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Indigenous Intellectual Property Rights -- The General Theory, and Why It Does Not Apply in Hawaii


(c) Copyright 2004 - 2011 Kenneth R. Conklin, Ph.D. All rights reserved SUMMARY

Copyright, patent, and trademark are the three best-known ways of guaranteeing property rights for the intangible products of mental work, or for the value added by a producer's past performance and reputation.

In modern, Western societies such intellectual property rights are held by individuals or corporations. These rights are guaranteed by the legal system through formal registration of documents with government agencies. If one individual or corporation infringes on the property rights of another, the rights are enforced by courts.

But in primitive, indigenous societies knowledge and cultural products are created by informal interaction among all the members of the group in their daily relationships with each other and with their ancestral lands. Indigenous knowledge and property rights belong to the group rather than to any individual or corporation. Indigenous copyrights, patents, and trademarks are not written down, nor are they registered with any government agencies. It is not conceivable that individuals belonging to an indigenous group could infringe on the property rights of others -- they spontaneously give their work product to the group, and freely take what they need from the group. Indigenous knowledge is owned by the group because it is a group product arising from spontaneous consensus and osmosis.

The problem with indigenous intellectual property rights is that they are informal and unwritten, which makes it easy for outsiders to ignore, violate, and steal them. But indigenous intellectual property rights deserve respect. Simple respect for human rights imposes on civilized societies a moral obligation to treat indigenous intellectual property rights as though they were formally registered. Indigenous intellectual property rights should be thought of as comparable to aboriginal land title -- not written down or formally registered, but deserving of moral respect and entitled to legal protection. Such protection would be delivered through the legal system of the modern nation which has engulfed the primitive tribe, or through "international law."

Confusion arises when people living a modern lifestyle but claiming to be indigenous try to assert the special protections that might have been appropriate to the indigenous status of their ancestors. Knowledge created in ancient times, belonging to an indigenous group as a whole, is held today by individuals who are fully civilized and assimilated. Property rights belong to the people who own the property, not to the property itself. Therefore the decision whether to recognize indigenous property rights depends on whether today's property owners are indigenous today, not on whether the knowledge itself was created by long-ago indigenous ancestors.

Today's ethnic Hawaiians are fully civilized and assimilated individuals. They should not be treated as possessors of indigenous intellectual property rights. First, it is doubtful whether today's ethnic Hawaiians are descended from Hawai'i's "first people." But regardless whether their ancestors were Hawai'i's "first people," today's Hawaiians of native ancestry are now fully assimilated and widely dispersed throughout all neighborhoods and levels of society. They long ago gave up the religion, culture, lifestyle, group cohesiveness, and naiveté that might perhaps have qualified their ancestors as indigenous and might have entitled those ancestors to the special legal protections appropriate to indigenous societies according to modern legal and moral theories. The assertion of indigenous intellectual property rights by modern ethnic Hawaiians is a political ploy in seeking racial separatism or ethnic nationalism. The Akaka bill seeks to authorize reimposing indigenous status on individuals of a racial minority who are descended from a people who long ago might have been indigenous. The Akaka bill might be useful in asserting claims to indigenous intellectual property rights, but only at the expense of taking today's fully equal citizens out of a unified multiethnic society and placing them under government wardship based on race.

INDIVIDUAL RIGHTS, GROUP RIGHTS, NAIVETÉ, WARDSHIP

One important difference between developed societies and indigenous societies is that developed societies focus on the rights of individuals. Indigenous societies are often so naive that the concept of "rights" is foreign to them; but if rights are recognized, then individual rights are far subordinate to the rights of the group as a whole. An indigenous society has individuals constantly interacting among themselves and their environment in close, intimate, informal situations where knowledge emerges spontaneously as a result of those group interactions. In a developed society intellectual property rights belong to individuals, and are seen as a way for an individual to protect his private property rights against other individuals and also against the society or the government. But an indigenous society has such strong group cohesion that the rights of the group are vastly more important than the rights of the individual, and intellectual property belongs to the group. The cohesiveness of an indigenous tribe allows a “talking chief” to speak on behalf of the entire tribe, just as the head of a family can speak for the entire family.

Another important difference between developed societies and indigenous societies is that in a developed society the individuals are presumed to be competent and rational, capable of protecting their own property either by themselves or by hiring an attorney. But an indigenous society must be treated as a group, whose status in the larger world is comparable to that of a child or an incompetent person. The intellectual property rights of an indigenous group are not written down in copyrights, patents, or trademarks; but should be treated as though they were.

In developed societies we protect the sexual innocence of a child by making laws setting the "age of consent." We believe that a child of less than a specified minimum age lacks the sophistication to be capable of giving informed consent. We conclude that any sexual relationship between a minor and an adult was not knowingly consented to by a fully informed or competent person, and therefore it was rape. The same theory applies to intellectual property, knowledge, or products of the land taken by a developed society from an indigenous group. An indigenous tribe should be regarded by a developed society as being like an individual child or incompetent adult. If an indigenous tribe is engulfed by a developed society exercising sovereignty over its territory, the relationship is therefore wardship or guardianship.

COPYRIGHT, PATENT, AND TRADEMARK -- CAPITALIST VS. SOCIALIST

Copyright, patent, and trademark are the three best known ways of guaranteeing property rights for the intangible products of mental work, or for the value added by a producer's past performance and reputation. The words someone writes are worth far more than the paper on which they are printed. An author is entitled to payment for his work in capturing ideas and communicating them, and for his skill in evoking insight and emotion in the minds of his readers. An inventor deserves payment for conceptualizing the design of a machine. A buyer will pay more for a product whose authenticity or subsurface quality is guaranteed by the good name of the manufacturer. A buyer is willing to pay more for a product than the value of its materials plus distribution costs. That excess value, or the excess money paid in expectation of it, rightfully belongs to the person or corporation whose creativity made it possible or whose past performance gives a buyer confidence.

In a socialist or communist system the slogan is "from each according to his ability, to each according to his need." Creative or skillful people are expected to produce high quality goods and services simply as a matter of routine. Perhaps a writer or artist produces work for the sheer enjoyment of it, because creativity spontaneously craves expression. Perhaps they do it because they want to serve their community, or because they get applause. Perhaps creative work is no different from manual labor. The work someone does in creating a concept or design is no more valuable than the physical labor of a farmer or fisherman who works for the same length of time. Thus, an author whose book sells a million copies deserves no more pay than an author whose book sells only a thousand copies, or an author of a government report of the same length destined for the eyes of only a few bureaucrats. The author received food and shelter from the community during the time he was writing; thus, the community now owns his work and has already paid him for it.

An important difference between a capitalist economic system and a socialist or communist system is that capitalism places great value on the rights of individuals to own and profit from their individual property, including the work of their minds. Capitalism views human nature as fundamentally selfish and acquisitive. Thus it comes as no surprise when people with special talents are willing to spend great time and effort to cultivate those talents and to create products with a potential for great profit. The value of a product to society is fairly measured by the profits it generates. Capitalist theory holds that an author is entitled to payment from each person who reads his work, so that a book which sells a million copies entitles its author to ten thousand times as much profit as a book which sells only a hundred copies. A capitalist has no trouble understanding why the socialist economic system produces stagnation and a low standard of living due to lack of the profit motive.

INDIGENOUS COPYRIGHT, PATENT, AND TRADEMARK ARE GROUP PROPERTY; SHOULD BE RESPECTED LIKE ABORIGINAL LAND TITLE, EVEN IF UNWRITTEN

Consider now an indigenous tribe, living separate and apart on its own ancestral lands. It maintains a subsistence lifestyle intimately dependent on the land for daily sustenance from hunting, fishing, gathering, and growing food. The tribe has a set of folkways passed down through the generations from time immemorial. Tribal knowledge belongs to the tribe as a group. If an individual member happens to discover a new or improved way of producing food, that knowledge is immediately shared with the group and becomes a part of tribal knowledge.

Indigenous people are not even aware they are indigenous. Their lives are spontaneously attuned to their environment. They chant, play bamboo flutes, and pray in ways unique to this particular tribe -- the copyrights for the music and lyrics are unwritten and belong to all members collectively. Their carved bone fishhooks have a unique twist created by a process passed from father to son in the families of master carvers. Their bark cloth has a special combination of delicacy and toughness created by the process taught by mothers to daughters. Their method of building a wall to enclose a portion of the ocean to create a fishpond, and especially the design of the gate they open and close to let small fish come in and stop big fish from getting out, is unique. Healers create medicines from plants that grow only in the tribe's ancestral lands. The patents for all these things are unwritten and owned by the tribe as a group. Each maker of fishhooks scratches a mark into the bone invoking the spiritual power of his family geneology. Each piece of bark cloth is stamped with a design common to all the families in the tribe, with special embellishments indicating the particular family that made it. These trademarks are created spontaneously by habit, as an expression of spirituality or geneology, not as conscious or artificial brandings to claim ownership. The trademarks are not registered with any government agency, but nevertheless are immediately recognized (or perhaps it would be more accurate to say that an absence of the trademarks would be immediately noticed).

Indigenous knowledge is produced spontaneously by the interaction of tribal members with each other and with their tribal landscape. Indigenous knowledge is produced by a group and belongs to the group. Indigenous knowledge is part of an economic system that is inherently socialist or communist, based on cooperation rather than competition. Copyrights, patents, and trademarks are unnecessary inside such a system, because individual rights are always subordinated to the rights of the group.

The problem arises when individuals or corporations from an advanced capitalist society have contact with a primitive indigenous tribe. The tribe's songs, dances, and artwork might be valuable commodities in the international capitalist economy. Tribal medicines might cure the diseases plaguing civilized societies. Plant and animal species endemic to the tribal lands, and cultural products, might be taken without permission by explorers or given freely to them by tribal members who have no way of knowing the enormous profits to be made. That's why common decency requires respect for the rights of innocent, naive indigenous people who are ignorant of capitalist economics and civilized legal systems.

The United States has long acknowledged "aboriginal land title." The idea is that tribes "own" their ancestral homelands even though they never had a written property deed. Following the Indian wars and the use of military force to push tribes out of their ancestral homelands and onto reservations (often far away from the homelands), Congress passed a law that remaining aboriginal land title would be acknowledged and could be changed only by an act of Congress. Thus, any sale of land by an Indian tribe to an individual, corporation, or local or state government was automatically presumed to be invalid unless Congress had explicitly approved it. The purpose was to protect Indian tribes against unscrupulous people, or state or local governments, who would otherwise take advantage of the Indians' ignorance of the concept of private land ownership and the system of recording written property deeds. Likewise, in recent years courts have begun recognizing that an artist who sells a painting sells only the actual physical object, but retains a right to control and profit from future reproductions of that painting unless such rights are explicitly conveyed along with the painting itself. Indeed, an artist who sells a work of art has a continuing right to prevent the buyer from making changes that would alter its content or concept in future public displays.

Indigenous intellectual property rights should be seen as similar to aboriginal land title, or the rights of artists to control reproductions or alterations after purchase. Unwritten, unrecorded indigenous copyrights, patents, trademarks, and real estate titles are just as real and worthy of respect as written ones registered officially with government agencies in civilized societies. From the standpoint of Western law, an indigenous tribe should be regarded as a single person or corporation having the right to control the use of, and receive money for, its intellectual property and the products of the lands it owns. So long as indigenous knowledge and the products of the ancestral lands are used only within the tribe and its lands, nothing needs to be encoded in writing. But when a relationship is established between outsiders and an indigenous tribe, the outside legal system should protect tribal rights in the same way it protects the rights of minors or incompetent adults. Indeed, that's the theory behind Indian law in America -- the federal government stands as trustee, having complete power to make decisions on behalf of the tribes. Like a parent, the "great white father in Washington" can make decisions which the tribes might not like but are considered to be in the tribes' best interest. Furthermore, because the federal government is the ultimate sovereign, it has the right to make decisions in the government's own best interest even when contrary to the best interest of the tribe (including confiscation of lands without payment, or even the disbandment of a tribe).

Another example of group property rights for an indigenous tribe is NAGPRA: the Native American Graves Protection and Repatriation Act passed by the U.S. Congress in 1990. Similar legislation has been passed or is under consideration in other nations. That law allows Indian tribes to force museums to return to a tribe the bones and tribal artifacts collected (often illegally or unethically) by the museum. But in order for the law to work, there must be someone authorized to make the tribe's demand and to receive the tribal property.

Indigenous intellectual property rights, and aboriginal land title, depend upon the cohesiveness of a tribal group and the ability of a “talking chief” or tribal council to speak on behalf of the entire group. Indigenous copyright, patent, and trademark; aboriginal land title; and aboriginal ownership of tribal bones and artifacts, are all unwritten, informal, and dependent on enforcement by the legal system of a modern society willing to create formal procedures to use its plenary powers over a domestic dependent nation to fulfill a moral obligation of wardship or guardianship.

Even from a libertarian perspective that seeks to minimize government power, there is clearly an important role for government to protect and enforce intellectual property rights. An individual inventor needs the protection of the courts and the power of government to enforce contracts he makes with powerful corporations for the sale or leasing of copyrights, patents, and trademarks. Such protection provides incentive for the creation of new products which might require enormous investment of time and money before any profit can be obtained. The inventor is guaranteed that no copycat can get the profits from an invention he did not create. International treaties establish protections and guaranteed payment for intellectual property created in one country and distributed in other countries. In the case of indigenous intellectual property rights, national governments have the legal right to recognize or extinguish them, and the moral duty to protect them and enforce them against other components of local or international society unless the national government has a compelling need to override them in the national interest.

ARE TODAY'S ETHNIC HAWAIIANS INDIGENOUS?

Does "indigenous" mean being descended from the "first people" of the land? If so, it is unclear whether today's ethnic Hawaiians meet that requirement. Today's ethnic Hawaiian might have one great-great-great-...-great grandfather who lived in Hawai'i before 1778 (with most other ancestors coming to Hawai'i more recently, from elsewhere). But that Hawaiian ancestor from 1778 was probably descended entirely from invaders who came from Tahiti a few centuries before that; and the Tahitian invaders killed or enslaved the previous immigrants from Marquesas who had lived here for a thousand years previously. Then there are the stories of Menehune, whose origins are unknown and who apparently lived in Hawai'i before the Marquesans arrived. So it is doubtful whether today's ethnic Hawaiians are actually descended from Hawai'i's "first people."

Some might say that people are indigenous to a place because that's where the bones of their ancestors are buried. Certainly today's ethnic Hawaiians place great value on ancestral bones -- there are loud complaints and sometimes lawsuits when ancient bones are dug up during the course of construction work for buildings and highways. However, it should be noted that some white families have 8 generations in Hawai'i, and some Asian families have 5 or 6 generations here. Plenty of white and Asian bones dot the Hawaiian landscape. Does that make kama'aina white and Asian families indigenous to Hawai'i? About 75% of today's ethnic Hawaiians have less than half of their ancestry from native Hawaiians. For those ethnic Hawaiians with less than 50% native blood quantum, it is clear that the bones of more than half of their ancestors are buried outside Hawai'i. We must also remember that before 2000 years ago there were no humans in Hawai'i. That means that even if someone has 100% Hawaiian native ancestry, 99% of all the bones of his ancestors going back for many tens of thousands of years are buried outside Hawai'i. In the end the best we can say is that we are all indigenous to Earth. All the bones of all our ancestors are on Earth (except for a very few people who paid to have their bones sent by rocket into space).

But regardless whether "indigenous" means "descended from the first people" or "having the bones of my ancestors buried here," and regardless whether ethnic Hawaiians are indigenous under such definitions, the fact remains that ethnic Hawaiians long ago abandoned the indigenous lifestyle. Kamehameha I used Western guns, ships, and military advisors to kill all his opponents and "unify" a Kingdom of Hawai'i. Kamehameha II ordered the breaking of the kapu, destruction of heiau, and burning of the old gods in 1819, before the first Christian missionaries arrived in 1820. Kamehameha III gave up absolute power and absolute ownership of all the land by proclaiming a Constitution in 1840 and a Mahele in 1848. Many white men were both appointed and elected to the Kingdom legislature, while most cabinet ministers were white. For at least 165-225 years, ethnic Hawaiians have eagerly embraced Western culture and the Western legal system. Today's ethnic Hawaiians demand individual rights and no longer subordinate themselves to group control by kapu, ali'i, kahuna, or Kings. They live, work, pray, and play side by side with everyone else. Today's ethnic Hawaiians are so widely dispersed at all economic levels and geographic regions that they lack the group cohesion that would make it possible for any individual or tribal council to speak on behalf of them all in the unanimous, close-knit, spontaneous manner of indigenous groups.

IS HAWAIIAN TRADITIONAL KNOWLEDGE ENTITLED TO THE SPECIAL PROTECTIONS APPROPRIATE TO INDIGENOUS INTELLECTUAL PROPERTY RIGHTS?

Ethnic Hawaiians certainly are nothing like the truly indigenous people of a primitive tribe in the Amazon jungle, Asia, or Africa. Ethnic Hawaiians are not cohesive like an indigenous tribe, living in an area populated exclusively by themselves and acknowledging the authority of native chiefs to make daily decisions for them. They are a widely dispersed and fully assimilated racial minority with 400,000 members. They are not naive or innocent, ignorant of the laws and customs of the civilized society of which they are full members. Indeed, surveys by both the Office of Hawaiian Affairs and the Honolulu Advertiser show that the personal values and economic priorities of ethnic Hawaiians are nearly identical with the population as a whole: education, healthcare, and housing are given top priority, while resolving ethnic Hawaiian sovereignty issues and working toward “nationhood” are the lowest priorities.

A few of today's ethnic Hawaiian "traditional practitioners" hold ancient knowledge created under indigenous circumstances of a bygone era. By today's standards the people who created that knowledge prior to 1778 probably would have deserved special protections of their indigenous intellectual property group rights. But as the decades unfolded following Captain Cook's arrival, ancient knowledge became blended with modern knowledge brought by whites and Asians, so that it is generally impossible to identify the distinctively ancient Hawaiian elements of today's "Hawaiian" cultural practices that might be entitled to racially exclusionary copyright or patent protection.

As the decades unfolded the ethnic Hawaiians themselves became fully assimilated and widely dispersed; thus, today's ethnic Hawaiians lack the racially exclusionary social cohesiveness that would warrant racially exclusionary intellectual property rights. They also are no longer naive, innocent, or ignorant of the modern legal system; thus, they are not entitled to the special protections that a modern society is morally obligated to give to primitive tribes or to children or incompetent adults.

But Hawaiian activists are sophisticated. The activists know that to claim indigenous rights they must persuade the dominant culture that they resemble indigenous people around the world in being poor, downtrodden victims of history entitled to the special protections of government wardship. Thus the Hawaiian grievance industry flourishes. Books like “Then There Were None” describe a steady severe Hawaiian population decline heading toward excinction, while leaders milk the system for government race-based handouts justified by massaging economic and health statistics to show that Hawaiians are at the bottom among all ethnic groups. Hawaiian activists have been so successful in celebrating victimhood that the general public has come to regard ethnic Hawaiians with a strange combination of pity, good wishes, and strong moral and financial support. Ethnic Hawaiians, with a well-oiled public relations campaign and favorable media exposure, have become Hawai'i's favorite race, pampered and celebrated like a charity's poster child or a cute and huggable team mascot -- vulnerable, needy, and deserving of special protection under government wardship (including indigenous intellectual property rights).

The ancient knowledge held by a few modern "traditional practitioners" should be considered their individual property, not the property of a widely dispersed and fully integrated racial group with 400,000 members. Hawaiian hula, songs, chants, healing processes, etc. should be regarded by the law in the same way as any other cultural knowledge of any other individual, family, or racial group. A kumu hula who knows a sacred dance handed down within the family for many generations is legally and morally in the same position as the head of a family or corporation with a secret ritual, recipe or production process; such as the Masonic Lodge, The Yale University secret society "Skull and Bones," the Zildjian family process for making cymbals or the Coca Cola company's secret recipe. Lilikala Kame'eleihiwa certainly is not entitled to assert any Hawaiian indigenous intellectual property rights over the story of Kamehameha I being made into a movie -- she has no legal or moral standing to complain about the Kamehameha movie featuring writers, producers, and actors who have no Hawaiian native ancestry. The story of Kamehameha, and how he is portrayed, belongs to world history just as Genghis Khan, Shaka Zulu or Saddam Hussein.

Hawaiian traditional practitioners wanting to protect a sacred hula or a healing procedure face the same dilemma and the same solutions as the Zildjian cymbal makers or the Coca Cola Company -- either put it in writing and get a copyright or patent; or keep it a secret and make sure the secret doesn't get out. In ancient Hawai'i knowledge belonged to the group, but particular individuals (kahuna) or families, based on both geneology and training, had special rights and responsibilities (kuleana) for specific places or rituals. The kapu (taboo) system maintained pono (righteous balance) so that nobody dared to infringe the kuleana of others. Any infringement threatened not only the rights of others but also threatened the entire balance among the gods, the land, and the people; thus the appropriate penalty to restore pono and protect the group as a whole, was death. The fact that today's ethnic Hawaiians regard the traditional kapu system as inappropriate to modern times, indicates that today's ethnic Hawaiians do not have an indigenous style of intellectual property and are not entitled to indigenous intellectual property rights.

The United Nations has tried for many years to define "indigenous people" but has failed to reach agreement. The United Nations worked for several years to create a draft declaration on the rights of indigenous people. After about 20 years the greatly revised declaration was finally adopted by the General Assembly, but there is still no definition of "indigenous."

The World Indigenous People's Conference on Education (WIPCE) had its triennial meeting in Hilo, Hawai'i in August 1999. It reaffirmed the Coolongatta statement (first drafted in Australia) on the educational rights of indigenous people, including the right for children to be educated through the medium of their own indigenous language. But such a statement by a non-governmental organization, never adopted by the United Nations, cannot be regarded as binding "international law." And even if it is agreed that children have a right to be educated in their indigenous language, the purpose of such a "law" would be to ensure that indigenous children who grow up speaking their indigenous language cannot be forced to attend an "oppressor" school where the language of instruction is different from their own -- the purpose would NOT be to give English-speaking Navajo or Hawaiian parents the right to send their English-speaking children to a school where the language of instruction is Navajo or Hawaiian. Forcing a child to give up a language he has spoken from birth in order to make him learn a language which to him is strange, and is unusable in daily life in the larger society where the child is living, would surely qualify as a form of child abuse even if it is done for the noble purpose of saving a dying language from final extinction.

Each indigenous tribe has unique ways of creating and communicating knowledge, due to the uniqueness of its ancestral lands and cultural heritage. These unique ways of knowing are reflected in unique mental processes and imply a need for unique contents and methods of teaching and learning. Manulani Aluli Meyer, with a Ph.D. from Harvard, has been working to develop a theory of Hawaiian epistemology. Her clear goal is to establish that ethnic Hawaiians have a unique style of experiencing the world through a lens of cultural practices and family relationships; and that ethnic Hawaiians have a unique style of learning which makes it essential that they have a unique educational system which only they can properly design and implement. Professor Meyer seems to believe that Hawaiian ancestral wisdom is somehow passed genetically and spiritually from the ancestors to today's Hawaiians, as well as being passed through cultural upbringing and interaction with the ancestral lands. Hawaiian religious beliefs are an important part of her theories. Thus, Meyer's work is a rationale for Hawaiian sovereignty on in the school system as a beginning toward more general sovereignty at the political level.

The NAGPRA law, passed in 1990, is intended to force museums to give back to Indian tribes the bones and artifacts improperly taken from those tribes in bygone decades. Hawaiian sovereignty activists immediately embraced that law. The radical group Hui Malama i Na Kupuna O Hawai'i Nei has been aggressively (ab)using the law. It claims to speak on behalf of all ethnic Hawaiians as a group in cases where ancient bones are encountered during construction of buildings or roads. Hui Malama seeks to force Bishop Museum to give up to Hui Malama bones and artifacts which have more than one group of people claiming to be lineal descendants or cultural practitioners -- in many cases these bones and artifacts were donated to the museum by ali'i families for safekeeping even before the overthrow of the monarchy. Some of those families want the museum to keep the artifacts forever, to educate and inspire future generations of Hawaiians in an effort to perpetuate the culture. Hui Malama seeks to bury both the bones and the artifacts in deep dark caves on the theory that the rotting away of them will return their spiritual essence (mana) to mother earth for recycling. Clearly, NAGPRA is inappropriate for Hawai'i because the history here is different from the rest of the United States, and because ethnic Hawaiians lack the tribal group cohesion necessary to allow one group (especially a radical one like Hui Malama) to speak on behalf of everyone.

Indigenous groups throughout the world are asserting a right to control the way the resources from their ancestral lands are used for industrial, medicinal or cultural purposes in developed nations. Asserting aboriginal land title and indigenous intellectual property rights, they demand the right to stop or regulate harvesting of plants, animals, and cultural knowledge, and/or the right to be paid royalties for the use of such things. Advanced societies certainly have a moral obligation to recognize such rights.

In Hawai'i, a bill was introduced in the Legislature for the biennium of 2003-2004 on the subject of “bioprospecting.” The bill as originally written by ethnic Hawaiian activists; and introduced and supported by ethnic Hawaiian Legislators and others sympathetic to their demands for sovereignty, would have imposed a halt on the use of Hawai'i's public lands for the gathering of materials for biological research until such time as a study commission could write regulations governing how such research would be conducted and guaranteeing a flow of money to the Office of Hawaiian Affairs from the sale or leasing of patents. Environmental activists, and some Hawaiian sovereignty activists like Hui Malama, would probably have stretched the temporary moratorium on sale or lease of materials into a permanent ban, by the simple expedient of delaying and protesting any attempt to produce regulations. As originally written, the bill explicitly required a racial quota that two thirds of the commissioners must be ethnic Hawaiians. The bill was clearly a power grab by sovereignty activists. Hawai'i has no racially designated ethnic Hawaiian lands, except perhaps for the residential portions of the Hawaiian “homelands.” The bill was an attempt to establish racial control over all the public lands of Hawai'i, and/or to strengthen the negotiating position of the anticipated tribal council in case the Akaka bill passes. It was another attempt to use indigenous property rights, appropriate to other parts of the world, in Hawai'i where there are no indigenous people.

Hawaiian sovereignty activists leap at every opportunity to promote their separatist agenda, citing United Nations draft declarations, WIPCE statements, NAGPRA, bioprospecting for medicinal plants in the Amazon jungle, etc.

The activists cite a single phrase in the will of Princess Pauahi that says orphans and indigents who have native blood shall have a preference for admission to Kamehameha Schools over orphans and indigents who lack native blood, and intentionally misinterpret that phrase to demand that only ethnic Hawaiians can be admitted to Kamehameha (including the 85% who are neither orphans nor indigents).

The activists assembled thousands of marchers wearing red shirts to march through Waikiki and at the federal courthouse in November 2003 and subsequent occasions, in support of racially exclusionary government programs and racially exclusionary school admissions policy. They chose red shirts because of symbolic indigenous meanings. The red color obviously represents the blood (geneology) by which ethnic Hawaiians assert a family relationship among the gods, the islands, and all persons who share at least one drop of that Hawaiian blood. The red color being worn by thousands of marchers all moving side by side in the same direction is symbolic of the rare appearance of large schools of red ‘aweoweo fish which is a sign (ho'ailona) from the gods that a major change is about to happen (there actually was such an occurence widely reported just a week or two before the November protest march was scheduled).

The idea is to reinforce in their own minds, and to establish in the public's mind, an image of ethnic Hawaiians as an indigenous people separate and apart from mainstream society and therefore eligible for special protections and government group handouts. But today's ethnic Hawaiians are not an indigenous people; and even if they were, they need to consider the morality of using their children and their cultural patrimony of knowledge and artifacts as pawns in their political power games.

INDIGENOUS SEPARATISM VS. RAINBOW UNITY -- HOW THE AKAKA BILL FITS INTO THIS ANALYSIS

The foregoing discussion raises issues that can help clarify the choice we face for the future sovereignty of the people of Hawai'i. The Akaka bill being now under consideration in Congress places us at a crossroads. How do ethnic Hawaiians really want to see themselves, and how do all of Hawai'i's people want to envision our future? Are ethnic Hawaiians fundamentally an indigenous people who were temporarily forced to integrate with unwelcome outsiders but would now like to throw off the yoke of foreign domination and return to their rightful status as a separate indigenous people? Or did the arrival of newcomers offer changes that were eagerly embraced and incorporated into the heart, mind, and soul, so that ethnic Hawaiians now desire to continue their forward movement as fully integrated members of a multiethnic rainbow society?

One way of looking at ethnic Hawaiians is that they are an indigenous people who were only temporarily engulfed by newcomers. Their culture and language were suppressed, their national identity and land were stolen, their government was overthrown by evil foreigners aided by an armed invasion, and they live today under the control of a foreign government enforced through belligerent military occupation. But they retain substantial cohesiveness in their culture; they are working to revive their language and reassert control over their lands; they see themselves as an indigenous people all descended from a common ancestor who was a child of the gods; and they want to exercise their right of self-determination to re-establish a native Hawaiian nation. Since independent nationhood is extremely unlikely to be achieved in the foreseeable future, the best strategy for now is to pass the Akaka bill and get federal recognition as (the equivalent of) an Indian tribe. They could then have a racially exclusionary government, racially exclusionary schools, racially exclusionary government housing, healthcare, and handouts; and perhaps be able to enforce indigenous intellectual property rights with help from the "great white father" in Washington.

The other way of looking at ethnic Hawaiians is that their ancestors eagerly embraced the changes brought by newcomers, they are proud to be Americans, and they want to move forward with political unity in a multiethnic society, equality under the law, and aloha for all. They do not support setting up a race-based government. They understand the concept of the 1954 Supreme Court decision in Brown v. Board of Education, that separate is inherently unequal. They fear the loss of Constitutionally guaranteed rights when the government of an Akaka tribe, run by powerful insiders engaging in nepotism and corruption, has power to make its own laws and run its own police and court system, making its own rules for marriage, divorce, child custody, zoning, taxation, etc. They fear the plenary power Congress has over Indian tribes. They do not want to be treated as wards of the government, like children or mentally retarded adults. They point with pride to the Hawaiian cultural renaissance, the revival of Hawaiian language and traditional navigation, and the ten-fold growth of ethnic Hawaiian population from fewer than 40,000 in 1900 to more than 400,000 in 2000, all taking place under the sovereignty of the United States and protected by equal rights under the law. They are proud of their indigenous heritage, pleased with their current freedom and relative affluence, and look forward to a shining future unhindered by racial separatism or anger over historical injustices.

To be, or not to be (indigenous), that is the question. Whether 'tis nobler to claim indigenous status and assert special rights of racial separatism under the wardship of the government's plenary powers, or instead to claim equal status with all other Americans, being judged by the content of their individual character and achievement and not by the color of their skin or geneology -- that is the question for today's ethnic Hawaiians.

But the question is not to be decided by ethnic Hawaiians alone. It is a question for all Hawai'i's people to decide collectively. While it would be wrong for Hawai'i to push ethnic Hawaiians to the side and force them to become a racially separate Akaka tribe, it would be equally wrong for ethnic Hawaiians to insist on carving up Hawai'i along racial lines against the wishes of most of the people. The very theory of the Akaka bill, that would treat ethnic Hawaiians as an indigenous people under the guardianship of the government, recognizes that indigenous people fall under the government's plenary power. In the end a group seeking status as an indigenous people puts itself under the authority of the government that engulfs it, and can have indigenous status only if that government chooses to grant it. That's why the decision belongs to us all. For ethnic Hawaiians to be or not to be (an indigenous tribe): that is a question for all Hawai'i's people, and all of America, to decide.

REFERENCES

The topics mentioned in this essay are numerous, and each one is complex. No list of references could be adequate. But here are a few internet references providing pathways for additional reading on some of these topics.

----- United Nations Draft Declaration, definition of “indigenous”, Coolongatta Statement on indigenous education -----

(1) United Nations Draft Declaration on the Rights of Indigenous Peoples, adopted by the General Assembly in 2007
http://www.un.org/esa/socdev/unpfii/en/declaration.html

(2) An Analysis of the United Nations Draft Declaration on the Rights of Indigenous Peoples, including a discussion of attempts to define “indigenous peoples”
http://www.atsic.gov.au/issues/indigenous_rights/international/draft_declaration/draft_dec_five_d.asp

(3) The Coolangatta Statement On Indigenous Peoples' Rights in Education, produced in Coolangatta Australia and reaffirmed in the World Indigenous Peoples' Conference on Education, Hilo, Hawai'i, August 6, 1999
http://www.tebtebba.org/tebtebba_files/susdev/ik/coolangatta.html

----- General discussions of indigenous intellectual property rights, including special focus on Maori, Amazon Basin, and South Africa -----

(4) Eldis Intellectual Property Rights Resource Guide
http://www.eldis.org/ipr/

(5) Intellectual Property Rights and Indigenous Peoples Rights and Obligations. [focus Aotearoa / New Zealand] “The paper will examine from a Maori perspective their notions of indigenous peoples rights and obligations and how they are fundamentally at odds with existing intellectual property right systems. The paper will also explore how some of the Maori claimants consider their rights should be acknowledged, respected and protected and the inevitable obstacles that must be confronted and overcome before this can happen. Finally, the paper will consider the implications of Article 8(j) of the Convention on Biological Diversity and related provisions, and how they impact on the struggle by the Maori to have their rights and obligations recognised and protected within Aotearoa/New Zealand.”
http://www.inmotionmagazine.com/ra01/ms2.html

(6) World Intellectual Property Organization (WIPO) roundtable discussion of indigenous intellectual property rights, focusing on the Amazon basin.
http://www.wipo.int/documents/en/meetings/1998/indip/rt98_4e.htm

(7) World Intellectual Property Organization (WIPO) roundtable discussion of indigenous intellectual property rights, focusing on South Africa
http://www.wipo.int/documents/en/meetings/1998/indip/rt98_4c.htm

----- Articles and comments by Hawaiian sovereignty activists regarding the claim that a movie about Kamehameha the Great is an indigenous intellectual property belonging to ethnic Hawaiians -----

(8) Lilikala Kame'eleihiwa, Professor and Chair of the Center for Hawaiian Studies at the University of Hawai'i, said the following: "The story of Kamehameha should wait for a culturally knowledgeable Hawaiian to write the screen play, for a Hawaiian movie company to make the film, and for a Hawaiian descendant of Kamehameha to play the role," continued Kame'eleihiwa ... "you don't believe Hawaiians should have the final say over the telling of our history. You think you have the right to make money off of us, off of our culture and those things we hold sacred. You do not have this right. The saga of Kamehameha is Hawaiian intellectual property, guaranteed by the United Nations, and if you have any respect for Hawaiians you will stop your project now." The Honolulu Star-Bulletin, July 4, 2002
http://starbulletin.com/2002/07/04/features/story4.html

(9) Haolewood: The Last Epidemic The Honolulu Weekly, July 10, 2002 Sarcastic parody of a screenplay for the Kamehameha movie, by Anne Keala Kelly, with comments by Haunani-Kay Trask, Lilikala Kame‘eleihiwa, Ku‘ualoha Hoomanawanui, Paul Kealoha Blake, Jon Osorio, Noenoe Silva, Skippy Ioane.
http://www.honoluluweekly.com/archives/coverstory%202001/07-10-02%20Rock/07-10-02%20Rock.html

----- Essays by Ken Conklin focusing on Hawai'i -----

(10) Are kanaka maoli indigenous to Hawai'i? Would the status of being indigenous give them special rights?
http://www.angelfire.com/hi2/hawaiiansovereignty/indigenous.html

(11) NAGPRA (Native American Graves Protection and Repatriation Act) as applied to Hawai'i -- Mokapu, Honokahua, Bishop Museum Ka'ai; Providence Museum Spear Rest; Forbes Cave Artifacts; the Hui Malama organization
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii.html

(12) How ancient Hawaiian religious beliefs are used to assert a right to racial supremacy of political power and land use in Hawai'i
http://www.angelfire.com/hi2/hawaiiansovereignty/religion.html

(13) 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

(14) Hawai'i 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)
http://www.angelfire.com/hi2/hawaiiansovereignty/bioprospecting.html

(15) Redshirt pro apartheid march of November 2003 and followup marches (protesting lawsuits against racially exclusionary policies at Kamehameha Schools and OHA/DHHL)
http://www.angelfire.com/hi2/hawaiiansovereignty/redshirtnov2003.html

(16) Public Education for Ethnic Nation-Building in Hawai'i (including the language immersion schools and the “host culture” charter schools)
http://www.angelfire.com/hi2/hawaiiansovereignty/edforhawnethnicnationbuilding.html

(17) Hawaiian epistemology -- a theory of how ethnic Hawaiians create knowledge in unique ways based on their indigenous status. The work of Manulani Aluli Meyer stakes a claim to a Hawaiian indigenous right to have a separate educational system controlled by a race-based political power structure.
http://www.angelfire.com/hi2/hawaiiansovereignty/religcultproprts.html

(18) Ethnic Hawaiians and Non-Hawaiians Rank Priorities Similarly -- Education, Health, Housing, Environment Are Far More Important Than Native Hawaiian Rights, Racial Entitlements, and Ethnic Hawaiian Nationhood
http://www.angelfire.com/hi2/hawaiiansovereignty/prioritieshawnonhaw.html

(19) Haole Collective Guilt for Hawaiian Grievances and Pain -- A book review of “Then There Were None” by Martha H. Noyes (based on Elizabeth Lindsey Buyers TV docudrama)
http://www.angelfire.com/hi2/hawaiiansovereignty/lindseynoyesthennone.html

(20) "Native Hawaiians as the State Pet or Mascot: A Psychological Analysis of Why Hawai'i's People Tolerate and Irrationally Support Racial Separatism and Ethnic Nationalism
http://www.angelfire.com/hi2/hawaiiansovereignty/hawnsasmascots.html

(21) Ethnic Hawaiians are Hawai'i's Favorite Race
http://www.angelfire.com/hi2/hawaiiansovereignty/punahelerace.html

(22) Why All America Should Oppose S.344 and H.R.4282 (formerly H.R.665), the Hawaiian Recognition Bill
http://www.angelfire.com/hi2/hawaiiansovereignty/AkakaNationalSummary2004.html

(23) Fiji and Hawai'i Compared -- Racial Supremacy By Law in Fiji Resembles What Hawaiian Sovereignty Activists Are Seeking (both Akaka bill and independence proposals)
http://www.angelfire.com/hi2/hawaiiansovereignty/fiji.html

(24) One example of a claim to collective racial ownership of a concept is "Polynesian" voyaging. Hokule'a was created in 1975 primarily for the purpose of reasserting ethnic pride. But the project was conceived and headed by a haole; and numerous haoles also participated in designing the canoe, constructing it, and serving as crew mwmbers. The result was ethnic Hawaiian prejudice and racial hate-crimes against the haoles, to the extent that the head of the Polynesian Voyaging Society (a haole) resigned, along with the master Micronesian navigator who had trained a Hawaiian navigator. Several Hawaiian crew members endangered the entire crew by refusing to perform their assigned responsibilities on the open ocean. The second voyage was racially exclusionary, with none of the original leaders or crew being asked for advice or participation; the canoe capsized and a life was lost. Clearly, the ethnic Hawaiians felt then, as they feel now thirty years later, that ethnic Hawaiians must be the leaders of the organization, the captain and the steersman, and a majority of the crew. After all, it would be hard to claim that Polynesian voyaging is truly Polynesian unless Polynesians are in charge. One might say it's a matter of enforcing informal indigenous copyright over the concept of “Polynesian voyaging.” Furthermore, there's the issue of authenticity of design, materials, and ceremony. In what sense can a canoe made of modern materials be called "Polynesian"? And how can modern people "remember" ancient ceremonies or designs which have been forgotten for centuries? The claim to authenticity is based a belief in a collective racial memory of a deep culture which is carried in the genes even when someone has only “one drop” of native blood. For details, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/polynesianvoyaging.html

(25) http://pidp.eastwestcenter.org/pireport/2011/January/01-10-15.htm
PACIFIC ISLANDS REPORT, January 10, 2011
ACADEMIC CONCERNED ABOUT INTELLECTUAL PROPERTY THEFT
Creative property of Islanders threatened

By Nandni Vandhana, Kalesi Mele and Leni Dalavera
** excerpts by Ken Conklin

AUCKLAND, New Zealand (Pacific Media Center, Jan. 8, 2011) – In Fiji, a University of the South Pacific (USP) academic has expressed concern about what he says is the continuing "misappropriation" of Pacific Islands’ creative properties.
Senior lecturer in Education Teweiariki Teaero says others are stealing and copyrighting Pacific Island intellectual property.
He gave an example of mat weaving patterns belonging to a Kiribati family that were allegedly claimed by an artist from New Zealand.
This artist modified the images and called it her own, claimed Teaero.
The patterns, he said, originally belonged to the family of Katimiri and Aroita of Nikunau Island in Kiribati. They can no longer use it due to copyright.
Works originating from the Pacific have been commercialized, with little credit given to the rightful indigenous creators, Teaero says.
The idea of the tamana pump, which was created by a Kiribati native, has been commercialized by a U.S. company in Chicago. The invention earns the company between US$2.5 million to US$5 million in revenue annually, Teaero reveals.
His thesis, entitled "Kamanoan Katei Ma Anua", advocates legal protection of traditional knowledge and the cultural expression of the people of Kiribati.
The World Intellectual Protection Organization (WIPO) supports his work. WIPO
http://www.wipo.int/about-wipo/en/what_is_wipo.html
is a specialized agency of the United Nations (UN) dedicated to the development of balanced and accessible intellectual property.
Teaero believes indigenous knowledge systems need to be captured in all media forms before they are lost or forgotten. He believes current Kiribati laws are inadequate when it comes to the protection of cultural forms of expression.
Working as a consultant for WIPO and the Pacific Islands Forum Secretariat (PIFS),
http://www.forumsec.org.fj/pages.cfm/about-us/
Teaero hopes his research will help pass a policy for the protection of traditional knowledge and cultural forms of expression.
... progress on the implementation of the Traditional Knowledge Action Plan in the Cook Islands, Fiji, Kiribati, Palau, Papua New Guinea, Solomon Islands and Vanuatu was discussed at a regional seminar in August this year.


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