Creative Sovereignties: Should Copyright Apply on Tribal Lands?

Abstract

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 that Congress or the courts must now address.

The stakes of applying the Copyright Act on Tribal lands may be quite high for Tribes. Drawing on doctrinal research coupled with community-partnered ethnographic research conducted with the Hopi Tribe, I explain how federal copyright law impacts contemporary tribal sovereignty. Copyright clearly 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. 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