Creative Sovereignties: Should Copyright Apply on Tribal Lands?
Forthcoming, Journal for the Copyright Society USA
Posted: 6 Dec 2020
Date Written: September 30, 2020
The federal Copyright Act grants authors the exclusive right to use their original creative expressions in certain ways. At the same time, the Act pre-empts most equivalent rights to creative expressions established by States. However, the Copyright Act is silent as to its applicability on the lands of Native American Tribes and its preemptive effect on rights sovereign Tribal governments accord to creativity. With Tribes and Tribal members increasingly engaged in the global creative economy and in litigation to defend their intellectual properties, the status of the Copyright Act on Tribal lands has become a critical issue Congress or the courts must now address.
Copyright’s applicability on Tribal lands is certainly not a foregone conclusion. In the absence of clear direction from Congress and the Supreme Court, federal circuit courts of appeal have developed strikingly different doctrinal approaches for determining when a “generally applicable federal law” like the Copyright Act should be allowed to encroach on Tribes’ self-governance over their territories and membership. On one hand, the Tenth Circuit and those that follow its reasoning have adopted a presumption against applying general federal laws on Tribal lands without an express directive from Congress, out of respect for Tribal sovereignty. The Ninth Circuit, on the other hand, and those that follow its reasoning have adopted the opposite presumption, that general federal laws do apply on Tribal lands, unless such laws interfere with internal Tribal affairs or an existing Tribal treaty right. As a result, at least one federal court has suggested that the Copyright Act does not apply to Tribes under the Tenth Circuit framework, while two others appear ready to apply the Copyright Act on tribal lands under the Ninth Circuit’s approach.
The stakes of applying the Copyright Act on Tribal lands may be quite high for Tribes. Drawing on community-partnered ethnographic research conducted with the Hopi Tribe, I show how federal copyright law supports certain forms of Tribal creativity intended for off-reservation markets. But for locally circulating creativity—including forms of cultural or ceremonial creativity that help maintain Tribal identity, social relations, and traditional sources of authority—applying Copyright may very well disrupt the exercise of Tribal sovereignty and cause substantial harm to Tribal creative economies.
Based on this research, I argue that the Copyright Act should apply on Tribal lands, but only to the extent permitted by each Tribe. Individual Tribes would likely take distinct approaches to copyright policy, but presumably most Tribes would allow the Copyright Act to protect works created on Tribal lands that are intended for consumption by publics beyond the Tribe and in exchange, allow for enforcement of copyright infringement claims brought by non-members against Tribal members who misappropriate works created off-reservation. What is crucial, however, is that where Tribal intellectual property laws, protocols, or customary laws occupy the same field as the Copyright Act, Tribal entitlements and remedies, not federal ones, should govern creativity occurring on Tribal lands, with federal copyright law providing enforcement of Tribal intellectual property rights beyond a Tribe’s borders. Otherwise, the unilateral imposition of the Copyright Act on tribal creativity, to the exclusion of Tribal laws, impermissibly invades Tribal sovereignty as articulated in both current federal policy and the international norms enshrined in the United Nations Declaration on the Rights of Indigenous Peoples
Keywords: copyright, reservation, Native American, Indigenous, jurisdiction
JEL Classification: K11
Suggested Citation: Suggested Citation