Indigenous Cultural Property
Native Hawaiian Law: A Treatise, Chapter 17
Le‘a Malia Kanehe
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Indigenous cultural property encompasses everything that is related to a people’s distinct identity. It includes their human genetic makeup and that of their ancestors, the natural species of flora and fauna with which they have long been connected, and their traditional knowledge passed down through the generations. In this biotechnological age, however, indigenous cultural property faces increasing threats of exploitation, theft, misuse, and commodification. Scientists seek indigenous peoples’ DNA for anthropological, behavioral, medical, and genetic mapping studies; bioprospectors enter indigenous territories in search of plant, animal, and microbial organisms with genetic properties that can be used for pharmaceutical, chemical, and industrial purposes. These activities are almost always undertaken without the informed consent of the indigenous peoples concerned.
This chapter details many of these activities and discusses their negative effects on indigenous peoples around the world. Particular attention is paid to the creation of genetically modified organisms, a development that has potentially ominous consequences for indigenous peoples’ traditional food sources, agricultural systems, health, and environment.
Fortunately, there is growing awareness of the conflict between “biopiracy” and the widely accepted rights of indigenous peoples to protect their cultural and intellectual property. This chapter cites the laws and documents that support such rights on the state, national, and international levels. It describes the efforts made in Hawaiʻi and elsewhere to protect indigenous peoples’ interests, and it proposes further possible means of achieving this goal.
“Indigenous Cultural Property” is Chapter 17 of Native Hawaiian Law: A Treatise, a volume that updates and expands on the seminal work of the 1991 Native Hawaiian Rights Handbook. The publication is a collaborative effort of the Native Hawaiian Legal Corporation, Ka Huli Ao Center for Excellence in Native Hawaiian Law at the William S. Richardson School of Law – University of Hawai‘i at Mānoa, and Kamehameha Publishing.