An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age

Abstract

This Note analyzes how current statutory schemes omit protection of intangible Tribal cultural property, and how the current push for digitization of library and museum collections exacerbates infringement and appropriation. Cultural property includes any sacred traditional knowledge essential to tribal way of life, and is often privileged information. Thus, intangible cultural property is easily likened to intellectual property in import, but dos not share the same policy rationale. Because intellectual property laws are justified using “incentive-creation” and other utilitarian theories, these laws inadequately protect tribal images, sacred songs, and other types of traditional knowledge. Meanwhile, statutory schemes specific to cultural property focus solely on tangible sacred objects such as ceremonial and funerary regalia. This leaves items such as photographs, notes, and recordings, which contain culturally sensitive information exposed to outsiders and ripe for infringement. In order to remedy this harm, Congress should fulfill its fiduciary obligation to tribes by enacting laws that would incentivize libraries, museums, and other educational entities to negotiate with tribes to license or repatriate intangible cultural property prior to digitization.