Introduction
In 2022, the Standing Rock Sioux Tribal Council unanimously voted to banish the Lakota Language Consortium (LLC) and its two European founders from the reservation. The LLC began working with the Tribe in the early 2000s to document the Lakota language and created numerous recordings of Lakota elders, a Lakota dictionary, and many other educational materials. However, the LLC registered those works’ copyrights solely under its own name, so Tribe members must now seek the LLC’s permission to use or access them, which may require payment and may not be granted at all, even for recordings of the requestor’s own family. The LLC has repeatedly stated that it has not copyrighted the language itself, but what does it mean for a language with few fluent speakers when one of the only ways it can be taught is owned by a single, outside entity? Consider that each language embodies a worldview and way of thinking that is specific to its speakers, connecting them to their ancestors’ beliefs and history—their heritage. The fate of a language, then, is tied to that of its speakers’ culture and identity. Advocates of English-language supremacy racialize non-English languages and non-American accents to create racial categories by which to organize social hierarchies, often targeting immigrants and languages that are widely spoken around the world. However, when the affected language has a small and dwindling number of speakers, the stakes are even higher—threatening the existence of the language itself and limiting that existence to what those speakers can document and convey to other members of the community. The LLC, especially since it has used millions in federal grants that could have been used by Indigenous-led organizations, now holds significant influence over the development and growth of the Lakota language even outside of the Standing Rock Reservation.
Though the LLC has received attention recently, it is not the first time non-Native people have entered a Native community, learned the language from Native speakers, taken recordings of speakers, and then claimed sole copyright in the educational materials they create. Nor is the Standing Rock Sioux Tribal Council the only community that has taken issue with how, through such educational materials, a non-Indigenous party has shaped their language. The underlying issue here is that the copyright system does not support Indigenous language sovereignty due to the specific circumstances Indigenous languages face and the disconnect between Indigenous and Western literary and language traditions. However, the United States enacted the Native American Languages Act (NALA) in 1990, setting explicit policy commitments to “preserve, protect, and promote the rights and freedom of Native Americans to use, practice, and develop Native American languages.” Further, the State Department issued a statement in 2011 supporting (four years after voting against) the U.N. Declaration on the Rights of Indigenous Peoples (UNDRIP), which sets forth such rights as fundamental human rights, though UNDRIP has yet to be ratified and adopted domestically.
In this Note, I propose that Congress stand behind these policies and work towards giving them teeth by amending the Copyright Act to include a presumption of joint authorship between tribes and non-Indigenous authors when the non-Indigenous person creates copyrightable materials that document or educate the consumer about how to communicate in the language of a tribe recognized by a U.S. government (Language Materials).
Part I of this Note looks at the historical and legal contexts facing Indigenous people and languages in the United States. It first discusses the historical and political basis on which modern Indigenous language concerns manifest and why resolution of these concerns is so crucial for the survival of Indigenous people and cultures. Part I then describes the unique relationship between the United States and Indigenous tribes that is vital to understanding the landscape of federal Indigenous law in the United States today, as well as the bounds of U.S. jurisdiction over Indigenous people. Part I also situates American legal commitments towards Indigenous people, including through NALA and UNDRIP, against that social, political, and legal background, and lays out its implications for American policy where the propagation of Native American languages is curbed by American copyright law.
Lastly, Part I discusses how Indigenous languages and oral traditions conflict with federal copyright law. Using parallels to copyright law’s treatment of Black oral traditions, Part I also shows that those conflicts with Indigenous creation are a symptom of how copyright law systemically disadvantages already marginalized communities in the United States.
Part II turns to the joint authorship doctrines that currently exist in American copyright law, including the elements needed to establish such a relationship between collaborators.
In Part III, this Note outlines the proposed presumption of joint authorship for Language Materials, looking to other presumptions and designations of authorship in the United States and abroad. This proposition approaches joint authorship by recognizing the literary and expressive qualities woven into Indigenous languages, highlighting the role of language and oral traditions in Indigenous cultural production, and examining the collaborative relationship built between the Indigenous and non-Indigenous contributors through the lens of the intent, control, and contribution elements of joint authorship doctrines.