At no point has the Access Right of Indigenous Peoples to managed to= break into the DNS policy debate through any argument of necessity or= utility. Similarly, at no point has the Intellectual Property Right of= Indigenous Peoples managed to break into the DNS policy debate, under any= theory of law.

This draft paper is an expression of members of the Tribal Law and IETF= communities, addressing the second and dependent issue arising out of the= Generic Top Level Domain Memorandum of Understanding (gTLD-MOU) and the= subsequent efforts to move the authority for, and control of, the Domain= Name System (DNS) from the exclusive authority and control of the United= States of America.

That issue is the legal framework for the resolution of conflicts in the= DNS namespace, and the role of, and mechanisms and policies employed by,= the set of fundamental DNS actors -- Registries, Registrars, WIPO, and the= Courts. The reader is reminded that envisioned subset of application of the= WIPO RFC3 is the "generic" or gTLDs, not the "Country Code" or ccTLDs.

Our first comment on the text of the Interim Report of the WIPO Internet= Domain Name Process of 12/23/98 is that it contains no references to the= International Labor Organization Convention 169, "Indigenous and Tribal= Peoples Convention, 1989", ILO 169 hereafter.

The significance of this omission is multi-faceted.

In the first instance, WIPO derives its organizational mandate from the= UN, as does the ILO. Intellectual Property is not unique to the signatories= to the Paris Convention for the Protection of Industrial Property (Paris)= or the parties to the World Trade Organization (WTO) or the Agreement on= Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). In= fact, as last October's Kwataqnuk Conference (Colonialism through= Biopiracy, hosts Confederated Salish and Kootenai Tribes) amply= demonstrated, non-parties to these agreements -- Indigenous Polities --= hold aboriginal title to a vast range of intellectual properties.

Of the polities which are parties to these agreements -- States =96= several stand in a Colonial Relationship with Indigenous Polities --= "Non-States". Further, many also stand in a Neo-Colonial Relationship with= a significant plurality of the "State" polities. The UN Charter simply does= not empower a dependent entity such as WIPO to further inequitable= relationships amongst polities, whether the dubious doctrine of "Blue= Water" is invoked, or the equally dubious doctrine of "Market Forces", or= the fictive "technical" neutrality.

As Faithkeeper and Chief of the Onondaga Nation Mr. Oren Lyons mentioned= in his address to the United Nations General Assembly in New York on= December 10, 1992:

The WIPO Interim Report lacks a statement that the envisioned Final= Report will be reconciled with ILO 169, and that WIPO organizationally is= aware of how perilously close the historically abrupt expansion of the= dominant Intellectual Property regime is to the true sense of Article 2(c)= of UN Resolution 260 (III).

Our second comment on the text of the Interim Report of the WIPO Internet= Domain Name Process of 12/23/98 is that it contains no reference to the= specific jurisdictional relief historically, continuously, and modernly= sought by Indigenous Polities. Numerous legal commentaries have documented= the historical and continuous attempts of Indigenous Polities to obtain= access to the very cornerstone of the rule of law =96 neutral third party= adjudication [1].

The foundations of Modern International Law are the Papal Bulls of 1493= and 1537, Inter Cetera and Sublimus Deus, respectively. Inter Cetera= extended "Natural Law" to International Law and negated the right of= Indigenous jurisdiction and property in the temporal and economic context= of Columbian Contact. Sublimus Deus reaffirmed this extension of "Natural= Law", but like ILO Convention 169, affirmed the rights of Indigenous= jurisdiction and property in the temporal and economic context of the= Second Audiencia [2].

While much of the Interim Report deals with jurisdictional issues, the= text is silent on whether or not Indigenous polities have either= jurisdictions or jurisdictional preferences. We do. We strongly prefer= having our cases and controversies adjudicated by neutral third-party= institutions. It is our fundamental observation that the Courts of the= United States [3], Canada [4], Australia, New Zealand, to name only four= polities with similar legal languages, a core "Common Law" legal culture,= and a shared context up to 1763, are parties to the cases and controversies= to which we are parties.

There is a considerable risk, absent a clarification of WIPO's intent to= mandate equitable jurisdictional access to cases and controversies in which= Indigenous Polities are parties, that these inevitable, necessary and even= desirable conflicts will be "tried" in Courts that are parties to the= cases.

Tribal Courts are proper venues for the Alternative Dispute Resolution= (ADR) and litigation envisioned in RFC3. Neutral third-party adjudication= of claims brought by Indigenous Polities, whether through an ADR process or= litigation requires waiving the exclusive jurisdictional pretenses of= Courts over "their natives".

The WIPO Interim Report lacks a statement that the envisioned Final= Report will make affirmative reference to Tribal jurisdictions and as a= matter or fundamental principle, afford equitable jurisdictional access to= Tribal courts for the ADR and litigation envisioned in RFC3. Alternatively,= the WIPO Interim Report lacks a statement that the envisioned Final Report= will provide an effective mechanism for Indigenous Polities to obtain= access to third-party adjudication. Further, the Final Report must= demonstrate that WIPO is organizationally aware how perilously close the= jurisdictional regimes which dominate Indigenous Polities are to the true= sense of Article 2(c) of UN Resolution 260 (III).

As the Final Report of the Special Rapporteur, Mrs. Erica-Irene Daes, on= the Protection of the Heritage of Indigenous People,= E/CN.4/Sub.2/1995/26, noted, the World Intellectual Property Organization= originally maintained "that its activities do not include the= protection of the heritage of indigenous peoples." (Par. 12). It= therefore had requested that all references to WIPO be deleted from the= draft guidelines prepared by the Special Rapporteur as an annex to the= Final Report. But, as noted by the Special Rapporteur in her Supplementary= Report taking account of additional comments and information received from= Governments, intergovernmental and non-governmental organizations,= E/CN.4/Sub.2/1996/22, WIPO subsequently modified its position in response= to the Special Rapporteur=92s second invitation to comment on her final= report. WIPO indicated that it foresaw the need to organize an= international symposium on the preservation and legal protection of= folklore, in cooperation with UNESCO.

The draft guidelines contained in the Final Report on the Protection= of the Heritage of Indigenous People make it clear that WIPO=92s= DNS-related activities do affect the interests and intellectual property= rights of indigenous peoples, and that WIPO is obligated under broadly= recognized principles of customary international law, widely accepted by= the UN Human Rights system, as evidenced by ILO 169, the Working Group on= Indigenous Peoples Draft Declaration on the Rights of Indigenous Peoples,= the OAS draft declaration on Indigenous Rights, and other UN instruments,= treaties and agreements to consult closely with indigenous peoples and= organizations before moving forward in this area. See the Appendix for= specifics.

We close with a statement made by Woodrow Wilson, President of the United= States, in 1907 on the central issue of trade, law and power:

We recommend that a brief addenda to RFC3 be issued by WIPO with the= process and timetable through which the WIPO DNS RFC texts shall become= reconciled with ILO 169.

We recommend that a brief addenda to RFC3 be issued by WIPO with the= process and timetable through which the WIPO DNS RFC, the substantive= critical text of Professor Michael Froomkin, and the principles of equity= of jurisdictional access and third-party adjudication are reconciled.

We recommend that WIPO hold a series of combined workshops at the= principle Indigenous Law Program Schools with the faculty, judiciary and= practitioners of representative principle Tribal Courts, and regional= Indigenous ISPs in North and South America, East Asia and Oceania.

We further recommend that WIPO execute its outstanding commitment to hold= an international symposium on the preservation and legal protection of= folklore, in cooperation with UNESCO.

We finally recommend to the ICANN that it retain responsibility for= trademark and other forms of Intellectual Property Right protection within= the DNS for Indigenous Peoples for 1999, and establish the relationship set= forth in our third recommendation by the end of the current year.

Comments on this draft may be addressed the authors listed below.

Eric Brunner, Software Architecture Group

Nokia Research, Boston

Robert Williams, Jr., Tribal Law and Policy Program,

University of Arizona School of Law

Affiliations are shown for identification only.

The literal translation is "where we have a black door(s)".

Peter d=92Errico, UMASS Dept. of Legal Studies, co-signs.

Karen Buller, National Indian Telecommunications Institute, co-signs.

Technical members of Treaty7.org and the Nevada Indian Environmental= Coalition (NIEC), regional Tribal ISPs contributed to this effort.

Dr. Clark and especially Chief Lyons are thanked for their contributions,= without which much would have been left unsaid. The anonymous NITI reviewer= is also thanked for catching an otherwise fatal error.

Several attendees of IETF-43, particularly John Gilmore, Jim Gettys, and= the SRS BOF organizers are thanked for their contributions.

Dr. Jon Postel is posthumously acknowledged for making the time to= initiate, late in his life, a discussion on some weaknesses of political= geography as a mechanism for the partition of the DNS namespace,= particularly ISO 3166 and the NSN.US SLD.

The Principles contained in this Report state:

1. The effective protection of the heritage of the indigenous peoples of= the world benefits all humanity. Cultural diversity is essential to the= adaptability and creativity of the human species as a whole.
2. To be effective, the protection of indigenous peoples' heritage should= be based broadly on the principle of self-determination, which includes the= right and the duty of indigenous peoples to develop their own cultures and= knowledge systems, and forms of social organization.
3. Indigenous peoples should be recognized as the primary guardians and= interpreters of their cultures, arts and sciences, whether created in the= past, or developed by them in the future.
4. International recognition and respect for indigenous peoples' own= customs, rules and practices for the transmission of their heritage to= future generations is essential to these peoples' enjoyment of human rights= and human dignity..
5. Indigenous peoples' ownership and custody of their heritage must= continue to be collective, permanent and inalienable, as prescribed by the= customs, rules and practices of each people.
6. The discovery, use and teaching of indigenous peoples' knowledge, arts= and cultures is inextricably connected with the traditional lands and= territories of each people. Control over traditional territories and= resources is essential to the continued transmission of indigenous peoples'= heritage to future generations, and its full protection.
7. To protect their heritage, indigenous peoples must control their own= means of cultural transmission and education. This includes their right to= the continued use and, wherever necessary, the restoration of their own= languages and orthographies.
8. To protect their heritage, indigenous peoples must also exercise control= over all research conducted within their territories, or which uses their= people as subjects of study.
9. The free and informed consent of the traditional owners should be an= essential precondition of any agreements which may be made for the= recording, study, use or display of indigenous peoples' heritage.
10. Any agreements which may be made for the recording, study, use or= display of indigenous peoples' heritage must be revocable, and ensure that= the peoples concerned continue to be the primary beneficiaries of= commercial application.

The Definitions contained in the Guidelines also are clear:

11. The heritage of indigenous peoples is comprised of all objects, sites= and knowledge the nature or use of which has been transmitted from= generation to generation, and which is regarded as pertaining to a= particular people or its territory. The heritage of an indigenous people= also includes objects, knowledge and literary or artistic works which may= be created in the future based upon its heritage.
12. ***
13. Every element of an indigenous peoples' heritage has traditional owners,= which may be the whole people, a particular family or clan, an association= or society, or individuals who have been specially taught or initiated to= be its custodians. The traditional owners of heritage must be determined in= accordance with indigenous peoples' own customs, laws and practices.

The Principles are also clear on the issue of transmission of indigenous= heritage:

14. ***
15. In the event of a dispute over the custody or use of any element of an= indigenous peoples' heritage, judicial and administrative bodies should be= guided by the advice of indigenous elders who are recognized by the= indigenous communities or peoples concerned as having specific knowledge of= traditional laws.
16. Governments, international organizations and private institutions should= support the development of educational, research, and training centres= which are controlled by indigenous communities, and strengthen these= communities' capacity to document, protect, teach, and apply all aspects of= their heritage.
17. Governments, international organizations and private institutions should= support the development of regional and global networks for the exchange of= information and experience among indigenous peoples in the fields of= science, culture, education and the arts, including support for systems of= electronic information and mass communication.
18. Governments, with international cooperation, should provide the= necessary financial resources and institutional support to ensure that= every indigenous child has the opportunity to achieve full fluency and= literacy in his/her own language, as well as an official= language.

The Principles also recommend national programs and legislation:

1. National laws should guarantee that indigenous peoples can obtain= prompt, effective and affordable judicial or administrative action in their= own languages to prevent, punish and obtain full restitution and just= compensation for the acquisition, documentation or use of their heritage= without proper authorization of the traditional owners.
2. National laws should deny to any person or corporation the right to= obtain patent, copyright or other legal protection for any element of= indigenous peoples' heritage without adequate documentation of the free and= informed consent of the traditional owners to an arrangement for the= sharing of ownership, control, use and benefits.
3. National laws should ensure the labeling and correct attribution of= indigenous peoples' artistic, literary and cultural works whenever they are= offered for public display or sale. Attribution should be in the form of a= trademark or an appellation of origin, authorized by the peoples or= communities concerned.
4. National laws for the protection of indigenous peoples' heritage should= be adopted following consultations with the peoples concerned, in= particular the traditional owners and teachers of religious, sacred and= spiritual knowledge, and, wherever possible, should have the informed= consent of the peoples concerned.
5. National laws should ensure that the use of traditional languages in= education, arts and the mass media is respected and, to the extent= possible, promoted and strengthened.
6. Governments should provide indigenous communities with financial and= institutional support for the control of local education, through= community-managed programmes, and with use of traditional pedagogy and= languages.
7. Governments should take immediate steps, in cooperation with the= indigenous peoples concerned, to identify sacred and ceremonial sites,= including burials, healing places, and traditional places of teaching, and= to protect them from unauthorized entry or use.

Finally, the Principles deal specifically with the responsibilities of= international organizations, including WIPO:

1. The Secretary-General should ensure that the task of coordinating= international cooperation in this field is entrusted to appropriate organs= and specialized agencies of the United Nations, with adequate means of= implementation.
2. In cooperation with indigenous peoples, the United Nations should bring= these principles and guidelines to the attention of all Member States= through, inter alia, international, regional and national seminars= and publications, with a view to promoting the strengthening of national= legislation and international conventions in this field.
3. The United Nations should publish a comprehensive annual report, based= upon information from all available sources, including indigenous peoples= themselves, on the problems experienced and solutions adopted in the= protection of indigenous peoples' heritage in all countries.
4. Indigenous peoples and their representative organizations should enjoy= direct access to all intergovernmental negotiations in the field of= intellectual property rights, to share their views on the measures needed= to protect their heritage through international law.
5. In collaboration with indigenous peoples and Governments concerned, the= United Nations should develop a confidential list of sacred and ceremonial= sites that require special measures for their protection and conservation,= and provide financial and technical assistance to indigenous peoples for= these purposes.
6. In collaboration with indigenous peoples and Governments concerned, the= United Nations should establish a trust fund with a mandate to act as a= global agent for the recovery of compensation for the unconsented or= inappropriate use of indigenous peoples' heritage, and to assist indigenous= peoples in developing the institutional capacity to defend their own= heritage.
7. United Nations operational agencies, as well as the international= financial institutions and regional and bilateral development assistance= programmes, should give priority to providing financial and technical= support to indigenous communities for capacity-building and exchanges of= experience focused on local control of research and education.
8. The United Nations should consider the possibility of drafting a= convention to establish international jurisdiction for the recovery of= indigenous peoples' heritage across national frontiers, before the end of= the International Decade of the World's Indigenous People.