Almost 30 years ago, in 1995, two researchers from the University of Mississippi were granted a patent for “the use of turmeric for wound healing.” At that time, turmeric was not known in the U.S. for being a wellness “super-ingredient”; the age of golden oat milk lattes had not yet risen. But, of course, turmeric had been a staple in South Asian countries for centuries, as both a cooking spice and a healing agent. And so India's Council of Scientific and Industrial Research (CSIR) challenged the patent, on the grounds that the researchers were attempting to personally capitalise off traditional cultural knowledge, and therefore didn’t fulfil the U.S. Patent and Trademark Office’s requirement for novelty or inventiveness. The year-long legal battle cost the CSIR $15,000, but they won, and the patent was revoked in 1997.
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This isn’t just about turmeric, though, nor is this type of cultural property theft limited to international appropriation. Thirteen years after becoming a state, New Mexico adopted a new state flag; a simple, impactful design, the flag features a crimson red sun symbol centred on a golden-yellow background. The symbol, though, belonged to the Zia, an Indigenous tribe of the region. Long used by a small sect within the Zia as part of their religious healing practices, the sun symbol was never intended to be distributed widely, even within the Zia’s own community. In fact, it only became more widely known after a piece of pottery featuring the sun symbol was stolen from the Zia and later displayed at a museum, where it inspired the state flag’s design.
The Zia's continued fight to protect this sacred symbol has been long and complex; since it has been treated as part of the public domain for so long, the legal options have been limited. In the late-1990s, after decades of New Mexico’s desecration of its sign, the Zia Pueblo asked the state to pay it around $74 million in reimbursement for using the symbol without permission. New Mexico didn't pay, but The New York Times reported in 2000 that the Pueblo hadn’t expected the state to. The Zia had hoped that their request for reimbursement would put pressure on the state and raise awareness around the issue of Indigenous intellectual property protections — and it has, but the solutions put in place have been imperfect.
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The Times notes that not long after the Zia asked New Mexico for reimbursement, the federal Patent and Trademark Office released a statement acknowledging the issues around protecting Native American insignia. It also created an insignia database to help protect these cultural expressions. But Frank Ettawageshik, the executive director of the United Tribes of Michigan, says databases like this aren't a viable solution for many Indigenous communities when it comes to protecting their heritage. “Most of that knowledge we can't put in that database, because it's secret and sacred,” Ettawageshik says. In fact, it's possible that the Zia Pueblo would have been unable to put the sun symbol into the USPTO database, but it still deserved to be protected.
This highlights the fundamental tension between how many native or Indigenous cultures view their own traditional knowledge, genetic resources, and cultural expressions, and how non-Indigenous legal systems treat such resources. “Under the conventional intellectual property system, traditional knowledge and traditional cultural expressions are generally regarded as being in the public domain, and thus free for anyone to use. Indigenous peoples, local communities, and many countries reject this so-called ‘public domain’ status, arguing that being considered as such opens the door to unwanted misappropriation or misuse,” explains Anna Sinkevich, an Indigenous Fellow at the World Intellectual Property Organization (WIPO).
“The largely oral nature of transmission of these traditional forms of creativity and innovation from one generation to the next adds an additional layer of complexity,” Sinkevich adds. The lack of a written record can make communities that benefit from traditional knowledge more vulnerable to theft or exploitation.
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The way the U.S. and many other legal systems view ownership is another point of friction. “In non-Indigenous thought, intellectual knowledge is considered an invention of the human mind. If the human mind gets this beautiful, wonderful idea and makes a widget of some sort, the maker of that widget can get a patent for it and then will be the sole person to profit from any money that's made from it for a period of time,” Ettawageshik says.
But, as Sinkevich points out, that way of thinking doesn’t correspond with Indigenous concepts of ownership, which, she explains, reflect the idea that “traditional knowledge is generally regarded as being collectively held, meaning that any rights and interests in it belong to the community rather than an individual member, including in cases where an individual member of a community has developed traditional knowledge.” If a community were to try to apply for a copyright, patent, or other intellectual property protection, “it may be difficult to identify the ‘owner’ of the intellectual property rights,” Sinkevich says. “In addition, it could be the case that more than one community shares the same or similar traditional knowledge or traditional cultural expressions. So even if they were to individually qualify for the protection of their rights, how would you, for example, offer fair and equitable protection to each of these communities separated by modern international borders?”
Another reason communities may not want to seek existing intellectual property protections like a patent is that these eventually expire, and once they do, the property becomes public domain, Ettawageshik says. And again, the knowledge that’s being protected may not have been intended to be part of the public domain or even necessarily profited from in the first place.
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But, even though the current legal system isn’t set up to protect traditional knowledge, traditional cultural expression, and genetic resources, it’s still essential to find a way to properly safeguard these resources. “When traditional knowledge is put in the wrong context by a third party, in particular without the community’s consent, it can be not only offensive to the community but also runs the risk of misrepresenting or distorting the perception of the community and their traditional knowledge,” Sinkevich points out. “From a financial perspective, the lack of protection for traditional knowledge as such can have a negative economic impact on its holders, possibly even preventing them from benefiting from their own traditional knowledge or traditional cultural expressions,” she adds.
Unfortunately, getting the legal system and large corporations to recognise communities’ rights to protect their own traditional knowledge, cultural expressions, and genetic resources has been a struggle for community leaders. Sinkevich says that developing countries are responsible for much of the negotiations done in this area, although many developed countries — especially those with Indigenous populations — have taken part as well, and many countries do have some legal protections or guidelines in place. Organizations such as the Native American Rights Fund are set up to push for legal recognition and protection for Indigenous communities in the U.S., and similar organizations exist internationally. Sinkevich says that the WIPO Secretariat’s Traditional Knowledge Division “facilitates a normative process among Member States, which aims to develop an international legal instrument for the protection of traditional knowledge,” one that addresses “the intersection between the intellectual property system and the concerns of practitioners and custodians of traditional knowledge, traditional cultural expressions, and genetic resources.”
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Ettawageshik has been heavily involved in negotiations with governing bodies, including the U.N., regarding the rights of Indigenous peoples to protect their intellectual property, and the need for international intellectual property law to adequately accommodate the unique collective and temporal nature of Indigenous intellectual property. The work of Indigenous communities and the people intent on protecting the sanctity of traditional knowledge has led to changes that have allowed for actual accountability. In 2016, for example, Urban Outfitters settled with Navajo Nation after the clothing company illegally used the tribe’s name in a collection.
Ettawageshik says that protecting cultures’ traditional knowledge, and specifically protecting Indigenous intellectual property, is not about making sure no one outside of Indigenous communities can use it: “When you're talking about protecting indigenous knowledge... it's also what we're willing to share.” But not all Indigenous or traditional knowledge is meant to be disseminated in that way, and in an ideal world, Ettawageshik says that “people would respect Indigenous knowledge and not abuse that relationship.” The world is far from ideal, but this is a baseline everyone is capable of practising — as is being more conscious about why a golden latte isn’t just another wellness trend.