Patents and Biopiracy

An estimated 90 percent of the world’s biodiversity lies within the territories of indigenous peoples, whether the Amazon, the Indian subcontinent, or the North Woods. A new form of colonialism, known as biocolonialism, is reaching deep into the heart of these communities. As Stephanie Howard wrote for the Indigenous People’s Council on Biocolonialism, “The flow of genes is primarily from indigenous communities and rural communities in ‘developing countries’ to the Northern-based genetics industry. Ninety-seven percent of all patents are held by industrialized countries.”

In 1994, for example, two researchers at the University of Colorado were able to secure a patent on quinoa, much to the surprise of native farmers in the Andean region of Bolivia and Ecuador,who had been cultivating and stewarding the grain for thousands of years. The patent gave the university exclusive control over a traditional Bolivian sterile male variety called Apelawa, and also extended to hybrids developed from the breeding of forty-three additional traditional varieties. In 1998, the Bolivian National Quinoa Producers Association and an international support group successfully forced the researchers to drop the patent. But similar patents were issued on the neem tree, ayahuasca (a medicinal plant of the Amazon), and many other medicinal plants. In September l997, RiceTec, a Texas-based company, even won a controversial patent on the famed basmati rice. When the Indian government filed a complaint with the U.S. Patent and Trademark Office, RiceTec was forced to give up four of twenty patent claims.

Monsanto-Round up Ready Patents

The most aggressive biotech company in the world is Monsanto- the leader in genetic engineering, and one of the largest seed companies in the world. Monsanto has been a major source of bio-piracy on a worldwide scale, and has had a deep impact on many farmers on the United States and elsewhere. Monsanto, the largest proponent of genetically engineered plants, controls the patents on those plants and requires farmers to sign “technology agreements” for the use of Monsanto seeds. This agreement allows the corporation to conduct investigations on the farmers land, insures Monsanto’s oversight for the duration of the agreement, and also has exposed farmers to huge financial liability. In many court cases, farmers have been found technically liable for infringements on Monsanto’ patents, even when the farmer’s files were contaminated with pollen or seed from someone else’s genetically engineered crop, or when a previous year’s seed stock sprouted in the fields. By 2004, Monsanto had filed 90 lawsuits against farmers in the country, with a track record of winning their cases. For cases with recorded judgments, farmers ended up having to pay Monsanto, an average of $412,259. (Sources: Andrew Pollack, “Can Biotech Crops be Good Neighbors?” New York Times, September 26, 2004, and Center for ‘Food Safety, “ Monsanto v.s.US Farmers” 2004, http://www.centerforfoodsafety.org/?Monsantovsusfarmersreport.cfm)

In effect, genetic engineering and patenting issues have turned many traditional farming ethics of seed saving and horticulture into a nightmare of legal entanglements and added new insecurities to the markets. Indeed, Monsanto’s suits have created additional hardship in communities. One of the most significant cases was that of Percy Schmeiser of Bruno Saskatchewan.In this case, the drift (a.k.a.contamination) of Schmeisers field with Monsanto’s Roundup Ready canola pollen, was the basis for the litigation in Canadian courts by Monsanto.The final court decision after many years, went in favor of Monsanto, costing Schmeiser a great deal in legal fees and much of his 50 years worth of seed saving wealth.

Manooomin and Patents

The Ojibwe hold wild rice or manoomin as a food for the body and soul- and is a centerpiece of Ojibwe history and culture. Thus, the potential for genetic theft is a very great concern to us. Over the past years, have found that there is work in both patenting and interest in genetic work with wild rice.

Thousands of years ago, according to our oral histories, kept on birch bark scrolls and in retelling during our Midewiwin ceremonies and gatherings, the Anishinaabeg,called the Ojibwe or Chippewa by the federal government, followed a shell in the sky from the great waters of the East to the place where the food grows on the water. That food was wild rice, the only grain indigenous to North America, and it has been a central food in ceremony and sustenance for the Anishinaabeg ever since. “They gain their livelihood by fishing, hunting gathering berries and wild rice and making maple sugar, which constitutes their chief means of support,” Indian agents would write, noting that the Ojibwe also relied on wild rice as a source of trade, and later credit and cash, with the white settlers.

The rice is so significant to the Ojibwe that the lands with the best wild rice stands,including Big Rice Lake, Rice Lake Refuge, Lake Winnibigoshish, Nett Lake, and other mother lodes of the great grain were reserved. Beyond the reservation borders, land was transferred to the U.S. government, but the rice was not. In an 1837 treaty, the Ojibwe ceded nearly 14 million acres of Wisconsin and Minnesota but retained “The privilege of hunting, fishing and gathering the wild rice upon the land, the rivers and the lakes included in the territory ceded.” Federal and Supreme Court cases, including the 1993 Mille Lacs Supreme Court case, have upheld the rights of the Ojibwe to traditional land-use outside the reservations.

It was this close bond between a people and a food that University of Minnesota professor Albert Jenks, encountered when he came to White Earth and other reservations to study wild rice in 1906. He noted with disdain the Ojibwe harvesting practices. “Wild rice, which had led to their advance thus far, held them back from further progress,” he determined. His perception of the Ojibwe wild rice harvest as a bastion of primitiveness would become the prevailing thought at the University of Minnesota throughout the twentieth century, indeed, a sort of battle cry for industrializing agriculture.

In the 1950s, University of Minnesota researchers decided it was time to liberate the rice from the indigenous people. So they set out to domesticate wild rice. A university scientist named Ervin Oelke began the process, using germ plasm collected from twenty-four natural stands within the 1837 treaty area. Over the years, the Minnesota Agricultural Extension office was able to “create” several strains of “wild” rice: Johnson in 1968, M1 in 1970, M2 in 1972, M3 in 1974, Netum in 1978, Voyager in 1983, Meter in 1985, Franklin in 1992, and Purple Petrowski in 2000.

What the Creator gave to the Anishinaabeg had become a profit-making enterprise for others. These domesticated varieties are engineered to ripen at the same time and, with a harder hull, can be harvested mechanically. They are cultivated in paddies, flooded fields which can be drained to allow access with a combine. By 1968, Minnesota’s paddy wild rice production already represented some 20 percent of the state’s yield. This increase in production, along with growing national demand for wild rice and subsequent interest by corporations such as Uncle Ben’s, Green Giant, and General Foods, permanently altered the market for traditionally harvested wild rice. Lake rice could no longer compete with the mass-manufactured paddy crop. The wholesale wild rice price dropped from $4.44 per pound in 1967 to $2.68 a pound in 1976, destabilizing the wild rice economy of the Ojibwe.

Then, in 1977, the Minnesota state legislature designated wild rice the official state grain, a tragic turn of events for the lake harvest. With an outpouring from the state coffers, University of Minnesota began to aggressively market a domesticated version of wild rice. By the early 1980s paddy-grown wild rice had outstripped the indigenous varieties in production.

Ironically, greed knows no state boundaries. Minnesota lost control over production of its official state grain to California, which by 1983 produced over 8.3 million pounds, compared to Minnesota’s 5 million pounds. By 1986, more than 95 percent of the wild rice harvested was paddy grown, the vast majority produced in California. As this glut of wild rice hit the market, prices plummeted. Many Ojibwe lost their source of livelihood. But to add insult to injury, many of the paddy rice companies were selling their product as if it was wild rice, in some cases even using Ojibwe images in their packaging and advertising.

The Ojibwe fought back. In 1988, Wabizii v.s. Busch Agricultural Resources, a lawsuit on the issue of false and misleading advertising, was filed. Busch Agricultural Resources (a division of the beer conglomerate) was marketing a product called Onamia Wild Rice, which plaintiffs Mike Swan (Wabizi) and Frank Bibeau charged, was in fact a California-grown paddy product disguised as Minnesota lake rice. “They had two Indians on a canoe who appeared to be picking wild rice. They were taking a California-grown product, trucking it to Minnesota, where it was packaged and designated as a Minnesota product,” Frank Bibeau, a White Earth tribal member noted.

As for NorCal Wild Rice, US Patent Number 5955648 secures its rights to a process which uses something known as “cytoplasmic genetic male sterility” in producing hybrid varieties. John Pershell of the Water Quality Research Department of the Minnesota Chippewa Tribe read all thirty pages of the patent, and “nowhere did it mention anything about the wild rice being wild or coming from somewhere.” The rice has basically been co-opted.

These cases have placed us in the international battle over patenting and genetic engineering, over who owns life-forms, foods, and medicines that have throughout history been the collective property of indigenous peoples.

In the year 2000, University of Minnesota Plant geneticist Ron Phillips, along with a few colleagues, successfully mapped the wild rice genome. According to Phillips, this work is considered “important as a foundation for genetic and crop improvement studies.” The Ojibwe believe that these studies, bearing names such as “Molecular Cytogenetics in Plant Improvement,” could have international implications through something called a genomic library of wild rice. A scientists starts by cutting the DNA sequence in the wild rice genome into small pieces and inserting it into bacteria for further testing and replication. Then the DNA was sent to GenBank, a lab at Cornell University, and the Ojibwe are concerned that this sacred DNA is now available for public use.

“…The Academic view and perhaps the view of Western science, is one of curiosity and research, and the need to learn as much as you can. The Native American view is different. They don’t need to understand wild rice…”

Dean Muscoplant, University of Minnesota College of Agricultural, Food and Environmental Sciences, quoted from Richard Mertens “The Fight To Save the Tradition of Wild Rice”-Christian Science Monitor, October 13, 2004.

Genetic Contamination, Genetic Engineering Wild Rice and Indigenous Seeds

Historically, armies pillaged native plants and animal, destroying the basis for sustenance, but today open pollinated genetically modified (GMO) plants send their pollen by wind and insects to take over the fields of their indigenous relatives. Biotechnology is producing GM plants more virulent than others of their species… What is enduring of GM seed is not its resistance to a pest, which fairly quickly evolves to overcome the new gene, but rather its strength in cross pollinating other strains. In just a few seasons the GM strain can penetrate well over 50 percent of the plants in an adjacent field, or sometimes miles away. This genetic transfer does not destroy a crop as visibly as Cortez (or Sullivan) burning fields or a buffalo “hunters “ firing from a train window, but it can as thoroughly remove the original variety….” (page 41-2 Thompson)

There are around 6,000 bodies of water with significant wild rice beds in Minnesota, containing around 60,000 acres of rice. And there are around 20,000 acres of cultivated wild rice paddies in close proximity to most of those native beds.

University of Minnesota Professor Ron Phillips claims there is little chance of cross-pollination as long as approximately 660 feet separate the two kinds of wild rice. However, in the summer of 2002, university researchers noted the possibility of between l and 5 percent of the pollen drifting up to two miles from the test plots.

Then there is, in Donald Rumsfeld’s vernacular, the unknown of the zhiishiibig, the ducks. Ducks and other waterfowl do not differentiate between paddy rice plots and natural stands of wild rice; they move freely between them, carrying rice from one to the other. Phillips himself acknowledges a problem: “It depends on what you are willing to accept as a threshold of risk. You can’t guarantee that a bird won’t pick up a weed and take it 20 miles away,” he said.

Bent Grass Contamination

Ojibwe fears were validated in 2006 by two major contamination incidents.In August 2006, genetically engineered bent grass escaped its testing ground in Oregon. Prior to that, in 2003, farmers joined with environmentalists and the Center for Food Safety in pursuing a lawsuit against the USDA which had, in their assessment dodged regulation of the genetically engineered crops. At issue were novel varieties of creeping bent grass and Kentucky Blue grass, genetically engineered to resist Roundup weedkiller. In February of 2007, a federal judge in Washington has ordered the USDA to conduct more detailed reviews of applications to plant experimental plots of genetically engineered crops. U.S. District Judge Henry H. Kennedy Jr. ruled that the agency must give more scrutiny to applications to determine whether detailed environmental assessments are needed.
White Rice Crop Contamination

In August of 2006, news was released that a Bayer Chemical, a German company was responsible for the contamination of virtually the entire U.S. crop of long-grain white rice by a genetically engineered variety never intended for human consumption. This is somewhat of a problem for international markets which are reluctant to accept genetically engineered foods, and likely a bit of a problem for those of us stateside who may end up eating the rice which cannot be sold. The news sent rice future prices tumbling, resulting in over $l50 million in losses to farmers in one day, and an estimated l6% overall loss in the industry 2006 sales. U.S. agribusiness stock prices moved into a steep decline and resulted in European and Asian markets strictly limiting their importation of all U.S.long-grain white rice.

After the long-grain white rice fiasco, farmers from Arkansas, Missouri, Mississippi, Louisiana, Texas, and California filed a lawsuit against Bayer CropScience, charging the corporation with tainting the domestic crop and damaging the U.S. export market. Meanwhile, scientists are still trying to figure out how an experimental crop that was discontinued years ago, and was apparently grown at distances beyond what the USDA considered adequate to prevent contamination, managed to become commingled with long-grain white rice harvested from many different locations.

In both the white rice and bent grass cases, industry responded by filing petitions to deregulate their untested, genetically engineered contaminants. Japan has banned the white rice crop outright. The European Union is demanding that expensive genetic tests be conducted to guarantee that there is no presence of the genetically engineered organisms in exported long-grain white rice. (It is interesting to note that the genetically modified rice, which was rejected from the European markets was subsequently dumped in the US market. It was unlabeled, since no labeling is required by U.S.law).