The perm would be an opt-out framework preserves indigenous sovereignty without encroaching on authority. It creates a default rule against unauthorized appropriation without replacing Tribal IP law.

Second, establishing an “opt-out” framework in which Tribal law and policy determines the reach of the Copyright Act on Tribal lands sets a bright-line standard for when copyright law should regulate creativity occurring on Tribal lands. The currently inconsistent circuit court tests outlined in Part I, which attempt to divine a given federal law’s impacts on Tribal sovereignty based on a foreign judge’s understanding of it, are arbitrary at best, leaving Tribal authors, artists and other creators guessing about what intellectual property rights they might hold. Indeed, these tests re-entrench settler-colonial power over Indigenous peoples by usurping their prerogatives on what is or is not an intrusion on their sovereignty.

The approach proposed here presumes that federal copyright law will always interfere with Tribal sovereignty and self-determination whenever it conflicts with an established Tribal law or policy. Federal courts would simply need to inquire whether Tribal law or policy already regulates a particular creative subject matter. If the Tribe has spoken as to the protection of a particular kind of creativity legislatively, via common-law, or through established Tribal protocols and norms, that creativity will be exempt from the application of the Copyright Act on Tribal lands. Thus, by tethering Tribes’ own positive enactments (or lack thereof) to the status of federal copyright, I argue that Tribal self-determination in the area of intellectual property will be encouraged.

Of course the reality is that not all tribes have adopted comprehensive intellectual property policies governing ownership and circulation of every kind of creative expression on Tribal lands, though many are actively developing policy in this area.248 As the development of Tribal intellectual property policy is happening, Tribal members, businesses, institutions, and Tribal government entities creating copyrightable material for distribution within the global information economy should still be able to rely on the Copyright Act for access to markets, leverage in negotiating transactions, and for protections the Act offers against unauthorized appropriations. Thus, where Tribes have not yet determined their own intellectual property policies, the default rule provides that those creative works which Tribal sovereigns do not yet regulate would be eligible for protections the Copyright Act affords, unless and until the Tribe affirmatively determines otherwise.

Finally, this framework provides a territorial approach to copyright law that will hopefully bring at least some clarity and stability for Tribal creators regarding the rights they have in their work. When Tribal creators want their work to be protected under Tribal law, they can choose to create on Tribal lands knowing their work is so protected. Likewise, if a Tribal member wants to take advantage of federal copyright law, they may ask their Tribal legislative body to allow copyright to apply to their particular kind of work, or alternatively, they may travel off Tribal lands to create. Indeed, Tribes might attract certain creatives or creative industries to Tribal lands by establishing favorable copyright policies.