Note: The following is the text of a lecture delivered by WSRSL Professor Mark A. Levin at the Center for Ainu and Indigenous Studies (CAIS) at Hokkaido University, in Sapporo, Japan on July 14, 2007. After preparing a draft in English, Professor Levin worked together with Hokkaido University Professor Teruki Tsunemoto, Director of CAIS, and graduate student Ken’ichi Ochiai to translate the talk into Japanese.

Professor Levin delivered the talk in Japanese at CAIS followed by a vigorous Q&A session. The Japanese language translation is available from the Center for Excellence in Native Hawaiian Law for community members who wish to introduce Native Hawaiian law issues to native Japanese language readers. CAIS plans to publish Professor Levin’s remarks in Japanese as well.

Thank you very much Professor Tsunemoto and thank you to you all for being here today.

Before I begin, I want to express my sincere appreciation to three persons, Professor Melody Kapilialoha MacKenzie, Professor Kapua‘ala Sproat, and Ms. Susan Kiyomi Serrano, all of my school’s Center for Excellence in Native Hawaiian Law. Today’s talk comes from conversations I had with these three remarkable women. Since I am not myself an expert in Native Hawaiian Law, I could not be here speaking here to you without their insight, guidance, and encouragement.1

My talk today aims to introduce the legal issues that are most visible in the media and public discourse today. But also as I begin, I will follow the advice of Professor Sproat that I begin, at least very briefly, by putting today’s report into a greater context with vitally important stories of Native Hawaiian culture, history, and beliefs.

The Hawaiian people’s creation story, the Kumu‘lipo, traces their history through over 4,000 generations. Connected to Sky Father and Earth Mother, Hawaiians’ deep relationship to their land and the sea includes the notion of kuleana, or responsibility – a religious and cultural obligation to the care of the ‘āina, the natural environment that envelopes and sustains its people.

The story moves into modern history with great harm upon the Hawaiian people. Contact with Europeans brought massive death, disease, colonization, and the loss of sovereignty. Just a little more than one hundred years ago, the monarchy, which had united the people into a single nation under Kamehameha I and through to Queen Lili‘uokalani, was forced at gunpoint to cede the Kingdom and its lands. The dispossession of the native people continues in the islands of Hawai‘i we know today, which exist now in the nation my ancestors came to and I am a citizen of, called the United States of America, with no recognition of sovereignty for the Hawaiian people. Hawaiians live in their lands and elsewhere in the United States with some limited protections under state law and federal law, but their claims, entitlements, and lands are under severe attack by development, military encroachment, global warming, and through the instrumentality of the U.S. legal system.

As I mentioned, my talk introduces legal issues that are most visible in the media and public discourse today. But here again, I qualify my comments. According to Professor Sproat (and surely she is correct), sovereignty, land and water rights, and the ability to carry out traditional and cultural practices are the issues of the greatest concern to most Native Hawaiians now and in the long run. However, partly owing to my lack of expertise, I am mainly speaking of the issues bubbling at the surface today. I hope these “headlines issues” will also interest you and help you build and protect Ainu rights and strength as a people.

My talk covers four themes – challenges to entititlements and response, protection of ‘Iwi and Moepu (buried remains of ancestors and burial objects), challenges to U.S. military encroachment, and then a wide-ranging “other”. Given our very limited time, I will do little more than introduce the general circumstances of these matters. Afterwards, I will try to answer your questions that are raised by this quick summary.

I. Challenges To Entitlements And Response: Rice v. Cayetano, Federal Recognition (the Akaka Bill), and Doe v. Kamehameha Schools

This set of legal issues is the most visible in the media and political discourse in Hawai‘i today. To try to make a long story short – amidst the deprivations of colonization and loss of sovereignty, the Hawaiian people at least enjoy the legacy of their beloved kings and queens of wealth that is now in important land trusts, financial assets, and the like. As well, the people have historical claims protected by the Constitution of the State of Hawai‘i to the revenues from their Kingdom’s ceded lands (which is a substantial income of millions of dollars per year) and they have certain social welfare entitlements provided for under federal law.

This wealth, these claims, and these entitlements are under attack by individuals and political NPO’s (including sophisticated and powerful mainland conservative NPO’s) who allege the reservations to Hawaiians to represent unconstitutional race-based discrimination against non-Hawaiians. This movement against Hawaiian assets gained strength owing to the 2000 Rice v. Cayetano decision by the U.S. Supreme Court which, precisely unlike the 1997 Sapporo District Court’s Nibutani Dam Decision, conveyed a constrained and narrow view of Native Hawaiians’ history and rejected Native Hawaiian claims to protected political status.

A. Proposed Federal Recognition – The Akaka Bill

Recently, two legal developments have emerged from Rice. The first is a debate over a proposed federal law, known as the Akaka Bill. (Daniel Akaka is one of the two senators from the State of Hawai‘i. He is himself a Native Hawaiian and is the only person of native ancestry in the entire U.S. Senate.) The Akaka Bill aims to set up a process to give federal recognition to the Native Hawaiian people, akin to federal recognition of Native Indian tribes and Native Alaskans, as a measure to protect the Hawaiian people from legal attacks on federal entitlements, to begin a process of reconciliation between the United States and the Native Hawaiian people, and as a step towards the restoration of Native Hawaiian sovereignty.

The bill is moving forward in the Democratic-controlled U.S. Congress, but its future is entirely uncertain. With the Democratic control established last year, the bill may pass. However, its terms could be severely weakened before passage. It could be vetoed by the Bush Administration. And if it does pass and become law, it will certainly be challenged by conservative political NPO’s as unconstitutional, and could be completely done away with by the U.S. Supreme Court under Chief Justice Roberts.

The bill is at the center of debate among Native Hawaiians, with voices in opposition, qualified support, and strong support. I’m sure the following comments are an oversimplification, but it seems there are four main “streams” of opinion in the Native Hawaiian community. For discussion purposes here, I’ll call them A,B,C and D. All four emerge in the media and political discourse in Hawai‘i today.

A. The “A” view opposes the Akaka Bill and federal recognition and instead wishes Hawaiian sovereignty to emerge independently under international law and not as a nation within the colonizing power that is the United States of America. For example, a letter to the editor in the June 2007 Ka Wai Ola newspaper published by the State of Hawai‘i's Office of Hawaiian Affairs (somewhat akin to your Utari Kyokai) argues: “Do [we] really believe that [Queen] Lili‘u[okalani] would want Kānaka Maoli to continue to serve the same invading forces that have dispossessed them of their precious ‘āina?

Now there is also disagreement within the “A” group as to what kind of independent nation should emerge. Some seek a Hawai‘i for Hawaiians only, but it seems to me that the prevailing stream of “A” voices seek a multi-racial independent Hawai‘i as was the Hawaiian Kingdom until the 1893 overthrow. In any case, the key element of the “A” group is rejection of the basic “nation within a nation” scheme as either an intermediate step or a long-term goal. I should add that the “A” group includes many of the notable leaders of the Hawaiian Sovereignty movement in recent decades.

B. The “B” group accepts the “nation within a nation” scheme as a pragmatic essential, at least as an intermediate step towards a long-term goal of a truly independent Hawaiian nation. However, “B” voices oppose the terms and process of the Akaka bill as unsatisfactory. “B” voices especially dislike that the Akaka bill process is a proposal created in Washington D.C. by U.S. lawmakers with little Hawaiian input. In short, “B” voices argue that the process reflects an expression of ongoing colonial prerogative rather than a genuine negotiation among the three parties in the relationship, the U.S., the State of Hawai‘i , and the Hawaiian people, as equally respected counterparts.

C. The “C” group vigorously supports the Akaka Bill. The “C” group includes some of the most powerful and influential Native Hawaiian individuals and institutions including Senator Akaka, the Office of Hawaiian Affairs, Kamehameha Schools, and Hawaiian Civic Clubs.

Now the “C” group and the “A” and “B” groups do not necessarily disagree about the long-term hope for an independent nation. This is probably a widely-shared dream of nearly all Native Hawaiians. However, what characterizes the “C” group most is a sense that the Akaka Bill is, pragmatically essential. Presumably, “C” group members would argue that U.S. political authority over Native Hawaiians is, at least for the time being, unavoidable. And under these circumstances, the Akaka Bill is the best step available to preserve and protect the programs and other benefits that Native Hawaiians currently have under federal law in the United States from the political and legal attacks.

D. The “D” group would be those who are content with the status quo of Hawaiians as a group within a multi-ethnic United States and are not pursuing further sovereignty or political status recognition. Because this stream of opinion does not regularly emerge into the media, I believe that “D” group members are relatively small in number. But nonetheless, there seem to be some Hawaiians who “just want to be an American”, even if they are not particularly vocal in expressing that choice, and I think it is important to acknowledge their perspective in this analysis as well.

B. Doe v. Kamehameha Schools

Just as Native Hawaiians took action following the Rice decision by pursuing federal recognition under the Akaka bill, opponents to Native Hawaiian prerogatives were also mobilized by the decision to raise new challenges. The most notable contest has been with regards to the admissions policy of the Kamehameha Schools that limits admission to Native Hawaiians only (by any percent of Hawaiian ancestry).

The litigation which ensued, Doe v. Kamehameha Schools, represented a challenge to remove Hawaiians’ claim to the most treasured legacy remaining from the Kamehameha kings and queens. It would be as if a colonizing power in Japan (for example, if the American occupation were continuing today) were to insist upon equal claim to the Sacred Mirror (and all the assets) of the Ise Shrine so treasured by Wajin Japanese.

In the past five years, the case proceeded through the U.S. federal courts with the ups and downs of a roller coaster. The U.S. District Court ruled against the plaintiff and dismissed the suit as ungrounded in law. A three-judge panel of the 9th Circuit U.S. Court of Appeals ruled for the plaintiff, finding the Kamehameha Schools’ policy unconstitutional. But in an extraordinary turn, an en banc panel of the 9th Circuit reversed the three-judge panel and ruled in favor of Kamehameha Schools.

When the plaintiff appealed the case to the U.S. Supreme Court for final determination, its future was truly uncertain. No one could predict if the court would accept the case under its discretionary jurisdiction. However, most observers believed that, if the court would accept the case, the Supreme Court’s conservative majority would find for the plaintiff in a devastating defeat for the schools.

So was in that context that, earlier this year, while the case was pending the Supreme Court’s decision whether to hear the case, the parties settled the case. As a result, the 9th Circuit en banc panel decision remains the governing law and the school’s admission policy continues. But to get this result, the school agreed to pay an unannounced sum of money to the plaintiff and his legal counsel, and already, a team of lawyers in Hawai‘i have advertised their readiness to sue the schools again if a suitable and willing young plaintiff will come forward. This battle is hardly over.

II. Protection of ‘Iwi and Moepu (buried remains of ancestors and burial objects)

For perhaps all human societies, the buried remains of ancestors and the items they are buried with are sacred and important. But especially for Hawaiians and other indigenous peoples, anthropological or other interests by outsiders and modern commercial development of ancestral lands have brought buried remains out from their safe resting places. Disputes result, which are then regulated by a non-native legal system that may or may not be suitable for the task.

Recently, in Hawai‘i, there have been two kinds of disputes regarding ‘Iwi and Moepu. First, the tremendous pressures for real property development of ancestral lands have disturbed resting sites in urban Honolulu and elsewhere. These disputes are now governed by a Hawai‘i state law that is much in the news.

Second, Hawaiian artifacts previously removed from caves by outsider social scientists and into museum collections have been in dispute between the museum’s claim to ownership and those who seek to return the artifacts back to undisturbed silent rest. These disputes are governed by a federal law, the 1990 Native American Graves Protection and Repatriation Act (NAGPRA)2.

A. Building Development and Discovered Remains

After a large collection of remains were discovered during resort construction on the island of Maui, a Hawai‘i state law was enacted to set up a process concerning real estate development. Pre-construction, developers must scientifically survey the land to assess whether remains are likely to be present, and if found, a community process including an Island Burial Council with Native Hawaiian members aims to determine whether the remains will be protected or relocated, and in what manner. That’s the “easier” part, (though of course it is not “easy”).

Circumstances are more difficult when remains are discovered during construction. At that point, the law allows a rapid administrative review process (sometimes in just two or three days) with far less community input, so construction will not be substantially delayed.

This law has been in the news recently regarding two major developments in Honolulu. A few years ago, Wal-Mart’s construction discovered remains during construction, and some Native Hawaiian community members were displeased with Wal-Mart’s choice to move ahead with only minimal accommodations for these ancestral remains. The same problem is now present with construction of a large-scale store being developed by Whole Foods, a nationally-famous natural foods chain in the Ward Center area of the Honolulu. In that case, the store developers, particularly in light of their store’s business reputation as eco-friendly and community sensitive, are less able than Wal-Mart to simply forge ahead. With over 40 sets of remains uncovered during construction, the huge project is presently stalled while the administrative and political processes play out.

B. NAGPRA and the Big Island Cave Collections

A different type of dispute concerning burial remains has also been in the news – remains from the Bishop Museum’s collection that were lent to a Native Hawaiian community group who then secretly re-buried the items back into caves on the Big Island of Hawai‘i.

This dispute is governed by federal law, NAGPRA. But NAGPRA was designed to work with regards to Native American tribes that have clear tribal governance structures. NAGPRA appears to be inadequate for Hawai‘i where Hawaiians do not have a recognizable governance body.

This case was especially notable because one Hawaiian activist, Halealoha Ayau went to jail for several weeks rather than disclose the secret burial location. In the end, Mr. Ayau was released from jail when the location was otherwise revealed and the items were recovered. The future of the items is now in an administrative law process pursuant to NAGPRA.

III. Challenges to U.S. Military Encroachment

Like Okinawa, a substantial part of the Hawaiian Islands is used by the U.S. military for operational bases, training, materials storage, etc. (Fully one-third of O‘ahu is used by the U.S. military.) Needless to say, the social and environmental impacts of this military use of the Hawaiian Islands are substantial. This is a matter of great concern for many Native Hawaiians.

Perhaps one of the most famous contests for the Native Hawaiian sovereignty movement of the past years was the successful legal and political effort to reclaim the sacred island Kaho‘olawe, which had been profanely used as a live-fire aerial bombing target by the U.S. Navy for roughly 50 years. In 1990, the U.S. Government agreed to cease bombing the island, and in 1994, ownership of the island was given over to the State of Hawai‘i in trust for a future Hawaiian sovereign entity. Over $400 million was spent for only a partial environmental cleanup of the 11,500 hectares of Kaho‘olawe.
However, in 2002, the U.S. Army announced its intent to use substantial portions of O‘ahu and the Big Island of Hawai‘i for a Stryker Brigade armored infantry force. This is a tragic irony. The Stryker operations seek to use nearly 10,000 hectares of land for training, including live-fire exercises. Much of this land is culturally and environmentally sensitive high-desert country on the Big Island. Just as Kaho‘olawe was returned to Hawaiians, the U.S. military decided to violate another part of the islands of almost the precisely same land area.

Three Native Hawaiian groups sued (including three students from my law school among the plaintiffs). The case was dismissed at the District Court level, but the 9th Circuit Court of Appeals reversed that decision, and enjoined the Stryker Brigade development, pending full resolution of the claims.

The matter is now still pending. While many expect the military will prevail to use the lands as it wishes (at least for the near-term), it shows the power of Hawaiian community groups to use environmental law to protect Hawaiian interests. In this “David and Goliath” challenge, so far, “David” has forced the most powerful military in the world to obey the law.

IV. “Other”

I’m afraid time does not allow me to go into detail regarding other legal issues pending. In short, there have been some victories, some issues that are ever-present, and new issues emerging.

A. “Victories”

Any discussion of victories must begin with lands restored to the Hawaiian people. These include Kaho‘olawe, and OHA’s recent purchase of special culturally and environmentally sensitive lands, namely Wao Kele o Puna, a 10,463 hectare native rain forest on Kīlauea Volcano, and Waimea Valley on O‘ahu.

In legal education, my law school has graduated perhaps nearly three hundred Native Hawaiians to become licensed lawyers in the state and hopefully helped non-Hawaiians (including myself) become more sensitive and aware of the legal issues I have discussed today. I am delighted that we have established a Center for Excellence in Native Hawaiian Law under the leadership of Professor MacKenzie, (who I hope you will soon be able to meet in person).

And although Hawaiian cultural restoration through education is less “legal”, I mention the establishment this Spring of the Hawai‘inuiakea School of Hawaiian Knowledge at the UH Mānoa campus, the largest school of indigenous studies in the United States, and the revitalization of Hawaiian language by Hawaiian language immersion charter schools.

B. Persisting Disputes

As I mentioned in my introduction, many disputes over land and water rights, and the ability to carry out traditional and cultural practices, are still pending and new disputes pertaining to these issues regularly arise. So are claims regarding revenues due to Native Hawaiians from ceded Crown and Government lands, and the overarching question of Hawaiian sovereignty. Other issues arise in law and politics with regards to housing, welfare, criminal justice, health care and health disparities, education, etc. .

I want to point out again that my talk today is glossing on these issues, which are of course crucial for the healthy survival and future progress of the Hawaiian people.

C. New and Emerging

Lastly, I will introduce by name two other areas that are gaining new attention from Native Hawaiian peoples in law.

First, we can look at a range of intellectual property issues that are emerging such as bio-prospecting (the State of Hawai‘i passed a new law to address this issue this past year), protection of cultural themes and practices (for example, even “Wikipedia” is a name that draws upon Hawaiian language without consent), and developing a Native Hawaiian trademark such as “Maori Made”.

The other issue must be climate change and global warming. Needless to say, the Hawaiian Islands are incredibly vulnerable to the impacts of climate change – whether that be super-force typhoons, rising sea temperatures destroying coastal marine environments, or rising sea levels that could put most of the coastal lowlands underwater in 50 years.
These issues are also profoundly important and gaining attention of Native Hawaiians and others in law and policy, but I’m afraid I do not have time to speak of them in depth. With the special friendship that exists between the University of Hawai‘i and Hokkaido University, and the important commonality of indigenous peoples whose ancestral lands we use for our campuses, let us save these discussions and more for another day.

Thank you for listening to me today.

1. Appreciation also to my research assistant Mel Hisato Hayashi and my support specialist Ashley Muraoka in preparing research and reference materials regarding today’s talk. While I appreciate those whose help I enjoyed, all opinions expressed here and the responsibility for mistakes are mine.

2. I understand there have been disputes of this kind for Ainu people as well, even as between Ainu people and Hokkaido University.