1
1 U.S. DEPARTMENT OF COMMERCE
2 PATENT AND TRADEMARK OFFICE
3 WASHINGTON, D. C. 20231
4
5
6
7 P U B L I C H E A R I N G
8 REGARDING ISSUES SURROUNDING TRADEMARK
PROTECTION FOR THE OFFICIAL INSIGNIA OF
9 FEDERALLY- AND/OR STATE-RECOGNIZED
NATIVE AMERICAN TRIBES
10
11
TRANSCRIPT OF PROCEEDINGS
12
13
JULY 8, 1999 - THURSDAY
14 9:00 a.m. to 3:00 p.m.
Special Events Building
15 Indian Pueblo Cultural Center
2401 12th Street, Northwest
16 ALBUQUERQUE, NEW MEXICO 87104
17 __________
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19
20
21
22
23
24 REPORTED BY: CHARLOTTE MACIAS, NMCCR# 161
10708 Constitution Avenue, Northeast
25 Albuquerque, New Mexico 87112
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 A-P-P-E-A-R-A-N-C-E-S
2 FOR THE UNITED STATES DEPARTMENT OF COMMERCE, PATENT
AND TRADEMARK OFFICE, WASHINGTON, D. C. 20231:
3
Q. TODD DICKINSON, Acting Assistant Secretary of
4 Commerce and Acting Commissioner of Patents and
Trademarks, U.S. Department of Commerce, Patent
5 and Trademark Office
ELEANOR K. MELTZER, Attorney-Advisor, Office of
6 Legislative and International Affairs, U.S.
Patent and Trademark Office
7 STEPHEN WALSH, Associate Solicitor, Office of the
Solicitor, USPTO
8 ODETTE BONNET, Senior Attorney, USPTO
__________
9
C-O-N-T-E-N-T-S
10 SPEAKERS PAGE
11 COMMISSIONER Q. TODD DICKINSON, Commerce and PTO 3
THE HONORABLE JEFF BINGAMAN, NM Senator 6
12 THE HONORABLE TOM UDALL, NM Congressman 17
GOVERNOR AMADEO SHIJE, NM Zia Pueblo 24
13 GOVERNOR MALCOLM B. BOWEKATY, NM Pueblo of Zuno 30
LT. GOV. TOM F. TALACHE, JR., NM Nambe Pueblo 42
14 5 YOUTH REPRESENTING 4 DIFFERENT NATIONS 43
LT. GOV. TOM F. TALACHE, JR., NM Nambe Pueblo 46
15 FIDEL MORENO, NM President, American Indian CC 51
RICHARD POLESE, Exec. Dir., NM Book Association 55
16 MARGARET A. BOULWARE, President, AIPLA 61
DAVID C. MIELKE, Attorney, NM Pueblo of Zia 70
17 ROBERTA PRICE, Attorney, NM Pueblo of Zia 79
GERALDINE WARLEDO, Cheyenne-Arapaho Business Comm 112
18 LOREN PANTEAH, NM Zuni Jeweler, Cultural Arts 114
PETER PINO, Tribal Administrator, NM Pueblo of Zia 122
19 ISIDRO PINO, Religious Elder, NM Pueblo of Zia 137
SABRINA PINO, Children/Youth, NM Pueblo of Zia 140
20 PETER PINO, Tribal Administrator, NM Pueblo of Zia 141
GOVERNOR AMADEO SHIJE, NM Zia Pueblo 149
21 STANLEY PINO, Chairman, All Indian Pueblo Council 151
WILLIAM WEAHKEE, Exec. Dir., Five Sandoval
22 Pueblos; Petroglyphs Advisory Committee 158
PROFESSOR KENNETH BOBROFF, University of NM 164
23 A. DAVID LESTER, Exec. Dir., Council of Energy
Resource Tribes (Muskogee Creek of Oklahoma) 173
24 ELEANOR K. MELTZER, Closing Comments 182
REPORTER'S CERTIFICATE 187
25 * * *
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 P-R-O-C-E-E-D-I-N-G-S (9:14 a.m.)
2 MR. Q. TODD DICKINSON: Good morning.
3 Can everybody hear me all right?
4 AUDIENCE: Yeah. Yes.
5 MR. DICKINSON: My name is Todd
6 Dickinson. I'm the Acting Assistant Secretary of
7 Commerce and Acting Commissioner of Patents and
8 Trademarks of the United States. And on behalf of the
9 Patent and Trademark Office, I want to welcome
10 everybody here today and thank you for welcoming us
11 here to New Mexico.
12 I know that many of you have very busy
13 schedules and we're pleased to be able to provide this
14 opportunity for you. We're honored to be here and are
15 very interested in hearing your thoughts.
16 Let me assure you that all of your comments
17 today, both oral and written, will be very, very
18 carefully considered by us at the Patent and Trademark
19 Office.
20 As many of you already know, due to Senator
21 Bingaman's efforts, the 105th Congress passed a law
22 which requires that the Patent and Trademark Office
23 study a variety of issues surrounding trademark
24 protection for the official insignia of federally-
25 and/or state-recognized Navajo American Tribes.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 In order to gain the answers to questions such
2 as "What is an official insignia?" and "How might any
3 change to current law affect trademark owners?" and to
4 try to answer those questions, the PTO published two
5 notices in our Federal Register which is the official
6 publication of notices from agencies of the federal
7 government.
8 The first Federal Register notice was
9 published on December 29th, 1998, the second notice on
10 March 16th, 1999.
11 We received quite a few responses to both the
12 December and the March notices but written comments are
13 one thing. Live comments are another.
14 And we thought it would be particularly
15 important that we, the people from our office that are
16 here today, come directly to you to make available your
17 face-to-face comments so that the TPO really walks away
18 with an understanding of the depth of feeling on the
19 different issues involved with trademark protection for
20 official insignia of Native American Tribes.
21 We'll be having hearings here in Albuquerque
22 today.
23 On Monday, in San Francisco, California.
24 And on the --
25 MS. MELTZER: 15th.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 MR. DICKINSON: -- 15th, in Washington
2 D.C. and I think it's particularly fitting that we
3 begin the hearings here today in Albuquerque in this
4 lovely setting at the Indian Pueblo Cultural Center.
5 Before we get started, Ms. Meltzer, who is
6 staffing this hearing, has asked me to mention two
7 particular items.
8 First, if you have not already provided us
9 with a written copy of your presentation, please do so
10 today. That ensures that we don't make any mistakes in
11 transcribing the words you might have in your own
12 presentation.
13 You can also send your written comments to us
14 through July 30th. We've set a deadline of July 30th
15 because the statute requires we complete our study by
16 September 29th and we want to make sure we consider all
17 that information we receive.
18 We had a question about copies of today's
19 transcript. Copies of that transcript will be
20 available on our website by August the 10th, we're
21 hoping. Our website is www.uspto.gov.
22 We are here to listen, as I said. We had
23 about 20 speakers and we may have some more today so we
24 would feel free to ask that you keep your comments to
25 about 15 minutes. We will be fairly informal about
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 time but we want to make sure that everybody that wants
2 to have an opportunity to speak has that opportunity.
3 If we have any time left after scheduled
4 speakers have made their comments, we will accept
5 comments from the floor or if people would like to sign
6 up, they can do so I think in the front; is that right?
7 Or, in the back there.
8 I would ask that all speakers, when you do
9 come to the microphone, state your name and your
10 affiliation, if any.
11 And, again, I want to thank you for coming
12 here today or taking the time to come and testify. Let
13 me assure you again how important this is to us and how
14 serious we will take this matter. We are eager to hear
15 your comments on this very important topic.
16 With that, I'll introduce our first speaker
17 and we're very honored today to have your Senator, the
18 Senator from New Mexico, Senator Jeff Bingaman, who'll
19 be our first witness.
20 (Applause)
21 SENATOR JEFF BINGAMAN: Thank you very
22 much. Can people all hear me? Is this machine
23 working? Yes. Okay. Thank you very much.
24 I want to start by thanking Todd Dickinson,
25 the head of the Patent and Trademark Office Commission
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 for coming to New Mexico.
2 This is your first trip here?
3 MR. DICKINSON: Yes, indeed.
4 SENATOR BINGAMAN: We're very honored to
5 have you in New Mexico and we think this is where all
6 issues related to Indian people ought to be determined,
7 is right here in New Mexico, and so that's an
8 appropriate place, as you say, to start your hearings.
9 Eleanor Meltzer, thank you very much for all
10 of your help with organizing the hearing.
11 And, also, I want to thank all the people who
12 are here and I know there are others coming during the
13 day. I've seen the list of people who are going to
14 testify and we have had a very distinguished list of
15 presenters today so you'll get a good chance to see the
16 full range of opinion that we have here in New Mexico
17 on the issue.
18 These are important issues for Native
19 Americans in this state, as you know, not just in this
20 state, but for the 1.26 million individuals who are
21 members of over 500 federal- and state-recognized
22 tribes throughout the country.
23 In New Mexico, of course, many of our tribes
24 and pueblos have been in existence for many hundreds of
25 years before this area was ever settled by Europeans,
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 the Spanish in particular.
2 So it's very important that we understand the
3 importance of these symbols and I think the study that
4 you're doing on protecting official tribal insignia is
5 long overdue when you consider the very long period of
6 time that some of these insignia have been in use.
7 Let me just go through the list. You cited
8 several issues you wanted addressed in the testimony
9 today and let me try to respond as best I can at least
10 on a few of those.
11 First, the Definition of Official Insignia
12 requested any thoughts anyone had on what that official
13 definition should be.
14 I look at official insignia as meaning any
15 insignia of a federal- or state-recognized tribe that
16 has been used as the official insignia of the tribal
17 government or is representative of the tribe.
18 Now, that may not answer all questions but I
19 think that's a good starting place for a definition.
20 Many of the nations in New Mexico have
21 formally adopted what I think of as an official
22 insignia. For example, there exists the Great Seal of
23 The Navajo Nation. The Great Seal of the Jicarilla
24 Apache Tribe.
25 These seals contain symbols of importance to
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 the tribes. They're easily recognizable as the
2 official seals of those particular tribes.
3 Though some tribes and pueblos have not
4 formally adopted official seals, many use symbols on
5 their government letterhead, on their calling cards
6 that are representative of the culture of the pueblo or
7 the tribe. Many have used these same insignia for
8 generations.
9 The insignia used by the Acoma Pueblo is
10 symbolic of the clans that make up the Acoma Pueblo.
11 The insignia also incorporates symbols of cultural
12 significance to the pueblo.
13 To those who are familiar with Native
14 Americans in this State of New Mexico, the Acoma
15 symbol, the Acoma insignia is representative of that
16 pueblo.
17 The second item or issue that you asked people
18 to address was the Establishing and Maintaining a List
19 of Official Insignia.
20 Establishing a list of official insignia, I
21 don't believe would be difficult because, as I
22 mentioned, I think it's fairly easy to determine in the
23 case of each tribe whether they have adopted an
24 official insignia.
25 For those who have not formally adopted such
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1 insignia, a change in the law that would protect
2 official insignia would likely prompt the adoption of a
3 great seal or other official insignia by many of those
4 tribes.
5 And although many Native Americans share
6 common cultural symbols such as the eagle or the sun,
7 each tribe would be encouraged to adopt an official
8 insignia that is distinguishable from that used by
9 other tribes.
10 But with today's technology, maintaining a
11 list of these official tribal insignia on a database
12 should not be difficult.
13 If the Patent and Trademark Office is able to
14 catalog the official insignia of the United States and
15 of each state and of each municipality and foreign
16 nation as presently provided in the law, then it does
17 not seem that difficult to add to that the official
18 insignia for the tribes and pueblos that wish to adopt
19 official insignia.
20 The third issue you asked to be addressed was
21 Impact of Changes in Current Law or Policy.
22 And there's no doubt that a change in current
23 law and policy, in my view, is needed. The only
24 question is: What change will best protect the rights
25 of Native Americans and preserve the integrity of each
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 tribal nation?
2 What's become apparent, I believe, is that the
3 official insignia of tribal governments is not
4 currently protected by any law.
5 It's also become apparent that economic
6 development by tribes could be hindered unless we act
7 to deal with this.
8 Current law should be amended to protect
9 official and tribal insignia from being trademarked by
10 others for commercial gain.
11 As I've tried to look into this issue, I've
12 discovered the extent to which the Native American
13 names and symbols and images have been appropriated by
14 other non-Native Americans for commercial gain.
15 The appropriating of those names and symbols
16 and images continues and it will continue unless the
17 Patent and Trademark Office and/or the Congress take
18 some action to deal with this issue.
19 The impact on Native Americans, if we do
20 nothing, could be much more severe than the impact on
21 others if we choose to act. In New Mexico, all of the
22 pueblos and tribes are seeking to become economically
23 viable and their culture and their history is essential
24 to much of that development.
25 If we continue to allow companies and private
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 enterprises not affiliated with the tribes and the
2 pueblos to trademark products, for example "Zia
3 Popcorn" or "Navajo Bead Company" if they are not
4 officially tied to the tribe in some way, we threaten
5 the economic opportunities for those tribes and
6 pueblos.
7 If trademark law was intended to prevent
8 consumer confusion, which is one of the purposes of the
9 trademark law, as I understand it, and to assure
10 purchasers a certain level of quality in what they buy,
11 failing to prevent the misappropriation of Native
12 American names and symbols is contrary to the intent of
13 that statute.
14 In fact, I suggest there is an inherent
15 consumer confusion if a food product manufactured by
16 non-Native Americans in Delaware would be called
17 Pojoaque Peanuts. That would be not only detrimental
18 to consumers, it would certainly be detrimental to the
19 Pojoaque Pueblo here in New Mexico.
20 Although I have been using hypothetical
21 products in discussing this, the possibilities are
22 endless and they are occurring on a regular basis.
23 This country's fascination with native
24 history, Native American history and culture has at
25 times benefitted Native Americans but, more recently,
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1 has threatened the culture and economic viability of
2 each nation.
3 So protecting the official tribal insignia may
4 impact a few existing trademarks, but the failure to
5 protect official tribal insignia from being trademarked
6 will continue to negatively impact more than 500
7 tribes.
8 The fourth item you asked me to address was
9 the Impact of the Prohibition on Federal Registration
10 and New Uses of Official Insignia.
11 Prohibiting federal registration of trademarks
12 identical to official insignia of Native American
13 tribes should, at a minimum, confer certain benefits on
14 the tribes: 1) should provide the tribal government
15 with evidence of ownership of the official tribal
16 insignia, 2) should prevent others from trademarking
17 the official tribal insignia for use in commerce, and
18 3) should provide the tribal government with federal
19 jurisdiction to challenge an unauthorized user of that
20 insignia.
21 In order to accomplish these goals, we need to
22 be innovative and think through all of the various
23 possible issues in drafting of regulations or
24 legislation. I believe the testimony you're going to
25 hear today will help you to do that.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 As you know, we have the Native American
2 Graves Protection and Repatriation Act that Congress
3 passed in 1990. It was intended to recognize Native
4 American culture and protect cultural property.
5 We have the Indian Arts and Crafts Act, which
6 was passed back in 1935 and later amended in 1994,
7 which had an economic foundation as it has sought to
8 provide a market for contemporary arts and crafts by
9 assuring the authenticity of arts and crafts made by
10 Native American people.
11 Both of these laws were passed because of the
12 recognized need to protect the cultural identity of
13 Native Americans and the economic development
14 opportunities of Native Americans; and modifying the
15 trademark law to protect official tribal insignia is
16 the next step, as I see it, in recognizing the status
17 of each Native American Tribe.
18 You asked about Administrative Feasibility of
19 doing this, a change in this regard.
20 I don't believe the cost of changing current
21 law or policy would be significant compared to the
22 benefit that would be derived.
23 You asked about the Timing of Changes in
24 Protection.
25 I think whether or not the suggested changes
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 should be offered prospectively or retroactively will
2 require a deeper analysis of the issue. I don't really
3 claim to know the answer on that.
4 On the issue of Statutory Changes.
5 As you know, when I began to look into this,
6 we sought to amend the Lanham Act. I still think this
7 is the right thing to do to provide some protection for
8 official tribal insignia.
9 However, as I learn more about the
10 trademarking process and the extent to which tribes
11 have already participated in the trademarking process,
12 it became clear that some tribes have already
13 trademarked their insignia for use, commercially.
14 And any action that you take as a result of
15 this study, or any action recommended to Congress,
16 should take into account the Native American Tribes
17 have already sought protection under the existing
18 trademark law, so, any modifications to existing law
19 obviously should in no way prevent tribes that have
20 trademarked their insignia from using such insignia in
21 the stream of commerce.
22 In conclusion, I'm confident that you will
23 hear a great deal of useful testimony today.
24 Current law protects the official insignia of
25 states, municipalities and foreign governments.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 The flag of New Mexico is protected by the
2 Lanham Act and, as you know, the Lanham Act does not
3 prevent others from using the Zia symbol as portrayed
4 on the New Mexico flag, but it does prevent others from
5 trademarking the identical insignia.
6 I encourage you to offer the same protection
7 and respect for the flags and official insignia of each
8 of the five-membered state- and federally-recognized
9 tribes in the country.
10 Again, let me just thank you, Commissioner
11 Dickinson, and your colleagues for traveling to New
12 Mexico for this hearing.
13 Congressman Udall has joined us here and I'm
14 honored to have his strong support in this effort in
15 the Congress and we look forward to the results of your
16 study and then to determine what action the Congress
17 should take.
18 Thank you very much.
19 MR. DICKINSON: Thank you very much.
20 SENATOR BINGAMAN: Did any of you have
21 questions of me?
22 (Applause)
23 SENATOR BINGAMAN: Okay?
24 MR. DICKINSON: Thank you.
25 SENATOR BINGAMAN: All right. Thank you
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 very much.
2 MR. DICKINSON: Thank you for being here
3 and we appreciate your strong leaderership on this
4 issue and guidance --
5 SENATOR BINGAMAN: Thank you.
6 MR. DICKINSON: -- as we do our study.
7 And as everyone noticed, Congressman Udall has
8 arrived and we also welcome him and welcome his
9 comments, as well.
10 CONGRESSMAN TOM UDALL: Thank you.
11 Well, let me first, like Senator Bingaman did,
12 welcome all of you to New Mexico. It's wonderful to
13 have you here and I think that not only should you do
14 this hearing but I hope you have the opportunity to
15 travel a little bit in the rest of New Mexico and see
16 some of our pueblos and other beautiful sites in New
17 Mexico.
18 Let me, first of all, deal with the issue of
19 the definition since I know that you've asked about
20 that and I think Senator Bingaman has come up with a
21 very good one there. I think that's a good start.
22 I also, today, want to hear about what tribal
23 representatives have to say with regard to the
24 definition. But I think that's a good start and I
25 think that's the way we should proceed.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 Let me begin my remarks by first thanking
2 Commissioner Dickinson for hosting this hearing and
3 Senator Bingaman for his leadership on this important
4 issue.
5 In particular, I want to thank Commissioner
6 Dickinson and Senator Bingaman for arranging for this
7 first hearing on trademark protection for official
8 insignia of federally- and/or state-recognized Native
9 American Tribes to be held here in New Mexico, home to
10 23 recognized tribes, 18 of which are in the 3rd
11 Congressional District which I represent.
12 I think it is extremely important and
13 meaningful that we have started this process here where
14 it is essential to the lives of so many people, many of
15 whom will represent themselves and their thoughts on
16 this issue before you here today.
17 The issue of protecting the official insignia
18 of Native American tribes is, at its core, an issue of
19 equal rights and respect for sovereignty of Native
20 American people.
21 It is an issue whose time has come, only one
22 of many steps we must take to fulfill our obligation to
23 the Native American people both as sovereign nations
24 and as American citizens and it is increasingly an
25 important issue as the commercialization of Native
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1 American symbols continues each day at an seemingly
2 unbridled pace.
3 Because of this, it is important that we
4 explore this issue both carefully and thoroughly but
5 also expeditiously as we provide tribes with the basic
6 level of protection they deserve.
7 While there are many fine points of this issue
8 to be explored, I will try to be brief and focus my
9 comments on the critical need for this protection.
10 The finer points of this issue I will leave to
11 be explained best by the many tribal representatives
12 and expert witnesses we have here and throughout the
13 country waiting to comment.
14 I want to add that I personally look forward
15 to learning more about their thoughts on this issue.
16 First, let me express my belief that official
17 tribal insignia deserve the very same level of
18 protection provided to other recognized governmental
19 agencies such as states and municipalities and also
20 foreign entities.
21 We must remember that recognized Native
22 American tribes are sovereign nations and, with their
23 own equally legitimate systems of government, are
24 equally deserving of protection under the law. Not
25 extending the same level of protection, to officially
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1 protecting insignia of tribes that is lent to state
2 flags and city seals, is patently unfair.
3 Moreover, as I briefly mentioned before, the
4 commercialization of Native American symbols is a
5 readily apparent reality in the country.
6 And The New Mexican, today, I think did an
7 excellent job at highlighting two examples with regard
8 to the Zia symbol.
9 We have had, in the last year, two companies
10 attempt to trademark the Zia symbol. One, the American
11 Frontier of Motorcycle Tours Company has attempted to
12 trademark the Zia symbol and, also, a pharmaceutical
13 company has tried to trademark the Zia symbol. So this
14 shows the need for us to move expeditiously.
15 While many of these cases are not
16 appropriations of official tribal insignia, considering
17 this growing popularity, the growing popularity of
18 Native American goods, foods and culture, it is likely
19 only a matter of time before an unprotected tribal
20 insignia is misappropriated either intentionally or
21 unintentionally.
22 Considering Native American people's own
23 economic development endeavors, a threat of such
24 misappropriation could also entail very real economic
25 consequences by allowing others to capitalize on the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 popularity of insignia typically associated with
2 particular tribes, such as Zuni jewelry or Santa Clara
3 pottery or the Zia symbol.
4 In fact, as I'm sure the Patent and Trademark
5 Office is already aware, several tribes have already
6 filed lawsuits against businesses or individuals for
7 misappropriating tribal symbols for commercial ventures
8 or products.
9 While I did commit myself to being brief and
10 leaving details of such protection to be defined most
11 appropriately by tribal representatives and other
12 expert witnesses, I do want to make three short
13 comments on the feasibility of such protection before
14 concluding.
15 First, I believe that such protection can
16 actually be accomplished without much additional cost
17 in terms of changing or implementing the law.
18 It should be a rather simple effort to
19 register tribal insignia in much the same way as state
20 and local government insignia are registered. And, as
21 such, the additional cost and the process should be
22 minimal.
23 Second, on the question of such protection, on
24 whether such protection should be applied
25 retrospectively, I generally believe that the most
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 critical need today is to protect any further
2 misappropriation of official tribal insignia.
3 With that said, then I believe the greatest
4 need for action is for prompt registration and
5 respective protection of official tribal insignia.
6 I also want to stress that I do not think it
7 is in anyone's interest to have blatantly improper past
8 misappropriation of tribal insignia go unaddressed.
9 However, I also agree with Senator Bingaman's comment
10 that serious thought must be given on how such matters
11 should be addressed.
12 And, finally, any proposed resolution to this
13 issue needs to be designed so as not to jeopardize any
14 commercial trademark registered by Native American
15 tribes or prevent tribes from redefining and protecting
16 currently registered tribal trademarks as official
17 insignia.
18 In some instances, tribes have already
19 registered official tribal insignia as commercial
20 trademarks both to protect the insignia as well as to
21 use it for commercial branding.
22 And, as such, these tribes might potentially
23 face some problem in terms of designating their
24 official insignia. This would be precluded by the
25 insignia's previous registration as commercial
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 trademarks or would jeopardize the registration of the
2 commercial mark; therefore, due consideration should be
3 given to the appropriate handling of this matter.
4 Once again, let me thank Commissioner
5 Dickinson for holding this hearing in our fair State of
6 New Mexico and Senator Bingaman for his notable
7 leadership on this issue.
8 It has been an honor and a pleasure to testify
9 on this issue. I look forward to continuing my work
10 with all of you and especially with Native American
11 people that I have the good fortunate to represent.
12 Thank you very much.
13 MR. DICKINSON: Thank you very much,
14 Congressman.
15 (Applause)
16 MR. DICKINSON: Thank you for your
17 presence here today, as well. Thank you.
18 What we'd like to do now, if the folks would
19 move the mike back, is to invite up the witnesses in
20 groups so that we can hear from all of you and
21 hopefully do it in a expeditious way and also maybe to
22 give some opportunity for questions and colloquy going.
23 Let me invite up now Governor Amadeo Shije of
24 the Zia Pueblo.
25 (Applause)
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 MR. DICKINSON: And Governor Malcolm
2 Bowekaty of the Zuni Pueblo.
3 (Applause)
4 MR. DICKINSON: Is Mr. Talache here? Let
5 me just see who is here, by the way. Is Mr. Talache
6 here? [Nambe Pueblo] Would you mind coming to the
7 witness stand, as well?
8 Thank you. I've never appeared before two
9 Governors before, so I don't know, actually I'm
10 unclear; but I'm quite honored to have you both here
11 today.
12 Would Governor Shije mind going first? We'd
13 appreciate that.
14 GOVERNOR AMADEO SHIJE: Thank you.
15 Thank you, Commissioner Dickinson and members
16 of the Patent and Trademark Office.
17 Before I go into my testimony I would like to
18 introduce to you members of my pueblo who have come out
19 today. There are Elders of our pueblo. There are also
20 young people as well as some of my fellow officers.
21 So if the people from Zia would, behind me,
22 stand up or raise their hands, it would be appreciated.
23 (Approximately 30 stand. Applause)
24 GOVERNOR AMADEO SHIJE: Members of the
25 Committee, I am Governor Amadeo Shije from the Pueblo
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
25
1 of Zia.
2 I have come to you to give testimony
3 concerning the amendment of the Trademark Act to
4 prohibit registration of the official insignia of
5 Native American tribes.
6 I am here to speak on behalf of the Pueblo of
7 Zia - Zia is a federally-recognized tribe - and to
8 speak about the Zia sun symbol and its importance to
9 the people.
10 I understand you had made some comments in as
11 far as how we should follow the outline but I will
12 leave that outline to the legal people behind me who
13 will speak on behalf of the Pueblo, mainly because it
14 is often hard to explain Indian cultures and issues in
15 western legal terms.
16 Although the Zia sun symbol is certainly the
17 official insignia of the Pueblo of Zia, it is much more
18 because long before Columbus landed on this continent,
19 long before the United States was founded and even
20 before the presence of the Europeans and even before
21 the Trademark Act was implemented and since time
22 immemorial, the Zia sun symbol existed.
23 The Zia sun symbol was and is a collective
24 representation of the Zia Pueblo. It was and is
25 central to the pueblo's religion. It was and is a most
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
26
1 sacred symbol. It represents the tribe itself.
2 The tribal government has both used the three-
3 and four-pronged sun symbol always pursuant to the
4 permission of the religious elders.
5 The Pueblo of Zia is a very religious pueblo.
6 In the early 1640s, there were approximately
7 15,000 Zias living in five distinct villages. We
8 survived the atrocities at the hands of the Spanish and
9 Mexican governments.
10 By the late 1800s, the population was less
11 than 100 Zias. Today. As I speak, we are over 850
12 strong.
13 The Pueblo of Zia is here, and that our
14 culture is still alive is testimony to our physical and
15 cultural and, above all, spiritual strength and
16 strength of the symbol that we hold sacred.
17 Our religion is intertwined with every aspect
18 of our lives, including our government. The Zia sun
19 symbol is so important that it is not discussed,
20 described outside the village's ceremonies.
21 It is therefore difficult to meet fully the
22 requirements of the public testimony that the Patent
23 Office requires.
24 Nevertheless, besides me and an elder of our
25 tribe, our Tribal Administrator and even a very young
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
27
1 member of our tribe will testify today. And following
2 them, will be two of our pueblo attorneys. They will
3 discuss the technical terms of what you request here
4 today.
5 The Zia sun symbol is essential and
6 fundamental to the identity of every member of our
7 tribe. It is important that the Trademark Office not
8 officially condone and thereby encourage its commercial
9 usage and appropriation by others.
10 Our Tribal Council passed a Resolution
11 declaring the three- and four-pronged Zia sun symbol as
12 an official insignia of our tribe.
13 To the Pueblo of Zia, four is a sacred number,
14 as it is to many of our Native American tribes.
15 It recalls the four directions. The four
16 seasons. The four phases of a day - sunrise, noon
17 evening and night. And the four stages of life -
18 childhood, young/youthhood, adulthood, and old age.
19 As part of this testimony, we will submit
20 examples of our official use of this symbol over past
21 decades and over past centuries, as well.
22 But it is much, much more than that to our
23 people. I understand that the Trademark Act has long
24 prevented federal registration of the flag or coat of
25 arms or other insignia of the United States or of any
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
28
1 other state in the United States or even of any foreign
2 nation; it prohibits federal registration of symbols
3 which falsely suggests a connection with beliefs and
4 national symbols or brings these symbols into contempt
5 or disrepute.
6 What our tribal members and our pueblo
7 government ask today is very little; that the Trademark
8 Act treat us just like any other governmental entities
9 and without these United States, just as the Senator
10 and Representative mentioned today - We have to do
11 something about curtailing this influx of usage of the
12 symbols.
13 I know there are other symbols that are
14 important to other tribes. These tribes will speak for
15 themselves about this. It is not my place to discuss
16 the official insignia and symbols which identify other
17 pueblos and tribes.
18 But I will say that the injury that my people
19 have suffered from the disrespectful use of the Zia sun
20 symbol has been very, very deep.
21 The history of the European in this continent
22 has been a long history of unauthorized taking. We are
23 in the beginning of, I hope, a different frame of mind.
24 I do not see how the Trademark Office in good
25 conscience can give a person, foreign to our nation,
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
29
1 the right to use our symbol on a chemical fertilizer or
2 a porta-pottie or whatever business or service he is
3 peddling.
4 Under the existing law, other governments in
5 this country are protected from such an affront.
6 I understand that there are separate statutes
7 protecting the Boy Scouts' insignia and the Red Cross.
8 Even using western logic alone, without using any kind
9 of compassionate understanding of our culture and our
10 way of life, the official insignia or symbols of the
11 sovereign tribes should be protected as much as the
12 symbol or insignia of municipalities, states, foreign
13 states and so forth.
14 I thank Senator Bingaman and Representative
15 Udall and the Congress of the United States for
16 perceiving the logic of amending the Trademark Act to
17 prohibit registration of the official insignia of
18 federally- and/or state-recognized Indian Nations.
19 I thank you on behalf of the Pueblo of Zia for
20 the courtesy of understanding that we are citizens of
21 the United States and that the symbols of our
22 governmental entities should be given equal treatment.
23 I urge the Congress and the Trademark Office
24 to make right and amend the legislation that neglects
25 the existence of Native American governmental entities,
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
30
1 our insignias and our identities.
2 These are my statements and I thank you very
3 much.
4 MR. DICKINSON: Thank you very much,
5 Governor.
6 Are there any questions from the panel?
7 We have had some registrations brought to our
8 attention that were rejected and eventually abandoned
9 for the sun symbol and maybe this is a question later
10 for your attorneys; but I'm curious if there are others
11 that we may not be aware of and may not have been
12 brought to our attention, that should be brought to our
13 attention that would be of particular concern to you.
14 GOVERNOR AMADEO SHIJE: I am not aware of
15 that at this time but what I will do is, when my Tribal
16 Administrator speaks and gives his testimony, maybe he
17 can answer that question for you. Okay.
18 MR. DICKINSON: Thank you very much.
19 Governor Bowekaty. Did I pronounce your name
20 right?
21 GOVERNOR MALCOLM B. BOWEKATY: Yes, it
22 is. Before I start, I'd like to give you a copy of the
23 report and give you an opportunity to review it.
24 First of all, I'd like to thank the two
25 Senators that were here, Mr. Bingaman, and The
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
31
1 Honorable Senator Redmond [CONGRESSMAN UDALL]; but,
2 also, my colleague, Mr. Shije. He's an eloquent
3 speaker.
4 It is certainly an honor and a privilege to
5 present my people's thoughts on the new law. This is
6 the Pueblo of Zuni's official statement and testimony
7 on Public Law 105-330.
8 Let me preface by sharing experiences of my
9 people in valuing protection of tribal artistic
10 expression and designation of ownership.
11 For my Zuni people, as well as for countless
12 other Native American tribes, our seals, our flags, our
13 phrases have deep cultural and religious significance.
14 Deep thought, consideration and artistic merit was
15 exercised by our Zuni people prior to adopting the
16 insignia.
17 If you look at the letterhead and the business
18 cards, you'll know what I'm talking about.
19 The discrete design elements on our Zuni
20 tribal seal incorporate centuries-old identifying
21 markers.
22 For example, our ancestors used the four-
23 pointed star to designate Zuni handiwork, religious
24 paraphernalia and boundary markers. This also is a
25 source of pride that is collectively owned and shared.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
32
1 Therefore, the process currently proposed is
2 new, yet, the realities of commerce and marketing have
3 taught harsh lessons for our people.
4 My people have been cheated and duped from
5 inuring financial gain by unscrupulous merchants and
6 thieves who duplicate and cheapen fine craftsmanship in
7 the form of Zuni jewelry, pottery and kachina carvings.
8 Protecting my people's livelihood and their
9 artistic expression by whatever means possible is
10 paramount. Protecting our cultural heritage is the
11 obverse side of the same coin.
12 With trepidation, we need to explore,
13 experiment and apply federal law and policy in
14 protecting images, icons and artistic expressions.
15 But we also reserve the right to secede, if it
16 does not work for our interests, because we have seen
17 the paper tiger of the "Indian Arts and Crafts Act".
18 The definition of "Official Insignia".
19 The duly elected and duly authorized Tribal
20 Governors, Chairmen or Presidents and the Tribal
21 Councils must be the determiners of what constitutes
22 the official insignia of the Native American tribe.
23 The official insignia may be a tribal seal, a tribal
24 phrase, or both, a stamp, a banner, a flag or a
25 painting.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
33
1 A Tribal Council Resolution adopting such
2 insignia should be part of the documentation.
3 The fundamental point is, the tribes
4 themselves define, determine and submit an "official
5 insignia" or "insignias" to the Patent and Trademark
6 Office.
7 The Patent and Trademark Office must consult
8 with each tribe to seek submission of its official
9 insignia.
10 As to the question of Establishing and
11 Maintaining a List of Official Insignia, it must be
12 incumbent on the Patent and Trademark Office to consult
13 with officials of each Native American tribe.
14 Subsequently, an initial submission period for
15 tribal insignia should be defined whereby a database
16 can be established or the forerunner to an "Official
17 Principal Register of Tribal Insignia."
18 This trial period should facilitate an orderly
19 and voluntary inclusion by tribes to protecting their
20 insignia if they so desire.
21 Furthermore, the Patent and Trademark Office
22 will then be able to review and identify similar
23 insignia that may be problematic or questionable.
24 It must be the Patent and Trademark Office's
25 responsibility to research similar insignia to
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 determine if infringement of tribal insignia occurred.
2 In the future, by requiring Tribal Council
3 Resolutions adopting their official insignia as part of
4 the documentation, this risk should be eliminated.
5 Procedures that allow modifications,
6 amendments or cancellations to the principal register
7 will then be easily accomplishable. It will also allow
8 tribes to evaluate if this process is meritorious or
9 fraught with ambiguity.
10 Looking forward, this process will allow
11 future state or federal recognition of tribes to
12 participate in the Act as, no doubt, they will be
13 recognized tribes.
14 Once an "Official Principal Register of Tribal
15 Insignia" is defined and finalized, the Patent and
16 Trademark Office should reverify every 10 years.
17 Sending out the register to each tribe will
18 allow a dynamic process to occur and protection
19 mechanisms to be integrated or developed if warranted.
20 Only the duly-authorized tribal leaders may
21 amend, update or cancel the insignia register. This
22 will assure protection and the integrity of the
23 database.
24 As to the "Current Impact in Changes".
25 Any changes that protect official tribal
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
35
1 insignia are positive. Well-meaning and unscrupulous
2 people have already infringed on tribal insignia;
3 therefore, any sanctions that are explicitly protective
4 of tribal expression, language and images can only
5 strengthen the prohibition of copying "Official Tribal
6 Insignia" - unless duly authorized by the specific
7 tribal leaders or Tribal Council.
8 Here in New Mexico, my colleague, Mr. Shije,
9 has already talked about the Zia Pueblo. Zia Pueblo
10 has already undertaken protracted and expensive
11 litigation on the infringement of their tribal "sun"
12 symbol without much success.
13 Had this law been in place, a trademark search
14 would have uncovered trademark infringement on Zia
15 Pueblo's "sun" symbol.
16 Another example, drawing from the diversity of
17 experiences that we all have, is from my pueblo, Zuni,
18 where my people are famous for exquisite works of
19 turquoise jewelry.
20 Our people hoped that, with the Indian Arts
21 and Crafts Protection Act, the protection of insignia
22 and artistic expression would be protected, let alone
23 the name of our tribe, "Zuni". This wasn't so. The
24 Act required posting country of origin of jewelry and
25 specified "Indian Handmade."
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
36
1 However, a city in the Philippines
2 incorporated their town as "Zuni, Philippines", not
3 "Zuni, New Mexico."
4 This has allowed infractions to continue
5 without a means to enforce copyright or trademark
6 infringement laws.
7 I am sure you have heard similar stories or
8 you will hear similar stories during these field
9 hearings.
10 We also have another example; the term, the
11 word "Zuni", as in the name of our tribe. Yet, it is
12 patented and trademarked by the Patent and Trademark
13 Office and it has been renewed and, unfortunately, this
14 has no relation to our tribe because it is an oil
15 company.
16 Those are some of the examples that we want to
17 talk about and that actually underscores the point that
18 I will make further on.
19 If the law will designate duly-authorized
20 tribal officials to determine insignia and govern the
21 use of protected insignia for their tribal members, the
22 law will have teeth and will protect tribal interests.
23 In fact, enforcement of prohibition or
24 trademark infringement will be easier since authorized
25 users will be listed on the "Official Principal
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
37
1 Register of Tribal Insignia."
2 A mere phone call to the Tribal Chairman,
3 Governor or President will verify if the individual or
4 company is a bona fide user.
5 As to the current trademark owners of similar
6 tribal insignia, a process to determine the true owner
7 can be created or undertaken through the judicial
8 process. Either way, a cleaner list will be created of
9 the officially-designated tribal insignia.
10 The critical player in this is you gentlemen
11 and ladies - the Patent and Trademark Office. If
12 appropriate tribal consultation and input is sought at
13 the outset, there should be no insurmountable problems.
14 Listening to the frustrations of tribal
15 leaders and their practical experiences ought to define
16 for you very realistic and very feasible solutions.
17 You already have mechanisms and procedures in
18 place to effect this law. You need only to consider
19 the support and allegiance of the Department of Justice
20 and the Department of Interior to expedite the
21 registration process and enforcement of trademark
22 infringement.
23 I do not have an answer to the ramifications
24 of the U.S. obligations in the international arena, but
25 the obligations must continue because a lot of the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
38
1 enforcement infringements are taking place.
2 We also want to underscore the fact that there
3 are not enough Customs agents out there to really
4 enforce the issues.
5 On the Impact of Prohibition on Federal
6 Registration and New Uses of Official Insignia.
7 As mentioned before, by designating duly-
8 authorized tribal officials and Tribal Councils to
9 determine "official tribal insignia," they will govern
10 and license new users on behalf of their people if they
11 desire.
12 In cases of tribal seals, they already know
13 who are honest users and bona fide users, allow them to
14 continue practices that have worked.
15 Add to their competency by protecting, through
16 federal law, their cultural heritage and pride, as
17 exhibited through their insignias.
18 Current trademark owners of identical or
19 similar insignia must have some documentation to
20 justify their design creation. If not, then a
21 fundamental integrity question arises. These are best
22 addressed through the court system, preferably in
23 tribal courts or other courts of competent
24 jurisdiction.
25 Again, it is becoming more obvious that the
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
39
1 Patent and Trademark Office is being defined as the
2 gatekeeper and watchdog for potential violations.
3 I believe the Patent and Trademark Office is
4 just now defining a new niche in protection of tribal
5 sovereignty and a Trust responsibility heretofore
6 unrecognizable. I believe this law has unforeseen
7 benefits for Native American tribes.
8 Administrative Feasibility.
9 As with any new law, some expenses must be
10 incurred. The lack of protection for tribal insignia
11 for years must now be borne by the federal government.
12 I believe it is not expensive relative to lost revenues
13 or costs of litigation by tribes who have suffered
14 under the absence of federal trademark protection.
15 In relation to this, the Pueblo of Zuni has
16 estimated a loss of anywhere from eighty to $60 million
17 a year from the infringement by those unscrupulous
18 companies that cheapen the craftsmenship.
19 Native American tribes already experience
20 bearing the costs of laws and subsidizing
21 administrative costs for federal programs or agencies.
22 This is nothing new to us.
23 Tribes can best lower the costs of enforcement
24 for new users who infringe on insignias or help in the
25 identification of unauthorized trademark users.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 In terms of Timing of Changes in Protection.
2 Native Americans have experienced extreme
3 losses and some minimal gains during a retrospective
4 application of exerting their aboriginal land uses in
5 the United States Land Claims Commission era.
6 The Pueblo of Zuni asserts that a prospective
7 application of the changes in the scope of the law and
8 policy will alleviate costs and allow potential
9 infringement issues to be worked out amicably - if
10 there is such a term.
11 I need to underscore this point by
12 re-emphasizing the role of tribal officials as
13 paramount and their power and authority to determine
14 tribal insignia.
15 Only by allowing tribes to be proactive
16 partners in this process will we eliminate undue costs
17 and effect a workable law.
18 In summary, I wish to reiterate key
19 recommendations for my concluding remarks.
20 First. Tribal leaders must be the sole
21 determiners of what is their tribal insignia.
22 Second. The Patent and Trademark Office must
23 proactively consult with Native American tribes to
24 create a process for submission of insignia and the
25 creation of a database. This foundation is very, very
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
41
1 critical.
2 Third. The Patent and Trademark Office must
3 reverify or update periodically the insignia list with
4 Native American tribes to ease enforcement costs and
5 support duly-designated users of tribal insignia.
6 Fourth. A new role for Trust responsibility
7 by the Patent and Trademark Office is becoming obvious;
8 therefore, other federal departments with experience in
9 Trust obligations to Native Americans must be consulted
10 to expedite a feasible implementation plan for the law.
11 The Pueblo of Zuni supports the intent and
12 offers their assistance in defining procedures to
13 assist tribes protect and exhibit their cultural
14 heritage.
15 Thank you very much.
16 MR. DICKINSON: Thank you very much,
17 Governor. Let me ask you a question.
18 GOVERNOR MALCOLM B. BOWEKATY: Yes.
19 MR. DICKINSON: You would regard this
20 [letterhead seal] as your official insignia; is that
21 correct?
22 GOVERNOR MALCOLM B. BOWEKATY: Yes.
23 MR. DICKINSON: Have you attempted or has
24 this been registered with us as a trademark, as well?
25 Because you do have an opportunity for doing that.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
42
1 GOVERNOR MALCOLM B. BOWEKATY: Well,
2 we're in the process right now, because we are
3 exploring economic development opportunities, and we
4 realize that, if not, therefore, we are looking at that
5 process currently.
6 MR. DICKINSON: Thank you. Any other
7 questions? Thank you again.
8 GOVERNOR MALCOLM B. BOWEKATY: Thank you.
9 MR. DICKINSON: Appreciate it.
10 Mr. Talache.
11 MR. TOM F. TALACHE, JR.: Yes. Good
12 morning, ladies and gentlemen. I have been asked to
13 yield a couple of minutes of my time to the children of
14 Zia.
15 Ms. Martinez, is that correct?
16 MS. GLENABAH MARTINEZ: From the tribe,
17 yes.
18 MR. TALACHE: Okay.
19 MR. DICKINSON: Sorry?
20 MR. TOM F. TALACHE: Sir, I've been asked
21 to yield a couple of minutes of my time so the children
22 can read their statements.
23 MR. DICKINSON: Do you have any sense of
24 how long it might take? - so I can kind of keep a watch
25 of the time.
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
43
1 MS. MICHIKO THOMPSON: I'd say four
2 minutes.
3 MR. DICKINSON: Maybe you can speak into
4 the microphone so that we can have it for the record.
5 MS. MICHIKO THOMPSON: This is written by
6 all of us that just came up.
7 We as young adults of various sovereign
8 nations would like to express our concerns about the
9 issues surrounding the exploitation of Native American
10 symbols which embody our traditional and religious
11 values.
12 As Native people, we feel that it is important
13 to be in control of our own governments, natural
14 resources, industry, schools and so on; however, we
15 must not neglect the important aspects of our culture.
16 The symbols and images within our culture are
17 just as essential to our existence as the above-
18 mentioned; therefore, we feel that we should also be in
19 control of these symbols and what they represent so
20 that they can remain sacred to our culture.
21 With the exploitation of these symbols, their
22 meaning is depleted. This, in turn, inevitably affects
23 our self-worth and sense of dignity.
24 Native American symbols have represented ways
25 of living to various tribes for hundreds and thousands
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
44
1 of years. Recently, modern society has unfairly
2 adopted these symbols for commercial and marketing
3 motives without even a remote understanding of what
4 they stand for.
5 We as Native American youth feel that it is
6 necessary for us as sovereign nations to put a stop to
7 the misuse and degradation of our native symbols.
8 The Zia sun symbol is the backbone of the Zia
9 society and represents their perspective on life. We
10 from the various pueblos feel that the exploitation of
11 certain symbols, such as the Zia emblem, is very
12 degrading to the Zia culture.
13 We also believe that it is inappropriate to
14 misuse this symbol because it fails to reveal the true
15 sacred and religious knowledge that the emblem
16 represents. It has been taken out of its original
17 context and assimilated into the superficial world,
18 which again contributes to a loss of meaning.
19 The symbols of the Native American people
20 represent our whole way of life. These symbols have
21 many different meanings pertaining to our culture.
22 A symbol can relate stories about creations
23 and legends passed down through grandparents to
24 grandchildren throughout history.
25 The above statements are perspectives from
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
45
1 young Native American adults representing four
2 different nations: The Lakota Nation, Nee-mee-poo also
3 known as Nez Perce, San Juan Pueblo and Eastern
4 Cherokee nations.
5 We are concerned about this issue because we
6 are aware of the fact that the outcome of this trial
7 will affect all sovereign nations.
8 In our opinion, we firmly believe that the
9 Native American emblems are sacred and should not be
10 misused for purposes other than that of which they were
11 originally created for by our ancestors.
12 I am Michiko Thompson.
13 MS. ANGELA PICARD: I'm Angela Picard and
14 I'm Nez Perce.
15 MS. MORNINGSTAR GARCIA: My name's
16 MorningStar Garcia from San Juan Pueblo and Eastern
17 Cherokee.
18 MR. KEVIN PACHECO: I'm Kevin Pacheco
19 from San Juan Pueblo.
20 MR. CHUCK ARCHAMBAULT: I'm Chuck
21 Archambault. I'm from the Lakota Nation.
22 MR. DICKINSON: Thank you very much.
23 Thank you for your testimony today.
24 Mr. Talache, you now have about 10 minutes.
25 MR. TOM F. TALACHE: Oh. Okay. Thank
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
46
1 you.
2 MR. DICKINSON: Mr. Moreno is included in
3 this one on testimony so you can, each, take five
4 minutes.
5 MR. TOM F. TALACHE: Okay, sir. All
6 right.
7 Good morning, honorable ladies and gentlemen.
8 My English name is Tom Felix Talache, Jr.
9 My great grandfather, shortly after my birth,
10 gave me the name "EH-WHO-WATSEEDET-TAMBEE" which, in my
11 native Tewa language, means Cloud Bird Sunrising.
12 I was appointed this part February by my Tribal
13 Council to serve my tribal nation, Nambe Pueblo, as
14 Lieutenant Governor.
15 Nambe has a very long history. Our nation is
16 almost 700 years old. Recorded history, of course. We
17 have a much lengthier history which predates the 1300s.
18 I have been asked by the Executive Director of
19 the Eight Northern Indian Pueblos Council, Mr. Bernie
20 Teba, to offer some comments on the issues surrounding
21 tribal insignia, trademarks, et cetera.
22 Eight Northern Indian Pueblos Council is a
23 non-profit organization that serves the eight Indian
24 Pueblos located north of Santa Fe.
25 Please note the following disclaimer: My
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
47
1 comments today do not represent specific concerns or
2 formal positions of any one particular tribal nation or
3 nations that are amongst the Eight Northern Pueblos;
4 however, I have been asked to speak in general terms on
5 the matter and encourage this process.
6 This is a very new issue that I have very
7 recently been asked to look at and provide comment for,
8 so I am not certain what all the concerns are relating
9 to this obviously very important issue.
10 The New Mexico State Office of Indian Affairs
11 encouraged me to review a related Public Law as a basis
12 in preparing my testimony on this issue, and that was
13 Pueblo Law 101-644. [The Indian Arts and Crafts Act of
14 1990]
15 This law goes on to state that it is unlawful
16 to offer or display for sale, or sell any good, with or
17 without a government trademark in a manner that falsely
18 suggests it is Indian-produced, an Indian product, or
19 the product of a particular Indian or Indian Tribe or
20 Indian arts and crafts organization resident within the
21 United States.
22 Though this law is specific to the protection
23 of Indian arts and crafts, this law not only addresses
24 and protects an important issue, I believe it provides
25 an appropriate model in which there can be additional
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
48
1 regulation to include protection of Native American
2 Indian trademarks, logos, insignias, symbols and so on,
3 whether they come from governmental or private Native
4 American Indian citizens.
5 My recommendation would be that any regulation
6 developed should include some of the oversight and
7 protection provisions as outlined in Public Law 101-644
8 and that it should also include protection for entities
9 found both on and off tribal lands.
10 I say "off tribal lands" as well, because
11 protection should be extended to Native people as they
12 have, in most instances, dual citizenship.
13 Not only are they citizens of the United
14 States of America, additionally they are citizens of
15 their respective tribal nations, as well.
16 We are thankful that this issue is being
17 discussed formally, that the same consideration that is
18 extended to other nations outside the United States is
19 being extended to our respective Indian Nations found
20 within the borders of this country.
21 We are hopeful that the trademarks that are
22 produced by our Native American Indian entities and
23 individuals will be given equal protection as those of
24 other nations.
25 For example, we see that various corporations
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
49
1 from nations throughout the world promote their
2 products, goods and services in this country.
3 Their individual logos, symbols, trademarks
4 and designs are displayed, such as Mercedes Benz, BMW
5 and on and on, and no American entity will utilize it,
6 for certainty of penalty.
7 Additionally, we welcome continued dialogue to
8 further protect the interests and creativity of the
9 tribal nations and the American Indian peoples of this
10 country because, for many, the logos and such that they
11 design are a product of prayers, visions, legends, oral
12 tales, an innovative thought that is unique to an
13 individual person or is a culmination of ideas shared
14 by more than one person, something that has been shared
15 that collectively has been incorporated into a design
16 of something that represents a connection to that
17 collective synergy, or connection to something that has
18 historic or cultural significance and becomes a
19 permanent unchanging design.
20 The logo produced for the Eight Northern
21 Indian Pueblos Council is a perfect example. This is
22 their logo [indicates document].
23 This organization was formed over 25 years ago
24 and the logo that was designed has gone unchanged and
25 will remain unchanged for as long as the organization
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1 exists.
2 It is imperative that these very positive
3 discussions continue between tribal governments and the
4 United States Government.
5 Furthermore, we are thankful that the current
6 leadership of the United States Government is
7 approaching this issue with respect for our concerns as
8 is evident by the dialogue that we have today. This
9 will certainly prove to begin to develop positive
10 solutions for this issue.
11 I would like to extend my personal
12 appreciation to President Clinton for signing Public
13 Law 105-330, Title III, which continues to set a
14 positive precedence in dealing with this issue that is
15 an important and worthwhile one for our tribal nations.
16 Lastly, I would like to thank this panel for
17 your personal time and commitment to this issue and for
18 allowing our input into these discussions.
19 With that, I ask that the remainder of my time
20 be given to Mr. Fidel Moreno who serves the Indian
21 community as the President of the American Indian
22 Chamber of Commerce of New Mexico.
23 Thank you.
24 MR. DICKINSON: Thank you very much, Mr.
25 Talache. Mr. Moreno.
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1 MR. FIDEL MORENO: I'd like to say Good
2 Morning to the pueblo relatives and friends that are
3 here and especially to the Zia community elders and
4 young people that spoke this morning.
5 I'd like to also say Good Morning to you and
6 Thank you for traveling here and doing all the work
7 you're doing.
8 On behalf of the American Indian Chamber of
9 Commerce of New Mexico, I'd just like to express that
10 we have some very strong concerns but also support the
11 dialogue that's going on here today and, as you will
12 hear for the rest of the day, there are some deep
13 concerns about the marketability for use of American
14 Indian themes, images, symbols.
15 And just to give you some concrete, quick
16 examples, you know, in the auto industry, the use of
17 the Winnebago, the use of the Cherokee Jeep, the use of
18 the Navajo truck.
19 You know, if people would really understand
20 that those are all names that were given to these
21 Native people by either their enemies or Europeans and
22 don't really reflect how they identify themselves, on
23 one hand we're promoting a lot of ignorance by allowing
24 that kind of marketing and PR to go on in the industry.
25 But nonetheless it happens because we don't
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1 have laws that protect the cultural, intellectual,
2 historical properties of Indian people and I think this
3 is a good step in creating a dialogue so that people
4 just can't come and take what is very dear and sacred
5 to us.
6 My profession is, I'm a film maker. I've been
7 doing documentaries for the last 17 years, since 1982,
8 and I've worked with people like Robert Redford, Kevin
9 Costner and, in that time, I've also worked on and done
10 a lot of documentaries for Indian tribes.
11 And I just wanted to express that in working
12 with over 75 tribes in documenting their oral
13 histories, there was a lot of protocol and ceremony
14 involved in hearing their stories and working through a
15 lot of very sensitive issues about what they wanted to
16 go out to the public and what they wanted to keep in
17 their communities.
18 So a lot of times, people do not understand
19 that, who were not brought up in a Native American
20 culture, a Native American society; and I think that
21 it's a good step to bring about this kind of dialogue
22 so you can hear the kind of respect that exists, deep
23 respect for the oral histories.
24 As you know, a lot of our cultures are built
25 on millennia, old traditions of oral histories where we
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1 have very specific information about land, about
2 natural resources, about relationships, relationships
3 with each other, relationships with The Creator, and
4 those are all very sacred.
5 To give you an example of that, I worked on
6 the NAGPRA issue and one of the problems that many
7 tribes have is that one of the requirements in the
8 NAGPRA issue - The Native American Grave Protection and
9 Repatriation Act - is that the only people that can
10 talk or discuss some of the critical issues that define
11 what is sacred are the spiritual leaders of those
12 communities and only within the context of ceremony and
13 not putting it in writing and not putting it out for
14 public awareness.
15 So one of things that I'd just like to share
16 with you is that you may come across some of that,
17 those same circumstances in this.
18 But I think that as you have seen in the
19 American Indian Religious Freedom Act, the NAGPRA and,
20 now, this amendment that you're going to do, the tribal
21 leaders, Chairmen, Governors are willing to work with
22 you, are willing to work with you in a very positive
23 and proactive dialogue to come to some understanding on
24 how to address this issue.
25 So I just wanted to say that on behalf of the
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1 American Indian Chamber of Commerce, that we would also
2 like to work with the Governors and also the committee
3 on this important issue.
4 I want to say Thank You again. Good Morning.
5 MR. DICKINSON: Appreciate it very much.
6 Thank you.
7 (Applause)
8 MR. DICKINSON: I'd like to get a little
9 more in depth with some of the legal issues as well.
10 Could I invite --
11 Well, next on our list is Mr. Polese from the
12 New Mexico Book Association, so I'd like to invite him
13 up, as well.
14 Also, would Ms. Boulware from the AIPLA be
15 prepared to testify morning?
16 And also Governor Shije mentioned that some of
17 his attorneys were present here today. Is that Ms.
18 Price here? Mr. Mielke? Is that right?
19 MS. ROBERTA PRICE: Yes.
20 MR. DAVID MIELKE: Yes.
21 MR. DICKINSON: Would you mind both
22 coming up to the counter, as well? I know you were
23 scheduled for a little later on this afternoon but I
24 wanted to talk a little bit more about some of the
25 specifics.
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1 Why don't we start with Mr. Polese. Mr.
2 Polese, you have about 15 minutes.
3 MR. RICHARD POLESE: Thank you.
4 I'm President of the New Mexico Book
5 Association, which is non-profit. It serves most
6 professionals throughout the state.
7 But the reason why I'm here is because of my
8 research into what we now know as the Zia sun symbol,
9 specifically. I worked for the Museum of New Mexico
10 for eight years and did most of this work back in the
11 late 1960s.
12 Everyone in New Mexico embraces it, but not
13 many people are aware just where the popular so-called
14 New Mexico Zia sun symbol comes from.
15 I researched the origins of this design while
16 employed by the Museum of New Mexico. My findings were
17 published in El Palacio, the Museum's journal, in 1968;
18 and in the years since, I've collected hundreds and
19 hundreds of examples of variations of this wonderful
20 design.
21 The Zia sun symbol, as we have come to know
22 and love it, was designed by Dr. Harry P. Mera in 1925
23 as part of a contest for a new state flag.
24 Dr. Mera, a Santa Fe physician and
25 archeologist, was inspired by a sun depiction on a Zia
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1 Pueblo pot in the Indian Arts Fund collection of the
2 Laboratory of Anthropology.
3 And this is what -- Can you see this up here,
4 this graphic I hold?
5 His simple and elegant design was accepted by
6 the Daughters of the American Revolution and as the
7 design and -- Just a moment here.
8 This pot itself was probably made a little
9 before the turn of the last century but probably in the
10 19th Century, and the Mera design, however, is not a
11 copy of that design and as some people apparently still
12 believe.
13 Anyway, here's the background on how it came
14 to be.
15 The women in the New Mexico Daughters of the
16 American Revolution held a contest starting in about
17 1920 for a new state flag. And the old flag was really
18 pretty dreadful. It had New Mexico kind of going
19 diagonally like this, and it had the American flag
20 here, and it was absolutely not very good.
21 Not satisfied with the entries they received
22 for the new flag, they turned to Dr. Mera; and his
23 simple and elegant design was accepted and his wife
24 Reba sewed the first flag.
25 It was inspired by Pueblo art, crafted in its
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1 final form by an Anglo, and displayed in the red-and-
2 yellow Spanish royal colors. The flag was an instant
3 hit and a source of great pride for all New Mexicans
4 because it so closely and eloquently reflected the
5 essence of the whole state.
6 The sun insignia, as it appeared first on the
7 flag, is a simple circle with four groups of four rays.
8 The sun on the Zia Pueblo pot is suggestive but
9 markedly different in several respects.
10 The Zia pot's suns, and there's one on each
11 side of the pot, it's about 10-and-a-half inches in
12 diameter, depict a face inside two circles. Its twelve
13 stubby rays number three in each group, the middle one
14 of which being much thicker than the two that flank it.
15 The face is surrounded by a ring of lines, resembling
16 hair. It is a stunning and beautiful design but it is
17 not the official New Mexico sun symbol.
18 This is a photocopy of a photocopy. I don't
19 know how well it shows up here but it's a little closer
20 view of one of the two suns on that Zia Pueblo pot.
21 Some years ago, a flyer about the state's sun
22 sign was made available to visitors at the State
23 Capitol in Santa Fe. This imaginative piece ascribed
24 mystical meanings to the four groups of four rays.
25 However, these attributes don't predate Dr.
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1 Mera's design due to the fact that the sun symbol on
2 the flag had 16 rays only when they were drawn on there
3 by Dr. Mera. There are just 12 rays on the Zia Pueblo
4 pot design.
5 And, of course, there are other sun symbols
6 from that region that have varying numbers of rays.
7 They usually go in four directions.
8 The flyer and the wording of the state statute
9 establishing the new flag may have been responsible for
10 misunderstandings about the famous symbol.
11 The 1925 Legislative Act describing the flag -
12 And the reference to that is Number 4-14-2 - refers to
13 the Mera insignia as the "ancient Zia sun symbol."
14 This wording was likely added to honor our Indian
15 cultures as well as lend a little drama and romance
16 which was very typical of that era.
17 However, the design described by the law is
18 exactly that of the one on the flag designed by Dr.
19 Mera and sewn by his wife.
20 Moreover, no evidence is given that would
21 support such a claim of antiguity. A close look at the
22 historical and archeological record shows no examples
23 of the simple four groups of four rays with an
24 unadorned circle "sun" design in the vicinity of Zia
25 Pueblo, at least not before 1925.
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1 To be certain, there are celestial depictions
2 of the sun, stars, and the planet Venus in the
3 post-1300 rock art of the Keres-speaking region,
4 depictions similar to those found in other areas of the
5 Southwest.
6 According to Polly Schaafsma, a respected
7 scholar in the field of Southwestern rock art, most
8 examples of the sun and of Venus have a face in the
9 center. Sometimes, there are rays all around the
10 circle, usually short. Most often, there are four
11 rays, sometimes eight.
12 Many "sun shield" depictions have multiple
13 "rays," often like little triangles around a circle.
14 And I'll show you a couple of these examples of those.
15 Ms. Schaafsma is not aware of any examples
16 from this area that have four groups of four rays
17 within a circle without a face.
18 And the reference to that is her book "Rock
19 Art of New Mexico" revised 1992, and "Rock Art of the
20 Cochiti Dam Project" papers in Anthropology Number 16.
21 Suns with rays appear in various cultures all
22 over the world. And a few I have seen are actually
23 closer to Dr. Mera's design than the one on the
24 particular Zia Pueblo pot.
25 Nevertheless, that's where Dr. Mera found his
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1 inspiration and he was careful to make the final
2 design, one that would be universally embraced by
3 everybody in New Mexico.
4 It seems quite clear that this sun symbol, by
5 whatever name it may be called, belongs to all the
6 people of the state, not merely a single tribal or
7 commercial organization.
8 The official salute to the state flag is:
9 "I salute the flag of the State of New
10 Mexico, the Zia symbol of perfect
11 friendship among united cultures."
12 Now, if not all of us have attained that high
13 ideal, it is certainly something for us to aim for, for
14 every person who would call himself or herself a New
15 Mexican.
16 Here is -- I have copies of my remarks in my
17 original article that I did for El Palacio on the table
18 back there and also there's other information from the
19 state statute.
20 I'll entertain some questions. Is that it?
21 MR. DICKINSON: Any questions?
22 MR. POLESE: No?
23 MR. DICKINSON: Okay. Thanks very much.
24 We appreciate it.
25 MR. POLESE: I just wanted to show these.
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1 These are a few of the rock art depictions here in New
2 Mexico, what are either used or considered the sun or
3 perhaps Venus, or, considered suns of Venus.
4 This one up here is post-1300. I don't know
5 where it came from. But it's one that's in one of our
6 chapters.
7 But this one is from Black Mesa, in the Tewa
8 area up here, the San Ildefonso Pueblo.
9 And these two here are from the Cochiti Dam
10 area, which is the Keres-speaking area, which would
11 include Zia Pueblo.
12 Thank you.
13 MR. DICKINSON: Thank you.
14 We'll hear now from -- And I appreciate your
15 allowing us to take a slightly different order from the
16 original.
17 We're pleased to have a friend of the PTO
18 here, Meg Boulware, who's the President of the American
19 Intellectual Property Law Association and at least a
20 part-time New Mexico resident.
21 Pleased to see you here today, Meg.
22 MS. MARGARET A. BOULWARE: Thank you.
23 Thank you very much, Commissioner Dickinson.
24 I don't know if Senator Bingaman is still here
25 but I'd like to urge for your confirmation as
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1 Commissioner at this time.
2 I'd also like to thank Commissioner Dickinson,
3 Eleanor Meltzer and others from the PTO and commend
4 them for having hearings on this very important issue
5 in Albuquerque, New Mexico.
6 I'm President of the American Intellectual
7 Property Law Association which is a national
8 association, that its primary objective is enforcing
9 intellectual property rights for all people in this
10 country and we have very strong appreciation for the
11 rights of creators and authors.
12 I'd also like to address the trademark issues
13 that are brought up at this hearing.
14 There are many other issues that are being
15 discussed including tribal religious issues, and I'm
16 certainly not qualified to speak on those issues, but I
17 would like to thank the Commissioner and the PTO for
18 being included with these distinguished panel speakers
19 and the others who have spoken before me.
20 I am a part-time resident of the State of New
21 Mexico and one of the great attributes of this state is
22 the cultural diversity and the recognition of heritage
23 in this state that I think we all want to share and
24 want to promote in the future.
25 Part of the American Intellectual Property Law
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1 Association, the AIPLA's request to the PTO was to have
2 hearings so that those of us who may not be as educated
3 on these issues could have an opportunity to be
4 educated and we requested having hearings outside
5 Washington, D.C. and we were very glad that our
6 recommendations were undertaken.
7 One of the reasons we requested these hearings
8 was that the AIPLA wanted to hear from those involved,
9 what they considered their official insignia, so that
10 there could be an understanding of the official
11 insignia.
12 One of the comments I'm going to make today
13 that's not in my prepared testimony is that I think
14 I've already been educated on that fact. I've heard
15 quite a bit of it, starting with Senator Bingaman,
16 concerning the fact that most of our Native American
17 tribes and pueblos do have recognizable insignia for
18 their use, for their official use.
19 And we have encouraged the PTO working with
20 any other government agencies, that they feel would be
21 appropriate, to attempt to collect those official
22 insignia that are used.
23 In our comments, we noted that official
24 insignia of states and other countries are generally
25 self-limiting. They're the insignia that are used on
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1 official seals, official correspondence.
2 And from our discussions this morning, it is
3 apparent to me that, at least to a large degree, there
4 is similar usage here in New Mexico and perhaps
5 elsewhere in the country and we believe that collecting
6 and identifying the official insignia will go a long
7 way to having appropriate protection for those official
8 insignia in the same way that official insignia of
9 other states and governmental entities are recognized
10 by the Patent and Trademark Office.
11 One issue that was brought up that I do not
12 think, as a trademark attorney, should be
13 problematical, that any Native American registrations
14 that have already been received should not be affected
15 by a proposal to protect the Native American tribal
16 insignia.
17 Those trademarks that were validly procured
18 should certainly maintain their integrity and I can't
19 imagine that there would be an issue with going forward
20 with that.
21 Another issue that has come up that I believe
22 is separate and apart from the Native American insignia
23 protection is product authenticity.
24 I found it quite frankly disturbing that - And
25 I had read this before - that there was a city in the
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1 Philippines that had incorporated under the Zuni name.
2 I had read about that, living here in New
3 Mexico, and the comments I'd like to provide on that
4 is: The U.S. trademark laws, as they stand, does have
5 a remedy for product authenticity. Counterfeit goods
6 are a problem for many reputable, high-quality product
7 sources. And, unfortunately, the Native American
8 community appears to be the victim of counterfeit goods
9 or unauthentic goods. But we do have the current
10 trademark laws that do try to protect against that.
11 Of course, it's up to the trademark owner to
12 enforce their remedies in federal courts; but I have
13 found the federal courts to be sympathetic to
14 legitimate trademark owners when there is a passing off
15 of counterfeit goods and I understand that that's an
16 issue.
17 Also, in some of the discussion, there has
18 been another type of passing off and that would be
19 products that are geographically misdescriptive - Like
20 I know where Pojoaque is - and a Pojoaque product that
21 came from New Jersey would be a geographically
22 misdescriptive designation. And our Lanham Act, our
23 Trademark Act, does provide that marks that are
24 geographically misdescriptive cannot be registered and
25 if the marks are registered for any reason, they can be
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1 subject to cancellation.
2 A number of the issues that are brought up
3 today are issues that, quite frankly, my association is
4 very interested in - very interested in, period -
5 regardless of where the transgressions come from and we
6 would certainly support very strong trademark rights
7 for any American citizens.
8 The issue of the tribal insignia I think is
9 one that certainly can be dealt with, with perhaps a
10 minor change in the Lanham Act, to recognize that there
11 are Native American governments that do have official
12 insignia and, from the testimony today, if it's
13 consistent throughout the country and there's
14 identifiable insignia, we believe that they can be
15 collected.
16 I also agree with one of the earlier panelists
17 that it would be very good, once a collection is made,
18 to have it available in the digital world.
19 We can have it on-line so anybody who wants to
20 check what insignia is protectable, the Patent and
21 Trademark Office has a very good website with a
22 searchable database and we would encourage that a list
23 be circulated in digital form so that it could be
24 received by those on the internet.
25 At the same time, the AIPLA urges that the
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1 Native American tribal insignia should not receive
2 certainly no less but no more protection than the other
3 insignia that other states and nations and
4 municipalities currently enjoy.
5 As far as changes to the Lanham Act or changes
6 to our Trademark Act, the AIPLA's position is that
7 certainly today is the first day of the fact-finding
8 and we would encourage the PTO to continue to gather
9 information and determine what changes need to be made.
10 We're not suggesting any changes at this time
11 because, quite frankly, we hadn't had the benefit of
12 the hearings and we think that any changes should be
13 suggested after the benefit of these hearings and
14 consistent with - however consistent with the AIPLA's
15 position - that Native American insignia certainly are
16 entitled to protection.
17 One of the things I want to also emphasize; as
18 you, the PTO officials know, is that the PTO is a
19 government agency that's responsible for federal
20 registrations. It does not monitor infringing use.
21 However, the PTO does protect against registrations of
22 trademarks that are in conflict with the federal law.
23 And, also, if a registration is issued, then
24 the PTO also has cancellation proceedings whereby an
25 injured party can come to the PTO and cancel a
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 registration.
2 And I think we need to understand that if the
3 PTO does has a registry for Native American insignia,
4 it will review applications that are filed and
5 determine if those applications conflict with the
6 insignia.
7 The issue of use would have to be dealt with
8 by parties in federal litigation because the PTO at
9 least at this time is not authorized to issue
10 injunctions across the country for infringement issues
11 but those certainly are handled in our federal courts.
12 And I hope I'm not running over my time.
13 But one of the issues that I did want to bring
14 up that the speaker just prior to me brought up, I do
15 think that the Zia sun symbol seems to be in a class
16 almost by itself.
17 It was one of the first symbols when I drove
18 into New Mexico for the first time that I saw and it
19 appears to be very problematical.
20 I believe that retroactive or/and even
21 perspective changes in the law with the Zia sun symbol
22 is going to be an issue that is going to be a very
23 difficult one, particularly since it is an emblem of
24 the State of New Mexico, that this is going to be one
25 of those difficult issues that Senator Bingaman alluded
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 to.
2 And certainly the AIPLA does not have a
3 specific position on that, although we would say that
4 we do have, with the use of that symbol since, I
5 believe, 1925 in the flag and elsewhere, there are a
6 number of people who have been using that.
7 There are constitutional issues on taking and
8 we think that that's going to be a very -- that will be
9 a thorny issue to deal with and perhaps different from
10 some of the others.
11 And thank you very much. I hope I didn't run
12 over too much time.
13 MR. DICKINSON: Thank you, Ms. Boulware.
14 We appreciate it, as always.
15 We turn now to either Mr. Mielke or Ms. Price.
16 Who would prefer to go first?
17 Is it possible we could -- I know that you're
18 both attorneys representing the Zia Pueblo. Do you
19 have distinguishing testimony? Or would you like --
20 MS. ROBERTA PRICE: Yes.
21 MR. DAVID MIELKE: Yes, we do.
22 MR. DICKINSON: We would like to save
23 some time for questioning while Ms. Boulware is here,
24 as well, because it's kind of the legal issues that
25 need fleshing out.
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1 MR. DAVID MIELKE: Well, good morning,
2 and welcome to New Mexico. I'm sure, given the recent
3 weather in D.C., you wish you would've moved up these
4 hearings a few days.
5 (Laughter)
6 MR. DICKINSON: We're still here.
7 MR. DAVID MIELKE: We're very happy that
8 you decided to start the hearings here in New Mexico.
9 My name is David Mielke and I'm General
10 Counsel to the Pueblo of Zia.
11 As attorneys for the Pueblo of Zia, our firm
12 has witnessed, firsthand, the pain and frustration that
13 the tribe has experienced when a symbol, like the sun
14 symbol, of enormous religious, cultural and historical
15 significance that has been used by the Tribe literally
16 for ages is appropriated and used by others for
17 commercial and, as was just pointed out, for
18 governmental purposes.
19 This has repeatedly occurred without any
20 regard to the effects of such use on the pueblo and
21 with no current means of effectively stopping such use.
22 And given these circumstances, it's apparent
23 why the tribal representatives that you've heard from
24 today, and will hear from later on, feel as strongly as
25 they do about this issue.
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1 The federal government has a Trust
2 responsibility to protect and prudently manage tribal
3 resources.
4 I submit that this Trust responsibility
5 applies not only to the protection of tangible
6 resources such as land, minerals and the like, but also
7 to intellectual and cultural property interests of
8 tribes, particularly in this day and age when such
9 symbols are increasingly popular and used for
10 commercial purposes.
11 And a symbol such as the Zia sun symbol is
12 such a unique mark of their culture, their religion,
13 their heritage and identity, that it's incredibly
14 painful for them to see how it's used - apart from the
15 state's use of it which is a difficult and somewhat a
16 very unique and separate issue - but to see the
17 commercial use of it is incredibly painful for the
18 tribe.
19 So this effort to give some protection to
20 tribal insignia is welcome and appropriate and, we'd
21 submit, long overdue.
22 We've heard earlier from both the Senator and
23 the Congressman about how federal law currently
24 protects the flag or coat of arms or other insignia of
25 the United States or of any state or municipality or
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 any foreign nation.
2 There's no legitimate reason for federal law
3 not affording the same protection to our First
4 Americans and our first governments.
5 Doing so will not only permit the federal
6 government to fulfill its Trust responsibility to
7 tribes but will help avoid costly and unnecessary
8 litigation such as that fought a few years ago by the
9 Pueblo of Zia against a chemical fertilizer/pesticide
10 company seeking a trademark registration for the sun
11 symbol.
12 As I think some of you are aware, that ended
13 up -- that litigation established no useful precedent
14 because the company subsequently withdrew its
15 application.
16 With respect to the Burden Issue, as others
17 have testified today, there are only approximately 500
18 recognized tribes; and even in the unlikely event that
19 all sought to register and protect their tribal
20 symbols, it would certainly not be a great
21 administrative burden on the Patent and Trademark
22 Office to accept and catalogue these.
23 This is particularly true in this day and age
24 of computers when they can be catalogued, they can be
25 put on the internet and they can be readily checked
CHARLOTTE MACIAS, NM CCR#161 (505) 296-0719
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1 against applications.
2 And I submit a process by which the tribes
3 formally adopt their insignia by Tribal Resolution,
4 send a copy of their insignia along with that Tribal
5 Resolution to the Patent and Trademark Office, is a
6 reasonable way of registering and protecting these
7 marks.
8 I've mentioned earlier Zia's interest in this
9 legislation is unique because of the widespread
10 commercial and governmental use of its symbol.
11 To add further insult to injury, the sun
12 symbol is frequently used in combination with the word
13 "Zia". This not only is offensive but it gives
14 serious -- creates the very real possibility, if not
15 reality, of consumer confusion.
16 Zia Cement, for example, Zia Mobile Home
17 Sales, Zia Pest Control, Zia Motor Lodge, and Zia
18 Carpet Care, to name a few, are all business that use
19 the name Zia and the sun symbol but are not,
20 unfortunately, tribally-owned businesses.
21 As we've also heard and we all know, the Zia
22 sun symbol is also the symbol of the State of New
23 Mexico and has been so for years.
24 Apart from disputes as to whether the state
25 symbol was based on the Zia design, the state and the
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1 tribe in recent years have begun discussions with the
2 objective of trying to reach an agreement for the
3 state's use of the sun symbol.
4 Last year's Legislature endorsed, or,
5 introduced a Joint Memorial which passed the House and
6 the requisite Senate Committee but unfortunately failed
7 to reach the Senate floor before the legislative
8 session ended.
9 In New Mexico, they have brief legislative
10 sessions and there's frequently a mad rush at the end
11 to try to get legislation through and, as in years
12 past, this issue did not get to the final -- did not
13 get to the Senate floor before it adjourned.
14 But under this Memorial was provided a process
15 whereby the tribe would negotiate directly with the
16 state for such an agreement on the use of the sun
17 symbol.
18 Subsequent conversations and dialogues with
19 state officials including representatives of the
20 Governor's Office have been encouraging and we are
21 optimistic that a legislative resolution, supported by
22 the Governor's Office, to address this longstanding
23 issue will be forthcoming.
24 I note, with irony, the state's adoption of
25 the sun symbol as the state's symbol creates a
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1 situation whereby the State of New Mexico's use of the
2 Zia sun symbol is protected but the Pueblo of Zia's use
3 of their own symbol is not.
4 With regard to the issue of Retroactive
5 Application, I think the Zia's and the State of New
6 Mexico's recent efforts to work out an amicable
7 resolution are indicative of how this issue should be
8 addressed.
9 Past misappropriations should not be
10 sanctioned, rather they should, misappropriators
11 should, have an incentive to reach an amicable
12 resolution with the tribe whose symbol they have used
13 for commercial gain.
14 Lastly, I want to thank - Even though they're
15 not here anymore - Senator Bingaman for his highly
16 commendable leadership on this issue and the courage he
17 has shown.
18 I also want to thank Congressman Udall for his
19 presence and support here today.
20 Both have shown that they are willing to stand
21 up on an issue where moneys and powerful interests
22 frequently are allied against tribes.
23 Thank you.
24 MR. DICKINSON: Let me ask you a quick
25 question before we move on. Has the Zia Nation adopted
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1 an official insignia?
2 MR. DAVID MIELKE: Yes, they have by
3 Tribal Resolution adopted the sun symbol as their
4 official insignia.
5 MR. DICKINSON: Could we have a copy of
6 that today?
7 MS. ROBERTA PRICE: Yes.
8 MR. DAVID MIELKE: Yes, we do have a copy
9 of that with us today.
10 MR. DICKINSON: Of the official insignia?
11 MS. ROBERTA PRICE: I have a group of
12 documents. I thought I was going to testify after
13 lunch, but I have a group of documents we're going to
14 submit to you, demonstrating the use of the Zia sun
15 symbol by the Pueblo and I'll be giving that to you
16 after lunch.
17 MR. DICKINSON: Okay, but let me just ask
18 a question: So has there actually been an official
19 adoption of an official insignia, a formal adoption of
20 an official insignia by the -- whoever the governing
21 body of the Indian Nation is?
22 MS. ROBERTA PRICE: Yes.
23 MR. DAVID MIELKE: Yes, there has.
24 MR. DICKINSON: Have they sought to
25 register that as a trademark?
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1 MS. ROBERTA PRICE: No Because they,
2 they, they're --
3 MR. DICKINSON: I'm sorry. Ms. Price,
4 why don't you go ahead and, and -- Thank you very much.
5 Is this the --
6 MR. DAVID MIELKE: That's the Tribal
7 Council Resolution, I presume? Yes.
8 MS. ROBERTA PRICE: Yes.
9 MR. DICKINSON: And so the official
10 insignia is the sun symbol as well as the wording
11 "Pueblo of Zia" around it?
12 MS. ROBERTA PRICE: No.
13 MR. DICKINSON: What is the official
14 insignia?
15 MS. ROBERTA PRICE: The Zia sun symbol.
16 MR. DICKINSON: Just this?
17 MS. ROBERTA PRICE: Yes. And later
18 today, I will submit fire hats from the -- pictures of
19 fire fighting hats from the 1950s which have only the
20 symbol on it and various pictures of the tribal
21 buildings, --
22 MR. DICKINSON: But my question concerns
23 what -- how we will define "official insignia" and
24 getting to that issue --
25 MS. ROBERTA PRICE: Right.
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1 MR. DICKINSON: -- and that complexity.
2 I noticed, for example, that the one we had earlier
3 from the Zuni Pueblo is a far more complex insignia
4 with a number of elements and some wording on it.
5 And I'm just trying to get to the
6 understanding of what the official insignia of the Zia
7 people is.
8 MS. ROBERTA PRICE: Yes.
9 MR. DICKINSON: Or, the Pueblo is. And
10 you're telling me that it's this three-pronged sun
11 symbol --
12 MS. ROBERTA PRICE: Three- and four-
13 pronged. It's been used in --
14 MR. DICKINSON: There's more than one
15 official insignia?
16 MS. ROBERTA PRICE: They are -- As an
17 official insignia of the Zia sun symbol, sometimes it
18 has three prongs, sometimes it has four.
19 MR. DICKINSON: So if you made a request
20 to register an official insignia, you'd register more
21 than one; is that correct?
22 MS. ROBERTA PRICE: It would be
23 fundamentally a Zia sun symbol; one with three and one
24 with four.
25 MR. DICKINSON: Let me just say, for the
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1 record, I might've done that; in 1994, our office sent
2 out and sought -- we sought to contact every
3 federally-registered Native American tribe so that we
4 can get a handle on this question sometime ago.
5 My understanding is, we've never done this for
6 any other group before and but we'd be pleased to do
7 it.
8 We apparently sent out some 500 letters and we
9 received about 10 responses.
10 MS. ROBERTA PRICE: And one of those
11 responses was from the Pueblo of Zia.
12 MR. DICKINSON: One was from the Pueblo
13 of Zia? Okay. Ms. Price, why don't you proceed.
14 MS. ROBERTA PRICE: I have a lot of
15 ground to cover here. I'd like to address both the
16 technical bullets that were listed in the PTO notice
17 and I'd also like to address -- Can you hear me okay?
18 AUDIENCE MEMBER: Sure.
19 MR. DICKINSON: Are you okay? Can you
20 hear in the back all right?
21 AUDIENCE MEMBER: Yeah.
22 MR. DICKINSON: Okay.
23 MS. ROBERTA PRICE: And I'd also like to
24 address some of the difficulties listed by some of the
25 potential opponents to amendment to the Trademark Act.
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1 And also, I would in brief like to mention
2 that the Tribal Administrator, Peter Pino, is going to
3 address some of the issues concerning the use of the
4 four-pronged and the three-pronged symbol and also
5 point out that, even in scholarly research, I
6 represented the Pueblo of Zia in the opposition
7 proceeding in 1993 and we had various depositions of
8 the elder, under seal, because there's prohibition of
9 discussing the religious and symbolic uses of the Zia
10 sun symbol, but the people who did scholarly studies of
11 the use of the Zia sun symbol were not talked -- were
12 not able to talk to the elders, were not privileged.
13 They used secondary sources. They used sources
14 concerning Dr. Harry Mera's action and concerning one
15 pot in the Fine Arts Museum.
16 But that is one of the problems we have,
17 adjusting western law to another culture that has been
18 existing in this continent for many centuries.
19 Anyway, concerning a definition of Official
20 Insignia, there has been no difficulty administering
21 the statute, since in Section 1052 which protects other
22 governmental insignia, which I guess has been in
23 existence since before mid-century and I don't know how
24 the Trademark Office determines the official insignia
25 of other governmental entities, but it seems like the
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1 same process would take place with the tribe.
2 In addition, other people have mentioned the
3 computer age and being able to have on-line these
4 symbols.
5 I understand, at one point, the Department of
6 the Interior came over and met with the Trademark
7 Office and your assistant; the Secretary of the
8 Interior came over and discussed this.
9 I don't believe it would take very much to
10 have one trademark librarian or one trademark examining
11 attorney who could get a handle on the list of symbols
12 and be in charge of entering it on the website and also
13 reviewing applications as they are published.
14 Concerning the Impact of the Law and the
15 Changes in the Current Law Policy, I personally, I'm
16 sure, am prejudiced but I can see no effect but
17 salutary effects that this change in the law would have
18 on Native American tribes for obvious reasons.
19 Equal protection under the law is always a
20 salutary experience.
21 A small number of trademark owners might be
22 affected but they would be saved from lengthy and
23 expensive piecemeal litigation over use of insignia or
24 official symbols of Native American tribes.
25 These trademarks owners would be no more
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1 affected than those who have chosen to use marks that
2 are prohibited registration under 1052 in its present
3 form.
4 The Patent and Trademark Office would also
5 benefit by dealing with this problem directly and
6 thoroughly.
7 An increasing amount of intellectual property
8 litigation and of litigation within the Trademark Trial
9 and Appeal Board itself would be avoided.
10 What's more, the Patent and Trademark Office
11 would be acting in a way which upholds Treaty
12 obligations, - And, here, I'm talking about Treaty
13 obligations of the tribe - Supreme Court precedence,
14 and President Clinton's Executive Order that all
15 agencies evaluate their policies and procedures,
16 keeping in mind Native American interests and issues.
17 I can foresee no significant impact any of the
18 proposed changes would have on the international legal
19 obligations of the United States.
20 I have spent some time on this issue and I'm
21 aware mainly of people within - Besides the Philippines
22 which is obviously a different problem, a counterfeit
23 problem - but most issues involving the Native American
24 symbols are within the borders of the United States.
25 Moving on to the Impact of Prohibition on
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1 Federal Registration and New Uses of Official Insignia.
2 The effect of prohibiting federal registration
3 of trademarks identical to the official insignia of
4 Native American tribes would be as described in the
5 previous section.
6 The tribes would be positively affected by
7 this at-long-last-equal treatment under the Trademark
8 Act.
9 In addition, Native American tribes would be
10 relieved from the extremely onerous procedural and
11 financial burden of having to fund protests and
12 opposition proceedings in the PTO and fund even more
13 expensive federal litigation in the courts in order to
14 protect the symbols that are important and essential to
15 their collective identity.
16 Individual trademark owners would also be
17 saved the time-consuming and expensive burdens of
18 litigating their claims to such symbols.
19 Non-Native American claims to these insignias
20 might ultimately be found to be secondary to the use of
21 symbols by the people who roamed this continent
22 centuries before this government existed.
23 Trademark owners who wished to use official
24 insignia of Native American tribes might decide to use
25 these marks without the imprimatur of federal
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1 registration, I suppose, or more sensibly decide that
2 it would be more fitting to choose a symbol which they
3 could actually say was their own, instead of a symbol
4 they had appropriated from a Native American source.
5 There would be minimal actual effect on
6 international legal obligations and any effect would be
7 no different than the present prohibitions outlined in
8 Section 1052.
9 The Trademark Office is no doubt aware of 36
10 U.S.C., Section 4 - Protecting the National Red Cross;
11 36 U.S.C., Section 27 - Protecting the Boy Scouts; and
12 22 U.S.C., 248 - Protecting the Swiss confederation
13 coat of arms.
14 All these statutes were enacted without a lot
15 of concern to international treaty obligations and the
16 ability to administer the statutes, et cetera, et
17 cetera.
18 As to the defense of fair use, I suppose it
19 could be raised, but I am unaware of any trademark
20 owner using it successfully to entitle his use of the
21 official insignia of a municipality, state, or foreign
22 nation. The appropriation of a Native American
23 official symbol is fundamentally unfair use.
24 I've discussed the Administrative Feasibility
25 concerning a staff member and I have talked to very
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1 understanding and intelligent members of the Examiner's
2 Office and I think the office has suffered from a lack
3 of squarely dealing with this problem across the board
4 because when an application comes in, an attorney or a
5 trademark librarian knowledgeable about this particular
6 seminar may not be involved with the particular
7 application.
8 Moving on to Timing of Changes in Protection.
9 No business interest should justify the
10 retention of federal registrations in official Native
11 American symbols which Congress decides should not be
12 registerable.
13 Existing federal and state law dictates that
14 non-Native American institutions divest themselves of
15 Native American property the institutions may have
16 purchased for large amounts of money.
17 And I have some cites in here.
18 Let us be clear about the taking that has
19 occurred.
20 Let us understand the two-part nature of the
21 injury to Native Americans such as the Pueblo of Zia to
22 this latter-day claim on their symbol.
23 It is not only that these recent trademark
24 "owners" have appropriated for themselves what is in
25 the Zia's case, and in no doubt other cases, an ancient
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1 and enduring symbol but it is that the Zia people and
2 other Native Americans would never, never consent to
3 the use of their sacred symbol - the symbol of their
4 collective identities on commercial items.
5 How do we compare the injury to Native peoples
6 from whom the history of this country is a long tale of
7 commercial greed and a self-serving social Darwinism
8 which caused the removal of home, land, natural
9 resources, freedom, dignity, many cultures, vast
10 amounts of population and, in this case, symbols of
11 that collective identity, to the expense of a
12 businessman who might have to go through changing his
13 trademark or losing federal registration for a
14 trademark he continues to use?
15 If we are intending to right a wrong with this
16 amendment, let us see the complainants' losses in
17 perspective and let us right the wrong.
18 Concerning Statutory Changes.
19 As the Senator and Congressman have mentioned,
20 I think 15 U.S.C., Section 1052 is the logical section
21 to change.
22 Concerning Other Relevant Factors.
23 Now, moving along here. Intellectual property
24 rights and litigation of those rights are ever
25 increasing. The amendment proposed by Congress would
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1 avoid costly litigation by Native Americans and their
2 tribes to rectify the failure of the Trademark Act to
3 protect them.
4 The tribal resources saved could be used in
5 hundreds of other necessary and productive ways.
6 A change in the law would acknowledge and
7 effectuate the duty of the federal government pursuant
8 to its fiduciary relationship with the Native American
9 tribes to protect the insignia of Native American
10 tribes.
11 It would avoid potential problems under the
12 Equal Protection Clause of the United States
13 Constitution created by the Trademark Act's current
14 prohibition of registration of other governmental
15 insignia and its failure to explicitly treat the
16 insignia of Native American tribes similarly and the
17 Patent and Trademark Office's current policy of
18 permitting non-Indians not associated with the tribes
19 to register tribal insignia.
20 Very briefly, to move along to some of the
21 Responses to Opponents.
22 There's a parade of "problems" that have been
23 listed. It seems like many opponents to this amendment
24 act as if neither the Congress nor the Trademark Office
25 could do the simplest thing to implement this amendment
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1 without insurmountable difficulty.
2 This position ignores the fact that Congress
3 has tackled much more complex legislation and the
4 Trademark Office has administered similar prohibitions
5 and limitations on federal registration throughout the
6 existence of the Act.
7 Some opponents think it would be too difficult
8 to define "official tribal insignia." I think Congress
9 would be able to tackle this definition with the help
10 of a good dictionary.
11 Some opponents claim that it would be too
12 difficult to determine what marks were identical to
13 official tribal insignia.
14 In fact, the Trademark Office daily denies
15 applications for registrations because they are too
16 similar (not even identical) to existing registered
17 marks or because some marks that are submitted with the
18 applications fall within the ambit of the current
19 Section 1052.
20 Opponents state there is a potential for the
21 prohibition of the use of common geometric shapes that
22 are identical to official tribal insignia. This is
23 hypothesizing a problem which does not exist.
24 Unless opponents can point to a specific
25 Native American official insignia, which is a simple
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1 geometric form, this is a false issue raised to
2 convince Congress that things are just too difficult to
3 change.
4 In the case of the Pueblo of Zia, I don't
5 believe any tribal member expects that circles or lines
6 would be off limits for trademark owners - just the
7 particular configuration of circles and lines which are
8 similar to the Zia sun symbol.
9 Opponents raise the specter of potential
10 violation of U.S. Treaty obligations under the Paris
11 Convention, again without giving an example of an
12 actual instance of this kind of violation.
13 Opponents raise the issue of the "potential
14 unfairness to mark owners who have used the symbols
15 previously, knowingly or not."
16 This amendment goes not to the use of a mark
17 but the acquisition of a federal right - a federal
18 trademark registration.
19 Business owners would lose federal
20 registration but could continue to chose to use the
21 mark.
22 We need to focus on a large breach - The
23 United States' breach of its Trust relationship to the
24 tribes by giving its official imprimatur of trademark
25 registration to what was a symbol of the tribal
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1 collective identity.
2 The inconvenience of losing federal
3 registration is not comparable to the loss suffered by
4 the tribes by appropriation of their ancient official
5 insignia.
6 Opponents say that relief is currently
7 available under Section 1051(a) which prohibits
8 registration of immoral, scandalous, or disparaging
9 marks.
10 Here, I must digress into my war story.
11 As the attorney for the Pueblo earlier in the
12 Nineties, I conducted an opposition to the registration
13 of the Zia sun symbol by a chemical company who wished
14 to use the mark to identify fertilizers and pesticide
15 products.
16 Even at the reduced rate, for which I
17 represented the tribe, the opposition was a costly
18 undertaking. The Washington attorneys buried us with
19 frivolous discovery - asking us, for example, to prove
20 that the tribe exists, when the proof of the tribe's
21 existence is as readily available in Washington
22 libraries as it is anywhere, making us litigate a
23 three-day extension of time, refusing to agree to
24 sealed depositions of the elders about sensitive
25 religious subjects, and generally obstructing the
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1 progress of the opposition in every way possible,
2 making it very expensive.
3 Of course, I won every motion we wrote. But
4 there was the writing of the motion and the response
5 and the reply.
6 Right before the opposition was to be decided,
7 the trademark applicant withdrew its application.
8 The Pueblo of Zia had spent a considerable
9 amount, by its standards, to get nowhere on this issue.
10 It is simply unrealistic and shows an utter
11 lack of understanding of many of the tribes' economic
12 situations, to think that money is available to fund
13 individual trademark oppositions.
14 This alternative is simply unrealistic and not
15 available to most of the tribes.
16 Opponents cite the potential discrimination
17 against other groups whose cultural or historical
18 symbols are not similarly protected. This objection
19 demonstrates again a lack of understanding of both law
20 and history. It seems to equate the Kiwanis Club or
21 the Welsh United States citizens with Native Americans.
22 Is there Supreme Court precedent indicating
23 that other "groups" have a special sovereign status
24 within the United States?
25 Is there another "group" which occupied the
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1 United States before this country existed and had a
2 foreign government imposed upon it, on its own soil?
3 Is there another "group" from which the
4 colonizing Europeans took so much?
5 Possibly, I guess.
6 In fact, a Welsh national insignia and an
7 African official insignia are presently protected under
8 Section 1052.
9 More particularly, is there another "group"
10 that, on this soil, used some of the symbols at issue
11 in this proposed legislation long before the Trademark
12 Act existed?
13 Certainly, other racial groups have suffered
14 in this American experience. But to say that there are
15 others in a parallel situation ignores too much of the
16 history of the Native American people.
17 I think I'm going to conclude now.
18 In conclusion, I would like to quote a section
19 of the deposition of Professor Alfonso Ortiz, an
20 anthropology professor at Princeton and a member of one
21 of the pueblos of New Mexico and an anthropology
22 professor at the University of New Mexico.
23 I've included his deposition, which was taken
24 in the opposition proceeding, in some of the documents
25 and I think it would be very helpful for an
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1 understanding of some of the issues surrounding this
2 legislation.
3 At any rate, Professor Ortiz has died,
4 otherwise I'm sure he would be here today and I'm sure
5 he's probably here in spirit.
6 "I think somewhere that there has to be
7 some very clear thinking on the part of
8 American courts of law about what Indian
9 people consider their most important
10 statements of identity, their sense of
11 history, their sense of community, and
12 their sense of destiny."
13 "And the Zia sun symbol is one such
14 symbol for one tribe. Every tribe could
15 put up something like this. Too many
16 have been swept away and lost in the
17 vicissitudes of history and legal
18 wrangling and, somewhere, we have to take
19 a stand and recognize that for these
20 hallowed notions like tribal sovereignty,
21 trust, guardianship, trusteeship to mean
22 anything really substantive, we're going
23 to have to throw up the line of defense
24 and help the tribes to protect that which
25 remains and is distinctly theirs, which
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1 enables them to exist as communities with
2 pride and independence, after all.
3 That's all."
4 We here today ask for some of that very clear
5 thinking in the study the PTO conducts on this matter.
6 Thank you.
7 MR. DICKINSON: Thank you. Appreciate
8 that.
9 (Applause)
10 MR. DICKINSON: We may have a few
11 questions certainly for you specifically or maybe for
12 the panel to generally clarify some of these issues for
13 us.
14 One of the questions I have: My understanding
15 is, we have been now consistently rejecting many
16 registrations which have been sought, that include the
17 sun symbol, for several reasons.
18 Are you aware -- This is a question I actually
19 directed to the Governor awhile ago.
20 Are you aware of any that we may be
21 overlooking or that we have not been specifically
22 sensitive to?
23 MS. ROBERTA PRICE: I am not completely
24 up to snuff. Senator Bingaman's letter to the
25 Trademark Office came as a result of two Zia sun
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1 symbols that had gone on to publication.
2 And we wrote, I wrote Mr. Hampton, and the
3 Senator wrote Mr. Hampton saying, "Hello, you know, the
4 Zia sun symbol has been, you know, registered."
5 And we received a letter back saying, "You're
6 too late."
7 I have copies.
8 MR. DICKINSON: In what respect did he --
9 MS. ROBERTA PRICE: Well, because the
10 marks had gone on to publication.
11 MR. DICKINSON: I see.
12 MS. ROBERTA PRICE: And we had just -- We
13 had found out. We don't have a paralegal reviewing the
14 BNA publication of marks.
15 MR. DICKINSON: Well, my understanding
16 is, we had Zia's system sought for registration for --
17 What was the business service?
18 MS. MELTZER: On Friday, a stationery --
19 MR. DICKINSON: Computer software
20 products.
21 MS. ROBERTA PRICE: Right.
22 MR. DICKINSON: Also had the Zia or the
23 word "Zia" and the sun symbol, sought registration for
24 cocktail mixes, and both of them were rejected and are
25 now abandoned. Those are the only ones we are aware
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1 of.
2 MS. ROBERTA PRICE: Yes. I believe,
3 earlier, we were discussing one for motorcycle tourism
4 in New Mexico and one for photography.
5 MR. DICKINSON: One of the questions that
6 comes up or one of the grounds for that rejection, as I
7 understand it, was that it was in conflict with the -
8 interestingly enough - with the state flag of New
9 Mexico which is also registered as a state flag.
10 Is there some way we can resolve the issue?
11 Let me ask the broader question: When there
12 are uses - And this may not apply to the Zia symbol, I
13 mean, I have to narrow it to that - but when
14 registrations are sought and we establish a listing for
15 official insignia that include elements that are
16 included in others, how would, how should the PTO
17 proceed to sort out that question? A priority? Or
18 what is the --
19 MS. ROBERTA PRICE: You're talking about
20 two Native American tribes --
21 MR. DICKINSON: Yes.
22 MS. ROBERTA PRICE: -- registering to --
23 MR. DICKINSON: Or where a Native
24 American tribe would include a symbol in their official
25 insignia which was included in another official
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1 insignia, say, of a state or municipality or foreign
2 country.
3 MS. ROBERTA PRICE: This is probably -- I
4 guess my logical reaction would be to have the two
5 tribes discuss this and I think they would prefer to
6 discuss this matter within themselves.
7 And probably Mr. Pino, who will talk later,
8 will discuss it.
9 But it seems to me the tribes determining and
10 resolving this issue between themselves without the
11 Patent and Trademark Office having to enter into the
12 discussion, as far as those two tribes, would be a good
13 solution.
14 MR. DAVID MIELKE: Yeah, I would agree
15 with that. You're talking about if we had two
16 conflicting tribes, as opposed to --
17 MR. DICKINSON: (Nods head)
18 MR. DAVID MIELKE: Okay. Yeah, I agree.
19 MR. DICKINSON: Or a conflict between
20 something that was either a registered trademark, I'd
21 say, or more likely or more possibly, rather, something
22 that was the registered emblem of a foreign country or
23 of the United States or, for example, to include the
24 symbol of the United States in a tribal insignia, --
25 MS. ROBERTA PRICE: But --
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1 MR. DICKINSON: -- kind of like a or sort
2 of like a --
3 MR. DAVID MIELKE: Yeah.
4 MS. ROBERTA PRICE: I can't imagine
5 either situation coming up but I'd suggest that
6 probably the two governments, the two sovereigns should
7 be able to resolve those kind of questions.
8 MR. DICKINSON: Our understanding is that
9 we would also register stylized versions of flags and
10 symbols of our country and other countries, where you
11 can register a stylized version of the U.S. flag.
12 I mean how much -- how broad would you see the
13 protection that needs to be afforded under this?
14 Should it be different than it is? Or should it be the
15 same as it is? - with regard to flags and the official
16 insignia of --
17 MS. ROBERTA PRICE: Well, I guess, and
18 I'm talking off the top of my head right now, so, it
19 seems to me that the people who register stylized
20 American flags are Americans who share some collective
21 identity with the American flag, so...
22 MR. DICKINSON: I don't know whether
23 that's the case or not. We have foreign nationals that
24 register marks, as well, all the time, so...
25 MS. ROBERTA PRICE: Right. Well, I know
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1 you do. But, nevertheless, I'm willing to bet you that
2 a lot of those American flags are owned by American
3 companies.
4 And so in a certain sense, the collective
5 identity of the Americans are represented in those
6 trademark symbols.
7 I think there's a different situation by
8 stylized Zia symbols. There is still the conscious
9 suggestion of affiliation or connection with the tribe,
10 which is at the root of this problem.
11 And as you know, the term under the Trademark
12 Act is "substantial similarity." And I know if I had a
13 Nike mark and someone else did a stylized Nike mark and
14 wanted to register it, I don't believe that Nike would
15 think it was okay.
16 MR. DICKINSON: Okay.
17 MS. ROBERTA PRICE: Do you?
18 MR. DICKINSON: No, in opposing,
19 absolutely, you did I think what you understood needs
20 to be done in the circumstances you mentioned a couple
21 of minutes ago.
22 Maybe this is -- Let me ask this question
23 also: My understanding is we're dealing with official
24 insignia here; though some have raised the question of
25 word marks as well.
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1 Does the Zia nation take a position with
2 regard to word marks as opposed to an insignia? You
3 indicated your insignia was the design element here.
4 MS. ROBERTA PRICE: Yes. Yes. I think
5 Peter Pino, who will talk later, can talk about this
6 more.
7 But, initially, we are talking about this
8 particular legislation concerning Native American
9 insignia and, certainly, we would not like to come
10 across as: This is the only important thing to the
11 tribes.
12 And, certainly, under the existing trademark,
13 false association with a group of people is incorrect.
14 But we understand that this is a very limited
15 amendment to the Trademark Act and I don't think we
16 have to pass on whether -- I mean I think it's obvious
17 that the Pueblo of Zia doesn't like the idea of Zia
18 Porta-Potties.
19 MR. DICKINSON: Zia Porta-Pottie; using
20 the word as opposed to the official insignia.
21 MS. ROBERTA PRICE: Yes.
22 MR. DAVID MIELKE: Correct.
23 MR. DICKINSON: Has Zia sought to
24 trademark the word "Zia"?
25 MS. ROBERTA PRICE: The Pueblo Zia does
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1 not, because of the sacred nature of the symbol,
2 commercial use of it is, is -- It's still something
3 that many of some of the elders find offensive. And,
4 so, use and commerce being one of the requirements...
5 MR. DICKINSON: Could we maybe address
6 more broadly the question of retroactivity? I have a
7 question that's come up as to whether or not -- How to
8 deal with that issue.
9 And as Ms. Boulware pointed out or the Senator
10 pointed out, it's a very sensitive question. It might
11 not be resolvable at this point and may require us to
12 get through all these hearings. But one of the goals
13 we have of the hearings I think is to try to flesh out
14 some of the aspects of the issue.
15 Some have raised the question that
16 retroactivity might possibly be a taking, for example,
17 that some registrations may have already occurred and
18 those registrations would constitute intellectual
19 property and therefore a cancellation that might occur,
20 as a function of this proceeding, might possibly take.
21 I don't know.
22 Again, the question I'm asking is: Can you
23 address the question of retroactivity? Can you address
24 the question of whether or not it --
25 MS. ROBERTA PRICE: Well, I'll go first.
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1 MR. DICKINSON: -- might not take --
2 MR. DAVID MIELKE: Yeah.
3 MS. ROBERTA PRICE: Well, in this
4 situation, we have a taking on top of a taking. We
5 have a taking of a Native American symbol and I
6 believe --
7 MR. DICKINSON: I was addressing the
8 U.S. Constitution --
9 MS. ROBERTA PRICE: Right, I understand
10 the U.S. Constitution, but I believe that it's a
11 violation of the U.S. Constitution for the Federal
12 Trademark Office to have permitted the taking by
13 businesses of Native American symbols.
14 MR. DICKINSON: I understand that, but
15 I'm still asking whether we have any examples of
16 registrations which will support that concern?
17 MS. ROBERTA PRICE: Excuse me?
18 MR. DICKINSON: We have not regis-- It's
19 my understanding we have not registered any marks that
20 include the official insignia of the Zia; is that
21 right?
22 MS. ROBERTA PRICE: Right. Right. Well,
23 I'm not sure what the status is of the motorcycle tours
24 and the photographs.
25 MS. MELTZER: I think it's still pending.
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1 I'm not sure either.
2 MS. ROBERTA PRICE: Okay.
3 MS. MELTZER: I'm not certain.
4 MS. ROBERTA PRICE: And I guess, you
5 know, there's always a balancing of equities. You
6 know, this particular legislation doesn't prevent other
7 people from using symbols that they've been using.
8 It just prevents them from having the approval
9 of the federal government and I'm sure you understand
10 that.
11 So I'm not sure what their registration would
12 be taking.
13 MR. DICKINSON: Ms. Boulware, could you
14 shed any light on this issue at all, any additionally
15 light?
16 MS. MARGARET A. BOULWARE: The only
17 additional light that I'd like to shed is, I don't want
18 to be more problematical on this issue, but the AIPLA,
19 first of all, we didn't know exactly what we were
20 talking about because we didn't know what the insignia
21 were.
22 We didn't know whether there were going to be
23 literally thousands of insignia that might be just
24 designs or the official insignia that we've heard of
25 today.
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1 So understanding that it's a limited universe,
2 so-to-speak, is comforting because I think that's what
3 it should be. It should be legitimate insignia.
4 The AIPLA does not support retroactive
5 cancellation of legitimate marks. There may be some
6 marks that are subject to cancellation because they
7 should not have been legitimately registered in the
8 first place. But we are not in favor of retroactively
9 canceling legitimate marks.
10 We'd also like to recognize that federal
11 registration owners do have to file Use Affidavits and
12 that for any of the marks that are problematical, I
13 think that the Patent and Trademark Office should
14 review those Use Affidavits very carefully to make sure
15 that these people are legitimately using these
16 trademarks and have legitimate registration and also in
17 the renewals.
18 So, that's the little bit of light that I can
19 shed on that.
20 MR. DICKINSON: I would point out, and
21 just to shed a little more light on that question, we
22 have indeed recently a very prominent example of
23 cancellation that occurred where our Trademark Trial
24 Appeal Board, of which I'm actually a statutory member,
25 cancelled a registration to a professional football
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1 team which used a mark that was found to be offensive
2 under Section 2A of the Lanham Act to Native Americans.
3 That was a decision which was very thoroughly
4 considered and was supported very strongly under the
5 law as it was decided.
6 This question of international obligation has
7 been raised by some, particularly the International
8 Trademark Association, and their written testimonies,
9 there was concern about the Paris Convention, the fact
10 of this -- You indicated that that may not have been an
11 issue when the Red Cross or other specific statutes
12 were passed. I don't know whether that's the case or
13 not.
14 But leaving that particular look-at aside, can
15 you shed any light of the substantive question of
16 whether or not there's a concern about whether indeed
17 it does or does not implicate the Paris Convention?
18 MS. ROBERTA PRICE: I would have to look
19 at the issue a little more thoroughly than talking off
20 the top of my head today.
21 MR. DICKINSON: Meg?
22 MS. MARGARET A. BOULWARE: We don't
23 believe it violates the Paris Convention.
24 (Laughter)
25 MS. ROBERTA PRICE: I mean I don't
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1 believe it does either but, you know, I guess I'm -- I,
2 I can't see --
3 MR. DICKINSON: I've read the INTA
4 testimony in that regard.
5 MS. MARGARET A. BOULWARE: Yeah. We may
6 disagree with INTA on that.
7 MR. DICKINSON: Would you see a need for
8 any of the more traditional registration-type
9 mechanisms that we use in the office, in this context,
10 if we were to establish an official registry of
11 official insignia?
12 For example, opposition. Would you, could you
13 envision a circumstance where they would need to be --
14 where official insignia would need to be published in
15 some way so that others, perhaps other Native American
16 tribes could oppose or send in material that would in
17 some way question the official insignia registration?
18 MS. ROBERTA PRICE: For other tribes
19 alone, are you saying? Within the tribes themselves?
20 MR. DICKINSON: Let me broaden the
21 question out. Do you see any circum-- Do you envision
22 any circumstances when any -- when there would be an
23 opposition-type procedure or even a cancellation-type
24 procedure for registrations on a registry of this sort
25 or of this type?
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1 MS. ROBERTA PRICE: Well, perhaps this is
2 not the answer you want, but considering the culture of
3 the Native American people, I think any kind of
4 opposition, as you stated, could be better worked out,
5 for example, within some office of the Department of
6 Indian Affairs or the Department of the Interior.
7 I think that, generally, a negotiation and
8 talking, as opposed to an official opposition
9 proceeding, would be much more appropriate.
10 MR. DICKINSON: Well, we -- Well, there's
11 no answer I wanted or didn't want, --
12 MS. ROBERTA PRICE: Right, but I see --
13 MR. DICKINSON: -- I'm just trying to
14 make sure that we --
15 MS. ROBERTA PRICE: I see, I believe, and
16 perhaps the representatives of the pueblo who have
17 talked already could testify, but I believe it would be
18 much less costly and probably much more efficient and
19 definitely quicker for representatives of two pueblos
20 or two tribes to talk amongst themselves about any kind
21 of conflict.
22 MR. DAVID MIELKE: There are two types of
23 symbols, I think.
24 You have the more modern created ones that
25 have been designed and then you have ones that are
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1 historical and cultural in origin.
2 And I could see that maybe you'd have an issue
3 if it was a newly created or design symbol that other
4 tribes or other holders of registered marks would want
5 to have input, you know, for; you know, take the worst
6 case, if a tribe decided it wanted the Nike logo as its
7 tribal symbol.
8 MS. ROBERTA PRICE: But I don't think
9 that's going to happen.
10 MR. DAVID MIELKE: That's not going to
11 happen but, I mean, you know, --
12 (Laughter)
13 MS. ROBERTA PRICE: I mean it's a number
14 of the hypotheticals, which I, I don't appear -- want
15 to appear sanguine, or sanguine? Which is it?
16 [pronunciations] I just don't think those problems are
17 going to exist in this context.
18 MR. DICKINSON: What if a tribal nation
19 sought to register a mark or an insignia, rather, that
20 included a red cross?
21 MS. ROBERTA PRICE: Well, I just don't
22 believe that any tribe would want to use the symbol. I
23 mean not that it has anything against it. I don't
24 believe that it would want to use the red cross.
25 And if it was a newly-done symbol that had
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1 just been created, the American Red Cross could
2 obviously have a problem with it, but I don't think
3 that that will happen.
4 MR. DICKINSON: Thank you. My goal is
5 not to put you on the spot. It's really to flesh out
6 these issues --
7 MS. ROBERTA PRICE: Right.
8 MR. DICKINSON: -- and we discussed them
9 in our office --
10 MS. ROBERTA PRICE: Right.
11 MR. DICKINSON: -- and we wanted your
12 best counsel --
13 MS. ROBERTA PRICE: Right.
14 MR. DICKINSON: -- and your best ideas as
15 to how we can resolve these --
16 MS. ROBERTA PRICE: Right, and I don't
17 mean to respond by saying, "No, that's not going to
18 happen" --
19 MR. DICKINSON: Right.
20 MS. ROBERTA PRICE: -- but within the
21 realm of reality, I guess it could happen and then
22 someone who had a newly-created symbol using the
23 American Red Cross who had no justification in past
24 cultural -- I mean the cross is -- Well, anyway, that
25 could be something that, you know, the American Red
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1 Cross could object to.
2 MR. DICKINSON: Can I return to the
3 question of the word marks? Some have raised this
4 specter.
5 We've had, for example, the counsel for the
6 Oneida flatware has raised the question of whether word
7 marks that are the, I'll take it on assumption, the
8 names of tribes in the United States - would or would
9 not be protectable in this context we're talking about.
10 And they raise the specter and the concern
11 that marks which they have used for a substantial
12 period of time on goods and services would be
13 implicated with this question.
14 Do you have any thoughts on whether or not we
15 should be dealing with words, marks in this way, or
16 should we stick to official insignia?
17 MS. ROBERTA PRICE: Well, it certainly
18 would be a lot easier if you stuck with official
19 insignia at this point in time.
20 I don't think I should be able -- should speak
21 for the Oneida people or the Mohawk people.
22 I'd bet that if you inquired and sent the
23 comments of Oneida Sterling and Mohawk Carpet to them,
24 that they would have a response.
25 MR. DAVID MIELKE: And probably the
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1 people from Zia should address the issue; I mean,
2 obviously, the worse case is where they use the sun
3 symbol along with the word "Zia". Not all businesses
4 use that.
5 Some are Zia process servers. I think there's
6 one that uses both the mark and the word. Others will
7 just use the word. Others will just use the mark.
8 MS. ROBERTA PRICE: And I'm not sure any
9 of those people have applied for a federal registration
10 so it's a worry definitely for us and the tribe but it
11 may not be a worry for you.
12 MR. DICKINSON: Well, I appreciate that.
13 Are there any questions, any further questions from the
14 panelists, as well?
15 MS. MELTZER: No.
16 MR. DICKINSON: Thank you very much. We
17 appreciate you taking the time and you giving us those
18 good thoughts. They'll be extremely useful to us as we
19 go through our deliberations, and they clarified some
20 issues for me significantly and I appreciate it very
21 much.
22 Is Mr. Pino here now? And could we -- I need
23 to do something in the back of the room briefly, but
24 would you mind coming and testifying now? Or would you
25 prefer to go at the 11:30 hour that you were assigned?
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1 MR. PETER PINO: I prefer to go with the
2 elders from the Pueblo and with the youth from the
3 Pueblo. They're coming up.
4 MR. DICKINSON: All right. Why don't I
5 call Ms. Warledo. Is she here? Ms. Warledo?
6 MS. GERALDINE WARLEDO: Yes.
7 MR. DICKINSON: Would you mind coming
8 forward, and Mr. Panteah, would you mind coming
9 forward? I'll excuse myself for just a brief moment.
10 MS. ELEANOR MELTZER: By the way, thank
11 you for being so flexible with the schedule, so thank
12 you very much.
13 Ms. Warledo, would you like to start your
14 remarks?
15 MS. GERALDINE WARLEDO: Yes. I'm
16 Geraldine Warledo with the Cheyenne and Arapaho Tribe.
17 I'm an elected official. I started as a
18 Sergeant-at-Arms.
19 Our tribe consists of 11,000 and approximately
20 200 tribal members. In Oklahoma, we have approximately
21 7500. Those rest of the tribal members are, you know,
22 in other places. We service eight counties in
23 Oklahoma.
24 Today, we have eight business committee
25 members. At one time we used to have 14 but the Tribal
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1 Constitution was revised back in the Seventies, so
2 today, we have eight Tribal Council members. We have
3 four Cheyennes and four Arapahos.
4 I would like to do a little bit of a
5 show-and-tell of our flag. Our flag's been in
6 existence for many years. Our flag, in the background
7 is the Oklahoma.
8 We had a symbol of the Oklahoma flag here
9 because at one time, it was the Oklahoma -- It was the
10 Indian state.
11 We have the arrows which consist of our
12 tribes; right now they're at peace, so that's why
13 they're facing down.
14 The pipe resembles the Arapahos.
15 We have the tepee which represents the
16 Cheyenne, our ceremony, and our Native American Church.
17 In the background, we have the three crosses
18 which represents our Veterans which they had served a
19 war - fought in World War II and the Korean War.
20 We have revised our, our -- or, these feathers
21 right here represents the 14 Council Members that we
22 were at one time. But, today, we have a new flag. It
23 has four stars on each side which represents the
24 Business Committee as of today.
25 We have the Southern Cheyenne and Arapaho
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1 Tribe on it because during years past or the Medicine
2 Lodge Treaty back in 1867, we were all pushed to other
3 lands and so, some of them, we still have the northern
4 Arapahos and the Northern Cheyennes; but we had to move
5 to Oklahoma, so that's why we're called the Southern
6 Cheyenne and Arapaho Tribe.
7 Right now, we have our tribe, we serve -- we
8 have 14 programs that we serve our people with. We're
9 -- I just feel like that all Indian people are unique
10 because we have dual citizenship of the United States
11 and of our sovereign nations.
12 I really don't have really much more to say.
13 MS. MELTZER: Thank you very much --
14 MS. GERALDINE WARLEDO: Uh-huh.
15 MS. MELTZER: -- for explaining that now
16 and for being here today. We're very grateful.
17 MS. GERALDINE WARLEDO: Okay. Thank you.
18 MS. MELTZER: Mr. Panteah?
19 MR. LOREN PANTEAH: Okay. Thank you. I
20 would like to thank the Patent and Trademark Commission
21 and Mr. Pete Domenici; Mr. Domenici for providing the
22 opportunity for tribes and individuals to express their
23 testimony in regards to trademarks.
24 My name is Loren Panteah and I'm here as
25 representing myself as a Zuni Tribal Member and as a
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1 member of the Zuni Cultural Arts Council.
2 And before I begin, I would like to request
3 that I submit my written testimony at a later date
4 because we have been having some religious activity
5 back home for the last several days on that. I have
6 not had time to prepare a written testimony, so if I
7 could submit my written testimony within a couple of
8 weeks, if that's okay. But I will --
9 MS. MELTZER: Oh, Mr. Panteah, thank you
10 for mentioning that.
11 And just to remind everybody, it certainly is
12 acceptable to submit written testimony up to and
13 including July 30th, or if anybody else has written
14 comments they'd like to provide, we will accept them
15 through July 30th.
16 MR. LOREN PANTEAH: Okay. Thank you.
17 I know that it is appropriate that as far as
18 what the hearing is about today is on official
19 insignias and because I am representing myself, our
20 Honorable Governor Bowekaty, he has represented the
21 tribe about 10:00 this morning and it is appropriate
22 that official tribal representatives provide testimony
23 at this hearing.
24 But my primary reason and efforts in
25 requesting to testify at this hearing is because of my
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1 personal and my persistent effort in my overall
2 livelihood.
3 I am a Zuni jeweler and, as I stated, I belong
4 to the Zuni Cultural Arts Council and my effort has
5 been initiated since about 1996 in trying to register a
6 trademark that would provide product authenticity.
7 As you may or may not know, Zuni is
8 well-renowned for its arts and crafts and there's a
9 real serious impact to our livelihoods. I would say
10 that roughly between 60 and 80 percent of our tribal
11 members rely on their arts and crafts for their
12 livelihood.
13 And, so, it is a very serious problem for us
14 and, so, my effort is to provide at least some
15 awareness that there is a direct linkage in registering
16 our show insignias and to include symbols, variations
17 of names, designs, phrases, symbols, or some other,
18 some other things that are very distinguishable and
19 exclusive to tribes.
20 And so I wanted to provide this testimony that
21 supports any type of legislation to at least provide
22 more opportunity for tribes to register their official
23 insignias.
24 I think one of the gentlemen had stated that,
25 and also my or our Governor Bowekaty had stated that,
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1 when there's any type of legislation, that tribes
2 should be consulted and I do feel that tribes should be
3 consulted.
4 And in my work experience, I'm not here
5 representing the tribe, but I do work for the Pueblo of
6 Zuni under the Zuni Heritage Preservation Office and I
7 have found out, through experience and reading up on
8 the various legislations that have to be passed, that
9 these federal laws or regulations are implemented
10 without ever consultation with tribes.
11 My assessment of such passed laws, of past
12 laws, that it seems like it's a one size fits all; but
13 there is very cultural diversity among the tribes and
14 that's why it makes it hard for tribes to respond or
15 provide input adequately and, also, the lack of, lack
16 of knowledge of these various federal laws.
17 So, in particular, with trying to do something
18 in regards to trademarks, tribes should be consulted so
19 that their input can be provided and so that it doesn't
20 provide any prohibitive efforts in the future as far as
21 registering trademarks whether they be official
22 insignias or symbols or other designs.
23 Under what definition that I have from a
24 Patent and Trademark attorney is that it is either a
25 word, phrase, symbol, design, or a combination of
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1 words, phrases, symbols or designs, which identifies
2 and distinguishes the source of the goods or services
3 of one party from those of others.
4 So, in a sense, tribes who want to officially
5 register their trademark as official insignias should
6 include other symbols, variations of names, so,
7 variations of names that identifies their tribes
8 exclusively.
9 As a jeweler, my intent this year is to apply
10 for my own trademark that would authenticate my
11 product, my handmade jewelry.
12 But my concern is, if I am to apply for a
13 trademark and I make a decision in the name of a Zuni
14 word as "Zuni" and apply for a trademark, that I will
15 be denied a trademark because there's already other
16 companies that have used the Zuni symbol or Zuni name
17 and that I will be denied a trademark.
18 And it's not right that other companies from
19 Texas or California that are not members of the tribe
20 be given a trademark and a tribal member be denied a
21 trademark.
22 I have, as I stated earlier, that I wish to
23 submit my written testimony, but I will just show you
24 some examples of what is out there that has been
25 registered and there's also a list here from another
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1 set of information and I think Governor Bowekaty
2 submitted this as well, but what - from based on my own
3 research and other information submitted to me, there's
4 a total of 14 that is registered under or with the
5 combination of Zuni names so it will be disturbing if I
6 were to submit my own trademark and be denied a
7 trademark.
8 And another effort is that I represent the
9 Zuni Cultural Arts Council and we're taking the same
10 initiative to apply for an arts council trademark and
11 one of our efforts is to have support from our
12 governing body that endorses our trademark.
13 And, so, I do feel that registering official
14 trademarks has a direct linkage to other symbols or
15 variations of names of the tribe and or they are
16 exclusive to individual tribes and so, my, I just hope
17 that my, our collective testimony with Governor
18 Bowekaty will do that, you know, our awareness and our
19 information at least will have or provide direction in
20 what is best, what is the best way to go do the process
21 of trademark laws and regulations.
22 And I think one of the, one of the things that
23 needs to be closely looked at is the Indian Arts and
24 Crafts Act, you know. There's a provision in the Act
25 that endorses, empowers the Indian Arts and Crafts
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1 Board that has the empowerment to register trademarks
2 for tribes.
3 And so I think that should really be looked at
4 as far as how those, you know, those regulations will
5 apply or whatever new regulations that are being
6 proposed are to be implemented, that these associated
7 regulations or whatever-laws that pertains to tribes
8 that -- are looked at closely.
9 And, also, I wanted to also make you aware
10 that in the early 1990s, under our Former Governor
11 Robert Lewis, the late Governor Robert Lewis, he had
12 made an effort to inquire through the Patent and
13 Trademark Office for assistance in product
14 authenticity.
15 And a response came from the Patent and
16 Trademark Office from Kathryn D. Erskine, Managing
17 Attorney, that was requesting from the tribe,
18 requesting them from the tribe "All variations of your
19 tribal name, including variations in your own language"
20 and "All flags, seals, or other symbols which
21 exclusively identify your Nation and sacred symbols"
22 and it states, "if you are willing to make them public,
23 and your reasons for why these symbols should not be
24 registered to non-Indians."
25 So, I think that with, with this, this concept
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1 or idea back then, that it should still be one of the
2 efforts of the Patent and Trademark Office to contact
3 the tribes as far as the official insignias and
4 registering other symbols, variations of names.
5 MR. DICKINSON: Do you need to summarize
6 somewhat, Mr. Panteah?
7 MR. LOREN PANTEAH: Okay. In concluding,
8 like I said, my personal effort is because of my
9 livelihood. I am a Zuni jeweler and a member of the
10 Zuni Arts Council and on behalf of fellow artisans,
11 Zuni artisans, that registering official -- not only
12 official insignias but variations of names, symbols,
13 should be included as part of this new effort to
14 register for trademarks; and that the Indian Arts and
15 Crafts Act should be closely looked into as far as the
16 Indian Arts and Crafts Board in the section where it
17 pertains to the Board being empowered to register
18 trademarks for tribes, individuals or members of tribal
19 organizations.
20 Thank you.
21 MR. DICKINSON: Thank you. Any questions
22 from Mr. Panteah? Thank you very much. We appreciate
23 it.
24 Mr. Peter Pino, Isidro Pino and Sabrina are
25 going to testify as a group?
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1 MR. PETER PINO: What time is it? It's
2 11:48. Aren't we going to take a lunch break at 12:00?
3 MR. DICKINSON: I have 11:35. We could
4 break now.
5 My concern is that I have to go on to other
6 government business and won't be available after for
7 about the next 15 minutes.
8 So, because your testimony had been referenced
9 earlier, I wanted to make myself available to you and
10 I'd hoped they'd informed you directly.
11 I will say, though, the rest of the panel will
12 be here this afternoon and we will continue to go
13 through all the witnesses plus anyone else who wishes
14 to testify and that will be in the record and it will
15 be thoroughly considered.
16 MR. PETER PINO: Well, thank you,
17 Chairman. Again, my name is Peter Pino. I'm the
18 Tribal Administrator for the Pueblo of Zia and when we
19 were delegated this task of protecting the intellectual
20 property and the cultural property of the community
21 some years ago, I hung my head and I felt that it was
22 almost an impossible task and I'm glad that this issue
23 has come to this point.
24 But before I address you as a committee, I owe
25 it to those elders that had the foresight to give the
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1 instructions to the Governor and his staff to pursue
2 this property; and in respect to their spirits, please
3 bear with me. I need to address those that have gone
4 before us into the next world so that they can be part
5 of the process here today.
6 * * *
7 [11:50 to 11:52, ZIA PRAYER]
8 * * *
9 MR. PETER PINO: I'm going to deviate
10 somewhat from my written testimony in hopes that I can
11 respond to some of the questions that you had earlier
12 and some of the comments that had been made earlier by
13 other individuals.
14 The Pueblo of Zia is located 36 miles
15 northwest of Albuquerque.
16 I have served in other offices at the Pueblo -
17 positions that are appointed on an annual basis by the
18 religious leader of the community, the "traik'atsi," in
19 the Spanish term "cacique."
20 I have served as a Lieutenant War Chief for
21 two terms, and War Chief for one term.
22 I come to give testimony concerning the
23 amendment of the Trademark Act and to prohibit
24 registration of the pueblo or official insignia of
25 Native American tribes.
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1 The Zia sun symbol is used by the religious
2 societies, and to testify today is Isidro Pino who's a
3 member of one of the societies. But this symbol
4 represents the collective identity of our people.
5 The symbol has been used by the religious
6 societies since time immemorial. It represents Father
7 Sun and Father Moon, the givers of light, day and
8 night.
9 The Zia people settled in this area around
10 1100 to 1200 A.D.
11 In the Fifties, the Pueblo allowed an
12 archeologist named Florence Ellis Hawley, because they
13 felt that this was the only way that they could
14 preserve some of the informations that were fair, and
15 Florence Ellis Hawley worked under the guidance of one
16 of the religious society members of the time - Ambrosia
17 Pino - to excavate an ash pile within the Pueblo.
18 They identified all the different artifacts as
19 they went down this trench. The items at the bottom of
20 the ash pile dated around 1200 A.D. That's the
21 established date of the Pueblo of Zia. They were in
22 that area long before that.
23 The origin of the Zia people, however, was in
24 the underground, three levels down from our current
25 level. And when I say "time immemorial", I'm going
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1 back to the first level - the Yellow World, and that's
2 where the Zia people began.
3 The religious societies were the givers of
4 life and the doctors of our community. They're
5 responsible for the health and welfare of the
6 community. They had the responsibility long before
7 modern medicine developed.
8 The religious societies called on those
9 spiritual powers of the sun, the moon, the earth -
10 symbolized by the Zia sun symbol - to assure the health
11 and welfare of the community. They continue to provide
12 that function for the tribe.
13 When the Spaniards came into this region, the
14 population of Zia numbered 15,000 people. The people
15 of Zia were a nation and the symbol was with the people
16 long before that.
17 During war time, when the Zia people were
18 battling the Spaniards and other people who came into
19 the area, there was a headdress that was made by the
20 Zia people and the other tribes recognized that head-
21 dress. Within that design of the headdress was painted
22 the Zia sun symbol.
23 I am recalling a story that I heard from the
24 now-deceased elder of our community - Jose Antonio
25 Lucero - who started the fire fighting crew for Zia
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1 Pueblo in the 1950s after he came back from World War
2 II.
3 He went to the leaders of the two sister
4 societies within the Pueblo - the Eagle Society, the
5 Flint Society. He asked permission to use the symbol.
6 The head of the Flint Society, Ambrosia Pino,
7 and the head of the Eagle Society, Jose Vigil Medina,
8 sat in counsel and, after much dialogue, gave Jose
9 Antonio Lucero permission to use the symbol on the fire
10 fighting helmets.
11 We will be representing the pictures of those
12 helmets as part of our testimony. So those helmets
13 were worn by the Zia people that fought forest fires
14 throughout the United States for 20-plus years.
15 It is with the permission of the elders that
16 we use the sun symbol on the tribal letterhead, our
17 tribal buildings, our cards. We have used both, the
18 three-pronged and the four-pronged symbols as official
19 insignia, according to the elders' direction.
20 Among the documents we will add to our
21 testimony is a copy of the Tribal Resolution regarding
22 the Zia sun symbol, both three- and four-pronged, as
23 our official insignia.
24 At this time, I would like to read that
25 Resolution [APRIL 15, 1999] for the record:
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1 "Resolution Number 99-09.
2 "WHEREAS, the Zia sun symbol was
3 adopted by the people of the Pueblo of
4 Zia centuries ago, and the three-pronged
5 and four-pronged sun symbols have been
6 and continue to be of great religious and
7 traditional significance to the Pueblo;
8 and,
9 "WHEREAS, the Pueblo of Zia also uses the
10 Zia sun symbol as the official insignia
11 of its tribal government and has done so
12 for decades; and,
13 "WHEREAS, such religious, traditional and
14 official use of the Zia sun symbol has
15 never been formally recognized by the
16 Tribal Council, but it is desirable to do
17 so now in order to facilitate the
18 registration of the Zia sun symbol with
19 the United States Patent and Trademark
20 Office.
21 "NOW, THEREFORE, BE IT RESOLVED by the
22 Tribal Council of the Pueblo of Zia that
23 the Tribal Council hereby formally and
24 officially acknowledges and recognizes
25 that the Zia sun symbol has been and is
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1 the official tribal insignia of the
2 government of the Pueblo of Zia, as well
3 as an exceptionally significant religious
4 and cultural symbol to the Pueblo.
5 "BE IT FURTHER RESOLVED that the Governor
6 take such actions as may be required to
7 seek formal recognition and protection
8 of the symbol, both in its religious and
9 traditional use, as well as the official
10 insignia of the government of the Pueblo
11 of Zia."
12 It's certified by the Pueblo Governor, Amadeo
13 Shije, and the Pueblo Secretary attests the said
14 Resolution and we gave you a copy earlier and we'll
15 submit that in the form of a formal file that you can
16 use as part of your record.
17 I will now talk about New Mexico's use of the
18 Zia sun symbol on the New Mexico flag. It's already
19 been said that in 1925, the Daughters of the American
20 Revolution had a contest for the design of the New
21 Mexico state flag.
22 An individual in Santa Fe, Dr. Harry Mera, saw
23 the ceremonial vase at the Museum of Fine Arts in Santa
24 Fe. We know it was a ceremonial vase, because only
25 religious ceremonial vases could use the Zia sun
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1 symbol. We know that the only way the vase would have
2 left the Pueblo was if it was stolen.
3 Dr. Mera used essentially that symbol on his
4 entry for the flag design. The non-Indian people voted
5 for his design and won the contest.
6 There was a gentleman earlier indicating, by
7 using this as a visual aid, that the two symbols are
8 not similar, that the two symbols are not one and the
9 same.
10 I will use us, as examples, whether we're of
11 the same people or not: The committee, I see that
12 you're from the mainstream society, you do not look all
13 the same. Some are, your hair is receding; some are
14 light-haired; some, the hair is turning white, but I
15 recognize you as Caucasian and there may be some mixed
16 blood in there somewhere.
17 (Laughter)
18 MR. DICKINSON: Specifically American.
19 MR. PETER PINO: And essentially you are
20 Americans and you are Americans, I sit before you with
21 short hair, the Governor sits before you with long
22 hair, our elder sits here with his hair tied in a bun,
23 and the youngest member of this group that's testifying
24 before you has long hair.
25 My point is that we are not all the same but
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1 we are recognizable as a group of people and, this,
2 [Zia] I submit, is essentially recognizing that that's
3 the sun symbol. I see no difference.
4 I am told that I have five more minutes, and I
5 don't know whether Isidro and Sabrina are going to be
6 given time, after my presentation. But I felt that I
7 could pretty much take the entire 25 minutes between
8 the three of us and essentially articulate what needs
9 to be articulated.
10 So if you would bear with me and if you --
11 MR. DICKINSON: May I suggest?
12 MR. PETER PINO: Yes.
13 MR. DICKINSON: We can return after
14 lunch. My only concern is, I do have to leave. I
15 don't have much time.
16 MR. PETER PINO: Okay.
17 MR. DICKINSON: And I would like to ask
18 you a few questions but we can certainly -- You'd get
19 the entire 45 minutes and we will just make sure that
20 we --
21 MR. PETER PINO: Okay.
22 MR. DICKINSON: -- are available to you
23 after lunch.
24 MR. PETER PINO: Maybe what we can do is,
25 after my presentation, we can stand for questions and
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1 then Isidro and Sabrina can speak after lunch here.
2 And, certainly, Isidro and the Governor and
3 myself can respond to any questions that the committee
4 may have at that time.
5 COURT REPORTER: Excuse me. Could I stop
6 you all right now? I need to have a break because I
7 need to change paper.
8 (12:04, brief break while Court Reporter
9 reloads Stenograph paper)
10 MR. DICKINSON: Sorry. Thank you. You
11 ready, Ms. Macias?
12 COURT REPORTER: Yes, sir.
13 MR. DICKINSON: You may proceed.
14 MR. PETER PINO: Mr. Chairman and members
15 of the committee, we submitted the documentation and we
16 presented that to you.
17 And in the essence of time and you hearing and
18 maybe you having specific questions, I will for now
19 conclude my remarks and we'll continue it after lunch,
20 so we're ready for questions now.
21 MR. DICKINSON: I appreciate that, Mr.
22 Pino. Let me ask you, I'd asked you previously: Have
23 you had, or, will you seek to register one of the
24 insignia as a trademark in our office, is that right?,
25 that's currently under question?
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1 MR. PETER PINO: We feel that that's the
2 only alternative we have at this point in time because,
3 as stated earlier, we do not have the resources, funds
4 and humans to essentially oppose every request that is
5 made to register that symbol.
6 MR. DICKINSON: Just as an aside, you
7 might be interested, you know, you may register on-line
8 now, costs you 245 bucks; it'll take credit cards
9 and --
10 (Laughter)
11 MR. DICKINSON: -- when you get in there,
12 in that new system, you might want to tell your lawyer
13 about it, look for a good system, or take advantage of
14 it.
15 (Laughter)
16 MR. DICKINSON: There are several
17 variations in the design, right? I wanted to maybe ask
18 about some of the nature of those variations and what
19 you would believe the breadth of the protection, with
20 regard to the official insignia, that you think would
21 be justifiable?
22 MR. PETER PINO: The three-pronged that
23 you see in the ceremonial vase is a religious symbol.
24 And when I stated earlier that there was
25 elders from the community that are now in the next
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1 world, that they came to us, requesting that we take
2 this issue on and protect the property of the pueblo,
3 they indicated that that is the religious symbol of the
4 religious societies.
5 The symbol with the four-pronged is also
6 recognized as a Zia sun symbol but they also, the
7 elders, recognize that that's the symbol that the state
8 uses and that's readily more widely used within the
9 mainstream.
10 And they indicated to us that the one that we
11 should use in our stationery is the four-pronged and
12 that with the submittal of our stationery, you'll
13 recognize that there's some three-pronged and some
14 four-pronged.
15 Adhering to the wishes of the elders, we have
16 changed our letterhead from the three-pronged to the
17 four-pronged and essentially we instructed the tribal
18 office to utilize the four-pronged more on the business
19 side, but essentially we would want to register both,
20 both symbols.
21 MR. DICKINSON: I do need to go, I'm
22 afraid, but I'll let my colleagues continue to
23 question. I appreciate your testimony today very much
24 and the testimony of all of your colleagues.
25 Speaking on behalf of the office, I want to
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1 thank everyone who is here today from all the tribes,
2 from Senator Bingaman and Congressman Udall.
3 It has been extremely enlightening for us. I
4 know it has been personally very enlightening for me
5 and I think being able to do it here face to face in
6 New Mexico has been one of the great advantages of this
7 hearing.
8 So I want to thank everyone for their
9 hospitality and their good testimony. We definitely
10 will take all of this testimony under very thorough
11 consideration.
12 Thank you very much.
13 MR. PETER PINO: Thank you.
14 (Applause. 12:08)
15 MS. MELTZER: Before we break for lunch,
16 I just have one quick question.
17 In previous testimony, Mr. Panteah, who I
18 believe is a representative of the Zuni Pueblo, had
19 indicated that he might apply for an application as an
20 individual and that, of course, the pueblo, as a whole,
21 might also apply for an application.
22 As a broad issue, what do you think about
23 individual tribal members applying for trademarks that
24 might incorporate official insignia of the tribe?
25 MR. PETER PINO: Speaking just for the
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1 Pueblo of Zia, I don't think we have any potential of
2 any tribal individual requesting a trademark request
3 for the sun symbol.
4 I think once the symbol becomes recognized as
5 the symbol of the Pueblo of Zia, they would essentially
6 make the request from the elders and from the tribe
7 whether they could use that symbol to identify their
8 crafts and their items that they produce.
9 MS. MELTZER: This might be a difficult
10 question then to answer. Do you think that would be
11 the same in other tribes, that is, the tribal members
12 would seek the approval of the elders?
13 In other words, at the Patent and Trademark
14 Office, how would we distinguish between a legitimate
15 applicant and one who hadn't gotten approval?
16 MR. PETER PINO: I think if one seeks to
17 trademark a symbol of the tribe, the way I would see
18 that process happening, - And you would make that as
19 part of your official request of the applicant - is
20 that they present a Tribal Resolution, adopted by the
21 Tribal Council, stating the facts.
22 MS. MELTZER: Thank you very much.
23 In that case, why don't we break for lunch and
24 since we got a little bit of a late start, could we
25 come back about 1:10 and start then?
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1 And we're all very grateful for your patience
2 and for your flexibility and we'll continue with your
3 testimony and continue for approximately about 30 to 35
4 minutes when you return.
5 Thank you.
6 [NOON RECESS, 12:10 to 1:41 P.M.]
7 MS. MELTZER: We'd like to thank you for
8 returning from lunch. It's a beautiful afternoon and
9 we're grateful that you came back for the afternoon
10 session.
11 When we left this morning, Peter Pino, one of
12 the tribal elders from the Pueblo of Zia was giving
13 testimony together, I believe, with Mr. Isidro Pino,
14 religious representative, and Sabrino Pino, together
15 with Governor Shije.
16 So we'd like to continue that and, Mr. Pino,
17 you have until approximately 2:00 o'clock to conclude
18 the remarks from the group, so, thank you.
19 MR. PETER PINO: Thank you, Madam Chair.
20 I think what I'll do, instead of taking time
21 from the elders, Isidro Pino, and Sabrina, I'm going to
22 allow them to make their presentations.
23 And after their presentations, I'll make a few
24 more additional comments and then we'll be ready for
25 questions.
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1 MR. ISIDRO PINO: Hello. Welcome to
2 Albuquerque, New Mexico.
3 First of all, I want to introduce myself and I
4 want to tell you who I -- what I am, who I am. I want
5 to be more, or more or less specific with it since I
6 live two worlds - the White Man's world and the Indian
7 world. So what I want to do is go ahead and tell you
8 who I am, and who I am and what I did in the White
9 Man's world. Okay.
10 My name is Isidro Pino and I am from Zia
11 Pueblo. First of all, I turned 66 years old today.
12 AUDIENCE: Happy Birthday!
13 (Laughter. Applause)
14 MR. ISIDRO PINO: I served in the United
15 States 8th Army Corps of Engineers during the Korean
16 conflict. I am a Korean War Veteran. I served under
17 Commanding General Ridgeway.
18 I graduated from Industrial Arts in California
19 and the one in Beaumont, California. I spent 42 years
20 busting my butt out here in the rat race, White Man's
21 world, and I'm happy with it.
22 I retired last year, and that's about it.
23 And for the other part, for the testimony, my
24 testimony is very brief and to the point and I will now
25 read it to you. Well, before I go to that, I missed
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1 out one thing.
2 During my prime years, I was an inventor and I
3 was granted one patent: a product idea.
4 Okay. Going to the testimony.
5 Ladies and gentlemen, members of the United
6 States Patent and Trademark Office. I am Isidro Pino,
7 a member of the Pueblo of Zia and the leader of the
8 Eagle Religious Society of the Pueblo. I also serve as
9 the leader of the general pueblo public. I find it
10 difficult to speak to the issue that's so dear to me
11 and my people - the Zia sun symbol.
12 The knowledge that I have as a member of the
13 religious society is not mine. It belongs to the
14 society and the pueblo. It is a community property. I
15 cannot disclose all the information that makes me a
16 Zia. However, to help you understand the importance of
17 the Zia sun symbol, our community property, I take
18 personal risk in disclosing the following:
19 1. When a baby is born into Zia, one of the
20 first ceremony performed is the introduction of the
21 newborn to the sun.
22 2. When hunting, the sun symbol is drawn on
23 the ground where the campfire is to be. This is the
24 official invite for the sun to warm and protect you
25 through its powers of fire. At the end of your stay,
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1 you officially and formally release the spirit of the
2 sun.
3 3. When a ceremonial vase has to be replaced
4 in any of the 10 major religious societies, the head of
5 the society has to approve the painting of the sun
6 symbol on the vase before it is painted.
7 4. At death of a fellow tribal member, the
8 symbol is painted by religious society members for the
9 family members that remain on this world so that they
10 can be guided by the sun.
11 The above samplings have been disclosed in
12 hopes that you will duly consider the full protection
13 of the Zia sun symbol as the official tribal symbol of
14 the Pueblo of Zia.
15 We recognize your present system of protecting
16 federal, state and local government symbols. Utilizing
17 the same system, which includes tribal symbols, would
18 be the most cost-effective way of incorporating equal
19 protection of all governments.
20 Thank you and may the spirits that guide this
21 world guide you to a favorable decision.
22 Thank you.
23 MS. MELTZER: Thank you very much. We
24 don't have any questions.
25 So if perhaps Sabrina could testify.
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1 MS. SABRINA PINO, 8 YEARS YOUNG: Members
2 of the committee, I'm honored to be before you. My
3 name is Sabrina Pino. I go to school at Jemez Valley
4 Elementary School. I'm eight years old and I'll be
5 going into the 4th Grade in the fall.
6 Through my parents, grandparents and tribal
7 religious leaders, I have learned the importance of our
8 history and our current existence.
9 I realize that I too will some day be a mother
10 and a grandmother providing guidance to my children and
11 grandchildren.
12 I am here today to say a few words on behalf
13 of the 146 tribal members of Zia Pueblo that are 12
14 years of age and younger.
15 We represent the future of the Pueblo. We are
16 glad that our present leaders are involved in
17 protecting the Zia sun symbol which is an official
18 symbol of the Pueblo.
19 We hope and pray that you will also protect it
20 by not allowing it to be trademarked by anyone from the
21 private sector. The symbol represents our past,
22 present and future.
23 Please don't take away our future. Please!!
24 MS. MELTZER: Thank you very much.
25 MS. SABRINA PINO: You're welcome.
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1 (Laughter. Applause)
2 MR. PETER PINO: At this time, I'll go
3 ahead and finish off my testimony and essentially,
4 after that, we'll stand for questions.
5 I had briefly described our relationship with
6 the state and how they came to the symbol.
7 In working with the state and in working with
8 this issue, there has been some questions posed by some
9 people and the questions that they ask is: Why didn't
10 they object then? - meaning 1925.
11 They do not understand how it was for Native
12 Americans at that time. We were not considered
13 citizens of the United States at the time. This is
14 1925.
15 The population figures of our tribe at the
16 time were about 120. Formal western education was not
17 introduced until the late 1920s.
18 The sun symbol by the state was appropriated
19 in 1925, and that was just elementary school. Many
20 people had to work just to survive and didn't even
21 finish those elementary grades.
22 We didn't have anyone with the knowledge or
23 expertise back then to oppose the use of the symbol.
24 It just didn't happen then.
25 The Pueblo of Zia simply didn't have the
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1 wherewithal to fight the misuse and appropriation of
2 its cultural symbol and insignia.
3 In the 1970s when I was first hired, the
4 entire budget of the pueblo was $15,000. That was all
5 the money that the pueblo had.
6 In the past, the pueblo wasn't even aware it
7 could protect the people's rights. History had overrun
8 us. American law was something that oppressed us and
9 took things away from us and we didn't know how we
10 could fight and possibly win.
11 Even today, we have many -- we have for many
12 years spent valuable and scare resources opposing
13 parties who want to have exclusive rights to our sun
14 symbol. We simply do not have the resources to fund
15 options to every individual who applies to federally
16 register the Zia sun symbol as his trademark.
17 We are in ongoing negotiations with the
18 members in the executive branch of state government for
19 their unauthorized taking of our symbol earlier this
20 century.
21 We do not want to stop the State of New Mexico
22 from using the symbol. We want recognition of the
23 taking, a formal apology, and some kind of gesture of
24 remuneration to us - not that money can ever make up
25 for this taking but because it is a wrong that needs to
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1 be righted.
2 Many wrongs cannot ever be righted in western
3 law but are atoned for, partially, by monetary payment.
4 It is manipulative for others to criticize us for being
5 materialistic to want some kind of symbolic payment for
6 the unauthorized use of our symbol.
7 If any symbol or object of religious
8 significance is used with disrespect, there is an
9 imbalance. We feel that the world today is out of
10 balance.
11 I know that the Trademark Office may not be
12 concerned with or believe in the possible imbalance
13 caused by disrespect of our culture and our religious
14 symbol.
15 But I do not understand why it and Congress
16 would not understand the imbalance and inequity under
17 the law of protecting from registration the official
18 insignia of cities, states, and foreign nations, and
19 not protecting the official insignia and symbols of the
20 First American Nations.
21 It is sensible and right to correct these
22 inequities.
23 Before I conclude, I would like to address a
24 concern and a question that was asked earlier today.
25 That question is: What happens if there's conflicts
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1 between tribes?
2 There have been such conflicts in the past
3 with tribes on certain properties. And that hurt and
4 that wound is always there, unless the two tribes come
5 together and resolve that issue.
6 The Pueblo of Zia, in the past, has been
7 involved with the issue with another pueblo and the
8 only way that that issue was finally put to rest is
9 that the pueblo leadership of Zia at the time requested
10 all the members to bring jewelry, to bring buckskins,
11 to bring necklaces, silver belts, anything that they
12 can come with, and make an offering to this other
13 pueblo for payment of a wrong that had been done.
14 Only then did the issue and the conflict get
15 resolved.
16 We all, as pueblo people, now realize that
17 that was the only way to handle that, that issue.
18 So if those issues come up, I think the tribes
19 can handle those issues and be able to come up with a
20 decision that would be favorable for all parties.
21 The other question that came up I addressed
22 earlier, with showing the vessel and the four-pronged
23 sun symbol; as I was sitting in the room this morning,
24 I was shown a symbol of the Pueblo of Acoma. In that
25 symbol appears the sun symbol on their circle of
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1 symbols.
2 The Pueblo of Zia has no intentions of taking
3 those symbols from sister pueblos and we will be able
4 to address those issues in council with the respective
5 councils, to be able to address those issues. So Zia
6 has not taken the position of taking the symbol away
7 from the state and the pueblos.
8 The state will deal with it on a
9 government-to-government basis and we'll do the same
10 with other of the tribes that are in the state and
11 other locales that may be using the symbol.
12 In conclusion, in concluding my remarks, I
13 want to thank you as members of the U.S. Patent and
14 Trademark Office for designating Albuquerque as a
15 hearing site. I also want to thank the many people
16 that made this issue advance to this point.
17 And, last, I want to thank the spirits and the
18 people who will make the protection of tribal insignia
19 a reality.
20 MR. STEPHEN WALSH: Mr. Pino, thank you
21 very much for your testimony. It appears to us the
22 symbol means a great deal more than just identifying
23 it.
24 My question is related in some way to the
25 nature of the symbol and the importance that it has.
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1 Among the public comments that we've received
2 so far, we have suggestions that the Patent and
3 Trademark Office should maintain a register of the
4 official insignia.
5 There are other comments which suggest some
6 other group or agency might be more appropriate to
7 maintain a registry.
8 Do you have suggestions for us on what would
9 be the most appropriate way in which to compile and
10 maintain a list?
11 MR. PETER PINO: The federal government
12 has the Trust responsibility to oversee the resources
13 of tribes. We are nations within a nation. So we look
14 to the federal government for protection and to look at
15 the needs and desires of us as Native Americans.
16 We have more trust in the different entities
17 that are available: the state, the local
18 municipalities.
19 We have more trust with the federal government
20 because there is a government-to-government
21 relationship that our forefathers assured would be in
22 existence.
23 So we feel that the list of such symbols
24 should be kept by the federal government and the most
25 appropriate office would be the U.S. Patent and
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1 Trademark Office for the purpose of having a central
2 one-location-type of situation.
3 And as I stated earlier, if tribes want to
4 trademark their symbols or tribal members want to do
5 that, then they have to do it by Tribal Resolution. We
6 feel that that would be honoring the governmental
7 system that each tribe has.
8 MR. WALSH: Thank you.
9 MS. MELTZER: Thank you very much.
10 I just have one question. In both your
11 testimony and the testimony of some other
12 representatives, it seems that the emphasis is on
13 protection of official insignia in the same way that
14 the insignia of other states, municipalities, and
15 countries are protected.
16 As you understand our current trademark
17 system, would that be adequate, then, to meet your
18 needs if we protected, let's say, the Zia sun symbol in
19 exactly the same way that we protect, let's say, the
20 flag of Great Britain? Would that be adequate
21 protection?
22 MR. PETER PINO: I think if there was
23 anything more offered to the tribes, there would be a
24 cry of injustice from the public sector. And we feel
25 that if the playing field was leveled, that would be
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1 sufficient.
2 If there was equal protection, I think that's
3 all we can ask from the federal government.
4 We're not asking for the law to go beyond
5 what's offered to other entities.
6 MS. MELTZER: Thank you very much. You
7 have a couple of minutes remaining if you'd like to use
8 that.
9 And, if not, we'll thank you for your
10 testimony and for your presence.
11 MR. PETER PINO: One of the other
12 comments that I want to make is to essentially address
13 the issue of the symbols of other tribes.
14 There was some concern by some people in the
15 public sector that there may be hundreds and thousands
16 of new registrations coming from tribes.
17 If today's session here is any indication, I
18 count maybe four to five different groups that are
19 saying some kind of protection for their symbols. I
20 don't think there's going to be a mad rush of new
21 symbols being requested to be trademarked.
22 I think the people that were saying that
23 there'd be thousands of new symbols and that you will
24 be rushed for time and human resources to try to figure
25 out how you would manage such a flood of new requests,
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1 I don't think there's going to be that kind of flood.
2 I think it's something that needs to be done
3 and I think the requests are going to be coming in,
4 paced, paced out, so that you don't have a floodgate of
5 requests.
6 I think you will have a request here, here or
7 there. The normal request that comes in from the
8 private sector I think would be the same kind of pace
9 you'll see and, then, the tribes making requests for
10 trademarking their symbols.
11 GOVERNOR AMADEO SHIJE: Members of the
12 committee, I also want to -- I have a statement that I
13 want to make also today.
14 As you can see, there's not too many tribes
15 that are represented today. But the fact is that they
16 all have the very same concern that we have, and the
17 reason why I state that is because I'm a member of the
18 All Indian Pueblo Council, a council that was
19 established back in 1598 and, in a lot of cases, long
20 before a lot of entities in this country have been
21 established.
22 So what I'm saying is, I cannot speak on
23 behalf of those tribes but I'm assuming that those
24 tribes that have tribal insignias would probably be in
25 concurrence with what we are doing here today and I'm
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1 assuming that in the very near future, that this
2 subject will come up with the All Indian Pueblo
3 Council.
4 So, with this, I will take back this
5 information to that council and advise them of the
6 outcome of this gathering here today.
7 And once again, I thank you all for coming and
8 we would wait for your favorable response and I would
9 like to think that you would treat us just as you treat
10 other entities and other foreign countries, as well.
11 And I thank you once again.
12 MS. MELTZER: Thank you all very much and
13 we appreciate your comments and your presence.
14 In that case, if there are no further remarks
15 from this panel, we'd like to invite our next group of
16 speakers to give their testimony.
17 If I could ask, is it Mr. Stanley Pino?
18 AUDIENCE: [Hand up]
19 MS. MELTZER: Thank you. Could you come
20 to the table and then we'd also ask William Weahkee and
21 Glenabah Martinez to come up to testify, in that order.
22 I understand that Mrs. Martinez very kindly
23 gave her time to a group of representatives from the
24 Native American Youth Group this morning.
25 So if Professor Kenneth Bobroff is in the
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1 audience, could you come up to the table, please.
2 Thank you.
3 MR. STANLEY PINO: Good afternoon,
4 Governors, other tribal representatives, members of the
5 panel and members of the audience.
6 My name is Stanley Pino and I am the Chairman
7 of the All Indian Pueblo Council, an organization
8 comprising all 19 of New Mexico's pueblos, which has
9 existed since time immemorial and is dedicated to the
10 preservation of tribal sovereignty and the cultural
11 integrity of its constituent tribes.
12 In the interest of full disclosure, I am also
13 proud to state that I am a member and former Governor
14 and present Council Member of the Pueblo of Zia.
15 However, I am here today to speak on behalf of all 19
16 of New Mexico's pueblo nations.
17 New Mexico's pueblos are unique tribes. They
18 have resided in what is now New Mexico since time
19 immemorial and, unlike many tribes, have a long history
20 as people and as tribal governments. Each has its own
21 unique tribal insignia.
22 Some, like the Pueblos of Isleta and Sandia,
23 are more modern in their origin and design.
24 Others, like the Pueblo of Zia sun symbol, are
25 ancient and revered.
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1 All, however, have great symbolic importance
2 to their respective pueblo nations. It is precisely
3 because of their uniqueness and attractiveness that
4 many in the non-Indian world seek to emulate them and
5 use them for commercial gain.
6 Like other things of value which Indian
7 Nations possess, they have been all too freely
8 appropriated without recognition or compensation. This
9 must stop and can be stopped with minimal effort on the
10 part of the federal government.
11 By giving Indian Tribes the same protections
12 that have long been given to state, local, and foreign
13 governments, the federal government can belatedly begin
14 to fulfill this long-neglected areas of its Trust
15 responsibility.
16 Once protected, Indian Nations can decide for
17 themselves whether and under what circumstances they
18 wish to permit the use of their tribal insignia by
19 others.
20 Doing so can help protect and promote tribal
21 sovereignty and tribal culture, while furthering
22 perhaps the most important objective of the American
23 system of government - protection of property rights.
24 This legislation would show long overdue
25 respect for Indian Nations and their cultural symbols.
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1 Retroactive application of the law would begin
2 to redress longstanding wrongs to Native Americans and
3 their culture.
4 No business interest should justify the
5 retention by non-Native Americans of federal
6 registrations of official Native American symbols.
7 Existing law dictates that non-Native American
8 institutions must divest themselves of Native American
9 property which those institutions have purchased for
10 large sums of money.
11 Similarly, a trademark owner should not be
12 shielded merely because it registered a trademark
13 before the Act was changed.
14 To allow the present owners of marks, which
15 are Native American official insignia, to continue to
16 use them undisturbed, would make a mockery of the
17 serious attempt by Congress and the United States
18 Government to right a wrong and would send the clear
19 message that property rights of a non-Indian business
20 are to be valued more than the essential cultural
21 values and sovereign identity of an entire tribe.
22 Such non-Native American uses should be
23 stopped or, at a minimum, such trademark owners should
24 be required to reach an agreement with the Indian
25 Nations for such use.
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1 The change in the law will not impose great
2 burdens on the Patent and Trademark Office; rather,
3 failure to change the law will merely increase the
4 burden and historical abuse heaped on Native Nations
5 who have had to stand helplessly by as their cultural
6 and religious symbols have been callously appropriated
7 by non-Native Americans for use in commercial and often
8 offensive ways.
9 Action taken now would serve to minimize any
10 additional burden to Native Americans and Indian
11 Nations and would foster greater cultural awareness in
12 this land of such great diversity.
13 In closing, we acknowledge and applaud the
14 efforts of Senator Bingaman to bring this issue to the
15 forefront and thank Congressman Udall for his efforts
16 on this subject.
17 Respectfully submitted, Stanley Pino,
18 Chairman, All Indian Pueblo Council.
19 Thank you very much.
20 MR. WALSH: Thank you, Mr. Pino.
21 My question concerns something that I realized
22 when I saw the paper copy of your testimony.
23 MR. STANLEY PINO: Yes, sir.
24 MR. WALSH: And there's an insignia at
25 the top of this page which is the All Indian Pueblo
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1 Council insignia.
2 MR. STANLEY PINO: Yes, sir.
3 MR. WALSH: And just to be sure that we
4 consider all the possible applications of changes to
5 the Trademark Act, should we consider, in addition to
6 federally- and/or state-recognized Native American
7 tribes, should we also consider insignia of groups or
8 associations such as the All Indian Pueblo Council?
9 Would you -- Just to make sure we try to cover
10 all the bases.
11 MR. STANLEY PINO: Yeah. I certainly
12 believe that even organizations that represent
13 government entities in the Native American sector, I
14 feel that they need to be protected.
15 I realize that in reference to our logo, this
16 logo was I guess developed back in 1965 when the All
17 Indian Pueblo Council was incorporated as a 501(c)(3)
18 corporation for funding purposes, so that logo was
19 developed and has been a part of the symbol for all 19
20 pueblos.
21 I believe in 1995 or 1996, the Chairman at the
22 time of the All Indian Pueblo Council came to Zia and
23 in that discussion, he asked permission, somewhat
24 belatedly, but he did ask permission for the council to
25 use the insignia or at least the sun symbol on our
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1 symbol for All Indian Pueblo Council.
2 They're one of the bodies that have come
3 forward and asked permission to continue to use that
4 symbol.
5 Another group that's present here today, the
6 Council of Energy Resource Tribes, who David Lester is
7 present in the audience, - He will testify later - his
8 group also requested permission to use the symbol as
9 part of, also, their organization or logo.
10 So, yes, I do believe that organizations that
11 represent tribal governments should be also protected.
12 MR. WALSH: Thank you.
13 MS. MELTZER: I don't think we have any
14 further questions for you, Mr. Pino, but we do want to
15 thank you for your testimony today.
16 MR. STANLEY PINO: Thank you very much
17 for allowing us the time to testify on behalf of the 19
18 pueblos.
19 Being a member of Zia, I also have a special
20 place in my heart; that we do see this hearing be in
21 favor of not only Zia Pueblo but also the Indian
22 Nations throughout the United States.
23 As Governor Shije iterated earlier, we do
24 represent 19 governments and even though they're not
25 present today, they are present in spirit and also with
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1 words that they have given me to present today as part
2 of their testimony.
3 So let the record show that the 19 Pueblos
4 were represented by the All Indian Pueblo Council.^
5 Thank you very much.
6 [^DULY NOTED]
7 MS. MELTZER: Thank you.
8 Before we move on to Mr. Weahkee, I just want
9 to the acknowledge that comment and indicate to both
10 you and Governor Shije and all the members of the
11 audience, that we appreciate that while not everybody
12 who would like to attend attended this hearing or even
13 the one in San Francisco or the U.S. Patent and
14 Trademark Office are able to.
15 We realize that there's great concern about
16 this issue, and whether people submit written testimony
17 or ask representatives to give oral testimony, that
18 indeed they're thinking about this issue and it's an
19 important one.
20 So thank you for reminding us that merely
21 because people aren't physically present here today, it
22 doesn't mean they don't think this issue is important.
23 Thank you.
24 MR. STANLEY PINO: Thank you very much.
25 MS. MELTZER: Mr. Weahkee.
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1 MR. WILLIAM WEAHKEE: My name is William
2 Weahkee. I don't have a title on the agenda because
3 they didn't know which hat I was going to wear at the
4 time.
5 (Laughter)
6 MR. WILLIAM WEAHKEE: And I think I will
7 wear both hats at this time.
8 My name is William Weahkee. I'm the Executive
9 Director for the Five Sandoval Indian Pueblos, the
10 little pueblos that surround Albuquerque on the north
11 side.
12 I'm also the only Indian member on the
13 Petroglyph Monument Advisory Commission, appointed by
14 Mr. Babbitt at the national level.
15 Since I do work a lot with symbols, I have
16 worked a lot with the architects, the authors and the
17 people, the anthropologists and people who study, for
18 instance, rock art.
19 A lot of those symbols have now been taken
20 over but mostly by non-Indians and non-Indian firms, as
21 you will see, the various ways they portray animals,
22 deers, turkey, bears and what-not, without even asking,
23 without even being given permission.
24 They act like it's just free for the taking,
25 free for the asking -- I mean not "free asking" but
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1 free for the taking. That is what has been happening
2 for the past two or three centuries since non-Indians
3 have came to this world.
4 The Spaniards have also had some other little
5 crosses up there but none of that has been, you know,
6 misappropriated or taken because the Spanish were aware
7 of how to use their symbols and stuff and how to
8 protect them.
9 The Indians are finding themselves at a
10 disadvantage all the time mostly because we don't
11 understand your systems, your ways of doing things.
12 And this is the first time we've really seen a
13 good or a great effort on your part or the part of the
14 PTO to come into this area to start rectifying or at
15 least straightening up or trying to help alleviate
16 problems at this level.
17 A lot of our artists now know how to use copy-
18 right but the tribes themselves, as a whole, have never
19 indicated one way or the other these things were there
20 for the taking. They never said that it was free.
21 They never said that this could be done and, yet, this
22 still happens.
23 The biggest, I guess, culprit, if you want to
24 put it in a blunt way, is the State of New Mexico.
25 Whether these people that study the Indian
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1 symbols come into New Mexico, they study the Indian
2 symbols and their backgrounds and everything are
3 scholarly and all that, but the point is, they are not
4 Indian people, they have not lived that type of life.
5 The people from Acoma, especially Peter Pino
6 has put it eloquently - Those symbols are many times
7 taken off the other symbols that people have used for
8 centuries and that are sacred.
9 They didn't tell you or they didn't mention
10 about the symbols of the four directions that the Keres
11 Tribes - at least I know that - have used; the four,
12 the sun, the four rays, the four ways, they have the
13 four directions and they have the four seasons, et
14 cetera.
15 These things are tied in with song. They're
16 tied in with the ritual. They're tied in with things
17 that we cannot divulge because what happens when we
18 divulge something like that, it's always exploited at
19 our expense. Nothing comes back to the tribes.
20 Anything you do, if you see the quality of the
21 craftsmenship that the Indians have, you just have to
22 go walk over to the Indian Pueblo Cultural Center and
23 you'll see that the Indian craftsmen people and ideas
24 are second to none in the world. They're second to
25 none in the world. We're tops. We have our ways of
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1 doing things. We have our ways of improving things.
2 We have our ways of developing things that, you know,
3 come from our background and our ideas and stuff like
4 this. Therefore, they should not be taken away. They
5 should not be 'ex-appropriated', or appropriated for
6 somebody else, for somebody else's good.
7 So I really wanted to say that.
8 I hope and I really request that you do
9 everything in your power to understand the Indian side
10 of these things. They're not games. They're not for
11 play and they're not for sale a lot of times. So we
12 have to understand that.
13 You're coming into our area now and we've got
14 a developed culture here. We've got our own religion.
15 We've got our own ways.
16 From the day that the child is born till the
17 day it dies, there's rituals, there's prayers, there's
18 stuff like this and all of it's tied in with the
19 symbolisms, different kinds.
20 A lot of it we may use in our own logos, but
21 we think we have the right to use them but nobody else,
22 in some cases.
23 So I think, with that in mind, just everything
24 has been said. A lot of it, I already agree with. I
25 support it wholeheartedly.
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1 But I really wanted to say that something must
2 be done and you are the forerunners or the front or the
3 shop troop, so-to-speak, you need to get out there and
4 understand us. We've been trying to do that for years
5 with you. It doesn't work.
6 But if you can come down and see what we're
7 talking about, even though, a lot, we don't speak the
8 language that good or some of our people don't speak it
9 that well, we still have to have some way for you to
10 understand us and to go beyond just what we're trying
11 to say to you because, a lot of times, we can't explain
12 the whole thing because it's tied with other things,
13 other concepts, other rituals and stuff like this.
14 Welcome and I thank you very much.
15 MS. MELTZER: Mr. Weahkee, I heard and
16 your comments actually raised one question, and based
17 on both your personal experience, who you are and in
18 your work with the Petroglyph Advisory Commission, in
19 what way could our office be notified of symbols that
20 are important to Native Americans but not necessarily
21 adopted as their official insignia?
22 MR. WILLIAM WEAHKEE: The Petroglyph
23 National Monument, for instance, we are making plans
24 and we have already started the process of identifying
25 every, every petroglyph that is in the Petroglyph
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1 National Monument Park.
2 There's over 17,000 different kinds of images
3 and designs and things like this. The Park Service is
4 cataloguing those and they are identifying their exact
5 locations and they're giving them descriptions of what
6 they are and where they are by both the mapping
7 institutions.
8 I don't know anything about mapping but
9 they're focusing it on a mapping situation where they
10 can identify exactly where that is, so that if it's
11 destroyed or any were damaged in the future, we'll know
12 what happened.
13 Those kinds of figures will be made available
14 to you if you would ask us or I could make it my job to
15 make sure that you get copies of this so that it will
16 be in your records or in your files.
17 Like I say, a lot of those are not being asked
18 for or to be kept by Indians only, because we do want
19 to share. We would like for people to come up there
20 and look at them, but not necessarily exploit them to
21 where they make profit all the time and not give
22 anything back to the Indian people at all.
23 MS. MELTZER: Thank you very much for
24 your comments and for your offer, and if you don't have
25 any further to add, we'll thank you very much for your
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1 testimony.
2 MR. WILLIAM WEAHKEE: Thank you very
3 much.
4 MS. MELTZER: Thank you.
5 Before Professor Bobroff gives his testimony,
6 may I ask that David Lester -- Thank you very much.
7 Could you come up to the table? I think you two are
8 the last two scheduled speakers.
9 And then after you two finish giving your
10 testimony, if anybody who is the audience maybe would
11 like to make comments, we would certainly welcome
12 those.
13 PROFESSOR KENNETH BOBROFF: Thank you for
14 the opportunity to testify this afternoon. My name is
15 Kenneth Bobroff. I'm an Assistant Professor at the
16 University of New Mexico.
17 One of prerogatives of being a Professor is
18 that I don't have to put on a suit and I get to
19 pontificate.
20 And I have prepared some written remarks but I
21 thought it might be more useful if I could try to give
22 an academic perspective on some of the issues that have
23 been raised this morning.
24 Before I do that, I think it's important to
25 recognize both Senator Bingaman's leadership but, even
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1 more importantly, the foresight of the leaders of Zia
2 Pueblo and the perseverance that they have demonstrated
3 over the years in keeping this issue moving forward.
4 Without the leadership exercised by Zia, this
5 issue would not be on America's radar screen at all.
6 As a student of U.S. Indian policy, it's
7 striking how the most serious injustices have always
8 been done by government commissions when they didn't
9 listen to Indians and when Indian voices were not heard
10 prior to policy being made. So I think it's highly
11 significant that you've been able to hear this morning
12 many different voices expressing the concerns and
13 preferences, thoughts of different Indian people on
14 this issue, and you would be wise, if you want to do
15 justice, to pay heed to those expresssions.
16 I'd like to start out by suggesting that you
17 have probably learned some valuable lessons this
18 morning, but two I would emphasize in particular
19 because the first is a lesson that probably is taught
20 at no law school, or very few law schools, but it's
21 regularly taught at the University of New Mexico of
22 which we are quite proud, is: You cannot graduate from
23 our Law School without understanding that there are not
24 two sovereigns in America, but there are three.
25 There's not only the United States and the state
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1 governments but there are also Indian tribes and the
2 importance of seeing Indian tribes as sovereigns and
3 understanding that continuing status as sovereigns goes
4 a long way towards giving you direction on how this
5 policy should take effect.
6 Most specifically, there were questions raised
7 about: Well, what should be the definition of an
8 official insignia?
9 The answer is fairly simple: The definition
10 of an official designation of an official insignia is
11 what the tribe says it is.
12 If the tribe passes official resolutions
13 saying that it has two official insignias, then that is
14 their official insignias and should be recognized in
15 the same way that if the County of Bernalillo wants to
16 have two official insignias or the Governor and the
17 Lieutenant Governor of the State of New Mexico want to
18 add official insignias, those are recognized.
19 The second main point I would say is that it's
20 clear that if tribes are treated as they should be,
21 which is as governments, that this proposed policy to
22 prohibit registration, unauthorized registration of
23 their marks, and prohibiting unauthorized use of those
24 marks should not create administrative difficulties
25 that are insurmountable.
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1 Indeed, I don't think it's particularly a big
2 deal in terms of the statutory changes required or the
3 changes in the administration that are required.
4 In some ways, it's difficult to fully address
5 tribes' concerns about their official insignia, because
6 while tribes are governments just like states,
7 municipalities, if anything they're older and they have
8 this inherent sovereignty in ways that those
9 governments do not.
10 Tribes are both the same and they're
11 different. They're the same as governments. To
12 distinguish them from other groups and special interest
13 groups, one of the trade groups in their comments
14 initially suggested, that this was opening a gate for
15 other special interest groups to act.
16 Other minority groups are not like tribes.
17 They are not governments. They are not sovereigns.
18 In this sense, you're correct in treating the
19 tribes just like states, municipalities and foreign
20 nations.
21 But in some ways, tribes and their need to
22 protect intellectual property is different. It's
23 different for a couple of reasons. One, it's different
24 because of the Trust responsibility.
25 In figuring out how the United States
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1 Government has the right to exercise power over Indian
2 Tribes who, after all, never consented to it, never
3 agreed to be part of the United States of America, the
4 concept of the Trust responsibility was created.
5 It was this notion that if the United States
6 was going to exercise power over Indian peoples, then a
7 responsibility went along with that, to exercise it in
8 a way to protect Indian people and their resources.
9 This is a reality or a concept that extends to
10 all segments of the federal government, not just the
11 Bureau of Indian Affairs, but also the Patent and
12 Trademark Office, and it is a legal concept that is
13 inapplicable to municipalities, states and foreign
14 nations.
15 Secondly, tribes don't have the same sorts of
16 resources that states and municipalities have, to
17 protect their use of their insignia. If the State of
18 New Mexico wants to decide that it is illegal to put
19 the Zia sun symbol on a porta-pottie, it can do that
20 and it can enforce that law.
21 Because of the great restriction in the
22 authority of Indian Tribes, they don't have that
23 authority to stop me in Albuquerque, although they
24 might here in this spot which is Trust land, but if I
25 were at my house, they couldn't stop me from using a
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1 symbol in any way I want. So tribes are without that
2 authority to enforce the protection of their symbols,
3 themselves,
4 Nor do tribes have the monetary authority, as
5 the testimony from attorneys this morning indicated, to
6 enforce their rights privately. There's this image in
7 mainstream American that all Indians are rich now
8 because of gambling and, I guarantee you, it is not
9 true.
10 A very, very small number of tribes have legal
11 resources sufficient to protect their intellectual
12 property rights, themselves.
13 The vast majority of tribes have such
14 tremendous needs and such tremendous demands on their
15 resources for life-and-death kinds of concerns that it
16 is only the tribes which are most committed to this
17 issue and to the importance of their symbols, such as
18 Zia Pueblo, that are able to devote resources to it and
19 take away resources from places that they may be of far
20 more immediate use.
21 There are also concerns, or differences,
22 rather, in that the intellectual property that we're
23 talking about, when we're talking about official
24 insignias and symbols, is in many respects, in most
25 respects, not commercial.
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1 So to the extent that the patent or that the
2 trademark laws are aimed at protecting commercial use,
3 it is not helpful to Indian Tribes.
4 So if the Pueblo of Zia is in a position of,
5 if it wants to protect its symbol, itself, of putting
6 it into commercial use, particularly when these symbols
7 are in the religious nature, that puts tribes in a
8 difficult, untenable position.
9 The fact that these symbols are, as I believe
10 it was Mr. Weahkee who said, "community property,"
11 means that trademark law also has a difficulty in
12 protecting it.
13 It's the property of the entire pueblo.
14 Trademark law is more comfortable when it can
15 focus just on a corporation or individual. This is
16 another difference when the trademark law should be
17 adjusted to fit the reality of Indian peoples.
18 There have been questioned raised by
19 international obligations. I'm not an expert on the
20 Paris Convention but I would like to draw your
21 attention to evolving international standards or
22 evolving standards of international law relating to the
23 rights of indigenous peoples.
24 I would draw your attention to Article 29 of
25 the draft United States declaration on the rights of
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1 indigenous peoples and obligations of states to act, to
2 provide special protection to intellectual property
3 rights of indigenous people.
4 Commissioner Dickinson raised some concerns
5 about opposition in cancellation proceedings and I
6 would suggest that the distinction that was drawn by
7 Attorney Mielke of differences between historical and
8 new designs might well be worth study as a way of
9 providing grounds for which cancellation and opposition
10 could be considered while respecting the long history
11 and traditional use rights and also vested property
12 rights of trademark owners.
13 In closing, I would like to draw your
14 attention to what has been a theme running through
15 today's discussions; that as Indian peoples have dealt
16 with invasion of non-Indians, there has been a
17 succession of takings. Non-Indians took Indian land.
18 They took land, language. They took Indian culture.
19 They appropriated freely.
20 In almost every case where non-Indians have
21 come in to take something, there have grown up these
22 myths that "Well, the Indians didn't really own it in
23 the first place."
24 Yesterday, I was reading the Congressional
25 Hearings from 1920 where testimony was given that the
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1 pueblos didn't really own the land grants, they were
2 granted them by Mexico.
3 In this same fashion, there has been myths
4 that the petroglyphs weren't created by Indians, they
5 were actually created by Boy Scouts.
6 There's a myth that the Black Hills were never
7 owned by the Lakota, that the Lakota actually moved
8 there in about 1750.
9 I would suggest that the notion that the Zia
10 did not own that sun symbol is in the same class of
11 myths.
12 One of the things that is most attractive
13 about living in New Mexico for non-Indians is the
14 tremendous cultural diversity that we have.
15 Like the representative from the American
16 Trademark Association, it is a cultural heritage that
17 we are proud of, but she suggested that it is a
18 cultural heritage that we all want to share and
19 protect.
20 And I would suggest that the determination of
21 whether to share the cultural heritage of Indian
22 peoples is a determination for those peoples to make
23 and if they want to share it with us non-Indians, we
24 are fortunate and should be thankful but we should not
25 seek to take it.
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1 And the laws of the United States should be
2 such that tribes can exercise their rights to control
3 their symbols and insignia, can decide whether they
4 should be used commercially or not, and have remedies
5 when others seek to take that property unfairly.
6 Thank you.
7 MS. MELTZER: Thank you very much.
8 We don't have any questions. Thank you very
9 much for your testimony.
10 MR. A. DAVID LESTER: I'm Davis Lester
11 and I'm the Executive Director for the Council of
12 Energy Resource Tribes headquartered in Denver,
13 Colorado.
14 The Council of Energy Resource Tribes,
15 commonly referred to as CERT, is a tribal organization
16 comprised of 50 separate Indian Nations.
17 We were formed to prevent the theft of energy
18 resources from Indian land during the energy crisis of
19 the Seventies when both President Ford and President
20 Carter said that the federal government was dedicated
21 to producing all the domestic energy resources.
22 In the past, when there was a national
23 emergency and the nation perceived that it needed any
24 resource that an Indian had, it was soon legal to take
25 that resource from the Indian.
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1 I came here to support the Zia Pueblo who is a
2 founding tribe of the Council of Energy Resource Tribes
3 and to put more behind the effort than just asking for
4 their permission to use a stylized version of their sun
5 symbol as ours, because we use it because all energy on
6 earth is derived from the sun - wind energy as the
7 solar energy, and the fossil fuels obviously come from,
8 would not exist unless the sun gives its energy to
9 earth.
10 And but it's been very interesting to listen
11 to everyone before me and I don't disagree with
12 anything - on just about everything that's been said,
13 but I want to make sure that we understand that we're
14 approaching this from two different world views and
15 this cultural divide creates great misunderstanding.
16 Western civilization, centuries if not
17 millennia ago, began to separate in its own way of
18 looking at reality, spirit from matter, and it has
19 achieved a great deal from that. By doing that, the
20 whole science revolution is an outgrowth of that
21 separation.
22 But it came at a sacrifice of the spirit. We,
23 as Indian people, still come from a world in which the
24 spirit -- There's unity between matter and spirit; and
25 so when we speak of the pain, it's not commercial loss
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1 or physical pain often that we speak of, it's a deeper
2 pain that is very difficult to express in English
3 because the English don't have the concept and so their
4 words can't really portray the feeling that Indians
5 have concerning their most sacred symbols, words,
6 designs.
7 And it does come up: Why are Indians raising
8 a fuss about it now? We've been around all this time.
9 Well, I remember as a grade school student, I
10 guess it was a long time ago - (Laughter) - when my
11 teachers referred to Indians as The Vanishing American.
12 The 19th Century fully expected that Indian Tribes
13 would have disappeared by now and that those few
14 remaining Indians would just be relics, you know, ready
15 to disappear.
16 There never was an expectation that Indian
17 Tribes would have the resurgence that we're
18 experiencing in the 20th Century.
19 And, so, we're really dealing with unfinished
20 business, issues that where America thought it would
21 not have to deal with in its earlier periods of
22 development, that reality is now forcing the United
23 States to deal with and America has changed. It's
24 changed enormously in terms of its values.
25 And we're grateful for this, you know, The
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1 Creator, for bringing all of the people of the United
2 States closer together, that we can have this kind of
3 dialogue.
4 I think on the one hand, I see it as a symbol
5 of progress. On the other, as a citizen, I'm somewhat
6 ashamed of my country.
7 And as an Indian, I'm somewhat insulted that
8 we even have to discuss: Why should we protect Indian
9 symbols from misappropriate use?
10 But that's the -- At least we've come to the
11 point where we can discuss that and I think we should
12 see that as progress.
13 But I think it also is important to understand
14 that what we call as Indian Tribes and as we understand
15 ourselves is not exactly the same as the Bureau of
16 Indian Affairs considers or understands Indian Tribes.
17 The term itself is a legal term of art and is
18 an intellectual construct. And I, over the course of
19 my career, have served in a number of different
20 capacities, one of which was Commissioner for Native
21 Americans in the Department of Health and Human
22 Services where I had responsibilities for state-
23 recognized tribes, federally-recognized tribes and
24 other groups of Native Americans such as the American
25 Samoans, the Native Hawaiians, the Native peoples of
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1 the possessions of the United States.
2 And I know that we use those terms and it
3 seems like we understand each other when we use those
4 words, but I came to realize that we don't understand
5 each other.
6 And so I'd like to add perhaps or suggest some
7 deeper clarity in terms of: What do you mean when you
8 say "Indian Tribe"?
9 You're asking us for definitions of insignia.
10 I think it's fair to ask that you should tell
11 us what you mean when you say "state-recognized tribe,
12 federally-recognized tribe" because as the lady from
13 the Cheyenne and Arapaho Tribes of Oklahoma pointed
14 out, their tribe was divided by the federal government.
15 There are two tribes living together, you
16 know, in Oklahoma and then there's the Northern
17 Arapahos living in Wyoming, and the Northern Cheyenne
18 live in Montana and it's very likely that they'll have
19 to get together and decide how they're going to share
20 common cultural heritage. There's two separate tribes
21 from a federal point of view.
22 And, so, it's very complex, but I think you
23 should make some effort to define what you mean.
24 And since states are forbidden by the
25 Constitution to deal with Indian affairs, the only
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1 state-recognized tribes you should be dealing with are
2 those who were grandfathered in, who had political
3 relationships with the original colonies or other lands
4 taken in the expansion west, the tribes who had already
5 established relationships, that it's just not possible
6 for groups to petition the state to be recognized as an
7 Indian tribe. The states no longer have that
8 authority. The Constitution forbids it.
9 And as far as the cultural diversity in New
10 Mexico, there's far greater cultural diversity among
11 the Indians than there is among the rest of the state.
12 We may only represent the Indian people of
13 this country less than, you know, one percent of the
14 population but we actually are, about 90 percent, of
15 the cultural diversity.
16 One tribe is as different from each other as
17 is Germany from Greece.
18 And, so, this great diversity is a blessing,
19 not an administrative inconvenience.
20 And I'd like to address that because, often,
21 the federal government stumbles when somebody says,
22 "Well, how are we gonna do? How can we understand the
23 Indian people?"
24 And I think the thing that strikes me is that
25 when the arguments were being made in the Lincoln
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1 Cabinet about the Emancipation Proclamation, some were
2 raising the question of feasibility and how do we
3 protect the property rights of the slaveholders?
4 And America is still asking those same kinds
5 of questions. How do we balance monetary value against
6 those values of humanity that you can't assign a
7 monetary value to?
8 And while it's pretty neat and exciting to
9 live in a market-driven society, it has some very
10 serious deficiencies, one of which, a glaring
11 deficiency I think, that the Pueblo representatives
12 referred to as an imbalance is the fact that when you
13 get to the deeper values, that which is worthless and
14 that which is priceless in a monetary system, gets
15 assigned the same monetary value: Zero.
16 And it's going to be a challenge I think for
17 PTO to balance that. The priceless value that Indians
18 put on certain symbols, words and design, versus the
19 commercial interests that a company or a person may
20 have.
21 But in the longer run, human progress is
22 measured by deepening society's attachment to human
23 values rather than deepening our attachment to monetary
24 value.
25 And we've made the greatest progress in
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1 America when we've been able to overcome the argument
2 that "it costs too much to do the right thing" and to
3 go ahead and -- Because those who are paying for the
4 cost of the wrong thing are the Indian people, the
5 Indian Nations and they're paying for it in spiritual
6 and cultural and social costs that are difficult to
7 monetize.
8 And I would strongly recommend that the burden
9 of enforcement, the burden of administration could be
10 fairly borne, as has been suggested by a number of
11 speakers before you, that because Indian Tribes are
12 sovereign entities, separate and -- And let me speak to
13 that, too, because we're sovereign in a way that the
14 State of New Mexico is not sovereign, and that the
15 State of New Mexico is a political and intellectual
16 construct, a political construct, an Indian tribe was
17 created, in our view, by The Diety, and we were given a
18 way of life to follow, a path in life to follow.
19 A member of an Indian Tribe is not -- That
20 membership is different than citizenship. It's a --
21 And, so, I guess what I'm referring to is the fact that
22 Indian Tribes, as separate political, cultural, even
23 spiritual communities, should be partners with PTO in
24 developing the procedures and in resolving the
25 conflicts.
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1 We prefer systems that allow a conflict to be
2 resolved and balance to be restored rather than to have
3 a winner-take-all kind of adversarial relationships
4 that is prominent in our system of government in the
5 United States.
6 And I think many of the tribal spokesmen spoke
7 to "Let's sit down and see if we can work it out
8 first".
9 And I think also in terms of the question of
10 definition, the tribes will present, if requested,
11 those words, symbols, designs that are, from their
12 point of view, desires of being protected.
13 And you've heard the tribes say that all they
14 want is the same protection that is afforded other
15 units of government.
16 I will step one further, you know, and I'm not
17 expanding on that, but I am saying that that's deeply
18 rooted in the desire to -- And I'll end with this,
19 because of all the diversity in Indian Country from one
20 tribe to another and their political, cultural, their
21 spiritual, and language, there are things that I found
22 that they all hold in common, and that is: They're
23 based on honor and respect, the reciprocal
24 responsibility of all the parties involved to honor and
25 respect one another in the process of working out
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1 problems, and that it makes it very hard for us to deal
2 with in a system in which the victory is everything and
3 honor and respect for your opponent is nothing.
4 And so we're asking that we introduce or you
5 introduce and help us build on that tradition of honor
6 and respect.
7 Thank you.
8 MS. MELTZER: Mr. Lester, we don't have
9 any questions but we would like to thank you for your
10 call for clarification of the definition of Indian
11 Tribes and I think that's quite an insightful remark
12 and we would actually be grateful to both you and to
13 anybody in this room or to other members who would like
14 to provide some guidance for us on that particular
15 point.
16 And, so, as we are searching for definition of
17 official insignia, we're also searching for a
18 definition of whose official insignia should be
19 protected?
20 Thank you.
21 We're at the end of those who were scheduled
22 to testify. I'd like to invite, at this point, anybody
23 who is in the audience who would like to make comments.
24 Is there anybody who would like to testify?
25 (Applause)
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1 AUDIENCE: (Commentary in native tongue)
2 (Laughter)
3 MS. MELTZER: So I'd like to make a few
4 remarks that Commissioner Dickinson wanted to make this
5 morning, but wasn't able to, and it's just in the
6 nature of letting you know - although I realize, of
7 course now realize that we need to do more - what we
8 currently do at the Patent and Trademark Office to
9 attempt to honor and protect the official -- what we
10 think are the official insignia of Native American
11 tribes.
12 Currently, the Trademark Act has a statutory,
13 a legal prohibition against the registration of any
14 mark that might give a false association as to the
15 origin of the goods or services.
16 And as Commissioner Dickinson pointed out this
17 morning, of course we extend that to words such as
18 "Zia," the Zia sun symbol.
19 So we have one attorney in our office, and
20 since 1994 when this issue was really brought to our
21 attention, we have continuously had one specialist in
22 the office to whom all of our applications that
23 contained words that we think refer to Native
24 Americans, that we believe have symbols or designs that
25 are those of Native Americans, or which have likenesses
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1 of Native Americans, they're all sent to one attorney
2 and she is responsible for doing the research and
3 making the appropriate refusal.
4 Since she has, well, since -- There have been
5 two people now. Kathy De Jong was the attorney that
6 was primarily responsible for those cases.
7 Since that time, we believe we've done a much
8 better job, not a perfect job of course, but a much
9 better job of ensuring, from a defensive point of view,
10 that those who are not entitled to use these marks or
11 who are trying to exploit them or falsely suggest that
12 their goods or services come from Native American
13 sources, we're successfully issuing our refusal.
14 And typically what happens is, people realize
15 that of course the refusal is well-based and they
16 abandon the application.
17 As far as the cost of opposing or canceling
18 marks is concerned, we realize that there is a cost
19 involved. However, there is another process in our
20 office which is free.
21 It's called the Letter of Protest and although
22 it requires some careful monitoring of our trademark
23 applications, if a Letter of Protest provides
24 sufficient evidence that we must refuse registration of
25 a mark, then we will provide that evidence to the
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1 examining attorney and that examining attorney will
2 issue a refusal.
3 The timing is important because we must
4 receive the evidence prior to the time that the
5 application is published for opposition.
6 The monitoring of our cases is made a little
7 bit easier because, now, on our website, we do have all
8 of our trademark application and registration status
9 information available.
10 So if you happen to know that there's an
11 application pending, you can certainly find out what
12 its status is.
13 And if it's appropriate, you can send in a
14 Letter of Protest and it will be addressed to a lady in
15 our office named Jessie Marshall.
16 And that's J-E-S-S-I-E, the last name is
17 Marshall, M-A-R-S-H-A-L-L. She's with the U.S. Patent
18 and Trademark Office. The street address is Suite
19 10B10, 2900 Crystal Drive, Arlington, Virginia. The
20 zip code is 22202.
21 So, to the degree that information is helpful
22 to anybody and you wanted it, of course we've conveyed
23 it to you.
24 If nobody has remarks from the floor, we want
25 to express our gratitude to everyone in the audience
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1 for taking the time to come here, for taking the time
2 to inform us, to express to us the seriousness of this
3 issue and also to educate us on the spiritual, as well
4 as the legal aspects of tribal insignia, words and
5 ceremonies that we might not otherwise know about
6 except from the source - that is, you, who are
7 representatives or members of the various Native
8 American pueblos and tribes.
9 I'd also very much like to thank my
10 colleagues, Odette Bonnet and Steve Walsh as well as
11 our wonderful, tireless Court Reporter Charlotte Macias
12 for their efforts today.
13 So thank you all very much.
14 We will be available, as soon as I stop
15 talking, to answer any of your questions informally.
16 Thank you very much.
17 (Applause)
18 [3:00 P.M., ADJOURNMENT]
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1 REPORTER'S CERTIFICATE
2 I, CHARLOTTE MACIAS, a Certified Court
3 Reporter in the State of New Mexico, DO HEREBY CERTIFY
4 that the foregoing Transcript of Proceedings, Public
5 Hearing, before the U.S. Patent and Trademark Office of
6 the Department of Commerce, taken on July 8, 1999, is a
7 complete and accurate verbatim record of the
8 proceedings taken by me in stenographic shorthand.
9 I FURTHER CERTIFY that I am neither employed
10 by nor related to any of the parties in this proceeding
11 and that I have no interest whatsoever in the outcome
12 of the proceedings.
13 WITNESS MY HAND this 13th day of July, 1999,
14 at Albuquerque, New Mexico 87112.
15
16 ____________________________
CHARLOTTE MACIAS, NMCCR#161
17 License Expires: 12-31-99
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