In early February, the Stanford University Native American Law Students Association (NALSA) held a conference on contemporary issues in Indian law.
The fourth and final panel of the conference focused on intellectual property, bringing together , , a leading social psychologist who researches Native representations and stereotypes, and me鈥攁 postdoctoral researcher and who writes about cultural appropriation in fashion, sports, and popular culture.
It has only been recently that I have begun to frame my work in the language of intellectual property, and it is still a rhetoric and field in which I don鈥檛 feel as well informed or well versed as I should be. As a scholar who utilizes a non-traditional medium (blogging), and as a non-lawyer in a law-centric space, I was apprehensive to share my ideas, but also eager to hear feedback from those who see IP law as a hopeful entry into protecting Native cultures and communities.
I started the panel, sharing images from my blog, , which I started in 2010 as a first-year doctoral student. I flashed quickly through pictures from advertising, film, fashion, and sports, demonstrating how ubiquitous stereotypical imagery of Native peoples is in our everyday lives, and then focused in on two quick case studies to demonstrate the power of Native people speaking back against mis-representations and mis-use of tribal images and names. The first was Paul Frank, who in 2011 hosted an extremely offensive 鈥渄ream catchin鈥� powwow鈥� featuring warpaint, headdressed monkeys, and more. After online activism and letters to the company, they eventually embarked on a Native designer collaboration, showcasing real contemporary Native design. I then briefly discussed the Urban Outfitters Navajo case, in which in their online store. Navajo nation holds trademarks dating back to the 1970s on 鈥淣avajo鈥� in relation to clothing and other goods, so they took the step to against the company after a cease-and-desist went unaddressed. The case is still ongoing.
Dr. Fryberg was up next, and utilized her time to build a case as to why stereotypes matter, and why we should be focusing on eradicating these harmful images. She told the audience, 鈥渟tereotypes are reflected in all institutions that comprise society,鈥� and drew upon to demonstrate how these images deeply affect Native students. Fryberg also discussed as it relates to not only Native people, but white people as well. She said, of stereotype threat, that 鈥淚 don鈥檛 have to believe [the stereotype], but it will still affect me.鈥� She ended her presentation by saying 鈥淟awyers should be inundated with social psychology,鈥� emphasizing the need to understand social contexts and how we relate to one another.
Finally, Paula Yost from Dentons presented a truly fascinating case study of the , who dealt with a years-long case over the use of their tribal name by an imposter. In addition to laying out the details of the case, where the tribe eventually triumphed, Yost also outlined the basics of IP for a layman audience鈥攄iscussing how 鈥済eneric鈥� words and phrases are not protected, and it鈥檚 a matter of defining 鈥渨ho鈥� you are versus 鈥渨hat鈥� you are. She utilized the example of Apple computers (distinctive) against a piece of fruit (generic). The problem when trying to protect a tribal name or cultural marker is that the law comes from a profit-minded perspective, examining potentials for lost revenue, rather than a political mindset to protect sovereignty and culture.
I took pages of notes during the panel, hanging intently on every word of my fellow panelists, and listening as they engaged in thoughtful Q&A with the audience members. To me, the take away from the panel was that our tribal names, our cultural markers, and our designs are deeply important parts of our identities as Native peoples, and deserve protection from dangerous mis-use that threatens not only our sovereignty, as in the Shingle Springs case, but also our abilities to define and determine our own identities.
It was clear from the legal discussion that trademark and IP law offers very narrow protection for communities, and that there may be an uphill battle to protect more amorphous aspects of cultures, like design or cultural artifacts, but that it is an important avenue that tribes can and should utilize in certain cases.
Just this week, sent me back to my notes from the panel. Last year, Urban Outfitters had petitioned to have all of the Navajo trademarks cancelled, citing them as being 鈥済eneric鈥� and 鈥渄escriptive鈥� rather than 鈥渘arrow鈥� and 鈥渄istinctive.鈥� While the Navajo Tribe was able to dismiss the case, utilizing sovereign immunity, Urban Outfitters has now appealed the case to lower courts. To me, the thought that the legal name of a tribal community could be considered 鈥済eneric,鈥� is appalling, and points to how deeply the appropriation of our cultures runs in our society鈥攖o think that hundreds of years of misuse and appropriation by outsiders has diluted a tribal name to the point that it could go the way of Xerox? Or Keenex? (for the background on the case, see , and this about the lawsuit)
Our discussion at Stanford was extremely helpful for my own understandings of the complexities and potentials of IP law, but also how dangerous seemingly innocuous images and stereotypes are for the well being of our communities. I hope this panel is just the first of many in which we can bring together these multiple viewpoints to advance the conversation and highlight the intersections of various disciplinary perspectives on intellectual property in Indian Country.
Photos courtesy of Adrienne Keene, used with permission.
Adrienne Keene is a Postdoctoral Fellow in Native American Studies at Brown University, and an IPinCH Associate.