Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights

By Tsosie, Rebecca | Washington Law Review, December 2012 | Go to article overview

Indigenous Peoples and Epistemic Injustice: Science, Ethics, and Human Rights


Tsosie, Rebecca, Washington Law Review


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 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 benefitsharing are vital considerations for contemporary biomedical researchers. …

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