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It is easier to imagine a catastrophe than to produce it. The 2003 East Coast blackout is the archetype for an attack on the U.S. electrical grid. No one died in this blackout, and services were restored in a few days. As electric production is digitized, vulnerability increases, but many electrical companies have made cybersecurity a priority. Similarly, at water treatment plants, the chemicals used to purify water are controlled in ways that make mass releases difficult. In any case, it would take a massive amount of chemicals to poison large rivers or lakes, more than most companies keep on hand, and any release would quickly be diluted.

Cyber-alarmists have also warned about hackers disabling major infrastructure such as power grids—potentially crippling entire countries. Grids do go down occasionally, but the culprits are typically squirrels and lightning. Regardless of the source, such disruptions are usually brief and bearable, and engineers are increasingly designing systems that are resilient to such threats. Estonia, for instance, the victim of a major and oft-discussed cyberattack in 2007, is now the home of NATO’s Cooperative Cyber Defence Centre of Excellence.

When it comes to disaster, reach is far less important than physical impact. Lewis noted that mass physical damage from cyber events hasn’t been realized, and the contrary is observably true for natural disasters. Reversibility is an important and often overlooked aspect of physical impact, as it defines the longevity of damage. Small-arms damage, for example, is generally reversible, while nuclear attacks are not. Cyber attacks have been demonstrably reversible, given their transitory nature. U.S. institutions and communities have become quite adept at reversing the damage from natural disasters, but their widespread physical impact makes the process much slower and labor-intensive than remediation after cyber attacks. A comparison of two events makes this clear.

In 2015, a cyber attack on the power grid affected 230,000 people in Ukraine. Due to what has often been characterized as an act of cyber war (a questionable use of that expression at best), the lights were out for as long as six hours. This came as part of a wave of cyber attacks on the grid in 2015 and 2016, none of which had any further meaningful impact. The 2015 cyber attack-induced blackout tends to be seen as the “success story” for offensive cyber against power grids, even despite the lack of sustained impact. Natural catastrophes, on the other hand, have had no trouble depriving millions of people of access to electricity for days at a time. One of the most interesting cases for closer study, though, is Hurricane Ida.

This contemporary approach to cyberthreats resembles the aftermath of 9/11, when almost all experts believed an even larger terrorist attack would soon take place. Then, as now, the threat is overblown. Although occasionally dramatic, cyberattacks have turned out to be a comparatively minor and manageable threat. Far too much discussion around the issue focuses on worst-case scenarios, fails to contextualize the problem, and neglects to weigh the costs of cyberattacks against the enormous value of the Internet and artificial intelligence. Most commentary, moreover, does not fully appreciate the ability of the business sector—by far the most tempting of targets for malevolent hackers—to develop effective countermeasures.

CYBERWAR

Finally, an essential aspect of cyber operations’ strategic effects is the level of harm to the target. Most malicious cyber activity to date has not risen to a threshold of significant harm, violent effects, or loss of life.44 This is especially the case when compared to other military capabilities.45 That said, there are different ways to operationalize level of harm. One potential metric is loss of life. To date, no one has reportedly died as a direct result of a cyberattack, despite over thirty years of recorded cyber operations. 46 Even in hypothetical catastrophic scenarios, the cost in terms of human casualties is relatively low compared to other military capabilities. For instance, a common worst-case scenario is a cyberattack on a power grid.47 However, the 2015 Russian cyberattack against Ukraine’s power grid, the first known example of an offensive cyber operation targeting a state’s power grid, did not lead to any reported casualties.48

It is also possible to measure the harm cyber operations inflict in treasure rather than blood. According to this metric, the financial or economic costs of cyberattacks are significant. For example, the total cost of the most expensive cyberattack in history, the 2017 NotPetya attack, is estimated at $10 billion.49 However, governments have largely avoided characterizing these operations as crossing an “act of war” or “use of force” threshold.50 While still of strategic consequence, cyber operations (especially absent physical violence) appear to be perceived differently than other military operations.51

The risk of escalation is grossly exaggerated. Countless Track II dialogues are undertaken to reduce the risk of miscalculations that could lead a cyber incident to escalate into kinetic violence. Yet, in two decades of malicious cyber action, there has never been an incident that has led to escalation. While there have been a few instances of unintended consequences and collateral damage, these did not lead to an escalation of conflict. We can now reject the initial hypothesis of miscalculation and escalation as inaccurate. The likely reasons there have been no cyber incidents that resulted in escalation is that states maintain careful control of their most dangerous cyber capabilities and have devoted their own strategies to reduce risk. We should learn from their experience of tight leadership and control as we design our own active policies.

A new strategy must use communications, messaging, and signals with opponents, allies, and publics. This does not mean that every action should be accompanied by a press release, but a new cyber strategy will need to use public and private communications to shape opinion in ways favorable to the United States and make it clear that our actions are guided by international law and agreement. Adopting a more assertive posture in cyberspace is in itself a message that will improve our position with opponents. Diplomatic and public messaging can help manage escalation risk and strengthen collective responses with allies while shaping opponents’ planning. Decisions on timing and audience will be determined by the specifics of each action, but our overall goal should be to end Strangelovian opacity.

Rather than dangerous escalatory spirals that threaten to spill over into kinetic conflict, even the most heated interactions between rivals in cyberspace are characterized by limited, tit-for-tat retaliations that are often separated by significant periods of time and that remain far below any conflict or armed attack threshold. Indeed, in a survey of cyber incidents and responses between 2000 and 2014, Brandon Valeriano et al. find that "rivals tend to respond only to lower-level [cyber] incidents and the response tends to check the intrusion as opposed to seek escalation dominance. The majority of cyber escalation episodes are at a low severity threshold and are nonescalatory."20 Similarly, Sarah Kreps and Jacquelyn Schneider conduct an original experiment to test different logics of cyber escalation and find that cyber attacks "create a threshold that restrains the escalation of conflict."21 Specifically, they find that Americans are less likely to support using kinetic force to respond to a cyber attack, even when the effects of the latter are comparable to other types of kinetic attacks.22

Even the most destructive cyber attack in history, NotPetya, launched by Russia in the spring of 2017 (reportedly using a leaked National Security Agency tool, EternalBlue), did not cause escalation. NotPetya wreaked $10 billion worth of damage across the globe, including to large multinational companies such as Maersk, Merck, and FedEx.23 If cyber operations are likely to cause escalation, NotPetya would be a prime contender, not only because of the extent of the damage inflicted, but also because it was carried out by a longstanding adversary of the nations it affected, which included some of the most powerful states in cyberspace.

The NotPetya case is just one example. Nevertheless, the overall absence of any meaningful instances of cyber escalation raises questions about the extent to which the cyber domain is truly escalatory, let alone more dangerous than other domains of warfare or strategic competition. In other words, there is a significant mismatch between the cyber escalation views held by many prominent experts and the available evidence. Three factors could account for this gap.

First, differences between theoretical expectations and empirical reality may stem from definitional issues—specifically, how those who assert that the cyber domain is inherently escalatory define what "escalation" means. As we discuss in detail later in this chapter, we conceptualize escalation as something that changes the nature of a strategic interaction between parties in a way that makes war more likely or, if conflict is already taking place, more severe. According to this definition, neither the sheer volume of cyber incidents in the international system nor evidence of any type of response to a cyber incident necessarily constitutes escalation.2, In contrast, some may point to the observation of a high volume of cyber incidents or any form of tit-for-tat dynamic (irrespective of the relative level of cost and risk they may generate) as forms of escalation. However, the mere presence of behavior or activity per se is not sufficient evidence of escalation.

More importantly, there are powerful strategic constraints on those who have the ability to launch catastrophe attacks. We have more than two decades of experience with the use of cyber techniques and operations for coercive and criminal purposes and have a clear understanding of motives, capabilities, and intentions. We can be guided by the methods of the Strategic Bombing Survey, which used interviews and observation (rather than hypotheses) to determine effect. These methods apply equally to cyberattacks. The conclusions we can draw from this are:

Nonstate actors and most states lack the capability to launch attacks that cause physical damage at any level, much less a catastrophe. There have been regular predictions every year for over a decade that nonstate actors will acquire these high-end cyber capabilities in two or three years in what has become a cycle of repetition. The monetary return is negligible, which dissuades the skilled cybercriminals (mostly Russian speaking) who might have the necessary skills. One mystery is why these groups have not been used as mercenaries, and this may reflect either a degree of control by the Russian state (if it has forbidden mercenary acts) or a degree of caution by criminals.

Online marketplaces and sellers have invested significant time and resources to implement the INFORM Consumers Act. It will take time to understand how INFORM impacts both marketplaces and especially small and medium-sized sellers. Lawmakers should give INFORM time to work before pushing legislation that is more burdensome and harmful to online sellers. Because of INFORM, covered “online marketplaces” have placed additional identification, verification, and disclosure requirements on sellers. This will help prevent bad actors from selling through online marketplaces and give stakeholders improved tools against repeat offenders. In addition, INFORM will help boost collaboration between digital services, industry stakeholders across the online ecosystem, and with law enforcement. INFORM will also help protect small business sellers who are running legitimate businesses online by helping to weed out bad actors and give consumers more confidence online.

A small percentage of bad actors misuse online marketplaces to offer counterfeit goods. But counterfeiting did not begin with the internet. Spurious trademarks are as old as trademarks themselves; by the early 1980s, long before the commercial internet, 30 percent of businesses responding to an ITC questionnaire reported that their goods had recently been subject to counterfeiting.4 Nor did counterfeiting through brick and mortar stores end with the growth of online services. Some of the most significant recent secondary liability trademark cases in the United States involved physical storefronts, not online companies.

Even as the sale of goods has moved increasingly online, physical markets continue to play the dominant role in facilitating the trade in counterfeit goods, including markets in China, Russia, and Vietnam, among other places. In 2019, the Organisation for Economic Co-operation and Development (“OECD”) released a report titled Illicit Trade: Trends in Trade in Counterfeit and Pirated Goods, which provides a comprehensive, “quantitative analysis of the value, scope and magnitude of world trade in counterfeit and pirated products.” The report demonstrates the complex 6 issues with tracking and identifying counterfeit goods. The problem is only compounded as “parties that engage in the trade of counterfeit and pirated products tend to ship infringing products via complex routes, with many intermediary points... to facilitate falsification of documents in ways that camouflage the original point of departure, establish distribution centers for counterfeit and pirated goods, and repackage or re-label goods.” This often makes it nearly 7 impossible for external experts, and even trained government officials, to spot counterfeit goods.

But retailers are working hard to counter these trends and protect their customers. Here’s four ways how:

Using AI to Spot Fakes

Fighting counterfeits is a shared mission and we advise Congress to regulate the retail market in its totality, including e-commerce, traditional brick-and-mortar, and small businesses, using a coherent regulatory approach that applies to everyone. However, American small businesses should not be expected to shoulder a disproportionate burden. Instead, the regulatory approach should also be proportional to the scale, and the scale of the problem is far from clear. A popular figure that is frequently invoked ($500 billion) is a four-year-old, worst-case scenario that sweeps in estimated copyright and patent infringement and precedes recent legislation, and is thus not useful for this policy discussion.

II. SHOP SAFE Is Not Needed

MATTHEW SCHRUERS: We're just talking about the scale of the problem. And I would note that all of these statistics that we're looking at are by their own terms, wildly inflated relative to the problem that we're talking about. First of all, many of them are the upper range and so we get a site of between X and Y. And Y is the top figure and then Y becomes the figure, so. We need to realize that -- that the outer bound is not the median figure.

Secondly, most of these figures apply and include copyright piracy, patent infringement. And -- and I'll be the first to acknowledge that infringement in foreign markets that have weak rule of law is a serious policy problem. That is not the problem that -- that we're talking about here. This bill is not going to do anything about pirated software in China.

The National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF) applaud the decision to hold this long overdue consultation.Since 2016, NCAI, represented by NARF, has called on the federal government to engage in government-to-government consultation on tribal intellectual property issues. These efforts included NCAI passing resolutions in both 2016 and 2022 calling for immediate and direct consultations regarding international negotiations happening at the World Intellectual Property Organization (Resolution PHX-16-054 and Resolution SAC-22-038). “The United States federal government needs to ensure free, prior, and informed consent from Tribal Nations as it develops positions to be taken in these international negotiations around genetic resources, traditional knowledge, and cultural expressions. Tribes have sovereign rights and authority as the holders and guardians of these aspects of our cultures that must be respected by the United States. The upcoming consultations are a necessary step to ensure that these legal and moral requirements are met,” said NCAI Executive Director Larry Wright, Jr. “The United States Patent and Trademark Office has taken positions in negotiations at the World Intellectual Property Organization more aligned with corporations that want to access and use Indigenous Peoples’ genetic resources, traditional knowledge, and cultural expressions than with the United States’ role as trustee for Tribal Nations. The United Nations Declaration on the Rights of Indigenous Peoples recognizes Indigenous Peoples’ rights to their cultural and intellectual property, as well as the obligation for the United States to take measures to protect those rights. It is good that the United States is living up to its obligation to consult with Tribes, and the concern now is to ensure that the consultation is meaningful and actually impacts the United States’ negotiation positions,” explained NARF Staff Attorney Sue Noe.

For purposes of Native American intellectual property, the most relevant inquiry would be the scope of the term "Indian products" under the provisions of IACA. Unfortunately, the term "Indian products" is not defined within the act; rather it "has the meaning given such term in regulations which may be promulgated by the Secretary of the Interior."'42 The lack of promulgation of regulations by the Secretary of Interior allows Native American tribes an opportunity to ask the courts for a broad interpretation of the IACA to expand the protection of their intellectual property. If the term could be expanded beyond arts and crafts in the literal sense, "Indian products" would encompass Native American traditional seeds and folk varieties, cultural ideas and expressions, and other Native American intellectual property.

Delegation, Alaska Leaders: Biden Administration puts American energy security at risk, harms the state and Alaska Native Communities U.S. Senators Lisa Murkowski, Dan Sullivan (both R-Alaska), Representative Mary Peltola (D-Alaska), and North Slope and other Alaska leaders today expressed their opposition to two Alaska new anti-development decisions announced by the U.S. Department of the Interior (DOI). DOI is proposing to withdraw millions of acres within the National Petroleum Reserve-Alaska (NPR-A) and canceling the lawfully awarded leases to the Alaska Industrial Development and Export Authority (AIDEA) within the non-wilderness Coastal Plain (1002 Area) that were issued in early 2021 as required by law. Both moves are in direct contravention to Alaska-specific laws, lack scientific backing or consultation with Alaska Native stakeholders, tribes and communities, and come at the worst possible time, geopolitically. “The NPR-A, which is explicitly designated for energy production, turns 100 this year, and we have worked for decades how to responsibly develop a very small portion of the non-wilderness 1002 Area. Now the Biden Administration, at a time when America and our allies need Alaska’s resources more than ever, has decided to go their own way by further locking Alaska down while refusing to consult with the Alaska Natives who actually live on the North Slope. It’s bad enough to tear up legal contracts and renege on federal commitments. But it’s even more unconscionable that the Biden administration is penalizing Alaska right as it allows Iran to produce more of its oil and solicits the same from Venezuela. It’s not hard to predict what will happen as they allow the world’s worst actors to enrich themselves, while punishing Alaska. Fewer jobs at home, more imports for California, and higher prices for everyone. These decisions are illegal, reckless, defy all common sense, and are the latest signs of a incoherent energy policy from President Biden,” said Senator Lisa Murkowski. “Having just spent more than a month home in communities across our state, there is palpable anger and frustration among Alaskans about the Biden administration’s unrelenting assault on our economy and our ability to lawfully access our lands. This war on Alaska is devastating for not only Alaska but also the energy security of the nation. This unlawful cancellation of AIDEA’s ANWR leases today now brings us to 55 executive orders and actions specifically targeting Alaska since President Biden assumed office. The Biden Interior Department’s incredulous announcement of a second ANWR lease sale begs the question: What investor in their right mind would ever consider spending millions of dollars in ANWR having just witnessed the administration pull the rug out from under the last standing lessee from the previous sale? Unfortunately, that seems to be the point. The administration is putting on a legal charade by pretending to follow the law that requires them to hold lease sales with no intent of ever actually honoring those leases-- daring any investor to waste their time and money. Not only is this an affront to the rule of law, it’s also a grave injustice to the Inupiat people of the North Slope, especially the people of Kaktovik—the only village in ANWR. As evidenced by this and so many of the administration’s actions negatively impacting the Alaska Native people, the idea of ‘equity’ is being exploited as a hollow political soundbite,” said Senator Dan Sullivan. "I am deeply frustrated by the reversal of these leases in ANWR. This administration showed that it is capable of listening to Alaskans with the approval of the Willow Project, and it is some of those same Inupiat North Slope communities who are the ones that are most impacted by this decision. I will continue to advocate for them and for Alaska's ability to explore and develop our natural resources, from the critical minerals we need for our clean energy transition to the domestic oil and gas we need to get us there. We can only get to that transition by listening to the people on the ground. Finally, we can't keep erasing our progress with every administration. I will continue to advocate for permitting reform that includes predictable timelines from the federal government, which must be a reliable partner in leasing and developing our resources,” said Representative Mary Peltola. “This latest action by the Department of the Interior shows arbitrary disregard for Federal law, based on campaign trail rhetoric. Campaign promises are not enough to justify this agency action. Under the law, Interior must present real facts and reasons that support this reversal in position. Interior’s action leaves AIDEA one choice, we have to go to court to protect our rights in the ANWR leases. This time, we will ask the court to allow us to conduct discovery that could include taking the deposition of Biden’s messenger, Secretary Haaland and possibly other administration officials involved so the real motives are made public,” said Randy Ruaro, Executive Director of AIDEA. “Where is the justice and local consultation for Alaska Natives and all of our residents when the Depart of Interior and extreme environmental groups conspire to manipulate the current system and bypass even federal law that leads to costly litigation, profits for NGO’s, and our local economy further damaged? Simply put, these discriminatory and bias outcomes are unacceptable and should not be tolerated by federal regulatory agencies, such as BLM, that oversee these politically motivated decisions which now even ignore years of documented science, public meetings, and local governments our locals that rely on subsistence foods to live a healthy life. Secretary Haaland, we can’t go to a Whole Foods store in Arlington or DC to meet our basic needs,” said North Slope Borough Mayor Harry Brower. “Our regional leadership has tirelessly offered to work in partnership with the administration on issues affecting our region. The decisions issued today exclude the voices of the North Slope Iñupiat, causing irreparable harm to our culture and economic self-determination,” said ASRC President and CEO Rex Rock, Sr. “Today’s decision once again shows that the Biden administration prioritizes their agenda over the will of local Indigenous communities. By dismissing the needs and interests of the people who call this region home, they continue to impede the self-determination of the Iñupiat of the North Slope. These actions contradict local, Indigenous-led resolutions despite the administration’s ‘pledge’ to listen and work with Indigenous communities,” said Nagruk Harcharek, President, Voice of the Arctic Iñupiat. “The administration has continually violated its mandate to consult and work with ICAS, the region’s federally recognized Tribe. This action directly impacts the livelihoods and economic future of our tribal members. Our voices, our heritage and our connection to this land cannot be silenced or overlooked,” said Morrie Lemen, Executive Director of the Iñupiat Community of the Arctic Slope. “How can the Secretary of Interior make a decision that has such an economic impact on our community of Kaktovik without any formal Tribal Consultation through our sovereign relationship with the federal government? AND to do this under the name of climate change without engaging us as a Tribe is completely discriminatory. Native Village of Kaktovik has engaged on this issue at every level – we were involved in the Coastal Plain EIS and stand by the Record of Decision – you are ignoring us as a tribe. For an Administration that is focused on Indigenous Knowledge we wonder when you have talked to us about climate change in our region. We are losing confidence in President Biden’s actions and promises to Tribal Consultation and Strengthen Nation-to-Nation Relationships and Advancing Racial Equity and Supporting Underserved Communities! This all sounds good unless you are a tribal government that has a different stance than this Administration on what types of activities should happen in our homelands. We are in the midst of subsistence – the timing of this announcement couldn’t be more tone deaf to the Kaktovikmiut – because our community is focused on providing our native food to sustain us through the upcoming winter. We demand Government-to-Government consultation on how this decision was reached – we will not be muted!” said Nathan Gordon Jr., Vice President, Native Village of Kaktovik. “It’s difficult to express our utter shock and disappointment of Secretary Haaland’s decision today. We live in the Arctic! We are the Arctic! And for you to tell us about our region in the name of climate change is outrageous! For an Administration that touts its focus on working with Indigenous People from our perspective it is doing the opposite. We are a subsistence culture and are working hard to collect enough food to feed our community through whaling. We don’t have the time or energy to address this action. I can only say that as the only community within the Coastal Plain who has been fighting for the rights promised to us by Congress over 40 years ago, under the Alaska National Interest Lands Conservation Act we are astounded that Secretary Haaland has defied Congress through her actions. We are a small community that suffers as the federal winds blow and feel the Biden Administration is working to effectively erase us from the land that we have inhabited for hundreds of years,” said Charles Lampe, President, Kaktovik Iñupiat Corporation. “We are being blindsided by this action! Our community fought hard to get the Coastal Plain opened to oil and gas leasing. We are an economically underserved community and are continually looking for economic opportunities for our long-term sustainability. Forty years ago we found ourselves located in a National Wildlife Refuge against our will. Life has been difficult for us under the Refuge management, there are too many rules and regulations for a small community like ours to adjust to. One of the opportunities we always looked towards was the future potential of oil and gas leasing in the Coastal Plain. The Secretary’s actions today basically goes against Congress and again takes rights away from us to manage our own lands to provide for our future. We are appalled by this action and its timing – we are harvesting our native foods and that’s our primary focus right now. What does President Biden plan to do for our community if you take away our economic opportunities,” said Annie Tikluk, Mayor, City of Kaktovik. “The government should respect sovereign rights of the local people. Our people need jobs to earn wages in order to lead a subsistence lifestyle,” said Matthew Rexford, Tribal Administrator for the Village of Kaktovik.

(Marcia Ellen DeGeer holds a Juris Doctorate from the New England School of Law, and is now a lawyer specializing in business. 2002, Biopiracy: The Appropriation of Indigenous Peoples’ Cultural Knowledge. New England Journal of International and Comparative Law, Vol. 9 no. 1, pages 179-208. CPSW - GHS-LHM//)

Trade Secrets. Trade secrets may provide more protection for Indigenous Peoples than patent law. Trade secrets are assigned or licensed and do not require the same amount of complexities that a patent application requires. Trade secret protection does not require “any government filing or approvals to be effective.” Trade secrets are protected as long as they do not become widely known. They allow the inventor to retain control over the trade secret as long as it is kept secret rather than the finite period for patents. There are three requirements for trade secret protection: 1. The information must be kept secret; 2. The trade secrets must have commercial value because it is secret; and 3. The person claiming the trade secret must have made reasonable efforts to keep the information secret. Compared to patent law these requirements have a low bar. First, while the secrecy requirement establishes that the owner know the information is secret and must take precautions to keep it secret, this requirement is not absolute and only expects the holder to make reasonable efforts. Second, courts have tended to construe the commercial value requirement in a lenient fashion by “finding that a secret with ‘potential’ or yet unrealized value can constitute commercial value.” Third, the burden of proof for misappropriation of trade secrets is on the one who owns the trade secret but if the claimant proves misappropriation, the burden shifts to the accused to prove that the information was acquired from another source other than the claimant. Another positive factor in trade secret protection is that when misappropriation is proven the remedies “include injunctions, compensatory damages, and punitive damages for ‘willful and malicious misappropriation.’” While trade secrets offer better protections for Indigenous Peoples than patent law, they still face some of the same challenges as with patent law; they still need to know that they need protection and need access to adequate funds and legal advice.

(Marcia Ellen DeGeer holds a Juris Doctorate from the New England School of Law, and is now a lawyer specializing in business. 2002, Biopiracy: The Appropriation of Indigenous Peoples’ Cultural Knowledge. New England Journal of International and Comparative Law, Vol. 9 no. 1, pages 179-208. CPSW - GHS-LHM//)

VI. POSSIBLE SOLUTIONS Patent law is not an effective protection for Indigenous Peoples because they fail to meet the requirements of patentability. Also, international bodies offer little protection, as many nations do not sign onto the treaties. They have little enforcement power because of the lack of willingness to adhere to the mandates, and competing interests get in the way of continuity. Four possibilities are outlined below that could aid in protecting Indigenous Peoples’ rights in plants and cultural knowledge. However, each comes with their own drawbacks. Ultimately it will take a combination of laws, resources, and a global willingness to support Indigenous Peoples to remove the impediments to protections. A. Convention On Biological Diversity. The Convention on Biological Diversity (CBD) has the potential for holding countries accountable for their Indigenous Peoples rights. The TRIPS agreement is in direct opposition to the CBD, which aspires to conserve the world’s biological resources and to advance sustainable development. Both India and Mexico have ratified the treaty but although the United States through the Clinton administration signed the CBD in 1993, Congress has yet to ratify it. There are three aspects of the CBD that pertain to the preservation of cultural and biological diversity contained in article 8(j). Article 8(j) states: Subject to its national legislation [1] respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and [2] promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and [3] encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices[.] In order for these goals to be effective, countries that have ratified the treaty need to put pressure on the United States to ratify and abide by the objectives of this convention, the TRIPS agreement needs to be altered to include these goals and each nation needs to individually incorporate these goals into their intellectual property regimes. The CBD considers Indigenous knowledge to be “traditional technologies” that are equal to the western capitalist system. The Convention states in Article 18(4): The Contracting Parties shall, in accordance with national legislation and policies, encourage and develop methods of cooperation for the development and use of technologies, including indigenous and traditional technologies, in pursuance of the objectives of this Convention. The CBD is the first international treaty to recognize the importance of the Indigenous Peoples’ role in “gathering and preservation of cultural knowledge regarding regional biodiversity.” The CBD also recognizes that Indigenous Peoples should benefit in the monetary gains of their cultivation, preservation and innovations. The TRIPS agreement could be altered to agree with the United Nations Convention on Biological Diversity. The failure of the United States to ratify the treaty is an affront to the value of the Indigenous Peoples’ knowledge.

Although tribal sovereign immunity is widely understood as an inherent part of tribal sovereignty, 79 the legal doctrine rests on shaky ground. As an inherent part of tribal sovereignty, sovereign immunity should be understood not as a delegation of congressional power, but as a privilege each Native nation possessed prior to the creation of the United States by virtue of its status as a sovereign nation. In reality, however, tribal sovereign immunity - like all other areas of federal Indian law - is subject to the will of Congress 80 and, at least in the eyes of some, to the will of the Supreme Court. 81 It has long been held that Congress has plenary powers over Indian affairs, including power over tribal sovereign immunity. Thus, at any point in time, Congress could choose to limit or eliminate the doctrine of sovereign immunity in the tribal context altogether. [*138] In its current form, tribal sovereign immunity has boundaries. 82 First, Native nations may not invoke sovereign immunity to avoid being sued by the federal government. 83 Additionally, the doctrine of tribal sovereign immunity does not protect individual tribal members from suit, 84 although Native nation-owned businesses may be able to exercise the power of sovereign immunity. 85 Similar to state sovereign immunity protected by the Eleventh Amendment, tribal sovereign immunity is also limited by the fact that tribal officers may be sued for injunctive relief in appropriate circumstances. 86 Generally speaking though, tribal sovereign immunity's boundaries are located where tribes have given consent to being sued and to where Congress has abrogated the applicability of the doctrine itself. 87 Native nations can consent to being sued, thus waiving tribal sovereign immunity. This most commonly occurs when a Native nation expressly [*139] waives its right to sovereign immunity via clear language in a legal document or via the decision not to exercise the right at trial. A Native nation may also impliedly waive its right to sovereign immunity in circumstances where the nation's actions and/or words are interpreted by a court as consenting to a lawsuit, regardless of whether that was the nation's actual intent or not. For example, in C & L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe, the Native nation had a construction contract with a business. 88 The contract expressly stated that any disputes would be resolved via arbitration, but made no mention of lawsuits in court. A unanimous Supreme Court held that this type of clause was sufficient for a Native nation to be subjected to lawsuits with respect to the arbitration reward. 89 On the other hand, in 1991, the Supreme Court, in Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe, held that the mere filing of an action for injunctive relief by the Native nation did not result in a waiver of sovereign immunity and did not open up the nation to counterclaims alleging money-damages. 90 In addition to consent, Native nations may also be precluded from relying on the doctrine of sovereign immunity when Congress has abrogated that privilege. Congressional legislation abrogates tribal sovereign immunity and subjects Native nations to lawsuits only when an "unequivocal expression" of congressional intent to do so exists. 91 Absent such an expression, tribal sovereign immunity remains intact. Given that the doctrine of sovereign immunity is based on a precept - "the King can do no wrong" - that is generally rejected by democratic principles and given that the doctrine seems to run contrary to notions of traditional Native leadership by consensus, why then does the doctrine continue to exist? While commentators have put various justifications of sovereign immunity forth, 92 the two strongest invoke sovereignty and fiscal considerations. Additionally, the role tradition plays in United States jurisprudence also helps explain why, despite its detractors, sovereign immunity remains a part of the American legal landscape. Sovereign immunity is often justified on the basis that it is a natural extension of a sovereign's autonomous status. 93 To be sovereign is to be [*140] the source of political power from which all specific political powers are derived. 94 Thus, sovereignty includes the power to define the forum, procedure, and limits with respect to lawsuits against the sovereign - which is, in essence, how the doctrine of sovereign immunity functions. As sovereigns, the federal government, 95 the states, 96 and Native nations all enjoy the benefits of sovereign immunity. 97 When outside actors acknowledge and respect a government's exercise of sovereign immunity, they are implicitly recognizing that government's sovereignty. In this sense, it has been argued that this justification for sovereign immunity is more "likely to ring true with respect to tribal than nontribal governments." 98 Sovereign immunity is also frequently justified on the grounds that "the doctrine prevents burdensome financial losses that could seriously impair or destroy governmental operations." 99 There is no question that sovereign immunity protects governmental treasuries by preventing lawsuits for money damages. 100 This justification for the doctrine tends to be particularly significant within the tribal context. After all, although great strides with respect to governmental operating budgets have been made by many Native nations, when compared to the states and the federal government, Native nations continue to have significantly less capital and less ability to raise capital through taxation. 101 To quote one tribal court judge, "it is not long ago that the only thing standing between the nation and bankruptcy was sovereign immunity." 102 Finally, tradition also helps explain why sovereign immunity continues to exist within the United States legal context. As discussed above, sovereign immunity has been a part of the United States' legal fabric since [*141] the country's founding. 103 Even within the Native context, the Supreme Court has explicitly recognized the doctrine for nearly a century. 104 Due in part to the United States' common law tradition and legal principles like stare decisis, legal changes tend to occur very slowly. Undoing centuries of legal precedent - whether in the federal, state, or tribal context - would undoubtedly bring with it significant and varied impacts, the likes of which have probably aided in preventing the Supreme Court from abolishing the doctrine in any context. 105 V. TRIBAL SOVEREIGN IMMUNITY'S IMPACT ON TRIBAL COURTS As legal scholars and courts continue to weigh the pros and cons of tribal sovereign immunity, the fact remains that Native nations currently enjoy the privilege of immunity and must decide how to use this power. Like any power, sovereign immunity is a tool that can be used to achieve different ends. And no matter how this tool is utilized, it frequently has consequences for tribal courts. This section examines the options Native nations have available to them as well as the pros and cons of different strategies with respect to tribal sovereign immunity policies. A. Tribal Sovereign Immunity is a Tool that Affects Tribal Courts Every time tribal sovereign immunity is invoked or waived, it affects tribal courts. When a Native nation invokes sovereign immunity and prevents a lawsuit from moving forward, the effect on the tribal court system is, in the immediate sense, one less case on the docket. In the long-term, if a Native nation continually invokes sovereign immunity with respect to a certain type of cases (for example, all contract cases), then the tribal court will fail to develop any expertise or jurisprudence in that area of law. Conversely, when a Native nation waives sovereign immunity and allows a case to be heard by the tribal court, the short-term effect is adding one case to the docket, and the potential long-term effect is the development [*142] of expertise and jurisprudence with respect to the substantive area of law the case concerns. These relatively straightforward strategic considerations, when paired with innovation and time, can achieve dramatically different results. By way of demonstrating how tribal sovereign immunity can shape a tribal court system over time, consider two extreme situations: a Native nation that never waives sovereign immunity and a Native nation that always waives sovereign immunity. In a Native nation that never waives sovereign immunity under any circumstances, no lawsuits against the nation itself would ever be heard by the tribal court unless authorized by Congress. 106 This would likely include lawsuits related to civil rights violations, contract disputes arising out of Native nation-owned business, and torts arising out of injuries sustained on nation-owned lands. Additionally, no lawsuits initiated by any of the states against the Native nation would be heard in any forum either. Potentially, a strategy of never waiving immunity could have the positive benefit of providing maximum protection to the nation's treasury. However, the same strategy would likely also have other long-term costs. One potential cost to the Native nation might be a tribal court system that is seen as underutilized, unsophisticated with respect to certain critical areas of law, unable to create a culturally appropriate jurisprudence in certain critical areas of law, and possibly illegitimate, especially to the outside world. 107 Such a court system would likely find it increasingly difficult to carry out its purposes - advancing tribal sovereignty, empowering the other branches of government, promoting peace and community health, and supporting economic growth over time. Additionally, a Native nation government always invoking tribal sovereign immunity is likely to be seen as increasingly unfair - at least to those having to deal directly with the nation - a situation that one would expect to produce negative economic and relational consequences as well. 108 [*143] On the opposite end of the spectrum, a Native nation that always waives sovereign immunity could potentially have a very active court, but one that would also carry both positive and negative consequences along with it. For the sake of argument, I will assume that the Native nation in question is choosing to waive every lawsuit filed against it into tribal court without any limitations on damages. 109 Potentially, this strategy would result in some negative effects on the tribal court. On the positive side, a tribal court operating under these circumstances would have the opportunity to develop expertise and culturally-appropriate jurisprudence in a wide range of substantive fields of law. This court, depending on the decisions it makes, may also be able to produce a track record of fairness, thus potentially increasing its legitimacy with all who interact with it. On the negative side, a tribal court functioning under a strategy of always waiving tribal immunity would run the risk of being overburdened, and if that were to occur, then the effectiveness of the institution would decrease as delays in justice would likely increase. Additionally, a strategy that allowed all lawsuits to move forward with no limitations on damages would put the nation's treasury at risk and one lawsuit could, at least theoretically, cause significant financial harm to the nation. That risk could possibly be counteracted somewhat by the likelihood that economic development originating from outside the reservation is more likely where sovereign immunity waivers are possible. In the end, neither of the extreme scenarios just discussed create an idea situation for a Native nation. But these examples begin to illustrate how sovereign immunity policies result in different outcomes. To put it more succinctly: tribal sovereign immunity is a tool that can be used by Native nations to achieve a wide variety of outcomes. [*144] B. Thinking Strategically about Tribal Sovereign Immunity That tribal sovereign immunity is a tool affecting tribal courts is significant because, as discussed above, strong tribal courts are one of the foundational institutions that that vast majority of Native nations exercising real self-determination have in place. Thus, Native nations serious about self-determination are likely going to want to contemplate how best to use the doctrine of tribal sovereign immunity to best achieve their nation's goals. To this end, the nation building principles offer some additional insight. First, to use the language of the nation building principles, although tribal sovereign immunity is not the same as tribal sovereignty, it is an instrument of sovereignty - that is, of practical self-rule - that Native nations can use to further their goals. Therefore, Native nations wishing to exercise practical self-rule are going to have to make difficult decisions about when to waive sovereign immunity and when to invoke it. When waiving immunity, Native nations need to ensure they have effective governing institutions - i.e., an effective court system - prepared to adjudicate the cases that may arise. Finally, the nation building principles suggest that a nation should approach tribal sovereign immunity with a strategic orientation, which includes considering the nation's values and long-term goals. Approaching tribal sovereign immunity strategically is critical to understanding how the doctrine can help strengthen tribal court systems. Within the nation building research, strategic orientation means moving away from a reactive governance to one focused on "developing sustainable solutions to problems." 110 A strategic approach to any issue involves transitioning "from reactive thinking to proactive thinking," "from short-term thinking to long-term thinking," "from opportunistic thinking toward systemic thinking," and "from a narrow problem focus to a broader societal focus." 111 With respect to tribal sovereign immunity, shifting from reactive and short-term thinking to proactive and long-term thinking with respect to tribal sovereign immunity likely means shifting from the question "Can sovereign immunity be raised in this case" to "What policy should the nation have in place with respect to raising sovereign immunity in a case." Shifting from opportunistic thinking toward systemic thinking likely means determining what the nation's long-term goals are and how both waiving [*145] and asserting sovereign immunity might be a tool to reach those goals. Shifting from a narrow problem focus to a broader societal focus likely means considering all the consequences of asserting tribal sovereign immunity in a given context. These consequences include ramifications to the nation's institutions, especially its tribal court system, the legal consequences to the nation and other Native nations, the public relations consequences to the nation and other Native nations, and any additional consequences that may occur both locally and globally. 112 C. Tribal Sovereign Immunity Waivers can Strengthen Tribal Courts At this point, it should be clear that a Native nation's tribal sovereign immunity policy affects its tribal court system, but the question that remains is how can tribal sovereign immunity be used to strengthen tribal court systems. The reality is that the consequences of a Native nation's tribal sovereign immunity policy have the potential to be felt in all six of the components required for strong tribal courts. Most significantly, any tribal sovereign immunity policy will directly affect the capacity, jurisdiction, and legitimacy of the tribal court associated with it, while having lesser impacts on the areas of accountability, funding, and independence. 1. Accountability, Funding, and Independence The relationship between a Native nation's tribal sovereign immunity policy and a tribal court's accountability, funding, and independence is weak, but does exist. With respect to accountability and independence, the relationship stems from the number of cases being heard by the court, which can be controlled - to a degree - by how a Native nation utilizes the sovereign immunity doctrine. Specifically, a tribal court system seeking to demonstrate that it is accountable and independent will require cases moving through the system. 113 After all, there can be no demonstrated accountability and no demonstrated independence if no disputes are being heard. To this limited end, because a tribal sovereign immunity policy has [*146] an affect on the number of cases progressing through the court system, it, in turn, has a very limited affect on these two components. Although similarly weak in its connection, a tribal sovereign immunity policy may also affect a tribal court system's funding. As alluded to above, there is a large body of empirical evidence indicating that tribal court systems are key to Native nation economic development efforts. 114 In order for tribal court systems to be useful in such efforts, they need to be seen as legitimate by potential investors and businesspersons. 115 And, as will be discussed in more detail, a Native nation's sovereign immunity policy - particularly with respect to contracts - greatly affects whether its justice system is viewed as being fair, which is at the heart of legitimacy. To the extent a nation's tribal sovereign immunity policy affects investment within the nation, it also affects the money available to fund tribal court systems. To put it more bluntly, a tribal sovereign immunity policy that creates an environment of fairness - particularly with respect to contract disputes - has the potential to help improve a Native nation's economic situation, which could, in turn, result in additional funding available for the tribal court system. 116 2. Capacity A Native nation's sovereign immunity policy can substantially affect its court system's capacity with respect to the types of substantive issues it is capable of addressing. Tribal court personnel develop legal expertise by a combination of formal education, various types of training and continuing education programs, and in courtroom experience. 117 To a substantial degree, the types of cases that come before a tribal court system can be controlled by how a Native nation uses tribal sovereign immunity. For example, a nation that allows no tort cases to proceed against the nation is likely to have a less sophisticated jurisprudence and understanding of tort issues. At the other extreme, a nation that creates a special judicial body to handle only tort cases filed against the nation and then uses tribal sovereign immunity to waive those cases into this special body is more likely to have a very sophisticated understanding of torts and a developed jurisprudence in that substantive area. Strategically using tribal sovereign immunity in this [*147] manner can allow a tribal court system to hear more types of cases and improve its capacity. 118 Additionally, it is worth noting that the doctrine of tribal sovereign immunity allows for even more subtle control over developing capacity in the manner just discussed. Recall that tribal sovereign immunity allows Native nations not only to choose the forum and procedure used in a dispute, but it also allows a nation to determine its liability in such cases. Thus, a Native nation with a relatively young court system and relatively low capacity could strategically choose to waive sovereign immunity and allow a wide variety of cases to proceed to tribal court, but could also cap damages at a low level. Over time, as the tribal court system develops more capacity, those liability limits could increase as trust in the tribal court's expertise and jurisprudence increases. In short, by utilizing different forums, procedures, and liability limits, Native nations have an array of options for developing the human capacity of their tribal court systems. 3. Jurisdiction Tribal court jurisdiction grows and shrinks with every waiver and invocation of tribal sovereign immunity. As discussed above, all courts require jurisdiction within which to operate, and there can be a difference between a court's de jure jurisdiction and its de facto jurisdiction. A Native nation's sovereign immunity policy has a particularly strong effect on a court's de facto jurisdiction. Every time tribal sovereign immunity is used to prevent a case from being heard in a tribal court, that court is effectively losing jurisdiction, at least over that case. 119 And when a Native nation has a policy whereby all cases in one substantive area are subject to tribal sovereign immunity, that nation's tribal court has lost de facto jurisdiction over that substantive area of law - at least with respect to cases being filed against the nation itself. On the other hand, when sovereign immunity is waived and a case is allowed to proceed in tribal court, that court is expanding its jurisdiction, at least with respect to that case. And, similarly, if a Native nation alters its sovereign immunity policy to allow a tribal court to hear cases in a substantive area of law previously excluded by sovereign immunity, that trial court has substantially increased its de facto jurisdiction. [*148] To a certain extent, not waiving tribal sovereign immunity and allowing cases to proceed in a tribal court may, over the long-term, have an even more detrimental effect to tribal court jurisdiction. When a Native nation invokes sovereign immunity with respect to a specific case, it does not always follow that the case is never heard. While it is sure to never be heard in a tribal court under such circumstances, plaintiffs regularly attempt to file their claims in state or federal court. For the most part, these external court systems respect the doctrine of tribal sovereign immunity and dismiss the cases, 120 but occasionally external courts accept the case and hear it on its merits. 121 Sometimes, in the process of accepting such cases, state and federal courts have chipped away at the doctrine of tribal sovereign immunity, or tribal jurisdiction, or both. 122 Thus, every time a Native nation invokes tribal sovereign immunity - particularly in unique contexts - there is the risk of not only losing jurisdiction over the individual case involved, but also potentially losing more than that at the hands of state and federal judiciaries. That does not necessarily mean a Native nation should never invoke tribal sovereign immunity. Rather, Native nations must realize that any decision with respect to the doctrine needs to be strategic and needs to consider both the short-term and long-term effects on both the tribal court system and the nation as a whole. 4. Legitimacy Finally, the doctrine of tribal sovereign immunity can be utilized strategically to improve both internal and external legitimacy. A strong tribal court system thrives on legitimacy, and one crucial aspect of legitimacy is perceived fairness. 123 Both Native citizens and non-Native [*149] individuals want a tribal court system that is fair. 124 A fair system is substantially more likely to be treated as legitimate than an unfair one. And, ultimately, a Native nation's sovereign immunity policy plays a large role in the perceived fairness of its courts. A fair court is one in which a wronged individual can be made whole again. Because tribal sovereign immunity gives a Native nation the ability to decide which cases proceed against it and which do not, exercising sovereign immunity too frequently, or in the wrong types of cases, can very quickly make a court seem unfair and cost it legitimacy. In a typical Native nation, citizens may wish to bring suits against the government for things like: civil rights violations, contract disputes, employment disputes (when the nation is the employer), and torts that occur on nation-owned lands. Similarly, a typical Native nation can expect non-Native individuals, corporations, and other governments to bring suits against the nation for: contract disputes, environmental law violations, torts that occur on nation-owned lands, and tax disputes. Regardless of an individual's citizenship, the expectation is for an opportunity to be heard before a judicial forum, and a Native nation's sovereign immunity policy is going to go a long way in deciding whether that expectation is met. A fair court is also one with procedures in place to dispense justice in a fashion that treats all individuals equally. Native nations without a sovereign immunity policy are more likely to violate this aspect of fairness because policies, by design, exist to remove individuals getting special treatment. Thus, a Native nation that invokes sovereign immunity in all contract disputes and a Native nation that waives sovereign immunity in all contract disputes both have procedures in place that treat all individuals equally. Although the nation invoking sovereign immunity in all contract disputes may have to deal with the illegitimacy concerns just discussed, neither nation in this example can be accused of treating one individual differently from another. But some Native nations lack sovereign immunity policies, and for these nations invoking and waiving sovereign immunity is done on a case-by-case basis. The danger with such a policy is that it results in one contract case being heard in tribal court and another being turned away. Over time, this type of differential treatment can take a toll on a tribal court's legitimacy, the likes of which can be very difficult to recover from. [*150] Finally, a fair court must dispense justice consistently - meaning similar cases must be decided similarly. 125 Fairness, in this sense, stems from a track record of respected decisions. In order to achieve this track record, a tribal court system requires: cases, time, and well-reasoned decisions. While a Native nation's sovereign immunity policy cannot guarantee the latter, it once again plays a significant role with respect to the first two requirements. The more cases a tribal court system is able to hear in a given area of law, the more likely, over time, the court system will be able to develop the track record necessary to show that fairness. Again, because tribal sovereign immunity acts as a gatekeeper over certain types of cases and whether they ever make it to court, how a nation uses the doctrine can have an immense impact on legitimacy.