Indigenous peoples

Conflict on Mauna A Wakea

Monica Williamson

Hawaii News Now

Video ‘Conflict of Mauna Kea,’ a timeline exploring the history of tension over the Thirty Meter Telescope.

Updates here.

Office of Hawaiian Affairs

Mauna Kea.

OHA testimony on the Mauna Kea admin rules.

Draft rules from UH.

Department of Land and Natural Resources

Documents relating to the Thirty Meter Telescope.

Mauna Kea FAQ.

State of Hawai’i, Office of Hawaiian Affairs: “Mauna Kea is a deeply sacred place that is revered in Hawaiian traditions. It’s regarded as a shrine for worship, as a home to the gods, and as the piko of Hawaiʻi Island.

Mauna Kea is also a critical part of the ceded lands trust that the State of Hawaiʻi must protect and preserve for future generations, pursuant to its kuleana as a trustee.

Despite four state audits and generations of Native Hawaiians expressing concern about the threats to Mauna Kea, the state and the University of Hawaiʻi have continuously neglected their legal duties to adequately manage the mountain. Instead, they have prioritized astronomical development at the expense of properly caring for Mauna Kea’s natural and cultural resources.”

Empowering Arctic Indigenous Scholars and Making Connections

Monica Williamson

Call for Applications and Nominations
Empowering Arctic Indigenous Scholars and Making Connections
Arctic Research Consortium of the U.S.
Inuit Circumpolar Council Alaska

Nomination deadline: 28 December 2018, 5:00 p.m. Alaska Standard Time
Application deadline: 10 January 2019, 5:00 p.m. Alaska Standard Time

For more information, go to:
Empowering Arctic Indigenous Scholars homepage

For questions, contact:
Lisa Sheffield Guy
Email: lisa@arcus.org
Phone: 907-474-1600

ILPC/TICA 15th Annual Indigenous Law Conference: Pre-Conference Activities

Monica Williamson

If you’re headed to the banks of the Red Cedar for our Indigenous Law Conference, consider coming early for exciting pre-conference activities!

The Tribal Intern Recruitment & Information Session is a chance for students to network with Tribal In-House Counsel. After, all registrants are welcome to join us downtown East Lansing for a full dinner reception at Beggar’s Banquet.

Register for the conference today!

 

Agenda Promo Pre Conference

Kyle Whyte on Shifting Interactions between Indigenous and Non-Indigenous Parties in US Climate Adaptation Contexts

Matthew L.M. Fletcher

Kyle Whyte has posted “A Concern About Shifting Interactions between Indigenous and Non-Indigenous Parties in US Climate Adaptation Contexts“on SSRN.

Here is the abstract:

Indigenous peoples everywhere are preparing for or already coping with a number of climate change impacts, from rising sea-levels to shifting harvesting seasons. It is plausible that the capacity for environmental protection of two political institutions will change in relation to certain impacts: treaties and indigenous governmental jurisdictions recognised by the federal governments of nations such as the USA or Canada. This essay explores critically whether current solutions for these changes depend far too crucially on non-indigenous parties’ coming to an appropriate understanding of indigenous culture and self-determination.

Sanders on Genomic Research in Indian Country

Matthew L.M. Fletcher

Marren Sanders has posted “Genomic Research in Indian Country: The New Road to Termination?” on SSRN.

The abstract:

Genomic science has generated controversy in the social, legal, and ethical arenas for decades, and indigenous populations continue to be a subject of great interest in this area. This article looks at the recent concept of population genomics, a biotechnology used to help scientists understand how genetic variation relates to human health and evolutionary history. Parts II and III examine the debate among scientists as to the migration of the “first Americans” into North America, a debate that is quickly being influenced by the DNA markers found in the human genome. Part IV surveys the history of scientific research involving indigenous peoples – a history predominantly colored by ignorance and bias – as science was presented as conclusive proof of their savage nature and inferiority as a race. Scientists today proffer evidence that the ancestors of Native Americans were, in reality, colonists who immigrated from Africa, Europe, and/or Asia, and Part V analyzes a number of indicators that point to the possibility of genomic research providing justification for another termination of the special status and rights of Native Americans. Part VI looks at a number of tools that tribes may wish to consider using to help protect the genetic information of their members as they are faced with the seemingly endless need of researchers for Native American DNA. The article concludes that while suppositions of geneticists are in actuality just theories of historic migration, these theories have gained acceptance as fact in mainstream society. Given current indicators, Congress and/or the courts may very well use genomic science to justify another termination of the federal/tribal trust relationship.

Lynn & Whyte: “Indigenous Peoples, Climate Change and the Government-to-Government Relationship”

Matthew L.M. Fletcher

Kathy Lynn and Kyle Powys Whyte have posted “Indigenous Peoples, Climate Change and the Government-to-Government Relationship” on SSRN. Here is the abstract:

Climate change impacts present indigenous peoples with distinct challenges, from the loss of species needed for subsistence practices like fishing and plant gathering, to coastal erosion that may force some communities to migrate away from areas they have inhabited or used for many years. Students, activists, environmental managers, scholars and corporate and political leaders of all heritages should be aware of how indigenous peoples must address climate change impacts from global to community-level scales, and the obstacles they may encounter due to intersecting oppressions, like cultural imperialism and disempowerment. To create such awareness, there is a need for more work that describes the specific sites of interaction relevant to indigenous peoples and climate change. Sites of interaction are the local and regional places where indigenous peoples are in relationships with governments, non-governmental organizations (NGOs), networks and alliances. Better understanding the relationships that indigenous peoples have with these groups and institutions contributes to fostering unique and necessary indigenous approaches to address climate change that reflect their unique cultural connections to the earth. This paper focuses on one of the critical sites of interaction for indigenous peoples in the United States — the government-to-government relationship. While the government-to-government relation is not a new approach, this paper examines how it might operate in indigenous climate change adaptation contexts in the United States. We describe a set of examples of consultation and collaboration and offer seven recommendations that demonstrate the value of tribal responses to climate change.

AALS Indian Law-Related Programs (and Newsletter)

Matthew L.M. Fletcher

Thanks to Ezra Rosser for completing a newsletter for the AALS Indian Law Section: Indian Law Newsletter Jan 2013

The final agenda is here. The Indian-law related programs are all scheduled for Sunday.

10:30 – 12:15 AM
[6250] Section on Indian Nations and Indigenous Peoples
Cambridge, Second Floor, Hilton New Orleans Riverside
Indian Gaming and the Future of Tribal Sovereignty
Speakers: Matthew L.M. Fletcher, Michigan State University College of Law
Venus McGhee Prince, Attorney General, Poarch Band of Creek Indians, Atmore, AL
Alexander T. Skibine, University of Utah, S. J. Quinney College of Law
George Skibine, Counsel, SNR Denton, Washington, DC
Indian gaming, which came to the forefront of American Indian affairs in the 1980s and 1990s, is now a $27 billion a year business. Indian gaming dramatically restored the relative fortunes of some of the poorest tribes, and helped tribes regain control over their lands and their lives. However, with increased competition, Indian gaming revenues have leveled off and projections for the future of Indian gaming widely vary. How will Indian nations respond? Our panel includes leading legal scholars and practitioners in the Indian gaming field.
Business Meeting at Program Conclusion.

2:00 – 3:45 PM
[6425] Crosscutting Program: (A program selected after a competitive process by the AALS Committee on Special Programs for the Annual Meeting)
Grand Ballroom D, First Floor, Hilton New Orleans Riverside
Climate Change and Indigenous Peoples: The Intersection of Environmental Law, Natural Resources Development, Water Law, Energy Law, International Law, and Indigenous Law
(Papers to be published in the Tulane Environmental Law Journal)
Moderator and Speaker: Elizabeth Kronk, University of Kansas School of Law
Speakers: Randall S. Abate, Florida A&M University College of Law
Sara Bronin, University of Connecticut School of Law
Sarah A. Krakoff, University of Colorado School of Law
Judith V. Royster, The University of Tulsa College of Law
Previous AALS panels related to climate change have addressed the increasing importance of including a discussion of climate change in any law school curriculum. The purpose of the panel is to generally discuss the importance of including indigenous people in any discussion related to climate change. Particularly important is the recognition that legal “answers” to climate change may be different when indigenous people are involved. The panel will then focus on how climate change and its impact on indigenous people may be discussed in several different doctrinal areas. Specifically, each presenter will discuss the importance of this subject matter to his or her doctrinal area and include a discussion of how the topic may specifically be incorporated into lesson plans. The proposed topic is innovative in that program attendees will walk away with not only an understanding of why the topic is important but with actual lesson plans and proposed materials to include in their

4:00 – 5:45 PM
[6480] Section on Law and Anthropology
Cambridge, Second Floor, Hilton New Orleans Riverside
Human Rights, Culture, and Indigenous Development
Moderator: Kathryn Fort, Michigan State University College of Law
Speakers: Kirsten Carlson, Wayne State University Law School
Nicole B. Friederichs, Suffolk University Law School
Mark Goodale, Associate Professor, George Mason Institute for Conflict Analysis and Resolution, Arlington, VA
Kirsty Gover, J.S.D., Programme Director, Comparative Tribal Constitutionalism Research Programme, Melbourne Law School, Carlton, Australia
The theme of this panel will be the exploration of several questions related to indigenous development, such as the following:
1.) How can human rights be used to develop a political and cultural environment in which indigenous peoples can achieve self-determination?
2.) What obstacles must be confronted as indigenous peoples use human rights law to assert their rights to resources, culture and self-governance?
3.) What strategies exist to develop the practice of intercultural education, exchange, respect and diplomacy in the field of human rights?
4.) What is the relationship between international human rights norms and processes and indigenous culture and governance?

 

Bob Hershey on Globalization’s Impacts on Indigenous Peoples

Matthew L.M. Fletcher

Robert Hershey has posted his paper, “Globalization and its Special and Significant Impacts on Indigenous Communities,” on SSRN.

Here is the abstract:

Globalization is really a painting of the earth whose rendering can never be truly fixed. Yet, it is emblematic of the social dimensions of human interactions. Globalization has particular urgency for the world’s Indigenous Peoples. Many Indigenous systems of collective economic production and distribution do not conform to capitalism’s cultural emphasis on individual accumulation. This manuscript explores the challenges to Indigenous societies from economic hegemonic regimes, bioprospecting, nature conservation, and extended continuing and derivative impacts. Crucially, Indigenous Peoples do not passively accede to domination by global market forces. Resistance, negotiation, and consultation are common features of Indigenous communities’ interactions with transnational corporations and international economic policy bodies, but the definition and content of these terms play out very differently for distinct societies. The article suggests appropriate protocols for engaging Indigenous societies and recognizes alternatives to domination. It concludes with an examination of how Indigenous Peoples may be embracing internet technologies to further their claims to self-determination.

Kyle Whyte on Indigenous Peoples and Solar Radiation Management

Matthew L.M. Fletcher

Kyle Whyte has posted “Indigenous Peoples, Solar Radiation Management, and Consent,” available in REFLECTING SUNLIGHT: THE ETHICS OF SOLAR RADIATION MANAGEMENT (2012). Here is the abstract:

Funding research on solar radiation management (SRM) is now a policy option for responding to climate change due to the perception that international abatement efforts are creeping along too slowly. SRM research presents a range of problems concerning consent for Indigenous peoples. Indigenous peoples’ landscapes may risk rapid, unforeseen changes that will force communities either to respond under great hardship or migrate elsewhere. Since the science and engineering behind SRM are esoteric to non-experts, legitimate concerns arise about transparency and procedural justice. Indigenous peoples may also contest the very idea of human “control” of global temperatures. In this paper, I will examine what it would take for parties interested in funding, designing, and carrying out early SRM research to fairly respect members and leaders of Indigenous peoples in their current discourses. Ethical concern is warranted. Indigenous peoples have yet to be addressed responsibly about their possible consenting and dissenting views on early SRM research. There is little to no identifiable commitment to establish substantive fora or events for Indigenous peoples to engage with others about whether such research should be conducted in the first place and, if so, what to research and how to conduct empirical inquiries. Policy makers, experts, and private citizens of the developed world have a heavy moral burden to bear if they progress toward early SRM research without engaging in consent processes with Indigenous peoples. I begin in section 2 by claiming that the (arguably dominant) lesser of two evils argument for early SRM research can be construed as invaliding any potential dissenting views of Indigenous peoples. I deepen this claim in section 3 by showing how this argument resembles an argument that has been used throughout history to silence Indigenous peoples from meaningful consent or dissent. I then move on in section 4 to cover the scant literature that suggests possible consent processes for early SRM research. The common theme in this literature is that any fora or events for convening Indigenous peoples regarding SRM research should occur after research has been planned and even begun — thereby defeating the purpose of consent processes altogether. Consent or dissent after the fact is meaningless. In section 5, I argue that consent processes acceptable to Indigenous peoples must be based on partnership and include the following two requirements. First, Indigenous peoples should contribute actively to conversations about how to structure the consent processes in which they would participate. Second, in their interactions with Indigenous peoples, proponents of early SRM research are responsible for addressing them as sovereigns of their territories — despite the colonial conditions in many nations that frustrate Indigenous peoples’ political independence.

Munzer & Raustiala on IP and Indigenous Traditional Knowledge

Matthew L.M. Fletcher

Stephen Munzer and Kal Raustiala have posted “The Uneasy Case for Intellectual Property Rights in Traditional Knowledge” on SSRN. The paper appears in the Cardozo Arts & Entertainment Law Journal, Vol. 27, pp. 37-97, 2009. Here is the abstract:

Should traditional knowledge – -the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes – receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.