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Rebecca Tsosie

Abstracted from: Rebecca Tsosie, Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights, 87 Washington Law Review 1133 (December, 2012) (448 footnotes)


Scientists and scientific organizations are increasingly challenged to incorporate human rights standards into their disciplinary methods and professional codes of ethics and to explore the impact of their work on indigenous peoples. In particular, indigenous knowledge and benefit-sharing are vital considerations for contemporary biomedical researchers. These concepts are also relevant to adaptation planning in an era of climate change. In many ways, these fields of research are at the cutting edge of scientific inquiry relative to human health and the environment, and they will continue to be of vital importance to our collective future. In the United States, public policy often promotes certain forms of scientific research, for example, by providing grant initiatives from government entities such as the National Institutes of Health or Department of Energy. However, this research often implicates many legal and ethical controversies, indicating that there is still a great deal of work to be done at the intersection of scientific ethics and human rights.

This Article discusses the use of science as a tool of public policy and examines how science policy impacts indigenous peoples. More specifically, this Article focuses on three areas of public policy in which science has disregarded indigenous human rights: environmental protection, public health, and the repatriation of ancestral human remains. Ignoring indigenous rights in setting policy over these three areas impairs tribal interests in protecting their land, identity, and cultural heritage. These interests are all key components of the right to self-determination recognized by the U.N. Declaration on the Rights of Indigenous Peoples, which provides important standards to improve domestic public policy. Today, federally-recognized Native Nations within the United States operate as separate sovereign governments. They exercise jurisdiction over their members, as well as their territory, including nonmembers who enter tribal lands or enter transactions with the tribe or its members. Although contemporary tribal governments have a growing presence in the domestic political arena, prevailing federal policies governing environmental protection, public health, and the repatriation of ancestral human remains, continue to impact them heavily. Historically, the federal government did not consider the interests of the tribal governments in shaping domestic policy in these three areas. Consequently, the application of these policies has often harmed Native peoples.

Unfortunately, standard legal theories cannot redress many of these harms because the existing frameworks of property, torts, and contract law often fail to adequately account for the indigenous peoples' interests. Of course, that does not mean that the harm did not exist. Drawing on Miranda Fricker's account of “epistemic injustice,” this Article argues that indigenous peoples have been harmed by the domestic legal system in their capacity as “giver[s] of knowledge” and in their capacity as “subject[s] of social understanding.” In particular, the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples' human rights since the colonial era.

This Article takes the position that science policy can promote effective partnerships and facilitate the realization of human rights if guided by appropriate ethical constructs. Too often, public policy discourse portrays the interests of scientists as being opposed to those of indigenous peoples. This is a false dichotomy. Scientific knowledge can be used for broad public benefit, thereby serving indigenous peoples as well as others. All this requires is that the relevant harms are identified and addressed. International human rights law presents an array of principles that can structure a more positive collaboration between scientists and Native peoples on issues of mutual concern, thereby leading to positive changes in domestic law and policy.

Part I of this Article will discuss the history of science policy as it has impacted indigenous peoples. Part II of the Article draws upon Miranda Fricker's account of epistemic injustice to illustrate the nature of indigenous peoples' claims and the harms that have arisen through the legal system's inability to recognize these claims. In Part III, the Article discusses three areas of policy development that have created conflicts between indigenous peoples and scientists. Finally, Part IV discusses several principles of international human rights law relevant to future policy development in these three areas and suggests how existing scientific and legal frameworks can be transformed to better reflect contemporary human rights norms.

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This Article has explored how science policy impacts indigenous peoples, and it has advocated a shift from treating indigenous peoples as objects of “scientific discovery” to working respectfully with indigenous governments as equal participants in the creation of public policy. While many people acknowledge the overt racism and cultural superiority of nineteenth century science policy, few understand that those nineteenth century themes continue to impact indigenous rights within the United States in areas such as environmental policy, health policy, and repatriation policy. These areas of public policy have had tremendous impact on Native peoples in the United States, demonstrating the pervasive “epistemic injustice” caused by the uncritical application of Western values, categories, and standards to the very different social experience of Native peoples.

American society has harmed indigenous peoples within domestic social, political, and legal structures both in their capacity as “givers of knowledge” and in their capacity as “subjects of social understanding.” By incorporating human rights standards and honoring indigenous self-determination as both a legal right and a moral consideration, domestic public policy can more equitably respond to indigenous peoples' distinctive experience. Similarly, scientists and scientific organizations can incorporate human rights standards into their disciplinary methods and professional codes of ethics in order to explore the ethical and legal implications of their work on indigenous peoples.

The United Nations Declaration on the Rights of Indigenous Peoples calls for nation-states to engage indigenous peoples in a set of processes designed to effectuate a more just framework for the realization of basic rights and fundamental freedoms. This international human rights framework supports the ability of indigenous peoples to claim their sovereign right to live according to their own norms and values within the nation-states that now encompass them, and to fully participate within the domestic structures that determine whether “justice” will truly be for all.

. Willard H. Pedrick Distinguished Research Scholar and Professor of Law, Arizona State University. This article is based on a keynote lecture given by Professor Tsosie at the 2012 AAAS Science and Human Rights Coalition meeting held in Washington, D.C