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. …