In early February, the Stanford University Native American Law Students Association (NALSA) held a conference on contemporary issues in Indian law.
The fourth and final panel of the conference focused on intellectual property, bringing together Paula Yost of Dentons Law Firm, Dr. Stephanie Fryberg, a leading social psychologist who researches Native representations and stereotypes, and me—a postdoctoral researcher and blogger who writes about cultural appropriation in fashion, sports, and popular culture.
It has only been recently that I have begun to frame my work in the language of intellectual property, and it is still a rhetoric and field in which I don’t feel as well informed or well versed as I should be. As a scholar who utilizes a non-traditional medium (blogging), and as a non-lawyer in a law-centric space, I was apprehensive to share my ideas, but also eager to hear feedback from those who see IP law as a hopeful entry into protecting Native cultures and communities.
I started the panel, sharing images from my blog, Native Appropriations, which I started in 2010 as a first-year doctoral student. I flashed quickly through pictures from advertising, film, fashion, and sports, demonstrating how ubiquitous stereotypical imagery of Native peoples is in our everyday lives, and then focused in on two quick case studies to demonstrate the power of Native people speaking back against mis-representations and mis-use of tribal images and names. The first was Paul Frank, who in 2011 hosted an extremely offensive “dream catchin’ powwow” featuring warpaint, headdressed monkeys, and more. After online activism and letters to the company, they eventually embarked on a Native designer collaboration, showcasing real contemporary Native design. I then briefly discussed the Urban Outfitters Navajo case, in which it was discovered that UO had over 20 products called “Navajo” in their online store. Navajo nation holds trademarks dating back to the 1970s on “Navajo” in relation to clothing and other goods, so they took the step to file a lawsuit against the company after a cease-and-desist went unaddressed. The case is still ongoing.
Dr. Fryberg was up next, and utilized her time to build a case as to why stereotypes matter, and why we should be focusing on eradicating these harmful images. She told the audience, “stereotypes are reflected in all institutions that comprise society,” and drew upon her groundbreaking work on Indian mascots to demonstrate how these images deeply affect Native students. Fryberg also discussed Claude Steele’s Stereotype Threat as it relates to not only Native people, but white people as well. She said, of stereotype threat, that “I don’t have to believe [the stereotype], but it will still affect me.” She ended her presentation by saying “Lawyers should be inundated with social psychology,” emphasizing the need to understand social contexts and how we relate to one another.
Finally, Paula Yost from Dentons presented a truly fascinating case study of the Shingle Springs Band of Miwok, who dealt with a years-long case over the use of their tribal name by an imposter. In addition to laying out the details of the case, where the tribe eventually triumphed, Yost also outlined the basics of IP for a layman audience—discussing how “generic” words and phrases are not protected, and it’s a matter of defining “who” you are versus “what” you are. She utilized the example of Apple computers (distinctive) against a piece of fruit (generic). The problem when trying to protect a tribal name or cultural marker is that the law comes from a profit-minded perspective, examining potentials for lost revenue, rather than a political mindset to protect sovereignty and culture.
I took pages of notes during the panel, hanging intently on every word of my fellow panelists, and listening as they engaged in thoughtful Q&A with the audience members. To me, the take away from the panel was that our tribal names, our cultural markers, and our designs are deeply important parts of our identities as Native peoples, and deserve protection from dangerous mis-use that threatens not only our sovereignty, as in the Shingle Springs case, but also our abilities to define and determine our own identities.
It was clear from the legal discussion that trademark and IP law offers very narrow protection for communities, and that there may be an uphill battle to protect more amorphous aspects of cultures, like design or cultural artifacts, but that it is an important avenue that tribes can and should utilize in certain cases.
Just this week, new developments in the Urban Outfitters Navajo case sent me back to my notes from the panel. Last year, Urban Outfitters had petitioned to have all of the Navajo trademarks cancelled, citing them as being “generic” and “descriptive” rather than “narrow” and “distinctive.” While the Navajo Tribe was able to dismiss the case, utilizing sovereign immunity, Urban Outfitters has now appealed the case to lower courts. To me, the thought that the legal name of a tribal community could be considered “generic,” is appalling, and points to how deeply the appropriation of our cultures runs in our society—to think that hundreds of years of misuse and appropriation by outsiders has diluted a tribal name to the point that it could go the way of Xerox? Or Keenex? (for the background on the case, see this post from 2011, and this NPR story about the lawsuit)
Our discussion at Stanford was extremely helpful for my own understandings of the complexities and potentials of IP law, but also how dangerous seemingly innocuous images and stereotypes are for the well being of our communities. I hope this panel is just the first of many in which we can bring together these multiple viewpoints to advance the conversation and highlight the intersections of various disciplinary perspectives on intellectual property in Indian Country.
Photos courtesy of Adrienne Keene, used with permission.
Adrienne Keene is a Postdoctoral Fellow in Native American Studies at Brown University, and an IPinCH Associate.
