This Agreement is made and entered into this 2nd day of September, 2002 by and between the Confederated Tribes of the Warm Springs Reservation of Oregon, a federally recognized Indian tribe (the “Confederated Tribes”) and the University of Idaho (the “University”).

WHEREAS, the cultural and intellectual property of the Confederated Tribes includes the traditional practices, knowledge and ways of life unique to the people of the Confederated Tribes and includes, but is not limited to:

• Language, art, music, dance, song, oral tradition and ceremony;
• Agricultural, technical and ecological knowledge and practices;
• Spirituality, sacred sites, sacred objects, sacred knowledge and ancestral human remains; and
• Documentation and recordings relating to the above (collectively the “Cultural and Intellectual Property”); and

WHEREAS, the Confederated Tribes is a sovereign Indian nation and the ultimate sovereignty of the Confederated Tribes is vested in its people; and

WHEREAS, the people of the Confederated Tribes have declared that the preservation of their traditional cultural ways is a principal goal of the Confederated Tribes, and to that end the people have delegated the authority to protect and preserve tribal property, including Cultural and Intellectual Property, to the Tribal Council of the Confederated Tribes; and

WHEREAS, the legal regime in the United States surrounding the protection of intellectual property, including the law of patent, copyright and trademark, is ineffective to fully protect the rights and interests of the Confederated Tribes with regard to the Cultural and Intellectual Property because this system of law protects individual property as defined in terms of a commodity, and is not fundamentally designed to protect the collective cultural and intellectual property rights of indigenous peoples; and

WHEREAS, the University desires to develop, in collaboration with the Confederated Tribes, an educational and cultural resource module entitled the Confederated Tribes of the Warm Springs Reservation-Lewis and Clark Rediscovery Life-Long Learning Online Project (the “Project”), to be conveyed over the Internet, which will present the unique story of the Confederated Tribes from a tribal perspective, and to that end the University will obtain and utilize the Cultural and Intellectual Property of the Confederated Tribes for use in the Project; and

WHEREAS, the parties desire to contractually protect the Cultural and Intellectual Property of the Confederated Tribes used in the Project more fully than afforded by copyright protection alone

Therefore, the parties agree as follows:

1. The Tribal Council of the Confederated Tribes will appoint a Project Coordinator for the Project and may replace the Project Coordinator by notice in writing to the University. The initial Project Coordinator is Evalene Patt.
2. The University has designated a Project Co-Facilitator for the Project and may replace the Project Co-Facilitator by written notice to the Confederated Tribes. The initial Project Co-Facilitator is Rodney Frey.
3. The University will not utilize any Cultural and Intellectual Property of the Confederated Tribes for the Project or any other purpose, without regard to the medium in which the property or information is presented or the source from which the property or information was obtained, unless and until it has been reviewed and approved by the Project Coordinator in the Project Coordinator’s sole discretion for accuracy, authenticity and appropriateness for public sharing and dissemination.
4. The Confederated Tribes shall have the continued right to monitor and adjust the content of the Project in the Project Coordinator’s sole discretion for accuracy, authenticity and appropriateness for public sharing and dissemination so long as the Warm Springs Internet module is housed on the University’s sponsored server as an integrated part of the Project. If the Confederated Tribes require an adjustment to the Project, the Project Coordinator will inform the Project Co-Facilitator or his designee. The Project Co-Facilitator or his designee will make the required adjustment within a reasonable time, except that if the required adjustment is to correct or remove culturally sensitive information (as determined in the Project Coordinator’s sole discretion) from the Project web-site and the Project Coordinator informs the Project Co-Facilitator or his designee of the culturally sensitive nature of the adjustment, the adjustment will be made within three (3) working days of that request.
5. All Cultural and Intellectual Property of the Confederated Tribes and other informational materials obtained for the Project (including without limitation, still photos, video and audio tapes, and print materials of interviews and imaging) from any source, and any copies of such materials, whether used in the final Internet modules or as supplemental, non-used research materials to the modules, will be housed in the Cultural and Heritage Department of the Confederated Tribes.
6. The University acknowledges that the materials referred to in Section 5 of this Agreement are and shall be the Cultural and Intellectual Property of the Confederated Tribes, even if such materials are compiled, written or otherwise prepared for the Project by the University or its agents and shall be used only as deemed appropriate by the Confederated Tribes and its agencies as determined by their sole discretion.
7. Other than for the Project as set forth herein, no additional or future uses (including without limitation, print or web publication), including commercial uses, of the Cultural and Intellectual Property of the Confederated Tribes and/or other informational materials obtained and utilized for the Project are permitted without the prior written consent of the Confederated Tribes.
8. All materials prepared for the Project by the University and other materials for the Project which are available on the University’s web-based page, or otherwise disseminated to the public, shall carry the appropriate copyright insignia, identifying the material as copyrighted to the Confederated Tribes. The Confederated Tribes retain all intellectual property rights which may exist with regard to the Cultural and Intellectual Property and the Confederated Tribes also retain all copyright and other intellectual property rights which may pertain to any work product produced by the University for the Project even if complied, written or otherwise produced for the Project by the University or its agents, all of which shall be considered “work for hire” with respect to copyright and other intellectual property laws. The Confederated Tribes hereby grant the University a non-exclusive revocable license to use the Cultural and Intellectual Property for the Project during the term of this Agreement.
9. The parties acknowledge that in the event of a breach of this Agreement by the University that the Confederated Tribes would suffer irreparable harm and remedies at law would be inadequate. Therefore, in the event of such a breach, the Confederated Tribes shall be entitled, in addition to all other remedies, to an immediate injunction and/ore restraining order to prevent further violation of this Agreement (including but not limited to, the removal of any Cultural and Intellectual Property of the Confederated Tribes from print or web publication) and to repossess from the University all forms of Cultural and Intellectual Property in the University’s possession.
10. All Cultural and Intellectual Property of the Confederated Tribes, in whatever form, shall be returned to the Confederated Tribes at such time as the Warm Springs Internet module is no longer housed on the University’s sponsored server as an integrated part of the Project.
11. The University shall include a “terms-of-use” provision on its website for the Project, or with any other format in which Project materials may be produced, which grants any user of the Cultural and Intellectual Property a limited license for use which is subject to the same terms and conditions described in this Agreement. Such terms of use shall be subject to the Confederated Tribes’ reasonable approval prior to any public sharing or other dissemination of the Cultural and Intellectual Property.
12. The University will take reasonable steps to insure that its employees or agents are bound by the terms of this Agreement.
13. This Agreement may be amended only by an instrument in writing executed by all the parties, which writing must refer to this Agreement.
14. Any provision or condition of this Agreement may be waived at any time, in writing, by the party entitled to the benefit of such provision or condition. Waiver of any breach of any provision shall not be a waiver of any succeeding breach of the provision or a waiver of the provision itself or any other provision.
15. This Agreement shall be governed by and construed in accordance with the laws of the Confederated Tribes of the Warm Springs Reservation of Oregon, without regard to conflict-of-laws principles.
16. If any arbitration, suit, or action is instituted to interpret or enforce the provisions of this Agreement, to rescind this Agreement, or otherwise with respect to the subject matter of this Agreement, the party prevailing on an issue shall be entitled to recover with respect to such issue, in addition to costs, reasonable attorney fees incurred in preparation or in prosecution or defense of such arbitration, suit, or action as determined by the arbitrator or trail court, and if any appeal is taken from such decision, reasonable attorney fees as determined on appeal.
17. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired.
18. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be brought against any of the parties in the trail court of the Confederated Tribes of the Warm Springs Reservation of Oregon and each of the parties consents to the jurisdiction of that court (and of the appropriate appellate courts) in any such action.

Confederated Tribes of the Warm Springs Reservation of Oregon

By: Charles V. Jackson
Title: CTWSRO Secretary/Treasurer
Date: September 30, 2002

University of Idaho

By: Rodney Frey
Title: Professor American Indian Studies, University of Idaho
Date: September 30, 2002

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