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Public Hearings on Official Insignia of Native American Tribes, July 8, 1999


          1                      U.S. DEPARTMENT OF COMMERCE

          2                      PATENT AND TRADEMARK OFFICE

          3                       WASHINGTON, D. C.  20231




          7                      P U B L I C   H E A R I N G



          9                  FEDERALLY- AND/OR STATE-RECOGNIZED

                                   NATIVE AMERICAN TRIBES



                                  TRANSCRIPT OF PROCEEDINGS



                                   JULY 8, 1999 - THURSDAY

         14                        9:00 a.m. to 3:00 p.m.

                                   Special Events Building

         15                     Indian Pueblo Cultural Center

                                 2401 12th Street, Northwest

         16                    ALBUQUERQUE, NEW MEXICO  87104

         17                              __________







         24        REPORTED BY:  CHARLOTTE MACIAS, NMCCR# 161

                                 10708 Constitution Avenue, Northeast

         25                      Albuquerque, New Mexico  87112

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                         A-P-P-E-A-R-A-N-C-E-S


                   AND TRADEMARK OFFICE, WASHINGTON, D. C.  20231:


                        Q. TODD DICKINSON, Acting Assistant Secretary of

          4                Commerce and Acting Commissioner of Patents and

                           Trademarks, U.S. Department of Commerce, Patent

          5                and Trademark Office

                        ELEANOR K. MELTZER, Attorney-Advisor, Office of

          6                Legislative and International Affairs, U.S.

                           Patent and Trademark Office

          7             STEPHEN WALSH, Associate Solicitor, Office of the

                           Solicitor, USPTO

          8             ODETTE BONNET, Senior Attorney, USPTO




         10        SPEAKERS                                           PAGE

         11        COMMISSIONER Q. TODD DICKINSON, Commerce and PTO      3

                   THE HONORABLE JEFF BINGAMAN, NM Senator               6

         12        THE HONORABLE TOM UDALL, NM Congressman              17

                   GOVERNOR AMADEO SHIJE, NM Zia Pueblo                 24

         13        GOVERNOR MALCOLM B. BOWEKATY, NM Pueblo of Zuno      30

                   LT. GOV. TOM F. TALACHE, JR., NM Nambe Pueblo        42

         14        5 YOUTH REPRESENTING 4 DIFFERENT NATIONS             43

                   LT. GOV. TOM F. TALACHE, JR., NM Nambe Pueblo        46

         15        FIDEL MORENO, NM President, American Indian CC       51

                   RICHARD POLESE, Exec. Dir., NM Book Association      55

         16        MARGARET A. BOULWARE, President, AIPLA               61

                   DAVID C. MIELKE, Attorney, NM Pueblo of Zia          70

         17        ROBERTA PRICE, Attorney, NM Pueblo of Zia            79

                   GERALDINE WARLEDO, Cheyenne-Arapaho Business Comm   112

         18        LOREN PANTEAH, NM Zuni Jeweler, Cultural Arts       114

                   PETER PINO, Tribal Administrator, NM Pueblo of Zia  122

         19        ISIDRO PINO, Religious Elder, NM Pueblo of Zia      137

                   SABRINA PINO, Children/Youth, NM Pueblo of Zia      140

         20        PETER PINO, Tribal Administrator, NM Pueblo of Zia  141

                   GOVERNOR AMADEO SHIJE, NM Zia Pueblo                149

         21        STANLEY PINO, Chairman, All Indian Pueblo Council   151

                   WILLIAM WEAHKEE, Exec. Dir., Five Sandoval

         22           Pueblos; Petroglyphs Advisory Committee          158

                   PROFESSOR KENNETH BOBROFF, University of NM         164

         23        A. DAVID LESTER, Exec. Dir., Council of Energy

                       Resource Tribes (Muskogee Creek of Oklahoma)    173

         24        ELEANOR K. MELTZER, Closing Comments                182

                   REPORTER'S CERTIFICATE                              187

         25                                 * * *

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                         P-R-O-C-E-E-D-I-N-G-S     (9:14 a.m.)

          2                      MR. Q. TODD DICKINSON:  Good morning.

          3        Can everybody hear me all right?

          4                      AUDIENCE:  Yeah.  Yes.

          5                      MR. DICKINSON:  My name is Todd

          6        Dickinson.  I'm the Acting Assistant Secretary of

          7        Commerce and Acting Commissioner of Patents and

          8        Trademarks of the United States.  And on behalf of the

          9        Patent and Trademark Office, I want to welcome

         10        everybody here today and thank you for welcoming us

         11        here to New Mexico.

         12                 I know that many of you have very busy

         13        schedules and we're pleased to be able to provide this

         14        opportunity for you.  We're honored to be here and are

         15        very interested in hearing your thoughts.

         16                 Let me assure you that all of your comments

         17        today, both oral and written, will be very, very

         18        carefully considered by us at the Patent and Trademark

         19        Office.

         20                 As many of you already know, due to Senator

         21        Bingaman's efforts, the 105th Congress passed a law

         22        which requires that the Patent and Trademark Office

         23        study a variety of issues surrounding trademark

         24        protection for the official insignia of federally-

         25        and/or state-recognized Navajo American Tribes.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 In order to gain the answers to questions such

          2        as "What is an official insignia?" and "How might any

          3        change to current law affect trademark owners?" and to

          4        try to answer those questions, the PTO published two

          5        notices in our Federal Register which is the official

          6        publication of notices from agencies of the federal

          7        government.

          8                 The first Federal Register notice was

          9        published on December 29th, 1998, the second notice on

         10        March 16th, 1999.

         11                 We received quite a few responses to both the

         12        December and the March notices but written comments are

         13        one thing.  Live comments are another.

         14                 And we thought it would be particularly

         15        important that we, the people from our office that are

         16        here today, come directly to you to make available your

         17        face-to-face comments so that the TPO really walks away

         18        with an understanding of the depth of feeling on the

         19        different issues involved with trademark protection for

         20        official insignia of Native American Tribes.

         21                 We'll be having hearings here in Albuquerque

         22        today.

         23                 On Monday, in San Francisco, California.

         24                 And on the --

         25                      MS. MELTZER:  15th.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. DICKINSON:  -- 15th, in Washington

          2        D.C. and I think it's particularly fitting that we

          3        begin the hearings here today in Albuquerque in this

          4        lovely setting at the Indian Pueblo Cultural Center.

          5                 Before we get started, Ms. Meltzer, who is

          6        staffing this hearing, has asked me to mention two

          7        particular items.

          8                 First, if you have not already provided us

          9        with a written copy of your presentation, please do so

         10        today.  That ensures that we don't make any mistakes in

         11        transcribing the words you might have in your own

         12        presentation.

         13                 You can also send your written comments to us

         14        through July 30th.  We've set a deadline of July 30th

         15        because the statute requires we complete our study by

         16        September 29th and we want to make sure we consider all

         17        that information we receive.

         18                 We had a question about copies of today's

         19        transcript.  Copies of that transcript will be

         20        available on our website by August the 10th, we're

         21        hoping.  Our website is

         22                 We are here to listen, as I said.  We had

         23        about 20 speakers and we may have some more today so we

         24        would feel free to ask that you keep your comments to

         25        about 15 minutes.  We will be fairly informal about

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        time but we want to make sure that everybody that wants

          2        to have an opportunity to speak has that opportunity.

          3                 If we have any time left after scheduled

          4        speakers have made their comments, we will accept

          5        comments from the floor or if people would like to sign

          6        up, they can do so I think in the front; is that right?

          7        Or, in the back there.

          8                 I would ask that all speakers, when you do

          9        come to the microphone, state your name and your

         10        affiliation, if any.

         11                 And, again, I want to thank you for coming

         12        here today or taking the time to come and testify.  Let

         13        me assure you again how important this is to us and how

         14        serious we will take this matter.  We are eager to hear

         15        your comments on this very important topic.

         16                 With that, I'll introduce our first speaker

         17        and we're very honored today to have your Senator, the

         18        Senator from New Mexico, Senator Jeff Bingaman, who'll

         19        be our first witness.

         20                              (Applause)

         21                      SENATOR JEFF BINGAMAN:  Thank you very

         22        much.  Can people all hear me?  Is this machine

         23        working?   Yes.  Okay.  Thank you very much.

         24                 I want to start by thanking Todd Dickinson,

         25        the head of the Patent and Trademark Office Commission

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        for coming to New Mexico.

          2                 This is your first trip here?

          3                      MR. DICKINSON:  Yes, indeed.

          4                      SENATOR BINGAMAN:  We're very honored to

          5        have you in New Mexico and we think this is where all

          6        issues related to Indian people ought to be determined,

          7        is right here in New Mexico, and so that's an

          8        appropriate place, as you say, to start your hearings.

          9                 Eleanor Meltzer, thank you very much for all

         10        of your help with organizing the hearing.

         11                 And, also, I want to thank all the people who

         12        are here and I know there are others coming during the

         13        day.  I've seen the list of people who are going to

         14        testify and we have had a very distinguished list of

         15        presenters today so you'll get a good chance to see the

         16        full range of opinion that we have here in New Mexico

         17        on the issue.

         18                 These are important issues for Native

         19        Americans in this state, as you know, not just in this

         20        state, but for the 1.26 million individuals who are

         21        members of over 500 federal- and state-recognized

         22        tribes throughout the country.

         23                 In New Mexico, of course, many of our tribes

         24        and pueblos have been in existence for many hundreds of

         25        years before this area was ever settled by Europeans,

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        the Spanish in particular.

          2                 So it's very important that we understand the

          3        importance of these symbols and I think the study that

          4        you're doing on protecting official tribal insignia is

          5        long overdue when you consider the very long period of

          6        time that some of these insignia have been in use.

          7                 Let me just go through the list.  You cited

          8        several issues you wanted addressed in the testimony

          9        today and let me try to respond as best I can at least

         10        on a few of those.

         11                 First, the Definition of Official Insignia

         12        requested any thoughts anyone had on what that official

         13        definition should be.

         14                 I look at official insignia as meaning any

         15        insignia of a federal- or state-recognized tribe that

         16        has been used as the official insignia of the tribal

         17        government or is representative of the tribe.

         18                 Now, that may not answer all questions but I

         19        think that's a good starting place for a definition.

         20                 Many of the nations in New Mexico have

         21        formally adopted what I think of as an official

         22        insignia.  For example, there exists the Great Seal of

         23        The Navajo Nation.  The Great Seal of the Jicarilla

         24        Apache Tribe.

         25                 These seals contain symbols of importance to

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        the tribes.  They're easily recognizable as the

          2        official seals of those particular tribes.

          3                 Though some tribes and pueblos have not

          4        formally adopted official seals, many use symbols on

          5        their government letterhead, on their calling cards

          6        that are representative of the culture of the pueblo or

          7        the tribe.  Many have used these same insignia for

          8        generations.

          9                 The insignia used by the Acoma Pueblo is

         10        symbolic of the clans that make up the Acoma Pueblo.

         11        The insignia also incorporates symbols of cultural

         12        significance to the pueblo.

         13                 To those who are familiar with Native

         14        Americans in this State of New Mexico, the Acoma

         15        symbol, the Acoma insignia is representative of that

         16        pueblo.

         17                 The second item or issue that you asked people

         18        to address was the Establishing and Maintaining a List

         19        of Official Insignia.

         20                 Establishing a list of official insignia, I

         21        don't believe would be difficult because, as I

         22        mentioned, I think it's fairly easy to determine in the

         23        case of each tribe whether they have adopted an

         24        official insignia.

         25                 For those who have not formally adopted such

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        insignia, a change in the law that would protect

          2        official insignia would likely prompt the adoption of a

          3        great seal or other official insignia by many of those

          4        tribes.

          5                 And although many Native Americans share

          6        common cultural symbols such as the eagle or the sun,

          7        each tribe would be encouraged to adopt an official

          8        insignia that is distinguishable from that used by

          9        other tribes.

         10                 But with today's technology, maintaining a

         11        list of these official tribal insignia on a database

         12        should not be difficult.

         13                 If the Patent and Trademark Office is able to

         14        catalog the official insignia of the United States and

         15        of each state and of each municipality and foreign

         16        nation as presently provided in the law, then it does

         17        not seem that difficult to add to that the official

         18        insignia for the tribes and pueblos that wish to adopt

         19        official insignia.

         20                 The third issue you asked to be addressed was

         21        Impact of Changes in Current Law or Policy.

         22                 And there's no doubt that a change in current

         23        law and policy, in my view, is needed.  The only

         24        question is:  What change will best protect the rights

         25        of Native Americans and preserve the integrity of each

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        tribal nation?

          2                 What's become apparent, I believe, is that the

          3        official insignia of tribal governments is not

          4        currently protected by any law.

          5                 It's also become apparent that economic

          6        development by tribes could be hindered unless we act

          7        to deal with this.

          8                 Current law should be amended to protect

          9        official and tribal insignia from being trademarked by

         10        others for commercial gain.

         11                 As I've tried to look into this issue, I've

         12        discovered the extent to which the Native American

         13        names and symbols and images have been appropriated by

         14        other non-Native Americans for commercial gain.

         15                 The appropriating of those names and symbols

         16        and images continues and it will continue unless the

         17        Patent and Trademark Office and/or the Congress take

         18        some action to deal with this issue.

         19                 The impact on Native Americans, if we do

         20        nothing, could be much more severe than the impact on

         21        others if we choose to act.  In New Mexico, all of the

         22        pueblos and tribes are seeking to become economically

         23        viable and their culture and their history is essential

         24        to much of that development.

         25                 If we continue to allow companies and private

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        enterprises not affiliated with the tribes and the

          2        pueblos to trademark products, for example "Zia

          3        Popcorn" or "Navajo Bead Company" if they are not

          4        officially tied to the tribe in some way, we threaten

          5        the economic opportunities for those tribes and

          6        pueblos.

          7                 If trademark law was intended to prevent

          8        consumer confusion, which is one of the purposes of the

          9        trademark law, as I understand it, and to assure

         10        purchasers a certain level of quality in what they buy,

         11        failing to prevent the misappropriation of Native

         12        American names and symbols is contrary to the intent of

         13        that statute.

         14                 In fact, I suggest there is an inherent

         15        consumer confusion if a food product manufactured by

         16        non-Native Americans in Delaware would be called

         17        Pojoaque Peanuts.  That would be not only detrimental

         18        to consumers, it would certainly be detrimental to the

         19        Pojoaque Pueblo here in New Mexico.

         20                 Although I have been using hypothetical

         21        products in discussing this, the possibilities are

         22        endless and they are occurring on a regular basis.

         23                 This country's fascination with native

         24        history, Native American history and culture has at

         25        times benefitted Native Americans but, more recently,

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        has threatened the culture and economic viability of

          2        each nation.

          3                 So protecting the official tribal insignia may

          4        impact a few existing trademarks, but the failure to

          5        protect official tribal insignia from being trademarked

          6        will continue to negatively impact more than 500

          7        tribes.

          8                 The fourth item you asked me to address was

          9        the Impact of the Prohibition on Federal Registration

         10        and New Uses of Official Insignia.

         11                 Prohibiting federal registration of trademarks

         12        identical to official insignia of Native American

         13        tribes should, at a minimum, confer certain benefits on

         14        the tribes:  1) should provide the tribal government

         15        with evidence of ownership of the official tribal

         16        insignia, 2) should prevent others from trademarking

         17        the official tribal insignia for use in commerce, and

         18        3) should provide the tribal government with federal

         19        jurisdiction to challenge an unauthorized user of that

         20        insignia.

         21                 In order to accomplish these goals, we need to

         22        be innovative and think through all of the various

         23        possible issues in drafting of regulations or

         24        legislation.  I believe the testimony you're going to

         25        hear today will help you to do that.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 As you know, we have the Native American

          2        Graves Protection and Repatriation Act that Congress

          3        passed in 1990.  It was intended to recognize Native

          4        American culture and protect cultural property.

          5                 We have the Indian Arts and Crafts Act, which

          6        was passed back in 1935 and later amended in 1994,

          7        which had an economic foundation as it has sought to

          8        provide a market for contemporary arts and crafts by

          9        assuring the authenticity of arts and crafts made by

         10        Native American people.

         11                 Both of these laws were passed because of the

         12        recognized need to protect the cultural identity of

         13        Native Americans and the economic development

         14        opportunities of Native Americans; and modifying the

         15        trademark law to protect official tribal insignia is

         16        the next step, as I see it, in recognizing the status

         17        of each Native American Tribe.

         18                 You asked about Administrative Feasibility of

         19        doing this, a change in this regard.

         20                 I don't believe the cost of changing current

         21        law or policy would be significant compared to the

         22        benefit that would be derived.

         23                 You asked about the Timing of Changes in

         24        Protection.

         25                 I think whether or not the suggested changes

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        should be offered prospectively or retroactively will

          2        require a deeper analysis of the issue.  I don't really

          3        claim to know the answer on that.

          4                 On the issue of Statutory Changes.

          5                 As you know, when I began to look into this,

          6        we sought to amend the Lanham Act.  I still think this

          7        is the right thing to do to provide some protection for

          8        official tribal insignia.

          9                 However, as I learn more about the

         10        trademarking process and the extent to which tribes

         11        have already participated in the trademarking process,

         12        it became clear that some tribes have already

         13        trademarked their insignia for use, commercially.

         14                 And any action that you take as a result of

         15        this study, or any action recommended to Congress,

         16        should take into account the Native American Tribes

         17        have already sought protection under the existing

         18        trademark law, so, any modifications to existing law

         19        obviously should in no way prevent tribes that have

         20        trademarked their insignia from using such insignia in

         21        the stream of commerce.

         22                 In conclusion, I'm confident that you will

         23        hear a great deal of useful testimony today.

         24                 Current law protects the official insignia of

         25        states, municipalities and foreign governments.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 The flag of New Mexico is protected by the

          2        Lanham Act and, as you know, the Lanham Act does not

          3        prevent others from using the Zia symbol as portrayed

          4        on the New Mexico flag, but it does prevent others from

          5        trademarking the identical insignia.

          6                 I encourage you to offer the same protection

          7        and respect for the flags and official insignia of each

          8        of the five-membered state- and federally-recognized

          9        tribes in the country.

         10                 Again, let me just thank you, Commissioner

         11        Dickinson, and your colleagues for traveling to New

         12        Mexico for this hearing.

         13                 Congressman Udall has joined us here and I'm

         14        honored to have his strong support in this effort in

         15        the Congress and we look forward to the results of your

         16        study and then to determine what action the Congress

         17        should take.

         18                 Thank you very much.

         19                      MR. DICKINSON:  Thank you very much.

         20                      SENATOR BINGAMAN:  Did any of you have

         21        questions of me?

         22                              (Applause)

         23                      SENATOR BINGAMAN:  Okay?

         24                      MR. DICKINSON:  Thank you.

         25                      SENATOR BINGAMAN:  All right.  Thank you

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        very much.

          2                      MR. DICKINSON:  Thank you for being here

          3        and we appreciate your strong leaderership on this

          4        issue and guidance --

          5                      SENATOR BINGAMAN:  Thank you.

          6                      MR. DICKINSON:  -- as we do our study.

          7                 And as everyone noticed, Congressman Udall has

          8        arrived and we also welcome him and welcome his

          9        comments, as well.

         10                      CONGRESSMAN TOM UDALL:  Thank you.

         11                 Well, let me first, like Senator Bingaman did,

         12        welcome all of you to New Mexico.  It's wonderful to

         13        have you here and I think that not only should you do

         14        this hearing but I hope you have the opportunity to

         15        travel a little bit in the rest of New Mexico and see

         16        some of our pueblos and other beautiful sites in New

         17        Mexico.

         18                 Let me, first of all, deal with the issue of

         19        the definition since I know that you've asked about

         20        that and I think Senator Bingaman has come up with a

         21        very good one there.  I think that's a good start.

         22                 I also, today, want to hear about what tribal

         23        representatives have to say with regard to the

         24        definition.  But I think that's a good start and I

         25        think that's the way we should proceed.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 Let me begin my remarks by first thanking

          2        Commissioner Dickinson for hosting this hearing and

          3        Senator Bingaman for his leadership on this important

          4        issue.

          5                 In particular, I want to thank Commissioner

          6        Dickinson and Senator Bingaman for arranging for this

          7        first hearing on trademark protection for official

          8        insignia of federally- and/or state-recognized Native

          9        American Tribes to be held here in New Mexico, home to

         10        23 recognized tribes, 18 of which are in the 3rd

         11        Congressional District which I represent.

         12                 I think it is extremely important and

         13        meaningful that we have started this process here where

         14        it is essential to the lives of so many people, many of

         15        whom will represent themselves and their thoughts on

         16        this issue before you here today.

         17                 The issue of protecting the official insignia

         18        of Native American tribes is, at its core, an issue of

         19        equal rights and respect for sovereignty of Native

         20        American people.

         21                 It is an issue whose time has come, only one

         22        of many steps we must take to fulfill our obligation to

         23        the Native American people both as sovereign nations

         24        and as American citizens and it is increasingly an

         25        important issue as the commercialization of Native

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        American symbols continues each day at an seemingly

          2        unbridled pace.

          3                 Because of this, it is important that we

          4        explore this issue both carefully and thoroughly but

          5        also expeditiously as we provide tribes with the basic

          6        level of protection they deserve.

          7                 While there are many fine points of this issue

          8        to be explored, I will try to be brief and focus my

          9        comments on the critical need for this protection.

         10                 The finer points of this issue I will leave to

         11        be explained best by the many tribal representatives

         12        and expert witnesses we have here and throughout the

         13        country waiting to comment.

         14                 I want to add that I personally look forward

         15        to learning more about their thoughts on this issue.

         16                 First, let me express my belief that official

         17        tribal insignia deserve the very same level of

         18        protection provided to other recognized governmental

         19        agencies such as states and municipalities and also

         20        foreign entities.

         21                 We must remember that recognized Native

         22        American tribes are sovereign nations and, with their

         23        own equally legitimate systems of government, are

         24        equally deserving of protection under the law.  Not

         25        extending the same level of protection, to officially

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        protecting insignia of tribes that is lent to state

          2        flags and city seals, is patently unfair.

          3                 Moreover, as I briefly mentioned before, the

          4        commercialization of Native American symbols is a

          5        readily apparent reality in the country.

          6                 And The New Mexican, today, I think did an

          7        excellent job at highlighting two examples with regard

          8        to the Zia symbol.

          9                 We have had, in the last year, two companies

         10        attempt to trademark the Zia symbol.  One, the American

         11        Frontier of Motorcycle Tours Company has attempted to

         12        trademark the Zia symbol and, also, a pharmaceutical

         13        company has tried to trademark the Zia symbol.  So this

         14        shows the need for us to move expeditiously.

         15                 While many of these cases are not

         16        appropriations of official tribal insignia, considering

         17        this growing popularity, the growing popularity of

         18        Native American goods, foods and culture, it is likely

         19        only a matter of time before an unprotected tribal

         20        insignia is misappropriated either intentionally or

         21        unintentionally.

         22                 Considering Native American people's own

         23        economic development endeavors, a threat of such

         24        misappropriation could also entail very real economic

         25        consequences by allowing others to capitalize on the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        popularity of insignia typically associated with

          2        particular tribes, such as Zuni jewelry or Santa Clara

          3        pottery or the Zia symbol.

          4                 In fact, as I'm sure the Patent and Trademark

          5        Office is already aware, several tribes have already

          6        filed lawsuits against businesses or individuals for

          7        misappropriating tribal symbols for commercial ventures

          8        or products.

          9                 While I did commit myself to being brief and

         10        leaving details of such protection to be defined most

         11        appropriately by tribal representatives and other

         12        expert witnesses, I do want to make three short

         13        comments on the feasibility of such protection before

         14        concluding.

         15                 First, I believe that such protection can

         16        actually be accomplished without much additional cost

         17        in terms of changing or implementing the law.

         18                 It should be a rather simple effort to

         19        register tribal insignia in much the same way as state

         20        and local government insignia are registered.  And, as

         21        such, the additional cost and the process should be

         22        minimal.

         23                 Second, on the question of such protection, on

         24        whether such protection should be applied

         25        retrospectively, I generally believe that the most

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        critical need today is to protect any further

          2        misappropriation of official tribal insignia.

          3                 With that said, then I believe the greatest

          4        need for action is for prompt registration and

          5        respective protection of official tribal insignia.

          6                 I also want to stress that I do not think it

          7        is in anyone's interest to have blatantly improper past

          8        misappropriation of tribal insignia go unaddressed.

          9        However, I also agree with Senator Bingaman's comment

         10        that serious thought must be given on how such matters

         11        should be addressed.

         12                 And, finally, any proposed resolution to this

         13        issue needs to be designed so as not to jeopardize any

         14        commercial trademark registered by Native American

         15        tribes or prevent tribes from redefining and protecting

         16        currently registered tribal trademarks as official

         17        insignia.

         18                 In some instances, tribes have already

         19        registered official tribal insignia as commercial

         20        trademarks both to protect the insignia as well as to

         21        use it for commercial branding.

         22                 And, as such, these tribes might potentially

         23        face some problem in terms of designating their

         24        official insignia.  This would be precluded by the

         25        insignia's previous registration as commercial

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        trademarks or would jeopardize the registration of the

          2        commercial mark; therefore, due consideration should be

          3        given to the appropriate handling of this matter.

          4                 Once again, let me thank Commissioner

          5        Dickinson for holding this hearing in our fair State of

          6        New Mexico and Senator Bingaman for his notable

          7        leadership on this issue.

          8                 It has been an honor and a pleasure to testify

          9        on this issue.  I look forward to continuing my work

         10        with all of you and especially with Native American

         11        people that I have the good fortunate to represent.

         12                 Thank you very much.

         13                      MR. DICKINSON:  Thank you very much,

         14        Congressman.

         15                              (Applause)

         16                      MR. DICKINSON:  Thank you for your

         17        presence here today, as well.  Thank you.

         18                 What we'd like to do now, if the folks would

         19        move the mike back, is to invite up the witnesses in

         20        groups so that we can hear from all of you and

         21        hopefully do it in a expeditious way and also maybe to

         22        give some opportunity for questions and colloquy going.

         23                 Let me invite up now Governor Amadeo Shije of

         24        the Zia Pueblo.

         25                              (Applause)

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. DICKINSON:  And Governor Malcolm

          2        Bowekaty of the Zuni Pueblo.

          3                              (Applause)

          4                      MR. DICKINSON:  Is Mr. Talache here?  Let

          5        me just see who is here, by the way.  Is Mr. Talache

          6        here?  [Nambe Pueblo]  Would you mind coming to the

          7        witness stand, as well?

          8                 Thank you.  I've never appeared before two

          9        Governors before, so I don't know, actually I'm

         10        unclear; but I'm quite honored to have you both here

         11        today.

         12                 Would Governor Shije mind going first?  We'd

         13        appreciate that.

         14                      GOVERNOR AMADEO SHIJE:  Thank you.

         15                 Thank you, Commissioner Dickinson and members

         16        of the Patent and Trademark Office.

         17                 Before I go into my testimony I would like to

         18        introduce to you members of my pueblo who have come out

         19        today.  There are Elders of our pueblo.  There are also

         20        young people as well as some of my fellow officers.

         21                 So if the people from Zia would, behind me,

         22        stand up or raise their hands, it would be appreciated.

         23                  (Approximately 30 stand.  Applause)

         24                      GOVERNOR AMADEO SHIJE:  Members of the

         25        Committee, I am Governor Amadeo Shije from the Pueblo

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        of Zia.

          2                 I have come to you to give testimony

          3        concerning the amendment of the Trademark Act to

          4        prohibit registration of the official insignia of

          5        Native American tribes.

          6                 I am here to speak on behalf of the Pueblo of

          7        Zia - Zia is a federally-recognized tribe - and to

          8        speak about the Zia sun symbol and its importance to

          9        the people.

         10                 I understand you had made some comments in as

         11        far as how we should follow the outline but I will

         12        leave that outline to the legal people behind me who

         13        will speak on behalf of the Pueblo, mainly because it

         14        is often hard to explain Indian cultures and issues in

         15        western legal terms.

         16                 Although the Zia sun symbol is certainly the

         17        official insignia of the Pueblo of Zia, it is much more

         18        because long before Columbus landed on this continent,

         19        long before the United States was founded and even

         20        before the presence of the Europeans and even before

         21        the Trademark Act was implemented and since time

         22        immemorial, the Zia sun symbol existed.

         23                 The Zia sun symbol was and is a collective

         24        representation of the Zia Pueblo.  It was and is

         25        central to the pueblo's religion.  It was and is a most

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        sacred symbol.  It represents the tribe itself.

          2                 The tribal government has both used the three-

          3        and four-pronged sun symbol always pursuant to the

          4        permission of the religious elders.

          5                 The Pueblo of Zia is a very religious pueblo.

          6                 In the early 1640s, there were approximately

          7        15,000 Zias living in five distinct villages.  We

          8        survived the atrocities at the hands of the Spanish and

          9        Mexican governments.

         10                 By the late 1800s, the population was less

         11        than 100 Zias.  Today.  As I speak, we are over 850

         12        strong.

         13                 The Pueblo of Zia is here, and that our

         14        culture is still alive is testimony to our physical and

         15        cultural and, above all, spiritual strength and

         16        strength of the symbol that we hold sacred.

         17                 Our religion is intertwined with every aspect

         18        of our lives, including our government.  The Zia sun

         19        symbol is so important that it is not discussed,

         20        described outside the village's ceremonies.

         21                 It is therefore difficult to meet fully the

         22        requirements of the public testimony that the Patent

         23        Office requires.

         24                 Nevertheless, besides me and an elder of our

         25        tribe, our Tribal Administrator and even a very young

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        member of our tribe will testify today.  And following

          2        them, will be two of our pueblo attorneys.  They will

          3        discuss the technical terms of what you request here

          4        today.

          5                 The Zia sun symbol is essential and

          6        fundamental to the identity of every member of our

          7        tribe.  It is important that the Trademark Office not

          8        officially condone and thereby encourage its commercial

          9        usage and appropriation by others.

         10                 Our Tribal Council passed a Resolution

         11        declaring the three- and four-pronged Zia sun symbol as

         12        an official insignia of our tribe.

         13                 To the Pueblo of Zia, four is a sacred number,

         14        as it is to many of our Native American tribes.

         15                 It recalls the four directions.  The four

         16        seasons.  The four phases of a day - sunrise, noon

         17        evening and night.  And the four stages of life -

         18        childhood, young/youthhood, adulthood, and old age.

         19                 As part of this testimony, we will submit

         20        examples of our official use of this symbol over past

         21        decades and over past centuries, as well.

         22                 But it is much, much more than that to our

         23        people.  I understand that the Trademark Act has long

         24        prevented federal registration of the flag or coat of

         25        arms or other insignia of the United States or of any

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        other state in the United States or even of any foreign

          2        nation; it prohibits federal registration of symbols

          3        which falsely suggests a connection with beliefs and

          4        national symbols or brings these symbols into contempt

          5        or disrepute.

          6                 What our tribal members and our pueblo

          7        government ask today is very little; that the Trademark

          8        Act treat us just like any other governmental entities

          9        and without these United States, just as the Senator

         10        and Representative mentioned today - We have to do

         11        something about curtailing this influx of usage of the

         12        symbols.

         13                 I know there are other symbols that are

         14        important to other tribes.  These tribes will speak for

         15        themselves about this.  It is not my place to discuss

         16        the official insignia and symbols which identify other

         17        pueblos and tribes.

         18                 But I will say that the injury that my people

         19        have suffered from the disrespectful use of the Zia sun

         20        symbol has been very, very deep.

         21                 The history of the European in this continent

         22        has been a long history of unauthorized taking.  We are

         23        in the beginning of, I hope, a different frame of mind.

         24                 I do not see how the Trademark Office in good

         25        conscience can give a person, foreign to our nation,

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        the right to use our symbol on a chemical fertilizer or

          2        a porta-pottie or whatever business or service he is

          3        peddling.

          4                 Under the existing law, other governments in

          5        this country are protected from such an affront.

          6                 I understand that there are separate statutes

          7        protecting the Boy Scouts' insignia and the Red Cross.

          8        Even using western logic alone, without using any kind

          9        of compassionate understanding of our culture and our

         10        way of life, the official insignia or symbols of the

         11        sovereign tribes should be protected as much as the

         12        symbol or insignia of municipalities, states, foreign

         13        states and so forth.

         14                 I thank Senator Bingaman and Representative

         15        Udall and the Congress of the United States for

         16        perceiving the logic of amending the Trademark Act to

         17        prohibit registration of the official insignia of

         18        federally- and/or state-recognized Indian Nations.

         19                 I thank you on behalf of the Pueblo of Zia for

         20        the courtesy of understanding that we are citizens of

         21        the United States and that the symbols of our

         22        governmental entities should be given equal treatment.

         23                 I urge the Congress and the Trademark Office

         24        to make right and amend the legislation that neglects

         25        the existence of Native American governmental entities,

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        our insignias and our identities.

          2                 These are my statements and I thank you very

          3        much.

          4                      MR. DICKINSON:  Thank you very much,

          5        Governor.

          6                 Are there any questions from the panel?

          7                 We have had some registrations brought to our

          8        attention that were rejected and eventually abandoned

          9        for the sun symbol and maybe this is a question later

         10        for your attorneys; but I'm curious if there are others

         11        that we may not be aware of and may not have been

         12        brought to our attention, that should be brought to our

         13        attention that would be of particular concern to you.

         14                      GOVERNOR AMADEO SHIJE:  I am not aware of

         15        that at this time but what I will do is, when my Tribal

         16        Administrator speaks and gives his testimony, maybe he

         17        can answer that question for you.  Okay.

         18                      MR. DICKINSON:  Thank you very much.

         19                 Governor Bowekaty.  Did I pronounce your name

         20        right?

         21                      GOVERNOR MALCOLM B. BOWEKATY:  Yes, it

         22        is.  Before I start, I'd like to give you a copy of the

         23        report and give you an opportunity to review it.

         24                 First of all, I'd like to thank the two

         25        Senators that were here, Mr. Bingaman, and The

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Honorable Senator Redmond [CONGRESSMAN UDALL]; but,

          2        also, my colleague, Mr. Shije.  He's an eloquent

          3        speaker.

          4                 It is certainly an honor and a privilege to

          5        present my people's thoughts on the new law.  This is

          6        the Pueblo of Zuni's official statement and testimony

          7        on Public Law 105-330.

          8                 Let me preface by sharing experiences of my

          9        people in valuing protection of tribal artistic

         10        expression and designation of ownership.

         11                 For my Zuni people, as well as for countless

         12        other Native American tribes, our seals, our flags, our

         13        phrases have deep cultural and religious significance.

         14        Deep thought, consideration and artistic merit was

         15        exercised by our Zuni people prior to adopting the

         16        insignia.

         17                 If you look at the letterhead and the business

         18        cards, you'll know what I'm talking about.

         19                 The discrete design elements on our Zuni

         20        tribal seal incorporate centuries-old identifying

         21        markers.

         22                 For example, our ancestors used the four-

         23        pointed star to designate Zuni handiwork, religious

         24        paraphernalia and boundary markers.  This also is a

         25        source of pride that is collectively owned and shared.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 Therefore, the process currently proposed is

          2        new, yet, the realities of commerce and marketing have

          3        taught harsh lessons for our people.

          4                 My people have been cheated and duped from

          5        inuring financial gain by unscrupulous merchants and

          6        thieves who duplicate and cheapen fine craftsmanship in

          7        the form of Zuni jewelry, pottery and kachina carvings.

          8                 Protecting my people's livelihood and their

          9        artistic expression by whatever means possible is

         10        paramount.  Protecting our cultural heritage is the

         11        obverse side of the same coin.

         12                 With trepidation, we need to explore,

         13        experiment and apply federal law and policy in

         14        protecting images, icons and artistic expressions.

         15                 But we also reserve the right to secede, if it

         16        does not work for our interests, because we have seen

         17        the paper tiger of the "Indian Arts and Crafts Act".

         18                 The definition of "Official Insignia".

         19                 The duly elected and duly authorized Tribal

         20        Governors, Chairmen or Presidents and the Tribal

         21        Councils must be the determiners of what constitutes

         22        the official insignia of the Native American tribe.

         23        The official insignia may be a tribal seal, a tribal

         24        phrase, or both, a stamp, a banner, a flag or a

         25        painting.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 A Tribal Council Resolution adopting such

          2        insignia should be part of the documentation.

          3                 The fundamental point is, the tribes

          4        themselves define, determine and submit an "official

          5        insignia" or "insignias" to the Patent and Trademark

          6        Office.

          7                 The Patent and Trademark Office must consult

          8        with each tribe to seek submission of its official

          9        insignia.

         10                 As to the question of Establishing and

         11        Maintaining a List of Official Insignia, it must be

         12        incumbent on the Patent and Trademark Office to consult

         13        with officials of each Native American tribe.

         14                 Subsequently, an initial submission period for

         15        tribal insignia should be defined whereby a database

         16        can be established or the forerunner to an "Official

         17        Principal Register of Tribal Insignia."

         18                 This trial period should facilitate an orderly

         19        and voluntary inclusion by tribes to protecting their

         20        insignia if they so desire.

         21                 Furthermore, the Patent and Trademark Office

         22        will then be able to review and identify similar

         23        insignia that may be problematic or questionable.

         24                 It must be the Patent and Trademark Office's

         25        responsibility to research similar insignia to

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        determine if infringement of tribal insignia occurred.

          2                 In the future, by requiring Tribal Council

          3        Resolutions adopting their official insignia as part of

          4        the documentation, this risk should be eliminated.

          5                 Procedures that allow modifications,

          6        amendments or cancellations to the principal register

          7        will then be easily accomplishable.  It will also allow

          8        tribes to evaluate if this process is meritorious or

          9        fraught with ambiguity.

         10                 Looking forward, this process will allow

         11        future state or federal recognition of tribes to

         12        participate in the Act as, no doubt, they will be

         13        recognized tribes.

         14                 Once an "Official Principal Register of Tribal

         15        Insignia" is defined and finalized, the Patent and

         16        Trademark Office should reverify every 10 years.

         17                 Sending out the register to each tribe will

         18        allow a dynamic process to occur and protection

         19        mechanisms to be integrated or developed if warranted.

         20                 Only the duly-authorized tribal leaders may

         21        amend, update or cancel the insignia register.  This

         22        will assure protection and the integrity of the

         23        database.

         24                 As to the "Current Impact in Changes".

         25                 Any changes that protect official tribal

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        insignia are positive.  Well-meaning and unscrupulous

          2        people have already infringed on tribal insignia;

          3        therefore, any sanctions that are explicitly protective

          4        of tribal expression, language and images can only

          5        strengthen the prohibition of copying "Official Tribal

          6        Insignia" - unless duly authorized by the specific

          7        tribal leaders or Tribal Council.

          8                 Here in New Mexico, my colleague, Mr. Shije,

          9        has already talked about the Zia Pueblo.  Zia Pueblo

         10        has already undertaken protracted and expensive

         11        litigation on the infringement of their tribal "sun"

         12        symbol without much success.

         13                 Had this law been in place, a trademark search

         14        would have uncovered trademark infringement on Zia

         15        Pueblo's "sun" symbol.

         16                 Another example, drawing from the diversity of

         17        experiences that we all have, is from my pueblo, Zuni,

         18        where my people are famous for exquisite works of

         19        turquoise jewelry.

         20                 Our people hoped that, with the Indian Arts

         21        and Crafts Protection Act, the protection of insignia

         22        and artistic expression would be protected, let alone

         23        the name of our tribe, "Zuni".  This wasn't so.  The

         24        Act required posting country of origin of jewelry and

         25        specified "Indian Handmade."

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 However, a city in the Philippines

          2        incorporated their town as "Zuni, Philippines", not

          3        "Zuni, New Mexico."

          4                 This has allowed infractions to continue

          5        without a means to enforce copyright or trademark

          6        infringement laws.

          7                 I am sure you have heard similar stories or

          8        you will hear similar stories during these field

          9        hearings.

         10                 We also have another example; the term, the

         11        word "Zuni", as in the name of our tribe.  Yet, it is

         12        patented and trademarked by the Patent and Trademark

         13        Office and it has been renewed and, unfortunately, this

         14        has no relation to our tribe because it is an oil

         15        company.

         16                 Those are some of the examples that we want to

         17        talk about and that actually underscores the point that

         18        I will make further on.

         19                 If the law will designate duly-authorized

         20        tribal officials to determine insignia and govern the

         21        use of protected insignia for their tribal members, the

         22        law will have teeth and will protect tribal interests.

         23                 In fact, enforcement of prohibition or

         24        trademark infringement will be easier since authorized

         25        users will be listed on the "Official Principal

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Register of Tribal Insignia."

          2                 A mere phone call to the Tribal Chairman,

          3        Governor or President will verify if the individual or

          4        company is a bona fide user.

          5                 As to the current trademark owners of similar

          6        tribal insignia, a process to determine the true owner

          7        can be created or undertaken through the judicial

          8        process.  Either way, a cleaner list will be created of

          9        the officially-designated tribal insignia.

         10                 The critical player in this is you gentlemen

         11        and ladies - the Patent and Trademark Office.  If

         12        appropriate tribal consultation and input is sought at

         13        the outset, there should be no insurmountable problems.

         14                 Listening to the frustrations of tribal

         15        leaders and their practical experiences ought to define

         16        for you very realistic and very feasible solutions.

         17                 You already have mechanisms and procedures in

         18        place to effect this law.  You need only to consider

         19        the support and allegiance of the Department of Justice

         20        and the Department of Interior to expedite the

         21        registration process and enforcement of trademark

         22        infringement.

         23                 I do not have an answer to the ramifications

         24        of the U.S. obligations in the international arena, but

         25        the obligations must continue because a lot of the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        enforcement infringements are taking place.

          2                 We also want to underscore the fact that there

          3        are not enough Customs agents out there to really

          4        enforce the issues.

          5                 On the Impact of Prohibition on Federal

          6        Registration and New Uses of Official Insignia.

          7                 As mentioned before, by designating duly-

          8        authorized tribal officials and Tribal Councils to

          9        determine "official tribal insignia," they will govern

         10        and license new users on behalf of their people if they

         11        desire.

         12                 In cases of tribal seals, they already know

         13        who are honest users and bona fide users, allow them to

         14        continue practices that have worked.

         15                 Add to their competency by protecting, through

         16        federal law, their cultural heritage and pride, as

         17        exhibited through their insignias.

         18                 Current trademark owners of identical or

         19        similar insignia must have some documentation to

         20        justify their design creation.  If not, then a

         21        fundamental integrity question arises.  These are best

         22        addressed through the court system, preferably in

         23        tribal courts or other courts of competent

         24        jurisdiction.

         25                 Again, it is becoming more obvious that the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Patent and Trademark Office is being defined as the

          2        gatekeeper and watchdog for potential violations.

          3                 I believe the Patent and Trademark Office is

          4        just now defining a new niche in protection of tribal

          5        sovereignty and a Trust responsibility heretofore

          6        unrecognizable.  I believe this law has unforeseen

          7        benefits for Native American tribes.

          8                 Administrative Feasibility.

          9                 As with any new law, some expenses must be

         10        incurred.  The lack of protection for tribal insignia

         11        for years must now be borne by the federal government.

         12        I believe it is not expensive relative to lost revenues

         13        or costs of litigation by tribes who have suffered

         14        under the absence of federal trademark protection.

         15                 In relation to this, the Pueblo of Zuni has

         16        estimated a loss of anywhere from eighty to $60 million

         17        a year from the infringement by those unscrupulous

         18        companies that cheapen the craftsmenship.

         19                 Native American tribes already experience

         20        bearing the costs of laws and subsidizing

         21        administrative costs for federal programs or agencies.

         22        This is nothing new to us.

         23                 Tribes can best lower the costs of enforcement

         24        for new users who infringe on insignias or help in the

         25        identification of unauthorized trademark users.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 In terms of Timing of Changes in Protection.

          2                 Native Americans have experienced extreme

          3        losses and some minimal gains during a retrospective

          4        application of exerting their aboriginal land uses in

          5        the United States Land Claims Commission era.

          6                 The Pueblo of Zuni asserts that a prospective

          7        application of the changes in the scope of the law and

          8        policy will alleviate costs and allow potential

          9        infringement issues to be worked out amicably - if

         10        there is such a term.

         11                 I need to underscore this point by

         12        re-emphasizing the role of tribal officials as

         13        paramount and their power and authority to determine

         14        tribal insignia.

         15                 Only by allowing tribes to be proactive

         16        partners in this process will we eliminate undue costs

         17        and effect a workable law.

         18                 In summary, I wish to reiterate key

         19        recommendations for my concluding remarks.

         20                 First.  Tribal leaders must be the sole

         21        determiners of what is their tribal insignia.

         22                 Second.  The Patent and Trademark Office must

         23        proactively consult with Native American tribes to

         24        create a process for submission of insignia and the

         25        creation of a database. This foundation is very, very

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        critical.

          2                 Third.  The Patent and Trademark Office must

          3        reverify or update periodically the insignia list with

          4        Native American tribes to ease enforcement costs and

          5        support duly-designated users of tribal insignia.

          6                 Fourth.  A new role for Trust responsibility

          7        by the Patent and Trademark Office is becoming obvious;

          8        therefore, other federal departments with experience in

          9        Trust obligations to Native Americans must be consulted

         10        to expedite a feasible implementation plan for the law.

         11                 The Pueblo of Zuni supports the intent and

         12        offers their assistance in defining procedures to

         13        assist tribes protect and exhibit their cultural

         14        heritage.

         15                 Thank you very much.

         16                      MR. DICKINSON:  Thank you very much,

         17        Governor.  Let me ask you a question.

         18                      GOVERNOR MALCOLM B. BOWEKATY:  Yes.

         19                      MR. DICKINSON:  You would regard this

         20        [letterhead seal] as your official insignia; is that

         21        correct?

         22                      GOVERNOR MALCOLM B. BOWEKATY:  Yes.

         23                      MR. DICKINSON:  Have you attempted or has

         24        this been registered with us as a trademark, as well?

         25        Because you do have an opportunity for doing that.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      GOVERNOR MALCOLM B. BOWEKATY:  Well,

          2        we're in the process right now, because we are

          3        exploring economic development opportunities, and we

          4        realize that, if not, therefore, we are looking at that

          5        process currently.

          6                      MR. DICKINSON:  Thank you.  Any other

          7        questions?  Thank you again.

          8                      GOVERNOR MALCOLM B. BOWEKATY:  Thank you.

          9                      MR. DICKINSON:  Appreciate it.

         10                 Mr. Talache.

         11                      MR. TOM F. TALACHE, JR.:  Yes.  Good

         12        morning, ladies and gentlemen.  I have been asked to

         13        yield a couple of minutes of my time to the children of

         14        Zia.

         15                 Ms. Martinez, is that correct?

         16                      MS. GLENABAH MARTINEZ:  From the tribe,

         17        yes.

         18                      MR. TALACHE:  Okay.

         19                      MR. DICKINSON:  Sorry?

         20                      MR. TOM F. TALACHE:  Sir, I've been asked

         21        to yield a couple of minutes of my time so the children

         22        can read their statements.

         23                      MR. DICKINSON:  Do you have any sense of

         24        how long it might take? - so I can kind of keep a watch

         25        of the time.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MS. MICHIKO THOMPSON:  I'd say four

          2        minutes.

          3                      MR. DICKINSON:  Maybe you can speak into

          4        the microphone so that we can have it for the record.

          5                      MS. MICHIKO THOMPSON:  This is written by

          6        all of us that just came up.

          7                 We as young adults of various sovereign

          8        nations would like to express our concerns about the

          9        issues surrounding the exploitation of Native American

         10        symbols which embody our traditional and religious

         11        values.

         12                 As Native people, we feel that it is important

         13        to be in control of our own governments, natural

         14        resources, industry, schools and so on; however, we

         15        must not neglect the important aspects of our culture.

         16                 The symbols and images within our culture are

         17        just as essential to our existence as the above-

         18        mentioned; therefore, we feel that we should also be in

         19        control of these symbols and what they represent so

         20        that they can remain sacred to our culture.

         21                 With the exploitation of these symbols, their

         22        meaning is depleted.  This, in turn, inevitably affects

         23        our self-worth and sense of dignity.

         24                 Native American symbols have represented ways

         25        of living to various tribes for hundreds and thousands

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        of years.  Recently, modern society has unfairly

          2        adopted these symbols for commercial and marketing

          3        motives without even a remote understanding of what

          4        they stand for.

          5                 We as Native American youth feel that it is

          6        necessary for us as sovereign nations to put a stop to

          7        the misuse and degradation of our native symbols.

          8                 The Zia sun symbol is the backbone of the Zia

          9        society and represents their perspective on life.  We

         10        from the various pueblos feel that the exploitation of

         11        certain symbols, such as the Zia emblem, is very

         12        degrading to the Zia culture.

         13                 We also believe that it is inappropriate to

         14        misuse this symbol because it fails to reveal the true

         15        sacred and religious knowledge that the emblem

         16        represents.  It has been taken out of its original

         17        context and assimilated into the superficial world,

         18        which again contributes to a loss of meaning.

         19                 The symbols of the Native American people

         20        represent our whole way of life.  These symbols have

         21        many different meanings pertaining to our culture.

         22                 A symbol can relate stories about creations

         23        and legends passed down through grandparents to

         24        grandchildren throughout history.

         25                 The above statements are perspectives from

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        young Native American adults representing four

          2        different nations:  The Lakota Nation, Nee-mee-poo also

          3        known as Nez Perce, San Juan Pueblo and Eastern

          4        Cherokee nations.

          5                 We are concerned about this issue because we

          6        are aware of the fact that the outcome of this trial

          7        will affect all sovereign nations.

          8                 In our opinion, we firmly believe that the

          9        Native American emblems are sacred and should not be

         10        misused for purposes other than that of which they were

         11        originally created for by our ancestors.

         12                 I am Michiko Thompson.

         13                      MS. ANGELA PICARD:  I'm Angela Picard and

         14        I'm Nez Perce.

         15                      MS. MORNINGSTAR GARCIA:  My name's

         16        MorningStar Garcia from San Juan Pueblo and Eastern

         17        Cherokee.

         18                      MR. KEVIN PACHECO:  I'm Kevin Pacheco

         19        from San Juan Pueblo.

         20                      MR. CHUCK ARCHAMBAULT:  I'm Chuck

         21        Archambault.  I'm from the Lakota Nation.

         22                      MR. DICKINSON:  Thank you very much.

         23        Thank you for your testimony today.

         24                 Mr. Talache, you now have about 10 minutes.

         25                      MR. TOM F. TALACHE:  Oh.  Okay.  Thank

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        you.

          2                      MR. DICKINSON:  Mr. Moreno is included in

          3        this one on testimony so you can, each, take five

          4        minutes.

          5                      MR. TOM F. TALACHE:  Okay, sir.  All

          6        right.

          7                 Good morning, honorable ladies and gentlemen.

          8        My English name is Tom Felix Talache, Jr.

          9                 My great grandfather, shortly after my birth,

         10        gave me the name "EH-WHO-WATSEEDET-TAMBEE" which, in my

         11        native Tewa language, means Cloud Bird Sunrising.

         12                I was appointed this part February by my Tribal

         13        Council to serve my tribal nation, Nambe Pueblo, as

         14        Lieutenant Governor.

         15                 Nambe has a very long history.  Our nation is

         16        almost 700 years old.  Recorded history, of course.  We

         17        have a much lengthier history which predates the 1300s.

         18                 I have been asked by the Executive Director of

         19        the Eight Northern Indian Pueblos Council, Mr. Bernie

         20        Teba, to offer some comments on the issues surrounding

         21        tribal insignia, trademarks, et cetera.

         22                 Eight Northern Indian Pueblos Council is a

         23        non-profit organization that serves the eight Indian

         24        Pueblos located north of Santa Fe.

         25                 Please note the following disclaimer:  My

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        comments today do not represent specific concerns or

          2        formal positions of any one particular tribal nation or

          3        nations that are amongst the Eight Northern Pueblos;

          4        however, I have been asked to speak in general terms on

          5        the matter and encourage this process.

          6                 This is a very new issue that I have very

          7        recently been asked to look at and provide comment for,

          8        so I am not certain what all the concerns are relating

          9        to this obviously very important issue.

         10                 The New Mexico State Office of Indian Affairs

         11        encouraged me to review a related Public Law as a basis

         12        in preparing my testimony on this issue, and that was

         13        Pueblo Law 101-644.  [The Indian Arts and Crafts Act of

         14        1990]

         15                 This law goes on to state that it is unlawful

         16        to offer or display for sale, or sell any good, with or

         17        without a government trademark in a manner that falsely

         18        suggests it is Indian-produced, an Indian product, or

         19        the product of a particular Indian or Indian Tribe or

         20        Indian arts and crafts organization resident within the

         21        United States.

         22                 Though this law is specific to the protection

         23        of Indian arts and crafts, this law not only addresses

         24        and protects an important issue, I believe it provides

         25        an appropriate model in which there can be additional

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        regulation to include protection of Native American

          2        Indian trademarks, logos, insignias, symbols and so on,

          3        whether they come from governmental or private Native

          4        American Indian citizens.

          5                 My recommendation would be that any regulation

          6        developed should include some of the oversight and

          7        protection provisions as outlined in Public Law 101-644

          8        and that it should also include protection for entities

          9        found both on and off tribal lands.

         10                 I say "off tribal lands" as well, because

         11        protection should be extended to Native people as they

         12        have, in most instances, dual citizenship.

         13                 Not only are they citizens of the United

         14        States of America, additionally they are citizens of

         15        their respective tribal nations, as well.

         16                 We are thankful that this issue is being

         17        discussed formally, that the same consideration that is

         18        extended to other nations outside the United States is

         19        being extended to our respective Indian Nations found

         20        within the borders of this country.

         21                 We are hopeful that the trademarks that are

         22        produced by our Native American Indian entities and

         23        individuals will be given equal protection as those of

         24        other nations.

         25                 For example, we see that various corporations

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        from nations throughout the world promote their

          2        products, goods and services in this country.

          3                 Their individual logos, symbols, trademarks

          4        and designs are displayed, such as Mercedes Benz, BMW

          5        and on and on, and no American entity will utilize it,

          6        for certainty of penalty.

          7                 Additionally, we welcome continued dialogue to

          8        further protect the interests and creativity of the

          9        tribal nations and the American Indian peoples of this

         10        country because, for many, the logos and such that they

         11        design are a product of prayers, visions, legends, oral

         12        tales, an innovative thought that is unique to an

         13        individual person or is a culmination of ideas shared

         14        by more than one person, something that has been shared

         15        that collectively has been incorporated into a design

         16        of something that represents a connection to that

         17        collective synergy, or connection to something that has

         18        historic or cultural significance and becomes a

         19        permanent unchanging design.

         20                 The logo produced for the Eight Northern

         21        Indian Pueblos Council is a perfect example.  This is

         22        their logo [indicates document].

         23                 This organization was formed over 25 years ago

         24        and the logo that was designed has gone unchanged and

         25        will remain unchanged for as long as the organization

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        exists.

          2                 It is imperative that these very positive

          3        discussions continue between tribal governments and the

          4        United States Government.

          5                 Furthermore, we are thankful that the current

          6        leadership of the United States Government is

          7        approaching this issue with respect for our concerns as

          8        is evident by the dialogue that we have today.  This

          9        will certainly prove to begin to develop positive

         10        solutions for this issue.

         11                 I would like to extend my personal

         12        appreciation to President Clinton for signing Public

         13        Law 105-330, Title III, which continues to set a

         14        positive precedence in dealing with this issue that is

         15        an important and worthwhile one for our tribal nations.

         16                 Lastly, I would like to thank this panel for

         17        your personal time and commitment to this issue and for

         18        allowing our input into these discussions.

         19                 With that, I ask that the remainder of my time

         20        be given to Mr. Fidel Moreno who serves the Indian

         21        community as the President of the American Indian

         22        Chamber of Commerce of New Mexico.

         23                 Thank you.

         24                      MR. DICKINSON:  Thank you very much, Mr.

         25        Talache.  Mr. Moreno.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. FIDEL MORENO:  I'd like to say Good

          2        Morning to the pueblo relatives and friends that are

          3        here and especially to the Zia community elders and

          4        young people that spoke this morning.

          5                 I'd like to also say Good Morning to you and

          6        Thank you for traveling here and doing all the work

          7        you're doing.

          8                 On behalf of the American Indian Chamber of

          9        Commerce of New Mexico, I'd just like to express that

         10        we have some very strong concerns but also support the

         11        dialogue that's going on here today and, as you will

         12        hear for the rest of the day, there are some deep

         13        concerns about the marketability for use of American

         14        Indian themes, images, symbols.

         15                 And just to give you some concrete, quick

         16        examples, you know, in the auto industry, the use of

         17        the Winnebago, the use of the Cherokee Jeep, the use of

         18        the Navajo truck.

         19                 You know, if people would really understand

         20        that those are all names that were given to these

         21        Native people by either their enemies or Europeans and

         22        don't really reflect how they identify themselves, on

         23        one hand we're promoting a lot of ignorance by allowing

         24        that kind of marketing and PR to go on in the industry.

         25                 But nonetheless it happens because we don't

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        have laws that protect the cultural, intellectual,

          2        historical properties of Indian people and I think this

          3        is a good step in creating a dialogue so that people

          4        just can't come and take what is very dear and sacred

          5        to us.

          6                 My profession is, I'm a film maker.  I've been

          7        doing documentaries for the last 17 years, since 1982,

          8        and I've worked with people like Robert Redford, Kevin

          9        Costner and, in that time, I've also worked on and done

         10        a lot of documentaries for Indian tribes.

         11                 And I just wanted to express that in working

         12        with over 75 tribes in documenting their oral

         13        histories, there was a lot of protocol and ceremony

         14        involved in hearing their stories and working through a

         15        lot of very sensitive issues about what they wanted to

         16        go out to the public and what they wanted to keep in

         17        their communities.

         18                 So a lot of times, people do not understand

         19        that, who were not brought up in a Native American

         20        culture, a Native American society; and I think that

         21        it's a good step to bring about this kind of dialogue

         22        so you can hear the kind of respect that exists, deep

         23        respect for the oral histories.

         24                 As you know, a lot of our cultures are built

         25        on millennia, old traditions of oral histories where we

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        have very specific information about land, about

          2        natural resources, about relationships, relationships

          3        with each other, relationships with The Creator, and

          4        those are all very sacred.

          5                 To give you an example of that, I worked on

          6        the NAGPRA issue and one of the problems that many

          7        tribes have is that one of the requirements in the

          8        NAGPRA issue - The Native American Grave Protection and

          9        Repatriation Act - is that the only people that can

         10        talk or discuss some of the critical issues that define

         11        what is sacred are the spiritual leaders of those

         12        communities and only within the context of ceremony and

         13        not putting it in writing and not putting it out for

         14        public awareness.

         15                 So one of things that I'd just like to share

         16        with you is that you may come across some of that,

         17        those same circumstances in this.

         18                 But I think that as you have seen in the

         19        American Indian Religious Freedom Act, the NAGPRA and,

         20        now, this amendment that you're going to do, the tribal

         21        leaders, Chairmen, Governors are willing to work with

         22        you, are willing to work with you in a very positive

         23        and proactive dialogue to come to some understanding on

         24        how to address this issue.

         25                 So I just wanted to say that on behalf of the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        American Indian Chamber of Commerce, that we would also

          2        like to work with the Governors and also the committee

          3        on this important issue.

          4                 I want to say Thank You again.  Good Morning.

          5                      MR. DICKINSON:  Appreciate it very much.

          6        Thank you.

          7                              (Applause)

          8                      MR. DICKINSON:  I'd like to get a little

          9        more in depth with some of the legal issues as well.

         10        Could I invite --

         11                 Well, next on our list is Mr. Polese from the

         12        New Mexico Book Association, so I'd like to invite him

         13        up, as well.

         14                 Also, would Ms. Boulware from the AIPLA be

         15        prepared to testify morning?

         16                 And also Governor Shije mentioned that some of

         17        his attorneys were present here today.  Is that Ms.

         18        Price here?  Mr. Mielke?  Is that right?

         19                      MS. ROBERTA PRICE:  Yes.

         20                      MR. DAVID MIELKE:  Yes.

         21                      MR. DICKINSON:  Would you mind both

         22        coming up to the counter, as well?  I know you were

         23        scheduled for a little later on this afternoon but I

         24        wanted to talk a little bit more about some of the

         25        specifics.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 Why don't we start with Mr. Polese.  Mr.

          2        Polese, you have about 15 minutes.

          3                      MR. RICHARD POLESE:  Thank you.

          4                 I'm President of the New Mexico Book

          5        Association, which is non-profit.  It serves most

          6        professionals throughout the state.

          7                 But the reason why I'm here is because of my

          8        research into what we now know as the Zia sun symbol,

          9        specifically.  I worked for the Museum of New Mexico

         10        for eight years and did most of this work back in the

         11        late 1960s.

         12                 Everyone in New Mexico embraces it, but not

         13        many people are aware just where the popular so-called

         14        New Mexico Zia sun symbol comes from.

         15                 I researched the origins of this design while

         16        employed by the Museum of New Mexico.  My findings were

         17        published in El Palacio, the Museum's journal, in 1968;

         18        and in the years since, I've collected hundreds and

         19        hundreds of examples of variations of this wonderful

         20        design.

         21                 The Zia sun symbol, as we have come to know

         22        and love it, was designed by Dr. Harry P. Mera in 1925

         23        as part of a contest for a new state flag.

         24                 Dr. Mera, a Santa Fe physician and

         25        archeologist, was inspired by a sun depiction on a Zia

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Pueblo pot in the Indian Arts Fund collection of the

          2        Laboratory of Anthropology.

          3                 And this is what -- Can you see this up here,

          4        this graphic I hold?

          5                 His simple and elegant design was accepted by

          6        the Daughters of the American Revolution and as the

          7        design and -- Just a moment here.

          8                 This pot itself was probably made a little

          9        before the turn of the last century but probably in the

         10        19th Century, and the Mera design, however, is not a

         11        copy of that design and as some people apparently still

         12        believe.

         13                 Anyway, here's the background on how it came

         14        to be.

         15                 The women in the New Mexico Daughters of the

         16        American Revolution held a contest starting in about

         17        1920 for a new state flag.  And the old flag was really

         18        pretty dreadful.  It had New Mexico kind of going

         19        diagonally like this, and it had the American flag

         20        here, and it was absolutely not very good.

         21                 Not satisfied with the entries they received

         22        for the new flag, they turned to Dr. Mera; and his

         23        simple and elegant design was accepted and his wife

         24        Reba sewed the first flag.

         25                 It was inspired by Pueblo art, crafted in its

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        final form by an Anglo, and displayed in the red-and-

          2        yellow Spanish royal colors.  The flag was an instant

          3        hit and a source of great pride for all New Mexicans

          4        because it so closely and eloquently reflected the

          5        essence of the whole state.

          6                 The sun insignia, as it appeared first on the

          7        flag, is a simple circle with four groups of four rays.

          8        The sun on the Zia Pueblo pot is suggestive but

          9        markedly different in several respects.

         10                 The Zia pot's suns, and there's one on each

         11        side of the pot, it's about 10-and-a-half inches in

         12        diameter, depict a face inside two circles.  Its twelve

         13        stubby rays number three in each group, the middle one

         14        of which being much thicker than the two that flank it.

         15        The face is surrounded by a ring of lines, resembling

         16        hair.  It is a stunning and beautiful design but it is

         17        not the official New Mexico sun symbol.

         18                 This is a photocopy of a photocopy.  I don't

         19        know how well it shows up here but it's a little closer

         20        view of one of the two suns on that Zia Pueblo pot.

         21                 Some years ago, a flyer about the state's sun

         22        sign was made available to visitors at the State

         23        Capitol in Santa Fe.  This imaginative piece ascribed

         24        mystical meanings to the four groups of four rays.

         25                 However, these attributes don't predate Dr.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Mera's design due to the fact that the sun symbol on

          2        the flag had 16 rays only when they were drawn on there

          3        by Dr. Mera.  There are just 12 rays on the Zia Pueblo

          4        pot design.

          5                 And, of course, there are other sun symbols

          6        from that region that have varying numbers of rays.

          7        They usually go in four directions.

          8                 The flyer and the wording of the state statute

          9        establishing the new flag may have been responsible for

         10        misunderstandings about the famous symbol.

         11                 The 1925 Legislative Act describing the flag -

         12        And the reference to that is Number 4-14-2 - refers to

         13        the Mera insignia as the "ancient Zia sun symbol."

         14        This wording was likely added to honor our Indian

         15        cultures as well as lend a little drama and romance

         16        which was very typical of that era.

         17                 However, the design described by the law is

         18        exactly that of the one on the flag designed by Dr.

         19        Mera and sewn by his wife.

         20                 Moreover, no evidence is given that would

         21        support such a claim of antiguity.  A close look at the

         22        historical and archeological record shows no examples

         23        of the simple four groups of four rays with an

         24        unadorned circle "sun" design in the vicinity of Zia

         25        Pueblo, at least not before 1925.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 To be certain, there are celestial depictions

          2        of the sun, stars, and the planet Venus in the

          3        post-1300 rock art of the Keres-speaking region,

          4        depictions similar to those found in other areas of the

          5        Southwest.

          6                 According to Polly Schaafsma, a respected

          7        scholar in the field of Southwestern rock art, most

          8        examples of the sun and of Venus have a face in the

          9        center.  Sometimes, there are rays all around the

         10        circle, usually short.  Most often, there are four

         11        rays, sometimes eight.

         12                 Many "sun shield" depictions have multiple

         13        "rays," often like little triangles around a circle.

         14        And I'll show you a couple of these examples of those.

         15                 Ms. Schaafsma is not aware of any examples

         16        from this area that have four groups of four rays

         17        within a circle without a face.

         18                 And the reference to that is her book "Rock

         19        Art of New Mexico" revised 1992, and "Rock Art of the

         20        Cochiti Dam Project" papers in Anthropology Number 16.

         21                 Suns with rays appear in various cultures all

         22        over the world.  And a few I have seen are actually

         23        closer to Dr. Mera's design than the one on the

         24        particular Zia Pueblo pot.

         25                 Nevertheless, that's where Dr. Mera found his

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        inspiration and he was careful to make the final

          2        design, one that would be universally embraced by

          3        everybody in New Mexico.

          4                 It seems quite clear that this sun symbol, by

          5        whatever name it may be called, belongs to all the

          6        people of the state, not merely a single tribal or

          7        commercial organization.

          8                 The official salute to the state flag is:

          9                      "I salute the flag of the State of New

         10                      Mexico, the Zia symbol of perfect

         11                      friendship among united cultures."

         12                 Now, if not all of us have attained that high

         13        ideal, it is certainly something for us to aim for, for

         14        every person who would call himself or herself a New

         15        Mexican.

         16                 Here is -- I have copies of my remarks in my

         17        original article that I did for El Palacio on the table

         18        back there and also there's other information from the

         19        state statute.

         20                 I'll entertain some questions.  Is that it?

         21                      MR. DICKINSON:  Any questions?

         22                      MR. POLESE:  No?

         23                      MR. DICKINSON:  Okay.  Thanks very much.

         24        We appreciate it.

         25                      MR. POLESE:  I just wanted to show these.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        These are a few of the rock art depictions here in New

          2        Mexico, what are either used or considered the sun or

          3        perhaps Venus, or, considered suns of Venus.

          4                 This one up here is post-1300.  I don't know

          5        where it came from.  But it's one that's in one of our

          6        chapters.

          7                 But this one is from Black Mesa, in the Tewa

          8        area up here, the San Ildefonso Pueblo.

          9                 And these two here are from the Cochiti Dam

         10        area, which is the Keres-speaking area, which would

         11        include Zia Pueblo.

         12                 Thank you.

         13                      MR. DICKINSON:  Thank you.

         14                 We'll hear now from -- And I appreciate your

         15        allowing us to take a slightly different order from the

         16        original.

         17                 We're pleased to have a friend of the PTO

         18        here, Meg Boulware, who's the President of the American

         19        Intellectual Property Law Association and at least a

         20        part-time New Mexico resident.

         21                 Pleased to see you here today, Meg.

         22                      MS. MARGARET A. BOULWARE:  Thank you.

         23        Thank you very much, Commissioner Dickinson.

         24                 I don't know if Senator Bingaman is still here

         25        but I'd like to urge for your confirmation as

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Commissioner at this time.

          2                 I'd also like to thank Commissioner Dickinson,

          3        Eleanor Meltzer and others from the PTO and commend

          4        them for having hearings on this very important issue

          5        in Albuquerque, New Mexico.

          6                 I'm President of the American Intellectual

          7        Property Law Association which is a national

          8        association, that its primary objective is enforcing

          9        intellectual property rights for all people in this

         10        country and we have very strong appreciation for the

         11        rights of creators and authors.

         12                 I'd also like to address the trademark issues

         13        that are brought up at this hearing.

         14                 There are many other issues that are being

         15        discussed including tribal religious issues, and I'm

         16        certainly not qualified to speak on those issues, but I

         17        would like to thank the Commissioner and the PTO for

         18        being included with these distinguished panel speakers

         19        and the others who have spoken before me.

         20                 I am a part-time resident of the State of New

         21        Mexico and one of the great attributes of this state is

         22        the cultural diversity and the recognition of heritage

         23        in this state that I think we all want to share and

         24        want to promote in the future.

         25                 Part of the American Intellectual Property Law

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Association, the AIPLA's request to the PTO was to have

          2        hearings so that those of us who may not be as educated

          3        on these issues could have an opportunity to be

          4        educated and we requested having hearings outside

          5        Washington, D.C. and we were very glad that our

          6        recommendations were undertaken.

          7                 One of the reasons we requested these hearings

          8        was that the AIPLA wanted to hear from those involved,

          9        what they considered their official insignia, so that

         10        there could be an understanding of the official

         11        insignia.

         12                 One of the comments I'm going to make today

         13        that's not in my prepared testimony is that I think

         14        I've already been educated on that fact.  I've heard

         15        quite a bit of it, starting with Senator Bingaman,

         16        concerning the fact that most of our Native American

         17        tribes and pueblos do have recognizable insignia for

         18        their use, for their official use.

         19                 And we have encouraged the PTO working with

         20        any other government agencies, that they feel would be

         21        appropriate, to attempt to collect those official

         22        insignia that are used.

         23                 In our comments, we noted that official

         24        insignia of states and other countries are generally

         25        self-limiting.  They're the insignia that are used on

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        official seals, official correspondence.

          2                 And from our discussions this morning, it is

          3        apparent to me that, at least to a large degree, there

          4        is similar usage here in New Mexico and perhaps

          5        elsewhere in the country and we believe that collecting

          6        and identifying the official insignia will go a long

          7        way to having appropriate protection for those official

          8        insignia in the same way that official insignia of

          9        other states and governmental entities are recognized

         10        by the Patent and Trademark Office.

         11                 One issue that was brought up that I do not

         12        think, as a trademark attorney, should be

         13        problematical, that any Native American registrations

         14        that have already been received should not be affected

         15        by a proposal to protect the Native American tribal

         16        insignia.

         17                 Those trademarks that were validly procured

         18        should certainly maintain their integrity and I can't

         19        imagine that there would be an issue with going forward

         20        with that.

         21                 Another issue that has come up that I believe

         22        is separate and apart from the Native American insignia

         23        protection is product authenticity.

         24                 I found it quite frankly disturbing that - And

         25        I had read this before - that there was a city in the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Philippines that had incorporated under the Zuni name.

          2                 I had read about that, living here in New

          3        Mexico, and the comments I'd like to provide on that

          4        is:  The U.S. trademark laws, as they stand, does have

          5        a remedy for product authenticity.  Counterfeit goods

          6        are a problem for many reputable, high-quality product

          7        sources.  And, unfortunately, the Native American

          8        community appears to be the victim of counterfeit goods

          9        or unauthentic goods.  But we do have the current

         10        trademark laws that do try to protect against that.

         11                 Of course, it's up to the trademark owner to

         12        enforce their remedies in federal courts; but I have

         13        found the federal courts to be sympathetic to

         14        legitimate trademark owners when there is a passing off

         15        of counterfeit goods and I understand that that's an

         16        issue.

         17                 Also, in some of the discussion, there has

         18        been another type of passing off and that would be

         19        products that are geographically misdescriptive - Like

         20        I know where Pojoaque is - and a Pojoaque product that

         21        came from New Jersey would be a geographically

         22        misdescriptive designation.  And our Lanham Act, our

         23        Trademark Act, does provide that marks that are

         24        geographically misdescriptive cannot be registered and

         25        if the marks are registered for any reason, they can be

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        subject to cancellation.

          2                 A number of the issues that are brought up

          3        today are issues that, quite frankly, my association is

          4        very interested in - very interested in, period -

          5        regardless of where the transgressions come from and we

          6        would certainly support very strong trademark rights

          7        for any American citizens.

          8                 The issue of the tribal insignia I think is

          9        one that certainly can be dealt with, with perhaps a

         10        minor change in the Lanham Act, to recognize that there

         11        are Native American governments that do have official

         12        insignia and, from the testimony today, if it's

         13        consistent throughout the country and there's

         14        identifiable insignia, we believe that they can be

         15        collected.

         16                 I also agree with one of the earlier panelists

         17        that it would be very good, once a collection is made,

         18        to have it available in the digital world.

         19                 We can have it on-line so anybody who wants to

         20        check what insignia is protectable, the Patent and

         21        Trademark Office has a very good website with a

         22        searchable database and we would encourage that a list

         23        be circulated in digital form so that it could be

         24        received by those on the internet.

         25                 At the same time, the AIPLA urges that the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Native American tribal insignia should not receive

          2        certainly no less but no more protection than the other

          3        insignia that other states and nations and

          4        municipalities currently enjoy.

          5                 As far as changes to the Lanham Act or changes

          6        to our Trademark Act, the AIPLA's position is that

          7        certainly today is the first day of the fact-finding

          8        and we would encourage the PTO to continue to gather

          9        information and determine what changes need to be made.

         10                 We're not suggesting any changes at this time

         11        because, quite frankly, we hadn't had the benefit of

         12        the hearings and we think that any changes should be

         13        suggested after the benefit of these hearings and

         14        consistent with - however consistent with the AIPLA's

         15        position - that Native American insignia certainly are

         16        entitled to protection.

         17                 One of the things I want to also emphasize; as

         18        you, the PTO officials know, is that the PTO is a

         19        government agency that's responsible for federal

         20        registrations.  It does not monitor infringing use.

         21        However, the PTO does protect against registrations of

         22        trademarks that are in conflict with the federal law.

         23                 And, also, if a registration is issued, then

         24        the PTO also has cancellation proceedings whereby an

         25        injured party can come to the PTO and cancel a

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        registration.

          2                 And I think we need to understand that if the

          3        PTO does has a registry for Native American insignia,

          4        it will review applications that are filed and

          5        determine if those applications conflict with the

          6        insignia.

          7                 The issue of use would have to be dealt with

          8        by parties in federal litigation because the PTO at

          9        least at this time is not authorized to issue

         10        injunctions across the country for infringement issues

         11        but those certainly are handled in our federal courts.

         12                 And I hope I'm not running over my time.

         13                 But one of the issues that I did want to bring

         14        up that the speaker just prior to me brought up, I do

         15        think that the Zia sun symbol seems to be in a class

         16        almost by itself.

         17                 It was one of the first symbols when I drove

         18        into New Mexico for the first time that I saw and it

         19        appears to be very problematical.

         20                 I believe that retroactive or/and even

         21        perspective changes in the law with the Zia sun symbol

         22        is going to be an issue that is going to be a very

         23        difficult one, particularly since it is an emblem of

         24        the State of New Mexico, that this is going to be one

         25        of those difficult issues that Senator Bingaman alluded

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        to.

          2                 And certainly the AIPLA does not have a

          3        specific position on that, although we would say that

          4        we do have, with the use of that symbol since, I

          5        believe, 1925 in the flag and elsewhere, there are a

          6        number of people who have been using that.

          7                 There are constitutional issues on taking and

          8        we think that that's going to be a very -- that will be

          9        a thorny issue to deal with and perhaps different from

         10        some of the others.

         11                 And thank you very much.  I hope I didn't run

         12        over too much time.

         13                      MR. DICKINSON:  Thank you, Ms. Boulware.

         14        We appreciate it, as always.

         15                 We turn now to either Mr. Mielke or Ms. Price.

         16        Who would prefer to go first?

         17                 Is it possible we could -- I know that you're

         18        both attorneys representing the Zia Pueblo.  Do you

         19        have distinguishing testimony?  Or would you like --

         20                      MS. ROBERTA PRICE:  Yes.

         21                      MR. DAVID MIELKE:  Yes, we do.

         22                      MR. DICKINSON:  We would like to save

         23        some time for questioning while Ms. Boulware is here,

         24        as well, because it's kind of the legal issues that

         25        need fleshing out.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. DAVID MIELKE:  Well, good morning,

          2        and welcome to New Mexico.  I'm sure, given the recent

          3        weather in D.C., you wish you would've moved up these

          4        hearings a few days.

          5                              (Laughter)

          6                      MR. DICKINSON:  We're still here.

          7                      MR. DAVID MIELKE:  We're very happy that

          8        you decided to start the hearings here in New Mexico.

          9                 My name is David Mielke and I'm General

         10        Counsel to the Pueblo of Zia.

         11                 As attorneys for the Pueblo of Zia, our firm

         12        has witnessed, firsthand, the pain and frustration that

         13        the tribe has experienced when a symbol, like the sun

         14        symbol, of enormous religious, cultural and historical

         15        significance that has been used by the Tribe literally

         16        for ages is appropriated and used by others for

         17        commercial and, as was just pointed out, for

         18        governmental purposes.

         19                 This has repeatedly occurred without any

         20        regard to the effects of such use on the pueblo and

         21        with no current means of effectively stopping such use.

         22                 And given these circumstances, it's apparent

         23        why the tribal representatives that you've heard from

         24        today, and will hear from later on, feel as strongly as

         25        they do about this issue.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 The federal government has a Trust

          2        responsibility to protect and prudently manage tribal

          3        resources.

          4                 I submit that this Trust responsibility

          5        applies not only to the protection of tangible

          6        resources such as land, minerals and the like, but also

          7        to intellectual and cultural property interests of

          8        tribes, particularly in this day and age when such

          9        symbols are increasingly popular and used for

         10        commercial purposes.

         11                 And a symbol such as the Zia sun symbol is

         12        such a unique mark of their culture, their religion,

         13        their heritage and identity, that it's incredibly

         14        painful for them to see how it's used - apart from the

         15        state's use of it which is a difficult and somewhat a

         16        very unique and separate issue - but to see the

         17        commercial use of it is incredibly painful for the

         18        tribe.

         19                 So this effort to give some protection to

         20        tribal insignia is welcome and appropriate and, we'd

         21        submit, long overdue.

         22                 We've heard earlier from both the Senator and

         23        the Congressman about how federal law currently

         24        protects the flag or coat of arms or other insignia of

         25        the United States or of any state or municipality or

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        any foreign nation.

          2                 There's no legitimate reason for federal law

          3        not affording the same protection to our First

          4        Americans and our first governments.

          5                 Doing so will not only permit the federal

          6        government to fulfill its Trust responsibility to

          7        tribes but will help avoid costly and unnecessary

          8        litigation such as that fought a few years ago by the

          9        Pueblo of Zia against a chemical fertilizer/pesticide

         10        company seeking a trademark registration for the sun

         11        symbol.

         12                 As I think some of you are aware, that ended

         13        up -- that litigation established no useful precedent

         14        because the company subsequently withdrew its

         15        application.

         16                 With respect to the Burden Issue, as others

         17        have testified today, there are only approximately 500

         18        recognized tribes; and even in the unlikely event that

         19        all sought to register and protect their tribal

         20        symbols, it would certainly not be a great

         21        administrative burden on the Patent and Trademark

         22        Office to accept and catalogue these.

         23                 This is particularly true in this day and age

         24        of computers when they can be catalogued, they can be

         25        put on the internet and they can be readily checked

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        against applications.

          2                 And I submit a process by which the tribes

          3        formally adopt their insignia by Tribal Resolution,

          4        send a copy of their insignia along with that Tribal

          5        Resolution to the Patent and Trademark Office, is a

          6        reasonable way of registering and protecting these

          7        marks.

          8                 I've mentioned earlier Zia's interest in this

          9        legislation is unique because of the widespread

         10        commercial and governmental use of its symbol.

         11                 To add further insult to injury, the sun

         12        symbol is frequently used in combination with the word

         13        "Zia".  This not only is offensive but it gives

         14        serious -- creates the very real possibility, if not

         15        reality, of consumer confusion.

         16                 Zia Cement, for example, Zia Mobile Home

         17        Sales, Zia Pest Control, Zia Motor Lodge, and Zia

         18        Carpet Care, to name a few, are all business that use

         19        the name Zia and the sun symbol but are not,

         20        unfortunately, tribally-owned businesses.

         21                 As we've also heard and we all know, the Zia

         22        sun symbol is also the symbol of the State of New

         23        Mexico and has been so for years.

         24                 Apart from disputes as to whether the state

         25        symbol was based on the Zia design, the state and the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        tribe in recent years have begun discussions with the

          2        objective of trying to reach an agreement for the

          3        state's use of the sun symbol.

          4                 Last year's Legislature endorsed, or,

          5        introduced a Joint Memorial which passed the House and

          6        the requisite Senate Committee but unfortunately failed

          7        to reach the Senate floor before the legislative

          8        session ended.

          9                 In New Mexico, they have brief legislative

         10        sessions and there's frequently a mad rush at the end

         11        to try to get legislation through and, as in years

         12        past, this issue did not get to the final -- did not

         13        get to the Senate floor before it adjourned.

         14                 But under this Memorial was provided a process

         15        whereby the tribe would negotiate directly with the

         16        state for such an agreement on the use of the sun

         17        symbol.

         18                 Subsequent conversations and dialogues with

         19        state officials including representatives of the

         20        Governor's Office have been encouraging and we are

         21        optimistic that a legislative resolution, supported by

         22        the Governor's Office, to address this longstanding

         23        issue will be forthcoming.

         24                 I note, with irony, the state's adoption of

         25        the sun symbol as the state's symbol creates a

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        situation whereby the State of New Mexico's use of the

          2        Zia sun symbol is protected but the Pueblo of Zia's use

          3        of their own symbol is not.

          4                 With regard to the issue of Retroactive

          5        Application, I think the Zia's and the State of New

          6        Mexico's recent efforts to work out an amicable

          7        resolution are indicative of how this issue should be

          8        addressed.

          9                 Past misappropriations should not be

         10        sanctioned, rather they should, misappropriators

         11        should, have an incentive to reach an amicable

         12        resolution with the tribe whose symbol they have used

         13        for commercial gain.

         14                 Lastly, I want to thank - Even though they're

         15        not here anymore - Senator Bingaman for his highly

         16        commendable leadership on this issue and the courage he

         17        has shown.

         18                 I also want to thank Congressman Udall for his

         19        presence and support here today.

         20                 Both have shown that they are willing to stand

         21        up on an issue where moneys and powerful interests

         22        frequently are allied against tribes.

         23                 Thank you.

         24                      MR. DICKINSON:  Let me ask you a quick

         25        question before we move on.  Has the Zia Nation adopted

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        an official insignia?

          2                      MR. DAVID MIELKE:  Yes, they have by

          3        Tribal Resolution adopted the sun symbol as their

          4        official insignia.

          5                      MR. DICKINSON:  Could we have a copy of

          6        that today?

          7                      MS. ROBERTA PRICE:  Yes.

          8                      MR. DAVID MIELKE:  Yes, we do have a copy

          9        of that with us today.

         10                      MR. DICKINSON:  Of the official insignia?

         11                      MS. ROBERTA PRICE:  I have a group of

         12        documents.  I thought I was going to testify after

         13        lunch, but I have a group of documents we're going to

         14        submit to you, demonstrating the use of the Zia sun

         15        symbol by the Pueblo and I'll be giving that to you

         16        after lunch.

         17                      MR. DICKINSON:  Okay, but let me just ask

         18        a question:  So has there actually been an official

         19        adoption of an official insignia, a formal adoption of

         20        an official insignia by the -- whoever the governing

         21        body of the Indian Nation is?

         22                      MS. ROBERTA PRICE:  Yes.

         23                      MR. DAVID MIELKE:  Yes, there has.

         24                      MR. DICKINSON:  Have they sought to

         25        register that as a trademark?

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MS. ROBERTA PRICE:  No  Because they,

          2        they, they're --

          3                      MR. DICKINSON:  I'm sorry.  Ms. Price,

          4        why don't you go ahead and, and -- Thank you very much.

          5        Is this the --

          6                      MR. DAVID MIELKE:  That's the Tribal

          7        Council Resolution, I presume?  Yes.

          8                      MS. ROBERTA PRICE:  Yes.

          9                      MR. DICKINSON:  And so the official

         10        insignia is the sun symbol as well as the wording

         11        "Pueblo of Zia" around it?

         12                      MS. ROBERTA PRICE:  No.

         13                      MR. DICKINSON:  What is the official

         14        insignia?

         15                      MS. ROBERTA PRICE:  The Zia sun symbol.

         16                      MR. DICKINSON:  Just this?

         17                      MS. ROBERTA PRICE:  Yes.  And later

         18        today, I will submit fire hats from the -- pictures of

         19        fire fighting hats from the 1950s which have only the

         20        symbol on it and various pictures of the tribal

         21        buildings, --

         22                      MR. DICKINSON:  But my question concerns

         23        what -- how we will define "official insignia" and

         24        getting to that issue --

         25                      MS. ROBERTA PRICE:  Right.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. DICKINSON:  -- and that complexity.

          2        I noticed, for example, that the one we had earlier

          3        from the Zuni Pueblo is a far more complex insignia

          4        with a number of elements and some wording on it.

          5                 And I'm just trying to get to the

          6        understanding of what the official insignia of the Zia

          7        people is.

          8                      MS. ROBERTA PRICE:  Yes.

          9                      MR. DICKINSON:  Or, the Pueblo is.  And

         10        you're telling me that it's this three-pronged sun

         11        symbol --

         12                      MS. ROBERTA PRICE:  Three- and four-

         13        pronged.  It's been used in --

         14                      MR. DICKINSON:  There's more than one

         15        official insignia?

         16                      MS. ROBERTA PRICE:  They are -- As an

         17        official insignia of the Zia sun symbol, sometimes it

         18        has three prongs, sometimes it has four.

         19                      MR. DICKINSON:  So if you made a request

         20        to register an official insignia, you'd register more

         21        than one; is that correct?

         22                      MS. ROBERTA PRICE:  It would be

         23        fundamentally a Zia sun symbol; one with three and one

         24        with four.

         25                      MR. DICKINSON:  Let me just say, for the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        record, I might've done that; in 1994, our office sent

          2        out and sought -- we sought to contact every

          3        federally-registered Native American tribe so that we

          4        can get a handle on this question sometime ago.

          5                 My understanding is, we've never done this for

          6        any other group before and but we'd be pleased to do

          7        it.

          8                 We apparently sent out some 500 letters and we

          9        received about 10 responses.

         10                      MS. ROBERTA PRICE:  And one of those

         11        responses was from the Pueblo of Zia.

         12                      MR. DICKINSON:  One was from the Pueblo

         13        of Zia?  Okay.  Ms. Price, why don't you proceed.

         14                      MS. ROBERTA PRICE:  I have a lot of

         15        ground to cover here.  I'd like to address both the

         16        technical bullets that were listed in the PTO notice

         17        and I'd also like to address -- Can you hear me okay?

         18                      AUDIENCE MEMBER:  Sure.

         19                      MR. DICKINSON:  Are you okay?  Can you

         20        hear in the back all right?

         21                      AUDIENCE MEMBER:  Yeah.

         22                      MR. DICKINSON:  Okay.

         23                      MS. ROBERTA PRICE:  And I'd also like to

         24        address some of the difficulties listed by some of the

         25        potential opponents to amendment to the Trademark Act.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 And also, I would in brief like to mention

          2        that the Tribal Administrator, Peter Pino, is going to

          3        address some of the issues concerning the use of the

          4        four-pronged and the three-pronged symbol and also

          5        point out that, even in scholarly research, I

          6        represented the Pueblo of Zia in the opposition

          7        proceeding in 1993 and we had various depositions of

          8        the elder, under seal, because there's prohibition of

          9        discussing the religious and symbolic uses of the Zia

         10        sun symbol, but the people who did scholarly studies of

         11        the use of the Zia sun symbol were not talked -- were

         12        not able to talk to the elders, were not privileged.

         13        They used secondary sources.  They used sources

         14        concerning Dr. Harry Mera's action and concerning one

         15        pot in the Fine Arts Museum.

         16                 But that is one of the problems we have,

         17        adjusting western law to another culture that has been

         18        existing in this continent for many centuries.

         19                 Anyway, concerning a definition of Official

         20        Insignia, there has been no difficulty administering

         21        the statute, since in Section 1052 which protects other

         22        governmental insignia, which I guess has been in

         23        existence since before mid-century and I don't know how

         24        the Trademark Office determines the official insignia

         25        of other governmental entities, but it seems like the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        same process would take place with the tribe.

          2                 In addition, other people have mentioned the

          3        computer age and being able to have on-line these

          4        symbols.

          5                 I understand, at one point, the Department of

          6        the Interior came over and met with the Trademark

          7        Office and your assistant; the Secretary of the

          8        Interior came over and discussed this.

          9                 I don't believe it would take very much to

         10        have one trademark librarian or one trademark examining

         11        attorney who could get a handle on the list of symbols

         12        and be in charge of entering it on the website and also

         13        reviewing applications as they are published.

         14                 Concerning the Impact of the Law and the

         15        Changes in the Current Law Policy, I personally, I'm

         16        sure, am prejudiced but I can see no effect but

         17        salutary effects that this change in the law would have

         18        on Native American tribes for obvious reasons.

         19                 Equal protection under the law is always a

         20        salutary experience.

         21                 A small number of trademark owners might be

         22        affected but they would be saved from lengthy and

         23        expensive piecemeal litigation over use of insignia or

         24        official symbols of Native American tribes.

         25                 These trademarks owners would be no more

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        affected than those who have chosen to use marks that

          2        are prohibited registration under 1052 in its present

          3        form.

          4                 The Patent and Trademark Office would also

          5        benefit by dealing with this problem directly and

          6        thoroughly.

          7                 An increasing amount of intellectual property

          8        litigation and of litigation within the Trademark Trial

          9        and Appeal Board itself would be avoided.

         10                 What's more, the Patent and Trademark Office

         11        would be acting in a way which upholds Treaty

         12        obligations, - And, here, I'm talking about Treaty

         13        obligations of the tribe - Supreme Court precedence,

         14        and President Clinton's Executive Order that all

         15        agencies evaluate their policies and procedures,

         16        keeping in mind Native American interests and issues.

         17                 I can foresee no significant impact any of the

         18        proposed changes would have on the international legal

         19        obligations of the United States.

         20                 I have spent some time on this issue and I'm

         21        aware mainly of people within - Besides the Philippines

         22        which is obviously a different problem, a counterfeit

         23        problem - but most issues involving the Native American

         24        symbols are within the borders of the United States.

         25                 Moving on to the Impact of Prohibition on

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Federal Registration and New Uses of Official Insignia.

          2                 The effect of prohibiting federal registration

          3        of trademarks identical to the official insignia of

          4        Native American tribes would be as described in the

          5        previous section.

          6                 The tribes would be positively affected by

          7        this at-long-last-equal treatment under the Trademark

          8        Act.

          9                 In addition, Native American tribes would be

         10        relieved from the extremely onerous procedural and

         11        financial burden of having to fund protests and

         12        opposition proceedings in the PTO and fund even more

         13        expensive federal litigation in the courts in order to

         14        protect the symbols that are important and essential to

         15        their collective identity.

         16                 Individual trademark owners would also be

         17        saved the time-consuming and expensive burdens of

         18        litigating their claims to such symbols.

         19                 Non-Native American claims to these insignias

         20        might ultimately be found to be secondary to the use of

         21        symbols by the people who roamed this continent

         22        centuries before this government existed.

         23                 Trademark owners who wished to use official

         24        insignia of Native American tribes might decide to use

         25        these marks without the imprimatur of federal

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        registration, I suppose, or more sensibly decide that

          2        it would be more fitting to choose a symbol which they

          3        could actually say was their own, instead of a symbol

          4        they had appropriated from a Native American source.

          5                 There would be minimal actual effect on

          6        international legal obligations and any effect would be

          7        no different than the present prohibitions outlined in

          8        Section 1052.

          9                 The Trademark Office is no doubt aware of 36

         10        U.S.C., Section 4 - Protecting the National Red Cross;

         11        36 U.S.C., Section 27 - Protecting the Boy Scouts; and

         12        22 U.S.C., 248 - Protecting the Swiss confederation

         13        coat of arms.

         14                 All these statutes were enacted without a lot

         15        of concern to international treaty obligations and the

         16        ability to administer the statutes, et cetera, et

         17        cetera.

         18                 As to the defense of fair use, I suppose it

         19        could be raised, but I am unaware of any trademark

         20        owner using it successfully to entitle his use of the

         21        official insignia of a municipality, state, or foreign

         22        nation.  The appropriation of a Native American

         23        official symbol is fundamentally unfair use.

         24                 I've discussed the Administrative Feasibility

         25        concerning a staff member and I have talked to very

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        understanding and intelligent members of the Examiner's

          2        Office and I think the office has suffered from a lack

          3        of squarely dealing with this problem across the board

          4        because when an application comes in, an attorney or a

          5        trademark librarian knowledgeable about this particular

          6        seminar may not be involved with the particular

          7        application.

          8                 Moving on to Timing of Changes in Protection.

          9                 No business interest should justify the

         10        retention of federal registrations in official Native

         11        American symbols which Congress decides should not be

         12        registerable.

         13                 Existing federal and state law dictates that

         14        non-Native American institutions divest themselves of

         15        Native American property the institutions may have

         16        purchased for large amounts of money.

         17                 And I have some cites in here.

         18                 Let us be clear about the taking that has

         19        occurred.

         20                 Let us understand the two-part nature of the

         21        injury to Native Americans such as the Pueblo of Zia to

         22        this latter-day claim on their symbol.

         23                 It is not only that these recent trademark

         24        "owners" have appropriated for themselves what is in

         25        the Zia's case, and in no doubt other cases, an ancient

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        and enduring symbol but it is that the Zia people and

          2        other Native Americans would never, never consent to

          3        the use of their sacred symbol - the symbol of their

          4        collective identities on commercial items.

          5                 How do we compare the injury to Native peoples

          6        from whom the history of this country is a long tale of

          7        commercial greed and a self-serving social Darwinism

          8        which caused the removal of home, land, natural

          9        resources, freedom, dignity, many cultures, vast

         10        amounts of population and, in this case, symbols of

         11        that collective identity, to the expense of a

         12        businessman who might have to go through changing his

         13        trademark or losing federal registration for a

         14        trademark he continues to use?

         15                 If we are intending to right a wrong with this

         16        amendment, let us see the complainants' losses in

         17        perspective and let us right the wrong.

         18                 Concerning Statutory Changes.

         19                 As the Senator and Congressman have mentioned,

         20        I think 15 U.S.C., Section 1052 is the logical section

         21        to change.

         22                 Concerning Other Relevant Factors.

         23                 Now, moving along here.  Intellectual property

         24        rights and litigation of those rights are ever

         25        increasing.  The amendment proposed by Congress would

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        avoid costly litigation by Native Americans and their

          2        tribes to rectify the failure of the Trademark Act to

          3        protect them.

          4                 The tribal resources saved could be used in

          5        hundreds of other necessary and productive ways.

          6                 A change in the law would acknowledge and

          7        effectuate the duty of the federal government pursuant

          8        to its fiduciary relationship with the Native American

          9        tribes to protect the insignia of Native American

         10        tribes.

         11                 It would avoid potential problems under the

         12        Equal Protection Clause of the United States

         13        Constitution created by the Trademark Act's current

         14        prohibition of registration of other governmental

         15        insignia and its failure to explicitly treat the

         16        insignia of Native American tribes similarly and the

         17        Patent and Trademark Office's current policy of

         18        permitting non-Indians not associated with the tribes

         19        to register tribal insignia.

         20                 Very briefly, to move along to some of the

         21        Responses to Opponents.

         22                 There's a parade of "problems" that have been

         23        listed.  It seems like many opponents to this amendment

         24        act as if neither the Congress nor the Trademark Office

         25        could do the simplest thing to implement this amendment

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        without insurmountable difficulty.

          2                 This position ignores the fact that Congress

          3        has tackled much more complex legislation and the

          4        Trademark Office has administered similar prohibitions

          5        and limitations on federal registration throughout the

          6        existence of the Act.

          7                 Some opponents think it would be too difficult

          8        to define "official tribal insignia."  I think Congress

          9        would be able to tackle this definition with the help

         10        of a good dictionary.

         11                 Some opponents claim that it would be too

         12        difficult to determine what marks were identical to

         13        official tribal insignia.

         14                 In fact, the Trademark Office daily denies

         15        applications for registrations because they are too

         16        similar (not even identical) to existing registered

         17        marks or because some marks that are submitted with the

         18        applications fall within the ambit of the current

         19        Section 1052.

         20                 Opponents state there is a potential for the

         21        prohibition of the use of common geometric shapes that

         22        are identical to official tribal insignia.  This is

         23        hypothesizing a problem which does not exist.

         24                 Unless opponents can point to a specific

         25        Native American official insignia, which is a simple

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        geometric form, this is a false issue raised to

          2        convince Congress that things are just too difficult to

          3        change.

          4                 In the case of the Pueblo of Zia, I don't

          5        believe any tribal member expects that circles or lines

          6        would be off limits for trademark owners - just the

          7        particular configuration of circles and lines which are

          8        similar to the Zia sun symbol.

          9                 Opponents raise the specter of potential

         10        violation of U.S. Treaty obligations under the Paris

         11        Convention, again without giving an example of an

         12        actual instance of this kind of violation.

         13                 Opponents raise the issue of the "potential

         14        unfairness to mark owners who have used the symbols

         15        previously, knowingly or not."

         16                 This amendment goes not to the use of a mark

         17        but the acquisition of a federal right - a federal

         18        trademark registration.

         19                 Business owners would lose federal

         20        registration but could continue to chose to use the

         21        mark.

         22                 We need to focus on a large breach - The

         23        United States' breach of its Trust relationship to the

         24        tribes by giving its official imprimatur of trademark

         25        registration to what was a symbol of the tribal

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        collective identity.

          2                 The inconvenience of losing federal

          3        registration is not comparable to the loss suffered by

          4        the tribes by appropriation of their ancient official

          5        insignia.

          6                 Opponents say that relief is currently

          7        available under Section 1051(a) which prohibits

          8        registration of immoral, scandalous, or disparaging

          9        marks.

         10                 Here, I must digress into my war story.

         11                 As the attorney for the Pueblo earlier in the

         12        Nineties, I conducted an opposition to the registration

         13        of the Zia sun symbol by a chemical company who wished

         14        to use the mark to identify fertilizers and pesticide

         15        products.

         16                 Even at the reduced rate, for which I

         17        represented the tribe, the opposition was a costly

         18        undertaking.  The Washington attorneys buried us with

         19        frivolous discovery - asking us, for example, to prove

         20        that the tribe exists, when the proof of the tribe's

         21        existence is as readily available in Washington

         22        libraries as it is anywhere, making us litigate a

         23        three-day extension of time, refusing to agree to

         24        sealed depositions of the elders about sensitive

         25        religious subjects, and generally obstructing the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        progress of the opposition in every way possible,

          2        making it very expensive.

          3                 Of course, I won every motion we wrote.  But

          4        there was the writing of the motion and the response

          5        and the reply.

          6                 Right before the opposition was to be decided,

          7        the trademark applicant withdrew its application.

          8                 The Pueblo of Zia had spent a considerable

          9        amount, by its standards, to get nowhere on this issue.

         10                 It is simply unrealistic and shows an utter

         11        lack of understanding of many of the tribes' economic

         12        situations, to think that money is available to fund

         13        individual trademark oppositions.

         14                 This alternative is simply unrealistic and not

         15        available to most of the tribes.

         16                 Opponents cite the potential discrimination

         17        against other groups whose cultural or historical

         18        symbols are not similarly protected.  This objection

         19        demonstrates again a lack of understanding of both law

         20        and history.  It seems to equate the Kiwanis Club or

         21        the Welsh United States citizens with Native Americans.

         22                 Is there Supreme Court precedent indicating

         23        that other "groups" have a special sovereign status

         24        within the United States?

         25                 Is there another "group" which occupied the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        United States before this country existed and had a

          2        foreign government imposed upon it, on its own soil?

          3                 Is there another "group" from which the

          4        colonizing Europeans took so much?

          5                 Possibly, I guess.

          6                 In fact, a Welsh national insignia and an

          7        African official insignia are presently protected under

          8        Section 1052.

          9                 More particularly, is there another "group"

         10        that, on this soil, used some of the symbols at issue

         11        in this proposed legislation long before the Trademark

         12        Act existed?

         13                 Certainly, other racial groups have suffered

         14        in this American experience.  But to say that there are

         15        others in a parallel situation ignores too much of the

         16        history of the Native American people.

         17                 I think I'm going to conclude now.

         18                 In conclusion, I would like to quote a section

         19        of the deposition of Professor Alfonso Ortiz, an

         20        anthropology professor at Princeton and a member of one

         21        of the pueblos of New Mexico and an anthropology

         22        professor at the University of New Mexico.

         23                 I've included his deposition, which was taken

         24        in the opposition proceeding, in some of the documents

         25        and I think it would be very helpful for an

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        understanding of some of the issues surrounding this

          2        legislation.

          3                 At any rate, Professor Ortiz has died,

          4        otherwise I'm sure he would be here today and I'm sure

          5        he's probably here in spirit.

          6                      "I think somewhere that there has to be

          7                      some very clear thinking on the part of

          8                      American courts of law about what Indian

          9                      people consider their most important

         10                      statements of identity, their sense of

         11                      history, their sense of community, and

         12                      their sense of destiny."

         13                      "And the Zia sun symbol is one such

         14                      symbol for one tribe.  Every tribe could

         15                      put up something like this.  Too many

         16                      have been swept away and lost in the

         17                      vicissitudes of history and legal

         18                      wrangling and, somewhere, we have to take

         19                      a stand and recognize that for these

         20                      hallowed notions like tribal sovereignty,

         21                      trust, guardianship, trusteeship to mean

         22                      anything really substantive, we're going

         23                      to have to throw up the line of defense

         24                      and help the tribes to protect that which

         25                      remains and is distinctly theirs, which

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      enables them to exist as communities with

          2                      pride and independence, after all.

          3                      That's all."

          4                 We here today ask for some of that very clear

          5        thinking in the study the PTO conducts on this matter.

          6                 Thank you.

          7                      MR. DICKINSON:  Thank you.  Appreciate

          8        that.

          9                              (Applause)

         10                      MR. DICKINSON:  We may have a few

         11        questions certainly for you specifically or maybe for

         12        the panel to generally clarify some of these issues for

         13        us.

         14                 One of the questions I have:  My understanding

         15        is, we have been now consistently rejecting many

         16        registrations which have been sought, that include the

         17        sun symbol, for several reasons.

         18                 Are you aware -- This is a question I actually

         19        directed to the Governor awhile ago.

         20                 Are you aware of any that we may be

         21        overlooking or that we have not been specifically

         22        sensitive to?

         23                      MS. ROBERTA PRICE:  I am not completely

         24        up to snuff.  Senator Bingaman's letter to the

         25        Trademark Office came as a result of two Zia sun

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        symbols that had gone on to publication.

          2                 And we wrote, I wrote Mr. Hampton, and the

          3        Senator wrote Mr. Hampton saying, "Hello, you know, the

          4        Zia sun symbol has been, you know, registered."

          5                 And we received a letter back saying, "You're

          6        too late."

          7                 I have copies.

          8                      MR. DICKINSON:  In what respect did he --

          9                      MS. ROBERTA PRICE:  Well, because the

         10        marks had gone on to publication.

         11                      MR. DICKINSON:  I see.

         12                      MS. ROBERTA PRICE:  And we had just -- We

         13        had found out.  We don't have a paralegal reviewing the

         14        BNA publication of marks.

         15                      MR. DICKINSON:  Well, my understanding

         16        is, we had Zia's system sought for registration for --

         17        What was the business service?

         18                      MS. MELTZER:  On Friday, a stationery --

         19                      MR. DICKINSON:  Computer software

         20        products.

         21                      MS. ROBERTA PRICE:  Right.

         22                      MR. DICKINSON:  Also had the Zia or the

         23        word "Zia" and the sun symbol, sought registration for

         24        cocktail mixes, and both of them were rejected and are

         25        now abandoned.  Those are the only ones we are aware

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        of.

          2                      MS. ROBERTA PRICE:  Yes.  I believe,

          3        earlier, we were discussing one for motorcycle tourism

          4        in New Mexico and one for photography.

          5                      MR. DICKINSON:  One of the questions that

          6        comes up or one of the grounds for that rejection, as I

          7        understand it, was that it was in conflict with the -

          8        interestingly enough - with the state flag of New

          9        Mexico which is also registered as a state flag.

         10                 Is there some way we can resolve the issue?

         11                 Let me ask the broader question:  When there

         12        are uses - And this may not apply to the Zia symbol, I

         13        mean, I have to narrow it to that - but when

         14        registrations are sought and we establish a listing for

         15        official insignia that include elements that are

         16        included in others, how would, how should the PTO

         17        proceed to sort out that question?  A priority?  Or

         18        what is the --

         19                      MS. ROBERTA PRICE:  You're talking about

         20        two Native American tribes --

         21                      MR. DICKINSON:  Yes.

         22                      MS. ROBERTA PRICE:  -- registering to --

         23                      MR. DICKINSON:  Or where a Native

         24        American tribe would include a symbol in their official

         25        insignia which was included in another official

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        insignia, say, of a state or municipality or foreign

          2        country.

          3                      MS. ROBERTA PRICE:  This is probably -- I

          4        guess my logical reaction would be to have the two

          5        tribes discuss this and I think they would prefer to

          6        discuss this matter within themselves.

          7                 And probably Mr. Pino, who will talk later,

          8        will discuss it.

          9                 But it seems to me the tribes determining and

         10        resolving this issue between themselves without the

         11        Patent and Trademark Office having to enter into the

         12        discussion, as far as those two tribes, would be a good

         13        solution.

         14                      MR. DAVID MIELKE:  Yeah, I would agree

         15        with that.  You're talking about if we had two

         16        conflicting tribes, as opposed to --

         17                      MR. DICKINSON:  (Nods head)

         18                      MR. DAVID MIELKE:  Okay.  Yeah, I agree.

         19                      MR. DICKINSON:  Or a conflict between

         20        something that was either a registered trademark, I'd

         21        say, or more likely or more possibly, rather, something

         22        that was the registered emblem of a foreign country or

         23        of the United States or, for example, to include the

         24        symbol of the United States in a tribal insignia, --

         25                      MS. ROBERTA PRICE:  But --

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. DICKINSON:  -- kind of like a or sort

          2        of like a --

          3                      MR. DAVID MIELKE:  Yeah.

          4                      MS. ROBERTA PRICE:  I can't imagine

          5        either situation coming up but I'd suggest that

          6        probably the two governments, the two sovereigns should

          7        be able to resolve those kind of questions.

          8                      MR. DICKINSON:  Our understanding is that

          9        we would also register stylized versions of flags and

         10        symbols of our country and other countries, where you

         11        can register a stylized version of the U.S. flag.

         12                 I mean how much -- how broad would you see the

         13        protection that needs to be afforded under this?

         14        Should it be different than it is?  Or should it be the

         15        same as it is? - with regard to flags and the official

         16        insignia of --

         17                      MS. ROBERTA PRICE:  Well, I guess, and

         18        I'm talking off the top of my head right now, so, it

         19        seems to me that the people who register stylized

         20        American flags are Americans who share some collective

         21        identity with the American flag, so...

         22                      MR. DICKINSON:  I don't know whether

         23        that's the case or not.  We have foreign nationals that

         24        register marks, as well, all the time, so...

         25                      MS. ROBERTA PRICE:  Right.  Well, I know

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        you do.  But, nevertheless, I'm willing to bet you that

          2        a lot of those American flags are owned by American

          3        companies.

          4                 And so in a certain sense, the collective

          5        identity of the Americans are represented in those

          6        trademark symbols.

          7                 I think there's a different situation by

          8        stylized Zia symbols.  There is still the conscious

          9        suggestion of affiliation or connection with the tribe,

         10        which is at the root of this problem.

         11                 And as you know, the term under the Trademark

         12        Act is "substantial similarity."  And I know if I had a

         13        Nike mark and someone else did a stylized Nike mark and

         14        wanted to register it, I don't believe that Nike would

         15        think it was okay.

         16                      MR. DICKINSON:  Okay.

         17                      MS. ROBERTA PRICE:  Do you?

         18                      MR. DICKINSON:  No, in opposing,

         19        absolutely, you did I think what you understood needs

         20        to be done in the circumstances you mentioned a couple

         21        of minutes ago.

         22                 Maybe this is -- Let me ask this question

         23        also:  My understanding is we're dealing with official

         24        insignia here; though some have raised the question of

         25        word marks as well.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 Does the Zia nation take a position with

          2        regard to word marks as opposed to an insignia?  You

          3        indicated your insignia was the design element here.

          4                      MS. ROBERTA PRICE:  Yes.  Yes.  I think

          5        Peter Pino, who will talk later, can talk about this

          6        more.

          7                 But, initially, we are talking about this

          8        particular legislation concerning Native American

          9        insignia and, certainly, we would not like to come

         10        across as:  This is the only important thing to the

         11        tribes.

         12                 And, certainly, under the existing trademark,

         13        false association with a group of people is incorrect.

         14                 But we understand that this is a very limited

         15        amendment to the Trademark Act and I don't think we

         16        have to pass on whether -- I mean I think it's obvious

         17        that the Pueblo of Zia doesn't like the idea of Zia

         18        Porta-Potties.

         19                      MR. DICKINSON:  Zia Porta-Pottie; using

         20        the word as opposed to the official insignia.

         21                      MS. ROBERTA PRICE:  Yes.

         22                      MR. DAVID MIELKE:  Correct.

         23                      MR. DICKINSON:  Has Zia sought to

         24        trademark the word "Zia"?

         25                      MS. ROBERTA PRICE:  The Pueblo Zia does

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        not, because of the sacred nature of the symbol,

          2        commercial use of it is, is -- It's still something

          3        that many of some of the elders find offensive.  And,

          4        so, use and commerce being one of the requirements...

          5                      MR. DICKINSON:  Could we maybe address

          6        more broadly the question of retroactivity?  I have a

          7        question that's come up as to whether or not -- How to

          8        deal with that issue.

          9                 And as Ms. Boulware pointed out or the Senator

         10        pointed out, it's a very sensitive question.  It might

         11        not be resolvable at this point and may require us to

         12        get through all these hearings.  But one of the goals

         13        we have of the hearings I think is to try to flesh out

         14        some of the aspects of the issue.

         15                 Some have raised the question that

         16        retroactivity might possibly be a taking, for example,

         17        that some registrations may have already occurred and

         18        those registrations would constitute intellectual

         19        property and therefore a cancellation that might occur,

         20        as a function of this proceeding, might possibly take.

         21        I don't know.

         22                 Again, the question I'm asking is:  Can you

         23        address the question of retroactivity?  Can you address

         24        the question of whether or not it --

         25                      MS. ROBERTA PRICE:  Well, I'll go first.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. DICKINSON:  -- might not take --

          2                      MR. DAVID MIELKE:  Yeah.

          3                      MS. ROBERTA PRICE:  Well, in this

          4        situation, we have a taking on top of a taking.  We

          5        have a taking of a Native American symbol and I

          6        believe --

          7                      MR. DICKINSON:  I was addressing the

          8        U.S. Constitution --

          9                      MS. ROBERTA PRICE:  Right, I understand

         10        the U.S. Constitution, but I believe that it's a

         11        violation of the U.S. Constitution for the Federal

         12        Trademark Office to have permitted the taking by

         13        businesses of Native American symbols.

         14                      MR. DICKINSON:  I understand that, but

         15        I'm still asking whether we have any examples of

         16        registrations which will support that concern?

         17                      MS. ROBERTA PRICE:  Excuse me?

         18                      MR. DICKINSON:  We have not regis-- It's

         19        my understanding we have not registered any marks that

         20        include the official insignia of the Zia; is that

         21        right?

         22                      MS. ROBERTA PRICE:  Right.  Right.  Well,

         23        I'm not sure what the status is of the motorcycle tours

         24        and the photographs.

         25                      MS. MELTZER:  I think it's still pending.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        I'm not sure either.

          2                      MS. ROBERTA PRICE:  Okay.

          3                      MS. MELTZER:  I'm not certain.

          4                      MS. ROBERTA PRICE:  And I guess, you

          5        know, there's always a balancing of equities.  You

          6        know, this particular legislation doesn't prevent other

          7        people from using symbols that they've been using.

          8                 It just prevents them from having the approval

          9        of the federal government and I'm sure you understand

         10        that.

         11                 So I'm not sure what their registration would

         12        be taking.

         13                      MR. DICKINSON:  Ms. Boulware, could you

         14        shed any light on this issue at all, any additionally

         15        light?

         16                      MS. MARGARET A. BOULWARE:  The only

         17        additional light that I'd like to shed is, I don't want

         18        to be more problematical on this issue, but the AIPLA,

         19        first of all, we didn't know exactly what we were

         20        talking about because we didn't know what the insignia

         21        were.

         22                 We didn't know whether there were going to be

         23        literally thousands of insignia that might be just

         24        designs or the official insignia that we've heard of

         25        today.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 So understanding that it's a limited universe,

          2        so-to-speak, is comforting because I think that's what

          3        it should be.  It should be legitimate insignia.

          4                 The AIPLA does not support retroactive

          5        cancellation of legitimate marks.  There may be some

          6        marks that are subject to cancellation because they

          7        should not have been legitimately registered in the

          8        first place.  But we are not in favor of retroactively

          9        canceling legitimate marks.

         10                 We'd also like to recognize that federal

         11        registration owners do have to file Use Affidavits and

         12        that for any of the marks that are problematical, I

         13        think that the Patent and Trademark Office should

         14        review those Use Affidavits very carefully to make sure

         15        that these people are legitimately using these

         16        trademarks and have legitimate registration and also in

         17        the renewals.

         18                 So, that's the little bit of light that I can

         19        shed on that.

         20                      MR. DICKINSON:  I would point out, and

         21        just to shed a little more light on that question, we

         22        have indeed recently a very prominent example of

         23        cancellation that occurred where our Trademark Trial

         24        Appeal Board, of which I'm actually a statutory member,

         25        cancelled a registration to a professional football

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        team which used a mark that was found to be offensive

          2        under Section 2A of the Lanham Act to Native Americans.

          3                 That was a decision which was very thoroughly

          4        considered and was supported very strongly under the

          5        law as it was decided.

          6                 This question of international obligation has

          7        been raised by some, particularly the International

          8        Trademark Association, and their written testimonies,

          9        there was concern about the Paris Convention, the fact

         10        of this -- You indicated that that may not have been an

         11        issue when the Red Cross or other specific statutes

         12        were passed.  I don't know whether that's the case or

         13        not.

         14                 But leaving that particular look-at aside, can

         15        you shed any light of the substantive question of

         16        whether or not there's a concern about whether indeed

         17        it does or does not implicate the Paris Convention?

         18                      MS. ROBERTA PRICE:  I would have to look

         19        at the issue a little more thoroughly than talking off

         20        the top of my head today.

         21                      MR. DICKINSON:  Meg?

         22                      MS. MARGARET A. BOULWARE:  We don't

         23        believe it violates the Paris Convention.

         24                              (Laughter)

         25                      MS. ROBERTA PRICE:  I mean I don't

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        believe it does either but, you know, I guess I'm -- I,

          2        I can't see --

          3                      MR. DICKINSON:  I've read the INTA

          4        testimony in that regard.

          5                      MS. MARGARET A. BOULWARE:  Yeah.  We may

          6        disagree with INTA on that.

          7                      MR. DICKINSON:  Would you see a need for

          8        any of the more traditional registration-type

          9        mechanisms that we use in the office, in this context,

         10        if we were to establish an official registry of

         11        official insignia?

         12                 For example, opposition.  Would you, could you

         13        envision a circumstance where they would need to be --

         14        where official insignia would need to be published in

         15        some way so that others, perhaps other Native American

         16        tribes could oppose or send in material that would in

         17        some way question the official insignia registration?

         18                      MS. ROBERTA PRICE:  For other tribes

         19        alone, are you saying?  Within the tribes themselves?

         20                      MR. DICKINSON:  Let me broaden the

         21        question out.  Do you see any circum--  Do you envision

         22        any circumstances when any -- when there would be an

         23        opposition-type procedure or even a cancellation-type

         24        procedure for registrations on a registry of this sort

         25        or of this type?

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MS. ROBERTA PRICE:  Well, perhaps this is

          2        not the answer you want, but considering the culture of

          3        the Native American people, I think any kind of

          4        opposition, as you stated, could be better worked out,

          5        for example, within some office of the Department of

          6        Indian Affairs or the Department of the Interior.

          7                 I think that, generally, a negotiation and

          8        talking, as opposed to an official opposition

          9        proceeding, would be much more appropriate.

         10                      MR. DICKINSON:  Well, we -- Well, there's

         11        no answer I wanted or didn't want, --

         12                      MS. ROBERTA PRICE:  Right, but I see --

         13                      MR. DICKINSON:  -- I'm just trying to

         14        make sure that we --

         15                      MS. ROBERTA PRICE:  I see, I believe, and

         16        perhaps the representatives of the pueblo who have

         17        talked already could testify, but I believe it would be

         18        much less costly and probably much more efficient and

         19        definitely quicker for representatives of two pueblos

         20        or two tribes to talk amongst themselves about any kind

         21        of conflict.

         22                      MR. DAVID MIELKE:  There are two types of

         23        symbols, I think.

         24                 You have the more modern created ones that

         25        have been designed and then you have ones that are

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        historical and cultural in origin.

          2                 And I could see that maybe you'd have an issue

          3        if it was a newly created or design symbol that other

          4        tribes or other holders of registered marks would want

          5        to have input, you know, for; you know, take the worst

          6        case, if a tribe decided it wanted the Nike logo as its

          7        tribal symbol.

          8                      MS. ROBERTA PRICE:  But I don't think

          9        that's going to happen.

         10                      MR. DAVID MIELKE:  That's not going to

         11        happen but, I mean, you know, --

         12                              (Laughter)

         13                      MS. ROBERTA PRICE:  I mean it's a number

         14        of the hypotheticals, which I, I don't appear -- want

         15        to appear sanguine, or sanguine?  Which is it?

         16        [pronunciations]  I just don't think those problems are

         17        going to exist in this context.

         18                      MR. DICKINSON:  What if a tribal nation

         19        sought to register a mark or an insignia, rather, that

         20        included a red cross?

         21                      MS. ROBERTA PRICE:  Well, I just don't

         22        believe that any tribe would want to use the symbol.  I

         23        mean not that it has anything against it.  I don't

         24        believe that it would want to use the red cross.

         25                 And if it was a newly-done symbol that had

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        just been created, the American Red Cross could

          2        obviously have a problem with it, but I don't think

          3        that that will happen.

          4                      MR. DICKINSON:  Thank you.  My goal is

          5        not to put you on the spot.  It's really to flesh out

          6        these issues --

          7                      MS. ROBERTA PRICE:  Right.

          8                      MR. DICKINSON:  -- and we discussed them

          9        in our office --

         10                      MS. ROBERTA PRICE:  Right.

         11                      MR. DICKINSON:  -- and we wanted your

         12        best counsel --

         13                      MS. ROBERTA PRICE:  Right.

         14                      MR. DICKINSON:  -- and your best ideas as

         15        to how we can resolve these --

         16                      MS. ROBERTA PRICE:  Right, and I don't

         17        mean to respond by saying, "No, that's not going to

         18        happen" --

         19                      MR. DICKINSON:  Right.

         20                      MS. ROBERTA PRICE:  -- but within the

         21        realm of reality, I guess it could happen and then

         22        someone who had a newly-created symbol using the

         23        American Red Cross who had no justification in past

         24        cultural -- I mean the cross is -- Well, anyway, that

         25        could be something that, you know, the American Red

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Cross could object to.

          2                      MR. DICKINSON:  Can I return to the

          3        question of the word marks?  Some have raised this

          4        specter.

          5                 We've had, for example, the counsel for the

          6        Oneida flatware has raised the question of whether word

          7        marks that are the, I'll take it on assumption, the

          8        names of tribes in the United States - would or would

          9        not be protectable in this context we're talking about.

         10                 And they raise the specter and the concern

         11        that marks which they have used for a substantial

         12        period of time on goods and services would be

         13        implicated with this question.

         14                 Do you have any thoughts on whether or not we

         15        should be dealing with words, marks in this way, or

         16        should we stick to official insignia?

         17                      MS. ROBERTA PRICE:  Well, it certainly

         18        would be a lot easier if you stuck with official

         19        insignia at this point in time.

         20                 I don't think I should be able -- should speak

         21        for the Oneida people or the Mohawk people.

         22                 I'd bet that if you inquired and sent the

         23        comments of Oneida Sterling and Mohawk Carpet to them,

         24        that they would have a response.

         25                      MR. DAVID MIELKE:  And probably the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        people from Zia should address the issue; I mean,

          2        obviously, the worse case is where they use the sun

          3        symbol along with the word "Zia".  Not all businesses

          4        use that.

          5                 Some are Zia process servers.  I think there's

          6        one that uses both the mark and the word.  Others will

          7        just use the word.  Others will just use the mark.

          8                      MS. ROBERTA PRICE:  And I'm not sure any

          9        of those people have applied for a federal registration

         10        so it's a worry definitely for us and the tribe but it

         11        may not be a worry for you.

         12                      MR. DICKINSON:  Well, I appreciate that.

         13        Are there any questions, any further questions from the

         14        panelists, as well?

         15                      MS. MELTZER:  No.

         16                      MR. DICKINSON:  Thank you very much.  We

         17        appreciate you taking the time and you giving us those

         18        good thoughts.  They'll be extremely useful to us as we

         19        go through our deliberations, and they clarified some

         20        issues for me significantly and I appreciate it very

         21        much.

         22                 Is Mr. Pino here now?  And could we -- I need

         23        to do something in the back of the room briefly, but

         24        would you mind coming and testifying now?  Or would you

         25        prefer to go at the 11:30 hour that you were assigned?

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. PETER PINO:  I prefer to go with the

          2        elders from the Pueblo and with the youth from the

          3        Pueblo.  They're coming up.

          4                      MR. DICKINSON:  All right.  Why don't I

          5        call Ms. Warledo.  Is she here?  Ms. Warledo?

          6                      MS. GERALDINE WARLEDO:  Yes.

          7                      MR. DICKINSON:  Would you mind coming

          8        forward, and Mr. Panteah, would you mind coming

          9        forward?  I'll excuse myself for just a brief moment.

         10                      MS. ELEANOR MELTZER:  By the way, thank

         11        you for being so flexible with the schedule, so thank

         12        you very much.

         13                 Ms. Warledo, would you like to start your

         14        remarks?

         15                      MS. GERALDINE WARLEDO:  Yes.  I'm

         16        Geraldine Warledo with the Cheyenne and Arapaho Tribe.

         17                 I'm an elected official.  I started as a

         18        Sergeant-at-Arms.

         19                 Our tribe consists of 11,000 and approximately

         20        200 tribal members.  In Oklahoma, we have approximately

         21        7500.  Those rest of the tribal members are, you know,

         22        in other places.  We service eight counties in

         23        Oklahoma.

         24                 Today, we have eight business committee

         25        members.  At one time we used to have 14 but the Tribal

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Constitution was revised back in the Seventies, so

          2        today, we have eight Tribal Council members.  We have

          3        four Cheyennes and four Arapahos.

          4                 I would like to do a little bit of a

          5        show-and-tell of our flag.  Our flag's been in

          6        existence for many years.  Our flag, in the background

          7        is the Oklahoma.

          8                 We had a symbol of the Oklahoma flag here

          9        because at one time, it was the Oklahoma -- It was the

         10        Indian state.

         11                 We have the arrows which consist of our

         12        tribes; right now they're at peace, so that's why

         13        they're facing down.

         14                 The pipe resembles the Arapahos.

         15                 We have the tepee which represents the

         16        Cheyenne, our ceremony, and our Native American Church.

         17                 In the background, we have the three crosses

         18        which represents our Veterans which they had served a

         19        war - fought in World War II and the Korean War.

         20                 We have revised our, our -- or, these feathers

         21        right here represents the 14 Council Members that we

         22        were at one time.  But, today, we have a new flag.  It

         23        has four stars on each side which represents the

         24        Business Committee as of today.

         25                 We have the Southern Cheyenne and Arapaho

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Tribe on it because during years past or the Medicine

          2        Lodge Treaty back in 1867, we were all pushed to other

          3        lands and so, some of them, we still have the northern

          4        Arapahos and the Northern Cheyennes; but we had to move

          5        to Oklahoma, so that's why we're called the Southern

          6        Cheyenne and Arapaho Tribe.

          7                 Right now, we have our tribe, we serve -- we

          8        have 14 programs that we serve our people with.  We're

          9        -- I just feel like that all Indian people are unique

         10        because we have dual citizenship of the United States

         11        and of our sovereign nations.

         12                 I really don't have really much more to say.

         13                      MS. MELTZER:  Thank you very much --

         14                      MS. GERALDINE WARLEDO:  Uh-huh.

         15                      MS. MELTZER:  -- for explaining that now

         16        and for being here today.  We're very grateful.

         17                      MS. GERALDINE WARLEDO:  Okay.  Thank you.

         18                      MS. MELTZER:  Mr. Panteah?

         19                      MR. LOREN PANTEAH:  Okay.  Thank you.  I

         20        would like to thank the Patent and Trademark Commission

         21        and Mr. Pete Domenici; Mr. Domenici for providing the

         22        opportunity for tribes and individuals to express their

         23        testimony in regards to trademarks.

         24                 My name is Loren Panteah and I'm here as

         25        representing myself as a Zuni Tribal Member and as a

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        member of the Zuni Cultural Arts Council.

          2                 And before I begin, I would like to request

          3        that I submit my written testimony at a later date

          4        because we have been having some religious activity

          5        back home for the last several days on that.  I have

          6        not had time to prepare a written testimony, so if I

          7        could submit my written testimony within a couple of

          8        weeks, if that's okay.  But I will --

          9                      MS. MELTZER:  Oh, Mr. Panteah, thank you

         10        for mentioning that.

         11                 And just to remind everybody, it certainly is

         12        acceptable to submit written testimony up to and

         13        including July 30th, or if anybody else has written

         14        comments they'd like to provide, we will accept them

         15        through July 30th.

         16                      MR. LOREN PANTEAH:  Okay.  Thank you.

         17                 I know that it is appropriate that as far as

         18        what the hearing is about today is on official

         19        insignias and because I am representing myself, our

         20        Honorable Governor Bowekaty, he has represented the

         21        tribe about 10:00 this morning and it is appropriate

         22        that official tribal representatives provide testimony

         23        at this hearing.

         24                 But my primary reason and efforts in

         25        requesting to testify at this hearing is because of my

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        personal and my persistent effort in my overall

          2        livelihood.

          3                 I am a Zuni jeweler and, as I stated, I belong

          4        to the Zuni Cultural Arts Council and my effort has

          5        been initiated since about 1996 in trying to register a

          6        trademark that would provide product authenticity.

          7                 As you may or may not know, Zuni is

          8        well-renowned for its arts and crafts and there's a

          9        real serious impact to our livelihoods.  I would say

         10        that roughly between 60 and 80 percent of our tribal

         11        members rely on their arts and crafts for their

         12        livelihood.

         13                 And, so, it is a very serious problem for us

         14        and, so, my effort is to provide at least some

         15        awareness that there is a direct linkage in registering

         16        our show insignias and to include symbols, variations

         17        of names, designs, phrases, symbols, or some other,

         18        some other things that are very distinguishable and

         19        exclusive to tribes.

         20                 And so I wanted to provide this testimony that

         21        supports any type of legislation to at least provide

         22        more opportunity for tribes to register their official

         23        insignias.

         24                 I think one of the gentlemen had stated that,

         25        and also my or our Governor Bowekaty had stated that,

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        when there's any type of legislation, that tribes

          2        should be consulted and I do feel that tribes should be

          3        consulted.

          4                 And in my work experience, I'm not here

          5        representing the tribe, but I do work for the Pueblo of

          6        Zuni under the Zuni Heritage Preservation Office and I

          7        have found out, through experience and reading up on

          8        the various legislations that have to be passed, that

          9        these federal laws or regulations are implemented

         10        without ever consultation with tribes.

         11                 My assessment of such passed laws, of past

         12        laws, that it seems like it's a one size fits all; but

         13        there is very cultural diversity among the tribes and

         14        that's why it makes it hard for tribes to respond or

         15        provide input adequately and, also, the lack of, lack

         16        of knowledge of these various federal laws.

         17                 So, in particular, with trying to do something

         18        in regards to trademarks, tribes should be consulted so

         19        that their input can be provided and so that it doesn't

         20        provide any prohibitive efforts in the future as far as

         21        registering trademarks whether they be official

         22        insignias or symbols or other designs.

         23                 Under what definition that I have from a

         24        Patent and Trademark attorney is that it is either a

         25        word, phrase, symbol, design, or a combination of

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        words, phrases, symbols or designs, which identifies

          2        and distinguishes the source of the goods or services

          3        of one party from those of others.

          4                 So, in a sense, tribes who want to officially

          5        register their trademark as official insignias should

          6        include other symbols, variations of names, so,

          7        variations of names that identifies their tribes

          8        exclusively.

          9                 As a jeweler, my intent this year is to apply

         10        for my own trademark that would authenticate my

         11        product, my handmade jewelry.

         12                 But my concern is, if I am to apply for a

         13        trademark and I make a decision in the name of a Zuni

         14        word as "Zuni" and apply for a trademark, that I will

         15        be denied a trademark because there's already other

         16        companies that have used the Zuni symbol or Zuni name

         17        and that I will be denied a trademark.

         18                 And it's not right that other companies from

         19        Texas or California that are not members of the tribe

         20        be given a trademark and a tribal member be denied a

         21        trademark.

         22                 I have, as I stated earlier, that I wish to

         23        submit my written testimony, but I will just show you

         24        some examples of what is out there that has been

         25        registered and there's also a list here from another

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        set of information and I think Governor Bowekaty

          2        submitted this as well, but what - from based on my own

          3        research and other information submitted to me, there's

          4        a total of 14 that is registered under or with the

          5        combination of Zuni names so it will be disturbing if I

          6        were to submit my own trademark and be denied a

          7        trademark.

          8                 And another effort is that I represent the

          9        Zuni Cultural Arts Council and we're taking the same

         10        initiative to apply for an arts council trademark and

         11        one of our efforts is to have support from our

         12        governing body that endorses our trademark.

         13                 And, so, I do feel that registering official

         14        trademarks has a direct linkage to other symbols or

         15        variations of names of the tribe and or they are

         16        exclusive to individual tribes and so, my, I just hope

         17        that my, our collective testimony with Governor

         18        Bowekaty will do that, you know, our awareness and our

         19        information at least will have or provide direction in

         20        what is best, what is the best way to go do the process

         21        of trademark laws and regulations.

         22                 And I think one of the, one of the things that

         23        needs to be closely looked at is the Indian Arts and

         24        Crafts Act, you know.  There's a provision in the Act

         25        that endorses, empowers the Indian Arts and Crafts

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Board that has the empowerment to register trademarks

          2        for tribes.

          3                 And so I think that should really be looked at

          4        as far as how those, you know, those regulations will

          5        apply or whatever new regulations that are being

          6        proposed are to be implemented, that these associated

          7        regulations or whatever-laws that pertains to tribes

          8        that -- are looked at closely.

          9                 And, also, I wanted to also make you aware

         10        that in the early 1990s, under our Former Governor

         11        Robert Lewis, the late Governor Robert Lewis, he had

         12        made an effort to inquire through the Patent and

         13        Trademark Office for assistance in product

         14        authenticity.

         15                 And a response came from the Patent and

         16        Trademark Office from Kathryn D. Erskine, Managing

         17        Attorney, that was requesting from the tribe,

         18        requesting them from the tribe "All variations of your

         19        tribal name, including variations in your own language"

         20        and "All flags, seals, or other symbols which

         21        exclusively identify your Nation and sacred symbols"

         22        and it states, "if you are willing to make them public,

         23        and your reasons for why these symbols should not be

         24        registered to non-Indians."

         25                 So, I think that with, with this, this concept

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        or idea back then, that it should still be one of the

          2        efforts of the Patent and Trademark Office to contact

          3        the tribes as far as the official insignias and

          4        registering other symbols, variations of names.

          5                      MR. DICKINSON:  Do you need to summarize

          6        somewhat, Mr. Panteah?

          7                      MR. LOREN PANTEAH:  Okay.  In concluding,

          8        like I said, my personal effort is because of my

          9        livelihood.  I am a Zuni jeweler and a member of the

         10        Zuni Arts Council and on behalf of fellow artisans,

         11        Zuni artisans, that registering official -- not only

         12        official insignias but variations of names, symbols,

         13        should be included as part of this new effort to

         14        register for trademarks; and that the Indian Arts and

         15        Crafts Act should be closely looked into as far as the

         16        Indian Arts and Crafts Board in the section where it

         17        pertains to the Board being empowered to register

         18        trademarks for tribes, individuals or members of tribal

         19        organizations.

         20                 Thank you.

         21                      MR. DICKINSON:  Thank you.  Any questions

         22        from Mr. Panteah?   Thank you very much.  We appreciate

         23        it.

         24                 Mr. Peter Pino, Isidro Pino and Sabrina are

         25        going to testify as a group?

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. PETER PINO:  What time is it?  It's

          2        11:48.  Aren't we going to take a lunch break at 12:00?

          3                      MR. DICKINSON:  I have 11:35.  We could

          4        break now.

          5                 My concern is that I have to go on to other

          6        government business and won't be available after for

          7        about the next 15 minutes.

          8                 So, because your testimony had been referenced

          9        earlier, I wanted to make myself available to you and

         10        I'd hoped they'd informed you directly.

         11                 I will say, though, the rest of the panel will

         12        be here this afternoon and we will continue to go

         13        through all the witnesses plus anyone else who wishes

         14        to testify and that will be in the record and it will

         15        be thoroughly considered.

         16                      MR. PETER PINO:  Well, thank you,

         17        Chairman.  Again, my name is Peter Pino.  I'm the

         18        Tribal Administrator for the Pueblo of Zia and when we

         19        were delegated this task of protecting the intellectual

         20        property and the cultural property of the community

         21        some years ago, I hung my head and I felt that it was

         22        almost an impossible task and I'm glad that this issue

         23        has come to this point.

         24                 But before I address you as a committee, I owe

         25        it to those elders that had the foresight to give the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        instructions to the Governor and his staff to pursue

          2        this property; and in respect to their spirits, please

          3        bear with me.  I need to address those that have gone

          4        before us into the next world so that they can be part

          5        of the process here today.

          6                                 * * *

          7                      [11:50 to 11:52, ZIA PRAYER]

          8                                 * * *

          9                      MR. PETER PINO:  I'm going to deviate

         10        somewhat from my written testimony in hopes that I can

         11        respond to some of the questions that you had earlier

         12        and some of the comments that had been made earlier by

         13        other individuals.

         14                 The Pueblo of Zia is located 36 miles

         15        northwest of Albuquerque.

         16                 I have served in other offices at the Pueblo -

         17        positions that are appointed on an annual basis by the

         18        religious leader of the community, the "traik'atsi," in

         19        the Spanish term "cacique."

         20                 I have served as a Lieutenant War Chief for

         21        two terms, and War Chief for one term.

         22                 I come to give testimony concerning the

         23        amendment of the Trademark Act and to prohibit

         24        registration of the pueblo or official insignia of

         25        Native American tribes.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 The Zia sun symbol is used by the religious

          2        societies, and to testify today is Isidro Pino who's a

          3        member of one of the societies.  But this symbol

          4        represents the collective identity of our people.

          5                 The symbol has been used by the religious

          6        societies since time immemorial.  It represents Father

          7        Sun and Father Moon, the givers of light, day and

          8        night.

          9                 The Zia people settled in this area around

         10        1100 to 1200 A.D.

         11                 In the Fifties, the Pueblo allowed an

         12        archeologist named Florence Ellis Hawley, because they

         13        felt that this was the only way that they could

         14        preserve some of the informations that were fair, and

         15        Florence Ellis Hawley worked under the guidance of one

         16        of the religious society members of the time - Ambrosia

         17        Pino - to excavate an ash pile within the Pueblo.

         18                 They identified all the different artifacts as

         19        they went down this trench.  The items at the bottom of

         20        the ash pile dated around 1200 A.D.  That's the

         21        established date of the Pueblo of Zia.  They were in

         22        that area long before that.

         23                 The origin of the Zia people, however, was in

         24        the underground, three levels down from our current

         25        level.  And when I say "time immemorial", I'm going

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        back to the first level - the Yellow World, and that's

          2        where the Zia people began.

          3                 The religious societies were the givers of

          4        life and the doctors of our community.  They're

          5        responsible for the health and welfare of the

          6        community.  They had the responsibility long before

          7        modern medicine developed.

          8                 The religious societies called on those

          9        spiritual powers of the sun, the moon, the earth -

         10        symbolized by the Zia sun symbol - to assure the health

         11        and welfare of the community.  They continue to provide

         12        that function for the tribe.

         13                 When the Spaniards came into this region, the

         14        population of Zia numbered 15,000 people.  The people

         15        of Zia were a nation and the symbol was with the people

         16        long before that.

         17                 During war time, when the Zia people were

         18        battling the Spaniards and other people who came into

         19        the area, there was a headdress that was made by the

         20        Zia people and the other tribes recognized that head-

         21        dress.  Within that design of the headdress was painted

         22        the Zia sun symbol.

         23                 I am recalling a story that I heard from the

         24        now-deceased elder of our community - Jose Antonio

         25        Lucero - who started the fire fighting crew for Zia

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Pueblo in the 1950s after he came back from World War

          2        II.

          3                 He went to the leaders of the two sister

          4        societies within the Pueblo - the Eagle Society, the

          5        Flint Society.  He asked permission to use the symbol.

          6                 The head of the Flint Society, Ambrosia Pino,

          7        and the head of the Eagle Society, Jose Vigil Medina,

          8        sat in counsel and, after much dialogue, gave Jose

          9        Antonio Lucero permission to use the symbol on the fire

         10        fighting helmets.

         11                 We will be representing the pictures of those

         12        helmets as part of our testimony.  So those helmets

         13        were worn by the Zia people that fought forest fires

         14        throughout the United States for 20-plus years.

         15                 It is with the permission of the elders that

         16        we use the sun symbol on the tribal letterhead, our

         17        tribal buildings, our cards.  We have used both, the

         18        three-pronged and the four-pronged symbols as official

         19        insignia, according to the elders' direction.

         20                 Among the documents we will add to our

         21        testimony is a copy of the Tribal Resolution regarding

         22        the Zia sun symbol, both three- and four-pronged, as

         23        our official insignia.

         24                 At this time, I would like to read that

         25        Resolution [APRIL 15, 1999] for the record:

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      "Resolution Number 99-09.

          2                      "WHEREAS, the Zia sun symbol was

          3                      adopted by the people of the Pueblo of

          4                      Zia centuries ago, and the three-pronged

          5                      and four-pronged sun symbols have been

          6                      and continue to be of great religious and

          7                      traditional significance to the Pueblo;

          8                      and,

          9                      "WHEREAS, the Pueblo of Zia also uses the

         10                      Zia sun symbol as the official insignia

         11                      of its tribal government and has done so

         12                      for decades; and,

         13                      "WHEREAS, such religious, traditional and

         14                      official use of the Zia sun symbol has

         15                      never been formally recognized by the

         16                      Tribal Council, but it is desirable to do

         17                      so now in order to facilitate the

         18                      registration of the Zia sun symbol with

         19                      the United States Patent and Trademark

         20                      Office.

         21                      "NOW, THEREFORE, BE IT RESOLVED by the

         22                      Tribal Council of the Pueblo of Zia that

         23                      the Tribal Council hereby formally and

         24                      officially acknowledges and recognizes

         25                      that the Zia sun symbol has been and is

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      the official tribal insignia of the

          2                      government of the Pueblo of Zia, as well

          3                      as an exceptionally significant religious

          4                      and cultural symbol to the Pueblo.

          5                      "BE IT FURTHER RESOLVED that the Governor

          6                      take such actions as may be required to

          7                      seek formal recognition and protection

          8                      of the symbol, both in its religious and

          9                      traditional use, as well as the official

         10                      insignia of the government of the Pueblo

         11                      of Zia."

         12                 It's certified by the Pueblo Governor, Amadeo

         13        Shije, and the Pueblo Secretary attests the said

         14        Resolution and we gave you a copy earlier and we'll

         15        submit that in the form of a formal file that you can

         16        use as part of your record.

         17                 I will now talk about New Mexico's use of the

         18        Zia sun symbol on the New Mexico flag.  It's already

         19        been said that in 1925, the Daughters of the American

         20        Revolution had a contest for the design of the New

         21        Mexico state flag.

         22                 An individual in Santa Fe, Dr. Harry Mera, saw

         23        the ceremonial vase at the Museum of Fine Arts in Santa

         24        Fe.  We know it was a ceremonial vase, because only

         25        religious ceremonial vases could use the Zia sun

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        symbol.  We know that the only way the vase would have

          2        left the Pueblo was if it was stolen.

          3                 Dr. Mera used essentially that symbol on his

          4        entry for the flag design.  The non-Indian people voted

          5        for his design and won the contest.

          6                 There was a gentleman earlier indicating, by

          7        using this as a visual aid, that the two symbols are

          8        not similar, that the two symbols are not one and the

          9        same.

         10                 I will use us, as examples, whether we're of

         11        the same people or not:  The committee, I see that

         12        you're from the mainstream society, you do not look all

         13        the same.  Some are, your hair is receding; some are

         14        light-haired; some, the hair is turning white, but I

         15        recognize you as Caucasian and there may be some mixed

         16        blood in there somewhere.

         17                              (Laughter)

         18                      MR. DICKINSON:  Specifically American.

         19                      MR. PETER PINO:  And essentially you are

         20        Americans and you are Americans, I sit before you with

         21        short hair, the Governor sits before you with long

         22        hair, our elder sits here with his hair tied in a bun,

         23        and the youngest member of this group that's testifying

         24        before you has long hair.

         25                 My point is that we are not all the same but

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        we are recognizable as a group of people and, this,

          2        [Zia] I submit, is essentially recognizing that that's

          3        the sun symbol.  I see no difference.

          4                 I am told that I have five more minutes, and I

          5        don't know whether Isidro and Sabrina are going to be

          6        given time, after my presentation.  But I felt that I

          7        could pretty much take the entire 25 minutes between

          8        the three of us and essentially articulate what needs

          9        to be articulated.

         10                 So if you would bear with me and if you --

         11                      MR. DICKINSON:  May I suggest?

         12                      MR. PETER PINO:  Yes.

         13                      MR. DICKINSON:  We can return after

         14        lunch.  My only concern is, I do have to leave.  I

         15        don't have much time.

         16                      MR. PETER PINO:  Okay.

         17                      MR. DICKINSON:  And I would like to ask

         18        you a few questions but we can certainly -- You'd get

         19        the entire 45 minutes and we will just make sure that

         20        we --

         21                      MR. PETER PINO:  Okay.

         22                      MR. DICKINSON:  -- are available to you

         23        after lunch.

         24                      MR. PETER PINO:  Maybe what we can do is,

         25        after my presentation, we can stand for questions and

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        then Isidro and Sabrina can speak after lunch here.

          2                 And, certainly, Isidro and the Governor and

          3        myself can respond to any questions that the committee

          4        may have at that time.

          5                      COURT REPORTER:  Excuse me.  Could I stop

          6        you all right now?  I need to have a break because I

          7        need to change paper.

          8                      (12:04, brief break while Court Reporter

          9                      reloads Stenograph paper)

         10                      MR. DICKINSON:  Sorry.  Thank you.  You

         11        ready, Ms. Macias?

         12                      COURT REPORTER:  Yes, sir.

         13                      MR. DICKINSON:  You may proceed.

         14                      MR. PETER PINO:  Mr. Chairman and members

         15        of the committee, we submitted the documentation and we

         16        presented that to you.

         17                 And in the essence of time and you hearing and

         18        maybe you having specific questions, I will for now

         19        conclude my remarks and we'll continue it after lunch,

         20        so we're ready for questions now.

         21                      MR. DICKINSON:  I appreciate that, Mr.

         22        Pino.  Let me ask you, I'd asked you previously:  Have

         23        you had, or, will you seek to register one of the

         24        insignia as a trademark in our office, is that right?,

         25        that's currently under question?

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. PETER PINO:  We feel that that's the

          2        only alternative we have at this point in time because,

          3        as stated earlier, we do not have the resources, funds

          4        and humans to essentially oppose every request that is

          5        made to register that symbol.

          6                      MR. DICKINSON:  Just as an aside, you

          7        might be interested, you know, you may register on-line

          8        now, costs you 245 bucks; it'll take credit cards

          9        and --

         10                              (Laughter)

         11                      MR. DICKINSON:  -- when you get in there,

         12        in that new system, you might want to tell your lawyer

         13        about it, look for a good system, or take advantage of

         14        it.

         15                              (Laughter)

         16                      MR. DICKINSON:  There are several

         17        variations in the design, right?  I wanted to maybe ask

         18        about some of the nature of those variations and what

         19        you would believe the breadth of the protection, with

         20        regard to the official insignia, that you think would

         21        be justifiable?

         22                      MR. PETER PINO:  The three-pronged that

         23        you see in the ceremonial vase is a religious symbol.

         24                 And when I stated earlier that there was

         25        elders from the community that are now in the next

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        world, that they came to us, requesting that we take

          2        this issue on and protect the property of the pueblo,

          3        they indicated that that is the religious symbol of the

          4        religious societies.

          5                 The symbol with the four-pronged is also

          6        recognized as a Zia sun symbol but they also, the

          7        elders, recognize that that's the symbol that the state

          8        uses and that's readily more widely used within the

          9        mainstream.

         10                 And they indicated to us that the one that we

         11        should use in our stationery is the four-pronged and

         12        that with the submittal of our stationery, you'll

         13        recognize that there's some three-pronged and some

         14        four-pronged.

         15                 Adhering to the wishes of the elders, we have

         16        changed our letterhead from the three-pronged to the

         17        four-pronged and essentially we instructed the tribal

         18        office to utilize the four-pronged more on the business

         19        side, but essentially we would want to register both,

         20        both symbols.

         21                      MR. DICKINSON:  I do need to go, I'm

         22        afraid, but I'll let my colleagues continue to

         23        question.  I appreciate your testimony today very much

         24        and the testimony of all of your colleagues.

         25                 Speaking on behalf of the office, I want to

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        thank everyone who is here today from all the tribes,

          2        from Senator Bingaman and Congressman Udall.

          3                 It has been extremely enlightening for us.  I

          4        know it has been personally very enlightening for me

          5        and I think being able to do it here face to face in

          6        New Mexico has been one of the great advantages of this

          7        hearing.

          8                 So I want to thank everyone for their

          9        hospitality and their good testimony.  We definitely

         10        will take all of this testimony under very thorough

         11        consideration.

         12                 Thank you very much.

         13                      MR. PETER PINO:  Thank you.

         14                          (Applause.  12:08)

         15                      MS. MELTZER:  Before we break for lunch,

         16        I just have one quick question.

         17                 In previous testimony, Mr. Panteah, who I

         18        believe is a representative of the Zuni Pueblo, had

         19        indicated that he might apply for an application as an

         20        individual and that, of course, the pueblo, as a whole,

         21        might also apply for an application.

         22                 As a broad issue, what do you think about

         23        individual tribal members applying for trademarks that

         24        might incorporate official insignia of the tribe?

         25                      MR. PETER PINO:  Speaking just for the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Pueblo of Zia, I don't think we have any potential of

          2        any tribal individual requesting a trademark request

          3        for the sun symbol.

          4                 I think once the symbol becomes recognized as

          5        the symbol of the Pueblo of Zia, they would essentially

          6        make the request from the elders and from the tribe

          7        whether they could use that symbol to identify their

          8        crafts and their items that they produce.

          9                      MS. MELTZER:  This might be a difficult

         10        question then to answer.  Do you think that would be

         11        the same in other tribes, that is, the tribal members

         12        would seek the approval of the elders?

         13                 In other words, at the Patent and Trademark

         14        Office, how would we distinguish between a legitimate

         15        applicant and one who hadn't gotten approval?

         16                      MR. PETER PINO:  I think if one seeks to

         17        trademark a symbol of the tribe, the way I would see

         18        that process happening, - And you would make that as

         19        part of your official request of the applicant - is

         20        that they present a Tribal Resolution, adopted by the

         21        Tribal Council, stating the facts.

         22                      MS. MELTZER:  Thank you very much.

         23                 In that case, why don't we break for lunch and

         24        since we got a little bit of a late start, could we

         25        come back about 1:10 and start then?

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 And we're all very grateful for your patience

          2        and for your flexibility and we'll continue with your

          3        testimony and continue for approximately about 30 to 35

          4        minutes when you return.

          5                 Thank you.

          6                      [NOON RECESS, 12:10 to 1:41 P.M.]

          7                      MS. MELTZER:  We'd like to thank you for

          8        returning from lunch.  It's a beautiful afternoon and

          9        we're grateful that you came back for the afternoon

         10        session.

         11                 When we left this morning, Peter Pino, one of

         12        the tribal elders from the Pueblo of Zia was giving

         13        testimony together, I believe, with Mr. Isidro Pino,

         14        religious representative, and Sabrino Pino, together

         15        with Governor Shije.

         16                 So we'd like to continue that and, Mr. Pino,

         17        you have until approximately 2:00 o'clock to conclude

         18        the remarks from the group, so, thank you.

         19                      MR. PETER PINO:  Thank you, Madam Chair.

         20                 I think what I'll do, instead of taking time

         21        from the elders, Isidro Pino, and Sabrina, I'm going to

         22        allow them to make their presentations.

         23                 And after their presentations, I'll make a few

         24        more additional comments and then we'll be ready for

         25        questions.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. ISIDRO PINO:  Hello.  Welcome to

          2        Albuquerque, New Mexico.

          3                 First of all, I want to introduce myself and I

          4        want to tell you who I -- what I am, who I am.  I want

          5        to be more, or more or less specific with it since I

          6        live two worlds - the White Man's world and the Indian

          7        world.  So what I want to do is go ahead and tell you

          8        who I am, and who I am and what I did in the White

          9        Man's world.  Okay.

         10                 My name is Isidro Pino and I am from Zia

         11        Pueblo.  First of all, I turned 66 years old today.

         12                      AUDIENCE:  Happy Birthday!

         13                         (Laughter.  Applause)

         14                      MR. ISIDRO PINO:  I served in the United

         15        States 8th Army Corps of Engineers during the Korean

         16        conflict.  I am a Korean War Veteran.  I served under

         17        Commanding General Ridgeway.

         18                 I graduated from Industrial Arts in California

         19        and the one in Beaumont, California.  I spent 42 years

         20        busting my butt out here in the rat race, White Man's

         21        world, and I'm happy with it.

         22                 I retired last year, and that's about it.

         23                 And for the other part, for the testimony, my

         24        testimony is very brief and to the point and I will now

         25        read it to you.  Well, before I go to that, I missed

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        out one thing.

          2                 During my prime years, I was an inventor and I

          3        was granted one patent: a product idea.

          4                 Okay.  Going to the testimony.

          5                 Ladies and gentlemen, members of the United

          6        States Patent and Trademark Office.  I am Isidro Pino,

          7        a member of the Pueblo of Zia and the leader of the

          8        Eagle Religious Society of the Pueblo.  I also serve as

          9        the leader of the general pueblo public.  I find it

         10        difficult to speak to the issue that's so dear to me

         11        and my people - the Zia sun symbol.

         12                 The knowledge that I have as a member of the

         13        religious society is not mine.  It belongs to the

         14        society and the pueblo.  It is a community property.  I

         15        cannot disclose all the information that makes me a

         16        Zia.  However, to help you understand the importance of

         17        the Zia sun symbol, our community property, I take

         18        personal risk in disclosing the following:

         19                 1.  When a baby is born into Zia, one of the

         20        first ceremony performed is the introduction of the

         21        newborn to the sun.

         22                 2.  When hunting, the sun symbol is drawn on

         23        the ground where the campfire is to be.  This is the

         24        official invite for the sun to warm and protect you

         25        through its powers of fire.  At the end of your stay,

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        you officially and formally release the spirit of the

          2        sun.

          3                 3.  When a ceremonial vase has to be replaced

          4        in any of the 10 major religious societies, the head of

          5        the society has to approve the painting of the sun

          6        symbol on the vase before it is painted.

          7                 4.  At death of a fellow tribal member, the

          8        symbol is painted by religious society members for the

          9        family members that remain on this world so that they

         10        can be guided by the sun.

         11                 The above samplings have been disclosed in

         12        hopes that you will duly consider the full protection

         13        of the Zia sun symbol as the official tribal symbol of

         14        the Pueblo of Zia.

         15                 We recognize your present system of protecting

         16        federal, state and local government symbols.  Utilizing

         17        the same system, which includes tribal symbols, would

         18        be the most cost-effective way of incorporating equal

         19        protection of all governments.

         20                 Thank you and may the spirits that guide this

         21        world guide you to a favorable decision.

         22                 Thank you.

         23                      MS. MELTZER:  Thank you very much.  We

         24        don't have any questions.

         25                 So if perhaps Sabrina could testify.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MS. SABRINA PINO, 8 YEARS YOUNG:  Members

          2        of the committee, I'm honored to be before you.  My

          3        name is Sabrina Pino.  I go to school at Jemez Valley

          4        Elementary School.  I'm eight years old and I'll be

          5        going into the 4th Grade in the fall.

          6                 Through my parents, grandparents and tribal

          7        religious leaders, I have learned the importance of our

          8        history and our current existence.

          9                 I realize that I too will some day be a mother

         10        and a grandmother providing guidance to my children and

         11        grandchildren.

         12                 I am here today to say a few words on behalf

         13        of the 146 tribal members of Zia Pueblo that are 12

         14        years of age and younger.

         15                 We represent the future of the Pueblo.  We are

         16        glad that our present leaders are involved in

         17        protecting the Zia sun symbol which is an official

         18        symbol of the Pueblo.

         19                 We hope and pray that you will also protect it

         20        by not allowing it to be trademarked by anyone from the

         21        private sector.  The symbol represents our past,

         22        present and future.

         23                 Please don't take away our future.  Please!!

         24                      MS. MELTZER:  Thank you very much.

         25                      MS. SABRINA PINO:  You're welcome.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                         (Laughter.  Applause)

          2                      MR. PETER PINO:  At this time, I'll go

          3        ahead and finish off my testimony and essentially,

          4        after that, we'll stand for questions.

          5                 I had briefly described our relationship with

          6        the state and how they came to the symbol.

          7                 In working with the state and in working with

          8        this issue, there has been some questions posed by some

          9        people and the questions that they ask is:  Why didn't

         10        they object then?  - meaning 1925.

         11                 They do not understand how it was for Native

         12        Americans at that time.  We were not considered

         13        citizens of the United States at the time.  This is

         14        1925.

         15                 The population figures of our tribe at the

         16        time were about 120.  Formal western education was not

         17        introduced until the late 1920s.

         18                 The sun symbol by the state was appropriated

         19        in 1925, and that was just elementary school.  Many

         20        people had to work just to survive and didn't even

         21        finish those elementary grades.

         22                 We didn't have anyone with the knowledge or

         23        expertise back then to oppose the use of the symbol.

         24        It just didn't happen then.

         25                 The Pueblo of Zia simply didn't have the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        wherewithal to fight the misuse and appropriation of

          2        its cultural symbol and insignia.

          3                 In the 1970s when I was first hired, the

          4        entire budget of the pueblo was $15,000.  That was all

          5        the money that the pueblo had.

          6                 In the past, the pueblo wasn't even aware it

          7        could protect the people's rights.  History had overrun

          8        us.  American law was something that oppressed us and

          9        took things away from us and we didn't know how we

         10        could fight and possibly win.

         11                 Even today, we have many -- we have for many

         12        years spent valuable and scare resources opposing

         13        parties who want to have exclusive rights to our sun

         14        symbol.  We simply do not have the resources to fund

         15        options to every individual who applies to federally

         16        register the Zia sun symbol as his trademark.

         17                 We are in ongoing negotiations with the

         18        members in the executive branch of state government for

         19        their unauthorized taking of our symbol earlier this

         20        century.

         21                 We do not want to stop the State of New Mexico

         22        from using the symbol.  We want recognition of the

         23        taking, a formal apology, and some kind of gesture of

         24        remuneration to us - not that money can ever make up

         25        for this taking but because it is a wrong that needs to

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        be righted.

          2                 Many wrongs cannot ever be righted in western

          3        law but are atoned for, partially, by monetary payment.

          4        It is manipulative for others to criticize us for being

          5        materialistic to want some kind of symbolic payment for

          6        the unauthorized use of our symbol.

          7                 If any symbol or object of religious

          8        significance is used with disrespect, there is an

          9        imbalance.  We feel that the world today is out of

         10        balance.

         11                 I know that the Trademark Office may not be

         12        concerned with or believe in the possible imbalance

         13        caused by disrespect of our culture and our religious

         14        symbol.

         15                 But I do not understand why it and Congress

         16        would not understand the imbalance and inequity under

         17        the law of protecting from registration the official

         18        insignia of cities, states, and foreign nations, and

         19        not protecting the official insignia and symbols of the

         20        First American Nations.

         21                 It is sensible and right to correct these

         22        inequities.

         23                 Before I conclude, I would like to address a

         24        concern and a question that was asked earlier today.

         25        That question is:  What happens if there's conflicts

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        between tribes?

          2                 There have been such conflicts in the past

          3        with tribes on certain properties.  And that hurt and

          4        that wound is always there, unless the two tribes come

          5        together and resolve that issue.

          6                 The Pueblo of Zia, in the past, has been

          7        involved with the issue with another pueblo and the

          8        only way that that issue was finally put to rest is

          9        that the pueblo leadership of Zia at the time requested

         10        all the members to bring jewelry, to bring buckskins,

         11        to bring necklaces, silver belts, anything that they

         12        can come with, and make an offering to this other

         13        pueblo for payment of a wrong that had been done.

         14                 Only then did the issue and the conflict get

         15        resolved.

         16                 We all, as pueblo people, now realize that

         17        that was the only way to handle that, that issue.

         18                 So if those issues come up, I think the tribes

         19        can handle those issues and be able to come up with a

         20        decision that would be favorable for all parties.

         21                 The other question that came up I addressed

         22        earlier, with showing the vessel and the four-pronged

         23        sun symbol; as I was sitting in the room this morning,

         24        I was shown a symbol of the Pueblo of Acoma.  In that

         25        symbol appears the sun symbol on their circle of

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        symbols.

          2                 The Pueblo of Zia has no intentions of taking

          3        those symbols from sister pueblos and we will be able

          4        to address those issues in council with the respective

          5        councils, to be able to address those issues.  So Zia

          6        has not taken the position of taking the symbol away

          7        from the state and the pueblos.

          8                 The state will deal with it on a

          9        government-to-government basis and we'll do the same

         10        with other of the tribes that are in the state and

         11        other locales that may be using the symbol.

         12                 In conclusion, in concluding my remarks, I

         13        want to thank you as members of the U.S. Patent and

         14        Trademark Office for designating Albuquerque as a

         15        hearing site.  I also want to thank the many people

         16        that made this issue advance to this point.

         17                 And, last, I want to thank the spirits and the

         18        people who will make the protection of tribal insignia

         19        a reality.

         20                      MR. STEPHEN WALSH:  Mr. Pino, thank you

         21        very much for your testimony.  It appears to us the

         22        symbol means a great deal more than just identifying

         23        it.

         24                 My question is related in some way to the

         25        nature of the symbol and the importance that it has.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 Among the public comments that we've received

          2        so far, we have suggestions that the Patent and

          3        Trademark Office should maintain a register of the

          4        official insignia.

          5                 There are other comments which suggest some

          6        other group or agency might be more appropriate to

          7        maintain a registry.

          8                 Do you have suggestions for us on what would

          9        be the most appropriate way in which to compile and

         10        maintain a list?

         11                      MR. PETER PINO:  The federal government

         12        has the Trust responsibility to oversee the resources

         13        of tribes.  We are nations within a nation.  So we look

         14        to the federal government for protection and to look at

         15        the needs and desires of us as Native Americans.

         16                 We have more trust in the different entities

         17        that are available:  the state, the local

         18        municipalities.

         19                 We have more trust with the federal government

         20        because there is a government-to-government

         21        relationship that our forefathers assured would be in

         22        existence.

         23                 So we feel that the list of such symbols

         24        should be kept by the federal government and the most

         25        appropriate office would be the U.S. Patent and

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Trademark Office for the purpose of having a central

          2        one-location-type of situation.

          3                 And as I stated earlier, if tribes want to

          4        trademark their symbols or tribal members want to do

          5        that, then they have to do it by Tribal Resolution.  We

          6        feel that that would be honoring the governmental

          7        system that each tribe has.

          8                      MR. WALSH:  Thank you.

          9                      MS. MELTZER:  Thank you very much.

         10                 I just have one question.  In both your

         11        testimony and the testimony of some other

         12        representatives, it seems that the emphasis is on

         13        protection of official insignia in the same way that

         14        the insignia of other states, municipalities, and

         15        countries are protected.

         16                 As you understand our current trademark

         17        system, would that be adequate, then, to meet your

         18        needs if we protected, let's say, the Zia sun symbol in

         19        exactly the same way that we protect, let's say, the

         20        flag of Great Britain?  Would that be adequate

         21        protection?

         22                      MR. PETER PINO:  I think if there was

         23        anything more offered to the tribes, there would be a

         24        cry of injustice from the public sector.  And we feel

         25        that if the playing field was leveled, that would be

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        sufficient.

          2                 If there was equal protection, I think that's

          3        all we can ask from the federal government.

          4                 We're not asking for the law to go beyond

          5        what's offered to other entities.

          6                      MS. MELTZER:  Thank you very much.  You

          7        have a couple of minutes remaining if you'd like to use

          8        that.

          9                 And, if not, we'll thank you for your

         10        testimony and for your presence.

         11                      MR. PETER PINO:  One of the other

         12        comments that I want to make is to essentially address

         13        the issue of the symbols of other tribes.

         14                 There was some concern by some people in the

         15        public sector that there may be hundreds and thousands

         16        of new registrations coming from tribes.

         17                 If today's session here is any indication, I

         18        count maybe four to five different groups that are

         19        saying some kind of protection for their symbols.  I

         20        don't think there's going to be a mad rush of new

         21        symbols being requested to be trademarked.

         22                 I think the people that were saying that

         23        there'd be thousands of new symbols and that you will

         24        be rushed for time and human resources to try to figure

         25        out how you would manage such a flood of new requests,

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        I don't think there's going to be that kind of flood.

          2                 I think it's something that needs to be done

          3        and I think the requests are going to be coming in,

          4        paced, paced out, so that you don't have a floodgate of

          5        requests.

          6                 I think you will have a request here, here or

          7        there.  The normal request that comes in from the

          8        private sector I think would be the same kind of pace

          9        you'll see and, then, the tribes making requests for

         10        trademarking their symbols.

         11                      GOVERNOR AMADEO SHIJE:  Members of the

         12        committee, I also want to -- I have a statement that I

         13        want to make also today.

         14                 As you can see, there's not too many tribes

         15        that are represented today.  But the fact is that they

         16        all have the very same concern that we have, and the

         17        reason why I state that is because I'm a member of the

         18        All Indian Pueblo Council, a council that was

         19        established back in 1598 and, in a lot of cases, long

         20        before a lot of entities in this country have been

         21        established.

         22                 So what I'm saying is, I cannot speak on

         23        behalf of those tribes but I'm assuming that those

         24        tribes that have tribal insignias would probably be in

         25        concurrence with what we are doing here today and I'm

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        assuming that in the very near future, that this

          2        subject will come up with the All Indian Pueblo

          3        Council.

          4                 So, with this, I will take back this

          5        information to that council and advise them of the

          6        outcome of this gathering here today.

          7                 And once again, I thank you all for coming and

          8        we would wait for your favorable response and I would

          9        like to think that you would treat us just as you treat

         10        other entities and other foreign countries, as well.

         11                 And I thank you once again.

         12                      MS. MELTZER:  Thank you all very much and

         13        we appreciate your comments and your presence.

         14                 In that case, if there are no further remarks

         15        from this panel, we'd like to invite our next group of

         16        speakers to give their testimony.

         17                 If I could ask, is it Mr. Stanley Pino?

         18                      AUDIENCE:  [Hand up]

         19                      MS. MELTZER:  Thank you.  Could you come

         20        to the table and then we'd also ask William Weahkee and

         21        Glenabah Martinez to come up to testify, in that order.

         22                 I understand that Mrs. Martinez very kindly

         23        gave her time to a group of representatives from the

         24        Native American Youth Group this morning.

         25                 So if Professor Kenneth Bobroff is in the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        audience, could you come up to the table, please.

          2                 Thank you.

          3                      MR. STANLEY PINO:  Good afternoon,

          4        Governors, other tribal representatives, members of the

          5        panel and members of the audience.

          6                 My name is Stanley Pino and I am the Chairman

          7        of the All Indian Pueblo Council, an organization

          8        comprising all 19 of New Mexico's pueblos, which has

          9        existed since time immemorial and is dedicated to the

         10        preservation of tribal sovereignty and the cultural

         11        integrity of its constituent tribes.

         12                 In the interest of full disclosure, I am also

         13        proud to state that I am a member and former Governor

         14        and present Council Member of the Pueblo of Zia.

         15        However, I am here today to speak on behalf of all 19

         16        of New Mexico's pueblo nations.

         17                 New Mexico's pueblos are unique tribes.  They

         18        have resided in what is now New Mexico since time

         19        immemorial and, unlike many tribes, have a long history

         20        as people and as tribal governments.  Each has its own

         21        unique tribal insignia.

         22                 Some, like the Pueblos of Isleta and Sandia,

         23        are more modern in their origin and design.

         24                 Others, like the Pueblo of Zia sun symbol, are

         25        ancient and revered.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 All, however, have great symbolic importance

          2        to their respective pueblo nations.  It is precisely

          3        because of their uniqueness and attractiveness that

          4        many in the non-Indian world seek to emulate them and

          5        use them for commercial gain.

          6                 Like other things of value which Indian

          7        Nations possess, they have been all too freely

          8        appropriated without recognition or compensation.  This

          9        must stop and can be stopped with minimal effort on the

         10        part of the federal government.

         11                 By giving Indian Tribes the same protections

         12        that have long been given to state, local, and foreign

         13        governments, the federal government can belatedly begin

         14        to fulfill this long-neglected areas of its Trust

         15        responsibility.

         16                 Once protected, Indian Nations can decide for

         17        themselves whether and under what circumstances they

         18        wish to permit the use of their tribal insignia by

         19        others.

         20                 Doing so can help protect and promote tribal

         21        sovereignty and tribal culture, while furthering

         22        perhaps the most important objective of the American

         23        system of government - protection of property rights.

         24                 This legislation would show long overdue

         25        respect for Indian Nations and their cultural symbols.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 Retroactive application of the law would begin

          2        to redress longstanding wrongs to Native Americans and

          3        their culture.

          4                 No business interest should justify the

          5        retention by non-Native Americans of federal

          6        registrations of official Native American symbols.

          7                 Existing law dictates that non-Native American

          8        institutions must divest themselves of Native American

          9        property which those institutions have purchased for

         10        large sums of money.

         11                 Similarly, a trademark owner should not be

         12        shielded merely because it registered a trademark

         13        before the Act was changed.

         14                 To allow the present owners of marks, which

         15        are Native American official insignia, to continue to

         16        use them undisturbed, would make a mockery of the

         17        serious attempt by Congress and the United States

         18        Government to right a wrong and would send the clear

         19        message that property rights of a non-Indian business

         20        are to be valued more than the essential cultural

         21        values and sovereign identity of an entire tribe.

         22                 Such non-Native American uses should be

         23        stopped or, at a minimum, such trademark owners should

         24        be required to reach an agreement with the Indian

         25        Nations for such use.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 The change in the law will not impose great

          2        burdens on the Patent and Trademark Office; rather,

          3        failure to change the law will merely increase the

          4        burden and historical abuse heaped on Native Nations

          5        who have had to stand helplessly by as their cultural

          6        and religious symbols have been callously appropriated

          7        by non-Native Americans for use in commercial and often

          8        offensive ways.

          9                 Action taken now would serve to minimize any

         10        additional burden to Native Americans and Indian

         11        Nations and would foster greater cultural awareness in

         12        this land of such great diversity.

         13                 In closing, we acknowledge and applaud the

         14        efforts of Senator Bingaman to bring this issue to the

         15        forefront and thank Congressman Udall for his efforts

         16        on this subject.

         17                 Respectfully submitted, Stanley Pino,

         18        Chairman, All Indian Pueblo Council.

         19                 Thank you very much.

         20                      MR. WALSH:  Thank you, Mr. Pino.

         21                 My question concerns something that I realized

         22        when I saw the paper copy of your testimony.

         23                      MR. STANLEY PINO:  Yes, sir.

         24                      MR. WALSH:  And there's an insignia at

         25        the top of this page which is the All Indian Pueblo

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Council insignia.

          2                      MR. STANLEY PINO:  Yes, sir.

          3                      MR. WALSH:  And just to be sure that we

          4        consider all the possible applications of changes to

          5        the Trademark Act, should we consider, in addition to

          6        federally- and/or state-recognized Native American

          7        tribes, should we also consider insignia of groups or

          8        associations such as the All Indian Pueblo Council?

          9                 Would you -- Just to make sure we try to cover

         10        all the bases.

         11                      MR. STANLEY PINO:  Yeah.  I certainly

         12        believe that even organizations that represent

         13        government entities in the Native American sector, I

         14        feel that they need to be protected.

         15                 I realize that in reference to our logo, this

         16        logo was I guess developed back in 1965 when the All

         17        Indian Pueblo Council was incorporated as a 501(c)(3)

         18        corporation for funding purposes, so that logo was

         19        developed and has been a part of the symbol for all 19

         20        pueblos.

         21                 I believe in 1995 or 1996, the Chairman at the

         22        time of the All Indian Pueblo Council came to Zia and

         23        in that discussion, he asked permission, somewhat

         24        belatedly, but he did ask permission for the council to

         25        use the insignia or at least the sun symbol on our

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        symbol for All Indian Pueblo Council.

          2                 They're one of the bodies that have come

          3        forward and asked permission to continue to use that

          4        symbol.

          5                 Another group that's present here today, the

          6        Council of Energy Resource Tribes, who David Lester is

          7        present in the audience, - He will testify later - his

          8        group also requested permission to use the symbol as

          9        part of, also, their organization or logo.

         10                 So, yes, I do believe that organizations that

         11        represent tribal governments should be also protected.

         12                      MR. WALSH:  Thank you.

         13                      MS. MELTZER:  I don't think we have any

         14        further questions for you, Mr. Pino, but we do want to

         15        thank you for your testimony today.

         16                      MR. STANLEY PINO:  Thank you very much

         17        for allowing us the time to testify on behalf of the 19

         18        pueblos.

         19                 Being a member of Zia, I also have a special

         20        place in my heart; that we do see this hearing be in

         21        favor of not only Zia Pueblo but also the Indian

         22        Nations throughout the United States.

         23                 As Governor Shije iterated earlier, we do

         24        represent 19 governments and even though they're not

         25        present today, they are present in spirit and also with

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        words that they have given me to present today as part

          2        of their testimony.

          3                 So let the record show that the 19 Pueblos

          4        were represented by the All Indian Pueblo Council.^

          5                 Thank you very much.

          6                             [^DULY NOTED]

          7                      MS. MELTZER:  Thank you.

          8                 Before we move on to Mr. Weahkee, I just want

          9        to the acknowledge that comment and indicate to both

         10        you and Governor Shije and all the members of the

         11        audience, that we appreciate that while not everybody

         12        who would like to attend attended this hearing or even

         13        the one in San Francisco or the U.S. Patent and

         14        Trademark Office are able to.

         15                 We realize that there's great concern about

         16        this issue, and whether people submit written testimony

         17        or ask representatives to give oral testimony, that

         18        indeed they're thinking about this issue and it's an

         19        important one.

         20                 So thank you for reminding us that merely

         21        because people aren't physically present here today, it

         22        doesn't mean they don't think this issue is important.

         23                 Thank you.

         24                      MR. STANLEY PINO:  Thank you very much.

         25                      MS. MELTZER:  Mr. Weahkee.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      MR. WILLIAM WEAHKEE:  My name is William

          2        Weahkee.  I don't have a title on the agenda because

          3        they didn't know which hat I was going to wear at the

          4        time.

          5                              (Laughter)

          6                      MR. WILLIAM WEAHKEE:  And I think I will

          7        wear both hats at this time.

          8                 My name is William Weahkee.  I'm the Executive

          9        Director for the Five Sandoval Indian Pueblos, the

         10        little pueblos that surround Albuquerque on the north

         11        side.

         12                 I'm also the only Indian member on the

         13        Petroglyph Monument Advisory Commission, appointed by

         14        Mr. Babbitt at the national level.

         15                 Since I do work a lot with symbols, I have

         16        worked a lot with the architects, the authors and the

         17        people, the anthropologists and people who study, for

         18        instance, rock art.

         19                 A lot of those symbols have now been taken

         20        over but mostly by non-Indians and non-Indian firms, as

         21        you will see, the various ways they portray animals,

         22        deers, turkey, bears and what-not, without even asking,

         23        without even being given permission.

         24                 They act like it's just free for the taking,

         25        free for the asking -- I mean not "free asking" but

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        free for the taking.  That is what has been happening

          2        for the past two or three centuries since non-Indians

          3        have came to this world.

          4                 The Spaniards have also had some other little

          5        crosses up there but none of that has been, you know,

          6        misappropriated or taken because the Spanish were aware

          7        of how to use their symbols and stuff and how to

          8        protect them.

          9                 The Indians are finding themselves at a

         10        disadvantage all the time mostly because we don't

         11        understand your systems, your ways of doing things.

         12                 And this is the first time we've really seen a

         13        good or a great effort on your part or the part of the

         14        PTO to come into this area to start rectifying or at

         15        least straightening up or trying to help alleviate

         16        problems at this level.

         17                 A lot of our artists now know how to use copy-

         18        right but the tribes themselves, as a whole, have never

         19        indicated one way or the other these things were there

         20        for the taking.  They never said that it was free.

         21        They never said that this could be done and, yet, this

         22        still happens.

         23                 The biggest, I guess, culprit, if you want to

         24        put it in a blunt way, is the State of New Mexico.

         25                 Whether these people that study the Indian

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        symbols come into New Mexico, they study the Indian

          2        symbols and their backgrounds and everything are

          3        scholarly and all that, but the point is, they are not

          4        Indian people, they have not lived that type of life.

          5                 The people from Acoma, especially Peter Pino

          6        has put it eloquently - Those symbols are many times

          7        taken off the other symbols that people have used for

          8        centuries and that are sacred.

          9                 They didn't tell you or they didn't mention

         10        about the symbols of the four directions that the Keres

         11        Tribes - at least I know that - have used; the four,

         12        the sun, the four rays, the four ways, they have the

         13        four directions and they have the four seasons, et

         14        cetera.

         15                 These things are tied in with song.  They're

         16        tied in with the ritual.  They're tied in with things

         17        that we cannot divulge because what happens when we

         18        divulge something like that, it's always exploited at

         19        our expense.  Nothing comes back to the tribes.

         20                 Anything you do, if you see the quality of the

         21        craftsmenship that the Indians have, you just have to

         22        go walk over to the Indian Pueblo Cultural Center and

         23        you'll see that the Indian craftsmen people and ideas

         24        are second to none in the world.  They're second to

         25        none in the world.  We're tops.  We have our ways of

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        doing things.  We have our ways of improving things.

          2        We have our ways of developing things that, you know,

          3        come from our background and our ideas and stuff like

          4        this.  Therefore, they should not be taken away.  They

          5        should not be 'ex-appropriated', or appropriated for

          6        somebody else, for somebody else's good.

          7                 So I really wanted to say that.

          8                 I hope and I really request that you do

          9        everything in your power to understand the Indian side

         10        of these things.  They're not games.  They're not for

         11        play and they're not for sale a lot of times.  So we

         12        have to understand that.

         13                 You're coming into our area now and we've got

         14        a developed culture here.  We've got our own religion.

         15        We've got our own ways.

         16                 From the day that the child is born till the

         17        day it dies, there's rituals, there's prayers, there's

         18        stuff like this and all of it's tied in with the

         19        symbolisms, different kinds.

         20                 A lot of it we may use in our own logos, but

         21        we think we have the right to use them but nobody else,

         22        in some cases.

         23                 So I think, with that in mind, just everything

         24        has been said.  A lot of it, I already agree with.  I

         25        support it wholeheartedly.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 But I really wanted to say that something must

          2        be done and you are the forerunners or the front or the

          3        shop troop, so-to-speak, you need to get out there and

          4        understand us.  We've been trying to do that for years

          5        with you.  It doesn't work.

          6                 But if you can come down and see what we're

          7        talking about, even though, a lot, we don't speak the

          8        language that good or some of our people don't speak it

          9        that well, we still have to have some way for you to

         10        understand us and to go beyond just what we're trying

         11        to say to you because, a lot of times, we can't explain

         12        the whole thing because it's tied with other things,

         13        other concepts, other rituals and stuff like this.

         14                 Welcome and I thank you very much.

         15                      MS. MELTZER:  Mr. Weahkee, I heard and

         16        your comments actually raised one question, and based

         17        on both your personal experience, who you are and in

         18        your work with the Petroglyph Advisory Commission, in

         19        what way could our office be notified of symbols that

         20        are important to Native Americans but not necessarily

         21        adopted as their official insignia?

         22                      MR. WILLIAM WEAHKEE:  The Petroglyph

         23        National Monument, for instance, we are making plans

         24        and we have already started the process of identifying

         25        every, every petroglyph that is in the Petroglyph

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        National Monument Park.

          2                 There's over 17,000 different kinds of images

          3        and designs and things like this.  The Park Service is

          4        cataloguing those and they are identifying their exact

          5        locations and they're giving them descriptions of what

          6        they are and where they are by both the mapping

          7        institutions.

          8                 I don't know anything about mapping but

          9        they're focusing it on a mapping situation where they

         10        can identify exactly where that is, so that if it's

         11        destroyed or any were damaged in the future, we'll know

         12        what happened.

         13                 Those kinds of figures will be made available

         14        to you if you would ask us or I could make it my job to

         15        make sure that you get copies of this so that it will

         16        be in your records or in your files.

         17                 Like I say, a lot of those are not being asked

         18        for or to be kept by Indians only, because we do want

         19        to share.  We would like for people to come up there

         20        and look at them, but not necessarily exploit them to

         21        where they make profit all the time and not give

         22        anything back to the Indian people at all.

         23                      MS. MELTZER:  Thank you very much for

         24        your comments and for your offer, and if you don't have

         25        any further to add, we'll thank you very much for your

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        testimony.

          2                      MR. WILLIAM WEAHKEE:  Thank you very

          3        much.

          4                      MS. MELTZER:  Thank you.

          5                 Before Professor Bobroff gives his testimony,

          6        may I ask that David Lester -- Thank you very much.

          7        Could you come up to the table?  I think you two are

          8        the last two scheduled speakers.

          9                 And then after you two finish giving your

         10        testimony, if anybody who is the audience maybe would

         11        like to make comments, we would certainly welcome

         12        those.

         13                      PROFESSOR KENNETH BOBROFF:  Thank you for

         14        the opportunity to testify this afternoon.  My name is

         15        Kenneth Bobroff.  I'm an Assistant Professor at the

         16        University of New Mexico.

         17                 One of prerogatives of being a Professor is

         18        that I don't have to put on a suit and I get to

         19        pontificate.

         20                 And I have prepared some written remarks but I

         21        thought it might be more useful if I could try to give

         22        an academic perspective on some of the issues that have

         23        been raised this morning.

         24                 Before I do that, I think it's important to

         25        recognize both Senator Bingaman's leadership but, even

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        more importantly, the foresight of the leaders of Zia

          2        Pueblo and the perseverance that they have demonstrated

          3        over the years in keeping this issue moving forward.

          4                 Without the leadership exercised by Zia, this

          5        issue would not be on America's radar screen at all.

          6                 As a student of U.S. Indian policy, it's

          7        striking how the most serious injustices have always

          8        been done by government commissions when they didn't

          9        listen to Indians and when Indian voices were not heard

         10        prior to policy being made.  So I think it's highly

         11        significant that you've been able to hear this morning

         12        many different voices expressing the concerns and

         13        preferences, thoughts of different Indian people on

         14        this issue, and you would be wise, if you want to do

         15        justice, to pay heed to those expresssions.

         16                 I'd like to start out by suggesting that you

         17        have probably learned some valuable lessons this

         18        morning, but two I would emphasize in particular

         19        because the first is a lesson that probably is taught

         20        at no law school, or very few law schools, but it's

         21        regularly taught at the University of New Mexico of

         22        which we are quite proud, is:  You cannot graduate from

         23        our Law School without understanding that there are not

         24        two sovereigns in America, but there are three.

         25        There's not only the United States and the state

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        governments but there are also Indian tribes and the

          2        importance of seeing Indian tribes as sovereigns and

          3        understanding that continuing status as sovereigns goes

          4        a long way towards giving you direction on how this

          5        policy should take effect.

          6                 Most specifically, there were questions raised

          7        about:  Well, what should be the definition of an

          8        official insignia?

          9                 The answer is fairly simple:  The definition

         10        of an official designation of an official insignia is

         11        what the tribe says it is.

         12                 If the tribe passes official resolutions

         13        saying that it has two official insignias, then that is

         14        their official insignias and should be recognized in

         15        the same way that if the County of Bernalillo wants to

         16        have two official insignias or the Governor and the

         17        Lieutenant Governor of the State of New Mexico want to

         18        add official insignias, those are recognized.

         19                 The second main point I would say is that it's

         20        clear that if tribes are treated as they should be,

         21        which is as governments, that this proposed policy to

         22        prohibit registration, unauthorized registration of

         23        their marks, and prohibiting unauthorized use of those

         24        marks should not create administrative difficulties

         25        that are insurmountable.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 Indeed, I don't think it's particularly a big

          2        deal in terms of the statutory changes required or the

          3        changes in the administration that are required.

          4                 In some ways, it's difficult to fully address

          5        tribes' concerns about their official insignia, because

          6        while tribes are governments just like states,

          7        municipalities, if anything they're older and they have

          8        this inherent sovereignty in ways that those

          9        governments do not.

         10                 Tribes are both the same and they're

         11        different.  They're the same as governments.  To

         12        distinguish them from other groups and special interest

         13        groups, one of the trade groups in their comments

         14        initially suggested, that this was opening a gate for

         15        other special interest groups to act.

         16                 Other minority groups are not like tribes.

         17        They are not governments.  They are not sovereigns.

         18                 In this sense, you're correct in treating the

         19        tribes just like states, municipalities and foreign

         20        nations.

         21                 But in some ways, tribes and their need to

         22        protect intellectual property is different.  It's

         23        different for a couple of reasons.  One, it's different

         24        because of the Trust responsibility.

         25                 In figuring out how the United States

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Government has the right to exercise power over Indian

          2        Tribes who, after all, never consented to it, never

          3        agreed to be part of the United States of America, the

          4        concept of the Trust responsibility was created.

          5                 It was this notion that if the United States

          6        was going to exercise power over Indian peoples, then a

          7        responsibility went along with that, to exercise it in

          8        a way to protect Indian people and their resources.

          9                 This is a reality or a concept that extends to

         10        all segments of the federal government, not just the

         11        Bureau of Indian Affairs, but also the Patent and

         12        Trademark Office, and it is a legal concept that is

         13        inapplicable to municipalities, states and foreign

         14        nations.

         15                 Secondly, tribes don't have the same sorts of

         16        resources that states and municipalities have, to

         17        protect their use of their insignia.  If the State of

         18        New Mexico wants to decide that it is illegal to put

         19        the Zia sun symbol on a porta-pottie, it can do that

         20        and it can enforce that law.

         21                 Because of the great restriction in the

         22        authority of Indian Tribes, they don't have that

         23        authority to stop me in Albuquerque, although they

         24        might here in this spot which is Trust land, but if I

         25        were at my house, they couldn't stop me from using a

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        symbol in any way I want.  So tribes are without that

          2        authority to enforce the protection of their symbols,

          3        themselves,

          4                 Nor do tribes have the monetary authority, as

          5        the testimony from attorneys this morning indicated, to

          6        enforce their rights privately.  There's this image in

          7        mainstream American that all Indians are rich now

          8        because of gambling and, I guarantee you, it is not

          9        true.

         10                 A very, very small number of tribes have legal

         11        resources sufficient to protect their intellectual

         12        property rights, themselves.

         13                 The vast majority of tribes have such

         14        tremendous needs and such tremendous demands on their

         15        resources for life-and-death kinds of concerns that it

         16        is only the tribes which are most committed to this

         17        issue and to the importance of their symbols, such as

         18        Zia Pueblo, that are able to devote resources to it and

         19        take away resources from places that they may be of far

         20        more immediate use.

         21                 There are also concerns, or differences,

         22        rather, in that the intellectual property that we're

         23        talking about, when we're talking about official

         24        insignias and symbols, is in many respects, in most

         25        respects, not commercial.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 So to the extent that the patent or that the

          2        trademark laws are aimed at protecting commercial use,

          3        it is not helpful to Indian Tribes.

          4                 So if the Pueblo of Zia is in a position of,

          5        if it wants to protect its symbol, itself, of putting

          6        it into commercial use, particularly when these symbols

          7        are in the religious nature, that puts tribes in a

          8        difficult, untenable position.

          9                 The fact that these symbols are, as I believe

         10        it was Mr. Weahkee who said, "community property,"

         11        means that trademark law also has a difficulty in

         12        protecting it.

         13                 It's the property of the entire pueblo.

         14                 Trademark law is more comfortable when it can

         15        focus just on a corporation or individual.  This is

         16        another difference when the trademark law should be

         17        adjusted to fit the reality of Indian peoples.

         18                 There have been questioned raised by

         19        international obligations.  I'm not an expert on the

         20        Paris Convention but I would like to draw your

         21        attention to evolving international standards or

         22        evolving standards of international law relating to the

         23        rights of indigenous peoples.

         24                 I would draw your attention to Article 29 of

         25        the draft United States declaration on the rights of

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        indigenous peoples and obligations of states to act, to

          2        provide special protection to intellectual property

          3        rights of indigenous people.

          4                 Commissioner Dickinson raised some concerns

          5        about opposition in cancellation proceedings and I

          6        would suggest that the distinction that was drawn by

          7        Attorney Mielke of differences between historical and

          8        new designs might well be worth study as a way of

          9        providing grounds for which cancellation and opposition

         10        could be considered while respecting the long history

         11        and traditional use rights and also vested property

         12        rights of trademark owners.

         13                 In closing, I would like to draw your

         14        attention to what has been a theme running through

         15        today's discussions; that as Indian peoples have dealt

         16        with invasion of non-Indians, there has been a

         17        succession of takings.  Non-Indians took Indian land.

         18        They took land, language.  They took Indian culture.

         19        They appropriated freely.

         20                 In almost every case where non-Indians have

         21        come in to take something, there have grown up these

         22        myths that "Well, the Indians didn't really own it in

         23        the first place."

         24                 Yesterday, I was reading the Congressional

         25        Hearings from 1920 where testimony was given that the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        pueblos didn't really own the land grants, they were

          2        granted them by Mexico.

          3                 In this same fashion, there has been myths

          4        that the petroglyphs weren't created by Indians, they

          5        were actually created by Boy Scouts.

          6                 There's a myth that the Black Hills were never

          7        owned by the Lakota, that the Lakota actually moved

          8        there in about 1750.

          9                 I would suggest that the notion that the Zia

         10        did not own that sun symbol is in the same class of

         11        myths.

         12                 One of the things that is most attractive

         13        about living in New Mexico for non-Indians is the

         14        tremendous cultural diversity that we have.

         15                 Like the representative from the American

         16        Trademark Association, it is a cultural heritage that

         17        we are proud of, but she suggested that it is a

         18        cultural heritage that we all want to share and

         19        protect.

         20                 And I would suggest that the determination of

         21        whether to share the cultural heritage of Indian

         22        peoples is a determination for those peoples to make

         23        and if they want to share it with us non-Indians, we

         24        are fortunate and should be thankful but we should not

         25        seek to take it.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 And the laws of the United States should be

          2        such that tribes can exercise their rights to control

          3        their symbols and insignia, can decide whether they

          4        should be used commercially or not, and have remedies

          5        when others seek to take that property unfairly.

          6                 Thank you.

          7                      MS. MELTZER:  Thank you very much.

          8                 We don't have any questions.  Thank you very

          9        much for your testimony.

         10                      MR. A. DAVID LESTER:  I'm Davis Lester

         11        and I'm the Executive Director for the Council of

         12        Energy Resource Tribes headquartered in Denver,

         13        Colorado.

         14                 The Council of Energy Resource Tribes,

         15        commonly referred to as CERT, is a tribal organization

         16        comprised of 50 separate Indian Nations.

         17                 We were formed to prevent the theft of energy

         18        resources from Indian land during the energy crisis of

         19        the Seventies when both President Ford and President

         20        Carter said that the federal government was dedicated

         21        to producing all the domestic energy resources.

         22                 In the past, when there was a national

         23        emergency and the nation perceived that it needed any

         24        resource that an Indian had, it was soon legal to take

         25        that resource from the Indian.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 I came here to support the Zia Pueblo who is a

          2        founding tribe of the Council of Energy Resource Tribes

          3        and to put more behind the effort than just asking for

          4        their permission to use a stylized version of their sun

          5        symbol as ours, because we use it because all energy on

          6        earth is derived from the sun - wind energy as the

          7        solar energy, and the fossil fuels obviously come from,

          8        would not exist unless the sun gives its energy to

          9        earth.

         10                 And but it's been very interesting to listen

         11        to everyone before me and I don't disagree with

         12        anything - on just about everything that's been said,

         13        but I want to make sure that we understand that we're

         14        approaching this from two different world views and

         15        this cultural divide creates great misunderstanding.

         16                 Western civilization, centuries if not

         17        millennia ago, began to separate in its own way of

         18        looking at reality, spirit from matter, and it has

         19        achieved a great deal from that.  By doing that, the

         20        whole science revolution is an outgrowth of that

         21        separation.

         22                 But it came at a sacrifice of the spirit.  We,

         23        as Indian people, still come from a world in which the

         24        spirit -- There's unity between matter and spirit; and

         25        so when we speak of the pain, it's not commercial loss

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        or physical pain often that we speak of, it's a deeper

          2        pain that is very difficult to express in English

          3        because the English don't have the concept and so their

          4        words can't really portray the feeling that Indians

          5        have concerning their most sacred symbols, words,

          6        designs.

          7                 And it does come up:  Why are Indians raising

          8        a fuss about it now?  We've been around all this time.

          9                 Well, I remember as a grade school student, I

         10        guess it was a long time ago - (Laughter) - when my

         11        teachers referred to Indians as The Vanishing American.

         12        The 19th Century fully expected that Indian Tribes

         13        would have disappeared by now and that those few

         14        remaining Indians would just be relics, you know, ready

         15        to disappear.

         16                 There never was an expectation that Indian

         17        Tribes would have the resurgence that we're

         18        experiencing in the 20th Century.

         19                 And, so, we're really dealing with unfinished

         20        business, issues that where America thought it would

         21        not have to deal with in its earlier periods of

         22        development, that reality is now forcing the United

         23        States to deal with and America has changed.  It's

         24        changed enormously in terms of its values.

         25                 And we're grateful for this, you know, The

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Creator, for bringing all of the people of the United

          2        States closer together, that we can have this kind of

          3        dialogue.

          4                 I think on the one hand, I see it as a symbol

          5        of progress.  On the other, as a citizen, I'm somewhat

          6        ashamed of my country.

          7                 And as an Indian, I'm somewhat insulted that

          8        we even have to discuss:  Why should we protect Indian

          9        symbols from misappropriate use?

         10                 But that's the -- At least we've come to the

         11        point where we can discuss that and I think we should

         12        see that as progress.

         13                 But I think it also is important to understand

         14        that what we call as Indian Tribes and as we understand

         15        ourselves is not exactly the same as the Bureau of

         16        Indian Affairs considers or understands Indian Tribes.

         17                 The term itself is a legal term of art and is

         18        an intellectual construct.  And I, over the course of

         19        my career, have served in a number of different

         20        capacities, one of which was Commissioner for Native

         21        Americans in the Department of Health and Human

         22        Services where I had responsibilities for state-

         23        recognized tribes, federally-recognized tribes and

         24        other groups of Native Americans such as the American

         25        Samoans, the Native Hawaiians, the Native peoples of

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        the possessions of the United States.

          2                 And I know that we use those terms and it

          3        seems like we understand each other when we use those

          4        words, but I came to realize that we don't understand

          5        each other.

          6                 And so I'd like to add perhaps or suggest some

          7        deeper clarity in terms of:  What do you mean when you

          8        say "Indian Tribe"?

          9                 You're asking us for definitions of insignia.

         10                 I think it's fair to ask that you should tell

         11        us what you mean when you say "state-recognized tribe,

         12        federally-recognized tribe" because as the lady from

         13        the Cheyenne and Arapaho Tribes of Oklahoma pointed

         14        out, their tribe was divided by the federal government.

         15                 There are two tribes living together, you

         16        know, in Oklahoma and then there's the Northern

         17        Arapahos living in Wyoming, and the Northern Cheyenne

         18        live in Montana and it's very likely that they'll have

         19        to get together and decide how they're going to share

         20        common cultural heritage.  There's two separate tribes

         21        from a federal point of view.

         22                 And, so, it's very complex, but I think you

         23        should make some effort to define what you mean.

         24                 And since states are forbidden by the

         25        Constitution to deal with Indian affairs, the only

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        state-recognized tribes you should be dealing with are

          2        those who were grandfathered in, who had political

          3        relationships with the original colonies or other lands

          4        taken in the expansion west, the tribes who had already

          5        established relationships, that it's just not possible

          6        for groups to petition the state to be recognized as an

          7        Indian tribe.  The states no longer have that

          8        authority.  The Constitution forbids it.

          9                 And as far as the cultural diversity in New

         10        Mexico, there's far greater cultural diversity among

         11        the Indians than there is among the rest of the state.

         12                 We may only represent the Indian people of

         13        this country less than, you know, one percent of the

         14        population but we actually are, about 90 percent, of

         15        the cultural diversity.

         16                 One tribe is as different from each other as

         17        is Germany from Greece.

         18                 And, so, this great diversity is a blessing,

         19        not an administrative inconvenience.

         20                 And I'd like to address that because, often,

         21        the federal government stumbles when somebody says,

         22        "Well, how are we gonna do?  How can we understand the

         23        Indian people?"

         24                 And I think the thing that strikes me is that

         25        when the arguments were being made in the Lincoln

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        Cabinet about the Emancipation Proclamation, some were

          2        raising the question of feasibility and how do we

          3        protect the property rights of the slaveholders?

          4                 And America is still asking those same kinds

          5        of questions.  How do we balance monetary value against

          6        those values of humanity that you can't assign a

          7        monetary value to?

          8                 And while it's pretty neat and exciting to

          9        live in a market-driven society, it has some very

         10        serious deficiencies, one of which, a glaring

         11        deficiency I think, that the Pueblo representatives

         12        referred to as an imbalance is the fact that when you

         13        get to the deeper values, that which is worthless and

         14        that which is priceless in a monetary system, gets

         15        assigned the same monetary value:  Zero.

         16                 And it's going to be a challenge I think for

         17        PTO to balance that.  The priceless value that Indians

         18        put on certain symbols, words and design, versus the

         19        commercial interests that a company or a person may

         20        have.

         21                 But in the longer run, human progress is

         22        measured by deepening society's attachment to human

         23        values rather than deepening our attachment to monetary

         24        value.

         25                 And we've made the greatest progress in

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        America when we've been able to overcome the argument

          2        that "it costs too much to do the right thing" and to

          3        go ahead and -- Because those who are paying for the

          4        cost of the wrong thing are the Indian people, the

          5        Indian Nations and they're paying for it in spiritual

          6        and cultural and social costs that are difficult to

          7        monetize.

          8                 And I would strongly recommend that the burden

          9        of enforcement, the burden of administration could be

         10        fairly borne, as has been suggested by a number of

         11        speakers before you, that because Indian Tribes are

         12        sovereign entities, separate and -- And let me speak to

         13        that, too, because we're sovereign in a way that the

         14        State of New Mexico is not sovereign, and that the

         15        State of New Mexico is a political and intellectual

         16        construct, a political construct, an Indian tribe was

         17        created, in our view, by The Diety, and we were given a

         18        way of life to follow, a path in life to follow.

         19                 A member of an Indian Tribe is not -- That

         20        membership is different than citizenship.  It's a --

         21        And, so, I guess what I'm referring to is the fact that

         22        Indian Tribes, as separate political, cultural, even

         23        spiritual communities, should be partners with PTO in

         24        developing the procedures and in resolving the

         25        conflicts.

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                 We prefer systems that allow a conflict to be

          2        resolved and balance to be restored rather than to have

          3        a winner-take-all kind of adversarial relationships

          4        that is prominent in our system of government in the

          5        United States.

          6                 And I think many of the tribal spokesmen spoke

          7        to "Let's sit down and see if we can work it out

          8        first".

          9                 And I think also in terms of the question of

         10        definition, the tribes will present, if requested,

         11        those words, symbols, designs that are, from their

         12        point of view, desires of being protected.

         13                 And you've heard the tribes say that all they

         14        want is the same protection that is afforded other

         15        units of government.

         16                 I will step one further, you know, and I'm not

         17        expanding on that, but I am saying that that's deeply

         18        rooted in the desire to -- And I'll end with this,

         19        because of all the diversity in Indian Country from one

         20        tribe to another and their political, cultural, their

         21        spiritual, and language, there are things that I found

         22        that they all hold in common, and that is:  They're

         23        based on honor and respect, the reciprocal

         24        responsibility of all the parties involved to honor and

         25        respect one another in the process of working out

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        problems, and that it makes it very hard for us to deal

          2        with in a system in which the victory is everything and

          3        honor and respect for your opponent is nothing.

          4                 And so we're asking that we introduce or you

          5        introduce and help us build on that tradition of honor

          6        and respect.

          7                 Thank you.

          8                      MS. MELTZER:  Mr. Lester, we don't have

          9        any questions but we would like to thank you for your

         10        call for clarification of the definition of Indian

         11        Tribes and I think that's quite an insightful remark

         12        and we would actually be grateful to both you and to

         13        anybody in this room or to other members who would like

         14        to provide some guidance for us on that particular

         15        point.

         16                 And, so, as we are searching for definition of

         17        official insignia, we're also searching for a

         18        definition of whose official insignia should be

         19        protected?

         20                 Thank you.

         21                 We're at the end of those who were scheduled

         22        to testify.  I'd like to invite, at this point, anybody

         23        who is in the audience who would like to make comments.

         24        Is there anybody who would like to testify?

         25                              (Applause)

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                      AUDIENCE:  (Commentary in native tongue)

          2                              (Laughter)

          3                      MS. MELTZER:  So I'd like to make a few

          4        remarks that Commissioner Dickinson wanted to make this

          5        morning, but wasn't able to, and it's just in the

          6        nature of letting you know - although I realize, of

          7        course now realize that we need to do more - what we

          8        currently do at the Patent and Trademark Office to

          9        attempt to honor and protect the official -- what we

         10        think are the official insignia of Native American

         11        tribes.

         12                 Currently, the Trademark Act has a statutory,

         13        a legal prohibition against the registration of any

         14        mark that might give a false association as to the

         15        origin of the goods or services.

         16                 And as Commissioner Dickinson pointed out this

         17        morning, of course we extend that to words such as

         18        "Zia," the Zia sun symbol.

         19                 So we have one attorney in our office, and

         20        since 1994 when this issue was really brought to our

         21        attention, we have continuously had one specialist in

         22        the office to whom all of our applications that

         23        contained words that we think refer to Native

         24        Americans, that we believe have symbols or designs that

         25        are those of Native Americans, or which have likenesses

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        of Native Americans, they're all sent to one attorney

          2        and she is responsible for doing the research and

          3        making the appropriate refusal.

          4                 Since she has, well, since -- There have been

          5        two people now.  Kathy De Jong was the attorney that

          6        was primarily responsible for those cases.

          7                 Since that time, we believe we've done a much

          8        better job, not a perfect job of course, but a much

          9        better job of ensuring, from a defensive point of view,

         10        that those who are not entitled to use these marks or

         11        who are trying to exploit them or falsely suggest that

         12        their goods or services come from Native American

         13        sources, we're successfully issuing our refusal.

         14                 And typically what happens is, people realize

         15        that of course the refusal is well-based and they

         16        abandon the application.

         17                 As far as the cost of opposing or canceling

         18        marks is concerned, we realize that there is a cost

         19        involved.  However, there is another process in our

         20        office which is free.

         21                 It's called the Letter of Protest and although

         22        it requires some careful monitoring of our trademark

         23        applications, if a Letter of Protest provides

         24        sufficient evidence that we must refuse registration of

         25        a mark, then we will provide that evidence to the

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        examining attorney and that examining attorney will

          2        issue a refusal.

          3                 The timing is important because we must

          4        receive the evidence prior to the time that the

          5        application is published for opposition.

          6                 The monitoring of our cases is made a little

          7        bit easier because, now, on our website, we do have all

          8        of our trademark application and registration status

          9        information available.

         10                 So if you happen to know that there's an

         11        application pending, you can certainly find out what

         12        its status is.

         13                 And if it's appropriate, you can send in a

         14        Letter of Protest and it will be addressed to a lady in

         15        our office named Jessie Marshall.

         16                 And that's J-E-S-S-I-E, the last name is

         17        Marshall, M-A-R-S-H-A-L-L.  She's with the U.S. Patent

         18        and Trademark Office.  The street address is Suite

         19        10B10, 2900 Crystal Drive, Arlington, Virginia.  The

         20        zip code is 22202.

         21                 So, to the degree that information is helpful

         22        to anybody and you wanted it, of course we've conveyed

         23        it to you.

         24                 If nobody has remarks from the floor, we want

         25        to express our gratitude to everyone in the audience

                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1        for taking the time to come here, for taking the time

          2        to inform us, to express to us the seriousness of this

          3        issue and also to educate us on the spiritual, as well

          4        as the legal aspects of tribal insignia, words and

          5        ceremonies that we might not otherwise know about

          6        except from the source - that is, you, who are

          7        representatives or members of the various Native

          8        American pueblos and tribes.

          9                 I'd also very much like to thank my

         10        colleagues, Odette Bonnet and Steve Walsh as well as

         11        our wonderful, tireless Court Reporter Charlotte Macias

         12        for their efforts today.

         13                 So thank you all very much.

         14                 We will be available, as soon as I stop

         15        talking, to answer any of your questions informally.

         16                 Thank you very much.

         17                              (Applause)

         18                       [3:00 P.M., ADJOURNMENT]

         19                                 * * *







                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719


          1                        REPORTER'S CERTIFICATE

          2                 I, CHARLOTTE MACIAS, a Certified Court

          3        Reporter in the State of New Mexico, DO HEREBY CERTIFY

          4        that the foregoing Transcript of Proceedings, Public

          5        Hearing, before the U.S. Patent and Trademark Office of

          6        the Department of Commerce, taken on July 8, 1999, is a

          7        complete and accurate verbatim record of the

          8        proceedings taken by me in stenographic shorthand.

          9                 I FURTHER CERTIFY that I am neither employed

         10        by nor related to any of the parties in this proceeding

         11        and that I have no interest whatsoever in the outcome

         12        of the proceedings.

         13                 WITNESS MY HAND this 13th day of July, 1999,

         14        at Albuquerque, New Mexico  87112.


         16                                   ____________________________

                                              CHARLOTTE MACIAS, NMCCR#161

         17                                   License Expires: 12-31-99









                     CHARLOTTE MACIAS, NM CCR#161          (505) 296-0719

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