Intellectual Property Rights of Indigenous Peoples

By Jack D. Forbes
Windspeaker Staff Writer
Native American Studies
University of California, Davis

Major corporations, especially including chemical and biomedical organizations, are rapidly attempting to establish ownership of ever conceivable herb, herbal extract, food plant, plant fiber, productive procedure or idea under the general title of "intellectual property rights". Many Native people in South America and other parts of the world are being tricked into teaching outsiders about specific native plants which then will be registered by a non-indigenous corporation. Although there are some outsiders who are attempting to help indigenous groups, most traditional knowledge will be appropriated without any rights being vested in any indigenous groups.

A lot of First Nations people are becoming very concerned. Historically, the Europeans have appropriated innumerable species of maize (corn), potatoes, sweet potatoes, beans, tomatoes, cacao (chocolate), peanuts, persimmons, bananas (pacobas), yucca (cassava), tapioca, chayote, jicama, papayas, etc., along with countless medical remedies such as witch-hazel, quinine, golden seal, american ginseng, and none of these items have ever been paid for. No "royalties" have ever been given to the indigenous scientists who refined these plants and medicinals over many hundreds or even thousands of years. Similarly, no one has paid for the indigenous people's invention of rubber balls and accessories, kayaks, toboggans etc.

Now, geneticists are attempting to "engineer superior" species of tomatoes and other crops by adding a gene or two, often derived from related plants already modified by Native People. At the same time, different strains of plants completely perfected by First Nations farmer-scientists, such as the vast array of Andean potatoes are being introduced into the United States and Canadian markets, sometimes with new patents.

There is no question but what the "rip off" of Native knowledge constitutes a "steal" as significant as the theft of the continent itself. Not that Native people haven't been willing to share knowledge for the good of humankind, but the sharing must go in both directions for it to be fair, it seems to me.

I would like to propose that we seek enactment of a First Nations Intellectual Property Act as either an amendment to NAFTA or as separate legislation in each of our countries. This Act would provide that royalties must be paid for the use of Native American inventions and products including kayaks, toboggans, tipis, rubber, design motifs, plants medicinals, tribal names and personal names. Since most of these items cannot be attributed to a single nation, I would suggest that a First Nations International Bank be chartered as a non-profit corporation, controlled by an indigenous board of trustees. The bank would receive all royalties on behalf of all First Nations, except where the royalty was known to be owed only to a specific tribe or group. The bank would then use these funds exclusively for disbursal to all First Nations in a manner to be negotiated (some could go out on an equal basis to each tribe or group and some could perhaps be used to fund intertribal projects such as radio stations, regional banks, film studios, schools , colleges, etc.).

How would one collect royalties on squash, maize, beans, etc.? One way would be to impose a very small royalty on the commodity market sales for all crops developed in the Americas. A second way would be to impose the royalty on all corporations selling such products as a specific percentage of their gross income from Native-developed items. In part, it depends upon the crop. Tobacco would be handled differently from beans, for example.

It is also very important that biogenetics corporations be required to pay royalties on the American plants which they are using as a basis for their new products, for example, the basic tomato and tomatillo strains which determine the success of their final products. These new tomatoes, which they are currently patenting, are entirely derived (to my knowledge) from genetic material modified by indigenous farmer-scientists over many centuries.

I believe the payment of royalties on Native American inventions might well be enough to completely replace the federal contributions to tribes in the U.S. and Canada. But we must remember that many of the products of which I am writing were perfected in Mexico, Central and South America by our brothers and sisters there. For example, I was just reading that the tobacco species used on the east coast of the U.S. was a South American tobacco in origin, probably brought to us by Arawak traders in their huge trading vessels (holding up to 80 oarsmen and being up to 90 feet long).

Thus, most income would have to be shared among all Native American people on an equal basis, I would think. Otherwise, we will fight among ourselves and get nowhere as a result.

[Professor Jack D. Forbes, Powhatan-Delaware, is the author of Columbus and Other Cannibals, Africans and Native Americans and other books.]