The squo IP protection mechanisms are incompatible with indigenous culture and values – it actively forces cultural assimilation along with forcing them to comply to market capitalism – which many indigenous societies actively reject

Smolinski 23 Smolinski, Ph.D., J.D., is a Professor of Computer Science at Delaware State University in Dover, Delaware, where he serves as the Head of the Computational Intelligence, Biological, and Legal Informatics (CIBiLI) research laboratory. (Dr. Tomasz G., “A Proposal for a Model Indigenous Intellectual Property Protection Tribal Code (MIIPPTC)”, Tribal Law Journal, 6-1-2023, , DOA: 6/24/24)//LFS – LMH

B. Incompatibility of the Western Cultural/Intellectual Property Protection Mechanisms with Traditional, Indigenous Cultural Values The incompatibility between traditional, Indigenous cultural values and the Western cultural/intellectual property protection mechanisms is multi-dimensional. First, traditional knowledge is typically transmitted through “songs, proverbs, stories, folklore, community laws, common or collective property and invention, practices, and rituals.”44 Given that physical recordings, in any form, of such practices or rituals are often entirely prohibited in Native American communities, meeting the hard copy fixation requirement of the Western IP protection regimes is virtually impossible.45 Second, while Western approaches “incentivize creation for a market economy,” and see intellectual property mainly as a means for an individual or a company to accumulate wealth, in the “communitarian, gift-based culture” of many Native American tribes, such property is considered a common good, to be shared in by all of the members of the community. 46 John (Fire) Lame Deer vividly explained this incompatibility by stating that while “[f]or a white man each blade of grass or spring has a price tag on it,” Indians generally refuse to live in the “Green Frog Skin World,” green frog skin meaning the U.S. dollar. 47 Accordingly, in the context of intellectual property protections, rather than achieving commercialization, the goal of many Indigenous communities is to “preserve the integrity of the knowledge and to keep it safe from appropriation, destruction, deformation, and extinction.”48 Obviously, the mainstream Western IP protection mechanisms fall short of this goal. Copyright law, designed to protect the expression of certain ideas, is of little use in protecting the knowledge itself. Trademarks, although arguably potentially useful for protecting genuine, Native-made handicrafts, are similarly of little help in sheltering traditional knowledge. Patents, due to their strict novelty requirements and short protection timeframes, similarly are ill-suited to protect the generations-old Indigenous knowledge. Finally, trade secret protections, although on the surface quite appealing (assuming that an argument could be made that only a few tribal members possess the relevant knowledge), in practice turn out to be quite powerless, especially against reverse-engineering; a technique which large companies certainly have at their disposal.49 C. 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 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]ndigenous peoples . . . to finally control the integrity, disposition, and appropriation of their sacred knowledge,”53 but also to “exercis[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]ndigenous conceptions of justice,” specifically in the context of the protection of Indigenous intellectual property. 55 The next part of the Article provides a survey of selected historical and contemporary IP protection mechanisms utilized by American Indian tribes.