The marginalization and economic exploitation of indigenous communities by the United States and other developed nations have taken place over a long period of time and have been widely documented. Most of the attention on this issue is focused on land seizures: many municipalities and institutions now publicly recognize that they exist upon land that has never been lawfully ceded by the indigenous communities that first possessed it. In recent years, however, additional attention has been focused on the appropriation of indigenous intellectual property, including traditional knowledge, language, and artistic design.
For instance, the traditional ecological knowledge of the indigenous Khoisan people of South Africa as to the hunger and thirst-suppressive properties of the hoodia plant was appropriated without compensation by a research organization chartered by the South African government. Researchers isolated its active ingredient and then licensed its use to a UK-based pharmaceutical company, who in turn used that knowledge to create a weight-loss drug. More recently, Hoka (a running shoe company) faced criticism for allegedly misappropriating the Māori word, “Hoka” for its company name and also other Māori words, “Arahi” and “Hopara,” for specific shoe products. Additionally, the producers of the video game, Cyberpunk 2077, stoked controversy by appropriating Māori facial tattoo artwork in one of the character customization options available to players.
Such appropriations of intellectual property carry both dignitary and economic consequences. With respect to indigenous community dignity, unauthorized use of Indigenous culture can be deeply offensive or spiritually harmful, especially when sacred symbols are commercialized. For example, the use of the Māori word, “Arahi,” can be considered sacred in certain contexts, and Hoka’s use of that word as the name of a shoe can be offensive by resulting in something sacred being worn by people on their feet. Economically, businesses’ use of these indigenous pieces of knowledge, words, and artworks without returning value to the communities themselves denies those communities the recognized right of control over the commercial use of one’s intellectual property. Given the profits that these businesses have generated, the lost compensation for indigenous communities can be substantial.
However, there is now increasing advocacy for the recognition of cultural expressions, traditional knowledge, language, and artistic designs as forms of intellectual property deserving legal protection. Recently, the Hawaii state legislature passed a joint resolution calling for the creation of a working group to create and propose legislative solutions to protect Native Hawaiian intellectual property. The Federal Bar Association also hosted an event where speakers discussed possible intellectual property law frameworks for the protection of indigenous knowledge and culture. While it is not clear which frameworks were suggested, the Federal Bar Association likely considered the difficulty in prudently defining the scope of any such intellectual property protection, as shown by the mention of a Ninth Circuit Court of Appeals decision that traditional yoga pose sequences derived from traditional indigenous knowledge were not entitled to copyright protection.
Federal and international authorities have also recognized this problem, though they have stopped short of advocating for formal intellectual property protections. Federally, the Office of Science and Technology Policy (OSTP) issued a policy memorandum in 2022, that provided guidance to federal agencies on applying indigenous knowledge in a manner that respects tribal sovereignty. Internationally, the World Intellectual Property Organization (WIPO) recently adopted a treaty to prevent the patenting of inventions derived from indigenous knowledge without acknowledgement of that indigenous origin. Although these authorities do not advocate for formal intellectual property protections, they arguably illustrate that governing authorities are comfortable taking a first step towards such protections by recognizing the indigenous sources of traditional knowledge used in new inventions.
For the business community, increased recognition of Indigenous cultural intellectual property could have significant implications, depending on whether governmental solutions stop at source disclosure or extend to the establishment of a formal compensation mechanism tied to intellectual property law. If the former is the case, companies may be required to engage more directly with indigenous communities when using indigenous words, symbols, or designs in products or marketing. This engagement could foster partnerships that provide cultural authenticity and access to indigenous expertise in design and storytelling. If the latter is the case, policymakers may establish statutory licensing regimes that require companies to pay fees for the commercial use of Indigenous intellectual property. While a requirement to share profits could raise operational costs, it may also enhance corporate reputation and generate goodwill by demonstrating respect for indigenous communities and values.
Although increased engagement and possible profit-sharing schemes may impose additional operational and financial burdens on businesses, these costs can be minimized through collaborative policymaking that establishes reasonable guardrails on any such requirements. Yet, the societal benefits of acknowledging indigenous ownership rights and thereby addressing historical injustices may outweigh the economic challenges. By recognizing indigenous cultural intellectual property, governments and businesses have an opportunity to move toward a more equitable system—one that respects indigenous sovereignty, promotes ethical commerce, and contributes to the long-overdue process of reconciliation and justice for historically marginalized communities.