360 in many instances indigenous peoples intangible

360
In many
instances, indigenous peoples’ intangible cultural property interests would be
355.
For a discussion of OutKast’s performance of “Hey Ya!” at the 2004 Grammy Awards, see
Riley, supra note 51, at 70-72.
356.
See, e.g. , Hornell Brewing Co. v. Rosebud Sioux Tribal Court, 133 F.3d 1087 (8th Cir. 1998)
(reviewing tribal court jurisdiction over claims that a brewing company’s unauthorized use
of the “Crazy Horse” image in marketing of a malt liquor product violated a combination of
federal and tribal laws governing intangible property).
357.
See infra notes 383-389, 404-409, and accompanying text.
358.
Moreover, the NCAA’s guidelines are promulgated by a private organization without
authority to make laws that, at least as a formal matter, narrow the First Amendment’s free
speech guarantees. We recognize, however, that the rule may raise concerns over the
limitations on free speech in this context, even if not as a formal constitutional matter. Cf.
Regan Smith, Note, Trademark Law and Free Speech: Protection for Scandalous and
Disparaging Marks , 42 H
ARV
. C.R.-C.L. L. R
EV
. 451 (2007) (arguing that prohibitions on
registering scandalous trademarks are unduly restrictive of free speech).
359.
See Riley, supra note 200, at 175-77 (detailing the theft of the indigenous Ami’s “Song of
Joy,” to which existing, applicable intellectual property laws should have applied but did not
protect the actual audio recording of the song).
360.
See Harry & Kanehe, supra note 57.

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better protected simply by a more uniform and nondiscriminatory application
of existing laws.
At the same time, we do not suggest that critics’ concerns are always
unfounded, or that indigenous peoples’ efforts to reclaim or safeguard their
intangible cultural property must always prevail against competing claims.
Consider, for example, reports that Aboriginal leaders in Australia lodged a
writ in the High Court to prevent the Commonwealth from using depictions of
the kangaroo and the emu on Australia’s coat of arms, on any state property, or
in any state publication.
361
Because Aborigines consider these animals to be
sacred, they perceive Australia’s use of them in promoting the Australian state
to be an abomination. Their claims do not include any contention, however,
that they have had any role in the creation of the displayed designs, or even
that they have employed traditional knowledge to ensure the perpetuation of
the animal species. Thus, even where we may sympathize with particular
claims, we do not assert that the stewardship model militates in favor of
indigenous peoples always prevailing in obtaining their desired legal
protection. In some cases, such as this one, stewardship may in fact necessitate
that the scale tip against indigenous claims.