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Later within the Navajo Nation docket, the District Court granted the Navajo Nation's motion for summary judgment and determined that the NAVAJO trademarks had not become generic, even noting that a "strict construction of trademark forfeiture is especially appropriate given the origin of the "Navajo" mark and the fiduciary duty the United States owes the Indian Tribes."95 The Court noted that Urban Outfitters failed to show that the NAVAJO trademarks had become generic in the minds of consumers or that the Navajo Nation abandoned the marks. For those reasons, the tribe successfully had Urban Outfitters' affirmative defenses and counterclaims of genericness, and abandonment, thrown out with prejudice.96 The parties would eventually agree to an undisclosed settlement.97 Though it was not a trial win for the tribe, the Navajo Nation case demonstrates that tribes can and should monitor and regulate third-party use of their names. It also reveals that courts are willing to evaluate the fiduciary role that the United States maintains with tribes when dealing with tribal intellectual property rights.

Another reason for not being able to rely on copyright for refusing documentation is the nature of the works. The Berne Convention allows contracting countries to determine their own originality threshold; however, judicial interpretations usually revolve around a form of “judgement, creativity or intellectual contribution.” Most of the oral traditions would not be original due to their cross-generational nature, as it is possible that the same stories are transferred each time with very minor original contribution. Embracing a low originality threshold would mean that future members of the same community could make minor changes and enjoy copyright protection each time, but it would also mean that non-Indigenous parties could enjoy copyright with very little input from themselves.

Even if the oral traditions satisfied the requirements for copyright, it would be hard to determine who controls them. Most jurisdictions define the author as the individual who creates the work, and some jurisdictions even recognize legal entities as authors of some works. In rare cases, it is possible to find oral traditions where the creator’s name is mentioned within the expression. But, most of the time, it is impossible to determine who created the oral traditions, especially if the work is created a long time ago and it is part of a “collective pool of creative resources.” Even when the community accepts the necessity to identify a single, specific author (who can then exercise the rights and have control), this reduces the options available to the rest of the community. There is also a great risk of parties assuming that oral traditions themselves are in the public domain and therefore can be used by anyone.

But there is a problem with the public domain. Those who create and wish to market goods and art that reflect traditions that are older than the twentieth century tend to find no help in the standard and established modes of intellectual property protection. Their work, no matter how creative or labor intensive or important to their cultural identity, is considered part of the grand global cultural commons. So multinational corporations can produce similar goods (pottery, cloth, garments, sculptures, jewelry, etc.) at lower prices. And these companies can leverage their marketing power better than small producers and merchants in poorer countries can.

Significantly for many of these cultural groups, replication of their traditional forms of cultural expression can be disrespectful of histories, identities, and religions as well. Intellectual property offers very little support for collective dignity. As several scholars of indigenous and traditional cultural production have argued in recent years, the cultural production of local communities is devalued not only because it is produced by marginal communities with no political power, but also because so much of that cultural production reflects traditions older than copyright. You cannot protect what has long been in the public domain without significantly revising the entire global intellectual property system.

Related to the derivative work problem, a new issue has emerged since the inclusion of sound recordings in the Copyright Act of 1976: sampling—”the act of taking a portion of one sound recording and reusing it as an instrument or an audio recording in a different song or piece.”66 For example, the modern genres of hip hop and rap both depend heavily on sampling for musical expression.67 Yet, sampling was quickly blocked by the courts. In Grand Upright Music, Ltd. v. Warner Brothers Records, the Southern District of New York held that Biz Markie’s rap song “Alone Again” impermissibly sampled a portion from Gilbert O’Sullivan’s “Alone Again (Naturally).”68 The Court held—devastatingly for genres like rap—that sampling without permission from the original copyright owner constituted blatant copyright infringement.69 Obtaining licenses for every sample presented a significant logistical and financial burden for rap artists.70 And unlike other parts of music copyright, there is no compulsory license for sampling (i.e., reproducing the sound recording); it is instead up to the copyright owner’s discretion whether to license the work or not, and to name the price.71 This forced rap artists to change how they create music or risk copyright sanctions.72 Indeed, the challenges posed by copyright to Black artists have led many to alter their creativity or leave music entirely.73 A third way in which U.S. copyright law has not equally protected racial minorities’ creative works is in requiring a known, recently alive author to gain copyright protection.74 Many centuries old, traditional Indigenous and non-Western songs and arts have communal or unknown creators.75 U.S. copyright law requires a known author and only protects works for a limited period of time, leaving these important but ancient works in the public domain.76 While such works remain unprotected, others can exploit traditional music and arts for their own profit without worrying about copyright infringement claims.77 This facilitates the free commercial repurposing of Indigenous cultural symbols and practices.78 U.S. copyright law defines creative arts as endeavors that are at least partially about making a profit,79 but this commercial approach is at odds with other artistic traditions. For example, Indigenous and non-Western societies around the globe value music as integral to their communities’ culture, and for non-commercial purposes such as medicine.80 The commercial appropriation of Indigenous cultural expression can be especially harmful due to the spiritual or nature of these works. 81 Thus, in these three ways, copyright law’s structure poorly serves living musical traditions.

Behind the statutory intellectual property laws, these distinct but interrelated residual domains illuminate the multifaceted character and modes of the immanent metaphor. Canadian jurisprudence does not have a positive account of either the Indigenous or public domains. Under the influence of parliamentary supremacy, law professor Teresa Scassa articulated that Canada’s public domains are conceived of as the “leftovers” of statutory intellectual property rights—the melancholic and fragile crumbs that remain once its statutory appetite is satisfied. Its scope is elastic and indeterminate; it can be expanded or shrunk by either legislative enactment or judicial interpretation. 31

Canadian jurisprudence on intellectual property rights has focused on statutory laws. Judicial references to the public domain have been rare and insipid. The courts have recently affirmed the view of the public domain as a pre-existing source of Canadian intellectual property laws, which are constructed from the Eurocentric traditions 32 and appropriated Indigenous traditions. 33

Legal pluralism is a reality, ignored by colonization, yet it previously was and presently is an essential function of society. There are myriad examples in modern western legal systems when micro law systems operate within larger, macro law systems, where the former is parallel to and accommodated by the latter. One example is the principle of federalism where state law sometimes operates alongside, in addition to, or instead of federal law. Another example is the concept of private ordering or self-regulation characterized by the law of the firm or corporation or in the context of Internet activities. A third example is the rise of the supranational legal regime, such as the European Union. Thus, the concept of legal pluralism can be invoked as the foundation for developing a sui generis system of legal protection based upon Indigenous law in functional operation alongside state, national, and international laws to protect Indigenous resources and8 intangible assets.

II. ACKNOWLEDGING HISTORICAL CONTEXT

In Canada, the Indigenous domain continues to be part of the supreme law of the land. 41 Canada’s constitution recognizes and affirms Aboriginal and treaty rights. 42 The SCC has affirmed that Aboriginal peoples’ constitutional rights are collective, communal, or group rights. 43 The constitutional rights generate the Indigenous domain, a metaphor for a holistic source of these rights. The Indigenous domain reveals the interrelated manifestations of the spiritual realm that generates diverse Indigenous lifeworlds. 44 These spiritual forces of nature have inspired and guided Indigenous peoples’ knowledge. 45 The Indigenous domain’s creativity and expressive modes have generated Aboriginal sovereignty, inherent powers, rooted constitutionalism, persuasive laws, and consensual treaties. 46 The Indigenous domain, which in Latin is called ex proprio vigore or sui generis, was vested in the Indigenous nations by the law of nations at the critical date when the British sovereign asserted jurisdiction over Indigenous territories. 47

The Indigenous domain has always been grounded in the ecologies that operate as the Indigenous peoples’ education system, just as nature is the Eurocentric public domain’s source. Their experiences with biotic and abiotic forces shaped their knowledge systems. The Indigenous domains have many Indigenous keepers and generators of knowledge, so that families continually generate distinctive heritages, identities, and landscapes. 48 The oral traditions and symbolic literacy of Indigenous peoples reveal the continent’s embodied and teaching ecologies, investing their ancestors’ knowledge, imagination, and experiences. This enduring spiritual process of generating knowledge, stories, and artistic media that makes people live right has never ceased; they have been a method of “survivance.” 49 It has survived the linguistic violence of colonialism and forced assimilation.

When this article promotes its theme of indigenizing intellectual property law, it means to apply legal pluralism to justify employment of Indigenous law as a primary source of law to begin the development of a sui generis legal system to bring to the fore essential protections for Indigenous knowledge, tangible and intangible cultural materials and artifacts, secret and sacred information and know-how, cultural expressions, and the biogenetic resources justly owned and possessed by Indigenous Peoples. By urging adoption of the indigenizing paradigm, this article implies that the current and most widely used and recognized laws governing intellectual property are, in their current form, incapable and at times inconsistent with protecting the rights and interests of Indigenous Peoples in their resources and intangible assets that have, through time, putatively derived from their origins, their interactions with their environment, their adaptations to the surrounding world, and their cosmology and creation stories.

The discourse about Indigenous rights in the information age is greatly enhanced by the opportunity to implement legal pluralism to demonstrate the capacity for Indigenous law and legal systems, whether complementary or not, to provide essential protections for Indigenous resources and intangible assets. Recognizing that Indigenous law is equivalent to western intellectual property law would evince a serious attempt by the dominant settler societies to work in partnership with Indigenous Peoples to develop a meaningful sui generis system of protection for Indigenous resources and intangible assets.

Many Americans are beginning to feel irrevocably connected to technology. This has created a rift within the American psyche wherein one part cannot imagine a world without such stimulation, immediate gratification, and communication, while the other part longs for tranquility, silence, and solitude. "For many non-Indian peoples, who are increasingly disillusioned with capitalist ethics, materialism, lack of family networks and support, and the general degradation of the environment, Native Americans represent both a romanticized golden past and a hope for a return to a simpler life in the future." It is within this paradigm that Americans are turning to stereotyped utopias of the Native American lifestyles and peoples, where Indians represent a complete rejection of technological advancement in favor of primitivism. It is the belief that the American Indian " was a savage, at just about the stage in civilization the white man was just a few centuries back.' »7 Within this view there is the assumption of a linear moral development model that connects savagery to the beginning of man's time on earth, with modernization and morality as the end result. Therefore, if Americans are unsatisfied with the status of modernity, they can look back and mimic stereotypes of indigenous life as a way to escape technological anxieties, and engage with the traditions of the past.

The notion of "playing Indian" dates back to media representations of westward expansion. However, a new utopian fascination with Native American life began in the 1970s and 1980s. These pivotal decades marked a surge of social awareness and advocacy with the subsequent Chicano, Free Speech, and Feminist movements. It was during this time of self-determination that Native American identity was reformed. A "newfound, but largely romanticized, respect for native peoples' connection with the land and environment emerged in the 1970s in conjunction with the civil rights movement and an increasing awareness of ethnic diversity and alternative lifestyles." This trend was pervasive and focused on Native American "spiritual purity" and relation to the land.?

Related to the derivative work problem, a new issue has emerged since the inclusion of sound recordings in the Copyright Act of 1976: sampling—”the act of taking a portion of one sound recording and reusing it as an instrument or an audio recording in a different song or piece.”66 For example, the modern genres of hip hop and rap both depend heavily on sampling for musical expression.67 Yet, sampling was quickly blocked by the courts. In Grand Upright Music, Ltd. v. Warner Brothers Records, the Southern District of New York held that Biz Markie’s rap song “Alone Again” impermissibly sampled a portion from Gilbert O’Sullivan’s “Alone Again (Naturally).”68 The Court held—devastatingly for genres like rap—that sampling without permission from the original copyright owner constituted blatant copyright infringement.69 Obtaining licenses for every sample presented a significant logistical and financial burden for rap artists.70 And unlike other parts of music copyright, there is no compulsory license for sampling (i.e., reproducing the sound recording); it is instead up to the copyright owner’s discretion whether to license the work or not, and to name the price.71 This forced rap artists to change how they create music or risk copyright sanctions.72 Indeed, the challenges posed by copyright to Black artists have led many to alter their creativity or leave music entirely.73 A third way in which U.S. copyright law has not equally protected racial minorities’ creative works is in requiring a known, recently alive author to gain copyright protection.74 Many centuries old, traditional Indigenous and non-Western songs and arts have communal or unknown creators.75 U.S. copyright law requires a known author and only protects works for a limited period of time, leaving these important but ancient works in the public domain.76 While such works remain unprotected, others can exploit traditional music and arts for their own profit without worrying about copyright infringement claims.77 This facilitates the free commercial repurposing of Indigenous cultural symbols and practices.78 U.S. copyright law defines creative arts as endeavors that are at least partially about making a profit,79 but this commercial approach is at odds with other artistic traditions. For example, Indigenous and non-Western societies around the globe value music as integral to their communities’ culture, and for non-commercial purposes such as medicine.80 The commercial appropriation of Indigenous cultural expression can be especially harmful due to the spiritual or nature of these works. 81 Thus, in these three ways, copyright law’s structure poorly serves living musical traditions.

Recognizing historical context and linking it to the foundational principle that rights-based advocacy is essential to the survival of Indigenous Peoples is the primary democratic means of reconciling the injustices historically and continuously exacted on Indigenous Peoples. As Martin Luther King Jr. so aptly taught: Injustice anywhere is a threat to justice everywhere. Larissa Behrendt seized upon this [*213] principle and gave it practical meaning for Indigenous Peoples when she stated:

By failing to recognize Indigenous ownership and presence, Indigenous property rights are relegated to the status of a hand-out. Native Title is not seen as a property right descended from prior occupation but a welfare measure: Indigenous peoples, when a legitimate property right is recognized, are seen as getting something for nothing.

We are now in a position to revisit the concern I raised at the end of chapter 1 regarding a problematic claim made by Dale Turner in This Is Not a Peace Pipe. Turner’s claim is that if Indigenous peoples want the political and legal relationship between ourselves and the Canadian state to be informed by and reflect our distinct worldviews, then we “will have to engage the state’s legal and political discourses in more effective ways.”79 This form of engagement, I claimed, assumes that the structure of domination that frames Indigenous– state relations in Canada derives its legitimacy and sustenance by excluding Indigenous people and voices from the legal and political institutional/dis- cursive settings within which our rights are determined. Seen from this light, it would indeed appear that “critically undermining colonialism” requires that Indigenous peoples find more effective ways of “participating in the Canadian legal and political practices that determine the meaning of Aboriginal rights.”80

Yet, I would venture to suggest that over the last forty years Indigenous peoples have become incredibly skilled at participating in the Canadian legal and political practices that Turner suggests. In the wake of the 1969 White Paper, these practices emerged as the hegemonic approach to forging change in our political relationship with the Canadian state. We have also seen, however, that our efforts to engage these discursive and institutional spaces to secure recognition of our rights have not only failed, but have instead served to subtly reproduce the forms of racist, sexist, economic, and political configurations of power that we initially sought, through our engagements and negotiations with the state, to challenge. Why has this been the case? Part of the reason has to do with the sheer magnitude of discursive and nondiscursive power we find ourselves up against in our struggles. Subsequently, in our efforts to interpolate the legal and political discourses of the state to secure recognition of our rights to land and self-determination we have too often found ourselves interpellated as subjects of settler-colonial rule.

Indigenous social policy in English-speaking settler states is changing. For the past 40 years, there was broad government consensus around a self-determination approach that aimed to secure Indigenous rights and entitlements, support self-governance and facilitate social reconciliation. But over the last 15 years, this consensus has slowly eroded (Lea et al. 2006; Te Atu O Tu MacDonald and Muldoon 2006; Bargh 2007). Emerging policies are less concerned with rights and relationships, and focus on reforming Indigenous behaviour, intervening in community ‘dysfunction’ and driving economic integration through mainstream employment (Preston 2013; Bargh 2007; I. Watson 2005; MacDonald 2011; Humpage 2005, 2008; Walter 2007; Altman 2007, 2010; Macoun 2011). In Australia this policy shift is particularly marked. Governments have abolished Indigenous representative institutions and reformulated Indigenous welfare provision in line with the ‘responsibility’ and ‘post-welfare’ agendas. But there are smaller corresponding changes in Canada, New Zealand and the US. Increasingly, political leaders and state agencies directly question Indigenous rights institutions (see, for example, the 2008 National Party commitment to abolish Maori seats in the New Zealand parliament; Tahana 2008) and focus policy attention on Indigenous ‘welfare dependency’ and community behaviour (see discussions of the Indigenous impacts of Canadian and US welfare reform, the latter through the Personal Opportunity and Work Opportunity Reconciliation Act of 1996 ; also federal government moves to takeover designated Indian communities for child safety reasons; Brown et al. 2001; Pulkington et al. 2010; Childress 2012). There are new policies emphasising mainstream economic participation and a discursive move from collective rights to individual equality of opportunity (see, for example, the 2012 US HEARTH Act of 2012 [‘Helping Expedite and Advance Responsible Tribal Home Ownership’] and Obama on Native American opportunity 2014). How can we make sense of this shift? In Australia it has been going on for some time, and there are multiple interpretations. Domestic political conditions play an important role, given the impact of a long period of conservative government (Sanders 2006). Some interpret the decline of the self-determination paradigm in terms of that paradigm’s internal contradictions and limitations. For example, they suggest that it was driven by misguided non-Indigenous investment in a particular kind of Indigenous cultural stasis. This meant that it failed to take account of the increasingly porous and transgressed boundaries of the Indigenous and non-Indigenous worlds, and the diverse aspirations of Indigenous people (Lea et al. 2006; Sullivan 2011; Rowse 2012; Austin-Broos 2011). Finally, there is academic focus on changing public ideas, and the impact of prominent Indigenous and non-Indigenous critiques of the existing order. Such critiques came from all political directions – some challenged self-determination’s carefully circumscribed remedialism and others its corrosive welfare economies (see Bradfield 2006; Kowal 2008; Pearson 2000; Sutton 2009; Johns 2010). This book seeks to add another dimension to our understanding, by locating the Indigenous policy transition in the context of broader domestic social policy changes. Of particular significance is the shift from social to neoliberal framings of citizen– state relations. Indigenous self-determination policy was conditioned by post-war social liberalism, and its vision of a benign, multicultural, enfolding state that recognised and secured citizen entitlements. The decline of the self-determination paradigm in Anglophone settler states can be partly understood in terms of the neoliberal critique and reconceptualisation of this social liberal welfare state. From this perspective, the Indigenous policy transformation is not just a move away from a particular approach, but a move to a new liberal paradigm that has been dominant in other social policy fields for 30 years. The four Anglophone settler states are wealthy liberal democracies that each embraced the neoliberalisation agenda, and this goes some way to accounting for the transnational character of the Indigenous policy shift. But while Indigenous policy is part of the domestic social policy world, it overflows it. In the settler colonial context, domestic Indigenous policy is a crucial site of political encounter. I suggest that neoliberal Indigenous policy constitutes a contemporary example of the longer historical imbrication of liberalism and colonialism. Both of these political forces are changing in the contemporary world, and neoliberal domestic policy in settler states forms an important but under-examined site of intersection. I use the case study of Australian policy to reconstruct the interaction between the intellectual projects of neoliberalism and settler colonialism, and argue that ongoing settler colonial hierarchies have been rearticulated through, rather than revived or transcended by, neoliberal frameworks. Importantly, this book does not aim to give a comprehensive account of how particular policies with neoliberal dimensions operate, or to examine the problems and opportunities for Indigenous people enmeshed with such policies (see Altamirano-Jiminez 2013; Te Atu O Tu MacDonald and Muldoon 2006). Both of these are important projects, and do not allow easy moral and political judgements. In their day-to-day operation, policy programs cannot be pre-emptively condemned or celebrated, but must be considered in terms of their concrete interactions with the diverse life projects of individuals and communities. Instead, I build on critical Indigenous theory, social policy scholarship and settler colonial studies to explore the ways in which changing policy logics in Indigenous affairs reflect and drive broader changes in dominant understandings of political relationships in liberal and settler colonial contexts (for others engaged with these themes in Australian scholarship see Howard-Wagner 2010, 2012; Stringer 2007; Lovell 2011; Morris and Lattas 2010; and Moreton-Robinson 2009). Ultimately, I seek to offer a set of analytical tools that might facilitate more detailed empirical articulations, and more open debate, of neoliberal Indigenous policy in its diverse manifestations.

The next section of the paper will, in a brief span, describe the evolution of intellectual property law. The historical focus is on the emergence of intellectual property as part of the positive legal order of states. All societies have had to devise norms for regulating the ownership and use of different kinds of information. Historically, this has been especially true of religious information. One can thus identify customary equivalents of intellectual property. But the western intellectual property tradition is rooted in the idea that intellectual property rights are positive rights created by the state for the benefit of the commonwealth. Within Thomist political theory the validity of positive law was itself to be judged by the axioms of natural law. The norms of positive law had to converge with the divine design which natural law communicated to men. The rules of positive law then met the test of validity, not by being a mirror reflection of some metaphysical counterpart, but rather by whether or not they contributed to the overall divine plan. Conceptually speaking, this allowed someone working within the natural law tradition to recognize the right of a state to modify property rights through the enactment of positive law.

The protection of intellectual property at an international level can roughly be divided into three periods. The first period, the territorial period, is essentially characterized by an absence of international protection. The second, the international period, begins in Europe towards the end of the 19th century with some countries agreeing to the formation of the Paris Convention for the Protection of Industrial Property, 1883 (the Paris Convention) and a similar group agreeing to the Berne Convention for the Protection of Literary and Artistic Works, 1886 (the Berne Convention). The third period, the global period, has its origins in the linkage that the United States of America (the U.S.A) made between trade and intellectual property in the 1980s, a linkage which emerged at a multilateral level in the form of the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (the TRIPS Agreement). The dates of the various conventions do not represent a sharp epochal divide. They do mark a significant change in the evolutionary direction of intellectual property protection.

Each of these chapters challenges the stereotype that Indigenous societies `live in the past' and are unable to shape their culture to adjust to new challenges and situations. Indigenous societies before Contact were both dynamic and flexible, possessing a creative strand that both then and now `repeatedly generates new variants of cultural practices and ...transforms the cultural structure itself' (Layton, page 66; see also Chapters 5 and 7). This raises another core issue underlying much of the discussion in this book: the notion of authenticity. As many others have pointed out, authenticity does not reside in a past that is unchanging, lacking any internal dynamic (Edwards 1997: 63). By proliferating and perpetuating stereotypes of Indigenous peoples as pristine and unchanging, globalisation may become a tool for disempowering Indigenous peoples on the ground that the practices of a contemporary present may not be the same as those of an idealised (and unrealistic) past. The creation of influential images of what constitutes `authentic' Indigeneity can constrain Indigenous peoples in real and material ways, limiting their social, economic, and political capacities. That process is made manifest in the statement by Jimmie Durham (cited by Gough in Chapter 5) that 'none of us feel that we are real Indians ...for the most part we feel guilty, and try to measure up to the white man's definition of ourselves'. On the other hand, authentic representation can also become an important aspect of Indigenous empowerment. In particular, as both Morphy and Layton demonstrate in Chapters 7 and 3 for the northern Australian Yolngu and Alawa people respectively, and as Dransart makes clear in Chapter 8 for the Aymara people of Chile, the notion of authenticity is central to the production of Indigenous art, the negotiation of Indigenous identity through art, and the explicit assertion of rights that can flow from this.

The second thing that must be done is to secure the land for settlers. This can be accomplished by imposing a modernist property regime that transforms land and resources (sometimes including people) into “things” that can be owned. This regime consists of such elements as mapping and marking boundaries to delimit an object that is to be owned, a system for recording ownership, and legal rules for ownership and sale of objects defined as property. Indigenous people generally understand the land and their relationship to it very differently, viewing themselves as being provided for by the land and in turn as living in harmony with the land and having a sense of responsibility for its welfare. Settler society does not recognize indigenous conceptions and from their own perspective of land as property, views indigenes as failing to make productive use of it.

THE LOGIC AND PRACTICES OF U.S. SETTLER COLONIALISM

Over the last forty years, the self-determination efforts and objectives of Indigenous peoples in Canada have increasingly been cast in the language of “recognition.”1 Consider, for example, the formative declaration issued by my people in 1975:

We the Dene of the NWT [Northwest Territories] insist on the right to be regarded by ourselves and the world as a nation.

Instead, we begin our analysis by looking at the broader global system in which knowledge and information operate: a settler-colonial system that extracts wealth, knowledge, and culture from economically marginalised communities and inequitably redistributes their economic fruits to the wealthiest and most powerful. This approach is in line with critiques that activists and critical scholars have long made of open-access movements: that the central focus on liberty values ignores concerns about equality; that a romantic notion of the ‘public domain’ as a neutral landscape where every person can reap its riches ignores its real role in exploiting the labour and bodies of people of colour, women, people from the Global South, and the impoverished. We now know that the ‘public domaining’ of Indigenous knowledge about local flora and fauna, traditional medicines, folklore, or traditional cultural expressions has enabled Big Pharma to take Indigenous knowledge, transform it into IP, and become the exclusive owner of that knowledge: a phenomenon known as biopiracy.

Abolitionist creativity also disagrees with an ideological belief that runs through some prominent segments of the open-access movements, namely that the system once worked well, but that ‘unfortunately, our IP regimes have strayed far from their original purposes’. For the colonised, for Indigenous Peoples whose collective knowledge has been ransacked, for communities forced into oppressive trade agreements (e.g. TRIPS), for the rising number of modern slaves working in global supply chains powered by intangibles, it is hard to see how the IP system ever worked for them – or what decades of reformist attempts inside IP law in the US have accomplished. For abolitionists, the system is not broken and in need of reform, tweaking, and tinkering. It is working as it was designed to work, as a settler-colonial legal and economic structure. And we are running out of time and of magical thinking waiting for public policy to somehow turn favourable in a corporate-dominated oligarchy.

In writing this book I set out to problematize the increasingly commonplace assumption that the colonial relationship between Indigenous peoples and the Canadian state can be reconciled via a liberal “politics of recognition.” I characterized the “politics of recognition” as a recognition-based approach to reconciling Indigenous peoples’ assertions of nationhood with settler-state sovereignty via the accommodation of Indigenous identity-related claims through the negotiation of settlements over issues such as land, economic development, and self-government. I argued that this orientation to the reconciliation of Indigenous nationhood with state sovereignty is still colonial insofar as it remains structurally committed to the dispossession of Indigenous peoples of our lands and self-determining authority.

My conceptualization of settler-colonialism as a structure of domination predicated on the dispossession of Indigenous peoples’ lands and political authority drew significantly from two theoretical resources: Karl Marx’s writings on the “primitive accumulation” of capital and Frantz Fanon’s anticolonial critique of Hegel’s master/slave parable when applied to colonial situations. With respect to Marx, I argued that three issues must be addressed within his work to make his writings on colonialism relevant for analyzing the relationship between Indigenous peoples and liberal settler polities like Canada. First, I argued that Marx’s thesis on primitive accumulation must be stripped of its rigidly temporal character; that is, rather than positing primitive accumulation as some historically situated, inaugural set of events that set the stage for the development of the capitalist mode of production through colonial expansion, we should see it as an ongoing practice of dispossession that never ceases to structure capitalist and colonial social relations in the present. Settler- colonialism is territorially acquisitive in perpetuity. Second, I argued that Marx’s theory of primitive accumulation must be stripped of its early normative developmentalist character. While it is correct to view primitive accumulation as the condition of possibility for the development and ongoing reproduction of the capitalist mode of production, it is incorrect to view it as a necessary condition for developing the forms of critical consciousness and associated modes of life that ought to inform the construction of alternatives to capitalism in settler- colonial contexts. I also suggested that Marx himself came to acknowledge the problematic character of this early formulation of his thesis and worked to correct it in the last decade of his life. And finally, I argued that the forms of colonial power associated with primitive accumulation need not be understood as strictly coercive, repressive, or explicitly violent in nature; rather, the practices of dispossession central to the maintenance of settler-colonialism in liberal democratic contexts like Canada rely as much on the productive character of colonial power as it does on the coercive authority of the settler state. Seen from this angle, settler-colonialism should not be seen as deriving its reproductive force solely from its strictly repressive or violent features, but rather from its ability to produce forms of life that make settler-colonialism’s constitutive hierarchies seem natural.

In Canada, the Indigenous domain continues to be part of the supreme law of the land. 41 Canada’s constitution recognizes and affirms Aboriginal and treaty rights. 42 The SCC has affirmed that Aboriginal peoples’ constitutional rights are collective, communal, or group rights. 43 The constitutional rights generate the Indigenous domain, a metaphor for a holistic source of these rights. The Indigenous domain reveals the interrelated manifestations of the spiritual realm that generates diverse Indigenous lifeworlds. 44 These spiritual forces of nature have inspired and guided Indigenous peoples’ knowledge. 45 The Indigenous domain’s creativity and expressive modes have generated Aboriginal sovereignty, inherent powers, rooted constitutionalism, persuasive laws, and consensual treaties. 46 The Indigenous domain, which in Latin is called ex proprio vigore or sui generis, was vested in the Indigenous nations by the law of nations at the critical date when the British sovereign asserted jurisdiction over Indigenous territories. 47

The Indigenous domain has always been grounded in the ecologies that operate as the Indigenous peoples’ education system, just as nature is the Eurocentric public domain’s source. Their experiences with biotic and abiotic forces shaped their knowledge systems. The Indigenous domains have many Indigenous keepers and generators of knowledge, so that families continually generate distinctive heritages, identities, and landscapes. 48 The oral traditions and symbolic literacy of Indigenous peoples reveal the continent’s embodied and teaching ecologies, investing their ancestors’ knowledge, imagination, and experiences. This enduring spiritual process of generating knowledge, stories, and artistic media that makes people live right has never ceased; they have been a method of “survivance.” 49 It has survived the linguistic violence of colonialism and forced assimilation.