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(Dr. John Ouma-Mugabe holds a PhD in Political Science from the University of Amsterdam and a Bachelor of Science (Agriculture) from the University of Nairobi. He is the Professor of Science and Innovation Policy at the Graduate School of Technology Management at the University of Pretoria, and a Senior Associate Fellow at the Science Policy Research Unit at the University of Sussex, UK. December 1998, Intellectual Property Protection and Traditional Knowledge: An Exploration in International Policy Discourse. Paper Prepared for the World Intellectual Property Organization, Geneva, Switzerland. ACTS Press, African Centre for Technology Studies, p. 97-125. //CPSW – GHS-LHM)

Second, countries should invest in the creation of sui generis legislation suitable to their cultural and political conditions. They should explore the development of systems that will first and foremost protect traditional knowledge as intellectual property of indigenous and local peoples. Such systems should also encourage (or even require) the flow of benefits from bioprospecting to indigenous and local peoples. According to Dutfield, “legislation could be drafted in such a waya as to allow a community to become the successor in title of . . . discovery and development process. Under this interpretation, indigenous communities would have the right to protect traditional practices utilizing intellectual property rights mechanisms, stopping the usual appropriation by others of the commercial value arising from their knowledge. As a right holder, they would have exclusive rights to withhold from third parties their consent to make, use, an offer for sale, or import the plant variety that they developed.” Third, it is crucial that new research be conducted on traditional forms of intellectual property and how traditional knowledge was/is protected by indigenous and local peoples in different parts of the world. Case studies illuminating how indigenous and local peoples perceive intellect and whether they treat it as property worth protecting would be useful. This work would form the basis for national and international processes to establish property protection regimes suitable for traditional knowledge and innovations. Conclusions This paper has provided a review of literature on intellectual property protection and traditional knowledge. In our view, conventional intellectual property law does not adequately cover or protect traditional knowledge and innovations of indigenous and local peoples. However, non-patent forms of intellectual property protection could be exploited to protect the knowledge and innovations. For example, trade secrets and trade marks offer flexibility for protecting traditional knowledge and innovations. Indigenous and local peoples do not have strong institutional arrangements to safeguard their property and enforce trade secrets and trade marks in modern economic space. We propose that countries invest in the establishment of sui generis regimes covering traditional knowledge and rights.

Intellectual property law is traditionally a combination of copyrights, patents, and trademarks that delineates rights of property ownership and allows for protection against unfair competition.17 Definitions within intellectual property statutes are a source of contention between individual nations and international organizations.18 Each statute can have its own definitions for what is covered under the specific statute, not one of them completely aligning with another.19 Definitions in statutes are typically variable by nation as a result of diverse traditional, philosophical, and legal ideas.20 Despite differences in exact definitions, establishing intellectual property rights primarily creates a property right allowing the owner to exclude others from use.21 Sui generis is a Latin term simply meaning "of its own kind."22 Similarly, in the legal community sui generis "is used in intellectual property law to describe a regime designed to protect rights that fall outside the traditional patent, trademark, copyright, and trade-secret doctrines."23 Under sui generis law, when intellectual property laws do not generally protect an object, a statute can be enacted specifically for the purpose of using intellectual property law to protect untraditional subject matter. Sui generis protection stems from a belief that a new form of invention needs legal protection, but does not conform to the current intellectual property protections available.24 Theoretically, "a sui generis system could be created individually and enacted differently from one country to another."25 Scholars believe the purpose and need for sui generis protection evolved as a way to stem creativity for new inventions; authors were afraid to create when their work would not be rewarded with protection.26 In the United States and the European Union, sui generis protection has regularly been employed over the years to develop new protections for biotechnology, design patents, and databases.27 It is strongly argued that without this novel protection many of these inventions would not have been developed.28 Previously, there was no guarantee on return of investment, but sui generis protection guards against pirating and infringement that would severely harm profits.29 For example, the sui generis form may be adopted to support access and benefit sharing though newly formed legal rights that acknowledge traditional knowledge.30 Costa Rica adopted this method of sui generis protection admitting "intellectual rights, the knowledge, practices and innovations of indigenous peoples and communities related to the use of components of biodiversity and associated knowledge" whether the traditional knowledge is officially documented or not.31 Similarly, Canada adopted sui generis protections and created Aboriginal Title, a new form of property ownership for real property.32 In 1982, the Constitution Act annulled common law precedent, which did not allow for Aboriginal Title, by creating specific clauses that referenced and called for application of this new form of property protection.33 To move into the modern realm, sui generis protection must be extended to intangible property such as intellectual property. Dr. Harry Chartrand argues First Nations peoples have the opportunity to create brand names (among other intangible properties) in the global community.34 Chartrand also argues that restrictions on the right to interact in these markets impinge the First Nations peoples' competitiveness in global markets.35 One avenue Canada may pursue is adopting international conventions that protect cultural heritage via intellectual property law, like the 2003 UNESCO Convention on Intangible Cultural Heritage.36 Canada has recently taken steps to become involved in cultural protections through intellectual property law. Canada is currently one member of the WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources (IGC) and takes part in the discussions regarding drafting international Indigenous intellectual property law protections.37 Departing from common law, which does not always allow for precedent, and incorporating intellectual property through statutory measures is the answer for incorporating cultural heritage into intellectual property and allowing Indigenous people to interact with the modern global economy.38

3.6.2.1 Owing to the perceived difficulties of building new mechanisms that directly address indigenous peoples’ needs and expectations about knowledge use and control within the current intellectual property law framework, suggestions for an altogether different approach have been made. Sui generis law means of its own kind, that is, it is a unique law complete unto itself and often created when current and existing laws are inadequate. [78] 3.6.2.2 A significant issue in this area is that indigenous peoples must be constantly translating and transplanting their concepts into frameworks of rights that are not necessarily appropriate or that may not address their expressed needs. To the extent that indigenous knowledge can be protected through laws of intellectual property, this is only possible through concepts including property, ownership, works, monopoly privilege, exclusive rights, originality and individual authorship. 3.6.2.3 Proposals for sui generis legislation for the protection of indigenous knowledge and indigenous rights are slowly being crafted. [79] Countries like Peru and Panama have been at the forefront of developing national sui generis legislation. 3.6.2.4 There is often confusion about sui generis legislation, particularly in relation to how it does or does not fit into an intellectual property regime. The benefit of sui generis legislation is that it in no way has to resemble any current law, intellectual property or others. Thus it offers an opportunity for participation by indigenous people and flexibility in developing frameworks that deal with knowledge control, use and sharing. As Tobin and Swiderska comment: The role of a sui-generis regime could therefore be to establish a bridge between indigenous/local community and national and international legal systems, in order to secure the effective recognition and protection of rights which derive from customary law and practice. [80]

TKPT or traditional medicine embodies indigenous cultural expressions and world views in their complexities. Intellectual property, specifically patent, is inadequate to provide the required preservation and protection mechanism for indigenous cultural identity embodied in TKPT. Like other categories of mainstream intellectual property rights, the conceptual foundation of patent does not recognize indigenous norms and values. For indigenous peoples to take advantage of the existing patent regime, especially as it applies to TKPT, is to allow themselves to be coerced to subscribe to a discredited logic of development.4 Simply stated, one of the consequences of the prevailing logic of development is the assimilation of indigenous and local peoples’ knowledge and value systems into Western scientific terms. Assimilation has negative multiplier effects. Those effects include epistemological reductionism, the obliteration of indigenous identity, and economic disempowerment. They strike at the core of indigenous aspirations. Ironically, one of the high points of international law on indigenous peoples is the rejection of the earlier policy of assimilation in preference to indigenous self-determination and preservation of indigenous cultural identity.

I have underscored the reservations about the ability of conventional intellectual property rights, especially patents, to foster indigenous interests and aspirations. In relation to traditional knowledge of plantbased therapy (TKPT), intellectual property rights, especially the patent regime, is not a reliable mechanism to facilitate the attainment of a number of expectations. A few of those expectations include the preservation of the cultural integrity of indigenous knowledge and by extension the indigenous quest for self-determination, the notion of medical pluralism, and not the least of all biodiversity conservation. By way of conclusion, this chapter explores how some of these objectives can best be attained. It does not endorse the outright discarding of Western intellectual property models or their sui generis constructs; rather, here I identify with a cross-cultural approach in the search for a sui generis scheme for local knowledge protection. Such a scheme should be based on the provision of legal cover for traditional knowledge in a manner that draws from customary protocols or traditional regimes for the protection of knowledge. An effective international protective regime for indigenous knowledge, which does not compromise its epistemic foundation and cultural integrity, should not ignore how knowledge has been protected in indigenous communities. For too long we have proceeded as if mainstream intellectual property is the only mechanism for knowledge protection. However, the crisis of legitimacy in the intellectual property system demands a template shift to a cross-cultural approach to knowledge protection. My aim is to point to a direction. The detail of how to get to a destination is secondary to knowing the destination. I am concerned here with drawing attention to the template shift in intellectual property discourse, examining and articulating how that shift is proceeding. The cross-cultural approach is without doubt in need of details, the exploration of which is outside the scope of this book. Those details will continue to evolve as the shift gains momentum. Indeed, the exploration of the cross-cultural project, including its practical details, is one of the pivotal items in the intellectual property discourse and in the quest for the protection of indigenous knowledge and peoples in the twenty-first century. We are right at the dawn of what promises to be an exciting conversation in the intellectual property arena.

Many scholars have also argued for a sui generis intellectual property regime at the federal level that would address the special needs of intangible indigenous cultural property. Lucy M. Moran, in her article Intellectual Property Law Protection for Traditional and Sacred "Folklife Expressions" - Will Remedies Become Available to Cultural Authors and Communities?, suggests a system that would "conceive of regenerated folklife expressions as falling within the copyright category of "derived work' at the end of a statutorily defined time period, such as 100 years, [and be] automatically registered to a "new author,' the several subsequent generations of a regenerated folk community." 90 Professor Riley has proposed an Indian Copyright [*96] Act that would protect oral literature by defining the parameters of a "collective indigenous work" not subject to traditional copyright requirements. 91 This collective work would be inalienable by individuals and its scope would be determined by individual tribes. 92 Others have argued that a law reflecting international intellectual copyright laws would be more appropriate. In Owning the Sun: Can Native Culture Be Protected Through Current Intellectual Property Law?, Jill Koren Kelley explains: "Moral rights", also known as the "droit moral," reflect a view that a creator deserves respect for ingenuity and entitlement of inalienable rights to: be recognized as the author of a work; enjoy identification as the author; and to prevent others from modifying, distorting or otherwise interfering with the integrity of that work. These rights vest in the artist independently of the physical object. 93 Supporters of a moral rights framework feel that it provides a better fit to Native cultural rights because the protection is based on the idea that infringing upon and distorting the work of another is inherently morally wrong, as opposed to a basis in economic rights. 94 Professor Farley suggests looking to several models of international cultural property protection that have been developed. The first, the Tunis Model Law on Copyright, written in 1976 as a model for developing countries, 95 explicitly addresses folklore, giving it perpetual protection. 96 The second, The Model Provisions for National Laws on Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, was created through a collaboration of the World Intellectual Property Organization (WIPO) and the United Nations Educational Scientific and Cultural Organization (UNESCO) in 1982. 97 The model provisions would cover a number of issues necessary to protect intangible indigenous cultural property, including recognizing collective ownership, granting perpetual protection, and foregoing traditional copyright requirements of fixation. 98 Besides providing guidance for possible legislation in the United States, both of these models, along with 1993's Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous People, 99 demonstrate the global need to address these issues, and the increasing awareness of them worldwide. Intangible indigenous cultural property protection through a federal statute [*97] could take a number of forms. Examining some of the federal laws that have already attempted to address some Native cultural issues might give us an idea of what such legislation could look like. The Indian Arts and Crafts Act of 1990 100 ("IACA") created an Indian Arts and Crafts board for the purpose of receiving and investigating complaints of people misrepresenting products as authentically Indian-made. 101 It also creates a cause of action for Misrepresentation of Indian Produced Goods and Products. 102 While the IACA only deals with tangible cultural products that are sold for profit, more directly addressing the concerns of those in the realist camp, and does not apply to those cases where someone creates a craft that looks Native in origin but does not claim to be authentic, its recognition of the need to protect Indian-made arts and crafts is a step in the right direction. The Native American Graves Protection and Repatriation Act ("NAGPRA"), also passed in 1990, provides a useful model as well. 103 This statute, which repatriates and protects human remains, sacred objects, and Native American cultural patrimony found on federal lands, creates several schemes that could be helpful in the protection of intangible cultural property. According to Lucy Moran, "NAGPRA demonstrates that the American legal system is capable of forging a definition of "sacred.' 104 … Trademarks remain protected as long as they are in use, and NAGPRA uses a similar concept in defining a "sacred object' as one in current use." 105 NAGPRA also distinguishes itself from IACA because it has actually been enforced on several occasions. In U.S. v. Carrow, a case not unlike Chilkat Indian Village v. Johnson, an ancient artifacts dealer was prosecuted for illegally trafficking in Navajo cultural patrimony. 106 While NAGPRA deals exclusively with tangible cultural property, it is not difficult to imagine a similar piece of legislation that could apply to less tangible sacred objects and cultural patrimony. It has also been proposed that a jurisdictional statute, like the Indian Child Welfare Act ("ICWA") 107 , is a possible solution. 108 As argued previously in Part II, Section A, tribes are in the best position to evaluate the damage done by an act of appropriation. 109 Such an act could be constructed in a number of ways, perhaps establishing a definition for cultural property that would cover certain intangible elements and giving tribal courts concurrent jurisdiction or a right to intervene in specific kinds of civil actions.

The Need for Sui Generis Tribal Laws Governing Indigenous Intellectual Property Rights. As the previous two sections demonstrate, the current, mainstream IP protection regimes are insufficient to adequately protect the uniqueness, vastness, and complexity of Indigenous traditional ecological knowledge. Accordingly, there undoubtedly is a need for sui generis legal regimes designed to protect Indigenous intellectual property rights that fall outside of the standard patent, trademark, copyright, and trade secret doctrines.50. Importantly, despite the otherwise valid criticisms about their potential unenforceability on outsiders, these intellectual and cultural protection regimes [*11] must be driven by tribal laws.51. After all, tribes "are in the best position to determine whether and/or how to reveal culturally sensitive information."52. Importantly, not only would this "allow [I]indigenous peoples ... to finally control the integrity, disposition, and appropriation of their sacred knowledge,"53. but also to "exercise[e] their inherent authority to define tribal laws and be governed by them."54. If properly implemented, such tribal laws could be incorporated into the Anglo-American jurisprudence, which would not only afford "weight and legitimacy to [these] tribal law[s]," but also "provide[] an opportunity to infuse the dominant legal system with [I]indigenous conceptions of justice," specifically in the context of the protection of Indigenous intellectual property.55.

Indigenous peoples’ claims to rights over their knowledge and their insistence that such knowledge forms be preserved are legitimate. The need to protect indigenous knowledge is recognized under international law. Yet the question is how to preserve, protect, and reward indigenous knowledge without compromising indigenous cultural identity and traditional values. As the primary mechanism for the allocation of rights over knowledge and its products, intellectual property rights are central to this discourse. There is consensus in the relevant circles that intellectual property rights, specifically patents, do not adequately protect indigenous knowledge and interests. This book’s emphasis on the divergence between the patent regime of intellectual property rights and TKPT hammers this point home. The malleable and dynamic character of conventional intellectual property, despite the concept’s inadequacies, can be invoked to accommodate the peculiar nature of indigenous knowledge; hence, the need for a sui generis patent regime in the form, for instance, of ‘community patent,’ or something like PBRs, based on modified elements of mainstream patent. However, attempts to create a sui generis regime concentrate on reconstructing only some procedural, practical, and peripheral issues, such as lowering the threshold for patent eligibility, duration of rights, legal status of indigenous or communal applicants, or redefinition of prior arts. There is no attempt to tackle the conceptual conflict inherent in the application of conventional intellectual property incidents to indigenous knowledge forms. No consideration is given to the epistemic schism between indigenous and Western ways of knowing, which is reinforced by intellectual property rights, especially the patent regime. In other words, alternative or sui generis proposals, based on the elements of the extant intellectual property system, especially patents, are still deficient for the purpose of indigenous knowledge protection. To be legitimized by the patent regime, indigenous knowledge must submit to the touchstone of Western scientific validation. The concept of science is a fundamental point of tension between indigenous and Western ways of knowing. I subscribe to the view that science is a pluricultural phenomenon, a way of knowing that is not value neutral. The recognition of this plurality in the ways of knowing is very critical for indigenous peoples. Alternative or sui generis intellectual property rights designed to accommodate indigenous knowledge need not imitate conventional regimes.5 It is important to bear this in mind because such regimes are forged from epistemic foundations and other priorities that are different from indigenous ones. However, it is not in all cases that Western intellectual property does not serve indigenous interests. For instance, an imaginative deployment of indications of origin could enhance the commercialization of indigenous artworks, even though this would not satisfy all indigenous stakeholders. Similarly, the proposal that patents deriving from indigenous knowledge must acknowledge or disclose the role of indigenous peoples is a way of recognizing indigenous contributions to innovation.6 Nonetheless, it does not address the epistemic complicity of intellectual property in the appropriation of local knowledge. Mere disclosure and acknowledgement are not cures for the inadequacies of conventional intellectual property rights in regard to indigenous knowledge. There is a need to look inwards, within indigenous customary practices and other national regimes, in the search for creative intellectual property schemes that align with the values of indigenous and local cultures.

On the other hand, courts are better than administrative agencies at settling highly particularized disputes, if only because judges are used to dealing with the specific facts of a case. All the same, given the way administrative law has often been overlooked in the classification of IK and TCEs and the settlement of disputes over them, it is salutary to mark out a place for administrative regulations. party known for his bark paintings. In Tenodi, Indigenous Mowanjum people were off-stage but the court’s decision protected their interests.

B. Intellectual Property Rights Laws Intellectual property rights laws exist in most countries of the world and Western concepts of intellectual property rights usually prevail in national laws. 38 "These concepts are based on the idea that innovation is the product of the genius of individuals. Such people, by sharing the fruits of their genius with society are deemed to be deserving of economic rights granted by the state on behalf of society." 39 Since the United Nations World Intellectual Property Organization conception of intellectual property rights in the is based upon the philosophical model of the individual, there exists a major paradigmatic dissonance that results in intellectual property rights law being insufficient for representing indigenous interests since indigenous peoples' philosophy and traditional knowledge is considered collectively created and owned by an entire tribal unit. Consequently, Western individualized intellectual property rights can pose a threat to indigenous cultures. Forcing collective tribal cultural resource rights to fit into a framework that was meant for individuals' property rights is difficult, undesirable, and sometimes impossible for tribes. Not only do intellectual property rights have to be acquired by a process that can be difficult, time-consuming and expensive, but they also have to be defended. 40 Acquiring and defending intellectual property rights protection requires access to information, good legal advice and financial resources, all of which may be beyond the reach of many indigenous peoples. 41 Within the system of intellectual property rights, patents, trademarks and copyrights are some common forms that IPR can take, each having a specific market application. Patents confer the right to secure the enforcement power of the state in excluding unauthorized persons, for a specified number of years, from  [*668]  making commercial use of a clearly defined invention. 42 They can be used on products such as new pharmaceutical drugs. Because of the array of biodiversity that exists in indigenous territories such as forests, many companies will send a researcher there to attempt to find "new" plants that cure ailments. This has been a continuing practice, one that is very detrimental to indigenous peoples, in which companies patent seeds, genes and other parts isolated from flora that have been cultivated by indigenous people for thousands of years, in some cases effectively eliminating a tribe's ability to use them. Vandana Shiva makes the point that, "Patenting living organisms encourages two forms of violence. First, life-forms are treated as if they are mere machines, thus denying their self-organizing capacity. Second, by allowing the patenting of future generations of plants and animals, the self-reproducing capacity of living organisms is denied." 43 Copyrights are intended to provide legal protections for authors of literary works, dramatic and musical works, artistic works and works of applied art, maps and technical drawings, motion pictures or sound recordings. 44 These protections include allowing the author to take legal action to stop others from copying or reproducing the work, performing the work in public, making a sound recording of the work, etc., for a specified period of time. 45 These may be useful to a tribe, but copyrights are still intended for individuals or companies, and are difficult to apply to the cultural rights of an entire tribe, or unit within a tribe. Many of the cultural rights protections that tribes seek are meant to be enjoyed in perpetuity, not for a limited amount of time. Certain aspects of culture, such as oral tradition, known in Western parlance as expressions of folklore, evolve as time moves forward, making copyrights inapplicable to the issue of protection of indigenous peoples' cultural rights. Trademarks are generally for company logos or company or product names. They protect the owners of the trademarks from other entities using their words or images in advertising a product. 46 There may be some instances when trademark protections can assist the cultural protections sought by tribes. An "indigenous alliance consisting of representatives of different communities selling similar products could register a trademark  [*669]  that could be used by participating communities." 47 This may work for some tribes, but it will certainly not apply to the majority of tribes. In the case of the people of the Zia Pueblo, as documented by Michael F. Brown in his book, Who Owns Native Culture?, the tribe has been involved in a long dispute with the State of New Mexico and private companies that exploit their sacred Zia sun symbol for personal gain, and private and commercial use. 48 The Zia sun symbol appears on the New Mexico state flag. As a result of this ongoing conflict, PL105-330 was passed, "which called on the U.S. Patent and Trademark Office (USPTO) to examine its policies relating to the official insignia of Indian tribes." 49 Although the tribe still cannot claim the sole ownership of its symbol, the State of New Mexico issued a joint memorial that "acknowledges that the sun symbol belongs to the Pueblo of Zia, that they appropriated the symbol without proper permission and authority." 50 The Zia Pueblo tribe has not reached a settlement that allows their sacred cultural property to be protected, and its use continues to be abused, to the detriment of the tribe. 51 Intellectual property rights and the components of intellectual property rights, including patents, copyrights and trademarks, are inadequate to deal with concerns specific to indigenous cultural rights as they exist in the current system of laws and international trade agreements. Because they are based upon individuals' rights rather than the collective rights recognized by tribes, and cannot equitably address the close relationship of traditional indigenous values to their lands, intellectual property rights can actually be more damaging than useful. Michael Brown asks, "How can we promote respectful treatment of native cultures and indigenous forms of self-expression within mass societies?" 52 The answer to this question remains to be found. Vandana Shiva objects to intellectual property rights as they stand today, and states that they will inevitably lead to intellectual and cultural impoverishment by displacing other ways of knowing, other objectives for knowledge creation, and other modes of knowledge sharing … . Central to the ideology of IPRs is the fallacy that people are creative only if they can make profits and guarantee them through IPR protection.  [*670]  It negates the creativity of those not spurred by the search for profits. It negates the creativity of traditional societies. 53 For indigenous people, traditionally, the concept of private property is not equivalent to the Western concept. In general, indigenous peoples' worldviews hold communally owned property and stewardship as paramount. While tribes must navigate their people through a changing world, it is imperative to retain core values that can remain unaltered by colonization. This is a key concept of decolonization and also an underlying substrate of the language and landscape of indigenous cultural rights.

. Why Critical Race IP Neither infringement nor Copyright Wars are new phenomena. Their repeated themes stretch back hundreds of years. 42 William Patry argues that the most recent Copyright Wars occurred in 1998, "when copyright owners obtained from Congress unprecedented rights to control access to and use of their works." 43 With the radical changes brought by Betamax, VHS, the Internet, and Napster between the 1970s and 1990s, big content owners found themselves in deeply unfamiliar and rapidly shifting territory that impacted their core business models. 44 These technological developments which made copying, transforming, and remixing copyrighted and trademarked works easy for the average consumer fundamentally threatened the profits of entertainment industries that had previously held near monopolies on production and distribution in their respective markets. 45 Similarly, technological changes ushered in by the era of biotechnology demanded legal and cultural responses. 46 Negotiating the Agreement on Trade-Related Aspects of Intellectual Property Rights in 1994 (TRIPS Agreement)  [*744]  created an unprecedented global intellectual property regime, 47 compliance with which was encouraged, through more and less coercive means. 48 Mark Getty of Getty Images, 49 proclaimed that intellectual property is "the oil of the twenty-first century." 50 Though the accuracy of this statement is debatable, 51 the argument for protecting that "oil" gathered (maximalist) steam. 52 The global public response to these expansions of intellectual property rights was considerable. Pressure for free and open culture, 53 critiques of biopiracy, 54 adbusting and culture jamming campaigns, 55 and large scale protests 56 were some of the ways people pushed back against the rise of intellectual property maximalism. The economic conditions ushered in by the rise of the post-Fordist economy not only transformed intellectual property into an increasingly "precious commodity," 57 - one which legal scholars almost exclusively theorized through the lens of law and economics 58 - they  also marked an evolution in the racialized approaches to handling knowledge produced by people of color. We therefore situate the rise of intellectual property maximalism and "information feudalism" 59 through the lenses of racial capitalism and neoliberalism, both of which are helpful in making race visible in a legal regime which purports to regulate knowledge production in race neutral ways. In invoking the term racial capitalism, 60 we refer to the work of Cedric Robinson to understand how intellectual property's economic structure is "always already" raced. 61 As Robinson writes, "The historical development of world capitalism was influenced in a most fundamental way by the particularistic forces of racism and nationalism." 62 He continues: Racialism … ran deep in the bowels of Western culture, negating its varying social relations of production and distorting their inherent contradictions. The comprehension of the particular configuration of racist ideology and Western culture has to be pursued historically through successive eras of violent domination and social extraction that directly involved European peoples during the better part of two millennia. Racialism insinuated not only medieval, feudal, and capitalist social structures, forms of property, and modes of production, but as well the very values and traditions of consciousness through which the peoples of these ages came to understand their worlds and their experiences. 63 In essence, capitalism - an enterprise racialized at its core and inception 64 - progressed in ways which magnified and exacerbated the  racialization of intellectual property economies. The connection between race and intellectual property is certainly not new, but it has evolved with the coincident ascendance of the technology economy and intellectual property maximalism. We are not attempting to articulate the master narrative of race and intellectual property. Nor do we intend a comprehensive history of the decades before Critical Race IP scholarship began to take root. Rather, we wish to narrate, in broad strokes, an unfolding of events in which race, capitalism, and intellectual property set the stage for Critical Race IP, whose name and characteristic themes we elaborate upon in Part II of this article.

Findings Represented in the five documents is discourse that adheres to the ideological significance of international law, the value of trade over other protective measures, the formal understanding of the liberties within TRIPS, the importance of documenting and digitizing knowledge, and the belief that traditional communities are unable to understand the complex protection system of IPR. Inherent in understanding this analysis of data is acknowledging the historical positionality of Indigenous peoples and colonized communities. Currently, legal systems and their intersection with TK conflict within the text. The overall belief within the documents is that while IPR may be usable in certain cases to protect TK, it is not sufficient. Since there is no internationally accepted definition of TK, there cannot be protective measures afforded to it within the current IPR system of protection [: 3]. The discourse reveals the gaps in the protection of TK and shapes the ideology of what is considered TK. TK is referred to particular “knowledge resulting from intellectual activity in a traditional context, and includes know-how, practice, skills and innovations [3: 4]. This very general description leaves insufficient clarity for a workable definition of TK. Tradition is often framed as a representation of the past, something old, and often in juxtaposition to the idea of modern. TK may be generated, preserved, and transmitted through an intergenerational context, distinctly associated with traditional or Indigenous communities, while being integral to the cultural identity of an Indigenous or traditional community which is recognized for being the custodian for that knowledge. The idea that TK forms a part of a community’s self-identity and that knowledge forms part of a community’s social development is described [: 6]. What constitutes TK protection under patent law is limited to the rigid restrictions designed through Western law and understanding: formality. Patents are defined within the text as any new invention, in any field of technology, and include an inventive step and have industrial application []. Excluded from patentability are plants, animals, and biological processes for production. However, if a plant variety is altered by human means through microbiological processes, a patent or an effective sui generis system of protection must be applied. The altered plant variety must adhere to patent rules or a detailed sui generis regime in order to gain IPR protection. This reveals that if there is human interaction, ownership of an otherwise independent plant, animal, or biological process becomes possible. This restricts patent protection under IPR to that which is ‘new’. Patent protection is available for micro-organisms or non-biological and microbiological processes, favoring human alteration and ownership. To be eligible for protection TK: must be generated, preserved, and transmitted in a traditional or intergenerational context; must be transmitted between generations within an Indigenous community or traditional community; may need to be integral to the cultural identity of an Indigenous or traditional community; and there be an objective link with the community of origin and have a subjective association within that community [: 5, 74, 75, and 83]. “The IGC on Intellectual Property, GR, TK, and Folklore” text explains that legal protection can overlook Indigenous innovation and the innovative quality of TK systems due the nature of those systems [3: 10]. TK remains to be viewed as a holistic and unique subject-matter and is considered to be a discovery of nature rather than an invention [: 24 and 27]. The discourse presents a variety of ways TK could be protected: physically, through legal measures of IPR, and encouraged use of TK to increase understanding of its importance. These suggestions are outside of common protection measures for IPR, demonstrating that TK within the discourse still remains outside of IPR. With representation at the global level occurring through the nation-state, Indigenous and local communities rely on their governments to act on their behalf. TK holders are predominately in the Global South, which suffers from financial disparity, leaving limited options for the protection of traditional knowledge, by participation in trade negotiations and otherwise. Additionally, if TK was a possibility for patentability, the process is expensive and often patent officers do not understand the language that TK is spoken or written in. This inequality continues with the “TRIPS Agreement” stating that it does not restrict Members from creating their own sui generis regimes or other international instruments, such as databases, yet these suggestions neglect the immense amount of financial support required for these developments [].

Western knowledge faces two dilemmas. First, Western knowledge rests itself on a foundation of reason to understand the true nature of the world, yet it also privileges itself as the fiduciary of all knowledge with authority to authenticate or invalidate other knowledge (when it gets around to it). Colonial-power-knowledge conceptualizes intellectual colonization in Foucaultian terms, in this case with a Western knowledge fiduciary acting as guardian over its Indigenous knowledge ward (Foucault 1977; Feldman 1997). I suggest that the resulting contradiction embroiders some Western knowledge expertise with unreasonableness through its ignorance of other knowledge. Posing as the fiduciary of all knowledge exposes the limits of Western knowledge. Early twentieth-century poet Carl Sandburg poses the knowledge landscape as circles in the sand that help explain Western knowledge's conundrum. "The white man drew a circle in the sand," Sandburg begins immediately, "and told the red man 'This is what the Indian knows.'" Continuing, Sandburg describes the white man drawing a big circle around the smaller one: "This is what the white man knows." Then, as though responding to international development and Western knowledge experts, Sandburg shows the Indian sweeping an immense circle around both rings in the sand. "This is where the white and the red man know nothing" (Sandburg 1971, 30). Often it never seems to dawn on experts that there are limits to their knowledge. In the early twentieth century the philosophical syzygy of modernity included the spheres of Marxian ideology and liberal theory. Sandburg poses his view of colonial-power-knowledge amidst Western self-doubts after the horrors of attempted world colonization became known and disasters like the Titanic and World War I suggested certain Western hubris. In "Worms and the Wind" Sandburg describes creatures surviving in the dark in an earthen myopia. "Worms would rather be worms," he writes. "Ask a worm and he says, 'Who knows what a worm knows?'" In this worm world we are told that worms like tunnels. They like the dark, though worm multiculturalism includes zigzag worms that hate circle worms, and curve worms generally mistrust the squares. Social classes include a longer class that slithers further than a short class, with middle-class satisfaction at being "neither long nor short." In their sightless, myopic night, worms fight worm wars and didactically instruct their young not to feel sorry for the aged "unless you have a been a worm and lived in worm places and read worm books" (Sandburg 1971, 72). The intellectual tone concerns only the need to consider knowledge of the worm world at the exclusions of nonworms. Ironically, though Sandburg is a product of his time and space in the early 1900s, he creates a tableau that allegorically describes my argument. Often Western knowledge experts behave similarly to Sandburg's worms. They seem unconcerned with other knowledge except to validate their own master narrative. The final line of Sandburg's poem depicts Western knowledge's tunnel vision. "Worms underground never hear the wind overground and sometimes they ask 'What is this wind we hear of?'" Colonial-power-knowledge communicates particular cultural presuppositions that elevate Western knowledge as real knowledge while ignoring other knowledge. To show the wormish myopia of this stance, my discussion appears in two sections that divide the intellectual night-crawlers into two parts. First, I examine theories that portray large systems or schemas to the unfolding of history and human development. This type of schematic or paradigmatic view of development has Marxian implications. I describe this view to demonstrate that generalized views of human development exhibit common features and themes shared among many Western knowledge experts. For example, academics Immanuel Wallerstein (1995) and Eric Hobsbawm (1999) promote the Western knowledge master narrative. Second, I review popular literature to demonstrate how the master narrative is communicated--in this case Diamond's Guns, Germs, and Steel (1999) and Krech III's The Ecological Indian (1999). These Western knowledge theorists popularize progress and evolution as Eurocentric. This view leaves no room for knowledge to progress or evolve. Indigenous scholarship argues against the homogenizing Euro-master narrative that seeks to colonize Indigenous knowledge. By the 1960s professional Indigenous scholars confronted the colonizing master narrative. For example, Forbes described Spanish colonization of the southwest (1960), Deloria Jr. attacked cultural presuppositions used by Western knowledge to authenticate culture (1970), and Momaday affirmed the value of Indigenous knowledge (1971). The deliberation by these scholars created an environment for discourse from 1970 onward that was consistent with liberal democracy's value of a deliberative reflective process. I review an Indigenous scholarship that is transformative and deliberative in responding to European colonization, not reactive and emotive. Here I cite Allen (1991), Alvord and Cohen Van Pelt (2000), Sioui Wendayete (1992), Hario and Bird (1997), Thornton (1998), Mihesuah (1998), Dickason (1984), Cook-Lynn (1997), Churchill (1992a), Jaimes-Geurrero (1999), and Warrior (1995). These scholars argue within their disciplines that Indigenous knowledge is reasonable, deliberate, and useful for making sense of life. Terms that are used by these Indigenous scholars are transformative in nature ("indigenism," "americity"), while demonstrating that Indigenous knowledge remains unsubjugated, sovereign, and ignored. This fact demonstrates that resistance to colonization has been maintained to the present day. And coincidentally, this resistance tends to emancipate--or decolonize Indigenous knowledge (Tuhawai Smith 1999). Once decolonized the process for enacting Indigenous life systems shifts from performative culture to a practiced culture--Indigenous knowledge of governance, agriculture, architecture, mathematics, astronomy, communications, medicine, healing, and much more.

Creating sui generis intellectual property protections for indigenous knowledge is an ill-fitted and incomplete remedy to past wrongs committed against native peoples by many governments because the remedy fails to match the harm, either in type or magnitude. Issues of sovereignty, authority, and abuse of power are simply too grave to be "made up for" by intellectual property law, thus we should focus our discussion about protection for indigenous knowledge around the nature of the claim, not past wrongdoing. That is not to diminish or ignore the seriousness of discussion about what can and should be done to rectify such wrongs, but merely to say that these should be distinct dialogues. If we focus on the nature of claims to protect indigenous knowledge, we face the following question: is this a new type of right altogether, or simply an extension of intellectual property as we understand it? In either case, we should keep in mind the justifications for any intellectual property protection and also ask ourselves in what ways claims by indigenous groups may be different, and if these differences justify altered conclusions. I remain skeptical about the current breadth of all intellectual property, so either expanding such rights or creating additional, similar rights specifically for indigenous knowledge will, I admit, face the utmost scrutiny from me. However, what I have tried to do in this essay is to outline some objections to indigenous intellectual property on the grounds that such claims really entail a sort of protection of information which even those who want such a right concede does not exist under U.S. law. 64 These preliminary objections of mine may be overcome, but I believe they are important considerations in the debate. Beyond my critical skepticism, however, I have endeavored to show that there are avenues, within and outside intellectual property law, by which indigenous peoples may effectively help themselves without further expansion or change to the law. By taking advantage of intellectual property law, many groups may be able to reap the benefits of their knowledge by choosing to market their knowledge either directly or through intermediaries. At a minimum, some aspects of intellectual property law, such as pre-emptive publication under patent law, may at least prevent outsiders from exploiting native peoples' knowledge for profit. Existing common law, commercial law, and unfair competition law remedies may also allow for recovery in the case of specific wrongs, such as fraud, unfair dealings, or passing-off. More generally, it is important for the United States and other nations to consider the incorporation of customary law. In many cases native law is not codified, but incorporation of native groups' customary law offers promise to resolving conflicts over the use of indigenous  [*356]  knowledge, as Danielle Conway-Jones discusses in this symposium. 65 Such incorporation is perhaps not easy to do, but it may offer remedy without creating additional law, by merely respecting and integrating native law. This path likely faces many problems as well, but it is certainly worth further consideration and implementation. Related to pluralism, but much more general, is the idea of self-determination. Respecting the autonomy of individuals and groups must also imply the incorporation of their laws, even if they are customary instead of codified, into the larger political bodies in which they reside, instead of stripping them of all political and legal power. Another aspect of self-determination, however, urges us to not force integration, but to take a stance of non-interference. Thus, one side of self-determination compels us to incorporate elements of native culture, but another side of this same political value compels us to be hands-off in our dealings with native groups. This can be a delicate balancing act, but nations should deal with native groups with both aspects of self-determination in mind. This essay highlights various concerns, from philosophical questions to practical steps that could be taken, in the dealings of national legal regimes with indigenous cultures. My purpose has not been to settle any issues in the debate, but more to raise questions - questions that might inform the terms of the debate over indigenous intellectual property, both in its efficacy and in its broader justifications.

Some modern ideologies have justified the degrading of the values of sharing and caring for others regardless of religious beliefs, skin color, and ethnicity while glorifying Euro-American-Australian cruelty, robbery, terrorism, and genocide. Had the European settlers and their descendants have shared their knowledge and technology and cared for indigenous peoples, the world would be built on human centered values that could have promoted multicultural lifestyles rather than Euro-centered values. By attacking indigenous cultures and lifestyles, the peoples of European background intentionally dismissed some aspects of their own history and culture that existed in Europe prior to the emergence of mercantilist capitalism in which peoples shared and cared for one another although there were oppression and exploitation. The Euro-Americans-Australians and their descendants have acted as they always had modern knowledge and technology to claim racial and cultural superiority by suppressing their premodern history and culture that existed before the 16th century. The crimes committed against indigenous peoples in the names of God, commerce, progress, civilization, culture and/or race or religion for making money and acquiring lands should be recognized by the present generation of the previous European settlers and other human groups to understand the historical root of modern human rights violations and to seek a just political solution for existing socio-economic, cultural and political problems of indigenous peoples. All powerful individuals and groups should critically interrogate themselves morally, culturally, socially, and politically in order to develop their humanness rather than hiding their criminal behaviors and actions under the discourses of modernity, civilization, religion, race or culture and continue to commit similar crimes by engaging or supporting unjust and corrupt political and ideological practices. Engaging in or supporting a system that annihilates human beings is morally, ethically, and intellectually wrong because of ideological and cultural blindness and/or to satisfy the appetite for power and money. By understanding the devastating effects of colonialism its various forms of violence on the indigenous peoples, the present generations of Euro-American-Australian descendants and their collaborators in the Global South should start to uplift the surviving ones by making restitution and by promoting their struggles for self-determination and multicultural democracy. All governments and institutions in the West need to stop repeating lies and misinformation about the indigenous peoples by incorporating their authentic history, culture, and humanity in school and college education. Celebrating the contributions of the indigenous peoples, recognizing the crimes committed and compensating them, and accepting the diversity of these countries will blossom the humanity and the diverse cultural and ethnonational backgrounds of these countries by resurrecting the damaged humanity of the executioners and the victims. Without critically understanding the processes of capitalist broadening and incorporation and without adequately learning about the crimes of colonialism and continued subjugation, we cannot confront the moral, philosophical, and political contradictions in the capitalist world system in order to move toward establishing a just and truly egalitarian democratic world order. It is urgent that serious scholars establish a single moral, intellectual, legal, and political position in the study and understanding of the problems of indigenous peoples and suggest pragmatic policies to eliminate or reduce racial/ethnonational inequality, underdevelopment, poverty, and ignorance in the modern world system. Humanity should stop to brag about its progress, civilization, scientific revolution, and religion until it goes back and studies its crimes against its weakest elements so it can critically understand its darkness, barbarism, and falsehood. 35 The colonial knowledge elites have treated the indigenous peoples as historical objects because of their powerlessness. These elites with the support of the nation-state produced “official history” that completely denied a historical space for the colonized and dehumanized peoples around the world. As M. A. Rahman (1993:4) notes, “domination of masses by elites is rooted not only in the polarization of control over the means of material production but also over the means of knowledge production, including control over social power to determine what is useful knowledge.” With their colonization and incorporation into the capitalist world system, the indigenous peoples could not develop independent institutions that would allow them to produce and disseminate their historical knowledge freely. Negative views about the indigenous peoples prevented mainstream and modernist from understanding the histories and cultures of indigenous peoples. While colonial elites and their supporters continue to support the official version of history, indigenous and a few critical scholars have realized the necessity of a plurality of centers in knowledge production and dissemination. A few innovative scholars have recognized the importance of looking at a society from different cultural centers and have developed the emergent indigenous studies. The emergent indigenous studies indicate that the indigenous peoples are transforming their five hundred years of historical defeat to victory through intellectual, political, and armed struggle because of the emergence of an educated class that started to develop indigenous consciousness. Furthermore, contemporary publications on indigenous cultural and social history challenge a top-down paradigm to historiography and make the indigenous peoples subjects rather than objects of history. “Situated knowledges require that the object of knowledge be pictured as an actor and agent, not a screen or a ground or a resource,” D. J. Haraway (1991: 198) writes, “never finally as slave to the master that closes off the dialectic in his unique agency and authorship of ‘objective’ knowledge.” Indigenous studies as liberation knowledge recognize the agency indigenous peoples and promote social justice. In the capitalist world system, the indigenous peoples who do not have states cannot fully develop their institutions, including educational one, and promote social justice for their societies. Therefore, to promote their human rights that are enshrined in the United Nations Declaration of Human Rights and the United Nations Declaration on the Rights of Indigenous Peoples, colonized peoples must intensify their national struggle to achieve national self-determination, statehood, and multinational democracy. Critical humanist scholars in universities must promote a single standard for humanity by supporting the aspirations of these peoples. At the beginning of the twentieth-first century, with the intensifications of globalization and the proliferation of ethnonationalisms, the nature and role of the nation-state are being challenged and changed by the globalizing structures, such as transnational elites, multinational corporations, technological transformation, the revolution in international communication and transformation of information, and by forces of ethnonational diversity and multiculturalism. The development of indigenous movements in different parts of the world shows that there are political and economic crises in various states in particular and the global system in general. The development of cultural and social movements among colonized peoples is seen as an integral part of the worldwide struggle for cultural identity, multiculturalism, economic freedom, social justice, and inalienable political and cultural rights of these peoples.

Indigenous people know from direct experience that every moment of our existence is mediated by the state. Our communities face state violence daily, a violence that holds us hostage, forcing us to engage with it. We are the group most likely to be murdered and harassed by the police and to experience high rates of incarceration. The for-profit stateprison industrial complex disproportionately targets Black and Indigenous people, exploiting our labor and time to put money into the pockets of the elite. The state harasses us at every turn. We face state violence when we protect our lands and waters from the fossil fuel industry. Or when we protect our sacred sites from desecration by settler politicians for propaganda purposes. The US built its ruling capitalist class through the genocide and theft of land stolen from the Indigenous inhabitants of this continent, and by exploiting the enslaved labor of African people. This country was founded on the class war of the rich upon the basis of racism, conducted, enabled and safeguarded by the state apparatus. The US created white supremacy to uphold this class war, constructing an empire of capitalist domination through westward expansion and colonization in the 1800s, and US imperialist subjugation of Black and Brown peoples across the Global South in the twentieth and twenty first centuries. The police forces, which have been militarized over the last several decades, serve as an occupying army in Black and Brown neighborhoods and Indigenous bordertowns. The wanton killing of Black and Indigenous people at the hands of the police in the United States is the product of racial capitalism, aimed at subjugating people through terror. Domestic repression in the United States reflects its colonial and imperial practices abroad. Trillions of dollars are spent by the US government to maintain its political and military hegemony throughout the world and to crush every attempt of the oppressed masses in the Global South to throw off the yoke of US imperial domination. It is our sacred internationalist duty, as revolutionaries in the belly of the imperialist beast, to join forces with these oppressed masses in the fight for liberation. We are a contingent of the world revolution against capitalism and US imperialism. In order to bring about the liberation of Indigenous peoples and all oppressed peoples in this country, and to free the world from the scourge of US imperialism, the capitalist state apparatus and its systems of control must be dismantled, and Turtle Island must be decolonized. This means dismantling the police forces and prison-industrial complex, state surveillance and repressive apparatus, and the US military. It entails the mass return of all land stolen from Indigenous peoples and the right to self-determination for Indigenous nations. This means, as well, self-determination for Black relatives and their right to live on the land. TRN looks forward to further collaborative study with Black-led organizations and Black communities to clarify our positions on land use and how to return the land to a decolonized commons. Our nationalism is not exclusive but calls for a world where many worlds fit—whether these be expressed as Indigenous nations or not. Moreover, socialism means the self-transformation of the masses of people to free themselves from the ideological social control system that perpetuates capitalist and settler-colonial rule, what we consider imperialism on a so-called domestic front.

Milburn 04 (Michael P., "Indigenous nutrition: using traditional food knowledge to solve contemporary health problems." The American Indian Quarterly, vol. 28, no. 3-4, summer-fall 2004, pp. 411+. Accessed via Gale Literature Resource Center on the University of Michigan Library System, DOA: 6/27/24)//LFS – LMH

The U.S. Department of Agriculture Native American food pyramid simply takes the standard food pyramid and adds a few Native foods such as wild rice and wild game, while maintaining the milk and dairy group and a base of bread and cereals. These government models would fall into the camp of not making much difference in the end. (64) Oglala Sioux nutritionist Kibbe McGaa Conti has thrown out government nutrition policy and its associated biases and started from a more appropriate symbol, the sacred Medicine Wheel symbolizing the four directions. In the west of the Sacred Circle Model is placed water and other healthy drinks; in the north is placed lean meats such as the buffalo; in the east are berries, fruits, and vegetables; and finally in the south are corn, beans, potatoes, and squash. The Sacred Circle Model of Native Nutrition is easier to use than the standard food pyramid, says Conti: "More importantly, it's the first and only culturally-specific nutrition curriculum for Native Americans. And it's a way for us to honor our ancestors as we return to eating the traditional foods that kept them--and can keep us--healthy." (65) There is a growing recognition of the need to change current dietary patterns and of the value of traditional foodways. The Center for Indigenous Peoples' Nutrition and Environment, based at McGill University in Montreal, is a research and education resource for Indigenous Peoples created by Canada's Aboriginal Leaders to support traditional nutrition and study the safety of traditional foods, which often have been contaminated by chemical toxins. (66) In the United States community-based traditional nutrition projects and regional and national conferences are focused on the problem of diet-related disease and the need to regain traditional foodways. The winds of change have begun to blow.

B. Intellectual Property Rights Laws Intellectual property rights laws exist in most countries of the world and Western concepts of intellectual property rights usually prevail in national laws. 38 "These concepts are based on the idea that innovation is the product of the genius of individuals. Such people, by sharing the fruits of their genius with society are deemed to be deserving of economic rights granted by the state on behalf of society." 39 Since the United Nations World Intellectual Property Organization conception of intellectual property rights in the is based upon the philosophical model of the individual, there exists a major paradigmatic dissonance that results in intellectual property rights law being insufficient for representing indigenous interests since indigenous peoples' philosophy and traditional knowledge is considered collectively created and owned by an entire tribal unit. Consequently, Western individualized intellectual property rights can pose a threat to indigenous cultures. Forcing collective tribal cultural resource rights to fit into a framework that was meant for individuals' property rights is difficult, undesirable, and sometimes impossible for tribes. Not only do intellectual property rights have to be acquired by a process that can be difficult, time-consuming and expensive, but they also have to be defended. 40 Acquiring and defending intellectual property rights protection requires access to information, good legal advice and financial resources, all of which may be beyond the reach of many indigenous peoples. 41 Within the system of intellectual property rights, patents, trademarks and copyrights are some common forms that IPR can take, each having a specific market application. Patents confer the right to secure the enforcement power of the state in excluding unauthorized persons, for a specified number of years, from  [*668]  making commercial use of a clearly defined invention. 42 They can be used on products such as new pharmaceutical drugs. Because of the array of biodiversity that exists in indigenous territories such as forests, many companies will send a researcher there to attempt to find "new" plants that cure ailments. This has been a continuing practice, one that is very detrimental to indigenous peoples, in which companies patent seeds, genes and other parts isolated from flora that have been cultivated by indigenous people for thousands of years, in some cases effectively eliminating a tribe's ability to use them. Vandana Shiva makes the point that, "Patenting living organisms encourages two forms of violence. First, life-forms are treated as if they are mere machines, thus denying their self-organizing capacity. Second, by allowing the patenting of future generations of plants and animals, the self-reproducing capacity of living organisms is denied." 43 Copyrights are intended to provide legal protections for authors of literary works, dramatic and musical works, artistic works and works of applied art, maps and technical drawings, motion pictures or sound recordings. 44 These protections include allowing the author to take legal action to stop others from copying or reproducing the work, performing the work in public, making a sound recording of the work, etc., for a specified period of time. 45 These may be useful to a tribe, but copyrights are still intended for individuals or companies, and are difficult to apply to the cultural rights of an entire tribe, or unit within a tribe. Many of the cultural rights protections that tribes seek are meant to be enjoyed in perpetuity, not for a limited amount of time. Certain aspects of culture, such as oral tradition, known in Western parlance as expressions of folklore, evolve as time moves forward, making copyrights inapplicable to the issue of protection of indigenous peoples' cultural rights. Trademarks are generally for company logos or company or product names. They protect the owners of the trademarks from other entities using their words or images in advertising a product. 46 There may be some instances when trademark protections can assist the cultural protections sought by tribes. An "indigenous alliance consisting of representatives of different communities selling similar products could register a trademark  [*669]  that could be used by participating communities." 47 This may work for some tribes, but it will certainly not apply to the majority of tribes. In the case of the people of the Zia Pueblo, as documented by Michael F. Brown in his book, Who Owns Native Culture?, the tribe has been involved in a long dispute with the State of New Mexico and private companies that exploit their sacred Zia sun symbol for personal gain, and private and commercial use. 48 The Zia sun symbol appears on the New Mexico state flag. As a result of this ongoing conflict, PL105-330 was passed, "which called on the U.S. Patent and Trademark Office (USPTO) to examine its policies relating to the official insignia of Indian tribes." 49 Although the tribe still cannot claim the sole ownership of its symbol, the State of New Mexico issued a joint memorial that "acknowledges that the sun symbol belongs to the Pueblo of Zia, that they appropriated the symbol without proper permission and authority." 50 The Zia Pueblo tribe has not reached a settlement that allows their sacred cultural property to be protected, and its use continues to be abused, to the detriment of the tribe. 51 Intellectual property rights and the components of intellectual property rights, including patents, copyrights and trademarks, are inadequate to deal with concerns specific to indigenous cultural rights as they exist in the current system of laws and international trade agreements. Because they are based upon individuals' rights rather than the collective rights recognized by tribes, and cannot equitably address the close relationship of traditional indigenous values to their lands, intellectual property rights can actually be more damaging than useful. Michael Brown asks, "How can we promote respectful treatment of native cultures and indigenous forms of self-expression within mass societies?" 52 The answer to this question remains to be found. Vandana Shiva objects to intellectual property rights as they stand today, and states that they will inevitably lead to intellectual and cultural impoverishment by displacing other ways of knowing, other objectives for knowledge creation, and other modes of knowledge sharing … . Central to the ideology of IPRs is the fallacy that people are creative only if they can make profits and guarantee them through IPR protection.  [*670]  It negates the creativity of those not spurred by the search for profits. It negates the creativity of traditional societies. 53 For indigenous people, traditionally, the concept of private property is not equivalent to the Western concept. In general, indigenous peoples' worldviews hold communally owned property and stewardship as paramount. While tribes must navigate their people through a changing world, it is imperative to retain core values that can remain unaltered by colonization. This is a key concept of decolonization and also an underlying substrate of the language and landscape of indigenous cultural rights.

A. THE THREAT OF CLIMATE CHANGE Climate change threatens humankind's existence. The Intergovernmental Panel on Climate Change states, "[h]uman influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history. Recent climate changes have had widespread impacts on human and natural systems." 38 In the United States, climate change affects tribes on a daily basis. Because of their location and, in many instances, increased reliance on the environment, many tribal communities are particularly vulnerable to the impacts of climate change. For example, starting in 1998, tribal nations in the Pacific Coast and Rocky Mountain regions reported the following climate change-related issues: increased and more constant winds; violent weather changes where storms wiped out intertidal shellfish; declining salmon runs; deformed fish; significant decreases in the life spans of individual Natives due to the unavailability of traditional foods; air pollution from burning forests; minimum river flows necessary for native fish species; and erosion from rising sea levels. 39 Tribal nations in other regions of the United States are also experiencing profound changes to their environments. 40 Climate change is causing more frequent and intense weather events, which are in turn disrupting whole ecological systems. These changes not only have biophysical outcomes (i.e., effects on both the living and non-living environment, such as on plant growth or on wind patterns), but are also disrupting the cyclical connection between human beings and the natural world. 41 For example, global  [*594]  warming is accelerating the rate at which the Greenland and Antarctic ice sheets are melting, contributing to global sea-level rise, which in turn directly threatens Pacific Island communities. 42 The problem of ocean acidification is also altering the relationship that fishermen have with aquatic life. 43 In the Northern Hemisphere, Alaskan Native peoples, in particular, are being forced to adapt to the accelerated effects of climate change while struggling to maintain their connection to place. The Alaskan interior has been experiencing drastic temperature changes over the last fifteen years--leading to, among other problems, increasingly destructive wildfires in the region. 44 These wildfires are becoming a "wicked problem," carrying both environmental and social consequences. 45 Fire has been a part of the natural Alaskan landscape for nearly six thousand years; what has changed since 2004 are the fires' intensity, frequency, and geographic scope. 46 Major fires are more apparent in extraordinarily dry years, but in recorded history, there were multi-year gaps between these types of fires. 47 The science shows that increasing greenhouse gas emissions tend to "oscillate" toward higher latitudes; studies have specifically linked the Pacific Decadal Oscillation (PDO) to the occurrence of wildfires. 48 Thus, Alaska is at the forefront of dangerous environmental change. 49 As these changes unfold and as many communities confront more extreme fluctuations in patterns that once seemed relatively stable and familiar, some of them are rediscovering the observational experiences and traditional knowledge of Alaskan Native peoples.

Climate change is perhaps the most familiar example of anthropogenic interference with earth system processes in an era that has become known as the Anthropocene. The Anthropocene is a term introduced by scientists Paul Crutzen and Eugene Stoermer to refer to a new geological epoch of unprecedented human breach of planetary boundaries essential to the flourishing of human and nonhuman life.43 The authors attribute the emergence of the Anthropocene to the destructive technologies developed by humanity and seek “to guide [hu]mankind towards, global, sustainable, environmental management” 44 At heart of the Anthropocene is the anthropos, the human whose economic activity is exceeding ecosystem limits. Portraying the Anthropocene as a crisis to which all humans have contributed obscures the fact that only a small minority of humankind caused the problem – primarily persons who are White, affluent, and located predominantly in the Global North.45 Scholars in a variety of disciplines have criticized this undifferentiated view of humanity, and have emphasized the underlying social and economic drivers of anthropogenic earth system disruption, including colonial conquest, imperial dispossession, and the imposition of a global capitalist order that systematically abuses nature and exploits large segments of the world’s population.46 Some scholars proposed the notion of the Capitalocene to better address the role of capitalism as the underlying cause of contemporary social and ecological crises.47Others have emphasized the role of racism and colonial violence as the means through which humans and nature are objectified and exploited.48 An analysis of climate change through a race-conscious decolonial lens reveals the ways that race is inscribed in the history of capitalism and in the sacrifice zones of both the fossil fuel economy and the emerging green energy economy. The domination of nature and the dispossession and exploitation of racialized human beings are deeply interconnected. First, the colonization of the Americas and the transatlantic slave trade established the material and ideological foundations of capitalism – a system based on extraction, accumulation through dispossession, and White supremacy.49 The Anthropocene is the epoch under which ‘humanity’ – but more accurately, petrochemical companies and those invested in and profiting from petrocapitalism and colonialism – have had such a large impact on the planet that radionuclides, coal, plutonium, plastic, concrete, genocide and other markers are now visible in the geologic strata.50 Indeed, the genocide of the Indigenous populations of the Americas in the 1500s was so massive (nearly fifty million deaths) that farming collapsed and forests rebounded.51 The removal by forests of enormous amounts of carbon from the atmosphere caused a significant dip in atmospheric carbon dioxide levels in the 1600s, measurable in Antarctic ice cores.52 Due to the magnitude of this early human modification of the environment, some scholars have proposed 1610 as the beginning of the Anthropocene.53 This early marker of the Anthropocene coincided with the importation of enslaved Africans to extract gold, silver, and copper in the Americas and to produce the sugar and cotton that fueled the Industrial Revolution.54 “Plantation agriculture and cotton in particular were key to the emergence of the industrial power of England first and quickly much of the rest of Europe.” 55 The slave plantation colonies of the Americas supplied not only food and industrial inputs but also markets for British manufactured goods.56 Between 1600 and 1800, slaves in the Americas comprised less than 1 percent of the world’s population, but produced the commodities that dominated world trade.57 Slavery, genocide, and colonialism were thus central rather than peripheral to the Industrial Revolution, the birth of carbon capitalism, and the beginning of the Anthropocene.58 These systems of domination relied on lethal force as well as the ideology of White supremacy.59 Second, the “slow violence” inflicted by the fossil fuel industry on racialized and poor communities throughout the world remains a central feature of contemporary capitalism.60 The extraction, processing, transportation, refining, and combustion of fossil fuels has placed disproportionate environmental burdens on racialized communities in both the Global North and the Global South. From the Niger Delta to the Canadian tar sands to the countless communities living in the shadow of polluting petrochemical facilities and power plants, the life cycle impacts of fossil fuels include eviction from ancestral lands; desecration of sacred sites; poisoning of air, land, and water; fires, explosions, and industrial accidents; loss of subsistence fishing and hunting rights; and exposure to significant health hazards.61 Thus, local and transnational environmental justice struggles against coal mining, petroleum drilling, fracking, oil and gas pipelines, and polluting refineries and power plants are an integral part of the struggle for climate justice. Third, fossil fuels are concentrated in particular countries and regions, such as the Middle East, that have been targeted over and over for invasion, occupation, and exploitation. The North’s bloody resource wars, its collusion with despotic petrostates, and the resulting death, destruction, and displacement of racialized Muslim and Arab populations are among the most violent ongoing manifestations of climate injustice.62 When persons displaced by these conflicts seek refuge in the Global North, they are branded as potential terrorists and subjected to restrictive border controls, including the notorious “Muslim ban” on travel to the USA from certain predominantly Muslim countries.63 Fourth, those most susceptible to climate-related disasters and slow-onset events are overwhelmingly persons classified as non-White.64 They reside in geographic locations (such as lowlying coastal zones, small island states, and agriculture-dependent nations) disproportionately exposed to hurricanes, floods, drought, desertification, and rising sea levels.65 In addition, they have been rendered socially and economically vulnerable to climate change by the North’s economic and military interventions.66 The North’s “under-development” of the Global South during the colonial and postcolonial era, so eloquently described by Walter Rodney67 and Eduardo Galeano68 has been exacerbated by decades of neoliberal economic reforms imposed initially by the World Bank and the International Monetary Fund (IMF) and subsequently through regional and multilateral trade agreements and bilateral investment treaties.69 These reforms increased poverty; reduced access to healthcare, education, and other social services; undermined the development of climate-resilient urban and rural infrastructure; created mass displacement; and deprived states and communities of the resources necessary for climate adaptation and disaster response and recovery.70 Fifth, racialized communities in the Global South are being displaced not only by climate change, military interventions, and neoliberal economic policies, but also by the measures deployed to mitigate greenhouse gas emissions. For example, wind farms are being developed in Oaxaca, Mexico on Indigenous lands to provide energy to Walmart, Coca-Cola, Heineken, and Cemex (a Mexican cement manufacturer) without public debate; adequate compensation; free, prior, and informed consent; equitable sharing of benefits with local communities; and mechanisms to provide compensation for damage and loss of land.71 In Canada, a controversial proposal to build an enormous hydroelectric dam on the Peace River threatens to displace Indigenous peoples and replicate the sacrifice zones of carbon capitalism – but this time in the name of “green energy.” 72 In Brazil and throughout the Global South, forest conservation schemes developed through the climate regime’s Reducing Emissions from Deforestation and Forest Degradation (REDD+) program are interfering with the rights of local and Indigenous communities to harvest plants, timber, or fish in their ancestral territories.73 Lastly, the legislation in the United States74 and the European Union75 requiring the blending of biofuels into transportation fuels has diverted land from food to fuel production, increased food prices, and incentivized large-scale land transactions in the Global South that destroy forests and displace rural dwellers in order to make way for large plantations to cultivate biofuel feedstocks (such as oil palm).76 These mandates remain in place even though the life-cycle greenhouse gas emissions of many biofuels exceed those of the fossil fuels they replace.77 Finally, racialized persons displaced by poverty, conflict, and environmental degradation face death, detention, and deportation when they attempt to migrate to the Global North.78 The Trump administration has portrayed the Central American families seeking refuge in the United States as “an unstoppable invasion of social parasites and criminals,” 79 and has threatened to close the US–Mexican border.80 The US government has criminally prosecuted migrants, separated migrant children from their families, and confined thousands of migrant children in kennel-like, ice-cold cells.81 European states are adopting increasingly aggressive measures to deter the entry of African and Middle Eastern migrants, who are depicted as violent, patriarchal, and likely to commit act of terrorism.82 These policies have resulted in the death of thousands of migrants at sea as smugglers select more dangerous routes and less seaworthy vessels to avoid detection.83 Finally, Australia continues to indefinitely detain migrants and refugees in offshore processing centers located in Nauru and on Manus Island in Papua New Guinea under conditions that Amnesty International has denounced as “a human rights catastrophe.” 84 In Europe, the United States, and other settler-colonial nations, the population is generally divided “between those whose movement is a manifestation of liberty, and should therefore be maximized, and those whose freedom is a problem, and should therefore be tightly regulated.” 85 While corporations freely roam the world, racialized bodies are policed, detained, incarcerated, and deported. Ironically, even though the mobility of the affluent (including air travel) contributes disproportionately to climate change,86 it is the mobility of the non-White poor that states restrict.87 Climate change is anticipated to displace between twenty-five million and one billion people by 2050. 88 The North’s exclusionary immigration policies do not bode well for climate displaced racialized communities. An analysis of climate change grounded in the coloniality of power reveals a key thread that unites these abuses – the abyssal line dividing those deemed human from those deemed nonhuman/subhuman. While everyone is vulnerable to climate change, those who occupy the sacrifice zones of racial capitalism are particularly susceptible to harm due to their classification as subhuman and disposable. Racialization justifies and naturalizes violence and dispossession – in war zones, in resource extraction zones, in the green energy economy, and in the refugee camps and migrant detention centers of the Global North. As Naomi Klein observes: A culture that places so little value on black and brown lives that it is willing to let human beings disappear beneath the waves, or set themselves on fire in detention centres, will also be willing to let the countries where black and brown people live disappear beneath the waves, or desiccate in the arid heat. When that happens, theories of human hierarchy – that we must take care of our own first – will be marshalled to rationalize these monstrous decisions.89