Top-down methods undermine sovereignty

[*90] Finally, relying solely on top-down efforts to define indigenous peoples' own cultural heritage undermines indigenous peoples' rights to self-determination. 119 Indigenous peoples must have the opportunity to articulate their own paths with respect to their traditional knowledge, including whether to reveal or license it, and when to veto research. 120 Empowering indigenous peoples to control and direct their culture and lifeways means emphasizing their role in the creation of their own destinies through the development of tribally specific cultural preservation laws. In contrast to the international and national regimes discussed above, this Article contends that tribal law should be applied as the "ultimate determinant of rights and responsibilities in relation to indigenous cultural and intellectual heritage." 121 Employing tribal law to protect the cultural property of indigenous peoples opens the door to many possibilities. Tribal law is drawn from a tribe's traditional customary law, tribal belief systems, and other contemporary forms of tribal governance, including ordinances and tribal constitutions. 122 It therefore reflects not only substantive legal principles, but also the cultural context from which they evolved. Through tribal law, indigenous governance of cultural property and traditional knowledge will correlate specifically to the works tribes seek to protect, allow for forms of punishment consistent with the community's values, and properly incentivize behavior that is good for the community at large. Tribal law is also uniquely well-suited to accommodate the religious and cultural beliefs of tribes in ways that Western law cannot. 123 For example, tribal codes may better reflect the relationship between tribes and the earth. Even if a tribe is no longer living in its aboriginal territory, [*91] most tribes share a common belief that the earth is sacred. 124 Tribal law is more apt to capture this belief than Western legal systems, which tend to view the earth and her resources as a collection of commodities to own, rather than an integral part of daily life. 125 Thus, tribes may choose to protect their sacred places in tribal codes even if, for culturally mandated reasons, they elect not to delineate them in detail. 126 In addition to the physical world, tribal codes may reflect the richness of the tribe's other resources, which are as varied as the community, tribal elders, and oral literature. Tribally formulated laws governing the protection of traditional knowledge are free to evolve outside the constraints of Anglo-American intellectual property doctrine, and in most cases they should do so. Whether tribes choose to create collective rather than individual ownership schemes, to limit authority over cultural property to specific group members or to permit the inalienability of tribal cultural property, these choices are best effectuated by and through tribal law. 127 Some groups may even seek to form regional organizations devoted to recognizing, promoting, and supporting the rights of local communities to traditional knowledge. 128 Regardless of substantive variances, tribal law is most adept at accommodating the wide-ranging and diverse cultural lives of indigenous communities. 129