by Carl Christensen Visiting Assistant Professor
Tia Blankenfeld 3L, Derek Kauanoe 3L,
and Malina Koani-Guzman 3L

The Center for Excellence in Native Hawaiian Law promotes discourse between the legal community, the Native Hawaiian community, and the community at large.  To further this goal, the Center is providing brief summaries of selected state and federal court decisions that impact Native Hawaiians. This issue of Ka He‘e includes summaries of Doe v. Kamehameha Schools, Wailuku Agribusiness Co., Inc. v. Ah Sam, Reece v. Island Treasures Art Gallery, Inc., Arakaki v. Lingle, and Diamond v. State.

1.  Arakaki v. Lingle, 477 F.3d 1048 (9th Cir. 2007)

On March 4, 2002, attorneys H. William Burgess and Patrick W. Hanifin filed suit in U.S. District Court in Hawai‘i on behalf of 16 plaintiffs, who were all citizens of the state of Hawai‘i, claiming standing to sue as taxpayers and beneficiaries of the public land trust. Plaintiffs sued the Department of Hawaiian Homelands (DHHL), the Hawaiian Homes Commission (HHC), the Office of Hawaiian Affairs (OHA), various state officers, and the United States, challenging various state programs restricting benefits to “native Hawaiians” or “Hawaiians.” They argued that such programs violated the Fourteenth and Fifth Amendments to the U.S. Constitution and the terms of the public land trust. 

The U.S. District court dismissed the entire lawsuit, ruling that plaintiffs lacked standing to raise certain claims and that their remaining claims raised a nonjusticiable political question. The Ninth Circuit Court of Appeals affirmed in part and reversed in part in 2005.  Subsequently, the U.S. Supreme Court granted plaintiffs’ petition for writ of certiorari. The Supreme Court then vacated the prior judgment and remanded for further consideration in light of Daimler-Chrysler v. Cuno, a timely Supreme Court decision addressing the issue of taxpayer standing. 

On reconsideration, the Ninth Circuit affirmed in part and reversed in part, but on different grounds. The Ninth Circuit held: (1) Plaintiffs lack standing to sue the federal government and, therefore, the District Court correctly dismissed all claims to which the United States is a named party or an indispensable party; and (2) Plaintiffs lack standing as taxpayers to bring suit to argue that OHA programs funded by state revenue violate the Equal Protection Clause of the Fourteenth Amendment. 

Additionally, the Ninth Circuit determined that the issue of whether any plaintiffs have standing in any other capacity to challenge OHA programs is unclear and thus remanded the case to the U.S. District Court for further proceedings.  It noted, additionally, that if plaintiffs are able to establish standing, their challenge to the appropriation of tax revenue to OHA does not raise a nonjusticiable political question.

2.  Doe v. Kamehameha Schools, 470 F.3d 827 (9th Cir. 2006) (en banc)

In Doe v. Kamehameha Schools, a majority of a 15-judge Ninth Circuit Court of Appeals panel ruled that Kamehameha Schools’ admissions policy did not unlawfully discriminate against non-Hawaiians under 42 U.S.C. Section 1981, a Reconstruction-era statute designed to remedy discrimination against African Americans.

John Doe applied for Kamehameha Schools, but was not of Native Hawaiian ancestry. After being waitlisted, Doe was denied admission.  Doe challenged the schools’ admissions policy for illegally discriminating against non-Hawaiians. A federal trial court ruled that the schools’ policy was legal. A Ninth Circuit 3-judge panel decision reversed the district court, and the Ninth Circuit agreed to reconsider it en banc.

The issue the en banc court sought to address was whether a Hawaiian private, non-profit K-12 school that receives no federal funds violates § 1981 by utilizing a preference for Native Hawaiians in its admissions policy. 

Writing for the majority, Judge Graber answered in the negative: Kamehameha Schools does not violate § 1981 by preferring Native Hawaiians in its admissions policy. In her analysis, Graber provided an extensive description of Hawaiian history and modern day educational conditions facing Native Hawaiians.  She also described the history of Title 42 U.S.C. §1981, addressed the application of Title VII Standards to §1981 claims, and explained the application of a modified Title VII standard in the education context under § 1981.

History of Title 42 U.S.C. § 1981

Under section 1981, “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” According to the court, the purpose of § 1981 was “to counter the explicit discrimination faced by the recently freed slaves.” Section 1981 also prevented a “privately commercially operated nonsectarian school[ ] from denying admissions to prospective students because they [were black] . . . .” Runyon v. McCrary, 427 U.S. 160 (1976).  Application of Title VII Standards to § 1981 Claims

Plaintiff Doe argued that the Schools’ admission policy should be analyzed under a very demanding standard—“strict scrutiny”—which applies to governmental action involving race-based decisionmaking. Kamehameha Schools contended that the court should apply a more “deferential Title VII test for evaluating affirmative action plans, with variations appropriate to the educational context.” 

The court determined that “the strict scrutiny standard of equal protection does not apply to a wholly private school’s race-based remedial admissions plan,” but, instead, the “Title VII burden-shifting system of proof” in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) is useful in this case. Under that burden-shifting framework, after the plaintiff establishes a prima facie case of discrimination (“with evidence that” race was considered) “the burden shifts to the [defendant] to provide a legitimate, non-discriminatory reason for the decision.” Patterson maintains that “[t]he existence of an affirmative action plan provides such a rationale.” When a “relevant affirmative action plan [is shown to] exist[ ], then the burden shifts back to the plaintiff to show that the justification provided was pretextual and that the plan is invalid.” The court concluded again, as Court of Appeals’ 3-judge panel did previously, that “Title VII principles [and not strict scrutiny] apply here.”

Applying a Modified Title VII Standard in the Education Context Under § 1981

The court then turned to two cases: Johnson v. Transportation Agency, 480 U.S. 616, 626 (1987) and United Steelworkers of America v. Weber, 443 U.S. 193 (1979). In Weber, the Court held “that Title VII does not prevent private employers from implementing voluntary, remedial affirmative action plans.”  Drawing from Johnson and Weber, the court identified the appropriate analysis to apply when reviewing private affirmative action plans.  “[P]rivate employers’ affirmative action plans: (1) must respond to a manifest imbalance in the work force; (2) must not ‘unnecessarily trammel[ ]’ the rights of members of the non-preferred class or ‘create an absolute bar to their advancement’; and (3) must do no more than is necessary to attain a balance.” Acknowledging the differences between private employer and private education affirmative action plans, the court emphasized that an appropriate analysis should consider the “inherently broad and societal focus of the educational endeavor.” 

In making the necessary modifications applicable to the immediate case, the court’s analysis required that:  (1) “that a private school must demonstrate that specific, significant imbalances in educational achievement presently affect the target population”; (2) “an admissions policy must not ‘unnecessarily trammel’ the rights of students in the non-preferred class or ‘create an absolute bar’ to their advancement”; and (3) “an admissions policy must do no more than is necessary to remedy the imbalance in the community as a whole . . . .”

Acknowledging that “Native Hawaiians [are] at the bottom of the spectrum in almost all areas of educational progress and success,” the court held that a “manifest imbalance [does] exist in the K-12 educational arena in the state of Hawai[‘]i.” The court also mentioned the “systematic[ ] disadvantage[s]” faced by Native Hawaiian students and Congress’ attempt to address disparities through the enactment of legislation. 

Pointing to Congressional efforts to address educational disparities and reflecting upon the absence in the record showing that “educational opportunities in Hawai[‘]i are deficient for” non-Native Hawaiian students, the court held the Kamehameha Schools “admissions policy does not unnecessarily trammel the rights of non-Native Hawaiians or create an absolute bar to their advancement.” 

The court also held that the admissions policy does no more than is necessary, reasoning that the admissions’ policy “is not fixed, but changes as the capacity of the Schools’ programs increases and as the well-being of the Native Hawaiian community rises.”  The majority thus concluded that “Congress intended that a preference for Native Hawaiians, in Hawai[‘]i, by a Native Hawaiian organization, located on the Hawaiian monarchy’s ancestral lands, be upheld because it furthers the urgent need for better education of Native Hawaiians, which Congress has repeatedly identified as necessary.”

In a concurring opinion, in which four other judges joined, Judge William Fletcher suggested an alternative analysis.  He asserted that “Native Hawaiians constitute a unique population that has a ‘special trust relationship’ with the United States,” recognizing the more than one hundred laws that currently provide rights and privileges to Native Hawaiians similar to those given to Native Americans.  He concluded that “Congress has invariably treated ‘Native Hawaiian’ as a political classification [rather than merely a racial one] for purposes of providing exclusive educational and other benefits.  Under the special relationship doctrine, Congress has the power to do so. I see nothing in § 1981 to indicate that Congress intended to impose upon private institutions a more restrictive standard for the provision of benefits to Native Hawaiians than it has imposed upon itself.”

In March 2007, Plaintiff Doe filed a petition for writ of certiorari, asking the U.S. Supreme Court to review the 9th Circuit Court of Appeals’ en banc ruling upholding Kamehameha Schools’ admissions policy. Kamehameha Schools filed a petition in opposition to Doe’s request for Supreme Court review. The briefs can be viewed at:

3. Reece v. Island Treasures Art Gallery, Inc., 468 F.Supp.2d 1197 (D. Haw. 2006)

Plaintiff Kim Taylor Reece, a professional photographer well-known for his sepia images of hula dancers, brought a motion for preliminary injunction to stop Island Treasures Art Gallery, Inc. and its owner Gail Allen (Defendants), from displaying or selling a stained-glass image entitled “Nohe,” which he argued infringed upon his copyrighted photograph, “Makanani.” Both works of art feature a female practitioner of hula kahiko (ancient hula) performing an ‘ike (look/see behold) motion in a noho (sitting/seated) position, and both artworks appear, as the court recognized, quite similar at first glance. “Makanani” was first copyrighted and published in 1988, and “Nohe” was created ten years later.


In 2006, Reece first learned of “Nohe.” His attorney demanded that the Defendants remove the piece from display in the gallery.  Initially, the Defendants complied, but they soon re-exhibited it for display after agreeing with the stained glass artist who created it, Marylee Colucci, that it would not be available for purchase.  Reece then brought this complaint for copyright infringement and moved for preliminary injunction.

Reece argued that the stained glass work “is a virtually identical copy” of his photograph, and that his photography business “will be irreparably harmed if Defendants are not enjoined from displaying and selling the stained glass work.” In response, the Defendants argued that Reece has failed “to prove ownership of a valid copyright,” that he “has not established ‘copying,’” that Colucci’s stained glass work was “independently created,” and that Reece’s “claim is likely barred by the statue of limitations.” Moreover, Defendants argued that Reece “has not demonstrated irreparable injury, that the balance of hardships tips in Defendants’ favor, and that the public interest will be harmed if the injunction is granted.”

A court will provide injunctive relief when a party can demonstrate “probable success on the merits and the possibility of irreparable harm,” or when “the balance of hardships tips in its favor.” This court found that Reece had not “met his burden for injunctive relief” because he had “failed to make a showing of probable success on the merits and failed to establish the possibility of irreparable harm.” Furthermore, the court held that Reece failed to provide “evidence or argument regarding the balance of hardships.”

In determining whether Reece would succeed on the merits of his copyright infringement claim, the court looked at two issues: (1) whether Reece “established ownership to a valid copyright; and, if so, (2) whether “Nohe” violates that copyright. The four elements considered in determining copyright ownership are originality, copyrightability, “a national point of attachment of the work,” and statutory compliance. The Defendants argued that Reece had failed to prove all but “a national point of attachment.”

The court first found that “Makanani” was original—as are “almost any” photographs “merely by virtue of the photographer’s personal choice of subject matter, angle of photograph, lighting, and determination of the precise time when the photograph is to be taken.” Second, the court found that while “[n]ot all elements of Plaintiff’s photograph are copyrightable” because “everyone is free to use materials in the public domain,” the creativity in Reece’s photograph was copyrightable.  Third, the court found that Reece owned a valid copyright because he complied with statutory formalities when he first published “Makanani” with copyright symbol, ©, the year, 1988, and his name.  The court, therefore, determined that Reece had “established ownership of a valid copyright.”

The court then looked at the second issue, “whether the stained glass artwork is an unauthorized copy of the protected elements of Plaintiff’s copyright.”  In order for a Defendant to be found guilty of copyright infringement, there must proof of “access” to the original work and “substantial similarity” between the pieces. Because “Makanani” was “widely disseminated,” the court found that Colucci had a “reasonable opportunity” of viewing it, and therefore, the proof of access prong was easily met.

Next, the court looked at the “substantial similarity” requirement of copy infringement. There is an extrinsic test and an intrinsic test to prove substantial similarity.  The extrinsic test is analytic dissection whereby “the court must determine whether any of the allegedly similar features are protected by copyright.” The court looks at “protectable elements of a photograph” such as “lighting, selection of film and camera, angle of photograph,” and the precise time picture was taken. The court excludes unprotected elements “that are not original but are part of the public domain, including natural elements like the ocean and shoreline.”

The court accepted testimony from two court-qualified experts of hula kahiko tradition, Kumu hula (hula teacher/expert) Mapuana de Silva and Kumu hula Victoria Takamine. De Silva explained, “There are limitations to hula kahiko whereas fewer limits are found in contemporary hula.” She emphasized how specific dress and adornments are not only meaningful but required in hula kahiko. Moreover, De Silva described when performing an ‘ike motion, “a dancer raises one hand out and one arm is bent at the elbow and the hand is open and placed behind the eye with the thumb facing downwards and the finger to show the seeing motion.” Takamine added that the ‘ike “motion has been used for generations by hula practitioners.”

Upon its extrinsic dissection, therefore, the court found that while the artworks are similar, those shared attributes were indispensable “to the extent the dancers are performing an ike [sic] motion from the noho position,” and thus the similarities are “naturally associated with the motion, or at least standard.” In addition, the court found the dancers’ dresses to be scenes a faire (indispensable, naturally associated, and unprotected by copyright) as well.

The court found many differences in the two pieces of artwork as well: the dancer’s position in relation to her surroundings, the straightness of the right arm, the size of the feet, the angle of her back, etc.  Furthermore, while Reece’s “timing and decision when to take the photograph” is protected, such decisions are not issues in the stained glass piece. The court distinguished between the dancer in “Makanani” who kneels at the shorebreak while a wave splashes her knees, and the dancer in “Nohe” who kneels on the dry sand. Moreover, the court found that while “the position of the dancer in the ike [sic] motion is common to both artworks and both are set on Kailua beach, they cannot be described as substantially or virtually identical” because “Nohe” lacks detail and has no facial features; in addition, “the mountains and ocean dominate the upper half” of “Nohe”, the hairstyles are different lengths and shapes, and “Makanani” is done in sepia while “Nohe” is extremely colorful. Therefore, the extrinsic prong of the substantial similarity test was not met.

The court then looked at the intrinsic prong, which looks at whether an “ordinary, reasonable audience would find the works substantially similar.” The court said no. It found that the two varying mediums, photography versus stained glass, give the works an entirely “different feel.”

Next, the court found that Reece’s argument that Defendants’ display of “Nohe” would “diminish [his] ability to conduct his business” to be unconvincing.  Therefore, he did not prove that he would be “irreparably harmed if Defendants are not enjoined.” 

Finally, the court looked at whether the balance of hardships tipped in Reece’s favor, which “may assume significance in cases where the plaintiff has not established a strong likelihood of success on the merits.”  However, Reece had provided “no evidence or argument regarding the balance of hardships.”

In conclusion, the court denied Reece’s motion for preliminary injunction because he did not demonstrate a “likelihood of success on the merits, the possibility of irreparable harm or that serious questions are raised and the balance of the hardships tips in his favor.” However, the court clearly stated that its ruling was “limited in nature” and applied only to “Nohe.”

4.  Diamond v. State, 112 Hawai‘i 161, 145 P.3d 704 (2006)

In Diamond v. State, the Hawai‘i Supreme Court clarified the definition of a “shoreline boundary.” Stephens, the owner of an ocean-front parcel (Lot 2) in the Wainiha Subdivision on Kaua‘i, planted vegetation along the shoreline boundary of his property. Surveys were conducted to delineate the shoreline boundary of Lot 2 for construction purposes. The first field survey submitted to the Department of Land and Natural Resources (DLNR) by Stephens via an engineer, described the shoreline as following “along [the] high-water mark…the vegetation/debris line.” The field survey was certified by DLNR, valid for one year pursuant to HRS §205A-42 (2001).

Due to a failure to submit construction plans within the time allotted by the certified survey, Stephens was forced to redo the survey.  A second survey (one year later) “resulted in the shoreline moving makai by 10.82 feet on the eastern boundary and makai by 4.72 feet on the western boundary.” Hashimoto, the DLNR surveyor, testified that he used the naupaka vegetation that he had refused to use during the previous survey because if the naupaka could withstand a complete yearly cycle or the high surf, that would establish a stable vegetation, which is preferred over a debris line because it is “more stable.” 

The court held that both the Hawai‘i Revised Statutes (HRS) and the Hawai‘i Administrative Rules (HAR) definitions of “shoreline” were nearly identical after the legislative amendments to the HAR definition, and the circuit court erred in affirming the Order Denying Appeal. Three ambiguities were resolved in this case:  (1) the correct interpretation of “upper reaches of the wash of the waves”; (2) the vegetation line versus the debris line; and (3) the definition of “vegetation growth” that can evidence the shoreline boundary.

In response to these three issues, the court utilized reasoning from an earlier decision in County of Hawaii v. Sotomura.  Sotomura located the shoreline boundary at “the highest reach of the highest wash of the waves.” The Hawai‘i Supreme Court cited public policy reasons for favoring extending to public use and ownership as much of Hawai‘i’s shoreline as is reasonably possible.  Thus, although the Sotomura decision acknowledged that the vegetation line is a “more permanent monument,” this statement has been taken as an indication of the court’s decision to use “the most mauka line.” The instant case differs in that the vegetation line is more makai than the debris line. Additionally, because the vegetation line was artificially planted by Stephens, the court stated that “indeed, as evidenced by the facts of the present case, vegetation is not always permanent, and there is no indication that the decision in Sotomura contemplated owners planting and promoting salt-tolerant vegetation.”

HAR §13-222-2 defines vegetation growth as “any plant, tree, shrub, grass or groups, clusters, or patches of the same, naturally rooted and growing.”  Because there is no HRS definition of “vegetation growth”, “an administrative agency’s interpretation of a rule is accorded great weight,” so long as the agency’s decision is consistent with the rule’s legislative purpose. “One of the objectives of HRS chapter 205A is to ‘protect beaches for public use and recreation.’” Thus, “the utilization of artificially planted vegetation in determining the certified shoreline…is contrary to the objectives and policies of HRS chapter 205A as well as the public policy [that the Hawai‘i Supreme Court] set forth in Sotomura.” Merely because artificially planted vegetation survives more than one year does not deem it “naturally rooted and growing” such that it can be utilized to determine the shoreline. This decision rejected attempts by landowners to evade public “policy by artificial extensions of the vegetation lines on their properties.”

5. Wailuku Agribusiness Co., Inc. v. Ah Sam, 112 Hawai‘i 241, 145 P.3d 784 (Hawai‘i App. 2006), cert. granted, 113 Hawai‘i 153, 149 P.3d 805 (2007)

It has long been recognized that the legal doctrine of adverse possession has been one of the mechanisms whereby Native Hawaiians have been deprived of much of the land they were awarded under the Māhele (the 1848 land division) or purchased thereafter. Since the 1970s, one of the characteristics of Hawai‘i law has been “a spirit opposed to the unduly facile acquisition of title by adverse possession.”  City and County of Honolulu v. Bennett, 57 Haw. 195, 208, 552 P.2d 1380, 1389 (1976) (Richardson, C.J.).  This hostility to adverse possession has been expressed not only by Hawai‘i’s courts, but also by the population as a whole with the ratification in 1978 of a constitutional provision extending from ten to twenty years the period of “actual, continuous, hostile, exclusive, open and notorious possession” that must be proven by an adverse claimant before the claims of an out-of-possession true owner are time-barred.  Haw. Const., Art. XVI, § 12. 

A plaintiff in a quiet title action must undertake an unusually extensive search for out-of-possession claimants before obtaining leave to serve unknown parties by publication, Hustace v. Kapuni, 6 Haw. App. 241, 718 P.2d 1109 (1986), and the Hawai‘i Supreme Court, in Pioneer Mill Company, Ltd. v. Dow, 90 Hawai‘i 289, 978 P.2d 727 (Hawai‘i 1999), held that no presumption of adverse holding arises even after 130 years of possession where the predecessor of the claimant by adverse possession entered onto the property as a fiduciary and relative of the defendants’ ancestor. 

This concern for the rights of a property’s true owners is particularly well demonstrated by Bennett, in which it recognized that “a tenant in common shares a general fiduciary relationship with his cotenants” and must in the general case give them actual notice (as distinguished from the constructive notice normally sufficient to demonstrate an intent to hold adversely) of his intent to hold the property as his own and to extinguish the rights of his cotenants. Since plaintiffs can rarely produce evidence of having given actual notice to their cotenants, in practice this means that a defendant who can establish the existence of a cotenancy will almost always be able to prevail against a claim of adverse possession by a cotenant in possession.

A recent decision by the Hawai‘i Intermediate Court of Appeals, Wailuku Agribusiness Co., Inc. v. Ah Sam, 112 Hawai‘i 241, 145 P.3d 784 (Hawai‘i App. 2006), threatens to substantially weaken Bennett and could mark a dramatic change in the treatment of adverse possession claims under Hawai‘i law. Bennett recognized a narrow exception to the requirement that a cotenant give actual notice to his cotenants of his intent to claim adversely to them: mere constructive notice is sufficient if “there had been no reason for the tenant in possession to suspect the existence of a cotenancy, or, if they had suspected a cotenancy, that they had made a good faith, reasonable effort to inform the tenants out of possession that the land was claimed adversely to them, or that the tenants out of possession already had actual knowledge, from other sources, that the land was being claimed adversely to them.” 

A plaintiff’s mere ignorance of the existence of a cotenancy is not sufficient, however; “the standard of good faith includes an objective requirement of reasonableness, in addition to a subjective requirement that the claimant believe himself to be the sole owner.” In Ah Sam, the plaintiff entered onto the property under color of a quitclaim deed that purported to convey the entire property; the plaintiff therefore argued that it “had no reason to know” of the existence of the cotenancy and was thus excused from the normal duty of giving actual notice of adversity to its cotenants. The Intermediate Court of Appeals agreed and granted summary judgment to the plaintiff. In doing so, however, the court failed to address Hawai‘i cases indicating that one who holds under a quitclaim deed is on notice of potential title defects, see Kohala Corp. v. State of Hawaii, 69 Haw. 54, 732 P.2d 652 (1987); Ikeda v. Pedro, 32 Haw. 122 (1931), and Davis v. Brewer, 3 Haw. 359 (1872), including, presumably, the possible existence of cotenancy interests.

If the Intermediate Court of Appeals’ decision in Ah Sam is a true statement of Hawai‘i law, the legal position of defendant cotenants in adverse possession cases will be substantially weakened. That remains to be seen, however, as on January 16, 2007, the Hawai‘i Supreme Court granted Defendant Ah Sam’s petition for a writ of certiorari, and the case is now pending before that court.