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Hawaii Bioprospecting Bill -- The Good, The Bad, and The Ugly (a bill to regulate biological research on public lands is a trojan horse for racial supremacy in land use policy)


(c) Copyright 2004, Kenneth R. Conklin, Ph.D. All rights reserved


SUMMARY: Hawai'i has the greatest biodiversity and climate diversity of any civilized portion of the world. There are more different plant and animal species per acre than anywhere else that has good transportation and infrastructure. That makes it easy for individual scientists and corporations to collect unusual plants and animals, and do research and development of medicines, chemicals, genetic hybrids, etc. Entirely new species can be created in the laboratory to be field-tested in the fertile environments of Hawai'i's lands, streams, reefs, and oceans. Many bioprospecting projects are already known to be underway by individuals and corporations, and there are probably many more projects being kept secret to avoid scrutiny by environmental regulators and to protect future profits that could result from patents arising from successful discoveries and research. The State of Hawai'i has a right to regulate the use of our public lands in the interest of protecting all Hawai'i's people. The State of Hawai'i also has the right to share in the profits resulting from the harvesting of materials or the leasing of public lands for research or production. Legislation on bioprospecting could have great benefits for the protection and enrichment of Hawai'i's people. It could also have great detriments caused by over-regulation, corruption, and deliberate stifling of investment or creativity by groups hostile to genetic research or to land development. A bioprospecting bill actually moving toward passage includes a racial set-aside of substantial decision-making power in the hands of a single ethnic group, thereby setting the stage for constant racial strife and for possible allocation of resources to a racial separatist government actively being pushed forward by Hawai'i's political power structure. Indeed, it is unclear whether the bill's primary purpose is to regulate bioprospecting, or whether the bill's real primary purpose is to empower racial supremacy under the guise of environmental regulation.

LETTER TO EDITOR [Ken Conklin's quickie summary of the issue]
(same as e-mail sent to Hawai'i Legislature a weekpreviously)
The Honolulu Advertiser, Sunday April 4, 2004
http://the.honoluluadvertiser.com/article/2004/Apr/04/op/op70aletters.html

Remove racism from bioprospecting bill

Regarding SB 643 and HB 2034: Is this a bill to regulate bioprospecting on public lands, or is this a Hawaiian sovereignty bill?

Please remove from the bill all racial language, including the racial set-aside of seats on the advisory commission, the characterization that benefits from the public lands should be shared equitably between Native Hawaiians and the general public (aren't Native Hawaiians also members of the general public?), and the concept that Native Hawaiians somehow care more about the land or have a closer connection with the land than other ethnic groups.

Please do not place the advisory commission under the administrative supervision of the Office of Hawaiian Affairs — the same agency that files lawsuits against the state of Hawai'i over ceded land revenues and the use of Mauna Kea for astronomy. What a conflict of interest!

Hawai'i's public lands belong to all of Hawai'i's people. We all care about the land. We all are equally entitled to benefit from the public lands and to participate in protecting them. It is at least immoral, and probably illegal, to give racial supremacy to one ethnic group on matters of land-use policy.

For a careful analysis of the bioprospecting bill, see: http://www.angelfire.com/hi2/hawaiiansovereignty/bioprospecting.html.

Please either kill this bill or remove the racism from it.

Ken Conklin
Kane'ohe

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TO FIND OUT WHAT HAPPENED TO THE BIOPROSPECTING BILL IN THE HAWAI'I LEGISLATURE OF 2004, AND A NEWSPAPER ARTICLE FROM OCTOBER 2006 DESCRIBING HOW THE TULALIPS TRIBE, OF WASHINGTON STATE, DEMANDS RIGHTS TO ALL PLANT AND ANIMAL DNA OF SPECIES FOUND IN ITS TRIBAL AREAS, BASED ON TREATY FROM 150 YEARS AGO -- SCROLL DOWN TO THE BOTTOM OF THIS WEBPAGE

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SOME GENERAL CONCEPTS RELATED TO GOVERNMENT REGULATION OF NATURAL RESOURCES

Government regulation of the use of public lands is good when it protects us against pollution, permanent environmental damage, or other bad consequences. Government regulation is good when it provides an orderly and reliable process for adjudicating disputes between competing interests or mutually incompatible operations, and when it facilitates profit-making operations by providing long-term leases guaranteeing protection against changing political winds or encroaching competitors. Government regulation is good when it ensures that some of the profits earned by private corporations from using our public lands are paid into the public treasury, to cover the costs of regulation and to provide infrastructure, baseline data, or historical knowledge that will encourage and facilitate further productivity or guard against bad impacts on the environment or population. Government regulation is good when the regulations are created and enforced by a commission whose members include a broad cross-section of the population, dominated by the general public or their democratically elected representatives, but also including representatives of the major interest groups to be affected by the regulations.

Government regulation of the uses of public lands is bad when it imposes so many bureaucratic hurdles that reasonable development is smothered. Government regulation is bad when it is used as a way to extort bribes, campaign contributions, or political favors from permit-seekers or regulated industries. Regulation is also bad when it is used as a ploy to actually prohibit development under the appearance of merely regulating it, or when exorbitant fees or high royalty percentages are imposed as a way of making it uneconomical for developers to proceed. Some court decisions have held that downzoning or excessive government regulation is actually a partial condemnation or "taking" of land by the government requiring compensation to the owner for the reduced value of his land. Such “taking” seems irrelevant when we are considering public lands; however, the economic and social value to the public of the public lands will be diminished to the extent that they are over-reguated or forced to remain unproductive. It is quite possible that wilderness could remain wild for the enjoyment of hikers or the preservation of endangered species, even while a few researches making virtually no impact make enormously valuable discoveries. Government regulation is bad when the regulations are created and enforced by a commission whose membership criteria are heavily weighted to guarantee undemocratic and disproportionate representation by special interest groups or by one ethnic group.

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THE BIOPROSPECTING BILL IN THE HAWAI'I LEGISLATURE IN 2004 -- HOW TO READ THE BILL AND THE COMMITTEE REPORTS, AND FIND OUT THE BILL'S CURRENT STATUS

The bioprospecting bill has been under consideration since the legislative session of 2003. There have been many versions of the bill with many amendments, in both the House and the Senate. The bill has been referred to several committees in each chamber. Each committee makes changes and writes a report of what it has done. It's pointless to select a specific version of the bill and write extensively about that version, since different versions are under active consideration and changes are being made constantly. But some important themes have emerged and will be discussed below.

Anyone wishing to read the various versions of the bill, and the committee reports, and the bill's current status, can easily do so on the Legislature's webpage. Here's how it works. The Senate bill is SB643. The House bill is HB2034. The Legislature's website is
http://www.capitol.hawaii.gov/
The direct link to search for bills is
http://www.capitol.hawaii.gov/site1/docs/docs.asp?press1=docs
One way to use the Legislature's search window is to copy and paste this into it:
SB643,HB2034
and then click on all three boxes for bill contents, bill status, and committee reports. A quicker way is to use the “text search” option, and after clicking on that, type (or copy and paste) into the search window the word
bioprospecting [.]

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THE STATED PURPOSE OF THE BIOPROSPECTING BILL AND REASONS WHY IT ARISES AT THIS TIME

The purpose of the bill is to establish a commission to develop legislation and regulations governing bioprospecting. "Bioprospecting" as defined in the bill means the collection, removal, purchase, sale, or use of biological and genetic resources of any organism, mineral, or other organic substance found on public lands for scientific research or commercial development. “Public lands” includes all the lands owned by the State of Hawai'i, including the “ceded lands” which comprise about 95% of our public lands; and also the streams, reefs, and oceans within the jurisdiction of the State of Hawai'i.

Legislation to regulate bioprospecting arises at this time for many reasons. Scientists and businesses are already using our public lands to harvest samples of plants and animals for study, and to do experiments to produce hybrids or to see how well various plants and animals thrive in various climates and soil or ocean conditions. At present there is no way to know who is doing such things, what they are doing, and where they are doing it on our public lands. It is likely that there will soon be a rapid increase in such activity. Scientists and businesses need assurance that their investments of time and money will not be arbitrarily stopped or harrassed, and that they will not (perhaps unknowingly) interfere with each other. Environmentalists are concerned that certain types of gathering or experimentation might harm the environment or might release “Frankenstein” life forms. Some religious or ethnic activists may believe it is immoral to analyze or experiment on genetic codes, or to intrude into sacred places, or to damage particular species which are body-forms of certain gods (footnote on Religion). And then there are perhaps a few Luddites -- people who oppose all research and development, would like to keep pristine areas untouched, and perhaps even to reverse development that has already occurred and go back to simpler times. Finally there are ethnic Hawaiian activists who want to use concerns about bioprospecting as a vehicle to claim that they are entitled to special rights and race-based power because they are the keepers of ancient wisdom and have an “ancestral” relationship to the land and the gods (footnote on Religion).

An article in the online Hawaii Reporter newspaper of March 26, 2004, by Ronald Bailey of the Reason Foundation, cited an attitude that every step forward should be the focus of community dialog about morality before allowing it to happen. “Opponents of biotech progress are always demanding that before ‘we' deploy any new biotechnologies, ‘we' must have a ‘societal conversation' about the morality of things like cloning, pre-implantation genetic diagnosis and genetically engineering babies. Where have they been for the past 200 years? We've been having those ‘conversations' at least since Mary Shelley published Frankenstein, or the Modern Prometheus in 1818.” (see footnote “200 Year Conversation”) In Hawai'i that 200 year conversation has included a massive decline in the population of native Hawaiians due to lack of biological resistance to Western diseases, a longstanding reliance on herbal medicine accompanied by prayer, a resurgence in native Hawaiian population and longevity due to modern drugs and improved standards of living, and animist religious beliefs of some ethnic Hawaiians identifying specific plants and animals with specific gods. One aspect of the Hawaiian conversation today is a resurgence of a religious belief that ethnic Hawaiians have special rights to political power in land-use policy because of their ancestral family relationship to the gods and the land. All these special circumstances in Hawai'i increase the likelihood of heightened concern about bioprospecting and delays in decision-making. Some special interest groups will try to derail any bioprospecting, and/or to use concerns over bioprospecting as a ploy to assert demands for political power.

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THE GOOD AND THE BAD ABOUT THIS BILL (THE UGLY COMES LATER)

One immediate result of passing this bill (according to most versions of it) would be, in effect, a temporary restraining order stopping new bioprospecting for at least two years until regulations have been adopted. “[T]he conveyance of the rights, interest, and title to the biological resources and biological diversity identified upon or collected from public lands as stated in article XII of the State Constitution is prohibited, except for existing, permitted farming and research operations whose products are neither indigenous nor endemic to the State ...”

In the field of technology in general, and medicine in particular, there are such enormous costs and lengthy time periods associated with research and development that it is necessary to provide patents and licensing agreements so that new products can be developed and financed with assurance that huge startup costs will be repaid through future profits. At least one committee report indicates great concern with the moratorium on new bioprospecting, and the devastating consequences that would have on research by the University of Hawai'i and the collaboration between UH and outside researchers and businesses seeking to develop valuable medicines and other products whose patent royalties could produce substantial revenue for the public treasury. One newspaper reported that the moratorium has been removed by one of the committees considering the bill.

The commission would be required to deliver its initial recommendations to the Legislature by the end of 2004 for consideration by the Legislature during its session of 2005; the Legislature would probably give further guidance to the commission; then a proposed final set of regulations would be delivered to the Legislature by the end of 2005, for the Legislature to consider during its 2006 session. There is a sunset clause ending the commission's life a couple months after the Legislature ends its regular session of 2006.

The two-year prohibition against selling or patenting life forms or processes does seem a reasonable period of time to halt any imminent threat of destruction or knowledge transfer until regulations can be produced. It takes time to write regulations and get them approved through a truly democratic process. But it is hard to judge whether there is actually any imminent threat whose urgency would outweigh the damage done by such a moratorium. It is doubtful whether a comprehensive set of regulations can be written in time to be enacted by the 2006 Legislature without a need for extending the life of the commission (and therefore extending the length of the moratorium).

Anti-development forces, environmentalists, anti-military activists, and Hawaiian sovereignty activists can be expected to try to make the moratorium last forever by constantly raising new issues and new objections that will delay indefinitely the creation or legislative approval of a comprehensive set of regulations. Three recent examples of such delaying tactics come to mind, all of which illustrate larger political agendas being implemented through local regulatory disputes.

(1) The U.S. military has used Makua Valley for military training for many years. But in recent years environmentalists, anti-military pacifist groups, and Hawaiian sovereignty activists have used the regulatory process and lawsuits to delay and severely limit the military's ability to use Makua Valley The short-term political agenda is to protest the war in Iraq and harass the military by preventing effective training. The long-term political agenda is to force the military out of Hawai'i as a first step toward forcing the United States to abandon Hawai'i to the Hawaiian independence movement. (footnote about Makua).

(2) On Mauna Kea, environmentalists and Hawaiian sovereignty groups have used the regulatory process and lawsuits to delay and severely limit the ability of astronomers to use the mountain summit for research. The Office of Hawaiian Affairs and the UH Center for Hawaiian Studies have also demanded that millions of dollars should be paid by the astronomical observatories to OHA for “rent” for the use of the “ceded lands.” (footnote about Mauna Kea)

In both Makua and Mauna Kea, arguments have been made that little-known or recently discovered endangered species are at risk. Also in both cases it has been claimed that the entire area is “sacred ground” to “Native Hawaiians.” (footnotes about Mauna Kea and about Religion) All these tactics can be expected regarding bioprospecting, because the same groups of activists are already involved in pushing the bioprospecting bill. Indeed, the Senate version of the bioprospecting bill places the study commission (and presumably the future regulatory commission) directly under the administrative authority of the Office of Hawaiian Affairs!

(3) A few years ago the PASH decision was announced by the Supreme Court of Hawai'i. That decision allowed gathering rights on private land, and shoreline access rights through private land, including both undeveloped and partially developed areas. The decision was unclear whether such rights are available to the general public because those rights were written into law during the Kingdom period but had no racial designation, or whether those rights are exclusively held by ethnic Hawaiians because (it is claimed) they had special “native” gathering rights. In any case, the PASH decision made it explicitly clear that the Legislature has the right to regulate the exercise of the gathering rights. However, when the Legislature then tried to pass bills that would actually regulate the gathering rights by requiring permits in accord with the language of the court's decision, ethnic Hawaiian activists turned out in large numbers at the Legislature to protest; and were successful in intimidating the Legislature to scuttle any attempts to regulate the gathering rights (footnote about PASH). In the case of bioprospecting legislation, it can be expected that similar tactics would be used to prevent regulations from being adopted, thereby making a moratorium permanent.

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THE UGLY ABOUT THIS BILL

It is likely that the composition of the commission, and its procedures, would be carried forward into a permanent new regulatory bureaucracy. Thus it is very important to “get it right” in the way this commission is initially set up.

A simple bill to halt new bioprospecting for a short time while creating regulations seems like a good idea. But there's another theme running throughout the bill that detracts from that purpose.

Because of the extensive racial language in this short bill, the bill can be seen as primarily a trojan horse for racial supremacy in land-use policy. It is a power grab whose evil outweighs any good that might come from the bill's alleged purpose. Indeed, the “tail wagging the dog” syndrome might be at work here. The primary purpose of this bill, judging from the individuals and groups pushing it and the actual language in the bill, is to give racial supremacy to ethnic Hawaiians in making decisions about land use policy. The stated topic of the bill, to regulate bioprospecting, can be seen as merely a ploy, providing sheep's clothing to a wolf. A similar trojan horse process on a much smaller scale occurred a few years ago in Kane'ohe, using concerns about environmental restoration as a ploy to promote Hawaiian sovereignty (see footnote about ARCH).

The most glaring evidence of a racial supremacy agenda in the bioprospecting bill is that all versions of the bill have a racial set-aside requiring that 5 members of the commission shall be “Native Hawaiians” and that a 6th member of the commission shall be the chairperson of OHA or her designee. Thus, 6 commission members are to be racial Hawaiians. The original Senate bill had only 9 commission members, thus guaranteeing at least a 2/3 vote for a racial voting bloc. A later version has 10 members; still a 60% racial setaside. The most recent House version has 13 members; still a 46% racial set-aside not counting additional members chosen because of specialized areas of expertise who might also happen to be racial Hawaiians. In addition, the Senate bill places the bioprospecting commission administratively under the control of OHA! The House bill places it more appropriately under the Department of Business, Economic Development, and Tourism; although it would perhaps be even more appropriate to include it under the Department of Land and Natural Resources. DBEDT and DLNR each has one position set aside for it on the bioprospecting commission, along with the UH President, a scientist specializing in genetics, a scientist specializing in ecology, and a representative of the biotechnology industry.

Setting aside seats on the commission for particular institutions or areas of expertise is appropriate. Setting aside seats for a racial group is not. Claiming that ethnic Hawaiians love the land or have a special relationship with it or special knowledge about it (while other races do not) should be recognized for what it is -- a form of racial profiling or sterotyping -- a form of racial prejudice. In Hawai'i there are people of all ethnicities who love the land, who have a special relationship with it, and who have expert knowledge about it. There are Japanese, Chinese, Filipino, and white farmers and fishermen who have several generations of living close to the land. There are experts on Hawaiian medicinal plants and healing procedures who have no native ancestry. Love for the land is not genetic -- it is learned through upbringing, spiritual sensitivity, and daily activity. Knowledge about plants and environment is learned through upbringing, apprenticeship, and study.

Section 1 of the bill is incorrect when it characterizes the "public trust" lands as "shall be held by the State as a public trust for native Hawaiians and the general public who are co-beneficiaries of the public trust." Such language implies that there are two groups: (1) native Hawaiians as a group are somehow separate and apart from (2) the general public (which also includes native Hawaiians). The quoted language implies that group #1 and group #2 are somehow equal to each other, each deserving 50% of the power and benefits. This implication is neither trivial nor purely window-dressing -- it provides a basis for section 4 of the bill that contains a racial set-aside of about half the positions on the commission! See footnote regarding the ceded lands, the Admissions Act and section 5(f) of the Statehood Act. The simple fact is that there is no racial ownership of Hawai'i's public lands (95% of which are “ceded lands”), nor any racial entitlement to any of the revenue produced other than what the Legislature chooses to give to OHA. There is no racial right to be consulted about sale or leasing of public lands. It is probably unconstitutional to send government money to OHA for a racially exclusionary beneficiary group. The 25 year old custom of doing so is now under challenge in the 9th Circuit Court of Appeals (footnote on Arakaki#2).

Section 1, parts 4 and 5 (some versions) of this bill are legally and morally wrong to the extent that they say that Native Hawaiians are an indigenous people and have special race-based "rights to protect, preserve, and control the use of their traditional knowledge and associated biological resources." Ethnic Hawaiians are not an indigenous people. As used in Hawai'i, the word “indigenous” is a buzz-word used as a polite synonym for a racial group. No definition of “indigenous” has ever been agreed upon by the United Nations. Today's ethnic Hawaiians do not have a coherent culture that describes all ethnic Hawaiians and only ethnic Hawaiians. They do not live separate and apart from the surrounding population. Very few ethnic Hawaiians depend upon daily direct contact with the land and sea for a subsistence lifestyle. We all live, work, play, and pray side by side, fully integrated and widely dispersed. The United Nations "Draft Declaration on the Rights of Indigenous Peoples" has been just a draft -- a trial balloon -- for about 15 years now with no agreement in sight. Despite Lilikala Kame'eleihiwa's strong disapproval of "The Rock" (no Hawaiian ancestry) playing the role of Kamehameha in a future movie about Kamehameha written and produced by non-Hawaiians, there are no racial or ethnic group rights to knowledge or use of history, biography, healing practices, ancient chants, hula, music, language, or other cultural knowledge. And if there were such racial rights, such rights could just as well be claimed by the white race on account of the preservation of ancient Hawaiian knowledge through the use of the written Hawaiian language created by whites and given to native Hawaiians. After 225 years of multiracial and multicultural marriage, Hawaiian culture is now community property.

Section 4(c)(1) (some versions) should make it clear that the "equitable distribution of benefits" refers to the division of net income or profit between the general public on the one hand, and the researchers, scientists, and businesses who do the work. In view of the racial language elsewhere in this bill, and the constant drumbeat of propaganda that the ceded lands are somehow racial property or racially encumbered, it is important to make clear in this bill that there will be no racial allocation of money produced as a result of this legislation, and that all benefits belong to all Hawai'i's people.

The State of Hawai'i has long treated ethnic Hawaiians as our favorite racial group. There are over 160 programs providing financial benefits to them which other racial groups are excluded from (see footnote on DA PUNAHELE RACE). The Governor and Legislature are supporting the Akaka bill to establish a racially exclusionary government for them (see footnote on AKAKA bill). Despite a nationwide campaign by the U.S. Office of Civil Rights to abolish racially exclusionary programs on college campuses, our Legislature defiantly continues to push forward a bill to give free tuition to “Native Hawaiians” and another bill to create an apartheid school system (see newspaper articles). It would be very unfortunate if a well-intentioned bill to regulate bioprospecting turns out to be another stepping-stone on Hawai'i's path toward a society of racial supremacy.

For a more wide-ranging, general explanation of the theory of indigenous intellectual property rights, and how that theory is (mis)applied in Hawai'i, see
Indigenous Intellectual Property Rights -- The General Theory, and Why It Does Not Apply in Hawai'i
http://www.angelfire.com/hi2/hawaiiansovereignty/indigenousintellproprts.html

REFERENCES CITED IN THIS ESSAY, FOLLOWED BY NEWSPAPER ARTICLES ABOUT THE BIOPROSPECTING BILL

200 YEAR CONVERSATION -- “It's Alive - The 200-year Conversation Over Biotechnology” by By Ronald Bailey, science reporter for The Reason Foundation, Hawaii Reporter online newspaper (March 26, 2004)
http://www.hawaiireporter.com/story.aspx?a5a310b9-1fbf-47e9-a01d-6181a74f1551

MAKUA military training vs. Hawaiian sovereignty -- using environmental concerns and cultural preservation as ploys to force the U.S. military out of Makua and eventually out of Hawai'i.
http://www.angelfire.com/hi2/hawaiiansovereignty/makua.html

MAUNA KEA -- How the telescope campus serves the spiritual essence of this sacred place; how OHA and the sovereignty activists try to extort money and destroy Mauna Kea astronomy
http://www.angelfire.com/hi2/hawaiiansovereignty/maunakea.htm

RELIGION and zealotry in the Hawaiian sovereignty movement -- how religious myths are used to support political claims for racial supremacy in Hawai'i. The claim is that ethnic Hawaiians and the Hawaiian islands are the descendants of the Hawaiian gods; thus ethnic Hawaiians share a family relationship with the land and the gods which sets them apart from anyone who is not racially Hawaiian. The gods are also manifested in plants and animals which are the body-forms of the gods (raising possible religious objections to genetic tampering or bioprospecting).
http://www.angelfire.com/hi2/hawaiiansovereignty/religion.html

PASH -- “The Law of Custom and the Conflict of Traditions in Hawai'i” by Honolulu attorney Paul M. Sullivan. University of Hawai'i Law Review, Vol. 20, No. 1, Summer/Fall 1998, pp. 99-163.
http://www.angelfire.com/hi2/hawaiiansovereignty/sullivanpash.html

BELLOWS Air Force Station -- 1995 Environmental Impact Statement considers and rejects typical sovereignty activists' claims that ethnic Hawaiians have a racial right to own the ceded lands or to determine public policy for the use of ceded lands.
http://www.angelfire.com/hi2/hawaiiansovereignty/bellows.html

ARCH: The Use of Cultural and Environmental Restoration as a Political Front for Hawaiian Sovereignty -- The Ahupua'a Restoration Council of He'eia. A small group of Hawaiian sovereignty activists held a series of community meetings over a period of about three years, allegedly for the purpose of cleaning up the environment and restoring the productivity of the land in keeping with traditional “Hawaiian values.” But it turned out that the real purpose was to create a community council, elected from districts by a very small number of insiders, who could gain an appearance of credibility as a 501(c)(3) tax exempt group claiming the power to speak on behalf of an ahupua'a cutting across legitimately elected City of Honolulu neighborhood boards. The group's by-laws were written in a way remarkably similar to the bioprospecting bill and guaranteed racial supremacy for ethnic Hawaiians.
http://www.angelfire.com/hi2/hawaiiansovereignty/fraudahupuaa.html

CEDED LANDS Belong to All the People of Hawai'i; There Should Be No Racial Allocation of Ceded Lands or Their Revenues
http://www.angelfire.com/hi2/hawaiiansovereignty/cededlands.html

The language of the Annexation Act (and the Organic Act that implemented it) make clear that the public lands of Hawai'i are a public trust held on behalf of all of Hawai'i's people, with the revenues to benefit all of Hawai'i's people. There is no mention of race in those documents as regarding the public lands of Hawai'i, comprising both the former government lands and the former crown lands of the Kingdom. Lili'uokalani vs. U.S. 1910 ruled that the monarch since 1865 did not personally own the crown lands and that under an act of the Kingdom legislature in 1865 those crown lands were owned by the government to provide revenue to support the office of head of state (rather than the individual person who held that office). In the Statehood Admission Act of 1959, section 5(f) identified all Hawai'i's people as owners of the "ceded lands" and identified 5 purposes for using the money from sale or lease of the ceded lands, specifically saying that all or part of the money could be used for any one or more of the 5 purposes. One of those purposes was the “betterment of native Hawaiians” [of 50% blood quantum]. But section 5(f) did not require that any revenue be used for any specific purpose; and clearly native Hawaiians benefit from all government expenditures including schools, roads, harbors, hospitals, public housing, etc. In 1980 an act of Legislature said 20% of ceded land money would go to the newly created Office of Hawaiian Affairs to benefit native Hawaiians (50% blood quantum). That was a simple act of the Legislature which can be changed anytime the Legislature gets disgusted enough with OHA. There have been constant lawsuits and Legislative actions to define what are the ceded lands, and to determine whether the 20% allocation of money to OHA should be based on gross revenue, or net income after expenses (which is probably a loss). The whole concept of a link between ceded land revenues and OHA was a terrible idea.

ARAKAKI #2 -- ARAKAKI V. CAYETANO (now ARAKAKI V. LINGLE) -- A Multiethnic Group of 16 Hawai'i Citizens File Suit Challenging the Constitutionality of Both the Office of Hawaiian Affairs and the Hawaiian Homes Commission Act, on grounds that the 14th Amendment equal protection clause prohibits racially exclusionary government benefit programs
http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2ohadhhl.html

DA PUNAHELE RACE -- “Native Hawaiians” are Hawai'i's favorite race
http://www.angelfire.com/hi2/hawaiiansovereignty/punahelerace.html

AKAKA BILL -- legislation in Congress to create a racially exclusionary government masquerading as a phony Indian tribe
http://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html

March 25, 2004 Newspaper article reports that the Legislature is pushing forward a bill to give free tuition at the University of Hawai'i to “Native Hawaiians” despite federal action to dismantle racially exclusionary programs at colleges nationwide.
http://starbulletin.com/2004/03/25/news/story11.html

March 17, 2004 Newspaper article reports that the Legislature is pushing forward a bill to establish a separate “host culture” “public” school system
http://starbulletin.com/2004/03/17/news/story5.html
See also
“Public Education for Ethnic Nation-Building In Hawai'i”
http://www.angelfire.com/hi2/hawaiiansovereignty/efhenb.html

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RECENT NEWSPAPER ARTICLES ABOUT THE HAWAI'I BIOPROSPECTING BILL (most recent first)

EDITORIAL: Regulate, but don't alienate bioprospecting (Honolulu Advertiser, March 29, 2004)
http://the.honoluluadvertiser.com/article/2004/Mar/29/op/op01a.html

Measure protects discovered resources
The state would claim rights to any products using found species
[Excellent summary]
(Honolulu Star-Bulletin, Sunday March 28, 2004)
http://starbulletin.com/2004/03/28/news/story5.html

Hawaii Might Claim Biological Resources (Newsday, March 27, 2004) [by same author, but circulated nationally]
http://www.newsday.com/news/nationworld/nation/wire/sns-ap-bioprospecting-hawaii,0,3493455.story?coll=sns-ap-nation-headlines

‘Bioprospecting' rules are necessary (Honolulu Star-Bulletin, March 22, 2004)
http://starbulletin.com/2004/03/22/editorial/editorials.html#jump

UNIVERSITY OF HAWAI‘I SYSTEM TESTIMONY on H.B. 2034 (January 29, 2004)
http://216.239.57.104/search?q=cache:XPJZpc4w7LwJ:www.hawaii.edu/govrel/house/bills/hb2034_uoh_012904_hed.pdf+hawaii+bioprospecting+bill&hl=en&ie=UTF-8

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Pacific Business News (Honolulu) - Friday, April 17, 2004 6:31 PM HST
http://pacific.bizjournals.com/pacific/stories/2004/04/12/daily78.html

LATEST NEWS

Commission would study bioprospecting

Lawmakers are debating the creation of a commission to study the practice of bioprospecting, a kind of scientific research that looks to employ natural resources for commercial goods. Senate Bill 643 proposes the study. The measure represents a compromise of a proposal that had initially sought to place a moratorium on bioprospecting in Hawaii. An estimated 5,000 such projects are currently under way in Hawaii's rain forests, volcanic fields, and reefs and oceans. The bill has gone to conference committee to iron out the differences between the Senate and House versions.

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ADDENDUM OF OCTOBER, 2006: TULALIPS TRIBE, OF WASHINGTON STATE, DEMANDS RIGHTS TO ALL PLANT AND ANIMAL DNA OF SPECIES FOUND IN ITS TRIBAL AREAS, BASED ON TREATY FROM 150 YEARS AGO

The Herald - Everett, Wash. - www.HeraldNet.com
Published: Sunday, October 22, 2006

http://www.heraldnet.com/stories/06/10/22/100loc_a8tribes001.cfm

Tribes seek greater clout
Based on 1855 treaty, Tulalips assert rights to plants, environment

By Krista J. Kapralos and Eric Stevick

Tulalip Tribal elder Ray Moses keeps the stories his ancestors gave to him.

He tells how the whale pushes the reluctant salmon back into the rivers, how the beaver tried to woo the field mouse.

Moses, 75, saves these old stories, passes them on.

In his pocket he keeps another story. It too is from the past, but this, he explains, is also the future.

It is a folded, dog-eared copy of the Treaty of Point Elliott. He takes it out, holds it up in the sunlight, waves it at passersby.

"People don't know that we have these rights. They need to know this."

To the treaty tribes - today's Tulalip, Stillaguamish, Lummi, Swinomish and others - the 1855 pact signed by Mukilteo's shore tells everyone what belongs to them forever.

People still debate the treaty's Indian fishing rights and fight over property lines. They argue with tribal police over their authority, and over whether non-Indians can build docks in Tulalip Bay.

The tribes are taking the next step.

Now, they say the 151-year-old treaty guarantees their world patent rights on native trees, flowers, shrubs and even weeds - the DNA of every plant that naturally grows here.

If that's true, the tribes could gain trademark control over all future use of native plants.

Tribal permission would be needed for pharmaceutical companies and other businesses to use the plants to make medicine, cosmetics or even herbal tea.

The tribes already have put the case before the United Nations.

The U.N. Council on Human Rights is writing a document promoting tribal rights to indigenous intellectual property.

The treaty tribes also are pushing for more control of the environment.

They've filed the first in a series of lawsuits intended to win a greater stake in managing Western Washington's environment. They call it the Habitat Claim.

They sued the state in August for control over the region's culverts, which carry runoff along and under roads. Control over the culverts is crucial to keeping pollution out of creeks, streams and rivers.

Their reasoning, the tribes say, is simple.

Tribal culture requires healthy salmon runs, thriving forests and water that is free from pollution. Unless there are strict environmental regulations, they believe their salmon-centered culture could be lost within a generation.

"Economic survival is different than cultural survival," said Terry Williams, a Tulalip tribal leader on environmental issues. "If you survive economically only to find that you can no longer practice your culture, that's devastating.

"We're trying to figure out how we're going to survive the 21st century."

A living treaty

The Treaty of Point Elliott is among the most important documents in the founding of the state.

In January 1855, Indians pulled canoe after canoe onto the shore at Mukilteo.

There were about 2,300 Indians from Western Washington ready to meet white settlers and federal delegates.

Within the limits of the Chinook jargon they negotiated the future of a new nation, and of tribes who had lived there since before they recorded time.

There are 100 signatures on the treaty. Eighty-two, those belonging to Indians, are simple X marks.

The federal men demanded land. They wanted to move every Indian in the region to one area and take ownership of what amounts to about a fifth of what is now Washington state.

The tribes insisted that they be able to keep their way of life. They wanted to continue fishing, hunting and gathering roots and berries at all of their usual places.

In 1955, when Tulalip elder Ruth Sehome Shelton was nearly 100, she retold the story she heard as a girl.

The group was gathered near the beach. Federal negotiator and Washington Territory governor Isaac Stevens was speaking.

A tribal leader, whose name is lost, asked how long the treaty would last.

"Will it be for as long as the water flows in the rivers ... will that be ours, and will it be for as long as the sun travels from whence it comes until it returns to the west?"

Stevens nodded and then sat down.

Settlers and federal officials believed the Indians would assimilate into white society.

"The good part of the story is, in spite of all the atrocities and hoodwinking that went on, that the tribes survived and their culture exists," said David Dilgard, a regional historian with Everett Public Library.

Today, he added, "150 years after the document was signed, you have guys in suits on retainer saying, 'Let's take a closer look at this.'"

Opposition then and now

Before the Treaty of Point Elliott was even ratified, settlers and Indians began disputing its words.

Indians argued among themselves, claiming people who weren't chiefs were among those who signed the treaty. Settlers had trouble getting Indians out of the way of railroads, logging outfits and farms.

Fishing, then as now, caused many clashes. After the state created fishing seasons, Indians were allowed to fish out of season, using weirs and special types of nets.

A century ago - in 1906 - three white fishermen did as the Indians could, and cast nets in Steamboat Slough between Everett and Marysville. That act changed state law, and for a time handed the treaty rights over to everyone.

By the 1960s and 1970s, Indians - who still relied on salmon for survival - were barred from fishing at many of their customary spots. State fisheries officers arrested Indians for illegal fishing. The Indians insisted that the Treaty of Point Elliott granted them the right to fish within their traditional areas.

"I came out to fish right out here," Tulalip Tribes Chairman Stan Jones, 80, said, nodding toward Tulalip Bay. "State fisheries would try to chase us back up the river."

They decided to fight in court.

"We knew we couldn't lose anymore because we had hardly anything," Jones said.

In 1974, U.S. District Court Judge George Boldt, a Montana-born sportsman, ruled that the treaty guaranteed the tribes half of all salmon and steelhead harvests.

State officials were shocked.

Tulalip tribal member Ray Fryberg said he'd heard about the treaty from his grandparents. "They were trying to teach me what would become very valuable," he said.

Boldt showed him its power.

"I didn't understand it at the time, but later it started to reveal itself to me."

The habitat claim

Boldt's decision opened new conflict between the tribes and the state as each side tried to determine what the ruling actually meant.

In 1980, U.S. District Court Judge William Orrick, in a case known as "Boldt II," declared that Boldt's ruling implied that the tribes have the right to a habitat that sustains the fish that are the lifeblood of their culture.

Orrick's ruling gave the tribes jurisdiction over much of the environment.

The state appealed. Two years later, the ruling was overturned by the 9th Circuit Court of Appeals in San Francisco.

Since then, the tribes have tried to find common ground with the state, only to see the environment continue to erode, said Williams, the Tulalips' environmental leader.

The tribes say they've got to use their treaty rights now to push the Habitat Claim, even if it means costly court battles. It would let them sue anyone who pollutes the region's environment.

The culvert lawsuit could cost taxpayers millions and infringe on property rights, said Barb Lindsay, director of One Nation United, a Redmond-based property rights advocacy group.

"This can affect every man, woman and child in the state of Washington where there is a culvert," she said.

The state hopes to delay the case, set for trial in March, to prepare a stronger defense, said Tom Fitzsimmons, chief of staff to Gov. Chris Gregoire.

The tribes say they aren't looking for money. Instead, they want to have more say in how the environment is managed.

The treaty is a powerful weapon, Tulalip Tribes' attorney Mason Morisset said - it's the "shotgun behind the door."

Intellectual rights

Williams also sees a link between the survival of native plants and advancements in the biotech industry.

The tribes must safeguard the species, all genetic blueprints within them and the secrets they may hold.

The tribes never ceded ownership of those resources in the Treaty of Point Elliott, Williams argues.

If the tribes have their way, Williams said, the future could hold virtual borders through which the plants - and their genetic codes - could not pass without tribal permission.

"We not only have a property right to the plant, but also an intellectual property right to the use of the plant," Williams said.

"Any breakdown of that plant to look at what generates medicinal purposes of that plant in the genes, that's our right as well."

The Tribes already are cultivating native plants in locked reservation greenhouses.

Tribal elders are recording their knowledge of herbal medicine for a database, available only to certain tribal members. Outsiders will never see it, tribal leaders say.

Williams' quest to safeguard the tribes' traditional knowledge has taken him from Geneva, Switzerland, to Rio de Janeiro, Brazil, lobbying for United Nations support.

Global edicts, including the 1992 Convention on Biological Diversity and the U.N.'s Declaration for the Rights of Indigenous Peoples, support tribal ownership of intellectual property, such as ancient healing methods.

Williams' work has captured the interest of the World Intellectual Property Rights Organization, another branch of the U.N. Williams says the organization has asked him to develop a pilot project for protecting tribal knowledge.

Common plants, such as fireweed, are well known to the state's tribes. The Snohomish used infusions of fireweed to cure sore throats, and the Skokomish used it to fight tuberculosis.

Western red cedar bark provided tribes clothing and hats; the Lummi chewed the buds to soothe sore lungs and calm nausea.

The ancient remedies that are widely known now are only a fraction of the cures tribal elders remember. Pharmaceutical companies are only aware of about 50 of more than 150 plants that tribal members still use, Williams said.

Some have asked the tribes to share their knowledge, he said, but the tribes have declined.

While the treaty reserves tribal rights to hunt and gather roots and berries on "open and unclaimed" land, the state isn't sure what that means, said Fronda Woods, a lawyer in the state Attorney General's office.

"Does that mean cedar bark?" she said. "Mushrooms? What about the commercial timber harvest?"

A changing tradition

Many of the world's indigenous tribes don't traditionally recognize ownership of the Earth or its resources.

That's changing.

There is a growing belief that if tribes don't claim ownership, someone else will, and their cultures will suffer, said Rudolph Ryser, a member of the Cowlitz tribe and director of the Center for World Indigenous Studies.

The center is an independent nonprofit think tank based in Olympia.

To protect their genetic resources, tribes must develop a law and get federal support to enforce it, Ryser said.

The Suquamish and Quileute tribes have already developed such laws, Ryser said.

The National Cancer Institute routinely enters into agreements with foreign governments and indigenous groups to ensure that the native population benefits from any drugs developed from natural resources found where they live.

In New Zealand, for example, the native Maoris also say their 1840 treaty with the British government reserves their ownership of genetic resources.

That treaty and the Treaty of Point Elliott were signed before scientists started seriously studying nature in a way that led to modern genetics.

Charles Darwin's "The Origin of Species" was printed in 1859. Gregor Mendel, working with mice and pea plants, presented his paper on inherited traits in 1865.

"The only way to protect and preserve wild plants and animals is to leave them in the care of indigenous communities that have cultures directly connected to the continuity of those things," he said.

The tribes and medical researchers should be concerned, said Gordon Cragg, a chemist and prominent cancer researcher.

If tribes gain official ownership of genetic resources, they should be prepared to make agreements with scientists to allow the resources to be studied.

"If there are proper agreements, they stand to benefit," said Cragg, who just retired from his post as head of the Natural Products Branch of the National Cancer Institute in Maryland.

"If they just sit on this and say, 'We won't collaborate at all,' then they don't gain anything, and the cancer patients or diabetes patients don't gain anything either."

Cragg's department travels the world hunting down plant samples for medical studies. In 1960, it collected bark from the Pacific yew found on the Olympic Peninsula - bark that scientists developed into Taxol, a powerful drug used to treat ovarian, breast and some lung cancers.

If a tribe stopped scientists from taking that bark, Cragg said, it could have meant death for untold numbers of women men and children with cancer.

Battle for the beaches

The treaty also causes headaches for non-Indians living on the Tulalip Reservation, including Tom Mitchell and his wife, Patricia Johansen-Mitchell.

From their home overlooking Mission Beach, they spot the tops of gray whales returning each spring to feast on ghost shrimp.

At night, they hear the whales' sonorous weeshhhh in the water. The next day, if the tide's low, they see muddy craters left behind by hungry whales.

"It's always a big deal when they arrive," said Mitchell, president of the Marysville-Tulalip Community Association, a group of non-Indians who own land or live on leased land on the reservation.

Johansen-Mitchell's parents owned the land on which they live, and built their home more than 40 years ago.

It's an idyllic spot, but these days, the Mitchells and about 400 other nontribal families are embroiled in property disputes with the tribes over who owns the tidelands.

The tribes say the Treaty of Point Elliott gives them jurisdiction over the beaches.

Last March, they passed tidelands management policies that restrict development along the shoreline, and they banned new docks, stairs, bulkheads and other structures.

Non-Indian landowners produce deeds, some a century old, that describe their property to the low water mark: they believe their deeds give them ownership of the beachfront.

It's a battle that has both sides, and their lawyers, researching the treaty.

"The tidelands are just the first and most visible effort we think the tribe is going to implement as they attempt to gain greater and greater control of the reservation," Mitchell said.

He predicts the tribes will assert jurisdiction over uplands property along creeks and sloughs.

Tribal leaders say the beaches are reserved for the tribes, and that bulkheads and docks destroy the tidelands' delicate ecosystem. They have yet to enforce the new shoreline policies, but property owners are bracing for court.

'There's no indication that they're about to start implementing it," Mitchell said. "That may be simply because they recognize they may not get away with it."

Remembering the treaty

Last year, 150 years after the treaty was signed, local historians invited Indian leaders to once again paddle to Mukilteo and pull their canoes onto the beach.

The federal delegation that brokered the treaty expected the tribes to eventually disappear.

"That's the irony," said John Collier of the Mukilteo Historical Society. "The Point Elliott Treaty has emerged as a symbol among Native Americans to keep their cultural identity, as well as a living document with real political and economic influence in the 21st century."

Jones, the Tulalip Tribes chairman who's been alive more than half as long as the treaty, puts it simply.

"The treaty is as strong now as it's ever been."

Reporter Krista J. Kapralos: 425-339-3422 or kkapralos@heraldnet.com.


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