by Susan Serrano Director of Educational Development
Tia Blankenfeld 3L
Malina Koani-Guzman 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. This includes exploring new theories and practical arguments being developed by legal and Indigenous scholars in law reviews and journals. 

In January 2007, the Center co-sponsored a successful 3-day conference: Federalism and the Rights of Indigenous Peoples: Comparative Perspectives and Strategies, which featured legal and Indigenous rights scholars and advocates from Australia, New Zealand, Canada, the United States and Hawai‘i. Speakers engaged in a lively exchange about the laws and policies in each of these countries that impair, and sometimes promote, Indigenous rights.

In this issue of Ka He‘e, we feature summaries of articles authored by some of the speakers from the Federalism conference in order to provide lawyers, community members, students, advocates and legal scholars with greater insight into as well as critical analyses of Indigenous law in various countries.

1. R. Hōkūlei Lindsey, Reclaiming Hawai‘i: Toward the Protection of Native Hawaiian Cultural and Intellectual Property, 1 UCLA Indig. Peoples’ J. Of Law, Culture & Resistance 110 (2004).

In “Reclaiming Hawai‘i: Toward the Protection of Native Hawaiian Cultural and Intellectual Property,” R. Hōkūlei Lindsey argues that indigenous peoples have an inherent right to both protect their culture from misappropriation and determine its fate. Additionally, the “protection and control” of Native Hawaiian cultural and intellectual property “must be achieved in accordance with standards implemented and enforced by the Native Hawaiian peoples as an exercise of self-determination.”

Indigenous peoples view cultural and intellectual property as that which must be nurtured by the group and by individuals, not as personal property. Lindsey therefore maintains that Western notions of property law inadequately protect indigenous cultural and intellectual property because “the underlying concepts of individual monopolization and commodification that form the foundations of intellectual property law are the antithesis of traditional and customary indigenous concepts and precepts.” Moreover, Western law protects only inventors of new ideas, which in turn effectively relegates indigenous knowledge to the public domain -- accessible and available to all who care to use it.

Native Hawaiian cultural and intellectual property has been misappropriated both commercially and via socio-political co-opting. The hula and the concept of aloha have been the biggest victims, commodified by the tourist industry, the state, and local culture, which have perpetuated “the fallacy that ‘things’ Hawaiian belong to everyone in Hawai‘i – that everyone has a right to exploit Native Hawaiian cultural and intellectual property and that everyone has the right to know about Native Hawaiian culture and practice.”  This notion creates a “false sense of respect and ownership” in things Hawaiian. Often, non-Hawaiians often claim to “feel Hawaiian” and be “Hawaiian at heart.”

At the same time, ironically, many Native Hawaiians fail to comprehend the extent of their own “cultural degradation” because they are “colonized to the extent that [they] are unaware of [their] oppression.” Lindsey believes that cultural identity is linked to self-determination, and “the reclamation of Native Hawaiian cultural and intellectual property is…a process of decolonization and self-determination.”

Intellectual property law “exists to foster the dissemination of information through a system of economic incentives and rewards,” which is not compatible with indigenous traditions of respect and protection against exploitation of knowledge. Domestic law embraces “the Lockean labor theory – one should own and reap the benefits of the products of one’s labor.”

U.S. intellectual property law has three major doctrines:  patents; copyrights; and trademarks. First, patents protect those who invent or discover “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvements thereof.” Patent law, however, “does not contemplate the sacredness that indigenous cultures attach to life and life forms, and thus, cannot protect indigenous peoples’ cultural and intellectual property.” In fact, gaining rights to “forms of life is incomprehensible and unacceptable” to native peoples because such resources “are collective and inter-generational” and cannot be sold or transferred to anyone.

Second, copyright law protects an original work for a specified time and gives its author exclusive rights of reproduction. Oftentimes, however, “[i]ndigenous cultural expression is…a product generations old” whose original author is no longer known, and sometimes the product is cumulative. Third, trademarks exist to identify commercial goods “made by a particular craftsman or guild,” and are a means of identifying the source. However, the broad definition of trademark has already proved problematic in the Native American marketplace, resulting in “the perpetuation of dehumanizing stereotypes.” Hence, patents, copyrights, and trademarks are all incompatible with indigenous concepts of property ownership. 

Furthermore, the United States only has two statutes “addressing the protection of Native American cultural and intellectual property – the Indian Arts and Crafts Act of 1990 (IACA) and the Native American Graves Protection and Repatriation Act (NAGPRA).” Native Hawaiians are included in NAGPRA but not IACA. IACA serves to protect Indian arts and crafts from misrepresentation by giving authentic Native American artworks a mark of authenticity.  However, it “overlooks the basic tenet of self-determination” because it fails to allow “individual tribes to promulgate protection systems more responsive” to their own needs.  Moreover, “IACA does not protect against the misuse of Native symbols” and “only guards against misrepresentation of a product’s source.”

NAGPRA was enacted to protect human remains and funerary objects and repatriate them to their native community. While NAGPRA “entertains the concept of group ownership” and “recognizes the federal government’s obligation to ensure that those tribal rights are protected,” the act does not protect against “imitators, infringers, and plagiarizers,” and thus, also falls short of what is acceptable to indigenous peoples.

Three international declarations made in 1995: the Beijing Declaration; the Kari-Oca Declaration; and the Mata‘atua Declaration; have shown more concern for indigenous cultural and intellectual property. The Mata‘atua Declaration called on nation-states to “accept that the cultural and intellectual property rights of indigenous peoples are vested with those who created them.” Moreover, the 1994 Draft U.N. Declaration on the Rights of Indigenous Peoples maintained that “indigenous ‘sciences, technologies, and cultural manifestations’ are included in the concept of indigenous cultural and intellectual property.”

Lindsey argues that while “a system entirely originating from and managed by the Native Hawaiian peoples would obviously be the preferred method to achieve protection, options are available at the federal and state levels and should be seriously considered because “the climate of misappropriation alive in Hawai‘i today requires immediate attention.” “[F]ederal recognition, similar to that which is extended to American Indians” would allow Native Hawaiians to enforce “their cultural and intellectual property rights.” On the other hand, the federal government could enact legislation “to enable state law to control in certain circumstances,” which would allow the state to establish guidelines.  However, Native Hawaiians would, in Lindsey’s opinion, have to be the drafters of the guidelines.

In conclusion, Lindsey argues that “protecting Native Hawaiian cultural and intellectual property provides an opportunity for…economic development, cultural perpetuation, [and] political and social empowerment.” In the end, despite whether international, federal, or state avenues are pursued, “the most effective legal governance of Native Hawaiian cultural and intellectual property…is a sui generis (uniquely created) system” fashioned by Native Hawaiians and based on Native Hawaiian culture, tradition and modern conditions.

2. Claire Charters, Responding to New Zealand's Objections to the Declaration on the Rights of Indigenous Peoples, New Zealand Law Journal (2006).

The UN Declaration on the Rights of Indigenous Peoples (“Declaration”) is a product of more than 20 years of negotiation among states, and between states and indigenous peoples. Discussions began in the mid 1980s and the majority of the articles were not agreed upon by consensus until February 2006. Yet, some articles could not be agreed upon by consensus, including articles of self-determination and rights to lands, territories and resources. With the prospect of reaching a consensus unlikely, the Chair authored compromise text on the remaining articles, using language from proposed amendments (some of which were advanced by New Zealand) and ideas from working group discussions. In June 2006, the UN Human Rights Council (UNHRC) adopted the Declaration. 

According to Professor Claire Charters, the Declaration provides evidence of crystallizing customary international law on indigenous peoples’ rights and is an important tool to add legitimacy to indigenous peoples’ political claims in relation to negotiations between indigenous peoples’ and states (such as “negotiations on the Treaty of Waitangi settlements and opposition to the deletion of references to the principles of the Treaty of Waitangi in legislation”).

In this article, Professor Charters addresses New Zealand’s objections to the Declaration. First, New Zealand expressed concern that a peoples’ right to self-determination “could give indigenous peoples an unqualified right to secede.” However, the Declaration’s right to self-determination is not a unilateral right to secede. Article 4 states that “indigenous peoples have the right to autonomy and self-government in matters relating to their internal and local affairs in exercising their right to self-determination.”  Nothing in the “Declaration may be interpreted as implying…any right to engage in any activity…contrary to the Charter of the United Nations,” which guarantees states territorial integrity and political unity. Furthermore, the Declaration does not overrule existing international secession laws, which expressly limits a peoples’ ability to secede. 

Second, New Zealand argues that the UN working group did not reach a consensus on the Declaration before its adoption by the UN Human Rights Council.  However, a consensus was not forthcoming, as was clear from the inability to agree after over 20 years of negotiating the Declaration’s articles. Professor Charters points out that part of the reason for the lack of consensus was New Zealand’s objections and proposed amendments. 

New Zealand’s third objection was to the provisions that allegedly allow indigenous peoples a veto power over the laws of a democratic legislature.  Professor Charters agrees that this was a per se legitimate state concern. However, she believes it was misstated and misplaced in relation to the Declaration. Article 19 of the Declaration requires consultation and cooperation with indigenous peoples in order to obtain consent rather than a veto. The coverage of these provisions is not universal (as New Zealand implied) and covers only matters affecting indigenous peoples. 

Finally, New Zealand objected because it believed that the Declaration required the recognition of indigenous rights to lands now lawfully owned by other citizens. Indigenous peoples have the right to own, use, develop and control lands they possess.  Regarding other lands not owned by indigenous peoples, they have only the explicit right to maintain and strengthen their “spiritual” relationship with the land, and no rights to control are granted by the Declaration. 

In sum, Professor Charters believes that “New Zealand appears to be undermining international law on indigenous peoples’ rights in a self-interested attempt to make it consistent with New Zealand domestic law.”  Such an attempt is not in the best interest of the majority of indigenous peoples, and thus “New Zealand would do well to support the will shown by the majority of states to raise the bar on international legal recognition of indigenous peoples’ rights, change its position, and support the Declaration.”

See also Christine Zuni Cruz, Four Questions on Critical Race Praxis: Lessons From Two Young Lives in Indian Country, 73 Fordham L. Rev. 2133 (2005) (discussing the role of culture (both the lawyer’s and the client’s) in community lawyering for indigenous peoples, as well as “how clinical instructors and students can prepare to enter distinct communities and practice across cultures.”).

Kent McNeil, The Vulnerability of Indigenous Land Rights in Australia and Canada, 42 Osgoode Hall L. J. 271 (2004) (examining recent Indigenous land rights cases in Australia and Canada—while forcing the courts to confront the colonial reality of European settlement—that share a common theme: “the vulnerability of Indigenous land rights to the creation of third party interests by the Crown.” Because these cases are decided in large part without disturbing the current economic and political structure, Indigenous groups must take this reality into account when deciding whether to take their claims to the Australian or Canadian courts).

Bradford W. Morse, Common Roots But Modern Divergences: Aboriginal Policies in Canada and the United States, 10 St. Thomas L. Rev. 115 (1997) (providing an overview of major issues confronting “Aboriginal and non-Aboriginal Canadians in their search to forge a reconciliation that overcomes historic injustices committed upon the First Peoples of [Canada],” and discussing the historical and current position of Canada’s Aboriginal peoples in comparison to the United States experience).