Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights
Publication year | 2021 |
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 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 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.(fn1) These concepts are also relevant to adaptation planning in an era of climate change.(fn2) 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,(fn3) which provides important standards to improve domestic public policy. Today, federally-recognized Native Nations within the United States operate as separate sovereign governments.(fn4)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.(fn5) 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.(fn6)
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 "subjects] of social understanding."(fn7) 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.
I. NATIVE...
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