 1934
was passed.(17) ThisAct supported
the
The Termination Era ended in 1965 as"the federal government began to reject termination."(21) "The policythat subsequently emerged in the Nixon administration [was]labeled 'self-determination.' It is a policy thatfavors maintaining the federal protective role, but providing atthe same time increased tribal participation and functioning incrucial areas of local government."(22) Nevertheless,in 1982, the Reagan administration made severe cuts in thefederal expenditures towards Native Americans, including thecomplete elimination of funds for "the construction of waterand sanitary facilities on Indian reservations."(23)
Today, the
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III. United States Trademark Law, in General, and Section302 of the Trademark Law Treaty Implementation Act
Trademark law falls within the realmof Intellectual Property. However, unlike the otherareas of intellectual property (copyright, patent, and tradesecret), which are concerned with protecting inventions andexpressions from "theft,"(25)trademark law is primarily concerned with protecting theconsumer.(26) Forinstance, the following is a summarized explanation of trademarklaw:
Trademarks are traditionally viewed as a source identifier. They are words and designs whose purpose is to distinguish the goods or services of one company from the goods or services of another company. The underlying premise in the treatment of trademarks as a source identifier rests on the assumption that consumers read these identifiers as representing consistency between goods bearing the same identifier - that different goods bearing the same trademark emanate from the same source, and that trademarks represent the promise of consistent quality.(27)
Thus, the purpose of trademark law is to enable a consumer toidentify a product or service with a source, even if that sourceis unknown, and to distinguish that product or service from thoseof others.(28) Inother words, trademark law attempts to prevent <-- 1 J. INTELL. PROP. 137, 143 --> customer confusionwith respect to goods and services. This notion ofmarking products in order for consumers to identify a source hasbeen around since antiquity.(29)
The Trademark Act of 1946, codified in15 U.S.C.(30) 1052, however,lists certain symbols, words and other matter that are notconsidered registerable trademark material.(31) Includedin section 1052(b) is the provision that goods whose nature"consists of or comprises the flag or coat of arms or otherinsignia of the United States, or of any State or municipality,or of any foreign nation, or any simulation thereof"(32) will be refused registration onthe principal register. This provision suggests thatthere are certain symbols and matter that belong to everyone orthat are culturally "sacred" and thus no person can begranted ownership in those items.
It is this idea that individualsshould not be granted ownership in certain material that lies atthe crux of section 302 of the Trademark Law TreatyImplementation Act. Section 302 states:
(a) IN GENERAL - The Commissioner of Patents and Trademarks shall study the issues surrounding the protection of the official insignia of federally and State recognized Native American tribes. The study shall address at least the following issues:
(1) The impact on Native American tribes, trademark owners, the Patent and Trademark Office, any other interested party, or the international legal obligations of the United States, of any change in law or policy with respect to -
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(A) the prohibition of the Federal registration of trademarks identical to the official insignia of Native American tribes;
(B) the prohibition of any new use of the official insignia of Native American tribes; and
(C) appropriate defenses, including fair use, to any claims of infringement.(2) The means for establishing and maintaining a listing of the official insignia of federally or State recognized Native American tribes.
(3) An acceptable definition of the term "official insignia" with respect to a federally or State recognized Native American tribe.
(4) The administrative feasibility, including the cost, of changing the current law or policy to -(A) prohibit the registration, or prohibit any new uses of the official insignia of State or federally recognized Native American tribes; or
(B) otherwise give additional protection to the official insignia of federally or State recognized Native American tribes.(5) A determination of whether such protection should be offered prospectively or retrospectively and the impact of such protection.
(6) Any statutory changes that would be necessary in order to provide such protection.
(7) Any other factors which may be relevant.(33)
The Commissioner's study must be completed by September 30,1999.
Section 302, which was submitted bySenator Bingamen, who believes there is a need to protectinsignias that have significance as religious symbols, arose from <-- 1 J. INTELL. PROP. 137, 145 --> continued pressure of the Zia Pueblo(34)with regard to their sun symbol.(35) TheZia Pueblo argue that the sun symbol, seen on New Mexico's Stateflag and other goods and services throughout New Mexico, is asacred symbol that belongs to the Pueblo and as such should notbe afforded trademark status. Even New Mexico's StateLegislature recognizes that the Sun Symbol belongs to the ZiaPueblo, as evidenced by its salute, "I salute the flag ofthe State of New Mexico, the Zia symbol of perfect friendshipamong united cultures."(36)
Section 302 therefore implemented astudy in order to determine whether current United Statestrademark law should be amended to include a provision thatprevents people or businesses from registering official NativeAmerican insignia as trademarks. However, it isunclear whether the proposed change would specifically addressSenator Bingamen's and the Zia Pueblo's attempt to preventreligious symbols from being registered astrademarks. In order to determine whether section 302addresses their concerns, one must understand the definition of"official insignia."
Section 1052(b) of the Lanham Actspecifically concerns governmental insignia.(37) Accordingto guidelines developed by the Patent and Trademark Office,governmental insignia consist of specific designs that "areformally adopted to serve <-- 1 J. INTELL. PROP. 137, 146 --> as emblems of governmentalauthority."(38) Additionally,"other insignia" refers to "those emblems anddevices which are used to represent national authority and are ofthe same general class and character as flags and coats ofarms."(39) Similarly,"'national insignia' is restricted to the official symbolsof a government."(40) Byanalogy section 302 must be limited to those Native Americaninsignia that represent governmental authority, or that when seencause individuals to associate the insignia with a particulartribe. One might argue that Native American tribalinsignia would not include "sacred" or religioussymbols and therefore that section 302's proposed change wouldfail to protect Native Americans to the extent that SenatorBingamen and the Zuni Pueblo desire. However, NativeAmerican tribes believe religion "pervades every aspect ofIndian life."(41) Infact, "the language makes no distinction between religion,government, or law. Tribal customs and religiousordinances are synonymous. All aspects of life aretied in to one totality."(42) Therefore,it is reasonable to assume that tribal insignia have sacred andreligious meanings and thus that by protecting official tribalinsignia, section 302 will simultaneously protect the tribes'religious symbols - after all, Native American language fails tomake a distinction between religious and governmental insigniaand symbols.
IV. The Harms
Before considering the effects ofchanging the law, the specific harms being addressed must bedefined. Since little literature exists on thissubject, and little to no discussion occurred regarding theimplementation of section 302, the author has drawn upon otherareas of law that impact Native Americans in order to gain apossible perspective of the specific harms that section 302 seeksto address.
Throughout United States' history,Native Americans have fought for respect, recognition, and thefreedom to continue their cultural practices. Muchtime has been devoted to Native Americans and the issues ofcultural property. Native Americans believe theircultural property reflects and represents their society includingwho they are, where they come from, and their specific tenets and <-- 1 J. INTELL. PROP. 137, 147 --> practices.(43) Forexample, one anthropologist explained the importance groups placeon their possessions by stating the following:
it is our culture and history, which belong to us alone, which make us what we are, which constitute our identity and assure our survival . . . within cultural nationalism a group's survival, its identity or objective oneness over time, depends upon the secure possession of a culture . . . [and] culture and history become synonymous because the group's history is preserved and embodies in material objects - cultural property.(44)
Cultural property, therefore, refers to "objects thatembody the culture - principally archaeological, ethnographicaland historical objects, works of art, and architecture . .."(45) "For[Native American] populations, cultural property is of vitalimportance <-- 1 J. INTELL. PROP. 137, 148 --> totheir communities because these items are oftenviewed as integral elements of their religion."(46)
Native Americans believe that theirculture and existence are threatened by others' incorporation oftheir cultural property, because others do not understand thesignificance and meanings of many objects that Native Americanshold sacred.(47) Forinstance, museums sought to preserve and display the Zuni WarGods, but the Zuni tribe explained that the museums failed tounderstand the significance of the War Gods and the care theyneeded.(48) The Zunitribe argued that if museums are going to keep the War Gods, theymust leave them untouched because the War Gods are supposed to beexposed to the elements and eventually deteriorate.(49) Additionally, thepervasive use of Native American cultural symbols and images byothers often serves to portray Native Americans as a dying ordead culture, rather than as a living and growing culture.(50) This in turn maycause some Native Americans, particularly <-- 1 J. INTELL. PROP. 137, 149 --> children, to feel as ifthey are "dead" or at least that they are somehow aninferior class.(51)
A further concern may be that ifothers appropriate their symbols, insignia and cultural property,the "true" and often "sacred" meanings of thesymbols, insignia and cultural property will be lost.(52) For instance, theZuni War Gods are created for certain ceremonies after which they"are placed on specific mountain peaks . . . where theycontinue to serve a religious purpose;"(53)thus, their removal to museums destroyed their religioussignificance until the Zuni tribe eventually regained possessionof them through repatriation.(54) Theconcern that "sacred" meanings will be lost if othersadopt and use the symbols, insignia and cultural property may beparticularly true with regard to trademark law because when aname or symbol is connected with a number of items from differentsources the original meaning becomes blurred orweakened. "Currently, there are 94 registeredtrademarks that use the name 'Cherokee,' 35 that use the name'Navajo,' and 208 <-- 1 J. INTELL. PROP. 137, 150 --> thatrefer to the Sioux."(55) Therefore,others' use of Native American names, symbols and tribal insigniamay be dehumanizing and disparaging to Native Americans.(56) This is especiallytrue of certain sacred designs that serve to explain a tribe'shistory or sacred beliefs.(57) Forinstance, the Australian Aboriginal peoples have no writtenhistory; thus the designs are the main means by which culture ispassed down through the generations.(58) Forthis reason, only a select few individuals are permitted toreproduce them.(59) Furthermore,these designs are so sacred that they are only viewed duringcertain ceremonies, and even then only certain people are able tosee them.(60) Therefore,"to reproduce these designs on commercial items intended fora non-Aboriginal market mean[s] that the designs would both bedepicted and seen by unauthorizedpersons. Furthermore, the designs would be uprootedfrom their familiar context and placed in one in which sacredsymbols would become meaningless."(61)
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However, it is also important torecognize that there is not necessarily agreement between thetribes or even within tribes regarding others' use of theirsymbols. For example, some Native Americans desiretheir symbols to be reserved for their tribe and therefore wantintellectual property laws to prevent others from using orincorporating the symbols in any way.(62) Meanwhile,other Native Americans want to be compensated for others' use oftheir symbols, thereby enhancing their economic stature.(63) Still other NativeAmericans "seek to use . . . intellectual property laws inan effort to control and restrict the flow of images, therebysecuring the meaning of their art,"(64)culture, and identity. In particular this last group wants"to be able to deny certain uses of their art [and symbols],especially those that would amount to spiritual violations."(65) Interestingly, thisis exactly what section 302 seems to address and seeks to ensure.
One might argue that rather thanmaking official tribal insignia nonregisterable, the UnitedStates should suggest that Native Americans be the first toregister the symbols and insignia as trademarks, therebyexpressly preventing others from using the mark.(66) Thisposition fails to understand the tensions involved and theinadequacies of current trademark law as it applies to NativeAmerican <-- 1 J. INTELL. PROP. 137, 152 --> culture. First, different Native Americansand their tribes may hold the same symbol as an official insigniaor sacred symbol of their group. Therefore, if oneperson or tribe registers the symbol as a trademark, then allother groups would be prevented from using the symbol, at leastin the same manner. Second, it is unclear who speaksfor the various Native American people and their tribes; eachtribe may have conflicts within it that would prevent a commonview regarding the designation of one or more officialinsignia. Third, Native Americans may believe that anofficial insignia will lose its qualities and meanings if itbecomes a registered trademark, or adopted and used by peopleoutside of the tribe. Fourth, many Native Americantribes live at poverty levels and might not be able toeffectively litigate to protect use of their marks or even befamiliar enough with trademark law to challenge others'trademarks. Fifth, even once someone registers atrademark, that mark can still be used by others, albeit in alimited way, thus not precluding outsiders' use of themark. Sixth, Native American tribes are communalorganizations.(67) Theybelieve that their property belongs to the group and not to anindividual, as trademark law presumes. Therefore,there is a concern as to whom the trademark registration would beregistered and how the trademark would remain a group right.(68) Finally, in orderfor a trademark to be valid, the mark must be used commerciallyin interstate commerce and must serve to distinguish one's goodsor services. Native Americans clearly do not use theirsacred marks in commerce, nor is it likely that they use theirofficial insignia on goods or services; therefore, it isquestionable that they would <-- 1 J. INTELL. PROP. 137, 153 --> evenbe able to obtain trademark registration and protection for their symbolsand insignia should trademark law remain unchanged.
Apart from the harms that NativeAmericans may experience if section 302's proposal is notimplemented, others might be harmed should the lawchange. People and companies that currently use anofficial tribal insignia for their goods or services would sufferan economic harm because they may be required to change theirtrademark. These people and companies would have toendure the costs of litigation, of finding a new trademark and ofeducating the public as to their new trademark. Thiswould also be true of those people who had intended to use anofficial tribal insignia and had already spent money on research,planning, developing and marketing to thateffect. This may be of particular concern to thosepeople and businesses who have spent great sums of money onadvertising, promotion, and product or service labeling, as wellas to those who have acquired customer recognition as producing areliable and good product or service. For instance,many businesses in New Mexico use the Zia Pueblo's Sun Symbol asa trademark. If the Sun Symbol were to become barredfrom registration, then all of these businesses would stand tosuffer. Nevertheless, although others may suffereconomic harms, these harms seem minimal as compared to thosethat Native Americans may suffer should current trademark lawremain unchanged.
Opponents to section 302 might alsoargue that "the texts embodied by symbols do not remainstagnant over time."(69) Inother words, meanings of symbols might change over time due tothe "recodification and rescripting of meaning."(70) For example, theswastika, which was initially "recognized as an amulet orcharm, a sign of benediction, the visual embodiment of a blessingfor long life, good fortune and good luck,"(71)is now seen as the "most vilified symbol of humanhistory."(72) Therefore,tribal insignia and cultural symbols should not be foundnonregisterable because their meaning over time has or willchange, especially in the case of tribal insignia, symbols andnames that are already largely used in commerce by other peopleand companies. This argument, although valid, stillseems to fall short of the harms caused to Native Americans ifthe change is not implemented.
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V. The Effects and Whether Section 302 IsIntended to Be More Restrictive Toward Native Americans ThanSection 1052(b) Currently Is to Other Groups
The effects of changing section1052(b) will vary depending on whether the change is appliedprospectively or retrospectively. If the change isapplied retrospectively, then the Patent and Trademark Office maybe bombarded with canceling trademarks that use official tribalinsignia. Furthermore, people and companies who havetrademarks that incorporate official tribal insignia will have toadopt a new trademark. On the other hand, if thechange is applied prospectively, then trademarks using officialtribal insignia that are already in use will remain, thuslimiting the effectiveness of the amendedlaw. Additionally, the change, especially if appliedretrospectively, will enable Native Americans to regain somecontrol over their identity and culture and will cause publicperception to shift, thus accepting Native Americans as livingpeoples.(73) However,Native Americans will also be prevented from using the insigniaas trademarks and thus will lose any economic value that theycould otherwise claim.
Section 302 considers the possibleinclusion of official Native American tribal insignia as astatutory bar to be added to section 1052(b) of the LanhamAct. Currently section 1052(b) fails to include theword "official" when it discussesinsignia. This suggests that section 302 may seek toimpose an additional restriction when referring to NativeAmerican insignia. After all, section 1052(b) merelystates "insignia," while section 302 refers to"official tribal insignia." However, it isimportant to note that section 302 merely requires a study andthat the language of section 1052(b), should it be changed toinclude Native American tribal insignia, might exclude the word"official." Nevertheless, it is worthquestioning why section 302 was written to include thislanguage. Perhaps it was motivated by the fact thatthe drafters wanted to ensure that only the insignia fromfederally or State recognized tribes applied. Thisraises an interesting question as to how an official NativeAmerican tribal insignia would be identified.
The only example of an official tribalinsignia (that refers to itself as such) is from the YanktonSioux Tribe.(74) It isof a design that was adopted by the tribe in <-- 1 J. INTELL. PROP. 137, 155 --> 1975 and includesthe quote: "Land of the Friendly People of theSeven Council Fires," as well as pictures of a pipe, azigzag, a teepee and the colors red and yellow. Eachof the elements contains special meanings and messages for thetribe. The lack of examples suggests that it may bedifficult to identify official tribalinsignia. Perhaps one could look at each tribe'sartwork or written communications with one another andspecifically with the tribal courts in order to gain a sense ofmarks that each tribe seems to incorporate as its ownidentification. However, the official tribal insigniamust be distinguished from mere motifs that are used onartwork. The best policy might necessitate asking eachtribe's "chief" what constitutes their official tribalinsignia; however, this might be problematic if any one chief andother tribal members differ as to the correct insignia of theirtribe.
VI. How Best to Implement the Change
It seems that the change must beimplemented retrospectively in order to ensure protection of allofficial tribal insignia. Each of the federally andState recognized tribes must be approached and asked to submit adrawing of their official tribal insignia, the mark(s) thatidentify(ies) and distinguish(es) their tribe from allothers. Alternatively, the Patent and Trademark Officecould relegate this duty of collecting official tribal insigniaand compiling a list to the tribal courts or to the Bureau ofIndian Affairs, which would then turn the completed list into thePatent and Trademark Office. Each of these marks mustthen be entered onto the federal register in order to effectivelybar future attempts to register these marks.
The Patent and Trademark Office mustthen compile a list of all those using the marks, based on theamended statutory bar and inform those people that the marks arenow and forever more nonregisterable andnonenforceable. After notifying them, the Patent andTrademark Office must implement cancellation proceedings for allinvalidated marks. Additionally, the Patent andTrademark Office should allow continued use of the mark for areasonable period of time, thus allowing businesses to changetheir marks while militating against the suggested economic harmsthey might suffer.
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VII. Conclusion
The history of relations between theUnited States and Native Americans has been less than ideal;however, section 302 of the Trademark Treaty Implementation Actprovides the United States with an opportunity to rectify some ofthe harms caused to Native Americans. Section 302proposes to amend section 1052(b) of the Lanham Act to includeofficial tribal insignia. This would effectively barany and all official tribal insignia from being registered astrademarks.
Currently non-Native American peopleand companies use Native American names and symbols astrademarks.(75) Oftenthese uses are disparaging or offensive to Native Americans, andcontinue to perpetuate the stereotype that Native Americans areinferior and dying peoples. This is particularly truewith regard to the use and incorporation of Native Americancultural property and sacred symbols. Implementing theproposed change to section 1052(b), the United States will berecognizing Native American tribes as legitimate, important andequal governmental bodies (at least in terms of United Statestrademark law), and Native Americans as living rather than dyingpeoples. Moreover, current trademark law essentiallyprevents Native Americans from registering their insignia andsymbols because United States trademark law recognizes theindividual and provides ownership to the individual, while NativeAmericans hold their insignia and symbols as communal propertywhereby every member owns it, but no individual owns itexclusively. Therefore, the proposed change offersNative American tribes an opportunity to regain their communalshare of the insignia.(76)
Section 302's proposed change shouldbe implemented and section 1052(b) of the Lanham Act shouldreflect this, thus including a statutory bar for official tribalinsignia. The United States should embrace thisopportunity to preserve some aspects of Native American cultureand identity. However, it is important that thischange be considered an initial step, rather than a final step,in recognizing Native Americans' rights to their insignia andcultural symbols.
In conclusion, it has been said that"[f]or effective legislative action at least two aspectsneed to be considered: the accurate delineation of theproblem and the <-- 1 J. INTELL. PROP. 137, 157 --> determination of the most effective kinds ofaction available."(77) ThisArticle has attempted to do just that; namely, explain theproblem and the various harms that either implementing or failingto implement section 302's proposed change will cause; askwhether that change should be implemented; and show how thatchange could best be implemented. Finally, in light ofthe history of relations between the United States and NativeAmericans, section 302 is a refreshing piece of legislation andshould be treated as such by implementing the proposed change tosection 1052(b) of the Lanham Act, thus effectively barringregistration of official tribal insignia. Ultimately,it is the author's hope that this will be only the first of aseries of changes that the United States implements in order torecognize and acknowledge Native Americans and other cultural andminority groups.
1. A.B. 1997, magna cum laude,Washington University in St. Louis; J.D. expected 2000, TheUniversity of Southern California, The Law School. Theauthor would like to thank Professor Nomi Stolzenberg both forproviding her with the forum within which to write this articleand for her suggestions throughout the writing process.
Multiculturalism has been defined as "aspiring toward 'a plurality of cultures with [all] members [of society] seeking to live together in amity and mutual understanding with mutual cooperation, but maintaining separate cultures.'" It is premised, in part, on the belief that all cultures are of equal value. Multiculturalism assures the freedom of individuals and groups to engage in diverse cultural traditions and practices, which "define, preserve, and reinforce group differences."
Jonathan Drimmer, Hate Property: A SubstantiveLimitation For America's Cultural Property Laws, 65 Tenn. L.Rev. 691, 726 (1998) (alteration in original) (citationsomitted).
3. "Modern societies areincreasingly confronted with minority groups demandingrecognition of their identity, and accommodation of theircultural differences. This is often phrased as thechallenge of 'multiculturalism.'" Will Kymlicka,Multicultural Citizenship: A Liberal Theory of MinorityRights, 10 (1995).
4. Id. at 11.
5. Id. at 23.
6. Culture may be defined as"'the beliefs, and perceptions, values and norms, customsand behaviors of a group or society.' Such a group might becoterminous with an entire nation or predominantly defined bysuch tangible traits and ethnicity, language, religion orhistory." Drimmer, supra note 1, at698. See also Patty Gerstenblith, IdentityAnd Cultural Property: The Protection Of Cultural PropertyIn The United States, 75 B.U. L. Rev. 559, 567 (1995)(stating that "[t]he term 'culture' describes therelationship between a group and the objects it holdsimportant").
Many of these groups do have a distinct culture in one common sense of the word - that is, where "culture" refers to the distinct customs, perspectives, or ethos of a group or association, as when we talk about a "gay culture", or even a "bureaucratic culture". This is perhaps the most localized meaning of "a culture". At the other extreme, using "culture" in the widest sense, we can say that all of the Western democracies share a common 'culture' - that is, they all share a modern, urban, secular industrialized civilization, in contrast to the feudal, agricultural, and theocratic world of our ancestors.
Kymlicka, supra note 2, at 18.
8. See Richard A. Guest, IntellectualProperty Rights and Native American Tribes, 20 Am. Indian L.Rev. 111, 111 (1995-1996)
9. Trademark Law TreatyImplementation Act, Pub. L. 105-330, 112 Stat. 3064 (October 30,1998).
10. U.S. Commission on HumanRights, A Historical Context for Evaluation, inNative Americans and Public Policy 13, 18 (Fremont J. Lyden &Lyman H. Legters eds., 1992).
11. Id. at 19. This 1830legislation was called The Indian Removal Act of 1830. "Thousands of Indian people, almost the entire Indianpopulation that had existed in the southeastern United States,were moved west." Id.
12. "Although removal wastheoretically based on the consent of those removed, it is clearthat the eastern tribes were coerced." Id.
13. "Large and smallmissions were strung out across America. They were toprovide the Indians with European concepts of work, time,savings, and Christian orthodoxy to the end that 'as tribes andnations the Indians must perish and live only asmen!'" Id. at 20.
14. Id.
A major thrust of the assimilation efforts was to educate Indians in American ways. In 1879 the Carlisle Indian Training School was established by a former military officer. Its philosophy of separating Indian children totally from their Indian environment and forcing them to adopt white ways became the basis for a widescale [sic] boarding school movement that eventually removed thousands of Indian children from their cultural settings and families . . . Everything "Indian" came under attack. Indian feasts, languages, certain marriage practices, dances, and any practices by medicine [sic] or religious persons were all banned by the Bureau of Indian Affairs.
Id. at 22.
16. Id. at 24 (TheGeneral Allotment Act, also known as the Dawes Act, was passed in1887).
17. See Id. at25-26.
18. "Federal policy . . .ultimately favor[ed] restoration of some measure of tribalself-government and tribal resources." Id. at25.
The major instrument for [the reorganization] policy was the Indian Reorganization Act of 1934, which, with companion legislation affecting the Oklahoma tribes, essentially provided by an end to allotment, for measures to restore Indian land bases, and for the establishment of a revolving credit fund to promote economic development. Also included were the regulation of resources, mechanisms for chartering and reorganizing tribal governments, and the establishment of an employment preference policy for Indians within the federal government.
Id. at 25-26.
20. See Id. at27.
21. Id. at 28.
22. Id. at 28.
23. C. Patrick Morris, Terminationby Accountants: The Reagan Indian Policy, inNative Americans and Public Policy 63, 66 (Fremont J. Lyden &Lyman H. Legters eds., 1992) (budget cuts included $136.9 millionin Indian Health Service and $72.9 million from the Bureau ofIndian Affairs).
24. "[T]here is a[]. . . strong argument that much of the legal power the tribes hadin the past has eroded over the years. The Supreme Courthas strayed from the notion of Indian tribes as 'nations within anation.'" Christopher V. Panoff, Note, In re theExxon Valdez Alaska Native Class v. Exxon Corp.: CulturalResources, Subsistence Living, and the Special Injury Rule,28 Envtl. L. 701, 722 (1998).
25. Robert P. Merges, et al.,Intellectual Property in the New Technological Age (AspenPublishers, Inc. ed. 1997), at 525 and 22-26.
26. Id. at 523.
27. Keith Aoki, How theWorld Dreams Itself to Be American: Reflections on theRelationship Between the Expanding Scope of Trademark Protectionand Free Speech, 17 Loy. L.A. Ent. L.J. 523, 531(1997). "A trademark is a word, name, symbol, device,or other designation, or a combination of such designations, thatis distinctive of a person's goods or services and that is usedin a manner that identifies those goods and services anddistinguishes them from the goods or services ofothers." Jane C. Ginsburg, et al., Trademark AndUnfair Competition Law: Cases and Materials, 2d ed., 81(1996) (citing Restatement (Third) of Unfair Competition§9). "Consumers may also use [trademarks] to classifythemselves and build an identity of both association with anddifferentiation from others." Aoki, supra, at 529-30.
28. Ginsburg et al., supranote 25.
29. Ida Madieha Azmi, et al., DistinctiveSigns and Early Markets: Europe, Africa and Islam, inPerspectives on Intellectual Property: Vol.1: The Prehistory and Development of IntellectualProperty Systems 123, 133 (Alison Firth ed., 1997).
30. Title 15 of the UnitedStates Code (15 U.S.C.) is referred to as the Lanham Act and willbe so called throughout this Article.
31. In general terms,nonregisterable material includes immoral, deceptive, scandalous,or disparaging matter (§1052(a)); the certain insignia(§1052(b)); marks that are similar to existing marks(§1052(c)); and marks that are merely descriptive or deceptivelymisdescriptive of the goods or services they are connected with(§1052(e)). See Lanham Act § 1052.
32. Lanham Act § 1052(b).
33. Trademark Law TreatyImplementation Act § 302, Pub. L. 105-330, 112 Stat. 3064(October 30, 1998) (§ 302: Official Insignia of Native AmericanIndian Tribes).
34. The Zia Pueblo is locatedsixteen miles northwest of Bernalillo, New Mexico. The triberemains a "small community of agricultural workers andlivestock raisers" who are known for their pottery thatoften includes a bird motif. See Zia Pueblo (visited July10, 1999) <http://www.indianpueblo.org/zia.html>.
In offering this amendment, Bingaman explained that many tribal insignias have significance as religious symbols and deserve protection from being used as trademarks. As an example, he noted that New Mexico's Zia Pueblo hold the "sun symbol" that appears on the state flag as sacred, and explained that it would be sacrilegious for the [Patent and Trademark Office] to grant trademark protection for this symbol. However, Bingaman reported that many businesses have tried to include this symbol in trademark applications, forcing the Pueblo to go to the trouble and expense to oppose registration.
Patent and Trademark Office: PTO Seeks Comments on BarringRegistration of Native American Symbols, Trademarks for IndianSymbols, in Pat. Trademark & Copyright J. (BNA) at183 (Jan. 7, 1999).
36. Zia Pueblo (visited July10, 1999) <http://www.indianpueblo.org/zia.html>.
37. Trademark Manual ofExamining Procedure, Section 1203: Refusal on Basis of GovernmentInsignia, 104 (1977).
38. Id.
39. Id.
40. Vuitton Et Fils S.A. v. J.Young Enterprises, Inc., 644 F.2d 769, 775 (9th Cir. 1981).
41. Bowen Blair, Note, IndianRights: Native Americans Versus American Museums - A Battle forArtifacts, 7 Am. Indian L. Rev. 125, 127 (1979).
42. Id. (quoting ChiefOren Lyons of the Onondaga tribe).
43. These elements explaincultural nationalism, which is "based on the relationbetween cultural property and cultural definition." JohnHenry Merryman, Thinking About the Elgin Marbles, 83 Mich.L. Rev. 1881, 1912 (1985).
44. Rosemary J. Coombe, TheProperties of Culture and the Politics of Possessing Identity:Native Claims in the Cultural Appropriation Controversy, 6Can. J.L. & Juris. 249 (1993) (originally printed byRichard Handler, Who Owns the Past? History, CulturalProperty, and the Logic of Possessive Individualism, inThe Politics of Culture, at 66 (Brett Williams ed. 1991)).
45. J. H. Merryman, ThePublic Interest in Cultural Property, 77 Calif. L. Rev. 339,341 (1989). See Jason C. Roberts, Comment, TheProtection of Indigenous Populations' Cultural Property in Peru,Mexico and the United States, 4 Tulsa J. Comp. & Int'l L.327, 329 (1997). There are three elements of culturalproperty:
The first element is that the property embody some aspect of a group's cultural identity. It does so by representing an important aspect of the group's heritage or celebrating the mores, practices, and beliefs that bind the collection of individuals as a culture. The second element linking cultural properties is their function for the group of origin . . . They help to indicate and reinforce the group's shared norms and values and are valued "as the authentic works of a distinct collectivity, integral to the harmonious life of an a-historical community." Cultural property thus is critical "to the esteem that people hold for themselves" and helps to foster unity and attachment to current group structures. The final element defining cultural property is that it is "incomprehensible outside of 'cultural context.'" Only by construing the object in the framework of the culture of origin, interpreting its meaning in light of the group's tenets and norms, can one fully and properly understand the object.
Drimmer, supra note 1, at 701-02.
46. Roberts, supra note43, at 329.
47. "[T]he loss ofimportant cultural objects does not merely leave tribal memberswithout the social symbols that sustain cultural identity, butcan also make it difficult or impossible for tribal members topractice traditional religiousceremonies." Christopher S. Byrne, ChilkatIndian Tribe v. Johnson and NAGPRA: Have We FinallyRecognized Communal Property Rights in Cultural Objects, 8 J.Envtl. L. & Litig. 109, 109 (1993). "Centralto all of these practices [using Native American symbols andpossessing Native American cultural property] is the experienceof having Native cultural identity extinguished, denied,suppressed, and/or classified, named, and designated byothers." Coombe, supra note 42, at 273.
48. "Basically, Indianscontend that because museums do not share the Indian's religiousconcern and knowledge for [the War Gods], the artifacts are notwell cared for." Blair, supra note 39, at128-29.
49. Id.
Nell Jessup Newton has argued that the prevalence of these dehumanizing images reinforces "the fact that (Native Americans) [sic] are presented as ahistorical and timeless . . . By rendering native people as inhuman, timeless, and essentialized, these images help promote the myth of the vanishing Indian and in so doing deprive Indians not just of their history but of their present reality." Thus, such images relegate Native Americans in cultural consciousness to a status of "relics of the past."
Terence Dougherty, Group Rights to Cultural Survival:Intellectual Property Rights in Native American Cultural Symbols,29 Colum. Hum. Rts. L. Rev. 355, 377 (1998) (alteration inoriginal) (citation omitted). "Indian people are foreverbeing discovered and rediscovered, being surrounded by thickerand thicker layers of mythology. And every generation predictsour inevitable and tragic disappearance." Coombe, supranote 42, at 273 (quoting Robert Allen Warrior, member of theOsage nation).
Multiculturalist theorists note that for an individual, a connection to a heritage is necessary in shaping cultural identity. In contrast, denying access to such a heritage threatens to foster "false consciousness," a phenomenon whereby a minority group member unknowingly accepts the unfavorable stereotypes traditionally imposed on that group by a dominant class and thereby aids in her own subordination.
Drimmer, supra note 1, at 727.
52. Native Americans"worry that the expropriation of their living culture willcause their imagery to lose its original significance which willlead to a disruption of their practiced religion and beliefs anda dissolution of their culture." Christine HaightFarley, Protecting Folklore of Indigenous Peoples: IsIntellectual Property the Answer?, 30 Conn. L. Rev. 1, 15(1997).
53. Byrne, supra note45, at 124-25.
54. See Blair, supranote 39, at 128.
55. Dougherty, supranote 48, at 376.
56. "Native Americancultural symbols are used by a considerable number of non-Nativebusinesses to sell products, and at times the symbols are used ina manner that is disparaging to . . . Native American culturalidentity." Id. at356. "Use of these names and images, some morethan others, is dehumanizing to many NativeAmericans." Id. at 376.
57. "[A]rt may serve as[Native Americans'] recorded history as well as their spiritualteachings. As such, the symbolism of the designs are[sic] of great significance. These symbols can beunderstood as mnemonics for the visual memorization of theirhistory and beliefs." Farley, supra note50, at 9. "In song and dance, in rock engravingand bark painting we re-enact the stories of the Dreamtime, andmyth and symbol come together to bind us inseparably from ourpast, and to reinforce the internal structures of oursociety." Id. (quoting an Aboriginalartist).
58. Id. at 5.
59. Id.
60. Id.
61. Id. SeeCoombe, supra note 42, at 278 ("The use of Nativemotifs, imagery, and themes in the 'spirituality' marketed as NewAge religion is particularly offensive, both because of itscommodification and its distortion of Nativetraditions"). When "non-designated persons .. . produc[e] the work, the work may be reproduced in aninaccurate or unfaithful manner, and the image may be viewed bythe uninitiated so that secret texts will berevealed. Furthermore, the trivial use to which manysacred works are put denigrates the special significance of theart." Farley, supra note 50, at 10.
Some [Native Americans] . . . want to use intellectual property laws to prevent what may be characterized as a cultural or psychological harm caused by the unauthorized use of their art. They see intellectual property laws as offering a means to control the circulation of their art. They want to be able to restrict its dissemination and, in some cases, prevent dissemination altogether.
Farley, supra note 50, at 14-15.
Some [Native Americans] want to be able to benefit from the economic rights provided by intellectual property laws. They want to be compensated for their contribution to the artwork through licensing, and they want to exclude non-[Native American] competitors from the market by preventing unauthentic products from being marketed as made by [Native Americans].
Id. at 14.
64. Id. at 13.
65. Id.
66. Of course, this is not exactly true sincetrademark law allows others to use the same mark, provided themark is not 'famous,' as long as consumers will not be confusedas to the source. See Guest, supra note 7, at129 ("Generally, the Lanham Act simply does not precludeothers from using the same tribal name in association with theirproducts as long as there is no confusion to the public as tosource").
67. "[T]he United States has approachedthe concerns of Native Americans as groupconcerns." Dougherty, supra note 48, at363. Native American tribes "often view their culturalartifacts as communal property which cannot be sold by individualtribal members." Byrne, supra note 45, at111.
The distinctive characteristic of communal property is that every member of the community is an owner of it as such. He does not take as heir, or purchaser, or grantee; if he dies his right of property does not descend; if he removes from the community it expires; if he wishes to dispose of it he has nothing which he can convey; and yet he has a right of property . . . as perfect as that of any other person; and his children after him will enjoy all that he enjoyed, not as heirs but as communal owners.
Id. at 123 (alteration inoriginal) (citations omitted).
68. There is a possibility that "ifNative Americans [a]re able to claim group rights in contextswhen cultural survival [i]s at stake, they w[ill] be able toexert control over their cultural symbols and prevent thedevaluation and depletion of theirculture." Dougherty, supra note 48, at376.
69. Aoki, supra note 25, at 526.
70. Id.
71. Id. at 527.
72. Id.
73. "In North American commercialculture, imagery of Indians and the aura of 'Indianness' ispervasive, but living human peoples with Native ancestry aretreated as dead, dying, vanishing or victimized, and in need ofothers to speak on their behalf." Coombe, supranote 42, at 272. This perception may change if section302 is implemented.
74. See Yankton Sioux Tribe, SouthDakota (visited July 10, 1999)<http://lewisandclarktrail.com/sponsors/yanktonsioux/sect1.htm>. The Yankton Sioux Tribe is from SouthDakota. This is the only specific official tribalinsignia found by the author.
75. "Native American tribal names havebeen appropriated and used by a variety of companies as part oftheir corporate names and/or as trademarks to identify theirgoods or services." Guest, supra note 64,at 126.
76. "[T]he things that we callintellectual property are really rights to do certain things, toauthorize others to do certain things, and to prevent others fromdoing certain things." Id. at 113.
77. P.J. O'Keefe & L.V. Prott, Law andthe Cultural Heritage, Volume I: Discovery &Excavation, 15 (1984).