Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes

37 Pages Posted: 4 Sep 2018

See all articles by Dalindyebo Bafana Shabalala

Dalindyebo Bafana Shabalala

University of Dayton School of Law; Case Western Reserve University School of Law; Maastricht University Faculty of Law

Date Written: 2017

Abstract

Indigenous peoples and nations have been making demands for protection and promotion of their intellectual property, traditional knowledge, and traditional cultural expressions in domestic and international fora. The power of the basic demand is one that lies in claims of moral duty and human rights. This Article argues that in order for such claims to have power, one of the necessary elements for success is that the demandeurs themselves need to provide such protection within whatever scope of sovereignty that they exercise. In the context of Native American tribes seeking protection for Native American intellectual property under federal law in the broader territory of the United States, this Article argues that a necessary condition for success may be ensuring such protection on their own tribal territory. This Article serves as an early contribution to a broader research agenda aimed at providing more data as a basis for tribal claims for protection of their traditional knowledge and traditional cultural expressions. It presents a survey of the nature and scope of legal and formal protection that tribal legislation in the United States has provided for traditional knowledge and traditional cultural expressions. It further surveys and analyzes the nature and scope of protection provided under federal law and assesses the gap between what tribal codes provide and what federal law provides. It then proposes a series of next steps as a research agenda.

Keywords: intellectual property, traditional knowledge, traditional cultural expressions, Native American, Tribal code

Suggested Citation

Shabalala, Dalindyebo Bafana, Intellectual Property, Traditional Knowledge, and Traditional Cultural Expressions in Native American Tribal Codes (2017). Akron Law Review, Vol. 51, No. 4, 2017. Available at SSRN: https://ssrn.com/abstract=3238342

Dalindyebo Bafana Shabalala (Contact Author)

University of Dayton School of Law ( email )

300 College Park
Dayton, OH 45469
United States

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

Maastricht University Faculty of Law ( email )

Maastricht

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