ANCC - Apache
Nation Chamber of Commerce
ANCC - APACHE
NATION CHAMBER OF COMMERCE
"FORGING SELF DETERMINED SUSTAINABILITY THROUGH TRADE"
Indigenous Intellectual Property Rights, Legal
Obstacles and Innovative Solutions, edited by Mary
Riley, AltaMira Press, 2004
A Sovereign Analysis of Native Bits,
Data, Information and Knowledge
All sovereignty is
rooted in Mother earth for all indigenous humans and
Native title to land
cannot be alienated. U.S. law now accepts that certain
cultural objects cannot be alienated from their caretakers
and their places of origin. The confiscation and
appropriation of cultural property is part of colonization.
Purloining or compromising an indigenous Native freedom to
practice Native religions and its exclusive use rights to
specific artifacts, images and locations is an act of
denunciation of or withdrawal from a treaty with another
The appropriation of
the indigenous icons including
identification, description, the interpretation of the
content of images: the subjects depicted, the particular
compositions and details used to do such and other elements
which are distinct from artistic style. Indigenous Native
art appropriated and used in state and national symbols
signifies assimilation of the Native art as a symbol of loss
for the Native.
To legally protect
indigenous objects and motifs at points of market
intersection necessitates treating the objects and motifs
like private property. If not protected as private property,
free-floating images, songs, stories, a number of Native
objects can be appropriated when they are released into the
market, where they can be mistaken for being in the public
Commercialism replaces indigenism,
becoming today’s form of colonialism
How do Tribes reclaim Native
objects and motifs taken into the public domain?
becomes a critical issue in asserting a collective identity
such as the indigenous Native culture. , especially in the
case of “use rights” – collectively the information and
knowledge of the Nation’s human and non-human people,
including the next generations. There are sometimes
conflicts with the use rights of objects entrusted to
medicine people. Serving the interests of tribal governments
sometime overlook and overrule the actual communities. Do
the Cheyenne speak for the Northern Cheyenne or the Southern
Cheyenne, or both? Do the Lakota speak also for the Dakota
and Nakota, and are there intercultural and linguistic
variations to be separately and equally addressed? Who
speaks for the others’ next generations? Is that agreement
on data information and knowledge recorded only for the
indigenous, or are records published to the non-indigenous,
becoming no longer private to the Native tribe(s), lost to
the Native tribe(s) to anyone, elsewhere, everywhere? Is a
moral hazard involved or imminent?
Will the traditional
processes protecting cultural sovereignty be used, or
something deployed with the consequences discounting benefit
for the seven generations? All sovereignty is rooted in
Mother earth shared for all indigenous humans and
Case law can create
guides testing the utility of intellectual property rights
and cultural property laws. Indigenous cultural rules
governing production and “ownership” of indigenous cultural
objects often do not follow legal principles. In local
community contexts, indigenous knowledge bears upon cultural
property claims by conferring collectively recognized forms
of “precedents” and “evidence” – enabling a form of
“cultural copyright” as a collective right. What does that
In cultural property
cases, customary practices govern rules for production,
display, and (re)-distribution. In distinguishing
information from knowledge, indigenous knowledge cannot be
extracted as an isolate, like a gene cell. Information and
knowledge is embedded within shifting conditions of cultural
systems that include rights vested through kinship and
upheld by community sanction.
While the Native
American Graves Protection and Repatriation Act (“NAGPR”)
states that oral histories and cultural codes of meaning can
be used to determine cultural claims to objects, the fact is
that ethno-historical, archaeological, and legal records are
privileged in documenting museum collections,
and in some cases, American Indian spokespeople report that
Native testimony has been expunged from the historical
record. In short, it’s about whose story gets told, and
who has the right to tell it.
Secrecy and Sovereignty
The issue of secrecy
is related to silence as a way to control the flow of
cultural knowledge. The process of returning an asset, an
item of symbolic value or a person - voluntarily or forcibly
- to its owner or their place of origin, community or
citizenship, is a way to ensure indigenous knowledge does
not become a matter of public record.
practices are silenced in the erasure of women’s knowledge
from museum and legal records – even where women serve as
keepers of rights to indigenous designs and redistributors
of cultural objects.
Native women stand
as spokespeople. Repatriated objects are frequently
family objects, associated with family histories, clans,
and places of origin, where people and objects converge to
create a context for cultural meanings and uses.
How are the women involved in the
decision process of releasing sovereign information and
knowledge in its cultural forms and community land base?
Sovereignty, as both
a political and philosophical dimension of cultural rights,
is tied to claims of Native title, whether that title is to
land, cultural property, or art forms. In the early days,
this was a “(bad) beans blankets and some bullets for
hunting” treaty clause, “as long as the grass grows.”
How is trade managed by community
decision between all parties to the Agreement?
How is good trade made for the
Native title to
cultural and intellectual property and their expressions
such as art forms are inseparable aspects of sovereignty.
Based on Native title integrated with the cultural integrity
and unique information and knowledge of the indigenous
Community, the cultural rights argument sounds less like
“special rights” and more like “human rights” and
Native title to land
cannot be alienated and remains central to the issue of
validating sovereignty. The same can be said, and U.S. law
now accepts (as in NAGPRA) that certain cultural objects
cannot be alienated from their caretakers and their places
The Rights of Indians and Tribes, Oxford
University Press 2012, Stephen L. Pevar
The Apache are
sovereign. They have rights unless and until they give away
their rights. Regardless, there are rights and under certain
conditions those rights the Apache cannot relinquish. A
treaty does not list all the (Sovereign Indian and US
citizen) rights, and no treaty was ever intended to do so.
law has as its most important legal principle the
recognition of Indian tribes as sovereign nations. Most
everyone is familiar with Indian treaties in American
history. Treaties are made between sovereign governments, so
what is an Indian tribe? A sovereign government! Some people
think that Indian treaties are ancient history, but no –
treaties are the supreme law of the land according to the
U.S. Constitution unless they have been changed by acts of
Executive Director of the Native American
The (US) Supreme Court has
observed that “unless and ‘until Congress acts, the tribes
retain’ their historic sovereign authority.”
As the Supreme Court declared in
2016, “beginning with Chief Justice Marshall and continuing
for nearly two centuries, this Court has held firm and fast
to the view that Congress’s power over Indian affairs does
nothing to gainsay the profound importance of the tribes’
“‘As separate sovereigns
pre-existing the Constitution, tribes have historically been
regarded as unconstrained by those constitutional provisions
framed specifically as limitations on federal or state
Indian tribes are “domestic
dependent nations’ that exercise ‘inherent sovereign
… statutes, treaties, and
administrative decisions must be examined to determine
whether tribal sovereignty “has been altered, divested, or
Tribal Sovereignty and
Self-Determination by Government Branch
Congress passed a
law granting citizenship to all Indians born in the United
States. An Indian can be both a citizen of the United States
and a member of an Indian tribe and have all the benefits
and obligations that arise out of that dual status.
“We must affirm the
rights of the first Americans to remain Indians while
exercising their rights as Americans. We must affirm their
rights to freedom of choice and self-determination.”
President Lyndon Johnson
the states from acquiring any additional authority over
Indian reservations under P.L. 280 without the consent of
the affected tribe.
Congress has since restored to
federal status nearly all the tribes terminated during the
“This, then, must be the goal of any new
national policy toward the Indian people: to strengthen the
Indian sense of autonomy without threatening this sense of
President Richard Nixon
Indian Child Welfare Act gives
Indian tribes and Indian families substantial protections
against the removal of Indian families from their homes by
state agencies and state courts.
Government Tax Status Act authorizes Indian tribes many
of the same tax advantages enjoyed by the states, such as
the ability to issue tax-exempt bonds to finance government
intends to restore tribal governments to their rightful
place amount governments of this nation and to enable tribal
governments, along with State and local governments, to
resume control over their own affairs.”
President Ronald Reagan
Indian Gaming Regulatory Act
confirmed Indian tribe authority to engage in gaming to
raise revenue and promote economic development.
Congress amended the
Indian Arts and Crafts Act prohibiting goods labeled
as “Indian” unless they were made by Indians. The law also
permits Indians to recover damages against those who violate
Clinton issued an executive order requiring all federal
agencies to conduct business with Indians on a
“government to government” basis, respectful of tribal
President Bill Clinton issued an
executive order reaffirming “the right of Indian tribes to
“self-government,” while also requiring federal agencies to
work to protect “tribal trust resources, Indian tribal
treaty and other rights.”
President Barack Obama issued an
executive order requiring federal agencies to engage in
meaningful consultation with tribal governments prior to
taking any action that may impact the tribes’ interests.
President Obama signed the United Nations Declaration
of the Rights of Indigenous Peoples recognizing the
inherent and fundamental rights of native peoples
throughout the world.
“Native Americans must be full partners
in our nation’s economy, thrive in safe communities, and
have equal access to quality education and health care.”
David J. Hayes
Deputy Secretary of the Department of the
US Supreme Court
Since the 1970s,
Indian interests have lost more than 80 percent of the cases
decided by the Court, a worse success rate than convicted
criminals have fared on the merits of their cases. Over the
last 20 years, the Supreme court has led a massive assault
on tribal sovereignty. Since 1968 the Court decided numerous
cases involving the rights of Indians and tribes, and it
ruled against Indian interests in the vast majority of the
Principles of Interpretation
…“ambiguous statutes are to be
construed in favor of the Indians”;
… the Indian Tribal
Energy Development and Self-Determination Act of 2005
seeks to increase
tribal authority to manage their energy resources.
the 1980s, most federal pollution control acts, including
Water Act, the Safe
Drinking Water Act, and the Clean Air Act, have authorized
tribes to be treated
as states in regulating pollution within their territories.
self-governance remains a challenge. Recent statutes
self-governance over tribal resources, for example, include
imposed on states or private landowners,
tribal jurisdiction over non-Indians limit territorial
The principles of
Indian title are the following:
the federal government acquired
ownership of all the land within the United States by
discovery and conquest and the Indians lost all rights of
Indians retain a perpetual right
to remain on their aboriginal territory until such time as
Congress decides to take this land for another purpose
Indian title is a possessory and
not an ownership interest - Indians have a right to possess
their ancestral land but not to own the land unless Congress
gives them ownership rights
Indian title may not be sold by
the Indians without authorization from the federal
government, or lost or removed except by an express act of
Doctrine of Trust Responsibility
The Supreme Court
confirmed in 2011 there exists “a general trust relationship
between the United States and the Indian people.” The
federal government “has charged itself with moral
obligations of the highest responsibility and trust, .... to
the fulfillment of which the national honor has been
Most of the land
mass of the United States was obtained by the federal
government through treaties in which the United States
obtained land and peaceful relations in exchange for giving
the Indians a set of promises. As a result of these
treaties, the federal government acquired a legal duty as
well as a moral obligation, to keep its part of the bargain,
now that Indians have kept theirs.
This principle that
the federal government has a duty to fulfill its promises is
known as the doctrine of trust responsibility. This
doctrine has been a cornerstone of federal Indian law for
nearly 200 years.
A trust is created
whenever one party places something of value under the
control of a second party for the benefit of a third-party.
The person or entity who holds the trust property is called
the trustee, while the person for whom the trust is
created is called the beneficiary.
At a minimum, the
trustee is obligated to remain loyal to the beneficiary; to
act in the beneficiary’s best interests; to act with all the
skill, care, diligence, and expertise at his or her
disposal; and to preserve, protect, and maintain the trust
An earlier 1977
Senate report expressed this obligation as follows:
purpose behind the trust doctrine is and always has been
to ensure the survival and welfare of Indian tribes and
people. This includes an obligation to provide those
services required to protect and enhance Indian lands,
resources, and self-government, and also includes those
economic and social programs which are necessary to
raise the standard of living and social well-being of
the Indian people to a level comparable to the
A broad application
of the trust doctrine transcends specific treaty promises
and imposes a duty to promote tribal sovereignty and
Statues can and frequently do create
Statutes are the vehicles by which congress creates the
programs and services necessary to fulfill its treaty
promises. Congress ended treaty making with Indian
tribes in 1871. Once that happened, the primary means by
which Congress could satisfy its treaty commitments was
by enacting laws that created programs or services for
Indians and tribes. The Supreme Court noted that
Congress may fulfill its treaty obligations and its
responsibilities to the Indian tribes by enacting
legislation dedicated to their circumstances and needs.
Statutes should be viewed as extensions of the treaties.
Congress has passed laws that place Indian property in
the hands of federal agencies, and which require the
agencies to manage that property in a certain fashion.
Whenever Congress removes the tribe’s ability to manage
its own resources and confers that power on a federal
agency, courts must infer Congress intended to impose on
that agency traditional fiduciary duties unless Congress
has unequivocally expressed an intent to the contrary.
In short, it is now clear, as one federal court recently
stated that the trust relationship arises out of
With respect to
Congress the trust responsibility is a moral and ethical
rather than a legally enforceable duty. In fact if Congress
decides to terminate an Indian program or even terminate an
Indian tribe, a federal court has no authority to prevent
it. Indians this must rely on the good faith of Congress to
keep the promises that Congress made more than a century ago
in exchange for Indian land and peaceful relations.
However Indians and
tribes can compel federal officials to perform the
duties that Congress has delegated to them. Although
Congress has the authority to modify a trust relationship,
administrative agencies do not. Federal officials must
faithfully execute their trust duties, and courts must
carefully scrutinize their actions. Federal agency
responsible for implementing this nation’s Indian programs
have an overriding duty to deal fairly with Indians, and
their actions must be judged by the stricter standards that
apply to a fiduciary.
The doctrine of
trust responsibility demonstrates Indians are not receiving
“free“ services. Rather, the services were prepaid.
Tribes relinquished their homelands and agreed to move
peacefully to much smaller territories in exchange for these
When a treaty
promises as most treaties do that the federal government
will protect tribal land, this guarantee prevents federal
officials from selling or otherwise disposing of that land
except in limited situations; from diverting water away from
that land, thereby rendering it less available habitable,
and from denying Indians the ability to access or use their
land. Similarly, when federal statute places Indian property
such as oil, gas, minerals, or timber under the strict
control and management of federal officials as some statutes
do, the federal government thereby acquires fiduciary duties
to manage those trust resources wisely in the best interest
of the Indian beneficiaries.
government is entitled the fashion an Indian program and
it’s trust relationship with Indian tribes however it wishes
and the government has often structured the trust
relationship to pursue its own policy goals. In other words
the trust relationship has been altered and administered as
an instrument of federal policy. Indians must rely on the
integrity and honor of the United States to administer
programs in the best interest of the Indians.
The Mitchell Doctrine
When a law confers
on the government pervasive and comprehensive control over a
tribal resource, a fiduciary duty is created with respect to
the management of that resource, and the government can be
held liable in damages for mismanagement. In this situation
a money mandating remedy may be inferred even if the law
does not create an express right to damages.
Once a tribe
acquires primary responsibility over a trust resource then
the tribe becomes responsible for any mistakes made in
managing it. Along with greater control comes great
Duty of Consultation
may no longer make decisions that directly impact tribal
interest without properly consulting with Indian tribes.
President Bill Clinton April 29, 1994 issued a presidential
memorandum reaffirming the government to government
relationship between United States and Indian tribes which
states each executive department and agency shall consult,
to the greatest extent practical, and to the extent
permitted by law, with tribal governments prior to taking
actions that affect federally recognized tribal governments.
In 2009 President
Barack Obama issued a presidential memorandum mandating that
within 90 days of its issuance, each federal agency
implement a written government to government consultation
policy with Indian tribes. Consultation is about
communication, respect, and partnership. Through meaningful
consultation, a federal agency can respect tribal
sovereignty, honor the trust relationship, learn and
appreciate tribal values, avoid misguided errors and false
presumptions, and make informed decisions on what is the
best course of action.
of consultation is just as important as the substance of
consultation. As part of the consultation process, an agency
inform the tribe of all relevant facts, and do so as
early in the decision making process as possible;
the tribe sufficient time to consider the situation, and
provide the tribe with technical assistance and
additional data if the tribe request;
maintain a dialogue with the tribe, address the tribe’s
concerns in a timely manner, keep the tribe informed of
developments, and be open to looking at things from the
document the consultation process by notifying the tribe
in writing of developments and potential plans, and
request written comments from the tribe;
accept the tribe’s recommendations unless compelling
reasons require otherwise;
a written and detailed explanation of the reasons for
that decision when the tribe’s recommendation is not
Several courts have
invalidated decisions by federal agencies that have been
made without adequate consultation with the affected tribe.
responsibility extends to off-reservation activities that
affect reservation Indians.
federal agencies undertaken off the reservation that would
diminish on-reservation water supplies or pollute
reservation air or water have been held to violate the trust
doctrine. In a recent case however a federal court held that
the Trust Doctrine did not extend to off-preservation
activities regulated by the federal agency on privately
owned land unless the treaty or statute especially require
the agency to protect tribal interests.
relationship may only be terminated by an express act of
Congress; termination will not be implied. Even the tribe
may not terminate the relationship.
have often ignored or improperly executed their trust
obligations, mismanaged tribal trust resources, and
inhibited tribes from becoming self-governing. Congress has
broken nearly all of its Indian treaties, terminated Indian
tribes, and failed to adequately supervise the management of
trust duties by federal agencies. Congress has a trust
responsibility to enhance the social and economic well-being
of Indian people, and yet Indians are the most disadvantaged
and impoverished group in our society.
Tribes can become dependent on federal help, making it
less likely they will become self-sufficient.
A treaty including
one between the United States and an Indian tribe is
essentially a contract between two sovereign nations. (US
The Supreme Court
noted Indian tribes were regarded by the nations of Europe
and by the United States as distinct, independent political
communities, retaining their original natural rights, and
ranked among those powers capable of making treaties.
declares that a federal treaty, just like a federal statute,
is the supreme law of the land.
superior to state constitutions and state laws. If a state
law conflicts with the provisions of a treaty, the treaty
The treaty may not
deprive a citizen of a right guaranteed by the Constitution;
the Constitution is always superior to any law or treaty.
The United States has signed scores of treaties with foreign
countries, covering such subjects as trade, fishing on the
high seas, international travel, rules of war, and the use
of nuclear energy.
Nearly four hundred
treaties have been signed between Indian tribes and the
United States. Congress passed a law in 1871 that ended
treaty making with Indian tribes. Until 1871 treaties were
the accepted method by which the United States conducted its
formal relations with the Indians.
treaties varied from one tribe to another nearly all of them
expressly recognize the sovereignty of the tribes and many
contained express assurances that the federal government
would “protect the tribes.” Most treaties also guaranteed
the tribe such things as food, clothing, medical care,
education and other services. In exchange for peace and land
the United States promised to create a federally protected
reservation for the tribe to respect the tribe sovereignty
and to provide for the well-being of tribal members.
main purpose of an Indian treaty was to take land from
promises were given by the federal government in exchange,
no effort was made in any of these treaties to list the many
rights that these sovereign tribal governments retained.
Reserve Rights Doctrine
The Supreme Court
explained there an Indian treaty therefore should be viewed
not as a grant of rights to the Indians, but a grant of
rights from them. These treaties were intended to list the
rights the tribes were relinquishing, not those they were
retaining. The tribes have many rights in addition to those
listed in treaties. In fact, any right that a sovereign
nation would normally possess that is not expressly
extinguished by a treaty or by a subsequent federal statute
is presumptively reserved by the tribe. This is the
fundamental principle of Indian law known as the reserve
The tribe retains
the right to fish on its reservation even if that right is
not conferred in its treaty; the treaties silence on the
subject means this inherent right has not been lost.
When a treaty
recognizes the tribe’s right to engage in an activity the
tribe has historically engaged in, such as hunting or
fishing, the treaty is not viewed as a source of those
rights. Rather the treaty merely recognizes rights that the
tribe has always possessed.
Since 1871 Congress
prohibited the federal government from entering into
additional treaties with Indian tribes.
then, Indian tribes had been viewed by the federal
government as sovereign nations whose consent was
required before the federal government could take any
action affecting them, such as removing tribal land.
then, Congress has regulated Indian affairs through
Now, Congress can do
anything it wanted me too merely by passing a law regardless
of a tribe’s opposition. In fact, treaties in which Congress
had promised a tribe to never take tribal land without the
tribe’s consent could now be broken by the passage of a
statute. In this way, Congress could frequently confiscate
land that had been promised to tribes in peace treaties.
Section 71 states
“no obligation of any treaty … shall be hereby invalidated
or impaired.” The passage of section 71 did not affect any
existing Indian treaty. But that does not mean that every
Indian treaty is still valid today.
The Supreme Court
holds it is entirely in the discretion of Congress whether
to honor or abrogate an Indian treaty. The Supreme Court has
consistently upheld the principle that Congress has the
power to abrogate Indians treaty rights.
To Indians, a treaty
creates a solemn bond between the participants, and
violating a treaty is unpardonable. Treaties are sacred
covenants. The tribes that relinquish their lands in
treaties fully expect of the United States to honor its
The Fifth Amendment
to the Constitution provides that Congress may not deprive
anyone “of private property … without just compensation.”
The Supreme Court has held Indian treaty rights are a form
of private property protected by the Just Compensation
Clause. Therefore when Congress abrogates an Indian treaty
it must adequately compensate the tribe for the value of any
rights or property that is lost. However money often
provides a little actual compensation to people who have
lost their homes and sacred lands.
Canons of Treaty Construction
The Supreme Court
developed three rules governing the interpretation of Indian
treaties. The rules are called the canons of treaty
Ambiguities and treaties must be resolved in favor of
Treaties must be interpreted as the Indians would have
understood them at the time the treaty was signed.
Treaties must be construed liberally in favor of the
The Supreme Court
(1999) … “interprets Indian treaties to give effect to the
terms as the Indians themselves would have understood them,”
interpreting them “liberally in favor of the Indians.”
Disadvantages in the Treaty Making
treaties were always written in English.
The Indians could not be certain what they were
Tribes were dependent on government interpreters to
explain the street is to them.
treaties were signed under the threat of force and
therefore were inherently unfair.
Treaties create a trust relationship between the tribe
and the United States, a relationship that requires the
federal government to enhance, not injure tribal
It should be presumed that the treaty was intended
to provide the tribe with what it needed to prosper.
The Treaty is Larger Than Its Writing
receive the benefit of the doubt when questions arise
regarding how a treaty should be interpreted.
The Supreme Court explained in the 1989
case interpreting several Indian treaties:
Accordingly, it is the intention of the parties, and not
solely that of the superior side, that must control any
attempt to interpret the treaties. When Indians are
involved, the court has long given special meaning to this
rule. It has held that the United States, as the party with
presumptively superior negotiating skills and superior
knowledge of the language in which the treaty is recorded,
has a responsibility to avoid taking advantage of the other
side. The treaty must therefore be construed, not according
to the technical meaning of its words to learned lawyers,
but in the sense in which they would naturally be understood
by the Indians.
The Supreme Court has stated
statutes are to be construed liberally in favor of the
Indians, with ambiguous provisions interpreted to their
A violation of an Indian treaty
is a violation of federal law.
A state may not take actions
inconsistent with an Indian treaty.
Treaty rights may be raised as
a defense to a state or federal criminal prosecution.
If the treaty protects the
activity for which the defendant is being prosecuted, the
charges must be dismissed.
belong not just Indians; they belong to everyone in the
United States. The citizens of this country have a legal
moral and ethical duty to enforce these treaties. Indians
paid dearly for the treaty rights. The United States must
keep its end of the bargain.
Treaties are not
ancient documents that no longer need to be enforced. This
is the same with the Declaration of Independence and US
Constitution which are also ancient documents.
The mere passage of
time has not eroded and cannot erode the rights guaranteed
by solemn treaties that both sides pledged on their honor to
uphold. The extent to which the United States honors its
treaty commitments to Indian tribes reflects the extent to
which our society is committed to the rule of law and
justice. The integrity of our country depends on it.
ANCC - APACHE
NATION CHAMBER OF COMMERCE
"FORGING SELF DETERMINED SUSTAINABILITY THROUGH TRADE"
NOTICE. Apache Nation Chamber of Commerce, ANCC, The ANCC,
Apache Nde Nation Chamber of Commerce, Apache Chamber,
Apache Chamber of Commerce, Apache Nation, and or the
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