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To give an example of how restorative justice might work to repair Institutional abuses of Indigenous cultural expressions, I now turn to a case study involving Columbia University’s Center for Ethnomusicology and its efforts to repair the illicit appropriation and abuse of ceremonial sound recordings from Hopi and other Indigenous communities. This particular restorative effort is still ongoing, but it provides a useful illustration for how restorative justice might function in context.

Between 1929 and 1968, Laura Boulton, an early ethnomusicologist and collector, traveled around the world making recordings of Indigenous peoples and other local communities. The self-proclaimed “Music Hunter” recorded nearly 30,000 recordings over the course of her career.226 Boulton released numerous albums containing recordings from this collection with multiple record labels, apparently without securing permission from the Indigenous communities or individuals with whom she worked.227 Then, in 1968, Columbia University purchased her collection of recordings in a deal estimated at $1.4 million (in 2023 dollars), providing Boulton with a named professorship and an annuity.228 Columbia used the recordings as research collateral for academic grants over the next five decades, forming a research center for the study of world music based on them and one of the most prestigious ethnomusicology PhD programs in the country.229

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.297 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.

Imagination tends to be associated with the ability to generate ideas in the mind about things that cannot be perceived with the senses, including alternative or fictional realities. It is connected to diverse mental processes, including learning, meaning making, and creativity (Zittoun and Cerchia, 2013). Importantly, as Kind and Kung (2016) have pointed out, imagination has at least two seemingly contradictory functions. On the one hand, it is necessary to learn about the world as it is or was and to acquire new knowledge through (re)construction (Salis and Frigg, 2019)—in sum, to gain an understanding of social reality. On the other hand, imagination serves as a form of freedom from (Kind and Kung, 2016), or even resistance to, reality. Fulfilling this second function, imagination can serve as a reservoir of ideas protected from the challenges posed by various forms of rationality (Freud, 1958; Hairston, 2016) and can give rise to novelty and change. The ability of imagination to facilitate escape from reality by mentally generating alternatives, whether those are fictional worlds, utopian, or dystopian futures (Stoetzler and Yuval-Davis, 2002), is key for many social change processes, especially for social movements (Hawlina et al., 2020). Together, these two functions enable individuals to both know reality and to possibly change it.

Recently, research in the cognitive sciences has focused on a specific dimension of the second function: imagination as future thinking or “prospection”—the mental processes involved in constructing scenes of the future or new experiences (Gilbert and Wilson, 2007; Szpunar et al., 2014?; Thomas, 2019). The mental processes of “future event simulation” (Szpunar and Schacter, 2018) appears to share a common brain mechanism with memory, that is, the simulation of past events and the imagination of fictional worlds (Mullally and Maguire, 2014). This link raises important questions for the role of imagination in transformative change.

In a rare moment of bipartisanship, the House of Representatives passed a bill today that will strengthen support for Native American entrepreneurs.

The Native American Entrepreneurial Opportunity Act, co-sponsored by Rep. Sharice Davids (D-KS) and Rep. Eli Crane (R-AZ), would pave the way for more funding and expanded services for the Office of Native American Affairs (ONAA) at the Small Business Administration. If passed into law, the legislation would codify the ONAA under federal law and establish a new administrative role for the agency.

[*1437] Examining the ontological nature of powwow creativity reveals that it is a living and varied cultural form practiced in distinct ways by Indigenous communities and individuals across North America. It is also an appropriation-based creative form by nature. Powwow culture is said to have originated among the Omaha people in the present-day upper Midwestern United States, but quickly developed as it spread to other regions as individuals learned the form and contributed new content to its musical, choreographic, design, and literary styles. 306 During times when the United States prohibited certain forms of Indigenous dance, 307 powwow creatives often took professional positions with Wild West shows to participate in, perpetuate, and develop the form. 308 And, when Indigenous youth across North America were removed from their homes by the federal government to attend mandatory boarding and trade schools, students would come together to share and dance powwow as a means of developing common ground and unity. 309 The same is true today in the urban Indigenous environments within which I have conducted research, where powwows become the only "Native-sanctified spaces" around. 310 Thus, while powwow may have originated as a purely ceremonial form, it is articulated and valued as a mode of collective resilience and community-building throughout North America, sometimes retaining its ceremonial function while in other contexts becoming a mode of artistic expression or a demonstration of cultural virtuosity.

While powwow is an inclusive creative environment, appropriations of powwow culture that violate local protocols regulating relationships among participants impair incentives to create. Powwow culture circulates within an economy grounded in respect, attribution, reciprocity, and, in some cases, capital [*1438] accumulation. Given its tradition of open sharing, there is - as far as I am aware - no absolute bar to non-Indigenous Boy Scouts drawing from the forms and styles of powwow to participate in powwow events. One need not be Indigenous to sing, dance, create regalia, or buy goods at a powwow, though preference is sometimes given for Indigenous people to sing or dance in certain powwows to the exclusion of non-Indigenous powwow goers. 311 That said, powwow creators do generally rely on expectations that those who use or borrow the specific instances of powwow culture they or their community create (songs, beadwork, etc.) will follow established protocols that govern the use of that culture. 312 These protocols create an economy that demands payment in the form of attribution, honor, and respect, and may sometimes require financial compensation for those who expend significant effort to create meaningful or powerful new works. Competition powwows, for example, provide an important income stream for participants, motivating them to produce some of their most creative and innovative expressive culture while at the same time rewarding those who follow protocols of decorum and adherence to established values and aesthetic principles. 313 Thus, when local protocols of respect are broken, or powwow creativity is used without providing the appropriate compensation, the social and economic incentives to create new work are diminished.

In short, the court noted, when “the copying is verbatim, for an identical function and purpose, and there are no changes to the expressive content or message, a mere change in format (e.g., from desktop and laptop computers to smartphones and tablets) is insufficient as a matter of law to qualify as a transformative use.”35

Briefly addressing the conflicting views of the parties on whether Google acted in bad faith, the court noted that Oracle claimed that Google intentionally copied and knew it needed a license, while Google argued that it complied with industry custom and believed that it could copy the declaring code and SSO as long as it wrote its own implementing code. Concluding its analysis of the first fair use factor, the court held “that, even assuming the jury was unpersuaded that Google acted in bad faith, the highly commercial and non-transformative nature of the use strongly support the conclusion that the first factor weighs against a finding of fairuse.”36

[*1431] The Supreme Court's majority opinion in Google LLC v. Oracle Inc. seems to indicate the Court's movement toward such an approach. There the court attempted to analyze the nature of a presumably copyrightable "user interface" created for computer programmers. 287 Instead of merely categorizing the computer code in question as a "literary work," or even a "computer program" - two terms defined by the Copyright Act 288 - and granting greater protection to it against unauthorized uses, the court looked instead to the ontological nature of the work, examining what the work is from within the work's creative environment. First, the court examined the inputs and outputs that created the interface, including the different kinds of computer code that made up the interface and the kinds of programming (creative, problem-solving vs. more functional or organizational) necessary to produce each component. 289 Second, the Court spent considerable space describing how the user interface functions within the creative environment for computer programming. It found that the code at issue effectively acted as a system of "file cabinets, drawers, and files" for programmers, organized with labels that "would prove intuitively easy to remember." 290 Finally, the court examined the value of the work to the creative environment for computer programming. It noted that the value of the code in question derived not necessarily from the creative investments of the authors of the user interface, but from users of the interface who invested their time learning how to use the code's various commands and who continued to use it to create new programs. 291

The U.S. Supreme Court on Thursday held that the federal government has been under-funding Native American tribes that administer their own healthcare programs for 30 years and must pay potentially hundreds of millions more going forward.

In its 5-4 ruling, the court found that federal law requires the U.S. Department of Health and Human Services to pay the overhead costs that tribes incur when spending money from Medicare, Medicaid and private insurers. The ruling is a victory for the San Carlos Apache Tribe in Arizona and the Northern Arapaho Tribe in Wyoming, which had each sued over the funding.

However, by expanding the concepts of what constitutes a valid copyright, Star Athletica now provides the framework to hold KTZ liable for infringement upon a showing that the motifs could be separated from the parka's utilitarian functions and protected on their own. 105 Despite the parka itself representing a copyrightable object, the Copyright Act remains restrictive when considered in light of customary law and traditional notions of communal authorship. Thus, it presents hurdles to the protection of analogous Indigenous designs. Star Athletica exemplifies the benefits of utilizing broad legislative interpretation as a tool to provide for greater protections and lays the groundwork for preventing cultural appropriation by incorporating customary laws within the existing legislative framework by recognizing notions of communal authorship and strengthening moral rights.

The Supreme Court ruled unanimously last Monday in Fourth Estate v. Wall-Street.com, a copyright case that hinged on whether the “registration” of a work—which, by statute, must precede most kinds of infringement lawsuits—happens when the author sends in their application, or whether it happens when the Copyright Office makes a determination and sends back a certificate. There was a circuit split on the issue, in which some courts had gone with the “application approach,” and others had gone with the “registration approach,” and legal experts were divided on the question.

As of last Monday it is resolved. The Supreme Court went with the “registration approach” and said that unless you’re subject to one of the handful of statutory carve-outs you must wait until the Copyright Office does its thing before you can sue.

Significantly expanding the scope of monetary recovery for copyright infringement, the U.S. Supreme Court held, in a 6-3 opinion issued on May 9, 2024, that the Copyright Act’s three-year statute of limitations is inapplicable to damages and thus there is no temporal limitation for timely asserted claims. In issuing this decision, however, the Court explicitly sidestepped the threshold – and arguably pivotal – question of when a copyright infringement claim “accrues” under the Copyright Act, leaving for another day the resolution of what makes a claim “timely.”

The case, Warner Chappell Music, Inc. v. Nealy, involved a copyright infringement claim asserted by Sherman Nealy, who recorded and released an album and several singles in the 1980s with Tony Butler through their short-lived music venture, Music Specialist, Inc. The Nealy/Butler collaboration eventually dissolved, and Nealy served prison terms for drug-related offenses from 1989 to 2008 and from 2012 to 2015. Unbeknownst to Nealy, Butler licensed works from the Music Specialist catalogue to Warner Chappell while Nealy was in prison, one of which was used in Flo Rida’s hit song In the Ayer, which sold millions of copies and reached No. 9 on the Billboard chart.

Given the ALRC's proviso, and Australia's recognition of the copyrightability of some Indigenous cultural expressions, Stoianoff and Wright interpret the second fair use factor as potentially requiring appropriators to consult with Indigenous communities before a use of their cultures can be considered "fair." 272 Consultation would allow potential fair users (and courts, ex post) to determine what the work is from an Indigenous point of view, and then take the necessary precautions to ensure Indigenous interests are protected. 273 In effect, this interpretation of the second factor would mean fair users likely would have to comply with existing protocols adopted by Indigenous communities prior to making publicly beneficial use of their cultural materials without express permission.

While scholarship dedicated to the second fair use factor is sparse, commentators recognize the factor's continued importance in assessing its potential impact on creative networks and its potential to account for Indigenous protocols governing the creation and circulation of culture.

Even if determinations of fair use are left to federal judges, courts can take steps to mitigate potential bias. In applying the second fair use factor analysis, courts should focus on evidence of a work's actual ontology and harm to the work's creative environment rather than basing their decisions on the fact finder's subjective inferences about the work's predisposition to being appropriated. 302 To do this, stakeholders in a given work could be called on to testify as to the mode of creation and value of a work within its creative environment and the effect unauthorized appropriation has or would have on future creative output. Where the original creators are no longer participating in that creative environment, those who carry such creativity forward can be called on to testify. Evaluating some creative contexts will be more complex, including those where a variety of actors are implicated in a work's creation (such as an environment like powwow, where culture is shared across communities) or where a creative environment is ontologically challenging for the fact finder (such as in the realm of Indigenous ceremonial creativity). In these situations, a tribal leader or other community member knowledgeable about the cultural context or a social scientist with both knowledge and binding relationships to the community might be among those to provide expert testimony regarding the effects of unauthorized appropriation on the particular creative environment. Ultimately, courts should give deference to the views of Indigenous communities when assessing and weighing the "nature" of their copyrightable works against the other fair use factors.

Second, establishing an “opt-out” framework in which Tribal law and policy determines the reach of the Copyright Act on Tribal lands sets a bright-line standard for when copyright law should regulate creativity occurring on Tribal lands. The currently inconsistent circuit court tests outlined in Part I, which attempt to divine a given federal law’s impacts on Tribal sovereignty based on a foreign judge’s understanding of it, are arbitrary at best, leaving Tribal authors, artists and other creators guessing about what intellectual property rights they might hold. Indeed, these tests re-entrench settler-colonial power over Indigenous peoples by usurping their prerogatives on what is or is not an intrusion on their sovereignty.

The approach proposed here presumes that federal copyright law will always interfere with Tribal sovereignty and self-determination whenever it conflicts with an established Tribal law or policy. Federal courts would simply need to inquire whether Tribal law or policy already regulates a particular creative subject matter. If the Tribe has spoken as to the protection of a particular kind of creativity legislatively, via common-law, or through established Tribal protocols and norms, that creativity will be exempt from the application of the Copyright Act on Tribal lands. Thus, by tethering Tribes’ own positive enactments (or lack thereof) to the status of federal copyright, I argue that Tribal self-determination in the area of intellectual property will be encouraged.

As a matter of federal policy and established international norms, Indigenous sovereigns, not colonizing governments, should exercise ultimate control over the ownership and circulation of creative expressions within their territories. While this principle is seemingly straightforward, implementing it within the field of copyright law poses certain challenges, particularly given the federal government’s dominance in the field of copyright law today and the uncertainty in the law surrounding the TribalFederal relationship. At one extreme, unilaterally imposing the Copyright Act on Tribal lands would, as articulated by the UNDRIP, impermissibly invade Tribes’ inherent sovereignty. But the opposite extreme — completely eliminating federal protection for all works created on Tribal lands — also makes little sense as it would potentially deprive Tribal members (who are U.S. citizens) of a kind of valuable property right otherwise available to other Americans. The status of copyright on Tribal lands may also have implications for those who aren’t members of the Tribe residing off of tribal lands: if the Copyright Act were not enforceable on Tribal lands, copyrightable works—made by Tribal members and non-members alike—could be exploited there with impunity, unless Tribes protected these works under principles of comity or their own intellectual property frameworks.

To remedy this dilemma, the United States ideally should enter into bi-lateral agreements with each Tribe establishing mutually agreed upon protections for creative expressions. This is how the United States has historically engaged in negotiations with Tribes where both property rights and sovereignty are at stake.242 Such agreements would allow Tribes and the United States to determine how the Copyright Act would apply on Tribal lands so as to avoid intrusion on Tribal sovereignty while potentially providing opportunities for reciprocal federal recognition and enforcement of Indigenous intellectual property laws off of Tribal lands. Such agreements already pervade Indigenous-settler relations in the United States, beginning with treaties,243 and persisting now through governmentto-government agreements, such as Indian Self-Determination and Education Assistance (ISDEAA) contracts. These contracts allow Tribes to regulate and operate local schools, hospitals, and other institutions previously regulated by the federal government, with the purpose of increasing Tribal self-determination in areas critical to Tribal sovereignty.244 The end result would be a robust intellectual property framework that protects both Indigenous and settler creative interests, while upholding the national intellectual property policies of both the United States and sovereign Tribal nations.

Western copyright law assigns its bundle of rights to individual people or individual legal entities. Joint authorship for purposes of copyright has a narrow interpretation and would probably not allow for the kind of communal ownership that a clan or tribe would find useful. In the United States, for example, the benefits of authorship can be divvied amongst joint authors but, for an entire culture or clan, that kind of rights management would be extremely difficult if not impossible, due to the fact that entire tribes and clans consider themselves, as a whole, stewards and caretakers of their culture. "Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work." 28 Communal rights are gaining some attention but Western copyright regimes remain focused on single, identifiable authors.

Three mechanisms in copyright law could be utilized to attempt to overcome this problem: (1) joint authorship; (2) the transfer of rights; and (3) the work made-for-hire provision. These mechanisms may, however, in the end, be unsatisfactory. The most logical possibility is the provision for joint authorship. 127 This provision is the only nod to collective ownership in the acts. It allows the multiple authors of a work to be co-owners of the copyright in the work. Unfortunately, this provision is very narrow. In order to be deemed a joint author, two requirements must be satisfied. First, the joint authors must in fact collaborate in the work's preparation, and second, they must intend, at the time the work is prepared, that their contributions be merged into "inseparable or interdependent parts of a unitary whole. 128 Thus, under the first requirement, joint authorship vests the rights only in the persons who actually make the work (or their designees). That is, only those clan members who are involved in the creation of the work can be joint authors. The rest of the clan or community could not be considered co-owners unless they actually contributed to the creation of the work. 129 Furthermore, to be a joint author each person's contribution must be copyrightable. Thus, a clan elder who dictates the composition to an artist who executes it will not be a joint author with the artist.

Finally, indigenous communities are passing their own laws that put pressure on and provide legitimacy for national courts to adopt similar stances. 103 For example, the Hopi claim an interest in "all published or unpublished field data relating to the Hopi, including notes, drawings, and photographs, particularly those dealing with religious matters." 104 Similarly, the Apache have demanded "exclusive decision-making power and control over Apache "cultural property' … defined as "all images, text, ceremonies, music, songs, stories, symbols, beliefs, customs, ideas and other physical and spiritual objects and concepts' relating to the Apache, including any representation of Apache culture offered by Apache or non-Apache people." 105 Indigenous laws are the frontlines of intellectual property in terms of innovation and departure from existing legal frameworks, but they draw on existing mechanisms such as copyright to demand benefits, sharing arrangements such as joint-copyright over research which would convert them into legal co-authors of the materials produced, or trademark to protect the creation of new artifacts akin to the IACA. 106

The relationship between federal intellectual property laws and Native American tribes and artists is a unique and sacred one the United States owes a duty to protect tribes through treaty obligation and as "domestic dependent nations"152 and must take steps to amend federal trademark, copyright, and patent law to better protect the interests of tribes and boost economic development. Additionally, amending the IACA to provide broader protection for Indigenous artists who fall outside the Act's definition of "Indian" could further strengthen tribal fiscal growth. Laying a strong foundation for growth in tribal arts can pave the way for both economic and cultural development across the many tribes throughout the United States and should be a priority moving forward to support tribes reclaiming their sovereignty.

Ukraine’s success can be credited in part to the resolve of the Ukrainian people, the weakness of the Russian military, and the strength of Western support. But it also owes to the defining new force of international politics: innovation power. Innovation power is the ability to invent, adopt, and adapt new technologies. It contributes to both hard and soft power. High-tech weapons systems increase military might, new platforms and the standards that govern them provide economic leverage, and cutting-edge research and technologies enhance global appeal. There is a long tradition of states harnessing innovation to project power abroad, but what has changed is the self-perpetuating nature of scientific advances. Developments in artificial intelligence in particular not only unlock new areas of scientific discovery; they also speed up that very process. Artificial intelligence supercharges the ability of scientists and engineers to discover ever more powerful technologies, fostering advances in artificial intelligence itself as well as in other fields—and reshaping the world in the process.