The perm relegates bilateral authority to Tribal and the federal government which solves. BUT doesn’t void federal copyright right that could help communities.

As a matter of federal policy and established international norms, Indigenous sovereigns, not colonizing governments, should exercise ultimate control over the ownership and circulation of creative expressions within their territories. While this principle is seemingly straightforward, implementing it within the field of copyright law poses certain challenges, particularly given the federal government’s dominance in the field of copyright law today and the uncertainty in the law surrounding the TribalFederal relationship. At one extreme, unilaterally imposing the Copyright Act on Tribal lands would, as articulated by the UNDRIP, impermissibly invade Tribes’ inherent sovereignty. But the opposite extreme — completely eliminating federal protection for all works created on Tribal lands — also makes little sense as it would potentially deprive Tribal members (who are U.S. citizens) of a kind of valuable property right otherwise available to other Americans. The status of copyright on Tribal lands may also have implications for those who aren’t members of the Tribe residing off of tribal lands: if the Copyright Act were not enforceable on Tribal lands, copyrightable works—made by Tribal members and non-members alike—could be exploited there with impunity, unless Tribes protected these works under principles of comity or their own intellectual property frameworks.

To remedy this dilemma, the United States ideally should enter into bi-lateral agreements with each Tribe establishing mutually agreed upon protections for creative expressions. This is how the United States has historically engaged in negotiations with Tribes where both property rights and sovereignty are at stake.242 Such agreements would allow Tribes and the United States to determine how the Copyright Act would apply on Tribal lands so as to avoid intrusion on Tribal sovereignty while potentially providing opportunities for reciprocal federal recognition and enforcement of Indigenous intellectual property laws off of Tribal lands. Such agreements already pervade Indigenous-settler relations in the United States, beginning with treaties,243 and persisting now through governmentto-government agreements, such as Indian Self-Determination and Education Assistance (ISDEAA) contracts. These contracts allow Tribes to regulate and operate local schools, hospitals, and other institutions previously regulated by the federal government, with the purpose of increasing Tribal self-determination in areas critical to Tribal sovereignty.244 The end result would be a robust intellectual property framework that protects both Indigenous and settler creative interests, while upholding the national intellectual property policies of both the United States and sovereign Tribal nations.

Establishing comprehensive intellectual property agreements between Tribes and the United States will likely take time and political will to effectuate.245 Indeed, such agreements may not arise without a catalyzing force. At the same time, maintaining the current uncertainty regarding intellectual property rights on Tribal lands in the absence of such a comprehensive agreement may continue to stifle Tribal creativity. Therefore, until such time as these agreements are entered into by Tribes and ratified by Congress, I argue that a set of default rules should be employed by courts. These default rules should (1) account for the diverse creators and forms of creativity happening on Tribal lands, (2) ensure Tribes have the right to exercise their sovereignty in the domain of creative expression, while (3) incentivizing the United States and Tribes to negotiate when their interests in the governance of creative expressions on Tribal lands diverge. I propose that, unless an agreement between a Tribe and the United States provides otherwise, the Copyright Act should apply on Tribal lands only to those copyrightable works that are not already regulated by Tribal sovereigns.

This proposed default rule can be defended in a number of ways.246 First, giving primacy to Tribal intellectual property laws and policies over federal copyright law allows Tribes to make their own determinations about how best to balance distribution of ownership interests in intellectual properties against the principles and structures undergirding their public spheres. As discussed, many Tribes already have regulatory frameworks in place that differentiate between creativity meant to circu late freely within the global creative economy and creativity that should circulate only according to Tribal laws, principles, and protocols.247 Affording deference to Tribes when they have already established their own policies, regulations, restrictions, or ownership structures regarding creative expression upholds federal policies and international norms favoring Indigenous self-determination in matters of cultural stewardship and production.