BEFORE THE UNITED STATES DEPARTMENT OF COMMERCE PATENT AND TRADEMARK OFFICE - - - - - PUBLIC HEARING ON OFFICIAL INSIGNIA OF NATIVE AMERICAN TRIBES - - - - - MONDAY, JULY 12, 1999 - - - - - The hearing was convened in the Latino/Hispanic Community Meeting Room, Room L58A San Francisco Main Library, Civic Center, San Francisco, California, at 10:00 a.m., Q. TODD DICKINSON, Acting Assistant Secretary of Commerce and Acting Commissioner for Patents and Trademark, presiding. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 PRESENT: ELIZABETH MELTZER, ESQ. U.S. Patent and Trademark Office Office of Legislative and International Affairs Washington, D. C. STEPHEN WALSH, ESQ. Office of the Solicitor United States Patent and Trademark Office Washington, D. C. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 A G E N D A PAGE OPENING REMARKS 4 Q. TODD DICKINSON Acting Assistant Secretary of Commerce Acting Commissioner of Patents and Trademark STATEMENT OF NANCY EDWARDS 9 Ojiba North Michigan FERN MATHIAS 14 Dakota South Dakota MELODY L. MC COY, ESQ. 25 Native American Rights Fund On behalf of the Tuolumme Band of Me-Wuk Indians JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 4 P R O C E E D I N G S 10:05 a.m. ASSISTANT SECRETARY DICKINSON: Good morning! My name is Todd Dickinson. I'm the Acting Commissioner of Patents and Trademark for the United States, as well as the Acting Assistant Secretary of Commerce. And, on behalf of the Department of Commerce, I want to welcome everybody here today to this hearing. As you know, a law was passed by Congress, due to the active leadership of Senator Bingaman of New Mexico, which requires the Patent and Trademark Office to study the issues surrounding trademark protection for the official insignia for federal and/or state recognized Native American Tribes. In order to gain answers to questions, such as what is an official insignia, how might any changes to current law affect trademark owners, and other such questions, the Patent and Trademark Office published two notices in the Federal Register, which is the official publication of the notices for agencies in the Federal Government. The first Federal Register notice was December 29, 1998; the second was March 16, 1999. We published two because we wanted to make sure that we have captured the ongoing interest of the public's views concerning all aspects of trademark protection for the JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 5 official insignia of Native American Tribes. We received quite a few responses to both of those notices. But since written comments are one thing, and actual live face-to-face communication another, we thought it was particularly important that the PTO hold a series of hearings, of which this hearing, in San Francisco, is the second. I'd like to tell you a little bit about what we're doing at the PTO to safeguard the intellectual property rights of Native Americans. We are not, as is sometimes believed, an enforcement agency, like, say, the FBI or the Customs Bureau. We are principally charged with examining and registering trademarks, as well as examining granting patents. But we don't actually send out enforcers or police, if you will, if someone is infringing someone's trademarks. However, the act that we have specifically prohibits the registration of marks that might be discouraging, encourage a false association between the applicant and the person, group, or thing identified in the mark, and we take this responsibility very seriously. Back in 1994, we undertook to contact every federally-registered Native American Tribe in order to compile a list of official insignia so that we might better uphold the letter and spirit of the Trademark Act. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 6 To our knowledge, we have not undertaken such a project for any other group before. We sent out letters to about 500 federally-registered tribes. Unfortunately, at that time, we received fewer than 10 responses to our inquiry. Now we understand the trademarks are not necessarily the most pressing matter for the vast majority of Native Americans, so we didn't let this discourage us too much. Far from it. We made a conscious decision to do the best we could to insure that others didn't pass themselves off as Native Americans, or as Native American Tribes, through the registration of trademarks that create the false impression of the true origin of goods or services. Since 1994, all trademark applications containing the names of tribes, recognizable likenesses of Native Americans, symbols perceived as being Native American origin, and any other application which the Office believes suggests an association with Native Americans, are examined by one attorney who has become an expert in this particular area. We have refused a number of registrations. For example: Marks which have included the Zia, the word "Zia," or representation of the Zia Sun Sign, or goods, such as cocktail mixes. We also have pending a -- we also refused registration to the Sun Sign Symbol for stationery and computer software. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 7 We have been diligent in our efforts, and have several systems in place to safeguard against the wrong party obtaining trademark rights and to something in which they are entitled. We have what is called the "Letter of Protest Procedure," which is free, as a matter of fact, as well as our Opposition and Cancellation Proceedings, for which there is a cost, to make sure that all trademark registrations are issued in accordance with the Trademark Act. So, I'd like to thank you all for indulging me a little bit in terms of the efforts that we have done, so far, in our office; but, obviously, we wouldn't be here today if we weren't very interested in continuing to uphold our obligations and monitor the compliance that we have, and receive, frankly, suggestions from anyone about how we can do our job better. So that's the key reason that we're here today, as well. We have, as I understand it, three individuals registered to testify today: Ms. Reba Fuller, Cultural Resource Specialist from the Tuolumme Bank of Me-Wuk Indians -- she's not here, right? MS. MC COY: No, she isn't. ASSISTANT SECRETARY DICKINSON: Nancy Edwards, from the Ojiba Tribe, from Northern Michigan. Where is that specifically? JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 8 MS. EDWARDS: On the Keweenaw Bay Indian Reservation, almost at the end of US 41. ASSISTANT SECRETARY DICKINSON: Very good. And Fern Mathias, from the Dakota Tribe, from South Dakota. Are there any other individuals or groups who wish to testify today? [No response.] As I said, we are here to listen. We would ask that each person feel free to comment for up to 15 minutes. Though we are fairly informal about time, we do want to make sure that everyone has an opportunity to speak, and Ms. Meltzer will be our timekeeper. If you have written comments, make sure that we get a copy of those, and that our reporter gets a copy of those, so they can be included in the formal record. On a personal note, I want to thank you all for taking the time to come to testify. We're eager to hear your comments. Let me introduce Eleanor Meltzer, who is an attorney-advisor in our Office of Legislative and International Affairs; and Mr. Steve Walsh, who is an attorney in our Solicitor's Office. Without further ado, why don't I invite Ms. Edwards to speak. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 9 MS. EDWARDS: I'm Nancy Edwards, and -- ASSISTANT SECRETARY DICKINSON: Come on up -- can we capture -- MS. EDWARDS: Can we capture? I've always being captured. STATEMENT OF NANCY JONDREAU EDWARDS OJIBWA, NORTH MICHIGAN MS. EDWARDS: I'm not sure I'm going to be talking on the exactly the trademark, and such. What I wanted to -- I just got the instructions a couple of days ago, so I hurriedly tried to get something together. I wanted to talk mainly about the word "squaw." I know it doesn't particularly put any particular tribe, Ojibwa, or Dakota, or Cherokee, or anything else; but I did buy a loaf of bread at Lucky's Store that has "Squaw Bread" on it. [The loaf of Squaw Bread was proffered to the panel.] When I was growing up on the reservation -- well, actually, I'm going to be talking about "squaw," because, in other words, it's an inappropriate manner, just as the Redskins and the Wahoo, and other names, and what it means to the Indian people. I am highly offended by the use of these words in the corporate sector, JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 10 schools, and geographical locations. In Webster's, Webster's Dictionary, the New 20th Century Dictionary of the English Language, the second edition, 1969, the definition of "squaw" was a noun, it has American Indian, and the first meaning is an American Indian Woman or wife; (2) any women, chiefly humorous. When in actuality, the word in the Algonquin language means the vagina. Growing up on the reservation, I did not find the word squaw humorous, as the local guys, young guys, and local white children used to yell at me and my family and sisters, and friends, you know, "Hey, look at the squaws," you know, and "Hey, squaws, come here," which made me feel embaraased. When I was older, it made me feel like I was a prostitute, a whore, as I understand their intention in calling me that. It still hurts, deep in my heart and soul, when I remember this, these words when we were young. These children are not born racist; racism is taught by society, schools and families. It is time to stop living under this pain of discrimination, and time to protect our children from this terrible disease: racism. As an example: Yesterday, while shopping at Lucky's, I came across a loaf of "Squaw Bread," manufactured by Braun's -- which I just gave you. Just JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 11 seeing this name, drew me back to that small child being taunted and made to feel ashamed of who I was. And we had an open reservation, so the main U. S. 41 went through it. So, you know, you had people going through, and kids coming from other areas to the reservation. As an adult, I'm angry and wonder how the word "squaw" symbolizes this product, the bread, you know. To me, it has always been demeaning, and I can't figure out -- maybe the color. I don't know what they had in mind. This also brings me to all the geographical areas that have squaw, like Squaw Valley. You know, what does this have to do with Indian women, or our private body parts, for that matter? This is not a matter of political correctness; it is a matter of human rights. We have had 500 years of genocide and dehumization. It is time to stop treating the Native Americans this way. Talking about "Chief Wahoo," and the "Redskins," and the "Braves," and their corporate logos, a mascot is something to be laughed and jeered at, and a person is not. It is disrespectful and insensitive. Ignorance is not okay. Mascots, such as the Redskins, the Braves, and corporate logos, such as Chief Wahoo, are used in sports to generate frenzy and promote violence under the guise of good clean fun. Plus, these mascots are portrayed using items which are deeply sacred to us, such as the JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 12 headdresses, feathers and drums. These mascots are not honoring me, but are derogatory and dehumanizing. As I am the Spiritual Leader of my Tribe, I have the ceremonies, we go on fast, 4-day fast, and, you know, and these feathers have to be earned. You know, it's really hard. You know, you don't go out with 40,000 people, you know, and the religion, and stuff, and to have somebody making fun of us. So, I'm hoping the Chief Wahoo goes. As an example, my grandson attended William S. Hart High School. That's in Newhall, Newhall, California. And this high school mascot is the Indian. During a prep rally, before a game, which are the Canyon Cowboys, the principal put on a full headdress, which about 8 years ago, he called and asked me about it. Somebody gave it to him. I said, "Don't you." Only a few people should ever wear a headdress, and it's not, you know, a school principal, for a prep rally. My grandson was highly offended. He tried to find the principal afterwards to tell him how he felt and how terrible he thought it was that he would do this. I have a picture of the guy. He felt devastated to see the principal and an educator acting in a manner of racial and cultural insensitivity. It is horrifying to have my grandchildren, and JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 13 other children, see this as acceptable behavior. We have desensitized entire generations of children by inappropriate and inaccurate role playing. This is called "ethnic cleansing." You know, I hear about ethnic cleasning over in Kosovo, and all over, you know; but this is what happened to our people here. As far as I'm concerned, Hitler got it from us with the Jews. I urge you to put an end to corporate symbols that are hurtful to Native Americans. They do not honor Native Americans, but they are offensive. I want to thank you for listening to me here today, and I hope you take my words to heart when deciding on this important legislation. And I wanted to show you a picture of our principal that was taken in the a yearbook. I guess my children are out of school, so is my grandchildren. He didn't know it was in one of the yearbooks, you know. And he happens to be Jewish, too, so I was really further hurt that he would do that. [The picture was proffered to the panel.] MS. MELTZER: May we keep this? MS. EDWARDS: Yes, keep that. And here's something about all the names, geographical names. In Minnesota, there's a couple of girls in Cass Lake that got the community and the state to change their names from squaw-something, so it can be done. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 14 I thought that was what we were supposed to talk about. That's what I told John about this squaw bread. I went in a restaurant, and they bring two rolls, one white and one brown. I said, "What is this one?" She said, "Oh, it's squaw bread." So, anyway, thank you. ASSISTANT SECRETARY DICKINSON: That's fine. Thank you, Ms. Edwards. We appreciate your testimony. Any questions at all for Ms. Edwards? MS. MELTZER: I don't. ASSISTANT SECRETARY DICKINSON: Thank you very much. Ms. Mathias. STATEMENT OF FERN MATHIAS DAKOTA SOUTH DAKOTA MS. MATHIAS: I didn't bring my evidence, like the Cherokees, the jeeps, or Dakota Trucks. Too big to bring. My name is Fern Mathias. I'm director of the American Indian Movement in Southern California. I'm also a member of the Sisseton-Wahpeton Band of Dakotas in South Dakota. I came from a school called the "Redmen." So, we, in high school, I did not feel comfortable going to JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 15 that school. We were the only family who went to that school. The rest of them were farmers. But, anyway, I just want to read you my testimony. We do not want tribal names and symbols to be used to sell products or to identify non-Indian entity, such as the Apache Helicopter, Crazy Horse Beer, Cherokee cars, or products. Like some of these stores have Cherokee clothing. And we certainly do not want non-Indians trademarking Indian names and symbols. Just because the Indians didn't have copyright laws doesn't mean others can just take and use their symbols. That's pretty dishonorable and unfair. We know legally non-Indians have been able to do this, but what about the sense of respect for another culture's values, a culture where copyright protection or locks or jails, for that matter, were not needed? The dominant culture makes laws because they have no sense of justice. They need to protect themselves against their own people. How sad. We, as Indian people, never had to regulate fairness, dignity and respect. It came naturally. But we live in America, in the modern age, and we have to protect ourselves. We need to make a list of Indian symbols, especially the religious ones, that should be excluded from commercial use. We need to create an awareness of JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 16 these symbols and explain why it is offensive to use them. Every company and official organization needs to be furnished with such a list so there will not be the excuse of pleading ignorance. The following are a few examples: Sacred religious symbols; Sacred religious words; Tribal insignia; Names of Tribes; Indian words of significant social, religious or tribal meaning. Tribes should furnish list of images, symbols, insignias and words they would like to see protected by law from being used in commerce or government (e.g., like the Zia Sun Symbol on the New Mexico state flag). Especially in this day of internet and cyberspace, Indians have to be doubly vigilant as any of their images and words will be and are used there, as well, to lure customers to web sites that sell items that have absolutely nothing to do with Indians. It is exploitation of Indians for commercial purposes or disrespect and theft of Indian symbols. It is very hard to fight big corporations who blatantly and unfeelingly go ahead and use Indian insignia. For example: Tribal Voice, if any of you have been on the web site, is a commercial site funded by JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 17 McAfee Associates, who make network security software for the U. S. Government. It has no native association, but to market the software package called Pow Wow. This same company markets pornography, and one of the pornographic characters is called "Heyoka," a word in my language. Heyokas are sacred, not twisted perversions like the one found on this site. Here in San Francisco, there is an adult club downtown called "Crazy Horse." By the way, whatever happened to the law here in California, introduced in 1995, AB 1521, to outlaw Crazy Horse Malt Liquor? How on earth is it possible or a nightclub to carry that same name? Also offensive are American Indian Barbie Dolls and Pocohontas Barbies. Disney, supposedly a family-oriented organization, is one of the worst offenders. Indians are always told that sports mascots honor Indians. Where is the honor in a name like Redskins? Where is the honor in a grinning stereotype like the Cleveland Indians's mascot? How do you think it makes Indians children feel? How does it make non-Indian children feel? It teaches them racism. No wonder the people of America are racist. Racism is taught in the schools of America. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 18 Stereotypical greeting cards, like Leanin' Tree, are offensive. Also very offensive are Native American Tarot Cards, which mixes symbols of different nations on one card. It is complete disregard for the religious significance or our people, or, even worse, of disinterest. Again, lack of copyright protectioon makes it possible for these products to be sold without even a single Indian Nation, or any organization, benefiting from the any of the proceeds. The money goes into the pockets of greedy, exploitative companies, who are too lazy to think of their ideas. I want to thank you for permitting -- I just found out at the last minute that this was happening, but I want to thank you for inviting me. ASSISTANT SECRETARY DICKINSON: Thank you, Ms. Mathias. MS. MATHIAS: I want to show you some of the offensive things on the internet: Sparky, Pocohontas, and all these images of Chief Wahoo. This is how to tell a Jew. It's a book. And what would America do if we had Africans -- I mean, Black people would not stand for it. ASSISTANT SECRETARY DICKINSON: Ms. Mathias, let me ask you a couple of questions. One of the questions we posed was how to define what the official insignia of a JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 19 Native American Tribe would be. Do you have any thoughts on that, how we could tackle that question? MS. MATHIAS: What would you say to that one? MS. EDWARDS: What was the question again? ASSISTANT SECRETARY DICKINSON: One of the questions we have before us about the legislation is how to define what the official insignia of a Native American Tribe is. The suggestion has been made that we establish a registry, for example, of official insignia, so that our trademark examiners will know what the official insignia are when others may seek to register them. How would we -- what is your best advice on how we could define what an official insignia is? MS. MATHIAS: I would say with the religious -- see, before 1934, we had our own council, and they were all councils where the people were involved, that were selected by the people. Now, they have councils that are like the U. S. Government. They call them IRA, Indian Reorganization Acts, which is really the Howard Bill of 1934. That's the bill that came out of it. Since that time, we have Tribal Councils that are like the U. S. Government. So, I would say go to the traditional people. Those are the people who know and who still -- it's like a secret society, almost, you know. The traditionalists JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 20 don't go out there advertising. You don't see them advertising. Just like you see -- they're against people who are what we call charlatans or new-agers, who are taking our spirituality and selling it. And they do take some of our symbols and sell it, you know, like -- I don't know. There's some organizations, like the Harley people, you know. They're all over the world. They go all over the world and sell our spirituality. And there's some Indian people who do it, too, you know because they have the White organizations backing them with money. They're being used. There are a few individuals who are being used to do that. So, my answer to that question would be to go back to the spiritual leaders, to go back to the traditional people. MS. EDWARDS: You know, they would have -- ASSISTANT SECRETARY DICKINSON: I'm sorry. This is Ms. Edwards. MS. EDWARDS: Yes, I'm sorry. Each tribe has their own, you know, their own -- what do you call it? -- seal. So, if it's something that comes from Keweenaw Bay, you know, and if it's official, it would have that seal on there, approved by. But each nation has their own seal. So you're talking to all the JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 21 tribes, so -- ASSISTANT SECRETARY DICKINSON: So one way to -- MS. EDWARDS: Submitting their -- ASSISTANT SECRETARY DICKINSON: Submitting their official seals? MS. EDWARDS: Yes, I would think that would be -- that was one way to look at it. MS. MATHIAS: We just got these last night at 8 o'clock. MS. EDWARDS: Yeah. MS. MATHIAS: It was about 8 o'clock. And I asked for them, you know, from your office, but she didn't know what I was talking about, your secretary. ASSISTANT SECRETARY DICKINSON: Just for future reference, this is also on our web site. So, if you ever need anymore information from us, our web site has all of this, and it's been posted there for probably a month or two at this point. MS. EDWARDS: So your main job is to find a way to, to have a stamp that signifies not made in Japan, but made by -- ASSISTANT SECRETARY DICKINSON: We're here -- we've been asked by the Congress to actually answer a few questions; one of them is: How would we define official insignia? JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 22 MS. EDWARDS: Well, you can't identify, I don't think, because each tribe is -- that's been our problem, because of their nationalism. You know, each tribe has their own -- MS. MATHIAS: We're all different nations. MS. EDWARDS: Yeah. MS. MATHIAS: We have our own -- ASSISTANT SECRETARY DICKINSON: Would one way be for us to inquire of each of the nations -- MS. MATHIAS: Each nation. ASSISTANT SECRETARY DICKINSON: -- what they regard as their official insignia, and that they would send in a copy of the seal or the other insignia? MS. EDWARDS: To me, that would make sense MS. MATHIAS: Yeah. MS. EDWARDS: Because we all have our own seals. You know, Keweenaw Bay has their own seal. And whatever paper comes out of their head, you know, their letterhead, you know, has it on there. So, to me, that would be the main thing. What other questions are looking up for the Congress? ASSISTANT SECRETARY DICKINSON: I think that's the principal one we talked about. The other is how to establish a -- if we establish a registry, how we would JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 23 organize that registry and then use it. MS. EDWARDS: Well, it sound like you're putting everything on the internet. So that seems to be the superhighway of the future. I would like to know why -- I mean, you don't pay attention to it anyway. Didn't Congress pass a law saying that Native American jewelry has to be -- to call it Native American, it has to be stamped, you know, or something, Native American jewelry, official. And you have to have a card saying your registered with the tribe. Whatever happened to that law? MS. MATHIAS: That was the Arts and Crafts Law. MS. EDWARDS: Yeah. I mean, we have stuff selling -- ASSISTANT SECRETARY DICKINSON: That law has been cited to us as part of these hearings -- MS. MATHIAS: Yeah. ASSISTANT SECRETARY DICKINSON: -- so we are aware of that. MS. MATHIAS: Because we have trouble. Every pow-wow we go to, we have trouble. There are people, non-Indian, selling our things. ASSISTANT SECRETARY DICKINSON: One question I had was: You mentioned the concern you had over some of the derogatory nature of registered marks. I just wanted JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 24 to, in case you hadn't been aware, the Trademark Trial and Appeal Board, which is one of out boards at the Patent and Trademark Office, has cancelled several marks of one of the professional football teams, based in Washington, because the -- MS. MATHIAS: The Redskins. ASSISTANT SECRETARY DICKINSON: -- the name of the team was found by the Board to have been derogatory under section 2(a) of the -- MS. MATHIAS: What's going to happen now? Are they still going to be able to sell their paraphernalia? ASSISTANT SECRETARY DICKINSON: Well, we have cancelled the registration, and they, the owner, the previous owner of the registration, has a number of options, including appeal. And, basically, the ball is in their court to -- MS. MATHIAS: How long will that take? ASSISTANT SECRETARY DICKINSON: I don't have a good feel for that. I'd say probably several years. MS. EDWARDS: So they had registered it -- right? -- and said it was their exclusive use of "Redskins." That's allowed? MS. MATHIAS: What year was that? ASSISTANT SECRETARY DICKINSON: I'm not sure exactly. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 25 MS. MELTZER: In 1934. ASSISTANT SECRETARY DICKINSON: Are there any other -- well, do either of you have any further comment or statement for the record? Do we have any other witnesses? Those are my final two questions. MS. MC COY: I'm Melody McCoy. If the Patent and Trademark Office would permit, I have a copy of Ms. Fuller's testimony. I'd be happy to give it. ASSISTANT SECRETARY DICKINSON: That would be fine. Would you come forward? MS. MC COY: Sure. STATEMENT OF MELODY L. MC COY, ESQ. NATIVE AMERICAN RIGHTS FUND ON BEHALF OF TUOLUMME BAND OF ME-WUK INDIANS MS. MC COY: My name is Melody McCoy. I'm a staff attorney with the Native American Rights Fund, in Boulder, Colorado. The Native American Rights Fund represents a tribe located near here, the Tuolumme Band of Me-Wuk Indians. That tribe has turned to us for representation in protecting a number of aspects of their tribal intellectual property rights. And, so, we have, in response to the Patent and Trademark Office's request for JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 26 comments, filed comments on this issue about trademark protection. The Tribe's cultural resource specialist, Ms. Fuller, was unable to be here today; but she did prepare testimony for today; and it goes like this: The Tuolumme Band of Me-Wuk Indians appreciates this opportunity to testify today before the United States Patent and Trademark Office on the Statutorily Required Study of Official Insignia of Native American Tribes. The Tribe is very pleased that federal law may extend trademark protection to tribal insignia. Our comments today address why and how this extension should be accomplished. There are over 550 federally recognized American Indian and Alaskan Native Tribes in the United States today. Each tribe has a government-to-government relationship with the United States. While we no longer enter into treaties together, we'er still partners in many ways, based on our historic relationship and transactions. Congress recognizes tribal sovereignty and its trust responsibility to tribal sovereigns in exchange for the land, water and other resources that we have ceded to the United States since the country was founded. In this modern era of a federal policy of Indian Self-Determination, Congress has passed many good laws JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 27 regarding tribal sovereignty, Indian health and education and Native American natural resources. We also commend Congress' efforts to protect our traditional tribal cultures. They may not be perfect, but laws, such as the Native American Languages Act, The Indian Arts and Crafts Act, and the Native American Graves Protection and Repatriation Act, at least recognizes that our tribal cultures, identities, and values are critical to our survival. Similar protection needs to be afforded to tribal intellectual property. The laws just mentioned, like the Indian Arts and Crafts Act and the Native American Graves Protection and Repatriation Act, as well as other federal laws, protect many tangible aspects of our culture, such as arts and crafts and human remains and funerary and sacred objects. But there is no counterpart federal law protection for our intangible property -- our songs, our dances, our images, and our symbols. These intangibles are a vital and valuable part of tribal cultural and political integrity. That is especially so in the case of the Me-Wuk Tribe, which is small; we have only 333 members. Very little is left of our aboriginal territory, only a Rancheria of 335 acres located in East Central California. We are not a gaming tribe. Rather, we have identified our traditional JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 28 cultural heritage as one of our most valuable resources. We want to preserve and manage our history and culture in a professional and orderly manner that takes into account our traditions and sovereignty. To accomplish this goal, we have many projects. We are very active in repatriation efforts under the Native American Graves Protection and Repatriation Act. We have a Tribal Archives and Records Project. We plan to develop a Tribal Cultural and Intellectual Property Rights Code. Ultimately, we want to establish a Tribal Interpretative Center that would house an archival center, a curation facility, and a museum. The Center would serve our tribe as well as the neighboring Central Sierra Me-Wuk Tribal population, which is about 4,000, as well as scholars and the general public. Our tribal efforts must be supplemented by federal law, especially in the area of intellectual property rights. As a general rule, our tribal jurisdiction only extends within our tribal territory. This leaves vast areas unprotected. We have, in fact, had many bad experiences with misappropriation and misuse of our tribal intellectual property. Songs and designs have been stolen, taken well beyond our Rancheria, and used for profit by non-Indians, or not members of the tribe, without tribal permission or recompense. It seems that we JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 29 are powerless to stop these actions. We would be remissed and doing a disservice to our elders and our future generations if we did not try to change this situation. We have already submitted written comments to your agency on this matter. And, now, I will briefly summarize the highlights of these comments. Unlike the states, the Federal Government and foreign nations, Indian Tribes can register their insignia under current trademark law. This registerability for tribes should be preserved. The law should be amended to direct the Patent and Trademark Office to establish a separate registry of tribal official insignia. The law should also be amended to help tribes in instances where their insignia are sought to be registered or are misused by third parties. Any future registration and use of tribal insignia by third parties should be prohibited unless a tribe consents to the registration or use. In addition, tribal insignia that has already been registered or used by third parties without tribal consent should be subject to cancellation. Our proposed definition of Tribal Official Insignia is narrow. The insignia must include only those emblems, or seals, or designs, that represent the tribe's governmental authority. The insignia must be distinctive, and reasonable likenesses should be protected, as well. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 30 Most importantly, the insignia must consist of words plus graphic elements. Words alone, including tribal names, should not be considered insignia. However, we urge that trademark law and other federal law be reviewed accordingly to determine what, if any, additional protections should be afforded to tribal names. So, we are proposing that trademark law give tribes the exclusive right to register and use their insignia. This is justified by the unique federal-tribal relationship, the trust responsibility, and the congressional goals of tribal economic self-sufficiency. Our attorneys in this matter, the Native American Rights Fund, are submitting separate testimony that details the law and policy reasons for our proposal in more detail. We thank you for this opportunity to testify today on this important matter, and we are happy to answer to any questions or provide further information to help you. ASSISTANT SECRETARY DICKINSON: Thank you very much, Ms. McCoy. That's excellent testimony. I appreciate, in particular, the balance of interests that it addresses. Do you have time for a few questions? MS. MC COY: Yes. ASSISTANT SECRETARY DICKINSON: Let me ask, are you aware of tribes, and does the Tuolumme Band of Me-Wuk JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 31 Indian Tribes, have an official insignia? Have they taken official action, for example? Or, how would they do -- how would you suggest we consider what constitutes an official insignia when it's submitted to us? MS. MC COY: I think the answer to that is that the Tribe has a logo that it uses. It primarily consists of a the acorn depicted in a way with some of its traditional basketry. I can give you a copy of that. This is, I think, what they would consider their logo. In addition to that, some tribes have no just a logo, per se; but they have something more resembling what non-tribal governments would call a seal or a flag. ASSISTANT SECRETARY DICKINSON: Right. MS. MC COY: And most tribes, of which I am aware -- and I'm speaking now not necessarily on behalf of the Me-Wuks; but from my experience in working with tribes -- they do have seals or flags. How these are adopted by the tribes, as a matter of their internal processes, in other words, whether they use elders, or whether they use artists, or whether they use their own government, it seems to me is a matter for the tribe. ASSISTANT SECRETARY DICKINSON: Right. MS. MC COY: But once the tribe agrees on that and presents it to a federal agency, like the Patent and Trademark Office, then, it seems to me, it's the JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 32 responsibility of the Patent and Trademark Office to consider that the official -- unless the tribe provides notice that we're changing our symbol. For example: I would think that, just like any other registering of a trademark, or when the Patent and Trademark Office considers, for example, the state of California saying that this our official seal, and it takes the government's word for that, the same thing, though, I think is required in your looking at trademark registerability, which is: Whether it's been used and, you know, will be used in commerce, or it's used in a manner by the government. Same thing. I mean, if the tribe today were to come forward and say: Oh, we consider the Nike Swoop as our official tribal insignia, I would think that there are a normal means already available in the law for the Patent and Trademark Office to review that and question it appropriately. So I don't think there really will be a problem. I think the real problem is not so much in how the tribe decides to present its, or decides on its, seal, or logo, or insignia. The real issue -- there may be some disputes between tribes. I mean, suppose you have tribes that, you know, for whatever reason they both claim the acorn as a symbol. You know, again, then it would have to JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 33 be distinctive. The tribe, it would virtually be on the tribe to say: This is the way that we consider the acorn. But that is no so different. How many states use stars and stripes, moons, flowers, like that, too; or, you know, other graphic elements. So I really don't think there would be too many inter-tribal disputes, because, as has been said, you know, tribes are unique: They have their own histories and cultures. ASSISTANT SECRETARY DICKINSON: Well, I think that was very valuable testimony. Thank you. All of the testimony today was very, very valuable. Are there any questions from any of the panel members? MR. WALSH: I have a question -- ASSISTANT SECRETARY DICKINSON: Mr. Walsh. MR. WALSH: -- I could ask Ms. McCoy, just a clarification on the portion of the testimony that dealt with what an insignia is. It says, in the written part it says, "Words alone should not be considered insignia." And it also says, "... the insignia must consist of words plus graphic." I just wanted to clarify. The logo that you showed us for the Me-Wuk Tribe doesn't have any words in it. Would a graphic element JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 34 alone be okay? MS. MC COY: I would think so. MR. WALSH: Okay. MS. MC COY: Yes. Again, you know, as long as it's not a Nike Swoop. But in and of itself, I would think that there is no requirement that -- I don't know, but, you know, the, for example, the American Flag has no -- well, that's not a good example, because that's not registerable because it's the American Flag. But I can think of situations where there would be no reason to have the words. So, no. It's the opposite, though. The words alone I don't think are a good subject for this particular task that Congress has assigned the agency. I think that's a separate, separate issue. MS. EDWARDS: But they do use "Made in USA," and "Made in China." MS. MC COY: Right. MS. EDWARDS: Made by Me-Wuk or Ojibwa. MS. MC COY: Right, but not as a -- it's my understanding that's not necessarily a trademark. I would think, though, that -- ASSISTANT SECRETARY DICKINSON: Let me ask you a question along that line. Are you aware of any tribes in your experience, or maybe the Tuolumme Band, who may have sought to register their own trademarks as trademarks for JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 35 various goods or services? MS. MC COY: I don't know of any tribes that have registered their official so-called fields or flags. Although, I see tribal seals, flags, and the letterhead logos routinely throughout Indian Country. I do know that we did do, in preparation for our representation of the Tuolumme Tribe in this matter, we have run a search of tribal economics enterprises that are registering their trademarks and logos. We came up with, I think, just short of 200 entries that appear to be by tribal economic enterprises, most notably the gaming facilities that are registering those. So someone is advising the tribal economic enterprises on that matter, and they are registering, I assume, without problems, and proceeding accordingly on the commercialization and merchandising of that. ASSISTANT SECRETARY DICKINSON: Yes. MS. MC COY: But I am not familiar with -- I think that most tribes are unaware of the need for the process to go through to register their seals and flags and letterheads. It just has not been a problem and it gets intertwined with the issues of the use of tribal mascots, names and symbols of that, as well, and images. So, again, for purposes of this, which I know is dealing just with the official insignia, and I presume JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 36 flags, as well, I don't know. To my knowledge, I don't think there are any registered. ASSISTANT SECRETARY DICKINSON: We have had brought to our attention at least one example where a tribe had registered their name for various goods and services, both I think government services and clothing, if I'm not mistaken. I don't remember, unfortunately, the exact mark. One thing which this hearing might also help to do is bring to the various Tribe's attention that the marks themselves are registerable independently as trademarks, as you had mentioned in your testimony. And, just to give a little pitch, we now register -- we now accept applications electronically over the internet on our web site, which is www.uspto.gov. And, for $245, we'll take your credit card -- MS. EDWARDS: How much? ASSISTANT SECRETARY DICKINSON: Two Hundred and forty-five dollars, but hurry. MS. MC COY: One thing, if I could add briefly, is that, for most tribes, you also have to realize that the idea of registering a seal, why do it? They haven't had a problem with that. They may market a few T-shirts, a few key chains, things like that; but no one else is probably doing that. JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 37 I think more of the issue comes in when you're dealing with, for example, the Me-Wuk Tribe's acorns and style of basketry. You know, for some of that, they would not -- the trademarking comes in, I think, for enterprises that are interested in economic profit and commercialization. For some tribes, they would say: Why in the world would we ever want to register our acorns. Wee would never sell them. We don't, you know, we're not in that business of it. So, again, you have to understand where the tribe is coming from when they're asked: Have you ever considered registering this? And I think, too, that, for the same reason, with all due respect, they might say: Why should we register anything with the government? Every time we've registered something with the government, it has resulted in a loss for us. So perhaps this is an opportunity to turn that around. ASSISTANT SECRETARY DICKINSON: Thank you very much, Ms. McCoy. Is there any further testimony? [No response.] Hearing none, I want to thank everyone for -- MS. EDWARDS: I just wanted to say -- ASSISTANT SECRETARY DICKINSON: I'm sorry. MS. EDWARDS: -- have you written to all the JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 38 tribes? And, instead of going to San Francisco, where are all the tribal people going to -- you know, except for her -- do you know what I mean? MS. MC COY: I found out about this hearing by submitting the comments. I've been watching the legislation since it was passed in October, because my client has directed me to follow this issue through. ASSISTANT SECRETARY DICKINSON: We've been directed to make sure this was as widely known as we could, through Senator Bingaman's office, in particular, and by the legislation. We've had it on our web site. We sent out notices. We had a very healthy response in Albuquerque, and we'll have another hearing this coming week in Washington, D. C. It will be the third of the three. So, if you're aware of additional witnesses, or additional tribes, or others, who wish to submit testimony, we will be accepting written testimony until -- MS. MELTZER: July 30. And just to let you know, we have some limitations on us, as a federal agency. We can't solicit individuals, necessarily, to -- MS. EDWARDS: That's not individuals, though. The tribes, the tribal councils, the chairmen, or, you know -- ASSISTANT SECRETARY DICKINSON: We're not allowed JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 39 to solicit witnesses, I'm afraid. MS. EDWARDS: But the way to do that is to write a letter to the tribe, saying what's happening, you know, and do they wish to -- ASSISTANT SECRETARY DICKINSON: Very good suggestion. Thank you. Any other comment or suggestions? [No response.] I want to thank all the witnesses for appearing today, taking time out of what I know are very busy schedules. We appreciate the opportunity to accept this testimony today. It is very valuable to us, as we go about our deliberations. As Ms. Meltzer pointed out, we will be accepting written comments until July 30, and we will have our report prepared for Congress -- MS. MELTZER: By September 29. ASSISTANT SECRETARY DICKINSON: So we will attempt to do this as expeditiously as possible. So you will hear back as quickly as possible. The transcript from today's testimony will be on our web site fairly quickly, I hope, as will the results and our report. So it will be publicly available and hopefully easily accessible on the internet, as well as on paper. MS. MELTZER: If anybody here would like to have JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 40 a copy of the transcripts, not only will it be available on the web site, but we can fax to you or mail it to you. MS. EDWARDS: Okay. MS. MATHIAS: Okay. MS. EDWARDS: That's be good. Do you have my address? ASSISTANT SECRETARY DICKINSON: Thank you very much. We appreciate it. This hearing is adjourned. (Whereupon, at 10:55 a.m., the hearing was concluded.) JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460 41 C E R T I F I C A T E I hereby certify that this is the transcript of the proceedings held before the UNITED STATES PATENT AND TRADEMARK OFFICE on Monday, July 12, 1999 at San Francisco, California in , and that this is a full and correct transcription of the proceedings. JAMES W. HIGGINS Certified Verbatim Reporter JAMES W. HIGGINS, CVR San Francisco, California (415) 621-2460