With respect to the evolution of published, written documentation of the ancestral Umoⁿhoⁿ iye [Omaha Language] . . . a continuum of knowledge and understanding has occurred from the winter 1884 through 2000, and beyond. Each endeavor has been built, one upon the other, involving hundreds of individuals, although only a small handful have actually been identified as informants, facilitators, instructors or translators. Ultimately the language belongs to the Umoⁿhoⁿ Ni'kashiⁿga [Omaha People]; no one person or entity can claim "ownership.” This makes the issue of "copyright" -- a wa'xe [non-Indigenous] concept alien to both Aboriginal ni'kashinga in general, and the Umoⁿhoⁿ in particular -- ludicrous on its face, since the Umoⁿhoⁿ themselves are the final arbitrators of their iye.

One can argue for example, as professed in the various Treaties between the Government of the United States and the sovereign Umoⁿhoⁿ beginning from 1815 through 1865, and thereafter through legal precedent established by legislation, case law, executive order, administrative ruling, numerous agency documents. academic literatures, commercially-published articles and private papers, artifacts, inventions and creations, that "ownership" of the intellectual property rights of Umoⁿhoⁿ culture are still held in exclusivity by the Umoⁿhoⁿ. Such rights are exercised in sovereignty, appropriated by them to the exclusion of all other parties. This is invoked through the 1934 Indian Reorganization Act (IRA) by its governing entity, in this instance, the Board of Directors of the Corporation of the Omaha Tribe of Nebraska and Iowa, Inc., (i.e. the "Omaha Tribal Council"), or its agent(s), e.g., representatives appointed to the Board of Trustees of Nebraska Indian Community College, NICC, under the "authority" of Article IV, Section(s) 2 and 3, inclusive, of the present (IRA-imposed) "Tribal" Constitution -- itself adopted from a draft authored by a "legislation committee" of IRA proponents then existent among the U.S. Congress, offered at the time as a "compromise" to the political resistance of the Republicans and Southern Democrats in ratifying this Act in the first place.

Indeed, as defined under both the 1990 Native Americans Graves Protection and Repatriation Act (NAGPRA) and the 1994 Religious Freedom Restorations Act (NFRA) passed by the Congress, these rights are assumed to be extended to a spoken language of a culture, and expressly, to an ancestral language used even in contemporary  times as an embodiment of religious practice.

Thus, it could be held under provisions of both the NAGPRA and RFRA that the moneys presently garnished by the University of Nebraska (UN) with respect to republication of the text of the 27th Annual Report to the Bureau of American Ethnology of the Smithsonian Institution, by Alice C. Fletcher (Indo-European/ American) and Frances LaFlesche (Umoⁿhoⁿ), commonly known as The Omaha Tribe, Volume I and II, and in the public domain, are now to be "renegotiated" with the Umoⁿhoⁿ, since it cannot be determined from the historic record whether recompense, even if offered, either by the Bureau of American Ethnology, the Smithsonian Institution, and later the UN itself, were it to have been accepted by the Umoⁿhoⁿ, was worth a "fair and equitable" value for “just compensation," even in its own time. 

Imposition in Law

By invoking both Treaty and later legal precedent, the key question would be whether the ultimate cession of lands reached through the later Treaties also infers a cession of intellectual property rights of Umoⁿhoⁿ culture; the chroniclers of the time (Fletcher and Reverend James Owen Dorsey) were technically employees of the U.S. Government, which had a "right" under the various treaties and later legal precedent, to employ "agents" representing the "interests" of that particular government, the United States, even if recompense were offered, accepted or not.

Presumably, it could be claimed under the "domestic dependent nations" clause of Worcester vs. Georgia (1831) that the U.S. Government had an "interest" in documenting these varying cultures through an a priori "acceptance" by the Umoⁿhoⁿ of such recompense, even if refused.  In meeting its Treaty “obligations," which were imposed upon the Umoⁿhoⁿ through "Art. 3." of the "Portage Des Sioux Treaty" (1815):

the United States would, by virtue of its "protection" be granting a 'just" compensation or recompense, regardless of "fair and equitable" value, either actual or potential, for the mere exercise of individual tribal members, who, " . . . (i)n witness whereof . . . the chiefs and warriors of the aforesaid tribe or nation, have hereunto subscribed their names and affixed their seals . . . " to the various Treaties imposed upon them, including (in this instance), Oⁿpatoⁿga [Big Elk], and others so assembled.  Under the tradition of wa'xe law, recompense or compensation is considered "just" if it meets the standards of being "fair and equitable."  Since a calibration of whatever value would be either "fair and equitable" or “just" remains a wa'xe, and not Umoⁿhoⁿ invention, it did not matter what the recompense was, or even if the offer was actually made. What mattered was that the United States made the offer by virtue of the imposition of its terms, and its terms alone, upon the Umoⁿhoⁿ, in the course of its "relations" with them.

Thus, it could be argued that because Oⁿpatoⁿga and others in later years simply gave their consent, the U.S. Government had granted an a priori recompense by virtue of both parties signing such Treaties, whatever the terms. In such an instance then, one could say that Dorsey, in writing the Third Annual Report to the Bureau of American Ethnology of the Smithsonian Institution, entitled Omaha Sociology (1884), and later Fletcher through The Omaha Tribe -- as employed agents of the government with which the Umoⁿhoⁿ had such relations -- did indeed have claim to rights of intellectual property with respect to Umoⁿhoⁿ culture, insofar as the informants, identified or not, were provided the offer of recompense implied under the "protectorate" clause of Article 3 of the 1815, and subsequent Treaties, seventy winters before.

However, since it can be shown through the earlier cited documentation as legal precedent that the U.S. Government, in the later exercise of its continuing "obligations" under the "protectorate" clause of the various Treaties -- as with the Umoⁿhoⁿ in the wake of the 1865 Treaty certainly, a continuing cession of land within the borders of its own Federally-designated Reservation, especially after the Severalty Act of 1882 -- actively encouraged, if not outlawed in many instances the actuality of Aboriginal culture (including use of "ancestral language as an embodiment of religious practice") the creditability of the U.S. claim of “just compensation" regarding its own earlier recording of Aboriginal culture (for the Umoⁿhoⁿ through the work of Dorsey and Fletcher), now under the color of authority of the NAGPRA/RFAA as is the current standard, is brought into question.

Thus, such imposition of (an implied) recompense through the cession of land (beginning in 1828) as an extension of the cession of intellectual property rights as well, through the act of compiling documentation of Umoⁿhoⁿ culture on the part of the U.S. Government in the 1880's and beyond, is a violation of the "protectorate" clause of Treaty law, beginning in 1815, and thereafter, primae facie, by virtue of its imposition, since the 'value(s)" being imposed by the United States could not be held (under wa'xe law) to be "fair and equitable" in the eyes of Umoⁿhoⁿ culture, as defined in our present time by the NAGPRA/RFRA.

Pursuing this argument further, the same could be said of the Nebraska State Historical Society, the Smithsonian, the Peabody Museum at Harvard University -- indeed, all like-minded institutions (including UN), both public and private, asto either "ownership" or "copyright" over even "fair use" of the intellectual property rights as it reflects upon Umoⁿhoⁿ culture, with respect to tangible artifacts and photographs currently held in possession by these academies; what recompense has been offered to the Umoⁿhoⁿ for use of these graphic images, even now?

Contemporary Applications

Does this apply as well under both provisions of copyright and Treaty law incorporating the NAGPRA/ RFRA statutes, to new research completed in our present time, based upon original investigation(s) conducted among the Umoⁿhoⁿ a century ago?  In Two Crows Denies This (1984) for example, R.H. Barnes (English) argues a convincing case for the more accurate assessment of Dorsey over the more famous Fletcher/LaFlesche work.  Indeed, because the form of the Fletcher/La Flesche material appeared at a time in the literature when the science of anthropology was still in its infancy, the profession seized upon its composition as "the" model for the discipline's later development, even through independent scholarship -- as well as the collective response of the Umoⁿhoⁿ themselves documented through the oral tradition -- recognized early on many faults, inaccuracies and omissions, if not major misinterpretations within these texts.

A documentary record of both Dorsey and Fletcher/LaFlesche (upon which all future research and study of Umoⁿhoⁿ culture, including the iye, has been based) shows that, from the Umoⁿhoⁿ perspective, the opportunity to correct these faults. inaccuracies, omissions and misinterpretations has never been offered, without charge, to the Umoⁿhoⁿ themselves. To do so, from the wa'xe perspective, would bring up the question of recompense for the cost of providing either the original(s), duplicates or reproductions of whatever tangible artifacts, field notes, unpublished papers, or draft manuscripts of published works were initially derived from the ethnographic field work, as well as later reworking of intensive studies such as Two Crows Denies This.

In this context then, with respect to exercising the ownership of these original intellectual property rights of Umoⁿhoⁿ culture, the question has not been one of restriction, but of cost.  Thus, it could be argued that the University of Nebraska Press (UN Press), as holder of the copyright of Two Crows Denies This (representing the original research of R.H. Barnes), owns recompense to the Umoⁿhoⁿ in some form for accepting the manuscript of Mr. Barnes for publication, insofar as it can be determined that the Umoⁿhoⁿ have yet to be compensated in a fair and equitable (or 'just") manner for providing use of their intellectual property rights as derived from the original material summarily gathered a century ago by agents of the U.S. Government (Dorsey and Fletcher), now in the public domain, but referred to by Mr. Barnes in his manuscript, published in 1984.  By acknowledging through the act of publication a "copyright" on the submitted manuscript of Mr. Barnes, the UN Press is admitting the actual, and added, potential value of the original material, which has yet to be given a value approximate of Umoⁿhoⁿ culture, who have never been offered the opportunity to so place a value on the exercise of their intellectual property rights in such a fashion, through a systematic correction (as best as can be determined) of the entire weight of Umoⁿhoⁿ culture as has been documented by the wa’xe, and by their own, collective tribal history as so determined by them.

The fact that the Umoⁿhoⁿ, through their agents (i.e., the Tribal Council or NICC, etc.) have heretofore not aspired in making a request themselves is irrelevant here, because to do so is asking them to evoke the request in context of the imposed wa'xe values, and not Umoⁿhoⁿ culture, a key component of the NAGPRA/RFRA.  Since the essential legal question - even under a tightened interpretation of the RFRA wrought by the U.S. Supreme Court earlier in 1997 -- continues to revolve around cost, and not restriction, the burden of invoking the act remains with those institutions (and/or) private parties who have appropriated, in some tangible fashion (either through actual or representational means, such as monetary payment) some portion of the intellectual property either proven to be, or attributed to Umoⁿhoⁿ culture.  It remains to these institutions and parties, under the RFRA, to ascertain a value (however determined in wa’xe terms) to be ascribed to such intellectual property, and then so inform the Umoⁿhoⁿ of their possession and initially-ascribed value, for the Umoⁿhoⁿ to then decide how best to address the matter.  In practical terms of course, just the opposite is true:  only in rare instances would this initiative stem from the party originally responsible for the disruption of Umoⁿhoⁿ culture in the first place.

In the absence of such initiatives, it is up to the Umoⁿhoⁿ ni' kashiⁿ ga, perhaps through their agents and the foresight of individual tribal members, to invoke the premise of NAGPRA/RFRA asto the reappropriation of Umoⁿhoⁿ culture as it would be defined (in wa’xe terms) as intellectual property.  However, this is not as easy as it sounds. As reported in Ridington and Hastings (1997), the idea for a return of Uthu'shinoⁿzhiⁿ (Sacred Pole) was first broached in the 1970's by a few individual tribal members, and entered serious discussions in the 1980's under sponsorship of a hebe [portion] of elected members of the Tribal Council.  At no time however, during this entire process, were the elders of the Umoⁿhoⁿ formally approached in a traditional manner, and consulted asto what should be done with Uthu'shinoⁿzhiⁿ.  By the end of the decade negotiations were essentially complete, and Uthu'shinoⁿzhiⁿ was returned in a public ceremony, which included both a videotaping of the event, and actual handling by a number of tribal members.  As a result, those who felt the elders had been slighted, and Uthu'shinoⁿzhiⁿ disrespected, believed its "return" was pursued for political rather than spiritual reasons, causing a deep rift among the ni'kashinga, while a number of those who had actually handled Uthu'shinoⁿzhiⁿ died shortly thereafter.

Who Speaks for the Umoⁿhoⁿ?

This experience displays the potency of tension between contemporary expressions of both the wa’xe and Umoⁿhoⁿ culture. Who is to say that there is any relationship at all to the fact that the manner in which return of Uthu'shinoⁿzhiⁿ was brought about, affecting through this act an overwhelming sense of emotion upon a number of tribal members who felt so taken at its return and public display that they moved to touch it, soon found themselves beyond the Fourth Hill of Life, again in the Spirit World?  It could be argued, for example, that the disruption to Umoⁿhoⁿ culture wrought by the wa'xe is now so complete that it is fruitless to continue to "live in the past" by studying its ancestral iye.  What relevance could possibly be found in the 21st Century and beyond, for an iye that presently is only spoken by a few dozen tribal members at best, with any sense of fluency or understanding and is heard most often in public only at ceremonial occasions?

While only the Umoⁿhoⁿ can ultimately answer these questions of course, its answer is not entirely exclusive to Umoⁿhoⁿ culture; to the extent that all human culture is a continuum of the expression of the human species, the loss of Umoⁿhoⁿ culture through the loss of its iye is a loss for Humanity.  Fletcher/LaFlesche documented this in their short remarks on the nature of Umoⁿhoⁿ language (pg. 605-7):

In light of 100 years later this is an extraordinary statement.  To whom is Omaha grammar "complex," and by what purpose are particles used as prefixes and suffixes (through) "the incorporation of pronouns?"  If through "these means" the forms of words are modified so that their meanings are "enhanced," become "more definite, more circumstantial," and declared (after a fashion) to be "impossible in any European language," by which standard is the "Omaha" iye being measured?  If Fletcher/ LaFlesche themselves answer this question, in part:

How much more, in full circle, from the perspective of a century later:

Careful reading of the above texts, comparing one to another and contrasting their views, shows a perception of the inherent nature of relationship that is the key to understanding the Umoⁿhoⁿ iye, but (on the part of Fletcher) no comprehension; the problem remains (according to Fletcher) that such nuances (of relationship?) are "impossible (to replicate in translatable form) in any European language."  Since Frances LaFlesche's first iye was Umoⁿhoⁿ  and Alice Fletcher's was "European," this statement can only be attributed to Fletcher, who had the better knowledge and experience with such languages.

  Thus, in these two passages of Fletcher/LaFlesche, we uncover a fundamental basis for ascribing the flaws, inaccuracies, omissions and misinterpretations so prevalent in the 1911 work, even from the perspective of a century later, when so much of what was being chronicled then, is "now lost."  At the same time, there is equally, a basis for discerning how the reality of relationship in ancestral Umoⁿhoⁿ culture, as it has been documented by Dorsey and Fletcher/LaFlesche, and more importantly by the Umoⁿhoⁿ themselves through continuation of the oral tradition as is yet occurring today, can be reinterpreted for use in the 21st Century, and beyond.

By approaching the Umoⁿhoⁿ iye through relationship, the essence of what is experienced to be Umoⁿhoⁿ by the Umoⁿhoⁿ for the Umoⁿhoⁿ, will remain Umoⁿhoⁿ.