Written by Elisa Rivas:
The special relationship that exists between federally recognized American Indian Tribes and the United States is one that recognizes the tribes as sovereigns with the right to govern themselves. The doctrine of tribal sovereignty acknowledges that American Indian Tribes retain the right to determine their own form of government, define tribal citizenship, make and enforce laws, collect taxes, and regulate property use.[1] Despite the obligations of the United States to protect tribalresources and defend tribal rights to self-government, the Supreme Court still struggles with defining tribal sovereignty.[2]
There is no doubt that the United States has benefitted from indigenous knowledge since the country’s founding. Specifically, the government and various private actors have benefitted from the traditional knowledge held by tribal knowledge holders in areas of biomedicine, ecology, arts, and technology. Traditional knowledge is a body of evolving practical knowledge, is based on personal experiences, and is passed down through generations.[3]
A recent example of the US government’s use of traditional knowledge is California’s policy shift adopting prescribed burns as a mitigation tactic to wildfires.[4] One of the ways Native tribes historically managed the land prior to the arrival of Europeans was through prescribed burns, and the tribes have held on to the ecological knowledge of the importance of prescribed burns to prevent devastating wildfires. When the state began forcibly removing tribes from their homelands, it also banned the use of prescribed burns, which contributed to the severity of wildfires that the state struggles with today.[5]
These beneficial uses of indigenous traditional knowledge by government agencies withoutcompensation or credit undermines tribal sovereignty. A tribe’s right to regulate its intellectual property use is essential to tribal sovereignty, so a tribe must have the ability to protect its traditional knowledge, and the way it is used by non-tribal members.
Traditional native knowledge fits within the bounds of trade secretprotection.[6] For information to be considered a trade secret, a tribe will need to show: (1) that the information derives actual or potential economic value and (2) that there were reasonable precautions taken to keep the information secret.[7] So long as the knowledge is relatively secret and not generally known, then it is possible to protect knowledge through trade secret law.[8] Almost any useful information can be considered a trade secret.[9] Government or private entity partnerships with tribes that involve the sharing of tribal knowledge should be protected as trade secrets.
Trade secret law may address the concerns of traditional knowledge holders about controlling particular uses of their knowledge, as well as the commercialization of that knowledge by other parties.10 Trade secret protection offers a strong array of remedies like injunctive relief, damages, and criminal penalties in some cases that would incentivize traditional knowledge holders to share their knowledge. 11
The Bureau of Ocean Energy Management has recognized that working with Native American and Native AlaskanTribes helps its scientists and policymakers make better decisions about the potential impacts of the agency’s activities in offshore waters.12 Further, the agency incorporates traditional knowledge in its environmental impact analyses, scientific research studies, and plans for lease sales at different stages of the decision-making process.13 Collaboration between agencies and traditional knowledge holders exemplifies the importance of protecting traditional knowledge if society wants its governments, and ultimately the environment, to continue to benefit.
A lack of protection for traditional knowledge discourages knowledge holders from sharing potentially valuable information in fear of not being able to control the way the information is used or derives economic benefit.[14] Without legal protection, traditional knowledge holders will prevent the flow of information to outsiders.[15] The absence of control over the use of traditional knowledge inevitably undermines tribes’ sovereignty because it shows outsiders that they can exploit the tribes’ accumulation of valuable knowledge with impunity. A stifled flow of information coupled with the justifiable trust deficit between tribes and outsiders hurts our society. Society needs access to traditional knowledge to address issues it faces in areas of medicine and climate change, but society will struggle to gain access until it provides proper legal incentives.
[1]Stacy Slotnick, Understanding Tribal Sovereignty, Fed. Bar Ass’n (Mar. 1, 2017),https://www.fedbar.org/blog/understanding-tribal-sovereignty/.
[3] Traditional Knowledge, Bureau of Ocean Energy Mgmt. (last visited Nov. 17, 2022),https://www.boem.gov/about-boem/traditional-knowledge.
[4] Lauren Sommer, To Manage Wildfire, California Looks to What Tribes Have Known All Along, NPR (Aug. 24, 2020, 9:00 AM),https://www.npr.org/2020/08/24/899422710/to-manage-wildfire-california-looks-to-what-tribes-have-known-all-along.
[6] Deepa Varadarajan, A Trade Secret Approach to Protecting Traditional Knowledge, 36 Yale J. Int’l L. 371, 396 (2011).
12 Bureau of Ocean Energy Mgmt., supra note 3.
