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Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights Washington Law Review Volume 87 Number 4 12-1-2012 Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights Rebecca Tsosie Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr Part of the Human Rights Law Commons, and the Indian and Aboriginal Law Commons Recommended Citation Rebecca Tsosie, Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights, 87 Wash. L. Rev. 1133 (2012). Available at: https://digitalcommons.law.uw.edu/wlr/vol87/iss4/5 This Article is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact [email protected]. 07 - Tsosie Article.docx (Do Not Delete) 12/7/2012 7:38 PM INDIGENOUS PEOPLES AND EPISTEMIC INJUSTICE: SCIENCE, ETHICS, AND HUMAN RIGHTS Rebecca Tsosie Abstract: This Article explores the use of science as a tool of public policy and examines how science policy impacts indigenous peoples in the areas of environmental protection, public health, and repatriation. Professor Tsosie draws on Miranda Fricker’s account of “epistemic injustice” to show how indigenous peoples have been harmed by the domestic legal system and the policies that guide the implementation of the law in those three arenas. Professor Tsosie argues that the theme of “discovery,” which is pivotal to scientific inquiry, has governed the violation of indigenous peoples’ human rights since the colonial era. Today, science policy is overtly “neutral,” but it may still be utilized to the disadvantage of indigenous peoples. Drawing on international human rights law, Professor Tsosie demonstrates how public policy could 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. By incorporating human rights standards and honoring indigenous self-determination, 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 as they respond to the ethical and legal implications of their work. INTRODUCTION .............................................................................. 1134 I. NATIVE NATIONS AND THE JURISPRUDENCE OF “DISCOVERY”: INDIGENOUS PEOPLES AND NINETEENTH CENTURY SCIENCE ...................................... 1137 A. The Differences Between Western and Indigenous Thought .............................................................................. 1137 B. The Impact of Nineteenth Century Science Policy upon 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. Professor Tsosie benefitted from the lively discussion that emerged at that meeting among conference participants, as well as the comments of the faculty and staff of the University of Washington School of Law who attended a colloquium on this paper last February. Professor Tsosie is very grateful to her ASU student research assistants, Tara Houska (LL.M. candidate) and Michael Malin (J.D. candidate), who spent countless hours helping to finalize the manuscript, and she extends a special thanks to ASU President Michael Crow, Provost Elizabeth Phillips, and Dean Doug Sylvester for granting the sabbatical leave that allowed this Article to be completed. Finally, Professor Tsosie thanks Kathleen Kline, the Chief Managing Editor of the Washington Law Review, as well as all of the other members of the Law Review who assisted with this Article, for their patient and tireless work in finalizing the Article for publication. 1133 07 - Tsosie Article.docx (Do Not Delete) 12/7/2012 7:38 PM 1134 WASHINGTON LAW REVIEW [Vol. 87:1133 Indigenous Peoples ............................................................ 1141 C. Contemporary Science Policy and the Legacy of the Past . 1148 II. SCIENCE AND ETHICS: THE PROBLEM OF EPISTEMIC INJUSTICE ................................................................................. 1150 A. Understanding Epistemic Injustice .................................... 1152 B. Testimonial Injustice .......................................................... 1154 C. Hermeneutical Injustice ..................................................... 1158 D. Structural Forms of Epistemic Injustice Impair Equal Citizenship ......................................................................... 1162 III. CONTEMPORARY CASE STUDIES INVOLVING INDIGENOUS PEOPLES AND SCIENCE POLICY ................ 1164 A. Environmental Policy ......................................................... 1165 1. The Legacy of Nineteenth Century Land Policy .... 1165 2. Twentieth Century Policies Governing Environmental Regulation and Energy Development Emerge from Nineteenth Century Federal Land Policy ................................................ 1168 B. U.S. Health Policy .............................................................. 1175 1. U.S. Public Health Policy and Native Peoples ....... 1176 2. Native Peoples and Health Care Innovation ........... 1179 C. Repatriation Policy ............................................................. 1181 1. Overview of NAGPRA ........................................... 1182 2. Ancient Human Remains and Contemporary Injustice ................................................................... 1184 3. The Contemporary Policy Debate over Culturally Unidentifiable Human Remains .............................. 1186 IV. SCIENCE, ETHICS, AND HUMAN RIGHTS ......................... 1189 A. The Argument for Integrating International Human Rights Norms into Domestic Law ...................................... 1190 B. International Human Rights Law as a Tool of Public Policy ................................................................................. 1192 C. Human Rights Law and the Public Policy Arena: Envisioning a Different Future........................................... 1196 1. National Environmental Policy and Indigenous Rights ...................................................................... 1196 2. National Health Policy and Indigenous Rights ....... 1198 3. Indigenous Peoples and U.S. Repatriation Policy... 1200 CONCLUSION .................................................................................. 1201 INTRODUCTION Scientists and scientific organizations are increasingly challenged to 07 - Tsosie Article.docx (Do Not Delete) 12/7/2012 7:38 PM 2012] INDIGENOUS PEOPLES AND EPISTEMIC INJUSTICE 1135 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.1 These concepts are also relevant to adaptation planning in an era of climate change.2 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,3 which provides important standards to improve domestic public policy. Today, federally-recognized Native Nations within the United States operate as separate sovereign governments.4 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.5 Although contemporary tribal governments have a growing presence in the domestic political arena, prevailing 1. See Rebecca Tsosie, Cultural Challenges to Biotechnology: Native American Genetic Resources and the Concept of Cultural Harm, 35 J. L. MED. & ETHICS 396 (2007) (discussing biomedical research). 2.See Rebecca Tsosie, Climate Change, Sustainability and Globalization: Charting the Future of Indigenous Environmental Self-Determination, 4 ENVTL. & ENERGY L. & POL’Y J. 188 (2009) (discussing energy development and adaptation planning). 3. U.N. Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, ¶ 3, U.N. Doc. A/RES/61/295 (Oct. 2, 2007) [hereinafter Declaration]. 4. Montana v. United States,
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