Photo: “Aloha Poke”. Aloha Pokē Co. is Chicago’s pokē pioneer.

Who owns aloha? Hawaii eyes protections for native culture

Hawaii was shocked to learn the Chicago restaurant chain owner had trademarked the name “Aloha Poke”

Last year, much of Hawaii was shocked to learn a Chicago restaurant chain owner had trademarked the name “Aloha Poke” and wrote to cubed fish shops around the country demanding that they stop using the Hawaiian language moniker for their own eateries. The cease-and-desist letters targeted a downtown Honolulu restaurant and a Native Hawaiian-operated restaurant in Anchorage, among others.

Now, Hawaii lawmakers are considering adopting a resolution calling for the creation of legal protections for Native Hawaiian cultural intellectual property. The effort predates Aloha Poke, but that episode is lending a sense of urgency to a long-festering concern not unfamiliar to native cultures in other parts of the world.

“I was frustrated at the audacity of people from outside of our community using these legal mechanisms to basically bully people from our local community out of utilizing symbols and words that are important to our culture,” said state Sen. Jarrett Keohokalole, a Native Hawaiian representing Kaneohe and Heeia.

The resolution calls on state agencies and Native Hawaiian organizations to form a task force to develop a legal system to “recognize and protect” Native Hawaiian cultural intellectual property and traditional cultural expressions. It also seeks protections for genetic resources, such as taro, a traditional crop that legend says is an ancestor of the Hawaiian people and that scientists have tried to genetically engineer in the past.

READ MORE: Naked toddler near Florida IHOP leads to arrest of passed out adults

The task force would be commissioned to submit its recommendations and any proposed legislation to lawmakers in three years.

The House passed the resolution Thursday. The Senate is scheduled to vote on it Monday.

The Aloha Poke incident echoes past disputes, like when a non-Hawaiian photographer claimed copyright over an image of a woman dancing hula and Disney copyrighted a modified version of a Hawaiian chant used in a movie.

Chicago’s Aloha Poke Co. chose as its battleground the word “aloha” — a term meaning love, compassion, kindness as well as hello and goodbye. It’s a term central to how Native Hawaiians treat others and how many in Hawaii — Native Hawaiian or not — try to live.

“It’s traumatic when things like this happen to us — when people try to take, modify or steal what’s been in our people’s world view for generations,” said Healani Sonoda-Pale, chairwoman of the Ka Lahui Hawaii political action committee, who testified in support of the resolution.

Aloha Poke CEO Chris Birkinshaw didn’t return messages seeking comment left at his West Madison store in Chicago and on the company’s website. The company has stores in Illinois, Wisconsin, Minnesota, Florida and Washington, D.C.

Aloha Poke Shop in Honolulu initially ignored the Chicago company’s letter, said co-founder Jeff Sampson. When the issue burst into the news, he and his partners had an attorney write their Chicago counterpart saying they wouldn’t change their name. They explained there would be no confusion between their businesses because they operated far from the mainland company’s stores.

But Tasha Kahele, who is Native Hawaiian, has spent nearly $10,000 so far changing her Anchorage store’s name to Lei’s Poke Stop after receiving one of the letters.

Native Hawaiian experts note there’s a cultural clash underlying much of this. Modern European-based traditions use trademarks, copyright and patents to create economic incentives and rewards for creating knowledge and culture. Indigenous culture, on the other hand, is often passed on through generations and held collectively.

“They’re never going to sit nicely together in a box,” said Kuhio Lewis, the CEO of the Council for Native Hawaiian Advancement.

It will be difficult to determine who would decide who can use Native Hawaiian culture and who would be able to use it. Limits may violate the First Amendment of the U.S. Constitution. The task force will have to explore who can do what, Lewis said.

“At the least, they need to have some cultural sensitivity about how it’s used. And they need to know you can’t be telling Native Hawaiian businesses they can’t use their own language,” Lewis said.

The resolution points to potential models in New Zealand and Alaska, which both created signifiers that indigenous people may place on their art as a mark of authenticity.

Marie Texter of Anchorage said her late father Andy Makar — who drew, made carvings from tusks, cottonwood and horns, and sewed animal skins — was a strong believer in the Silver Hand seal for Alaska Natives.

“He said this is a great program because so many times the Native artwork gets commercialized or used by someone else,” she said.

He had to fill out proof of his Indian blood — he was mostly Yup’ik but his mother was Athabascan — to apply.

READ MORE: U.S. man accused of throwing iguana in restaurant: police

But Rosita Worl, president of Juneau-based Sealaska Heritage Institute, said not all Alaska Native artists apply for or use the emblem. Nor does the program deter the sale of bogus Native art made overseas, she said. It also lacks enforcement and publicity, she said.

Charles E. Colman, a University of Hawaii law professor, said such programs hold up under federal law because they don’t prohibit people from making work that resembles indigenous art. They merely won’t allow people to say their work is produced by an indigenous person if it’s not.

Colman believes the Aloha Poke situation, on the other hand, could be addressed within existing trademark law.

He believes the Chicago company’s trademark could be cancelled if challenged because it’s not so well-known that its name has developed a secondary meaning the way the words in the retailer name “Best Buy” have, for example.

“You can’t just register a descriptive phrase unless you’ve achieved a certain amount of public recognition,” he said.

Audrey McAvoy, The Associated Press

Like us on Facebook and follow us on Twitter.

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Four air ambulance flights out of Terrace delayed or cancelled

Pandemic precautions caused nighttime closure of service station providing weather data to pilots

Skeena Resources, Tahltan prez excited by purchase of Eskay Creek

Skeena gets full control of mine, Barrick gets 12 per cent of Skeena and a one per cent royalty

VIA Rail lays off 1,000 unionized workers across the country

Northern B.C. route Jasper to Prince George to Prince Rupert is not affected by VIA Rail layoffs

Overall house sales drop in the northwest

COVID-19 pandemic slowed market activity

B.C. orders Coastal GasLink to stop pipeline construction near protected wetlands

The 670-kilometre pipeline is planned to transport natural gas from northeast B.C. to Kitimat

B.C. sees 25 new COVID-19 cases, community exposure tracked

One death, outbreaks remain in two long-term care facilities

VIDEO: Vancouver Island cat missing 18 months reunited with family

Blue the cat found at Victoria museum 17 kilometres from home

VIDEO: Alberta man rescues baby eagle believed to be drowning in East Kootenay lake

Brett Bacon was boating on a lake in Windermere when he spotted the baby eagle struggling in the water

Conservationists raise concerns over state of care for grizzly cubs transferred to B.C. zoo

‘Let them be assessed now before their fate is sealed,’ urges B.C. conservationist Barb Murray

B.C.’s COVID-19 job recovery led by tourism, finance minister says

Okanagan a bright spot for in-province visitor economy

National Kitten Day aka the ‘purrfect’ day to foster a new friend

July 10 marks National Kitten Day, a special day to celebrate all things kittens

Lower Mainland YouTubers claim to be Kelowna display toilet ‘poopers’

RCMP can not speak to legitimacy of video, will be investigating

Haida matriarchs occupy ancient villages as fishing lodges reopen to visitors

‘Daughters of the rivers’ say occupation follows two fishing lodges reopening without Haida consent

RCMP confirm homicide investigation underway near Quesnel

Police releasing few details four days after homicide occurred Monday, July 6

Most Read