The best way to address native ip issues is not through expansion of western ip – instead we need to work with indigenous systems and work with their rights to self-determination as a delicate balancing act - even if some can take advantage in the squo, that doesn’t mean that they are going to be the majority of groups and peoples

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.