The Colonization of Native American Trademarks and Designs: the past, present, and (potentially decolonized) future

By Tyler Heneghan

Native American tribes, artists, designers, and spiritual healers have long been associated with the production of high-quality, unique, and effective designs, arts, medicines, and crops among a variety of other creations. Many of these creations were never intended for people outside of their originating cultures, yet millions of people don tribal designs, use Native American names,^[1] stories, and songs, and patent tribal pharmaceutical formulas^[2] and genetic seed genomes.^[3] Thus, the cultural appropriators, not the originators, continue exploiting and profiting from Indigenous traditional cultural expressions, knowledge, and genetic resources with little legal remedies for tribal governments and individuals. In 2009, two-dozen “Navajo”-labeled products sold by Urban Outfitters illustrates the cultural appropriation, fetishization, and profiteering that began concurrently with the systematic disenfranchisement of Native Americans throughout the United States and continues today.^[4]

In the U.S., the federal government holds a political government-to-government relationship with federally recognized tribes and their citizens.^[5] Moreover, The U.S. federal government holds a trust responsibility towards federally recognized tribal governments and their citizens, and thus the U.S. has a legal obligation to protect tribes and their citizens—extending to tribal and individual citizens’ intellectual property issues.^[6] So why is it that the protection of Indigenous intellectual property remains difficult to protect, and how might current legislation, declarations, and efforts protect these rights? Native Americans and their accompanying tribal governments remain engaged in finding ways to protect these intellectual properties from misuse, appropriation, and exploitation.

This opinion piece proposes ways in which current and proposed avenues can aid in the protection of Indigenous intellectual property, namely Indigenous trademarks and designs. Part one outlines the three phases of colonialization in Native America. Part two highlights the high-profile misappropriation of Indigenous intellectual property in the U.S.—the “Navajo”-labeled apparel sold by Urban Outfitters. Part three discusses and analyzes the potential avenues for the future protection of Indigenous intellectual property by looking at existing laws before concluding with a discussion on potential legislative pursuits.