Developing Policies and Protocols for the Culturally Sensitive Intellectual Properties of the Penobscot Nation Of Maine Project Summary The Penobscot Indian Naion (Maine, USA), with support from partners at the University of Massachusets-Amherst, developed tribal protocols, tools, and organizaional structures to address intellectual property (IP) issues related to archaeology and heritage-based places. What community needs or quesions did this project address? • How does the concept of IP apply to the Penobscot Naion? • How can the Penobscot Naion idenify and prevent abuses of their IP rights? • What prioriies and goals for safeguarding and protecing tribal IP should be adopted by the Penobscot Naion and how can these be integrated into exising tribal organizaional structures and cultural/research iniiaives? • The need for ceriicaion and training for researchers who want to work with the Penobscot Naion. How did the team approach their work and what methods did they use? • Members of the Penobscot Naion designed, directed, and implemented this community-based project, with support from UMass partners. • Penobscot sovereignty and self-determinaion were foundaional principles that guided every aspect of the project • The methodology was deliberately designed to counter the invasive and extracive qualiies all too common in relaionships between researchers and Indigenous communiies. • Conducted background research on tribal historic preservaion law and policy and on applicaions of IP law. • Created a working group of tribal experts to explore the concept of IP and its applicaions to the Penobscot Naion and its people. • Organized a workshop that invited outside experts to expand understandings of IP, idenify challenges for the Penobscot Naion, and explore legal channels for protecing knowledge and material culture. • Designed and administered a community survey to promote awareness of IP issues among community members and obtain feedback on plans for protecing Penobscot IP. • Developed a community educaion iniiaive, focused on Penobscot IP rights. What did the project accomplish? • The IP Working Group developed a deiniion of Penobscot Community IP Rights and created administraive structures, policies, and tools to support tribal decision-making on IP issues and research relaionships. • The Penobscot Tribal Rights and Resources Protecion Board (PTRRPB) formed, responsible for review and oversight of research conducted by non-tribal members that involves Penobscot Naion cultural resources. • The group carried out aciviies to assist tribal oicials and community members to understand IP issues beter. • Recommendaions outlined for coninued atenion to tribal IP rights in heritage-related decision-making, both within the Penobscot Naion and in relaion to state government. What were the main challenges? • Issues related to bureaucraic requirements for academic research came close to derailing the project: delays in ethics review; diferences of opinion over consent forms; diiculies in transferring funds; and disagreement over language in the grant agreement about who would own the intellectual property resuling from the study. • Limits on the ime, capacity, and prioriies of those involved. • Changes in tribal administraion mean that periodic updates will coninue to be necessary. • Ongoing creaive and sustained eforts are needed to integrate this project with research review processes and heritage work. What insights about intellectual property and cultural heritage emerged? • Discussions about heritage-related IP (What is it? How does it afect us? What do we need to protect and how?) need to take place at the community level, and even then at several diferent community levels, such as among key oicials as well as the general public. • Outsider knowledge, experience, and resources can support these conversaions, but not replace them. • Once communiies idenify areas of concern, they can begin to set prioriies and work together to develop policies and protocols that will protect community IP rights. “ One major challenge is idenifying the human and inancial resources to devote to such an efort. Another is acquiring the knowledge necessary to do so efecively. Geing buy-in from the tribal community for the importance of this efort is also a challenge.” -Member, Penobscot IP Working Group Intellectual Property Issues in Cultural Heritage Project | June 2014 | www.sfu.ca/ipinch “ • Drat policies that are clear enough to achieve your objecive but not too speciic to lock yourself into certain processes. • People need to be able to trust that informaion is used and disbursed as agreed upon. • Prepare to re-visit heritage protecion plans. What works now may not work in a couple months or years. The most profound part of this experience for me is when we as a group and individually were confronted with the quesion of what it means to be Penobscot. Culturally we come from such a fractured experience. It’s not always clear what has been passed down to us by our ancestors and what has been imposed on us by the dominant society. Deining for ourselves who we are and what is important to us culturally is a dauning task.” -Member, Penobscot IP Working Group What lessons about good research pracices emerged? What resources, guidelines, or tools created by the project are available? • Never assume to know what it is like to be a Penobscot or an Indigenous person if you are not a member of that community. • Research should always be relevant and beneficial to the tribal community. • Researchers should understand the fundamental values of the community, which will clarify the values that they bring to the research agreement. • Researchers must respect the researched community and have empathy for past indiscreions and how these have contributed to current feelings of apprehension towards outside researchers. • Academic partners can play important supporing roles, such as: a) assising with negoiaing university-level funding transfers, ethics review, and research agreements b) providing access to addiional sources of knowledge, experise, and funds. •Engage with tribal leadership early on and sustain that engagement throughout. • Situate the project within exising tribal infrastructure and administraion to maximize capacity and minimize overlap. • Establish a commited working group composed of people already involved and invested in these issues. • Obtain informed consent on a community basis—either through a review board or formal governmental process. • Inform the community about the work and keep them updated. • Designate a key contact person within tribal administraion to monitor the project and be available to assist and guide the researcher(s). • Create a writen agreement that clearly deines the responsibiliies and rights of each party. • Idenify key players, then work to get buy-in from them. • Give periodic updates, both to share progress and to ensure that people feel protected and informed about the work. • People doing this work must feel comfortable so they can speak freely. “ The key irst step is to get a group of dedicated and moivated tribal members to undertake this work. Next it is important to idenify what you are trying to protect. That is a diicult process…. Once you are able to idenify what you are trying to protect then acquiring the knowledge of how to protect it is crucial. Then creaing the processes and protocols to protect it and idenifying the resources to carry out that protecion are essenial next steps. Finally, it is necessary to coninue with this work and sustain the systems implemented to carry it out.” -Member, Penobscot IP Working Group • Management Plan for Penobscot Naion Intellectual Rights Related to Heritage-based Places that includes recommendaions for strategies for protecing tribal IP through state legislaive and public policy. • Sample memorandum of agreement (MOA) for archaeology conducted on Penobscot lands. • Ceriicaion procedure for archaeologists who work on Penobscot lands. • A process to beter educate or help researchers understand Penobscot Culture and IP issues. • Community survey to evaluate local concepions of IP. • Public Service Announcements developed for community outreach on IP issues. • Slide presentaions from the Penobscot IP Workshop: Dr. Sonya Atalay on “Educaion, Protecion and Management of ezhibiigaadek asin (Sanilac Petroglyph Site)”; Dr. Jane Anderson on legal aspects of IP rights, how these might work for the Penobscot Naion, and other alternaives for protecing tribal knowledge; Dr. William Freeman on community models for insituing an insituional review board. • Webinar on Federal Historic Preservaion Law and the Federal Tribal Consultaion Process by the Naive American Program Oice of the Advisory Council for Historic Preservaion. Who paricipated in this iniiaive? Bonnie Newsom, Project Coordinator (then serving as Tribal Historic Preservaion Oicer for the Penobscot Naion); The Penobscot Naion Intellectual Property Working Group: Mark Chavaree, Penobscot Naion Legal Analyst; Awendela “Mali” Dana, Assistant Director, Child Support Agency; James Francis, Director Cultural and Historic Preservaion Department; Nick Francis, Informaion Technology Specialist; Marie Mitchell, Counselor, Indian Health Service; Dr. Darren Ranco, Director UMaine Naive American Programs); Chris Sockalexis, Tribal Historic Preservaion Oicer; Bill Thompson, Vice Chief; Tim Walton, Tribal Planner; University of Massachusets-Amherst: Dr. H. Marin Wobst (Principal Invesigator); Julie Woods (Research Assistant). Addiional contributors to this project include: The Penobscot Naion Community, Tribal Chief, and Tribal Council; The Penobscot Naion Cultural and Historic Preservaion Department; Dr. Sonya Atalay (UMass-Amherst); Dr. Jane Anderson (UMass-Amherst); Dr. William Freeman (Director of Tribal Community Health Programs and Human Protecions Administrator, Northwest Indian College); University of Maine Naive American Programs; U.S. Advisory Council on Historic Preservaion, Oice of Naive American Afairs. Learn more This summary was drawn from the inal report of the “Developing Policies and Protocols” project. The full report and other resources created by the project team can be found here: htp://bit.ly/PqKLie www.penobscotculture.com [email protected] Intellectual Property Issues in Cultural Heritage Project | June 2014 | www.sfu.ca/ipinch