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Hawaii Bioprospecting -- Hearings by the Temporary Advisory Committee on Bioprospecting (late 2007), and testimony by Ken Conklin


The State of Hawaii Legislature passed a resolution calling for the establishment of a "Temporary Advisory Committee on Bioprospecting" whose purpose is to find out what concerns and advice the people of Hawaii have concerning bioprospecting, and to formulate recommendations for future laws to be enacted by the Legislature.

The committee held a series of community forums on several islands in late 2007. The committee chose not to hear formal testimony, but rather to have informal discussions, with a "facilitator" taking notes by writing main points on large papers mounted on the wall and visible to all participants. The multiple pages of written notes helped people feel confident their views were being heard, and the notes would then presumably be used later by the committee when formulating its recommendations. In addition there were microphones on the table where the commissioners sat, making a recording. In addition there was a staffer from the Office of Hawaiian affairs using a laptop computer and typing very rapidly to capture the gist of what was being said by both commissioners and the public.

Below are the following:

1. Press release announcing the community forums.

2. Newspaper articles from West Hawaii Today and the Molokai Times explaining what bioprospecting is and why the forums are being held.

3. WRITTEN NOTES (TESTIMONY) PREPARED BY KEN CONKLIN TO EXPLAIN HIS MAIN POINTS, AND HANDED TO THE FACILITATOR TO MAKE SURE THESE POINTS DID NOT GET LOST OR FORGOTTEN.

4. THE ACTUAL PROCESS OF THE COMMISSION'S PUBLIC FORUM ON NOVEMBER 27, 2007 AT WINDWARD COMMUNITY COLLEGE CONFIRMS TESTIMONY ITEM #8, THAT THIS COMMISSION IS FUNCTIONING AS AN AGENT FOR ESTABLISHING HAWAIIAN SOVEREIGNTY THROUGH RACE-BASED CONTROL OF PUBLIC AND PRIVATE LAND

5. THE OPENING CHANT/PRAYER "NA 'AUMKUA" IS A SPECIFICALLY RACIAL CHANT CALLING UPON THE (ETHNIC HAWAIIAN) ANCESTORS FOR SUPPORT AND GUIDANCE. TEXT OF THE CHANT, IN HAWAIIAN AND WITH ENGLISH TRANSLATION

6. LENGTHY PORTIONS OF MY 2002 TESTIMONY REGARDING THE ESTABLISHMENT OF THE NORTHWEST HAWAIIAN ISLANDS MARINE SANCTUARY, WHERE MANY ARGUMENTS OPPOSING RACIST PREFERENCES AND RESTRICTIONS ARE THE SAME AS REGARDING BIOPROSPECTING

7. Full text of the Legislature's resolution describing the purpose and composition of the committee (the committee's purpose and composition are controversial issues addressed in Ken Conklin's testimony).

8. LINKS TO WEBPAGES DISCUSSING SOME OF THE ISSUES IN GREATER DEPTH, INCLUDING "INDIGENOUS INTELLECTUAL PROPERTY RIGHTS"

9. Followup news reports and commentaries

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1. Press release announcing the community forums.

Statewide Community Meetings to be Held on Bioprospecting Press Release

(Honolulu)- The State of Hawai‘i Temporary Advisory Commission on Bioprospecting will be holding a series of statewide community meetings beginning next week to obtain public comment related to preserving Hawai‘i’s traditional natural and environmental resources in the face of scientific and modern research.

The first meeting is scheduled for 6:00 p.m. on Tuesday, Aug. 28 at Maui Community College, Kalama Building 103.

The meetings are intended to aid the commission in making recommendations for developing policy relating to the emerging field of bioprospecting – tentatively defined by the commission as the collection of samples from plants, animals, and micro-organisms to search for commercially-valuable biochemical or genetic resources.

A recent increase in scientific research and commercial enterprise has led to an increase in bioprospecting, a field comprised of new enterprise dependent on the use of Hawaii’s natural resources.

The state Legislature in 2006 adopted House Concurrent Resolution 193 that led to the formation of the commission, which is charged with making recommendations to state lawmakers on policies related to:

Informed consent for participation in bioprospecting projects
Distribution of revenues derived from bioprospecting enterprise
Establishment of bio-safety regulations
Establishment of licensing and permitting processes
Protection of cultural rights in accessing natural resources

"Hawai‘i’s future depends on a balance between the development and conservation of fragile biological resources. The protocols for protecting Hawai'i's resources from degradation must include preservation of indigenous and traditional knowledge and technologies," said OHA Trustee Walter Heen, chairman of the commission. "Hawai'i's biodiversity must be firmly grounded in both types of endeavor in order to ensure equitable benefit-sharing for everyone and sustainability of our natural resources."

Other members of the commission are:

Jim Gaines, University of Hawai‘i vice president for research.
Elizabeth Corbin of the state Department of Business, Economic Development and Tourism.
Betsy Gagne of the state Department of Land and Natural Resources.
OHA Trustee Oswald Stender
Vicky Holt Takamine, kumu hula, UH lecturer and president of 'Ilio'ulaokalani.
Wayne Kaho'onei Panoke, project manager, Community Planning and Engineering, Inc. and Environment; member, Association of Hawaiian Civic Clubs and executive director of ‘Ilio‘ulaokalani.
Keiki Pua Dancell, executive vice president, Hawaii Chitopure.
Dr. Lawrence Burgess, professor of surgery UH Medical School.
David Watumull, president and CEO of Cardax Pharmaceuticals.
Lisa Gibson, president, The Hawaii Science and Technology Council.

Meetings will also be held on Sept. 18 in Hilo; Sept. 19 in Kona; Oct. 9 on Kaua‘i; Oct. 30 on Moloka'i; Nov. 20 in Leeward Oahu and Nov. 27 in Windward Oahu.

For more information contact Project Manager Yuko Chiba in the Office of Hawaiian Affairs at (808) 594-1820.


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2. Newspaper articles from West Hawaii Today and the Molokai Times explaining what bioprospecting is and why the forums are being held.

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http://www.westhawaiitoday.com/articles/2007/09/16/local/local01.txt
West Hawaii Today (Kona), September 16, 2007

Commission seeks public input on bioprospecting

by Nancy Cook Lauer
Stephens Media Capitol Bureau
nclauer@stephensmed ia.com

Sunday, September 16, 2007

HONOLULU -- From the limu on the ocean floor to the wormwood and silverswords in the alpine zones of the Big Island, Hawaii has some of the richest biodiversity in the world.

Plants once used by the kahuna laau lapaau, or Native Hawaiian herbalists, are slowly making their way into modern medicine, leaving some concerned that companies may create commercial applications of cultural knowledge without sharing the proceeds with -- or even acknowledging the contributions of -- those who hold the aina sacred.

The state Legislature has created a commission to look into what is known as "bioprospecting," the collection of genetic information from samples of plants, animals and microorganisms to search for commercially valuable biochemical or genetic resources.

The commission meets Tuesday in Hilo and Wednesday in Kona to solicit public input on issues such as informed consent for participating in bioprospecting, distributing revenues derived from bioprospecting ventures, protecting cultural rights and the environment, establishing safety regulations and creating a permitting process.

"What do you do with traditional knowledge, the indigenous knowledge and the rights of the indigenous people?" asked Commission Chairman Walter Heen, a trustee for the Office of Hawaiian Affairs. "Who is going to speak for the Native Hawaiian community?"

His concerns are shared by fellow commission member David Watumull, president and CEO of Cardax Pharmaceuticals in Aiea, a company developing anti-inflammatory drugs that one day may be used to treat heart attacks, hepatitis, cancer and macular degeneration. Patented derivatives include Astaxanthin, an agent commercially produced from micro algae at the Natural Energy Laboratory of Hawaii Authority on the Kona coast.

It's to everyone's benefit if there are clear rules, a permitting process and some sharing of benefits by the landowner, the state and the indigenous population, Watumull said.

"The pharmaceutical companies want to ensure they don't have a lawsuit down the road," Watumull said. "Between the time you cut the leaf or the stalk and have a product, you're talking 15 years and a couple hundred million, if not a billion, dollars."

Watumull would like a permitting process where all stakeholders are involved in establishing informed consent and a formula for sharing benefits without it being so onerous that Hawaii loses the biotech firms that create high-paying jobs and contribute to the state economy.

Michael Lee, an Ewa Beach Hawaiian studies teacher who's working to protect seaweeds from runoff pollution caused by developments, says he's copyrighted traditional lore about more than 50 varieties of seaweed in the hope of forestalling undue commercial use. He said some limu block UV radiation and some fight cancer and AIDS.

The Ewa Beach Limu Club has been teaching classes on the seaweeds for more than 10 years. It's estimated that some 300 of the 600 types of limu in the area have medicinal uses.

"Bioprospecting, if it's done correctly, benefits everybody," Lee said. "The problem is, some Hawaiians don't want anything done -- they just want it all locked up. That opinion is not gong to fly. There's so many benefits if they just get ahead of the curve, not behind it complaining. "

But Native Hawaiians have legitimate concerns, especially when it comes to commercial ventures that may put the state's biodiversity at risk. Mililani B. Trask of the Waikiki Hawaiian Civic Club said the state needs tougher laws to protect natural and cultural resources from biotech companies.

"Corporations, scientists, researchers and the U.S. military have all cast a covetous eye on Hawaii's land-based and marine life forms with the intent of obtaining specimens for research, development and commercialization and for military applications, " Trask said in a statement submitted to the Legislature. "Hawaii's lack of sophistication, capacity and law relating to biotech has led to our reputation as being a place where the biotech industry can do what it pleases."

Commission members say misunderstandings about what bioprospecting is causes much of the problem. Bioprospecting isn't about harvesting wild plants in quantity, but about taking small samples for study in a laboratory. And even though genetic information is taken, it's not related to GMO, or genetically modified agriculture, Watumull said.

"The controversy comes from the confusion," he said.

Lee agrees.

"The medicines that could heal millions might be right here," Lee said. "It's going to help their families. It's going to help the world."

For more information, contact Project Manager Yuko Chiba at the Office of Hawaiian Affairs, (808) 594-1820.

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http://www.molokaitimes.com/articles/71030221156.asp
The Molokai Times, October 30, 2007

Bioprospecting commission hears concerns, commentary

by Kate Bradshaw

An Office of Hawaiian Affairs commission met with a small group of Molokai residents at Kulana Oiwi Tuesday night to talk about bioprospecting.

The Temporary Advisory Commission on Bioprospecting, convened by the state legislature, sought to hear community concerns on the somewhat obscure concept.

The commission currently defines it as "the collection of samples from plants, animals, and microorganisms to search for commercially viable biochemical or genetic resources."

There are currently no rules for bioprospecting. Commission chair Walter Heen said that pharmaceutical companies would benefit most from the practice, which the board said would often involve applying cultural knowledge in the exploration of Hawaii's natural resources.

Many audience members were skeptical. Molokai resident Walter Ritte told the commission that the word "prospecting" invoked for him an image of people panning for gold, but in this case living things are the gold.

Many people wondered how the practice would impact Hawaiian culture.

While some said they wanted to see bioprospecting outlawed, others said the practice should stay legal as long as it was thoroughly regulated.

Audience members also recommended that the commission do a better job spreading the word about their meetings on bioprospecting, as fewer than twenty people had shown up to last night's meeting.

The public can send comments on bioprospecting to OHA by mail, or they can email commission chair walterh@oha.org.


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3. WRITTEN NOTES (TESTIMONY) PREPARED BY KEN CONKLIN TO EXPLAIN HIS MAIN POINTS, AND HANDED TO THE FACILITATOR TO MAKE SURE THESE POINTS DID NOT GET LOST OR FORGOTTEN.

Temporary Advisory Committee on Bioprospecting
Community forum on bioprospecting
Windward Community College
Tuesday November 27, 2007

8 Main points presented by Kenneth R. Conklin, Ph.D.;
Ken_Conklin@yahoo.com
Note: This testimony plus related materials can be found at
http://tinyurl.com/yud9gw

Aloha kakou e na po'e komike, a me na po'e ho'olohe ana mai

I am Ken Conklin, an indigenous person of this Earth and resident of the Ahupua'a of He'eia, O'ahu for more than 15 years. Here is a list of the main topics I'd like to discuss with you this evening, as time permits; in order from general to specific.

1. He 'olelo no'eau: "He ali'i ka 'aina, he kauwa ke kanaka." Land is the ali'i; people are its humble servants.

Our islands have been here millions of years; human beings less than 2,000 years. There is a divine presence in these lands, before which we all must be equal in humility and service. It is morally wrong for any ethnic group to claim ownership of the land or inherent supremacy of land management authority; in the same way as it would be morally wrong for one servant to demand authority over all other servants and to assert control of his master or the master's house.

2. The public lands of Hawaii, including the ceded lands, belong to all the people of Hawaii without racial distinction.

During the Kingdom, following the Mahele, the government lands were held by the government on behalf of all the people, just as now. The Crown lands also became government property by act of the Kingdom Legislature, signed by the King, to issue government bonds to pay a mortgage lien the King had incurred to pay the King's personal (gambling) debts; income from the Crown Lands was set aside to maintain the office of head of government in his official capacity but not as his private property. Thus, when the monarchy ended, the Crown lands and government lands were indistinguishable, all held by government to benefit all the people without regard to race -- both then and now.

3. The Statehood Act of 1959 does not require setting aside any ceded land income specifically for any racial group.

The Statehood Act says the ceded lands are held as a public trust with revenues to be used "for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide" one of which purposes is "for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920" [i.e., 50% or greater native blood quantum]. For the first 20 years of statehood, virtually 100% of ceded land revenue was used for the public school system, where 26% of the children had some degree of native blood. Thus the "betterment of native Hawaiians" was facilitated by a race-neutral distribution of revenues which had the effect of providing 26% of revenues to what would today be called the "OHA beneficiaries" rather than merely the 20% allocated to OHA through illegal racial earmarking today. The 20% allocation is not required by the Statehood Act; indeed, the Statehood Act would explicitly permit zero allocation for the race-specific "betterment of Native Hawaiians." Rather, the 20% allocation results from an ordinary statute passed by the Legislature 20 years after Statehood to provide a dedicated stream of revenue for the newly created OHA following the Constitutional Convention of 1978. It is completely within the power of the Legislature to reduce or eliminate the 20% racial allocation at any time. It was probably unconstitutional for the Statehood Act to (apparently) authorize the State of Hawaii to create any racial set-aside -- a topic litigated but not resolved in the Arakaki#2 case dismissed on unrelated technical issues of taxpayer "standing."

4. Bioprospecting should not be confused with genetic engineering.

It is merely the careful harvesting of a very small sample of plant or animal life, followed by laboratory tests to determine the sample's chemical composition and to perform research to discover whether the active ingredients might be useful for pharmaceutical or industrial purposes. Bioprospecting does nothing harmful to the land, nor to the species, nor to any culture. Bioprospecting has the same effect on land, species, and culture as merely taking a close look and a sample of negligible size; like dipping a spoonful of water from a pond or snipping a single leaf from a large tree.

5. The main controversy regarding bioprospecting seems to be how to ensure that the fruits of research are not "stolen" by scientists or corporations but are shared with the landowners.

If large quantities of biota are taken from someone's land for industrial use in producing and marketing profitable drugs, then of course the landowner has a right to one-time payment for what was taken and perhaps to share in ongoing royalties through leasing or licensing agreements. But that is not bioprospecting; it is industrial production. If a small sample is taken, and research later produces significant discoveries which can be used commercially, it is still the landowner who has a right to one-time payment or ongoing royalties. If the landowner is a private individual or corporation then such money is privately owned. If the landowner is the State of Hawaii then the money should go to the general fund. If the specific state land is ceded lands then the revenue should still go to the general fund, from which the 20% required by statute will be distributed to OHA. If a landowner, whether private or public, places exorbitant demands for compensation, or restrictions on how gathered material can be used, then anyone wanting to do either bioprospecting or commercial production will probably go to nearby land where the same biota can be obtained from a more congenial owner.

6. The State of Hawaii might consider passing laws to regulate the collection of bioprospecting samples and/or the payment for access to samples, and/or for the fruits of research deriving from the samples. Implications of the PASH decision and implications of eminent domain partial "taking" of land by means of regulations restricting land use.

The state Supreme Court has already held in PASH that landowners under certain circumstances do not have the right to enforce laws against trespassing for access, as well as laws against trespassing for collection of biota for food or cultural purposes. It is unclear whether the PASH decision guarantees limited trespass rights only to ethnic Hawaiians, or to all tenants living on the land. It is unclear whether the PASH decision applies only to specific species of biota named in the Mahele, or whether it applies more broadly to species used for sustenance and/or cultural purposes of today. In any case, there are at least two issues that will be litigated if the State of Hawaii tries to regulate the bioprospecting activity and revenue distribution: (1) Does the PASH decision imply that individuals (particularly Hawaii residents) have (always had and continue to have) a right to engage in bioprospecting at least on public lands, and perhaps also on private lands, unfettered by restrictions not related to health or safety? and (2) Would the enactment of new laws or regulations not already implied by the penumbra of the PASH decision be, in effect, a partial eminent domain "taking" of private property therefore requiring compensation to the landowner? Perhaps the best legal analogy would be litigation related to the infringement on private property rights caused by the enactment of the Endangered Species Act and the numerous regulatory restrictions and requirements imposed on landowners as a result of that ESA.

7. The concept of "indigenous intellectual property rights" has been raised in connection with bioprospecting; most notably by Hawaiian sovereignty activists through the group 'Ilio'ulaokalani. However appropriate that concept might be for primitive tribes, it has no applicability in Hawaii.

Intellectual property rights pertain to copyright, patent, and trademark of products produced through mental activity or through changes made by humans to things; intellectual property rights pertain to the products of human thought and action, not to the naturally-occurring animals, plants, and minerals themselves.

A plant belongs to the landowner or leaseholder where it is planted. A drug created from that plant belongs to the company that produces it, with perhaps royalties owed to the landowner. Artistic depictions of ceremonies using the plant belong to the artist who created them, with perhaps royalties to the individuals whose faces are shown in the depictions. The ceremonies themselves are ephemeral performances shared by performers and audiences, but ownership of intellectual property rights pertains only to recordings of performances or to scripts or specific choreographies. Nobody can own the hula as a genre. Nobody can own the 'ike pose. An artist can own the particular photograph of a particular dancer performing an 'ike pose, and the artist also owns reproductions of that photograph. The dancer might own the individual gardenia flower in her hair. But neither the dancer nor the artist owns the gardenia species, nor the right to wear gardenias in general, nor the right to use the gardenia in the 'ike pose.

On general principles it is inconceivable that intellectual property rights pertain to the general activity of bioprospecting, although researchers might be able to patent specific technologies used to do bioprospecting or specific products resulting from it.

The concept of indigenous intellectual property rights should be taken seriously in regard to a small, cohesive, primitive tribe living a subsistence lifestyle separate and apart from surrounding civilizations and lacking the knowledge of civilization sufficient to assert its rights. If such a tribe has used an endemic plant to create a unique medicine, the tribe should be considered to possess an unregistered patent which civilized societies are morally obligated to respect as though it has been formally registered. However, in Hawaii there is no small, cohesive tribe living a subsistence lifestyle separate from the surrounding civilization; and therefore the concept of "indigenous intellectual property rights" is not applicable here. See:
"Indigenous Intellectual Property Rights -- The General Theory, and Why It Does Not Apply in Hawaii" at
http://tinyurl.com/2b77k

There are specific medicinal uses of plants grown locally, including endemic species (not found anywhere else). Some of those medicinal uses were discovered by pre-contact native Hawaiians; although other natives of other places may also have independently developed the same uses. Some ancient uses have been handed down to today's living descendants and the knowledge has been spread to newcomers.

If a modern medicine can be derived from plants harvested both inside Hawaii and elsewhere; and/or if cultural uses in Hawaii are similar to cultural uses outside Hawaii, then clearly those medicines or cultural uses are general knowledge in the public domain and not subject to intellectual property rights. If endemic plants were used anciently in cultural ways unique to Hawaii and if those cultural uses by living people continue to be unique to Hawaii then Hawaii as a whole might have a claim for intellectual property rights (but not race-specific). If those cultural uses are closely held within a racially exclusionary group, then perhaps that group might claim a corporate racially exclusionary intellectual property right when the product is made available commercially (such as by using a trademark restricted to a group of licensed members). However, the further claim that the racially exclusionary group has an "indigenous" intellectual property right morally binding on the larger society even though not formally registered -- that claim is not acceptable in Hawaii due to the fact that the self-described "indigenous" people are fully assimilated and have members knowledgeable about well-established procedures for copyright, patent, and trademark.

8. This committee is racially and ideologically "stacked" and has a conflict of interest because of how its members were specifically designated and where the committee is housed.

The enabling legislation HCR 193 of the 2006 Legislature establishes a committee of 11 members. 5 of the 11 -- 45% -- are explicitly required to be "of the native Hawaiian community" even though only 20% of Hawaii's people are of that race. In addition 1 member is required to be the chairperson of OHA (an ethnic Hawaiian) or the chairperson's designee (unimaginable such designee would fail to be ethnically Hawaiian), thus guaranteeing that a 20% racial minority will have a majority vote on the committee. The "Five members of the native Hawaiian community" demanded by HCR 193 are presumably to be allocated among the five categories of "demonstrated background" immediately following that phrase. However, there is no logical or necessary relationship between the 5 categories of "demonstrated background" and the requirement for Hawaiian native blood. For example, many people with no native blood could qualify as knowledgeable about "Native Hawaiian cultural rights as contained in the Hawaii State Constitution and statutes" or "Traditional and customary use of biological and genetic resources" etc. Thus the racial requirement is both irrelevant and demeaning to people of other races, inferring that the blood is somehow necessary to have the specified kinds of knowledge or the emotional/spiritual concern for malama 'aina (taking care of the environment).

HCR 193 also requires that the "Temporary Advisory Commission on Bioprospecting" must be administratively housed inside OHA. The combination of forcing the committee to have a racial majority of ethnic Hawaiians and placing the committee under the auspices of OHA sets up a very clear conflict of interest that threatens the rights of the State's non-ethnic Hawaiians. The threat arises because of OHA's intense and prolonged effort to pass the Akaka bill, and assertions by OHA leadership that OHA and/or ethnic Hawaiians are entitled to ownership of the ceded lands. If the Akaka bill passes there will be negotiations between the Native Hawaiian Governing Entity vs. the State of Hawaii to divide up the lands of Hawaii along racial lines and to establish race-based jurisdictional rights. Thus it appears a main purpose of the bioprospecting commission is to serve as a trojan horse to demand that the Legislature already establish ethnic Hawaiian jurisdiction over the land and the uses of its biota even before the negotiations envisioned by the Akaka bill have had a chance to begin. In some activities attorneys, judges, corporate leaders, and politicians are advised that there must not be any actual conflict of interest, nor even the appearance of one. In the case of this committee, the conflict is very real, and as blatant as a slap in the face to the 80% of our people who lack a drop of the magic blood.


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4. THE ACTUAL PROCESS OF THE COMMISSION'S PUBLIC FORUM ON NOVEMBER 27, 2007 AT WINDWARD COMMUNITY COLLEGE CONFIRMS TESTIMONY ITEM #8, THAT THIS COMMISSION IS FUNCTIONING AS AN AGENT FOR ESTABLISHING HAWAIIAN SOVEREIGNTY THROUGH RACE-BASED CONTROL OF PUBLIC AND PRIVATE LAND

On November 27, 2007 I, Ken Conklin, attended the meeting of the bioprospecting commission at Windward Community College, and delivered my written testimony to the facilitator, Jobie Yamaguchi. Below are my observations about the "process" of that event.

The way the event was conducted is very important, because it confirms that this commission's "public" hearings are operating in exactly the same was as Hawaiian sovereignty rallies have always operated, including opening and closing prayers. This public forum also included something that was newly started four years ago but is done only at "mainstream" or "establishment" events sponsored by OHA and other large institutions -- solicitation for people to sign up for the racial registry "Kau Inoa" at the same table where attendees are asked to register for the public meeting.

On this occasion the meeting registration table was staffed by Ernest Heen, brother of the OHA Trustee Walter Heen who was chairing the meeting. Each time someone signed the registration form, Ernest Heen asked "Would you like to register for Kau Inoa, or have some information about it?" In my case (he did not know me previously) I thanked him and politely declined, but I did take a Kau Inoa bumper sticker, a Kau Inoa plastic ruler, and a Kau Inoa application form. I felt considerable anger at this process, but restrained myself from showing it. This is an official public meeting sponsored by a commission authorized by the State of Hawaii to hear public opinion about a topic affecting all Hawaii's people, where people of all races are able to attend and should all be treated as equals. Yet in the process of registering for the event people with no native blood are asked whether they would like to sign up for a racial registry whose purpose is to establish a racially exclusionary government which will then work to grab as much land, money, and jurisdictional authority as it can rip off from the rest of Hawaii's people who lack a drop of the magic blood. And in order to sign up for Kau Inoa it is required to prove native genealogy (there are intense racial questions right on the application form, demanding proof of race). Asking those of us without native blood to sign up for Kau Inoa is two slaps in the face at once: it asks everyone to do something the asker and his henchmen know full well that 80% of Hawaii's people are forbidden from doing; and it forcefully reminds us that this hateful process of dividing Hawaii's people by race is happening right in front of us. It's like holding up a knife and saying "Come take this knife and stab yourself, and by the way, we're handing out more knives to other people right here in this room who will use them to stab you sometime later."

In addition to the brothers, OHA trustee Walter Heen and Ernest Heen, their sister Marion was working as an assistant to facilitator Jobie Yamaguchi. Marion said she previously worked for OHA (and perhaps is still working for OHA; think nepotism). Jobie Yamaguchi has a long history of working for racially exclusionary institutions, and was a panelist representing the Department of Hawaiian Homelands on a panel debate about the Akaka bill at a Republican Party platform committee hearing attended by gubernatorial candidate Linda Lingle in 2002. [Also present at the 2002 platform hearing was Micah A. Kane, who became chairman of the Republican Party and then in 2003 was appointed to become chairman of the racially exclusionary DHHL]

The opening prayer at the November 27 meeting was given by windward O'ahu community activist 'Ululani Beirne, who has attended many similar meetings. The prayer in Hawaiian language was a traditional chant used at hundreds of sovereignty rallies, addressed to the native Hawaiian ancestors (but not the ancestors of other races), calling upon them to be present at this meeting and to provide protection and guidance -- the actual chant/prayer is copied below in both Hawaiian and English. It is perhaps legally allowable under the "free exercise" clause of the Constitution, to allow a multiracial public government-sponsored meeting to include opening prayer by one racial group calling upon their ancestors to provide strength and guidance (presumably in competition against and at the expense of all others). But although legally allowable it is extremely rude and insulting to all present who lack a drop of the magic blood. It says, essentially, we who have a drop of the magic blood and are here at this meeting call upon you our ancestors to be with us and help us out (and to hell with everybody else; let the "others" call upon their own ancestors if they want to). Hawaiian language was used to give the opening chant, which of course was an ancient chant and therefore was originally handed down orally through the generations in the native language. So ceremonially the use of Hawaiian language shows respect and celebration of tradition. But of course the use of Hawaiian language also has the practical effect of preventing nearly everyone in attendance from understanding the chant's very explicit racially exclusionary meanings. Thus the people being insulted and slapped in the face have no idea that's even happening to them. Stupid haoles! For another example and deeper analysis of the use of Hawaiian-language prayer for political purposes in government hearings open to the public, see: "Hawaii Legislature Informational Briefing Regarding the Akaka Bill by U.S. Senators Inouye and Akaka, and U.S. Representatives Abercrombie and Case, on March 31, 2005 (Hawaiian language, Christian prayer, failure of Legislature to perform due diligence)" at
http://www.angelfire.com/hi5/bigfiles3/AkakaHawLegisBrfngFedDeleg033105.html

The closing prayer was given by the same community activist 'Ululani Beirne. Why was she chosen for both the opening and closing prayers? Would any non-ethnic-Hawaiian be allowed to give a chant or prayer? Could a Shinto or Buddhist priest be invited to give a prayer calling upon the gods and the Japanese ancestors to help protect the ethnic Japanese to ensure fairness in land-use policy? This time the prayer was in English, without any racial references. However the fairly bland, routine non-demoninational prayer ended with the words "in Jesus' name we pray, amen" thereby insulting any Jews, Muslims, Buddhists, or atheists who might have been in attendance. The insult is compounded by the fact that, like all Hawaiian sovereignty rallies, the closing prayer was spoken while all present in the room were standing in a large circle holding hands as a sign of solidarity and as a vehicle for helping everyone share the mana (spiritual power). Standing in the circle and holding hands was done at the end of the meeting for the sole purpose of having this prayer (in English and non-demoninational except for Jews, Muslims, Buddhists, or atheists). By contrast the opening chant/prayer was NOT done in a circle while holding hands, presumably because that one is intentionally racially exclusionary and because the mana of the summoned ancestors should not be wasted or polluted by sharing it with people who have no native ancestors.

These observations confirm item #8 in my testimony; namely, that this commission is heavily stacked both racially and ideologically, and that the apparent purpose of the commission (or at least its actual functioning) is to serve as a Trojan horse for establishing racial supremacy over land use in Hawaii (both public and private lands) even before the Akaka bill passes and before negotiations begin between a Native Hawaiian Governing Entity and the State of Hawaii to transfer land and jurisdiction to the racially exclusionary NHGE. Note that even if the Akaka bill fails, OHA already has a Plan B to establish a State-recognized tribe that would negotiate with the State and otherwise behave inside Hawaii in all the same ways as though the Akaka bill had passed. So either way, this commission is working to fulfill that agenda of transferring control of both public and private lands in Hawaii to a racially exclusionary governance. For proof that OHA has a Plan B, see the full text of the OHA confidential memo establishing it, along with news reports about it and commentary by Ken Conklin, at:
http://www.angelfire.com/planet/bigfiles40/OHAplanBmemojune2006.html
And for a description of numerous steps aleady taken to implement Plan B, including acquisition of large tracts of land, see
http://www.angelfire.com/planet/bigfiles40/EvilEmpireOHA.html

Aside from the racism it was a good meeting, with interesting discussions of important issues. But along the way the appointed racial commissioners Vicky Holt Takamine and Wayne Kaho'onei Panoke, top two officers of 'Ilio'ulaokalani, and some community activists in the audience, kept inserting lots of talk about protecting Hawaiian traditional rights and cultural practices and indigenous knowledge, and entitlement to special race-based revenues for research products which carry "indigenous knowledge" components.

Even some people who apparently have no native blood seemed enthusiastic about finding ways to give gobs of money to ethic Hawaiians as a racial group on the excuse that herbs used for medicine in ancient times have an "indigenous knowledge" component that remains in place even after the herbs are taken to the laboratory, broken down into chemical components, active ingredient isolated, and then synthesized for commercial production.

I raised the fact that Chinese have been in Hawaii for 150 years, and there was lots of rice farming. I offered a hypothetical: suppose a Chinese rice farmer in Hawaii discovered some variant of rice in his Hawaii rice paddy which turned out to be commercially useful, or which could be used medicinally -- then would all ethnic Chinese in Hawaii be entitled to revenue-sharing on account of their traditional and cultural knowledge? Vicky Takamine piped up that it's the Chinese culture so therefore the credit goes to China, not to ethnic Chinese in Hawaii; and besides it's on Hawaii land and therefore belongs to indigenous Hawaiians. And later 'Ululani Beirne chimed in that right where she lives there had in olden days been Chinese who bought land and converted taro patches into rice paddies, wrecking the taro patches, and then later sold the land back to Hawaiians who now grow taro again. Zero discussion of my point.

In case my point still is not clear, I have copied below some testimony I wrote several years ago regarding the proposal to turn the Northwest Hawaiian Islands into a 1200-mile long marine sanctuary (it has since been officially given the higher, more strongly protected National Monument status and is now known as Papahanaumokuakea -- a name derived from the Hawaiian religion creation legend Kumulipo). My testimony then was an effort to stop the designation of (all) ethnic Hawaiians as a racial group from having special rights and privileges not given to other races, including the right to have access for religious and cultural practices. I pointed out that Japanese, and Euro-Americans, have ancestors whose bones are on the ocean floor and perhaps the on some islands throughout that region due to sunken ships and airplanes, both centuries ago and especially during World War 2. Is it reasonable to say that anybody today with a drop of Hawaiian native blood should be able to go there to pray, pay respects, etc. -- even though neither he nor his father nor grandfather has ever done so before, and even though he cannot prove any descent from anyone who went there before? (That is indeed the law now). Then it should also be reasonable for me to go there for spiritual and cultural practices merely because some Caucasians (totally unrelated to me) have their bones there. Obviously those same arguments apply to access, revenue-sharing and jurisdictional issues related to bioprospecting.


===============

5. THE OPENING CHANT/PRAYER "NA 'AUMKUA" IS A SPECIFICALLY RACIAL CHANT CALLING UPON THE (ETHNIC HAWAIIAN) ANCESTORS FOR SUPPORT AND GUIDANCE. TEXT OF THE CHANT, IN HAWAIIAN AND WITH ENGLISH TRANSLATION, taken from
http://www.mauna-a-wakea.info/maunakea/I2_traditional.html

Na ‘Aumakua
Adapted from Hawaiian Antiquities by David Malo

Na ‘Aumakua mai ka la hiki a ka la kau!
Mai ka ho’oku’i a ka halawai
Na ‘Aumakua ia Kahinakua, ia Kahina’alo
Ia ka’a ‘akau i ka lani
‘O kiha i ka lani
‘Owe i ka lani
Nunulu i ka lani
Kaholo i ka lani
Eia na pulapula a ‘oukou ‘o ka po’e Hawai’i
E malama ‘oukou ia makou
E ulu i ka lani
E ulu i ka honua
E ulu i ka pae’aina o Hawai’i

E ho mai i ka ‘ike
E ho mai i ka ikaika
E ho mai i ke akamai
E ho mai i ka maopopo pono
E ho mai i ka ‘ike papalua
E ho mai i ka mana.
‘Amama ua noa.

Ancestors from the rising to the setting sun
From the zenith to the horizon
Ancestors who stand at our back and front
You who stand at our right hand
A breathing in the heavens
An utterance in the heavens
A clear, ringing voice in the heavens
A voice reverberating in the heavens
Here are your descendants, the Hawaiians

Safeguard us
That we may flourish in the heavens
That we may flourish on earth
That we may flourish in the Hawaiian islands
Grant us knowledge
Grant us strength
Grant us intelligence
Grant us understanding
Grant us insight
Grant us power
The prayer is lifted, it is free.


==============

6. LENGTHY PORTIONS OF MY 2002 TESTIMONY REGARDING THE ESTABLISHMENT OF THE NORTHWEST HAWAIIAN ISLANDS MARINE SANCTUARY, WHERE MANY ARGUMENTS OPPOSING RACIST PREFERENCES AND RESTRICTIONS ARE THE SAME AS REGARDING BIOPROSPECTING

Portions of my testimony from April 2002 regarding the Northwest Hawaiian Islands, relevant to the issue of bioprospecting by obvious analogy.

The Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve has a website operated by NOAA (The National Oceanographic and Atmospheric Agency) at
http://hawaiireef.noaa.gov
On that website, the 150-page Draft Reserve Operations Plan, a very large pdf document, can be downloaded from
http://hawaiireef.noaa.gov/PDFs/NWHIROP.pdf
In April, 2002 a series of public hearings were held to "inform the public" and solicit comments. Although the approval of the slick Draft Reserve Operating Plan was a foregone conclusion, the public meetings were preceded by massive TV, radio, and newspaper advertisement encouraging public participation. Following is testimony written by Kenneth R. Conklin, Ph.D., in April 2002, on behalf of himself and the Aloha For All organization.

Aloha kakou,

We are pleased to lend our support to the concept of a national marine sanctuary in the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve. This unique but fragile area is a great treasure for all the world, and especially for the people of Hawai'i.

We do have some concerns about the administrative structure, operational plans, and cultural issues addressed in the Draft Reserve Operations Plan. One important theme of the operations plan is cultural preservation. We would suggest that affirmative action be taken to rediscover and offer to the public the Hawaiian names for islands, geographical features, and species of plant and animal life. For example, the Draft Reserve Operations Plan does well when it gives information that Necker Island has the name Moku Manamana, and has important cultural artifacts. The name Manamana is significant to anyone who knows the Hawaiian language, and its meaning should be explained so that those who do not know the language will understand why the kind of cultural artifacts found there have religious significance. The Draft Reserve Operations Plan, however, completely misses opportunities to rediscover and make available to the public the Hawaiian names of plants and animals. In particular, there are charts on pages 20 and 22 which provide side-by-side columns for the English and Latin/taxonomic names of various species found in the reserve. While it is likely that more people speak Latin than speak Hawaiian, it would be helpful to the preservation of Hawaiian culture to provide a third column listing the common Hawaiian names for those species.

All our remaining comments raise civil rights issues concerning racial equality. It is both illegal and also very unwise to impose racial restrictions on who can serve on the sanctuary council, who can engage in cultural activities, who can get a permit for subsistence fishing, etc.

On pages 8-9, the DROP identifies the membership criteria for the 15 voting members of the 25-member Sanctuary Advisory Council. The first category states that there must be three Native Hawaiian representatives, including one Native Hawaiian elder. This racial designation is very different from all the other categories, which are race-neutral designations of activities or functions such as commercial fishing, recreation, and education.

"A Charter for the Council, signed in December 2000, provides for a 25-member Council, 15 of which are voting seats:
three Native Hawaiian representatives, including one Native Hawaiian elder; three research representatives;
three conservation representatives;
one commercial fishing representative;
one recreational fishing representative;
one ocean-related tourism representative;
one education representative;
one citizen-at-large representative; and
one State of Hawai'i representative.
Ten non-voting seats include:
Reserve Coordinator;
Manager of the Hawaiian Islands Humpback Whale National Marine Sanctuary;
Department of the Interior representative;
Department of State representative;
National Marine Fisheries Service representative;
U.S. Coast Guard representative;
Department of Defense representative;
National Science Foundation representative;
Marine Mammal Commission representative; and
Western Pacific Regional Fishery Management Council representative."

Does the designation of three Native Hawaiian representatives imply that there cannot be any Native Hawaiians among the remaining council members representing commercial fishing, recreation, education, etc? Probably not! It would be clearly illegal to exclude people on the basis of race!

The focus of the first item should be knowledge of Hawaiian history, culture, and language; it should not be race. Is a racial group considered to have a group interest, comparable to "research representatives" or "tourism representatives?" If such balkanization of our society is to be entertained, then other racial groups would also be entitled to race-specific representation. The racially exclusionary language of this first item is not only illegal, it is also very unwise. The council should have the services of the people who have the greatest expertise and love for Hawaiian history, culture, and language; and it is wrong to narrow the pool of candidates by imposing a racial restriction.

We regret the apparent need to point out that many of the people universally recognized as being most knowledgable about Hawaiian history, culture, and language were/are not racially Hawaiian. Examples can be found in the bibliography comprising Appendix 3 of the DROP. For example, see the listing for Dr. Kenneth Emory's book on the Archeology of Nihoa and Necker Islands. Thus, the person most closely associated in the last 200 years with the sacred Moku Manamana, who described the cultural and spiritual significance of what he found there, was a white man. The written Hawaiian language was created by the white people who brought Christianity to the islands. Various non-ethnic-Hawaiian anthropologists are noted experts on Hawaiian history and culture, including Emmett Cahill. Walter Judd, Jocelyn Linnekin, Marshall Sahlins, and Valerio Valeri.

On pages 49-50, the DROP sets forth a theory that a racially-defined group should have special rights in certain areas. Currently-living members of that racial group will apparently be given special rights, even though they are unable to prove lineal descent from persons who may have lived in these areas previously. If it is appropriate to give special rights to living persons because members of their race formerly inhabited this area or conducted significant activities there, then the same logic would apply to members of other racial groups. For example, the report recognizes that European explorers visited this area and died in shipwrecks; and that European and American fishermen and whalers also visited this area and may have lost their lives in storms. Likewise, there were Chinese crew members on merchant ships, and Japanese soldiers who fought in a war and lost their lives here. So, according to the logic of the report, any white person of European or American descent, and also Chinese and Japanese people, should have special rights to visit the area for cultural preservation and also for religious observances related to the souls of their racial forebears who died here.

And, if recreational or subsistence fishing rights are to be given based on the fact that members of one's race previously engaged in such activities here, the same logic would require that white fishermen or even whale-hunters should be allowed to follow the practices of their racial forebears.

Could we please eliminate gratuitous racial references, and open up participation to everyone on an equal basis without racial restriction? Here is a parody of a portion of the report, to illustrate this point.

The following is a direct quote from page 49 of the DROP. As a useful thought-experiment I have replaced "Native Hawaiian" with "Caucasian" but the logic is the same.

"Caucasian interests will be defined by cultural and historical experts, knowledgeable kupuna (elders), fishers experienced with the NWHI, and the Cultural Resources Subcommittee of the Council. These interests include cultural practices and significant locations within the Reserve, the Hawaiian Islands National Wildlife Refuge, Midway Atoll National Wildlife Refuge and State of Hawai'i waters as part of the coordinated management called for by the Executive Order. In addition, Reserve staff will work with Caucasians to develop criteria to assess the cultural significance of any noncommercial subsistence, cultural, and religious use, and will develop management guidelines regarding access to the NWHI Archipelago for the conduct of culturally significant practices. The Executive Order also directs the Secretary to identify the areas where appropriate Caucasian uses of the Reserve's resources may be conducted without injury to the Reserve's coral reef ecosystem and related marine resources and species. Such a condition is consistent with the centuries old practices of kuleana (responsibility) and malama (care). As a result these uses will serve to strengthen the Reserve's management efforts."

The DROP continues with the following passage referring to the taking of written and oral histories, and the use of ships' logs and journals, to rebuild the memories of events in the NWHI. It also proposes to use both old and newly created song, chant, and dance to educate the public about this unique and fragile place. But such historical sources and media of expression are not limited to Native Hawaiians, and should be employed to rebuild and celebrate the history of all the people whose racial forebears had a significant connection with this area.

When reading the following quote, think about English-language sources and Japanese and Chinese-language sources, as well as Hawaiian-language sources; and think about European, American, Japanese, and Chinese ancestors as well as Polynesian ancestors. Surely there is room in this cultural project to include the sea-chanties of the English whalers and the "banzai!" cries or kamikazi prayers of the Japanese warriors along with the mele of the Polynesian navigators.

"This action plan is aimed at researching, assessing, compiling, and cataloging information regarding the culture and history of the NWHI Archipelago from such sources as mele and oli (song, chant), oral histories and accounts, Hawaiian language newspapers, ship logs and journals, and archaeological and anthropological studies as well as historic accounts by living Native Hawaiians. In addition, the information gathered will be documented in reports and through cultural forms of expression such as mele (song, chant) and hula (dance), and disseminated to the public as part of the process of education about this unique and fragile place. Oral traditions passed down through mele reference islands beyond Lehua and recall the travels of seafaring Polynesian ancestors traversing through this vast area on their way to and from the main Hawaiian Islands."

The purpose of these comments is not to disparage Native Hawaiian history. Rather, it is to assert the obvious -- that people of many races passed through the NWHI and had significant cultural and religious experiences here. We are all entitled to memorialize the history of our own race and to learn from the histories of other groups. If tax dollars are going to be spent celebrating bygone cultural or religious events of one group, then funds should be spent to honor the memories of all groups.

On page 49, a religious doctrine is propounded that would seem to justify special rights in NWHI for people of one race:

"The natural elements of the Northwestern Archipelago are considered early ancestors born in primordial times and therefore the older relatives of living Native Hawaiians. Both share an interdependent, 'ohana (family) based relationship which requires malama to be given to the older siblings who in turn provide for the well being of the younger."

This same religious doctrine has also been propounded regarding islands in the main group of eight Hawaiian islands. For example, Kaho'olawe is said to be the kinolau (body-form) of the god Kanaloa, and the island was born to the goddess Hina.

Such religious stories can be beautiful and inspirational. But they cannot be used to establish government policy that would give one racial group priority. The First Amendment to the United States Constitution guarantees that anyone has the freedom to hold and express such opinions. But that same First Amendment also says that nobody has a right to establish such religious opinions as the official views of the government. "Congress shall make no law respecting an establishment of religion, or preventing the free exercise thereof; or abridging the freedom of speech ..." Native Hawaiians or anyone else has freedom to engage in whatever religious ceremonies or protocols they wish (so long as they do not thereby harm the environment or other people), but it is unconstitutional for people holding a particular religious opinion to prohibit the free access or expression by other people who do not hold those opinions. Some currently-living Native Hawaiians may sincerely believe ther are lineal descendants of certain gods or of certain islands. The rest of us are socially obligated to treat those religious opinions with respect, but we are not obligated to give political control or property-ownership to people based on such beliefs.

Any person, regardless of race, who engages in noncommercial subsistence, cultural, or religious uses should be able to continue doing so, to the extent consistent with existing law, within the Reserve and Reserve Preservation Areas identified under section 8 of this order. The Secretary shall work with all interested organizations to identify those areas where such uses of the Reserve's resources may be conducted without injury to the Reserve's coral reef ecosystem and related marine resources and species, and may revise the areas where such activities may occur after public review and comment, and consideration of any advice and recommendations of the Reserve Council."

The political struggle for racial equality in NWHI is an extension of the same struggle in the main Hawaiian islands. Some Hawaiian sovereignty activists are ethnic nationalists, seeking to "liberate" Hawai'i from the United States. Some activists are racial separatists, seeking to establish a nation within a nation on the model of an Indian tribe. Both varieties of sovereignty activist claim that ethnic Hawaiians are indigenous and therefore are entitled to special political, legal, and economic rights simply on account of being ethnic Hawaiian. There are many issues involved. Here are brief comments on some of these issues, and internet links to webpages that provide extensive historical and legal analyses.

Ethnic Hawaiians are not indigenous. No humans occupied Hawai'i until 2000 years ago. Polynesian immigrants came in several waves of voyaging canoes from different areas of Polynesia and with different cultural practices. The final wave of Polynesian invaders came from Tahiti around 800 years ago and completely changed the genetics, government, and culture, imposing the war god Ku, the ali'i social hierarchy, and the institution of human sacrifice. Polynesians have a shorter tenure in Hawai'i than Anglo-Saxons have in England; and the latest wave of Polynesian invaders who took over the islands arrived here later than the Norman invasion of England.
http://www.angelfire.com/hi2/hawaiiansovereignty/indigenous.html

It is a matter of considerable dispute whether there are gathering rights permitting people to go onto other people's property to collect food and cultural materials, and to have access to the shoreline; however, if such rights of trespass do exist, they are rights pertaining to all residents of an ahupua'a, not only to so-called 'indigenous' people.
http://www.angelfire.com/hi2/hawaiiansovereignty/sullivanpash.html

Even if Hawaiians were indigenous, it would be legally and morally wrong to give them special standing based on race. The history of the Kingdom of Hawai'i shows that the Native Hawaiians welcomed newcomers, eagerly changing their old ways to embrace the newcomers' religion and culture. http://www.angelfire.com/hi2/hawaiiansovereignty/seconddialog.html A social contract of full partnership was established under the leadership of the sovereign Kings of Hawai'i, exercising self-determination on behalf of the natives.
http://www.angelfire.com/hi2/hawaiiansovereignty/fullpartners.html

According to this social contract, newcomers were given full equality of voting and property rights, in return for investment of capital and expertise. Non-natives became fully equal subjects of the Kingdom through both naturalization and birth, and held high elective and appointive positions in the government. There were no special rights for "indigenous" people during the final 40 years of the Kingdom period.
http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.html

Whatever special rights may pertain to individuals or families having a tradition of subsistence farming, fishing, hunting, or religious observances should be based not on race but on the fact that such individuals or families have such customary practices in this particular area. All persons must be treated equally, regardless of race; claims to "indigenous" status notwithstanding.
http://www.angelfire.com/hi2/hawaiiansovereignty/principles.html

Activists like to use the beauty of Hawaiian music, hula, language, and cultural activities, together with a general impression that Hawaiians have suffered historically, to elicit public sympathy for their victimhood grievances and thus for their political goals.
http://www.angelfire.com/hi2/hawaiiansovereignty/hawnsasmascots.html

But there is no legitimacy to claims for reparations for racially-defined Hawaiians, as shown by both an informal essay http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinallsovereign.html and a scholarly legal analysis
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinreparations.html

The ceded lands were all the public lands of the Kingdom of Hawai'i, both government lands and crown lands. There are no valid racial claims to any of these lands.
http://www.angelfire.com/hi2/hawaiiansovereignty/cededlands.html

In particular, the crown lands were owned not by the monarch personally, but by the government; and were used to generate income to support the office of the head of state. In 1910 ex-queen Lili'uokalani sued the United States for compensation for what she claimed to be her personal right to the crown lands. The court ruled that she did not have any personal ownership of those lands even before the overthrow, and was not entitled to any compensation. But it is interesting that she never made any claim that the crown lands belonged to Native Hawaiians as a group, and she only claimed to own them personally.
http://www.angelfire.com/hi2/hawaiiansovereignty/liliucrownlands.html

These issues of government lands, crown lands, ceded lands, and racial ownership were thoroughly explored in an Environmental Impact Statement regarding Bellows Air Force station in Waimanalo, O'ahu in 1995. Portions of the government response can be seen at "Bellows Air Force Station -- 1995 Environmental Impact Statement Considers and Rejects Claims About Ceded Lands, Overthrow, Annexation, Apology Bill" at
http://www.angelfire.com/hi2/hawaiiansovereignty/bellows.html


==============

7. Full text of the Legislature's resolution describing the purpose and composition of the committee (the committee's purpose and composition are controversial issues addressed in Ken Conklin's testimony).

http://www.capitol.hawaii.gov/session2006/Bills/HCR193_.htm

HCR193

HOUSE OF REPRESENTATIVES

H.C.R. NO.

193

TWENTY-THIRD LEGISLATURE, 2006

 

STATE OF HAWAII

 
   


HOUSE CONCURRENT

RESOLUTION

 

REQUESTING THE ESTABLISHMENT OF A TEMPORARY ADVISORY COMMISSION ON BIOLOGICAL DIVERSITY.

 

 

WHEREAS, the Legislature finds that Hawaii's biological diversity and biological resources are assets of the public land trust that are culturally, spiritually, medicinally, and otherwise significant to native Hawaiians and the general public; and

WHEREAS, Hawaii runs the risk of losing its biodiversity as natural habitat is developed, natural environment is degraded, and non-sustainable consumptive practices are perpetuated; and

WHEREAS, Hawaii's unique biological diversity and biological resources are assets of a public trust established in article XI, section 1, of the Hawaii State Constitution and section 171-2, Hawaii Revised Statutes; and

WHEREAS, Hawaii's biological diversity and biological resources are of great potential economic benefit in the areas of medicine, scientific research, biotechnology, and commercial development; and

WHEREAS, there is a need to develop public policy to balance scientific research and commercialization with the preservation of Hawaii's fragile bio-resources, and fair and equitable benefit-sharing with the general public and native Hawaiians, who are the beneficiaries of the public land trust; and

WHEREAS, the Legislative Reference Bureau, in its report to the Legislature entitled, "Bioprospecting: Issues and Policy Consideration", January 2006, recommended four policy areas for discussion, including:

(1) Prior informed consent;

(2) Rights of indigenous knowledge holders;

(3) Equitable benefit-sharing; and

(4) Conservation, preservation, and sustainable use of biodiversity; and

WHEREAS, if the rights-holders and stakeholders, who have worked on these issues can agree to these four policies, it may serve as the basis upon which a regulatory permitting and licensing process can be developed; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-third Legislature of the State of Hawaii, Regular Session of 2006, the Senate concurring, that the Governor is requested to establish a temporary advisory commission on biological diversity, to be placed within the Office of Hawaiian Affairs for administrative purposes only, to make recommendations for policy development in the area of:

(1) Prior informed consent;

(2) Equitable benefit-sharing;

(3) Bio-safety protocols;

(4) A permitting and licensing process; and

(5) Cultural rights for the use of Hawaii's biodiversity; and

BE IT FURTHER RESOLVED that the Legislature requests that members of the temporary advisory commission on biological diversity represent the various rights-holders and stakeholders including the following:

(1) The Chairperson of the Board of Trustees of the Office of Hawaiian Affairs or a designee;

(2) The President of the University of Hawaii or a designee;

(3) The Director of Business, Economic Development, and Tourism or a designee;

(4) The Chairperson of the Board of Land and Natural Resources or a designee;

(5) Five members of the native Hawaiian community, residing in the State of Hawaii, who have a demonstrated background in:

(A) Traditional and customary use of biological and genetic resources;

(B) Indigenous and traditional technologies;

(C) Scientific and technical uses of native Hawaiian practices;

(D) Legal procedures nationally and internationally, in connection with the protection or commercialization of biological and genetic resources; and

(E) Native Hawaiian cultural rights as contained in the Hawaii State Constitution and statutes;

who are appointed by the Governor from lists of nominees submitted by the President of the Senate and the Speaker of the House of Representatives, and Hawaiian organizations;

(6) Two representatives from the biotechnology industry, whose principal place of business is in the State of Hawaii, who are appointed by the Governor from lists of nominees submitted by the President of the Senate and the Speaker of the House of Representatives, and members of the biotechnology industry, based in Hawaii; and

BE IT FURTHER RESOLVED that the temporary advisory commission on biological diversity is requested to prepare a report of its recommendations to the Legislature and the Governor not later than twenty days prior to the convening of the Regular Session of 2007; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the President of the Senate, the Speaker of the House of Representatives, the Chair of the Board of Trustees of the Office of Hawaiian Affairs, and the Governor.

 

 

 

OFFERED BY:

_____________________________

Report Title:

Bio Diversity; OHA


===============

8. LINKS TO WEBPAGES DISCUSSING SOME OF THE ISSUES IN GREATER DEPTH, INCLUDING "INDIGENOUS INTELLECTUAL PROPERTY RIGHTS"

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)
http://www.angelfire.com/hi2/hawaiiansovereignty/bioprospecting.html

Indigenous Intellectual Property Rights -- The General Theory, and Why It Does Not Apply in Hawaii
http://www.angelfire.com/hi2/hawaiiansovereignty/indigenousintellproprts.html

"Polynesian" Voyaging -- Political Agenda, Ethnic Dominance, Cultural Authenticity, and Blood Nationalism. An extended book review of Ben Finney, "Sailing in the Wake of the Ancestors: Reviving Polynesian Voyaging" [This book is essentially a claim that Polynesian voyaging canoes are an indigenous intellectual property and therefore it is appropriate to exclude non-Polynesians from leadership of both the administrative organization and actual voyages]
http://www.angelfire.com/hi2/hawaiiansovereignty/polynesianvoyaging.html

Hawaiian Epistemology and Education -- A claim that anyone with a drop of Hawaiian native blood has genetically and culturally encoded unique ways of knowing and learning; and therefore ethnic Hawaiian children (and other ethnic minorities to a lesser degree) have special needs for uniquely tailored curriculum and instructional methods [note: this claim that there is a blood-based Hawaiian epistemology is sometimes used as justification for the existence of indigenous intellectual property rights].
http://www.angelfire.com/hi5/bigfiles2/HawaiianEpistemology.html


==============

9. Followup news reports and commentaries

http://www.hawaiitribune-herald.com/articles/2007/12/01/local_news/local06.txt
Hawaii Tribune-Herald (Hilo), Saturday December 1, 2007

Panel defining bioprospecting
Rules will be used to regulate collecting of plants, animals

by Nancy Cook Lauer
Stephens Honolulu Bureau

HONOLULU -- A commission created by the Legislature took the first step Friday toward regulating the collection of plant and animal samples for commercial research by settling on a tentative definition of bioprospecting.

The definition, fine-tuned during a three-hour discussion among commission members, takes into account views presented during public hearings around the state. At issue is how to define bioprospecting so that Native Hawaiian and other cultures whose traditional knowledge is used for commercial purposes get a share in the royalties of the resulting product.

The commission, which includes those in the biotechnology field as well as bureaucrats, university researchers and Native Hawaiians, also wants to distinguish "pure" research for scientific purposes from research that has an intended commercial use, such as the isolation of genetic materials for use in medicine.

"We don't want to penalize legitimate scientific research," said commission member David Watamull, president and CEO of Cardax Pharmaceuticals in Aiea, Oahu.

At the same time, however, commission members acknowledged there needs to be a way to track research that starts out as pure science, but later is picked up by a commercial interest.

"The vast majority of permits approved are not bioprospecting," said commission member Kevin Kelly, representing the University of Hawaii. "We need to focus on the exceptions, not what we do on a day-to-day basis."

The commission also wants to differentiate bioprospecting from collecting large samples, as in fishing or gathering nuts, and protect traditional cultural practices, such as those by Native Hawaiian kahuna laau lapaau or Chinese herbalists.

The resulting definition is long:


"Bioprospecting means any activity, except traditional and customary practices, undertaken to harvest or exploit for commercial purposes all or any of the following:

Samples or derivatives, in situ or ex situ, of genetic or biochemical resources from plants, animals or microorganisms,

The knowledge, innovations, traditional and customary practices of Native Hawaiians or other peoples associated with those samples or derivatives."


The commission next hopes to recommend legislation to set up a process of informed consent by stakeholders and a way to share proceeds of commercial applications of local practices. It's likely that a board would be created and staffed within the Department of Land and Natural Resources or Office of Hawaiian Affairs to handle bioprospecting permits and oversee revenues for distribution to stakeholders.

Commission members want a system that's equitable, but not so onerous that Hawaii loses the biotech firms that create high-paying jobs and contribute to the state economy. The process also needs to encourage cooperation, yet have a way to expose cheaters, they said.

"We're here to provide DLNR or the commission (ultimately responsible for enforcement) with teeth," said commission member Vicky Holt Takamine, who represents the Native Hawaiian community.


==============

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