American Journal of Law & Medicine

The patentability of the Native Hawaiian genome.

I. INTRODUCTION

In 2003, the University of Hawaii proposed patenting the Native Hawaiian genome with the purpose of generating both economic- and health-related benefits for the Native Hawaiian people. (1) This proposal, however, was strongly opposed by the Native Hawaiian community, which viewed it as an unwelcome imposition of Western property concepts upon their traditional ideology. (2) Population-based genetic databases are not an entirely new concept. The governments of Iceland and Estonia have created national genetic databases and assumed authority over their ownership and operation. (3) Iceland has even licensed its genome to a private company. (4) Furthermore, the United States has previously been involved in patenting the genetic code of other indigenous groups, such as the Hagahai tribe in Papua New Guinea and the native inhabitants of the Solomon Islands. (5) A patent on the Native Hawaiian genome, however, would be unique because it would concern the rights of American citizens.

In Part II, this Note will examine the traditional Native Hawaiian concept of property to understand why patents and other forms of intellectual property are unacceptable from the Native Hawaiian viewpoint. In Part III, this Note will explore the applicability of the United States patent scheme to genetics. In Part IV, other alternatives related to intellectual property law will be discussed. In Part V, this Note will look at the existing scheme of rights available to protect the Native Hawaiian genome from being patented, including the doctrines of informed consent and the right to privacy. The breadth of these protections, however, are unclear. Part VI of this note will discuss the implications for intellectual property law and the impact on Native Hawaiian culture of the Akaka Bill, (6) which provides for a Native Hawaiian government. While the Akaka Bill provides the best opportunity for Native Hawaiians to protect their traditional knowledge, its status is highly uncertain and Native Hawaiians should continue to explore other methods of protection.

II. THE APPROPRIATENESS OF PATENTING NATIVE HAWAIIAN GENETIC MATERIAL

A. GENETIC APPROPRIATENESS

Isolated populations are ideal for genetic studies. First, their genes are easier to study because they are relatively homogenous. (7) In addition, homogeneity may lead to immunity against certain genetic diseases, thus providing important insight into the treatment of those diseases. (8) For example, many members of the Hagahai tribe in Papua New Guinea carry the human T-cell leukemia virus but do not actually have the disease. (9) It was anticipated that research into Hagahai genetics could yield diagnostic tools or vaccines to treat this condition. (10)

One of the best known population genetic databases originated in Iceland. (11) The Icelandic government passed legislation to create a database which included DNA samples of its citizens. (12) This database was then licensed to a private company for research purposes in exchange for funding for maintenance. (13) It was hoped that the database could be used to identify the genes responsible for certain diseases. (14)

Like Papua New Guinea and Iceland, the Native Hawaiian population would be appropriate for a genetic study because it is relatively homogenous. (15) Already an isolated society, the Hawaiian population became even more homogenous as a result of massive epidemics and population reduction during the mid-1880s. (16) During this time, foreigners introduced previously unknown diseases to Native Hawaiians, including measles, whooping cough, mumps, and smallpox. (17) Unlike the foreigners, Native Hawaiians lacked the immune system resistance and suffered significantly high mortality rates. (18)

A genetic study on Native Hawaiians would result in valuable contributions to medical research as well as other benefits for the Native Hawaiian community. A study would likely lead to more research projects regarding Native Hawaiian health issues, including their susceptibility to hypertension, diabetes, and renal disease. (19) Additionally, the Native Hawaiian population would benefit financially if their genetic data were licensed to research entities. (20) Despite these benefits, the proposal by the University of Hawaii to conduct such a study was intensely opposed by the Native Hawaiian community. (21)

B. CULTURAL APPROPRIATENESS

Prior to the arrival of Western explorers, concepts of property and land ownership did not exist in Hawaiian society. (22) The fundamental teaching of the Hawaiian creation chant, the Kumulipo, is that all things in the world are interconnected. (23) Native Hawaiians considered the land to be a living entity and engaged in a reciprocal relationship whereby they cared for the land in exchange for its natural resources. (24) Traditional knowledge was regarded as the product of "millennia of observation, habitation, and experience," and hence access was regarded as a "communal" right, not an individual one. (25)

Similarly, private land ownership was nonexistent in traditional Hawaiian society. An inhabitant of a particular section of land had the right to traverse and subsist off the land as needed. (26) During what was known as the Mahele of 1848, King Kamehameha III introduced private land ownership to the Hawaiian people. (27) Although the king intended to use land ownership as a means to protect the rights of Native Hawaiians, most of them did not accept this approach and instead, the land was quickly purchased by Westerners. (28) From this point on, Native Hawaiians were steadily alienated and supplanted from their own land, until their kingdom was overthrown by a group of Americans and Europeans and subsequently annexed to the United States. (29)

For these reasons, the Native Hawaiian opposition to patenting and licensing their genome is twofold. First, Native Hawaiians believe that "[t]he expression of traditional knowledge is dynamic and cannot be fixed in time, place or form and therefore, cannot be relegated to western structures or regulated by western intellectual property laws." (30) Intellectual property law conflicts with this belief system because it suggests a single, human source behind each writing or invention and contradicts the sense of community. (31) The financial incentive scheme promoting innovation in intellectual property further conflicts with this belief system. (32) Native Hawaiians would rather freely share their cultural knowledge with the world so long as the information was shared in such a way as to not violate their beliefs or encourage privatization and commercialization. (33)

Native Hawaiians additionally oppose patenting and licensing their genome to protect their culture. Specifically, many Native Hawaiians currently view any attempt to impose Western intellectual property systems onto Hawaiian culture as a modern attempt at colonialism analogous to how Western real property systems were imposed upon them during the Mahele. (34) Under this point of view, any imposition of Western culture in any form would be opposed as a threat to traditional Native Hawaiian culture.

As a result of this opposition, the Hawaiian Genome Project was eventually curtailed. (35) Nevertheless, the existence of other gene sequencing projects suggests that Native Hawaiians are still at risk of being subject to wide scale genetic research projects. For example, one of the largest international genetic database projects is the Human Genome Diversity Project ("HGDP"); a project that was supposed to study genetic diversity among humans. (36) It began as an extension of the Human Genome Project, the research endeavor aimed at sequencing the human genome. (37) The HGDP was halted, however, as a result of concerns regarding the exploitation of, and possible discrimination against, indigenous populations. (38) The failure of the HGDP, however, is not the end of the story. In 2002, the International HapMap Project was announced. (39) Similar to the HGDP, the purpose of the International HapMap Project is to create a haplotype map of the human genome to discover the genes related to common ailments such as asthma and cancer. (40) The research process currently involves collecting blood samples from approximately 200-400 subjects in Nigeria, Japan, China, and the United States. (41)

Other countries, such as the United Kingdom, have targeted general populations for genetic research as well. (42) Within the United States, specific ethnic groups have been targeted for genetic research. For example, the Genomic Research in the African Diaspora ("GRAD") Biobank collects genetic information from African-Americans to further African-American healthcare. (43) Thus, population-specific genetic mapping efforts persist in many countries despite the kinds of objections the HGDP faced.

For these reasons, Native Hawaiians must find some avenue of legal protection in the event that interest in the Native Hawaiian genome renews. Current intellectual property law and principles of informed consent and privacy provide some protection for Native Hawaiians to prevent the patenting of their genome. Many of the shortcomings of these laws and principles, however, are likely to be resolved only if Native Hawaiians regain some of the governing power which was lost after their kingdom was overthrown. Before turning to a discussion on a Hawaiian system of government, however, the following will offer a background on the laws and principles that fall short of protecting Hawaii.

III. APPLICABILITY OF PATENT LAW TO GENETIC MATERIAL

Congressional authority to enact intellectual property legislation stems largely from Article I of the Constitution, which states that, "Congress shall have Power . …

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