Susan K. Serrano, Director of Educational Development
Derek Kauanoe, 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 issues facing Native Hawaiians and other Indigenous peoples. This issue of Ka He‘e summarizes articles on different aspects of self-determination, including the concept of “nationhood” under domestic U.S. law and contemporary international law, the institutional protection of traditional Hawaiian knowledge, and the implications of international court decisions on the political rights of Indigenous peoples.

1. Rebecca Anita Tsosie, What Does It Mean To “Build A Nation”? Re-Imagining Indigenous Political Identity in an Era of Self-Determination, 7 ASIAN-PAC. L. & POL’Y J. 38 (2006).

This article “concerns the concept of ‘nationhood’ for indigenous peoples.” Professor Tsosie first asserts that “Hawai‘i is a vitally important site for the articulation of self-determination because of its unique history and because of the different political and cultural context of Native sovereignty[.]” In considering how one might re-imagine the Nation of Hawai‘i today, she examines three frameworks: domestic Federal Indian law, the international human rights model, and “cultural sovereignty … a process of imagining nationhood and sovereignty from within the indigenous nation itself.”

The author first describes the history, development and elements of Federal Indian Law. She focuses, in particular, on the relevance of three U.S. Supreme Court cases known as the Marshall Trilogy (Johnson v. McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia), which together provide the framework for treating Indian nations as “domestic dependent nations.”

She emphasizes that “Federal Indian law developed two important features: first, the idea that Congress possesses ‘plenary power’ to regulate Indian tribes; and second, the idea that this Congressional power is modified by the ‘trust responsibility’ of the federal government to act in the best interests of its Indian ‘wards.’” Under this model, while Tribes have the right of self-governance, the emphasis is clearly on their “dependent” status. According to Tsosie, “this ‘dependency’ is what ensures that the federal government is the supreme sovereign, and that the Indian nations operate within the larger federal structure.” Moreover, the federal government’s trust responsibility, which is “moral” rather than legally enforceable, “has not been effective to constrain Congressional action that harms tribal interests.”

The author also explains that Tribes, as domestic dependent nations, have a “quasi-sovereign” status. Congress, therefore, can constitutionally pass special legislation on behalf of tribes because they have a group status that is “political” and not purely “racial.” With quasi-sovereign status, “tribes have the ability to appeal to the federal government to administer their programs under federal law, and that they should generally be accorded this right in the interests of enhancing tribal “self-governance.”

Questions regarding tribal sovereignty have been left unanswered by the U.S. Supreme Court. These unanswered questions arise from United States v. Lara, which highlights “the Court's growing discomfort with tribal sovereignty.” For example, Justice Thomas’ concurring opinion in that case described Federal Indian Law as schizophrenic and at odds with itself. The dissenting opinion by Justices Souter and Scalia “sets up a tension between Congress and the Supreme Court as to which branch has the power to decide the future of tribal sovereignty, and further indicates that the ‘domestic dependent nation’ model is not a repository of ‘true’ sovereignty.”

Tsosie then describes the second framework, the international human rights model. Part of an older natural rights tradition, this model is “associated with the idea of civil rights, leading some countries, such as the United States, to claim the … model as largely disruptive of the constitutional and statutory civil rights already present under domestic law.” For the author, the key question is “whether indigenous peoples are ‘peoples’ for purposes of Article 1 [of the International Covenant on Civil and Political Rights], or whether ‘self-determination’ means something different for indigenous peoples.” In addition, international law focuses on nation-states and “protects the stability of this global structure” rather than on non-state entities such as indigenous peoples. Thus, “while indigenous peoples are attempting to carve out a space within the larger global structure by employing constructs of international human rights, they are still excluded from the brotherhood of nations that characterizes international law.”

Tsosie describes the relevant aspects of international law, including the International Covenant on Civil and Political Rights and the United Nations Draft Declaration on the Rights of Indigenous Peoples. She also discusses three conceptual structures within international law that may apply to Indigenous peoples’ claims: “nondiscrimination,” “minority rights,” and “self-determination.” She emphasized that self-determination claims, while perhaps most relevant, are the least understood. She then shares some insight on self-determination and which groups are entitled to raise such claims.

Finally, the author describes the third model, “cultural sovereignty,” as “the effort of Native peoples and Native nations to exercise their own norms and values in structuring their collective future.” In other words, sovereignty must be defined from “within.” She argues that Native Hawaiians are currently engaged in this process.

Tsosie then highlights possible options for Native Hawaiians. One model is full and independent sovereignty. Another option is the formation of a nation with a protectorate relationship with the United States. Another model is the domestic dependent nation (of which the Akaka Bill is only a preliminary step). The last example is similar to the Nunavut territory in Canada, which is a hybrid model expressed through a domestic, democratic participatory structure.

For the author, there is a compelling argument that the Nation of Hawai‘i can be recognized again as a full and independent sovereign. The doctrine of discovery (applied to the Indian nations by the Supreme Court in Johnson v. McIntosh to justify the taking of native lands) was never applied to the Hawaiian people; rather, the Hawaiian Kingdom was internationally recognized as an independent sovereign. In addition, “[u]nlike the Indian treaties, the treaties of peace and friendship with the Kingdom of Hawai‘i did not place the Kingdom under the ‘sole and exclusive protection’ of the United States. These facts completely distinguish the historical position of the Kingdom of Hawai‘i from that of the American Indian nations as a matter of international and domestic law.”

Tsosie then considers whether “the contemporary experience of the Hawaiian people [can] be linked to that of American Indian and Alaska Native peoples through a common identity of ‘indigenous people[.]’” She emphasizes that Native Hawaiians do not fit within the domestic dependent nation model for three main reasons: the Hawaiian monarchy was not a tribal structure, Hawaiian Kingdom citizenship was not restricted to aboriginal Hawaiians, and the Hawaiian Kingdom had a complex system of land titles “quite different than American Indian claims to ‘aboriginal title.’” Thus, the Hawaiian Kingdom fits within the model of the “civilized nations” for which Chief Justice Marshall would have prescribed different rules.

2. Gregory K. Schlais, The Patenting of Sacred Biological Resources, The Taro Patent Controversy in Hawai‘i: A Soft Law Proposal, 29 U. HAW. L. REV. 581 (2007).

This article focuses on the patenting of certain kalo (taro) varieties by the University of Hawai‘i, while exploring the shortcomings of Western intellectual property law in protecting Indigenous peoples’ intellectual property around the globe. Before describing the events and facts surrounding the University’s kalo patenting efforts, the author discusses patent and copyright law and the conflict of values between indigenous communities and profit-driven entities and individuals.

In describing the difficulty of applying patent law to traditional knowledge, Schlais explains that patents are used as incentives to provide individuals with the exclusive opportunity to capitalize on their inventions or discoveries that are either new or novel. Because traditional knowledge is developed over time, applying the “new or novel” intellectual property law requirement is nearly impossible.

The existence of an identifiable inventor is also usually a necessary requirement. The author points out that traditional knowledge is not invented by a single person, but comes from the experiences of different people spanning generations. In addition, copyright law, which normally applies to written and printed forms of expression that are unique works of authorship, does not usually cover oral expressions shared between generations.

As Schlais explains, indigenous groups tend to use and share traditional knowledge within their communities. If indigenous traditional knowledge is owned at all, it belongs to (or is shared by) the community as a whole, rather than the exclusive benefit of any one person. Patent and copyright law, on the other hand, is designed to protect individual owners of inventions, patents or written modes of expression.

Native Hawaiians’ relationship to kalo is important to traditional Hawaiian spirituality. Kalo, as an ancestor to Native Hawaiians, is integral to cultural identity. Due to this pivotal role in Hawaiian culture, history and spirituality, the concept of creating and owning “hybrid” kalo created from Hawaiian kalo is offensive to many Native Hawaiians.

In an effort to reconcile the interests and rights of Indigenous groups with companies’ interests, the author suggests a soft law proposal, which looks to the Convention on Biological Diversity as a framework. The Convention was “one of the key agreements adopted at the Earth Summit of 1992, [and] is a comprehensive multilateral agreement signed by 190 nations that attempts to address all aspects of biological diversity and sustainable development.” The author asserts that the protection of traditional knowledge is intimately linked to safeguarding the cultural integrity of indigenous peoples. For him, Western organizations need to recognize this and ensure that traditional knowledge is not misappropriated in violation of indigenous peoples’ rights to cultural integrity.

The author also points out that indigenous groups often have their own laws and principles governing the use of traditional knowledge. By respecting these laws and principles, commercial organizations will be better able to respect and access indigenous knowledge.

The Convention on Biological Diversity requires that “signatory parties perform environmental impact assessments on activities that may have a detrimental effect on biodiversity.” The author contends that cultural impacts should be evaluated as well. Such an evaluation will not only assist in safeguarding the interests of indigenous peoples, but can also yield critical information before working with an indigenous community. Highlighting two examples, Schlais contends that practices like these are not uncommon.

For the author, mutuality and equitable sharing of benefits is also important. It has been estimated that less than 0.001 percent of profits from drugs developed using indigenous, traditional knowledge have been equitably shared with the indigenous peoples who developed such knowledge. The equitable sharing of benefits is consistent with the cultural value system and worldview of Indigenous peoples and should be required to benefit indigenous communities.

In addition, Schlais argues, prior informed consent should be required. Prior informed consent “gives parties to the Convention the chance to assess the benefits and risks of taking part in any research endeavor before the resources are shared or any collaborative research is done.” Prior informed consent should also specify uses for which consent has been granted. Prior informed consent should be obtained for any change in the use of the indigenous, traditional knowledge or material, including the utilization of the knowledge by third parties.

The author also asserts that “[a] time frame governing use of indigenous, traditional knowledge should be established by the parties and should not only include absolute time limits for the use of the traditional knowledge, but should also include establishment of milestones and the requisite obligations incurred at each milestone.” The establishment of a time frame should ensure that benefits are shared with indigenous communities at corresponding points throughout the process of developing a marketable product from the indigenous, traditional knowledge. Establishing a time frame that institutionalizes compensation or renewed negotiations at the various milestones that may be achieved during the process of research and development of a marketable product may help to address concerns regarding the misappropriation of indigenous, traditional knowledge.

For the author, relationship building is crucial to both sides. In particular, it is important for Western organizations to understand that a relationship of trust is essential to profitable access to indigenous, traditional knowledge. Such a relationship of trust can play a meaningful role in ensuring the needs of both Western organizations and indigenous peoples.

3. Maia Sophia Campbell, The Right of Indigenous Peoples to Political Participation and the Case of Yatama v. Nicaragua, 24 ARIZ. J. INT’L & COMP. L. 499 (2007).

This article describes the impact of the Inter-American Court of Human Rights’ ruling in the case of YATAMA v. Nicaragua. According to the author, the case “is a landmark legal precedent for guaranteeing indigenous peoples the right to political participation.”

YATAMA, or Yapti Tasba Masraka Nanih Asla Takanka (Organization of the Children of Mother Earth), is a major indigenous political party whose membership is primarily Miskito Indian. It is “the successor of an association originating in the 1970s as the principal organization of the indigenous peoples of the Atlantic Coast of Nicaragua … [that] promotes indigenous self-government and seeks to protect indigenous ancestral territories.” The party’s organizational and electoral structure “is linked to the traditions and customs of the indigenous communities of the Atlantic Coast and is part of their cultural identity.”

As the author describes, in 2000, Nicaragua denied YATAMA participation in municipal elections based on a technical requirement of a new election law. As a result, “between 85% and 95% of voters in the Atlantic Coast region of Nicaragua abstained from voting in the elections.” The law had “required all political organizations, including YATAMA, to change their traditional methods of organization and fulfill a series of strict requirements to participate as a political party.” It required parties to register candidates in 80% of municipalities and “forced YATAMA to restructure its indigenous customary organization in a way “antithetical to its traditional organization, which was based on ‘communitarian democracy.’” When the YATAMA party received no redress in Nicaraguan domestic courts, the party turned to the Inter-American Court of Human Rights.

In YATAMA v. Nicaragua, the Inter-American Court of Human Rights ruled that Nicaragua violated Article 23 (the right to political participation) and Article 24 (the right to equality before the law) of the American Convention on Human Rights. According to the author, the court’s ruling “marks the first time an international tribunal has found that a state violated political rights and equal protection rights by denying the political participation of an indigenous group.”

The decision interprets the right to political participation for indigenous peoples to include “the specific rights to (1) special remedial measures and procedural safeguards to ensure effective participation and (2) participate in national political systems according to indigenous traditional systems.” As the author asserts, “[b]y recognizing the rights of indigenous peoples to effectively participate in the national politics of the dominant society, in accordance with their traditional forms of organization and practices, YATAMA v. Nicaragua advances the rights to self-determination and equality for indigenous peoples.”

Among other things, as Campbell explains, the court determined that the universal rights of equality and political participation give rise the state’s obligation “to adopt affirmative and differentiated measures to guarantee the participation of indigenous groups under conditions of equality and to take into consideration their customary forms of organization.” Thus, “Nicaragua is obligated to ‘adopt all the necessary measures to guarantee that members of indigenous and ethnic communities of the Atlantic Coast of Nicaragua can participate, under conditions of equality, in the development of policies that influence, or could influence, their rights and the development of their communities.’” In addition, those “measures should be adopted through the indigenous community’s own institutions and ‘in accordance with their values, uses, customs, and forms of organization.’”

According to the author, the Court also ordered Nicaragua to institute remedial measures, including: publishing in its official newspaper and other newspapers of national circulation portions of the Court’s order and transmitting them by radio in the three indigenous languages of the region (Miskito, Sumo, and Rama) and in Spanish and English; creating, within a reasonable time, a judicial resource that is simple, speedy, and effective to regulate the decisions of the Supreme Electoral Council, the branch of government that controls elections; and paying damages and expenses. Most importantly, the author argues, the court held that “Nicaragua shall adopt, within a reasonable timeframe, necessary measures so that the members of indigenous and ethnic communities ‘can effectively participate in electoral processes, taking into consideration their traditions, uses and customs.’”

Campbell then identifies and explains a number of international human rights instruments and suggested that international practice, now reinforced by the YATAMA decision, “shows movement toward a widespread international consensus and a norm of customary international law affirming special rights of political participation for indigenous people.”

Finally, she highlights Latin American states’ legislative and constitutional provisions that provide mechanisms to encourage indigenous political participation and that contribute to emerging customary international law on the issue. According to the author, this domestic legislation “increasingly reflect[s] the norms embodied in international practice that recognize the right to effective political participation of indigenous groups in accordance with their customary laws, values, and traditions.”

For example, the constitutions and laws of Ecuador, Mexico, Guatemala, Nicaragua, and Paraguay “affirm the right of indigenous peoples in particular to participate in the national politics of the state”; Colombia, Peru, and Venezuela have special measures to guarantee indigenous seats within political parties and in national political bodies; Panama’s and Mexico’s laws create special indigenous voting districts; Nicaragua, Colombia, Panama, and Ecuador have autonomous regions for indigenous self-government and grant those “autonomous regions the right to elect representatives in the national government”; and Mexico, Bolivia, Colombia, and Ecuador “allow indigenous peoples to elect representatives and form political parties according to their own customs and traditions.” The author notes, however, that these provisions are only a first step towards solving the problem of indigenous groups’ lack of effective political participation.