Excerpted From: Angela Louise R. Tiangco, Selling Aloha: The Fight for Legal Protections over Native Hawaiian Culture, 29 William and Mary Journal of Race, Gender, and Social Justice 489 (Winter, 2023) (254 Footnotes) (Full Document)


AngelaTiangcoWhat does it mean to “steal a culture”?

This question became the center of a 2018 controversy, when a non-Hawaiian Chicago restaurant chain owner trademarked the name “Aloha Poke” and tried to impose their ownership of the phrase over small businesses using some variation of the name. Two prominent targets of the cease-and-desist letters were a downtown Honolulu restaurant and a Native Hawaiian-operated restaurant in Anchorage. The battleground of the situation was the word “aloha,” a word most used and known to greet and say goodbye to people. In Hawaiian culture, however, the word “aloha” encompasses so much more--love, compassion, kindness--to the point where it is built into the Hawai'i Revised Statutes in the “Aloha Spirit” law. The Aloha Spirit law states that everyone “must think and emote good feelings to others,” and it is a central component to the Hawaiian way of life. This effort to steal or take ownership over the word “aloha” itself directly clashes with this way of life.

As such, the situation inevitably resulted in frustration and anger from Hawaiians, specifically Native Hawaiians who have grown up with the “Aloha spirit” not only embedded in their language but their daily life. This Aloha Poke case saw the re-emergence of Hawaiian lawmakers considering a resolution to develop legal protections for Native Hawaiian cultural intellectual property. Currently, there is no legal framework that works to protect distinctively Native Hawaiian cultural heritage or their intangible cultural heritage.

Part I of this Note addresses the lack of federal recognition granted to Native Hawaiians and how, as a consequence, there is next to no legal protection over their culture, at least not in a way that works to specifically protect Native Hawaiian culture. Contrast that with Native Americans--whose culture arguably also does not receive much legal protection--who can at least register trademarks connected to tribal names (i.e., the Navajo Nation). Parts II through VI analyze the current U.S. legal landscape and how it is unsuccessful when it comes to protecting Indigenous cultural property. Informed by those analyses, Parts VII through VIII look at more successful global frameworks for protecting intangible cultural heritage and use those as a foundation for determining the key components of a possible legal framework tailored specifically to protect Native Hawaiian culture.

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While this proposed framework may be a step up from the current state of affairs in the area of cultural intellectual property rights, it still cannot be accomplished without federal recognition of Native Hawaiians. The creation of a Native Hawaiian council to oversee a traditional knowledge and historical sites registry will not occur--much less be federally funded--because the lack of federal recognition leaves it under strict scrutiny, and its “racial-based” classification of members will not pass.

Nevertheless, it is important to start legally protecting Native Hawaiian culture to prevent further commodification. In addition, the creation of these registries can also ensure that these cultural practices are recorded and able to be maintained and passed on to new generations. This preservation is equally important in ensuring that Native Hawaiian culture is not diluted to the point of unrecognizability.

Angela Louise R. Tiangco is a 2023 JD Candidate at William & Mary Law School.