This article is part of the 2024 BCLT-BTLJ-CMTL Symposium.
Angela R. Riley1
When my tribe, the Citizen Potawatomi Nation of Oklahoma (CPN), established an Eagle Aviary to protect and care for injured eagles that could no longer survive in the wild, it did so with a few goals in mind. Eagles are a revered part of Potawatomi culture and have played a central role in many of the stories detailing the emergence and continued survival of our people. The primary mission of the aviary is to save eagles’ lives by offering them a sanctuary when they are no longer able to live on their own in the wild. The aviary also provides a place where our Potawatomi people can come and interact with the eagles, engage in prayer and ceremony, and re-connect to the mgeshwash,2 much as our ancestors did. It is our belief that the eagles fly high so they can deliver prayers to the Creator. When they can no longer carry out this duty, it is our time to care for them. But a third and equally important goal of building the aviary is to allow our eagle keepers to gather the naturally molted eagle feathers: this made it possible for CPN to resume naming ceremonies, a sacred and traditional Potawatomi practice that had all but disappeared in my Tribe because of the lack of access to the eagle feathers necessary to conduct them.3 That is how I was gifted my eagle feather at the ceremony where I received my Potawatomi name, Ogemakwe, from my tribal Chairman.
From the perspective of a lawyer, the creation of an eagle aviary on tribal lands would implicate a broad range of legal issues, many of them sounding in property rights. Yet, Western property rights – oftentimes siloed into the categories of real, tangible, and intangible – fail to capture how we, as Potawatomi, think about the creation of the Eagle Aviary. For us, the protection of eagle feathers, the design of our sacred fire, the construction of the fire pit with an eastern facing entrance, the tobacco held with the left hand close to the heart, the selection of the recipient’s name, and the spiritual and cultural benefits that flow from the Aviary, both to the Potawatomi people and to all the world, fail to ‘match’ a Western property rights conception. In fact, even if I described the creation of the Eagle Aviary using a rights framework, I would characterize it as an exercise of inherent tribal sovereignty and an effort by my Tribe to protect and perpetuate our right to our culture and continued existence. But how does that map on to, if at all, Western legal categories, particularly Western property rights––be they real, tangible, or intangible?
There is a bevy of literature demonstrating that the Western intellectual property regime4–consisting primarily of copyright, trademark, and patent–– is a poor fit to protect the intangible property of Indigenous communities. For Indigenous Peoples, the tangible and the intangible cannot be disaggregated. Our lands, the eagles, the feathers, and the ceremonies that spring therefrom are all tied together. We are living in a time when Indigenous Peoples continue to be among the most vulnerable people in the world, and, simultaneously, the protection of Indigenous Peoples’ cultural property––tangible and intangible––is receiving a surge of attention at the tribal, state, national, and international levels.