NATIVE HAWAIIAN LAW SUMMARIES: SELECTED RECENT LAW REVIEW ARTICLES
by Susan Serrano Director of Educational Development
Mana Moriarty 2L
Ka‘ano‘i Walk 3L

The Center for Excellence in Native Hawaiian Law is committed to exploring and critically examining the many significant and pressing issues facing Native Hawaiians. In order to provide lawyers, community members, students, advocates and legal scholars with helpful tools and critical analyses of Native Hawaiian law, the Center is providing below brief summaries of recent law review articles on legal issues facing Native Hawaiians. This issue of Ka He‘e summarizes law review articles on Native Hawaiian traditional knowledge, cultural property, bioprospecting and biopiracy, and the ways in which Native Hawaiians are protecting their traditional and cultural knowledge systems through self-determination efforts.  

R. Hōkūlei Lindsey, Responsibility With Accountability: The Birth of A Strategy to Protect Kanaka Maoli Traditional Knowledge, 48 How. L.J. 763 (2005).  

R. Hōkūlei Lindsey’s article addresses the stark contrast between Native Hawaiian traditional knowledge and intellectual property concepts and describes Native Hawaiian efforts to protect traditional knowledge using traditional knowledge and processes. She describes her article as a “record of how and why the Paoakalani Declaration came to be, and of the power and authority of self-determined action.”  

The article first describes the vast difference between Native Hawaiian beliefs and western intellectual property.  For Native Hawaiians, the gods, land and humankind “share familial, interdependent, and reciprocal responsibilities for one another. This responsibility is expressed in kuleana:  sacred responsibility with accountability.” For Native Hawaiians, “the tangible and intangible are inseparable because they are inherently connected by spirituality and protocol.”  

In sharp contrast, intellectual property centers on the profit motive, personifies western constructs, and “divides the world of expression, creativity, and innovation into two—that which is tangible and that which is intangible.” It also “orders creativity and innovation in terms of mine and yours” and “devalues the significance of traditional, indigenous knowledge.”   

The author then describes a “significant number of attacks on Kanaka Maoli traditional knowledge” which in part gave rise to Ka ‘Aha Pono ’03, the Native Hawaiian Intellectual Property Rights Conference and the resulting Paoakalani Declaration. These misappropriations included the performance and recording of mele (songs) without regard for the Kanaka Maoli collective, the Hawaiian Genome Project and the licensing of the Hawaiian genome without consent, and a University of Hawai‘i contract for environmental samples on species used by traditional knowledge holders collected from Hawai‘i’s public lands.  

In seeking to “establish basic understandings of the issue, its impact on us, the forces driving intellectual property, and our responsibility to protect our traditional knowledge,” the Ka ‘Aha Pono ’03 conference sparked new action to protect Native Hawaiian traditional knowledge. The author describes the framework and format of the conference and explains the adoption of the Paoakalani Declaration at the end of the conference as “a collective statement—embodying responsibility with accountability—for the well-being of Kanaka Maoli and the protection of our traditional knowledge.”  

The Paoakalani Declaration sets forth “the rights and responsibilities surrounding the protection and use of Kanaka Maoli traditional knowledge.” It “derives its importance and strength from its expression of Kanaka Maoli self-determination, [and] delivers, in tangible form, broad principles for the protection and perpetuation of our traditional knowledge and an underlying process for consultation—engaging the Kanaka Maoli community.” The author describes the various sections of the Declaration and explains that, the sections of the Declaration together “articulate a framework for protecting Kanaka Maoli traditional knowledge” as a form of self-determination.  

Finally, the article describes the next phases of the strategy: “actively engaging in the issue and asserting the balance for the protection of Kanaka Maoli traditional knowledge.”  Part of this engagement has involved the presentation of the Declaration “in forums reaching from community groups to State government to international organizations.”  

In sum, according to Lindsey, “[t]he answer to achieving sui generis protection for our traditional knowledge systems was found through our traditional knowledge processes. Inherent in our strategy is a process that simultaneously protects our traditional knowledge systems through self-determination, asserts our rights to and corresponding responsibility for our traditional knowledge, and engages the cultural foundations and precepts inherent to those systems.”  

Sarah K. Kam, Biopiracy In Paradise?: Fulfilling The Legal Duty To Regulate Bioprospecting In Hawai‘i, 28 U. Haw. L. Rev. 387 (2006).   

Sarah K. Kam’s article responds to the June 2002 bioprospecting agreement between the University of Hawai‘i and San Diego-based Diversa Corporation.  The terms of the agreement “gave Diversa the exclusive right to discover, harvest, and exploit genes from environmental samples collected off of Hawai‘i’s shores in order to develop commercially marketable products.” Kam defines bioprospecting as “the examination of biological resources for features of commercial value.” Kam also identifies the ethical and other concerns that the UH – Diversa agreement raised, particularly with regard to the potential for biopiracy if Native Hawaiian traditional rights to Hawai‘i’s biodiversity are not addressed in a legislative bill on bioprospecting.  

Neither federal nor state law provide for the regulation of bioprospecting.  In the 2004 legislative session, Hawai‘i became the first state to consider a bill creating a Temporary Bioprospecting Advisory Commission and a moratorium on bioprospecting.  The bill passed in its 2006 form and the Commission is charged with making recommendations to the legislature for the 2008 session. The lack of regulation surrounding bioprospecting continues to worry Kam, however. She warns that the State of Hawai‘i is “in jeopardy of losing title to its biogenetic resources” if the present lack of regulation continues.   

Kam’s legal argument rests on the numerous ways the public trust doctrine arises in Hawai‘i constitutional law.  First, the plain language of the Hawai‘i Constitution, she argues, “evidences the framer’s intent to adopt public trust doctrine principles.”  According to principles of construction articulated by the Hawai‘i Supreme Court, the Constitution “must be construed with due regard to [that] intent.” Furthermore, “the plain language of article XI, section 1 indicates that the public trust doctrine applies to all public natural resources, including land, water, air, minerals, and energy sources.”  

Kam points out that under Article XI, section 1, the State cannot assume a passive role vis-à-vis its obligations as trustee, “but instead must take the initiative in considering, protecting, and advancing public rights” in public resources.  Article XI, section 7 establishes that the State has a “duty to ensure the continued availability and existence of its… resources for present and future generations.” The basis for the State’s “inescapable duty to regulate bioprospecting” rests on these two sections of the Constitution founded on public trust doctrine principles.   

The public trust doctrine, Kam argues, bestows a legal duty upon the State to regulate bioprospecting. Further bolstering her argument on principles of the public trust doctrine being inherent in the Hawai‘i Constitution, Kam cites to the 1978 adoption of article XI, section 1 entitled “Conservation and Development of Resources.” This section mandates that the State conserve and protect all natural resources because “all public natural resources are held in trust by the State for the benefit of the people.” Therefore, she argues, until regulatory measures are adopted by our State legislature, the rights of the public to Hawai‘i’s biogenetic materials and biodiversity will erode.  

Kam contends that the State has a legal duty to regulate bioprospecting under the public and ceded land trusts, and because of recognized Native Hawaiian rights. She provides ideas about addressing particular concerns raised by bioprospecting. She identifies Material Transfer Agreements based in contract law as an effective way to legally facilitate bioprospecting, but maintains that the State must keep several considerations in mind when entering into MTAs: preventing environmental degradation, protecting Native Hawaiian traditional knowledge, and maintaining rights, interest, and title to biological resources and benefit sharing. The vehicle that Kam identifies for protecting Native Hawaiian traditional knowledge is prior informed consent, and representation of Native Hawaiians in policy adopted by the legislature regarding bioprospecting. Kam concludes by stating that “the current lack of bioprospecting regulations is a violation of the State’s legal duties under the ceded land and public trusts, and its statutory duty to protect Native Hawaiian rights.”   

Since Kam’s article was published, the legislature has taken action on bioprospecting. HCR 193, H.D. 1 2006 created a Commission on Bioprospecting, charged with making recommendations on several of the issues that Kam raises in her article, including prior informed consent. But the State is still years away from creating the regulation that the Constitution demands. Until then, the State will be in violation of its duties under the ceded land trust as well as the public trust, not to mention its statutory duty to protect Native Hawaiian rights. Natural and cultural resources, additionally, face dual possibilities of depredation and exploitation.   

Craig W. Jerome, Balancing Authority and Responsibility: The Forbes Cave Collection, NAGPRA, and Hawai‘i, 29 U. Haw. L. Rev. 163 (2006).

This article describes the recent contentious dispute surrounding the repatriation of Native Hawaiian artifacts originally stolen from the Kawaihae Caves complex on Hawai‘i Island in 1905. Using this controversy as an example, the author sheds light on the history, practice and shortcomings of the Native American Graves Protection and Repatriation Act (“NAGPRA”) as applied in Hawai‘i.   

The author argues that the NAGPRA repatriation process has “fail[ed] to effectively address the distinct cultural and legal differences between Native Hawaiians and Indians,” and, as a result, has left many Native Hawaiians feeling violated. He also contends that the federal judicial system as well as the Native Hawaiian community played a part in the failure of the process.   

The article traces the history of NAGPRA and describes traditional Hawaiian burial practices. It also explains the Kawaihae Caves dispute and proposes possible paths for resolving NAGPRA’s inadequacies when dealing with these types of controversies.  

NAGPRA

On November 16, 1990, NAGPRA went into effect.  The statute was not only a compromise by the political, scientific, and indigenous communities, but also a “culmination of decades of efforts by Indian and Native Hawaiian groups to prevent and correct the desecration of the graves of their ancestors[.]” by both museums and the U.S. federal government.  

Under NAGPRA, only lineal descendants, Indian tribes, and Native Hawaiian organizations are recognized claimants.  A “Native Hawaiian organization” is “any organization which (A) serves and represents the interests of Native Hawaiians; (B) has as a primary and stated purpose the provision of services of Native Hawaiians; and (C) has expertise in Native Hawaiian Affairs[.]”  Under NAGPRA, only Hui Mālama I Nā Kūpuna O Hawai‘i Nei (“Hui Mālama”) and the Office of Hawaiian Affairs (“OHA”) are identified as Native Hawaiian organizations.  NAGPRA does not define a “lineal descendant”; instead, regulations define it as any individual able to trace ancestry “directly and without interruption by means of the traditional kinship system” of the Indian tribe or Native Hawaiian organization or “by the common law system of descendants to a known Native American individual whose remains” are being claimed.  

There are four categories of protected cultural items under NAGPRA: (1) “associated funerary objects”; (2) “unassociated funerary objects”; (3) “sacred objects”; and (4) “cultural patrimony”.  Lineal descendants, Indian tribes, and Native Hawaiian organizations have standing to claim “human remains, associated and unassociated funerary objects, and sacred objects” taken by museums or a federal agency.  Lineal descendants do not have standing to claim objects of cultural patrimony; only Indian tribes and Native Hawaiian organizations can do so.   

NAGPRA further requires the following for an expeditious return of remains and items: “(1) the claimant has standing; (2) the object being claimed is within the category of objects covered by the statute; and (3) the claimant can establish lineal descent or cultural affiliation with the object in question.”  There are exemptions when: (1) the item is claimed by multiple claimants and the museum and agency is unable to determine the “most appropriate recipient”; (2) the item was obtained by “voluntary consent of an individual or group” with the authority to transfer ownership; or (3) the item is “indispensable to a scientific study which is of major benefit to the United States.”  Claimants who are unsatisfied can appeal before the NAGPRA Review Committee or turn to the federal courts for relief.  

Hawai‘i History and Forbes

The Native Hawaiian people have a unique cultural understanding of death and the afterlife, recognizing that “nā iwi (the bones) and the ‘uhane (spirit) were connected and that the ‘uhane remained near nā iwi” following death. Therefore, the area of burial is a very sacred place. Both nā iwi and the burial site were so sacred that “desecration of [either]… interfered with the ability of the ‘uhane to join the ‘aumakua in eternity and resulted in injury and spiritual trauma to the living descendants of the deceased.”  

In 1905, David Forbes, William Wagner, and another man searched caves around Hawai‘i Island for hidden treasures.  Forbes understood the forbidden nature of searching burial caves. In a Kawaihae cave, Forbes found “the last resting place of hundreds of Hawaiians” and many objects (a canoe and surfboard, ‘aumakua images, etc.). After taking the items, Forbes wrote to William Bingham, director of the Bishop Museum (“Museum”), for help in determining the value of the objects.  Bingham responded by stating, “keep the matter quiet for there are several laws here concerning burial caves[.]”  Although the grave robbers did not immediately sell the items to the Museum, all items were eventually purchased by the Museum.  

Kawaihae Caves, Hui Mālama, and NAGPRA

In February of 2000, Hui Mālama was loaned eighty-three items from the Kawaihae Caves collection by the Museum.  Hui Mālama re-interred the items in two of the caves. Museum representatives claimed that Hui Mālama told the Museum that other claimants had agreed to the loan. In April of 2000, the Museum published notices of “intent to repatriate” some items, including the eighty-three items that were loaned to Hui Mālama.  In September of 2000, the Museum’s board of directors voted to recall the items loaned to Hui Mālama.  Hui Mālama stated that they would not return the items that had already been re-interred. Community members and Museum officials disagreed over whether the items should be retrieved from the caves or left alone, and the Office of the Inspector General launched a criminal investigation.  After the investigation, claimants Royal Academy of Traditional Arts and Nā Lei Ali‘i Kawānanakoa filed suit in federal court against the Museum and Hui Mālama.  

In the following month, U.S. District Court Judge David A. Ezra granted the plaintiffs’ motion for preliminary injunction and ordered Hui Mālama to retrieve the items. The order also required Hui Mālama to divulge the location of the items so that “all parties could be present” while they were exhumed. On December 27, 2005, Hui Mālama and Edward Halealoha Ayau were found in contempt of court for disobeying the court’s orders to turn over information about the place of burial and a list of individuals who reburied the items. Ayau was ordered to remain in custody until Hui Mālama either: (1) provided the location of each item and the name and address of all persons who had knowledge of the location; or (2) returned every item to the Museum.  In January of 2006, Ayau was released to take part in ho‘oponopono, a traditional Native Hawaiian dispute resolution process, to put the controversy to rest. No resolution was reached and in September 2006, under the order of Judge Ezra, the objects were excavated and returned to the Museum. The District Court has not yet decided the Kawaihae Caves case.  

Problems and Solutions

A.  NAGPRA

According to the author, the “Kawaihae Caves dispute reflects a failing of the NAGPRA process,” and an overhaul of the act is needed to get to the root of four problems. The first problem is that NAGPRA was written for “Indian tribes with defined tribal governments” and there is currently no central entity for the Native Hawaiian people. Second, although lineal descendents have priority over other claimants, descendancy is difficult to establish. NAGPRA should be corrected “by creating within its definitions some space for ‘ohana groups” that can have priority over Native Hawaiian organizations.  Third, the definition of Native Hawaiian organization is too broad. Some flaws in the definition include: (1) there is no requirement that any members be Native Hawaiian; (2) there is no provision requiring the organization to demonstrate its knowledge or expertise in “traditional Hawaiian burial practices”; and (3) the act is so broad that Bishop Museum would be able to qualify as a Native Hawaiian organization.  Although the Museum has decided not to pursue recognition, they can do so.  

B.  Federal Courts

While looking “though the lens of the complicated relationship between Hawai‘i and the United States,” the author asserts, the Kawaihae Caves dispute begins to sharpen. Following the illegal overthrow of the Kingdom of Hawai‘i in 1893, “many Native Hawaiians have come to think of Hawai‘i not as a state, but as a sovereign nation under military occupation by the United States.”  Distrust and suspicion of the federal court system has grown with the recent Rice v. Cayetano and Doe v. Kamehameha cases. Therefore, the author argues, it is important for the federal courts to adopt a policy that would allow Native Hawaiian disputants a “court-supervised form of ho‘oponopono.”   

The author suggests that federal courts look at another indigenous conflict resolution practice: First Nation circle sentencing. First Nation circle sentencing “was developed by Canadian judges as an alternative to conventional sentencing hearings” in some criminal cases involving aboriginal defendants. Individuals involved in the case “sit in a circle with the accused and discuss together what sentences should be imposed.”  Its purpose is “to have the aboriginal community regain a measure of control over the justice system in a manner more conducive to transitional methods of dispute resolution.” The author warns, however, that although circle sentencing is enticing, what works for other indigenous peoples will not necessarily work for Native Hawaiians.  Whatever the method, it is essential that the Native Hawaiian community takes ownership of it.  

C.  Role of the Native Hawaiian Community

Over a decade ago, a scholar observed that “the central task under NAGPRA will be the interpretation and meaning of the tribe’s own cultural and legal standards.” This is true for Native Hawaiians, but they must “interpret and define their cultural and legal standards without the homogenizing and controlling influence of a tribal governing structure.” The author was disappointed that the Kawaihae Caves dispute could not be resolved by the Native Hawaiian community because Native Hawaiians are “the only group adequately equipped to determine the appropriate disposition of objects repatriated under NAGPRA.”  The author also advises that “Native Hawaiians, and their cultural institutions, should make an effort to prioritize, discuss, and resolve issues involving the repatriation of cultural property via NAGPRA.”  Finally, the author hopes that the Kawaihae Caves experience will open the door for the Native Hawaiian community to “come together as a group to protect their cultural treasures in a way that respects the desires of their ancestors and strengthens the culture of today.”  

Debra Harry & Le‘a Malia Kanehe, Asserting Tribal Sovereignty Over Cultural Property: Moving Towards Protection of Genetic Material and Indigenous Knowledge, 5 Seattle J. for Soc. Just. 27 (2006).

This article provides guidance to tribes “about how to establish strong protections over their genetic material and Indigenous knowledge.” It examines in particular “why tribes need to be concerned about research involving genetic material and Indigenous knowledge, with a particular focus on human genetic research.”  

According to the authors, “Indigenous cultural property of all forms, tangible and intangible, oral and written, ancient and contemporary, is under constant threat from exploitation, theft, misrepresentation, misuse, and commodification.” Current domestic U.S. law and Western-based legal systems do not adequately protect this cultural property.  Thus, tribes must engage this issue “at all levels—tribal, state, national, and international,” particularly within their own legal systems.  

The authors define Indigenous cultural property as follows: “Indigenous cultural property is everything that Indigenous peoples have a relationship with and responsibility to…cultural property rights are rights to property that are held communally; only the group as a whole can consent to sharing the property, and it can never be alienated, surrendered, or sold.  If and when it is shared, it comes with conditions.”  

Genetic material and Indigenous knowledge are aspects of tribal cultural property that need particular protection. Many Indigenous peoples believe that their genetic material is inalienable even though the prevailing U.S. legal view “is that once genetic material leaves a person’s body, the law does not recognize a property right in the material for that person.”   In addition, many Indigenous peoples have a cultural and spiritual relationship with genetic material.  There is therefore “great value in knowing and protecting their genealogy and body parts, whether blood, hair, nails, saliva, or placenta.”   

Scientists have frequently sought Indigenous cultural property and genetic material. They have gathered Indigenous peoples’ DNA for anthropological, behavioral, medical, and genetics-mapping studies.  “Bioprospectors are also interested in accessing biodiverse-rich Indigenous territories to find plant, animal, and microbial organisms for pharmaceutical, chemical, and industrial uses.” Genetically-modified organisms create particular threats to Indigenous peoples’ “food sources, agricultural systems, health, and environment.”  

In collecting this research, researchers have disregarded tribes through “breach of trust, lack of informed consent, allowing secondary uses of samples with unauthorized researchers and unauthorized publications.” In addition, Indigenous peoples have been exploited “as a result of participating in medical research when genetic samples they provided were later used in non-consensual secondary research.”  

Indigenous peoples are likely the most sought after subjects in the areas of molecular anthropology and human genetic variation.  “In molecular anthropology, researchers use Indigenous DNA to develop theories of ancient-human migrations.”  In human genetic variation, researchers have developed large-scale projects to collect DNA from Indigenous peoples.  

In these instances, it is often very difficult for Indigenous peoples to repatriate their DNA; there are limited ways to hold researchers accountable once DNA leaves Indigenous territories.  According to the authors, “[i]t is therefore essential for tribes to lay the ground rules for use of their peoples’ genetic material before the research project commences.”  

The article then examines existing tribal power to pass laws to regulate non-Indian researchers’ conduct. Because “tribes have the power to create laws that protect the health, safety, and welfare of the tribe and its members on their lands,” the article emphasizes that “tribes should assert their sovereignty by developing and adopting tribal laws that will control research proposed within reservation boundaries and will protect their cultural property, whether it be songs, artifacts, sacred sites, remains of the ancestors, traditional medicines, Indigenous knowledge about such medicines, or human and non-human genetic material.”  

Tribes already have used various methods to assert sovereignty over their cultural property. “Some have issued declarations, others have adopted policies or guidelines; some have enacted codes or ordinances, while others have developed model contracts; and still others have litigated to protect their rights and interests.” However, very few tribes have enacted laws “to specifically address the protection of genetic material and related Indigenous knowledge.”  

The article thus describes a model tribal law, the Indigenous Research Protection Act (IRPA), developed by the Indigenous Peoples Council on Biocolonialism (IPCB). The model law helps tribes to “protect their peoples and resources from unauthorized research; to reduce the adverse affects of research on the Tribal community; to ensure that researchers recognize Tribal control and ownership of all information generated or produced by the research; and finally, to establish a statutory basis for the governance of research within their jurisdictions.”   

The IRPA makes a number of recommendations to tribes, including developing a tribally established Research Review Committee (RRC) that reviews, oversees, and acts as liaison between researchers and the tribal community. It also proposes principles to guide the RRC in examining research proposals, including the “Principle of Respect,” “Principle of Inherent and Prior Rights,” “Principle of Self-Determination,” and “Principle of Inalienability.”   

In particular, the IRPA deals with issues around the publication of sensitive or misrepresentative information or findings.  For example, it suggests a “Principle of Confidentiality” that gives the tribe “the right to exclude from publication and/or keep confidential any information concerning their tribal identification, tribal members, families, clans, bands, culture, traditions, mythologies, or spiritual beliefs.” It also suggests that the tribe reserve its “right to withdraw consent to use or release information and/or prevent the publication of data that is unauthorized, insensitive, or misrepresentative, data that stereotypes the tribe, or data that will harm the health, safety, or welfare of the tribe.”  In addition, according to the IRPA, research proposals “must demonstrate a process that provides the tribe with an opportunity to review, critique, and approve the results of studies before any publication, presentation, or public release occurs.”   Finally, when the research or project is completed, “the biological samples must be completely and fully returned to the possession of the tribe.”  

In sum, the authors urge Indigenous peoples to be creative and assertive when developing their own their own codes and laws to ensure that their biological and cultural property is protected “in a manner consistent with their own cultural values, traditions, and customs.”  

Danielle Conway-Jones, Safeguarding Hawaiian Traditional Knowledge and Cultural Heritage: Supporting the Right To Self-Determination and Preventing The Co-Modification of Culture, 48 How. L.J. 737 (2005).

In this article, Professor Danielle Conway-Jones promotes “a Hawaiian-centric view of the protection of traditional knowledge and cultural heritage.” She contends that “the domination of Western intellectual property law over Western markets should not extend to the traditional knowledge and cultural heritage of Native Hawaiians.” She argues that the protection of Native Hawaiian traditional knowledge and cultural heritage must originate with Native Hawaiians, not from Western intellectual property laws that promote the “commodification of culture.”  

According to the author, when Western academics discuss the topic of intellectual property and Indigenous peoples, they tend to marginalize Native perspectives and approach traditional knowledge and model protections from a Western perspective.  She contends that “to do justice” to the issues Native Hawaiians and other Indigenous Peoples face, “the rhetoric and discourse for protecting and safeguarding traditional knowledge [must] be cast in terms of the Native Hawaiian and Indigenous Peoples’ worldviews, not from the Western perspective, which idolizes trade, individualism, and radical free markets.”  

She explains that Native Hawaiian protection of traditional knowledge practices is an assertion of self-determination. Specifically, she describes the Paoakalani Declaration, in which Native Hawaiians have asserted that they “have the right to self-determination … which includes determining the appropriate use of their traditional knowledge, cultural expressions and art-forms, and natural and biological resources.”   “For Native Hawaiians, knowledge is not regarded as property subject to individual ownership, but ‘deeply personal and spiritual,’ a resource not subject to exploitation and misappropriation.”  

The author also emphasizes the significance of the Native Hawaiian relationship to land to the discussion around the protection of traditional knowledge and cultural heritage.  “In stark contrast to the individual and private ownership that defines Western notions of landholding, Hawaiians perceive and relate to land as an elder sibling, a resource that should receive care, protection, and respect from the collective.”  Before Western contact, Native Hawaiians did not view their relationship to the land “as alienable because there was no reference in Hawaiian culture to the land belonging to a person.” The institution of Western property ownership worked to sever Native Hawaiians’ connections to the land. Even today, “[w]ith Western attempts to exclude Native Hawaiians from their land and commensurate attempts to diminish Native Hawaiian power, Native Hawaiians face an assault on their way of life, including their efforts to protect their traditional knowledge and cultural heritage.”   

Conway-Jones also describes the significance of political status to the safeguarding of Native Hawaiian traditional knowledge and cultural heritage. To begin to deal with the “degradation of cultural knowledge that colonialism causes,” she contends, “it is critical to recognize the political status of a colonized people so that the community can repair itself.” She cites the United Nations Economic and Social Council Commission on Human Rights, which acknowledges that “the protection of cultural and intellectual property is connected fundamentally with the realization of the territorial rights and self-determination of indigenous peoples.”  She contends that “Native Hawaiians, Indigenous Peoples, and other colonized peoples must be recognized politically if they are to re-teach, renew, and re-learn the tenets that comprise their cultural identity.”  

Accordingly, the protection of traditional knowledge of Native Hawaiians is a matter of political status and recognition.  For Conway-Jones, protecting Native Hawaiian traditional knowledge “by recognizing the political status of Hawaiians and affirming their struggle for self-determination has the symbiotic benefits of maintaining cultural cohesion and the protection of the greater public welfare.”  

Conway-Jones also describes the harms faced by Native Hawaiians resulting from the “commodification of culture, specifically, harms to health, the environment, and sustainability.” She argues that continued cultural commodification certainly will lead to “continued degradation of non-renewable resources, biopiracy, the unfair and inequitable distribution of benefits arising from research and intellectual knowledge in the islands, and the lack of respect for traditional knowledge-holders.”  In addition, commodifying Native Hawaiian culture fails to recognize the multitude of Native Hawaiian rights including gathering rights, access rights, resource management rights, and consultation rights.   

She also explores the conflicts between Native Hawaiian responsibility to protect traditional knowledge, and the “radical free market forces that promote global capitalism and free trade in the commodification of Indigenous Peoples’ culture while simultaneously restricting the same market forces from operating on the Western intellectual property owned and controlled by captains of industry.”  In order to stimulate trade, captains of industry have pushed for the universality of intellectual property laws through the Trade Related Aspects of Intellectual Property (TRIPs) agreement.  She points out that “[w]hat was not made transparent in the push for the universality of intellectual property laws is the hypocrisy of strong intellectual property protection according to the Western narrative of intellectual property with no commensurate protection for other valued information, like traditional knowledge or cultural heritage, according to an Indigenous narrative.”   

Thus, because “Western views and application of Western doctrine are inconsistent with the worldviews of Native Hawaiians in the area of protection of traditional knowledge and cultural heritage,” the “protection of Hawaiian traditional knowledge and cultural heritage has to emanate from a sui generis system originating with Native Hawaiians.”