Who Owns Our Ancestors' Voices? Tribal Claims to Pre-1972 Sound Recordings

Abstract

Recordings of Native Americans performing ceremonies, songs, oral histories, and other oral literatures made prior to 1972 comprise a significant portion of media housed in American museums, universities, and government institutions. But, who owns them? Answering this question requires examining the special place of pre-1972 sound recordings within American copyright law; grappling with the complex terrain of jurisdiction over American Indians, their lands and cultures; and reconciling indigenous ownership systems with those based on European legal models and philosophies. As many tribes are now seeking exclusive ownership over valuable cultural knowledge and practices encapsulated in these recordings, and instances of cultural appropriation from Native American communities are on the rise, ownership of these sound recordings is becoming increasingly important. This article attempts to elucidate the ownership status of sound recordings made on the lands of Federally Recognized Indian Tribes prior to 1972, and to provide constitutional and policy justifications for why Tribal statutes, common and/or customary law should be the primary forms of law protecting these recordings from unauthorized exploitation and appropriation.

Keywords: Native American, Indigenous, Common-law Copyright, Native American Graves Protection and Repatriation Act, Ontology

JEL Classification: K39