Natives Neg - Michigan 7 2024 CPSW

Natives Aff --- Case Neg
Notes
s/o to all the hard CPSW-ers who cooked up this file --- Abhi K, Abhi I, Danny, Isabel, Ishaan, Julia, Kyle, Lena, Lily M., Lizzy, Matthew C., Neev, Nikos, Ria, Soyam M., Shazeb, Tavishi, and Zuhair. And of course, Josh R. Clark, the goat. **Special thanks to Lena for cutting a MILLION cards
When navigating this file --- case is organized like the stock issues cause that’s what made the most sense to me (lena, s/o kansas debate for stock issues) so you could put inherency on probs any advantage, the solvency under the main one is less specific and probs could cross apply to the K’s for the block, and then you will find actual advantage answers under ‘advantages’. I didn’t put [1nc x] or whatever so you have some freedom in determining where the cards go, especially cause we cut awesome cards and they often have multiple purposes. Then there is off – in no particular order . Organization for the kritiks are pretty dependent on what the neg wants to do so there isn’t a ‘read in 1nc or 2nc’ cause it kinda j depends. Counterplans have a text, or spot for one, and then cards. Disads have links, T has a 1NC shell.
FOR THE SET COL 1AC – there is not a specfic “case” answers – but a lot of the stuff from the K or general solvency deficits still apply.
More specifics ---
Cap K – probably fine against the aff, there are some good links about capitalism, indigenous people, and intellectual property, but the better bet is probably the coloniality K. there are also some generic cap links in here that apply broader to other affs… could be useful for general cap debates
Coloniality K – links r gas, aff responses are not as gas [there is like four of them or smth] – could go for it as alt solves or rhetoric cause there are links to both.
Counterplans: sui generis lit is actually so abundant its wild. Def good place for future updates. The other cps arent bad there just arent as many cards so take that as you will
Disads -- …
Topicality: T-Domestic, T-Courts and T-congress – all fine, any cards not in this file can be found in an existing T file.
Future research for the neg: probs needs to mainly focus on…
Disad links. Turns out the aff is kinda gas so it doesn’t link to many of the DAs… or at least we couldn’t find it.
Counterplans – there are a lot of solvency advocates throughout the aff and neg file that do a good job at outlining possible solvency mechanisms, so there is def some more aff spec counterplans here!
ON ---
AT -- Inherency/UQ
Case – No Inherency
Morality aspects of current patent law can solve for protection of Indigenous traditional knowledge under existing IPR regimes.
DeGeer, ‘02
(Marcia Ellen DeGeer holds a Juris Doctorate from the New England School of Law, and is now a lawyer specializing in business. 2002, Biopiracy: The Appropriation of Indigenous Peoples’ Cultural Knowledge. New England Journal of International and Comparative Law, Vol. 9 no. 1, pages 179-208. https://ipmall.law.unh.edu/sites/default/files/hosted_resources/PLANT_PATENT_ARTICLES/biopiracy_and_indigenous_knowledges.pdf CPSW - GHS-LHM//)
C. Enforce Public Policy and Morality Aspects of Patent Law. Under the test for patent applicability are the grounds to negate corporate patents of Indigenous Peoples’ plants. Under the usefulness prong of patent law, a patent will not be issued if it is illegal or immoral. The Patent Trade Office has recently used the Moral Utility doctrine to exclude inventions that combined human and animal cells. “The courts have interpreted the utility requirement to exclude inventions deemed to be ‘injurious to the well-being, good policy, or good morals of society.’” Placing pressure on our governments and the international community through public awareness could persuade the courts and the TRIPS agreement to consider the validity of the Indigenous Peoples’ claims to their plants and cultural knowledge. Public awareness could expose bioprospecting for what it is, illegal and immoral appropriation.
The U.S. is already providing indigenous peoples with stronger IPR
Schuler 13 Lindsey Schuler, J.D., Michigan State University College of Law. B.A., University of Kansas, (2013). MODERN AGE PROTECTION: PROTECTING INDIGENOUS KNOWLEDGE THOUGH INTELLECTUAL PROPERTY LAW. Michigan State International Law Review, 21, 751, https://turtletalk.blog/wp-content/uploads/2014/12/schuler-modern-age-protection-protecting-indigenous-knowledge.pdf // shaka
As previously mentioned, the United States also codified NAGPRA at 25 U.S.C. § 3001, protecting Indigenous artifacts with particular cultural value.148 Not too long ago there was no recourse for misappropriation of Indigenous intellectual and cultural property, but now there are criminal penalties for violation of these protections.149 To date, Indigenous peoples have appealed to the courts, integrating Indigenous intellectual property with twenty-first century legal practices by filing lawsuits to protect their rights.150 For example, the Cow Creek Band of the Umpqua Tribe of Indians in Oregon joined the Indian trademark case involving the Indian Motorcycle Company consortium to "promote pride, dignity, and knowledge about Native American heritage."151 The federal suit was originally filed because Indian Motorcycles, a motorcycle manufacturing company, violated the Indian Arts and Crafts Act of 1990 by using "Indian" in its name.152 The Cow Creeks joined the suit with federal encouragement, and the case was one of the first to challenge the limited corporate responsibility when using Indigenous names and symbols. Recently, there has been collaboration between the USPTO and the Native American Intellectual Property Enterprise Council (NAIPEC). The groups joined together and signed the Memorandum of Understanding, which aims to increase Native American inventors' patent and trademark filing. The goals are to participate in "research and identify the IP education needs of specific Native American communities, and to provide that education in whatever way works best." A new office in the USPTO will facilitate their interactions and allow direct access for Native American intellectual property advocates. This new collaboration is a prime example of how nations can work in unison with their Indigenous communities to create systems that function in harmony to meet the needs of all.153
The U.S. is strengthening IP protections for indigenous peoples in the status quo
Naholowa'a 24 Makalika Naholowa'a, president of the National Native American Bar Association (2023-24) and executive director of the Native Hawaiian Legal Corporation, (2024). ADVANCING INTERNATIONAL INTELLECTUAL PROPERTY NEGOTIATIONS TO PROTECT INDIGENOUS CULTURES, 49 Human Rights 21, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/native-american-issues/intellectual-property-rights-to-protect-indigenous-cultures/ // shaka
This past fall, the U.S. Patent and Trademark Office (USPTO) issued an uncommon request for public comment and notice of Tribal consultation regarding protections for Native American culture and traditional knowledge in the intellectual property system. This effort is a part of the USPTO’s work to develop U.S. positions on legal instruments being negotiated at the intellectual property arm of the United Nations (UN). Several legal instruments currently under negotiation could usher in an era of mutually beneficial collaboration and exciting innovations between Indigenous people and other parties, public and private. U.S. support for Indigenous rights in these international processes would offer hope to all Indigenous people for the future of these instruments. For Native Americans, there would be additional cause for optimism that urgently needed legal changes in the United States could be enacted to protect Native American cultures and related Indigenous human rights.
AT – solvency
Case – Solvency
IP can’t solve
Loyer 10 [Loyer, Jessie. “Subject Guides: Indigenous Research: Intellectual Property Rights and Copyright.” Guides.library.ualberta.ca, 2010, guides.library.ualberta.ca/indigenous-research/indigenous-data-sovereignty/intellectual-property-rights-and-copyright.]
In a Canadian context Issues with IPR and its imposition on TK and Indigenous communities expressions of TK often cannot qualify for protection because they are too old and are, therefore they are assumed to be in the Public Domain; that the “author” of the material is often not identifiable, therefore there is no “rights holder” in the usual sense of the term; and that TK is owned “collectively” by Indigenous groups for cultural claims and not by individuals or corporations for economic claims. additionally Canadian Copyright laws do not protect Indigenous knowledge because of the above stated.
Case – Plan doesn’t solve r/c
The plan will never work because of the inherent racist biases in the usfg
-but this card is also maybe not the best cause its about lending idek
- even though this isnt the aff, its an important point that biases in the system could still exist because of constatnt racial biases against native Americans
Johnson 10 Johnson is a Third-year student, University of Oklahoma College of Law (Aaron Drue, “Just say no (to american capitalism): why american indians should reject the model tribal secured transactions act and other attempts to promote economic assimilation”, American Indian Law Review, 1-1-2010, https://digitalcommons.law.ou.edu/cgi/viewcontent.cgi?article=1096&context=ailr, DOA: 6/29/24)//LFS – LMH
We must not deny reality. Native Americans will likely be targeted with unfair lending practices because of their race. The subprime predatory lending problem is disproportionately concentrated in minority communities.9 4 Statistics indicate that the gap in subprime lending practices cannot be explained by disparities in income alone." A HUD/Treasury study determined that the disproportionate concentration of predatory lending in minority groups existed not only in low- and moderate-income neighborhoods, but in highincome neighborhoods as well.96 The study's findings are startling. For example, the study found that "borrowers . . . in upper-income black neighborhoods [are] twice as likely as homeowners in low-income white neighborhoods to refinance with a subprime loan."97 HUD gives several reasons for the discrepancy. The HUD report asserts that "the disproportionate amount of subprime lending in certain neighborhoods likely results from the following factors: differences in credit characteristics of borrowers; differences in the types of loans (e.g. small balance loans); and less competition from mainstream lenders." 98 Moreover, it asserts that "[1]ow-income and minority neighborhoods may be especially vulnerable to abusive lending practices because subprime lending tends to be concentrated in these neighborhoods."99 Notwithstanding HUD's conclusions, American Indians are free to make their own inferences in response to these statistics. My feeling, however, is that Native American tribes that adopt the MTSTA are inviting the same type of harmful lending practices documented in the HUD study. The MTSTA simply does not provide adequate protection against racially disproportionate predatory-lending practices
Case --- aff ignores indigenous voices
Sure, some believe that TK needs to be protected through systems like IPR, but we also need to keep in mind the research and scholarship that does not believe this to be true
Munzer* and Raustala ** 09 *Professor of Law, UCLA School of Law. **Professor of Law, UCLA School of Law; Director, Ronald W. Burkle Center for International Relations, UCLA. (Stephen R.*, Kal.*, “The Uneasy Case for Intellectual Property Rights in Traditional Knowledge”, Cardozo Arts & Entertainment Law Journal, Vol. 27 (2009), pp. 37-97, 2009, UCLA School of Law Research Paper No. 09-16, https://www.cardozoaelj.com/wp-content/uploads/Journal%20Issues/Volume%2027/Issue%201/Munzer.pdf, DOA: 6/29/24)//LFS – LMH
Proponents of a new legal regime for TK often invoke concepts of property in their defense. To denounce “biopiracy” and the plunder of TK assumes that what was pirated or plundered is property.2 A recent report by WIPO, for instance, states that "holders of TK should be entitled to fair and equitable sharing of benefits arising from the use of their knowledge."3 This statement likewise presupposes that the benefits of knowledge or the knowledge itself, or both, are property to be shared among TK holders. Proponents suggest that the legal protection of TK will serve several important goals. These include promoting respect for TK; deterring the misappropriation of TK; empowering TK holders, who are typically marginalized indigenous peoples; and protecting tradition-based innovation. The existing IP system is said to be unable to meet the needs of TK holders; as a result, extensive legal change is required.4 Some of the literature on TK takes as self-evident the proposition that TK ought to be protected, and focuses instead on how to do so: to revamp the patent system, to create sui generis rights via international treaties, to build global databases of TK that can be used to block patent applications, and so forth. Other analysts consider the more basic question of whether IP protection is in order. And still others contend that IP protection for at least some TK is contrary to how many indigenous communities conceive of their cultural heritage.
The aff fails – it groups all native american groups under one strategy and continues the belief that monetary incentives are the only method of reperations – shame on you affirmative not cool dude
Baker 18, *J.D. candidate, North Carolina Central University School of Law, 2019; B.A., Wake Forest University, Sociology, 2016. (KaDeidra, “Indigenous Appropriation and Protections Provided by Intellectual Property Law”, North Carolina Central University Science and Intellectual Property Law Review, Volume 11 Issue 1 Article 4, 8-16-2018, https://archives.law.nccu.edu/cgi/viewcontent.cgi?article=1010&context=siplr , DOA: 6/29/24)//LFS – LMH
In addition, throughout the history of the United States, there has been a long standing disconnect between the cultural values of Native American nations and the laws of the United States federal government. 132 For example, the Sioux Nation133 is the poorest Native American nation in the United States.134 Over the course of the last century, the Sioux Nation has asserted that the federal government breached the Fort Laramie Treaty of 1868135 by forcefully taking possession of land occupied by the tribe.136 The tribe brought a claim against the United States to regain what they consider to be sacred land.137 After a long fought court battle, the United States was eventually ordered to pay the Sioux Nation $122.5 million.138 Despite the Sioux Nation’s struggling financial standing, the tribe refused the money.139 The tribe, instead, argued that the compensation for the claim was incomparable to the cultural value of the land that the federal government expropriated.140 For these reasons, the WIPO should also consider the meaning of certain culturally significant designs when determining appropriate remedies and penalties for violating the proposed intellectual property provisions. As noted in the presented case law, in certain circumstances, monetary relief may not be sufficient to justify a sacred injury. In addition, it is also worth noting that there is no singular, “Native American perspective.” Therefore, what one Native group values, may be of no value to another group. Similarly, Native groups do not remain the same throughout time. Therefore, what may be of value to one Native group at one point in time, may be of no value in future years. For these reasons, it is also of great importance that the WIPO also take into consideration that indigenous groups are not monolithic or stagnant in their growth. Therefore, there is no set strategy that transcend the test of time and work favorably for all groups involved. For that reason, it is also worthwhile to consider using other legal theories in addition to intellectual property when protecting the cultural designs of indigenous people.
Case --- solvency
No solvency to Tribal Laws – enforcement
Collier-Wise 10 [Kelsey Collier-Wise, JD, University of South Dakota School of Law (2009); Spring 2010; ESSAY: IDENTITY THEFT: A SEARCH FOR LEGAL PROTECTIONS OF INTANGIBLE INDIGENOUS CULTURAL PROPERTY, 13 Great Plains Nat. Resources J. 85; Nexis Uni; cpsw -ib]
IV. CHALLENGES TO A LEGAL PROTECTION OF INTANGIBLE CULTURAL RIGHTS A. ENFORCEMENT Whether legislation protecting intangible indigenous cultural property rights is introduced at a tribal, state, or federal level, the enforcement of any resulting law would be one of the biggest challenges for proponents of such a system. A tribal law would likely prove the most problematic in this regard. A tribal ordinance would likely be enforceable against a member of the tribe or another Indian person on tribal land, 110 but at least as a criminal ordinance, it would be completely unenforceable against non-Indians. 111 Short of any interference by Congress, 112 civil enforcement would be difficult as well. Under Montana v. United States, 113 there is no tribal civil jurisdiction over non-Indians outside of Indian Country, i.e. almost anyone that tribes would truly want or need to regulate in situations of unauthorized cultural appropriation, except in two very specific cases: "activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements" 114 or "when those activities threaten to have a direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 115 These exceptions would likely be difficult to apply to non-Indian parties such as musicians and sports teams, but perhaps not impossible with the right set of facts. Debra Harry & L'a Malia Kanehe argue in Asserting Tribal Sovereignty Over Cultural Property: Moving Towards Protection of Genetic Material and Indigenous Knowledge that the Montana proviso could possibly be successfully satisfied in an action against outside researchers if the right tribal law were on the books: 116
EVERY CATEGORY OF IPR EMPRICALLY FAILS!
Czubakowski 21 , Associate Attorney practicing family law in Snohomish and King Counties and in Tulalip Tribal Court (Katherine, “Why IP Law is Failing Native Tribes”, Washington Journal of Law, Technology and the Arts, 4-14-2021, https://wjlta.com/2021/04/14/why-ip-law-is-failing-native-american-tribes/, DOA: 6/29/24)//LFS – LMH
Each of the four major categories of intellectual property rights fails to protect Native American tribal names for a different reason, leaving them unprotected in the public domain for general use or misuse. Trade secret law fails to protect tribal culture and names because tribes do not attempt to keep these things secret. Sacred objects are widely known throughout the tribe and sometimes publicly displayed as part of their ritual usage. Patent similarly provides no obvious protection for tribal names and culture because they are not new scientific inventions or technological advancements. Although some tribes have had success with registering their names as a trademark, registration requires that a name or cultural object be used in commerce and that the word not be a generic term. These requirements can quickly invalidate tribal names since many tribes do not commercialize their names or culture, nor do they want to do so, and tribal words have been appropriated by white companies for years which puts them in danger of being labeled generic. Some tribal symbols have even been incorporated into state flags and are therefore specifically invalidated from being trademarked. Copyright protections also frequently fail to protect tribal names and cultural symbols. Co

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