Indigenous Misdescription

Abstract

As we are all familiar, Native American tribal names appear on a wide swath of goods and places that bear little relation to the tribes whose names they reflect. Examples from the commercial marketplace are ubiquitous –from Mohawk carpets to Apache software, Oneida dishware to Chippewa boots, Yakama bike racks to Winnebago RVs. Tribal names are also pervasively present in the naming of lands and geographies, as the public’s increasing engagement with land acknowledgements demonstrates. Yet at the same time, these names can also be construed as cultural properties, enduring symbols of cultural heritage and tribal identity. This results in a foundational discordance regarding tribal names – as much as they constitute cultural properties from the perspective of the tribes who named them, they can also function in the marketplace as branded commodities.



Intellectual property law, increasingly, has inherited the discordance between these two poles. On one hand, through the language of the Indian Arts and Crafts Act, the law has sought to protect the authenticity of tribally-branded products by creating penalties for the sale of goods that falsely suggest that they are the products of a particular Native American tribe. But at the same time, the Lanham Act – the principal body of trademark law – has taken a very different approach when it comes to tribal names. At the same time that the Indian Arts and Crafts Act attempts to protect the authenticity of certain products, it has also offered an open-ended invitation to entities – Native and non-Native alike – to register tribal names for branded products. The result of this doctrinal dissonance, we argue, has facilitated a vast and troubling historical absence of Indigenous ownership at the PTO level.



In this paper, we explore the constitutive, empirical and juridical history of Native American tribal names that function as branded commodities. Beyond the high-profile cases that spill across the front pages of newspapers, this study analyzes the astonishing range of Native American appropriation. Using an original dataset of tribal names in conjunction with an in-depth analysis of PTO registrations from 1891 to 2021, we note a striking result: over 90 percent of tribally-affiliated registrations are in the hands of non-tribal ownership.


At the same time, however, it is important to recognize that this is only part of the story. While our primary focus, admittedly, has been on the historical trajectory, recent PTO data provides us with a more contemporary foundation to analyze how tribes are increasingly filing their own trademarks to protect their intellectual and cultural property. Indeed, this article concludes with an analysis of how intellectual property law can shift towards more productive and protective approaches concerning the rights of Native Nations over their names in the future.

Keywords: Trademarks, Cultural Property, Indigenous Studies, Intellectual Property, Ethnic Studies