No solvency to Tribal Laws – enforcement

IV. CHALLENGES TO A LEGAL PROTECTION OF INTANGIBLE CULTURAL RIGHTS A. ENFORCEMENT Whether legislation protecting intangible indigenous cultural property rights is introduced at a tribal, state, or federal level, the enforcement of any resulting law would be one of the biggest challenges for proponents of such a system. A tribal law would likely prove the most problematic in this regard. A tribal ordinance would likely be enforceable against a member of the tribe or another Indian person on tribal land, 110 but at least as a criminal ordinance, it would be completely unenforceable against non-Indians. 111 Short of any interference by Congress, 112 civil enforcement would be difficult as well. Under Montana v. United States, 113 there is no tribal civil jurisdiction over non-Indians outside of Indian Country, i.e. almost anyone that tribes would truly want or need to regulate in situations of unauthorized cultural appropriation, except in two very specific cases: "activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements" 114 or "when those activities threaten to have a direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 115 These exceptions would likely be difficult to apply to non-Indian parties such as musicians and sports teams, but perhaps not impossible with the right set of facts. Debra Harry & L'a Malia Kanehe argue in Asserting Tribal Sovereignty Over Cultural Property: Moving Towards Protection of Genetic Material and Indigenous Knowledge that the Montana proviso could possibly be successfully satisfied in an action against outside researchers if the right tribal law were on the books: 116