Tribal Restrictions on Sharing of Indigenous Knowledge on Uses of Biological Resources

• Decision Date: 12 October 1999
• Docket Number: 99-24
• Citation: 23 Op. O.L.C. 235
• Parties: Tribal Restrictions on Sharing of Indigenous Knowledge on Uses of Biological Resources
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

23 Op. O.L.C. 235

Tribal Restrictions on Sharing of Indigenous Knowledge on Uses of Biological Resources

No. 99-24

United States Department of Justice

October 12, 1999

RANDOLPH D. MOSS Acting Assistant Attorney General Office of Legal Counsel

Tribal Restrictions on Sharing of Indigenous Knowledge on Uses of Biological Resources

The Indian Civil Rights Act, rather than the federal Constitution, limits the power of an Indian tribe vis-a-vis its members. In interpreting provisions of the ICRA, it is appropriate to look to precedents under analogous constitutional provisions constraining federal and state action, although particular facts about tribal structure and traditions may be relevant to the analysis.

In some factual circumstances, a tribal ordinance prohibiting members from sharing, with researchers or others outside the tribe information on possible commercial uses of biological resources would raise concerns under the free speech provision of the ICRA. The legality of such an ordinance would depend on a number of factors including how widely known the information is; whether those who hold the information have a particular relationship of trust with the tribe; the magnitude of the tribal interest underlying the tribe's effort not to disclose the information; and whether the information can be viewed as tribal property under an intellectual property regime that is otherwise consistent with applicable law.

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL ENVIRONMENT AND NATURAL RESOURCES DIVISION

This memorandum responds to the Environment and Natural Resources Division's request, conveyed orally, for guidance on whether an Indian tribe's efforts to prevent its members from disclosing, to researchers or others outside the tribe information on possible commercial uses of biological resources would raise First Amendment or other concerns. As discussed below, the request raises several complex issues that cannot be resolved fully in the abstract. We therefore attempt only to set forth the general framework that might guide the analysis of a tribal restriction on members' ability to share information with outside researchers. First the Indian Civil Rights Act ("ICRA"), 25 U.S.C §§1301-1341 (1994), rather than the federal Constitution, limits the power of an Indian tribe vis-a-vis its members. Although the ICRA contains a free speech clause similar to that of the First Amendment, it is unclear whether a tribal action limiting the speech of tribal members would be evaluated under the same substantive standards as federal and state action. The task of interpreting the ICRA falls primarily to tribal courts. We have not attempted to survey the decisions of the varied tribal court systems to determine how tribal courts interpret the ICRA's substantive guarantees. Second, even if conventional free speech principles apply, the legality of tribal action could depend upon factual circumstances likely to vary from tribe to tribe. In particular, the analysis could turn in part on the relationship between the tribe and those who hold the relevant information, whether the information in question should be viewed as tribal property, and the importance of the tribal interest in nondisclosure. We are not in a position to identify and evaluate the range of possibilities in this regard. In some factual circumstances, however, it is possible that a tribe's [ 236] attempt to guard against disclosure of information by directly prohibiting its members from sharing that information with others would violate the free speech provision of the ICRA.

I. Background

The request for views presented arises in connection with the United States' involvement in implementation of the Convention on Biological Diversity, opened for signature June 5, 1992, S. Treaty Doc. No. 103-20, 31 I.L.M. 818 (entered into force Dec. 29, 1993). The United States signed the Convention on June 4, 1993, but the Senate has not ratified it. The United States is involved as an observer in international negotiations concerning the implementation of the Convention. Article 8(j) of the Convention addresses indigenous knowledge of uses of biological resources. It provides:

Each Contracting Party shall, as far as possible and as appropriate:

. . . .

j. Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.

An interagency working group discussing the United States' position on implementation of Article 8(j) has raised the question whether federal law imposes limits upon indigenous communities' own efforts to protect indigenous knowledge through direct restrictions on members' ability to reveal such knowledge to outside researchers.^[1] In turn, you have asked us to provide you with a general background discussion on the possible impact of the First Amendment on such restrictions. [ 237]

II. Discussion

A.

As a general matter, constitutional provisions limiting the actions of federal and state governments do not constrain Indian tribes exercising inherent powers of self-government. See Talton v. Mayes, 163 U.S. 376 (1896). Accordingly, the First Amendment ordinarily would not restrict a tribe's efforts to prohibit its members from sharing information concerning uses of biological resources with researchers. See Native American Church of North America v. Navajo Tribal Council, 272 F.2d 131, 134 (10th Cir. 1959) (First Amendment religion clauses do not constrain tribal action); Janis v. Wilson, 385 F.Supp. 1143, 1149 (D.S.D. 1974) (First Amendment Free Speech Clause does not constrain tribal action); Dodge v. Nakai, 298 F.Supp. 17, 23 (D. Ariz. 1968) (same).^[2] Through title I of the Indian Civil Rights Act, ^[3] however, Congress has imposed upon tribes restrictions similar to several of those contained in the Bill of Rights and the Fourteenth Amendment. See 25 U.S.C. §§ 1301-1303. The Act includes a provision parallel to the Free Speech, Assembly, and Petition Clauses of the First Amendment: ' 'No Indian tribe in exercising powers of self-government shall . . . make or enforce any law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances." 25 U.S.C. § 1302(1).

In analyzing the application of title I of the ICRA to tribal efforts to guard against disclosure of indigenous knowledge, we first consider a threshold question: whether, in evaluating tribal action, it is appropriate to look to precedents under analogous constitutional provisions constraining federal and state action. As will become clear, the text, structure, and legislative history of the ICRA give rise to two lines of argument regarding its interpretation. Because the task of interpreting the ICRA falls primarily to tribal courts, it is difficult to predict whether [ 238] tribal action would be analyzed under the standards that apply to federal and state action. Nevertheless, we believe that the better view is that conventional First Amendment principles, applied with due regard for tribal traditions and customs, should govern the analysis of a tribal restriction on speech.

As the Supreme Court stated in Santa Clara Pueblo v. Martinez, the Indian Civil Rights Act reflects Congress's intent to "strengthen[] the position of individual tribal members vis-a-vis the tribe." 436 U.S. at 62. As noted, the text of the free speech clause of § 1302(1) is virtually identical to that of the First Amendment, just as other provisions of title I of the ICRA track the language of other guarantees contained in the Bill of Rights. It could be argued, then, that Congress's use of language virtually identical to that of corresponding constitutional provisions reflects a clear intent to hold tribal governments to the substantive standards applied to federal and state action. The Senate Report accompanying the ICRA provides some support for this view. S. Rep. No. 90-841, at 6 (1967) (stating that the limitations of title I "are the same as those imposed on the Government of the United States by the U.S. Constitution and on the States by judicial interpretation"); id. at 10-11 (Title I "provides that any Indian tribe in exercising its powers of local self-government shall, with certain exceptions, be subject to the same limitations and restraints as those which are imposed on the Government of the United States by the Constitution.").

Nevertheless title I of the ICRA does not impose on tribal governments the full range of constitutional restraints. Rather, the statute incorporates specific rights. Among the constitutional provisions omitted in the statute are the guarantee of a republican form of government, a prohibition on the establishment of religion, and the Second and Third Amendments. In addition, the statute does not require jury trials in civil cases or the appointment of counsel for indigent defendants in criminal cases. The ICRA's legislative history confirms that, in incorporating particular rights rather than all constitutional restraints, Congress sought to limit the extent of its intrusion upon tribal sovereignty. As the Supreme Court stated in Santa Clara Pueblo, Congress sought "to promote the well-established federal 'policy of furthering Indian self-government.' " 436 U.S. at 62 (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). Indeed, the first version of what would...