Once ignored, traditional Indigenous knowledge is now valued. How much should tribes actually share?
By Melanie Lenart
The federal government’s recent move to recognize Indigenous knowledge as science comes with some risks. While many in Indian Country hail the federal memo providing Guidance for Federal Departments and Agencies on Indigenous Knowledge as a welcome shift, some point out potential problems for tribal nations and academic institutions serving Native students.
The good news: Tribal nations can take action to help protect themselves from potential risks posed by the policy shift outlined in the guidance, while universities and colleges can develop policies designed to protect Indigenous knowledge of all kinds, and the peoples who hold it.
The bad news: Unless they do develop laws, codes and policy, the invigorated interest in Indigenous knowledge has the potential to lead to future conflict with researchers, federal agencies and those who could potentially profit from this knowledge.
The first story in this series described some of the positive shifts reflecting the memo’s intent, particularly the federal government’s move to encourage government agencies to co-manage public lands and resources with tribal nations. This second article delves into efforts to co-produce knowledge in the context of current policy and laws—such as those affecting copyrights and the public’s right to know about research conducted with federal tax dollars—and what tribal nations and universities can do to reduce those risks in the new landscape where Indigenous knowledge is respected and pursued, including by funding agencies.
White House guidance on Indigenous knowledge
The guidance memo, released late last year, heralds a policy approach that respects Indigenous knowledge as valid science that is relevant to public discourse and decisions on land use, endangered species, climate change and many other policy fronts. It encourages federal agencies to include Indigenous knowledge in its reckonings and solicit the “co-production” of knowledge—in other words, the collection of traditional knowledge into forms that can be shared and distributed—via grant funding.
The appendix shared with the guidelines highlights projects funded by federal agencies including the National Science Foundation, the National Oceanic and Atmospheric Administration, the Center for Disease Control and the National Institute of Health.
“From a policy point of view, these (guidelines) are definitely an advance, and should be given credit for that,” said Preston Hardison, a retired policy analyst for the Tulalip Tribes of Washington who continues to work on data sovereignty issues with the World Intellectual Property Organization. “This guidance should be applauded in that it is pushing the social-cultural aspects that are not legal—clearly not legal—to their limit. That’s an advance, even recognizing there are some issues.”
The guidance memo, released jointly by the White House Office of Science and Technology Policy and Council on Environmental Quality on Nov. 30, informs agency actions as policy rather than law. In other words, they advise rather than regulate, so they don’t create legal requirements.
The memo asks agencies to report on progress in implementing the guidance by the end of May to a newly created subcommittee of agency representatives. Along with the White House Council on Native American Affairs, the subcommittee will help agencies in “implementing the guidance and better recognizing and including Indigenous Knowledge in federal research, policies and decision making.”
Hardison expressed concern that the push to implement the guidance has led to “sidestepping” several fundamental issues that pose significant risks for tribal nations involved in knowledge sharing.
“The criticisms aren’t that it’s all wrong. It’s actually an advance and it’s good in that sense. But what it does is take language that it has applied commonly to western or non-Indigenous, non-tribal knowledge and applies that same logic to tribal knowledge,” he explained. “The logic does not take into account these customary or Indigenous laws. And both are important.”
For instance, he said, federal copyright laws protect written works, but not the ideas they contain. So traditional ideas, once published, can be shared by anyone under US law. What’s more, copyright protection expires in a matter of decades. At that point, the federal government considers the works to have entered the public domain, where anyone can use them.
While not every tribal nation aims to keep traditional knowledge secret, Hardison and others argue that those who do, as sovereign nations, should have the right to operate under different laws and customs, including when it comes to copyright laws.
Freedom of Information Act concerns
On another front, tribal nations risk being forced to disclose information co-produced with public funds via the national Freedom of Information Act, known as FOIA. The guidance memo acknowledges this risk, and encourages federal agencies to “make clear the potential benefits and risks of sharing Indigenous Knowledge, including the potential for public release under FOIA and other public disclosure obligations.”
The latter includes administrative rules some federal agencies apply that require making knowledge public if it’s co-produced in projects they fund, Hardison said. For instance, he said the Advisory Council on Historic Preservation requires tribal nations to specify locations for sacred sites they would like to see the act protect. But that location could become public through a FOIA request, which is especially problematic if the request is denied.
Inquiries about whether such administrative rules might be amended went unanswered by staff with the Council on Environmental Quality and the White House Office of Science and Technology Policy.
The guidance memo’s Appendix A featured a project long-funded by the National Science Foundation that highlights the experience, knowledge and stories of the Yup’ik people in southwestern Alaska. Known as the Exchange for Local Observations and Knowledge of the Arctic (ELOKA), the project website notes that stories will be linked to the locations where they originated on the featured atlas.
“Access to the atlas was originally restricted to protect sensitive data, but community representatives voted unanimously to make the data publicly accessible,” the guidance memo states. “ELOKA is built upon a foundation of trust and mutual respect, and demonstrates how Agencies can support open data policies while respecting Indigenous data sovereignty.”
Hardison said the potential conflict remains unresolved, given that the agency’s ability to protect data from Freedom of Information Act requests went untested because Yup’ik community representatives voluntarily agreed to share the data collected in a federally funded project.
“Even though it’s held up as this great model for co-production, it’s skirting the underlying problem,” he said.
In a 2001 case, the Klamath Tribe was required to hand over water resources data despite a Memorandum of Understanding that the collected data would remain confidential, Hardison said, because the judge ruled that the memorandum didn’t apply to the federal government.
Actions tribal nations can take
Angela Riley, a law professor with the University of California-Los Angeles and director of UCLA’s Native Nations Law and Policy Center, shared some ideas about how tribal nations can protect information deemed inappropriate for public disclosure.
She recommended a 2020 document, The Need for Confidentiality Within Tribal Cultural Resource Protection, which provides ideas to help tribal nations seeking to remain in control of their cultural resources.
The document notes that the Freedom of Information Act fails to acknowledge tribal cultural resources as having special protection, but suggests tribal nations may find it useful to consider the following listed exemptions to FOIA:
- privileged communications within or between agencies;
- information prohibited from disclosure by another federal law;
- geological information on wells;
- information that, if disclosed, would invade another individual’s privacy; and
- trade secrets or confidential commercial or financial information.
The document also recommends creating memorandums of understanding to define confidentiality protection by agreement. Although not generally considered legally binding, they can ensure the tribe is acknowledged as a sovereign nation with a government-to-government agreement when working with federal agencies under specific agreements. The document suggests tribes consider including references to relevant FOIA exemptions and clauses on prior informed consent and confidentiality.
Codes specifying a tribal nation’s stance on confidentiality can be relatively simple and straightforward, such as this provision cited in the document, from the Yurok Tribe: “The Tribe shall withhold from the public information about the location, character, or ownership of cultural resources if the Tribe determines that disclosure may cause a significant invasion of privacy; risk harm to cultural resources; or impede the use of a traditional or ceremonial site by practitioners.”
Recognizing that governing decisions belong to individual tribes, Riley said she also sees benefits to tribal nations for passing written codes detailing where they stand on issues. Efforts to identify cultural property and ideas on how to exercise cultural sovereignty can strengthen tribal communities from the inside out, said the law professor, who is a member of the Citizen Potawatomi Nation.
She encourages tribal nations to write tribal laws as they’d like to see them, even if there’s a question about whether federal laws might restrict it—and even if tribal norms and customs already uphold the concepts being codified.
“There’s an argument to be made that (creating such laws) in some ways panders to external legal systems, and I totally understand that argument. But I do think that written law can be quite persuasive and that it can be really useful for tribes to have that,” Riley said. “Western law likes ‘hard law’ and it likes things written down. It can be persuasive if the tribe says ‘we really do care about this. In fact, if you look at our tribal law it reflects this belief and this view.’ I think it just lends legitimacy.”
In a 2022 Michigan Law Review article, Riley analyzed the tribal cultural preservation systems and tribal laws of all 574 federally recognized tribes. In the paper, she highlights contemporary examples of Indigenous peoples’ efforts to protect their cultural property, including some of the tribe-specific codes and laws put into place since a similar analysis she did in 2005.
“I contend we are witnessing a new jurisgenerative moment today in the cultural property arena, with tribal law already influencing decisionmakers at multiple ‘sites’—international, national, and subnational—in real time, with great potential for the future,” she stated in the article.
International laws relevant too
Looking abroad, Riley noted that Yaqui laws proved key to the return of a ceremonial sacred deer head, known as a Maaso Kova. Two Danish anthropologists brought the Maaso Kova to the Museum of Ethnography in Sweden in 1934, contending they had received it as a gift from some of the Yaqui living in Mexico, part of their homelands along with the US Sonoran Desert region. In the early 2000s, the Yaqui people recognized the Maaso Kova in the museum and started working to secure its return. Initially Sweden resisted returning it—until an inspection of Yaqui law and custom revealed that a consecrated Maaso Kova is only passed down to a younger deer dancer being trained by his elders to take his place in that society, making it clear it would never be freely and willingly given to anyone outside of that society.
“They heavily relied on Yaqui tribal law to convince the Swedish government that there’s no way the Maaso Kova could have been legally taken,” Riley said, adding that this case has more national relevance now that the United States is engaging more in international efforts. “I think we’re only going to continue to see more of that as we move forward.”
In 2011, under the Obama administration, the United States became the last nation to ratify the 2007 United Nations Declaration on the Rights of Indigenous Peoples, declaring its support for the declaration as “aspirational” rather than legal binding.
The UCLA School of Law partnered with others to produce a “toolkit” for tribes to consider for codifying elements of the declaration into their own laws and regulations. The toolkit highlights relevant sections and provides examples of related tribal codes.
These include the declaration’s Article 31, which affirms that Indigenous peoples “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions,” and its Article 3, which requires “Free, Prior and Informed Consent”—meaning tribes must have the time, information and right to give or withhold their agreement to legislation and other matters affecting them.
What can colleges and universities do?
Colleges and universities and the researchers working for them can also take steps to protect Indigenous knowledge shared with them. Reviewing the confidentiality document described above is a good start to understanding the issues, Riley indicated.
Also, she recommends that researchers working with Indigenous peoples put down their pens or close their laptops if they’re privy to sensitive information that should not be shared, just in case the project later becomes subject to a Freedom of Information Act request.
“Pay attention to what you’re documenting and make sure that you’re being attentive to the needs of the Indigenous peoples you’re working with,” she said. “It’s been something I’ve had to be very attentive to myself. My instinct is always to write down everything so I can keep myself organized.”
Something recommended in the guidance memo for agencies could also apply to academic institutions: Collaborate “to develop alternative means for information sharing that reduces the risk of disclosure and results in mutually beneficial process for the agency and Tribal Nations and Indigenous Peoples.”
The guidance memo’s Appendix C provides an example showing how the U.S. Global Change Research Program used survey questions to help protect traditional knowledge used for the National Climate Assessment. A survey entry under “Integrity and Security” emphasized the need for free, prior and informed consent when gathering information, and instructed researchers to leave out any culturally sensitive information and to consider “how documentation may be subject to or released under the Freedom of Information Act.”
Universities and colleges should also put in place policies to protect Indigenous students from pressure to share traditional knowledge as part of their research, something that Hardison said happens especially at the graduate level.
“It’s very common. People who are working on higher degrees, they are in a very risky and potentially awkward, dangerous situation,” he said. “Their career is on the line, and there are some really bad apples out there who don’t understand these intellectual property issues, at all, or even the cultural issues.”
Indigenous knowledge with the potential for making money can be particularly at risk. Hardison noted that bipartisan legislation passed during the 1980s—the Patent and Trademark Act Amendments, more commonly known as the Bayh/Dole Act for the two senators who sponsored them—allows public universities to own, patent and commercialize inventions even if they were developed with federal funding.
Some institutions even require new employees to sign contracts stating that if a discovery has the potential to earn money, the employee must commercialize it or allow them to do so, he said. It’s time for academic institutions to reconsider these approaches, particularly as it applies to Indigenous knowledge.
“Universities can change their rules. They can create their own carve-outs and protected spaces for traditional knowledge and tribes,” Hardison said. “They can pass policy that protects tribal students from graduate professors. They can pass rules or policies that says, ‘if you’re dealing with traditional knowledge or tribal knowledge, then this Bayh-Dole doesn’t apply and any of our other policies don’t apply’.”
Requiring research involving tribal nations or knowledge to go through an Internal Review Board can provide another opportunity to prevent misunderstandings.
Moving forward on information sharing
Perhaps it’s not surprising that federal agencies would seek to learn more from tribal nations, given the conclusion, reported in a National Geographic article, that about 80 percent of the world’s biodiversity can be found on the relatively small proportion of land managed by Indigenous peoples. Clearly Indigenous knowledge holds some wisdom that can help keep our shared planet vibrant and thriving.
Non-Indigenous people aren’t the only ones hoping the shared wisdom will enlighten other cultures. As Nelson Island elder Paul John explained during an interview for the ELOKA project, sharing knowledge is like sharing food—and by sharing their stories in the atlas, he and others are following the directions handed down in stories by their ancestors.
As he told ELOKA researchers about his willingness to share stories for the project, “According to the traditional teachings, they were told to receive one who is trying to subsist and to help him obtain food without making the excuse that he is from another village. If these are open (to the public,) it will be like that.”
The next story in the three-part series will delve into how these issues intersect in area deemed particularly important to tribal nations: the sharing and protection of traditional seeds.
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Melanie Lenart is a regular contributor to Native Science Report
Story published March 29, 2023
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