ISSUE 3 - AUGUST
2007
IN THIS ISSUE

Director's Column


DIRECTOR’S COLUMN – OBSERVATIONS ON A VISIT TO AOTEAROA: INCORPORATING INDIGENOUS CUSTOM INTO EXISTING LEGAL FRAMEWORKS
by Melody Kapilialoha MacKenzie Director

Welina nui ‘oukou e nā hoa makamaka!

In June, I was honored to attend and participate in a Symposium entitled Tūhonohono: State and Custom in Aotearoa-New Zealand and want to share with you some of my observations and thoughts from that visit.

First, a little about the Symposium sponsors - Te Mātāhauariki Research Institute at the University of Waikato and Tainui Endowed College. Te Mātāhauariki means the imminent dawn and in 1997 at the Institute’s inception, this title reflected the optimistic objective of joining customary laws and principles of Māori and Pākehā (European or non-Māori) societies in a cohesive Aotearoa-New Zealand jurisprudence. A key concept underlying Te Mātāhauariki’s research has been that existing law requires the adoption of Māori customary law into common law. Since little information was readily available on Māori customary law, Te Mātāhauariki began to put together a compendium, based mainly on authoritative primary sources, of references to the concepts and institutions of Māori customary law. The Symposium celebrated the completion of that project and the pre-release in CD format of Te Mātāpunenga: A Compendium of the References to the Concepts and Institutions of Maori Customary Law.

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MESSAGE FROM THE DIRECTOR OF EDUCATIONAL DEVELOPMENT: ANNOUNCING “MAOLI THURSDAYS”
by Susan K. Serrano Director of Educational Development

As we are poised to begin a new academic year, the Center for Excellence in Native Hawaiian Law is pleased to announce Maoli Thursdays – a lunchtime forum and speaker series to be held on the first Thursday of every month. Maoli Thursdays will feature discussions on contemporary Native Hawaiian and other Pacific and Indigenous legal and justice issues. Speakers will include faculty, local attorneys, community members, and scholars who will discuss their recent work, cases and activities. Maoli Thursdays will also provide opportunities for students to find out more about the Center’s courses, research and publications, job and volunteer opportunities, events and conferences, and careers in Native Hawaiian law.

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Message from the Director of Educational Development
Native Hawaiian Law Summaries: Recent Cases
Native Hawaiian Law Summaries: Selected Law Review Articles
Recent State Legislation Affecting Native Hawaiians
Broken Promise? A Brief Update on the U.S. Role in Native Hawaiian Reconciliation Since the 1993 Apology
Virginia’s Apology to Native Americans:
Steps Toward Reconciliation and Social Healing?
Community Outreach Update: Ola I Ka Wai Initiative
Library Update
Major Sacred Sites Win for Tribes: RFRA Trumps Lyng
News from the ‘Ahahui o Hawai‘i Law Student Organization
What's New at the Center? Faculty, Staff, and Board News
Upcoming Event


NATIVE HAWAIIAN LAW SUMMARIES: RECENT CASES
by Carl Christensen Visiting Assistant Professor
Derek Kauanoe 3L
Sarah Wong
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, or may impact, Native Hawaiians. This issue of Ka He‘e includes summaries of the U.S. District Court for the District of Columbia’s decision in Vann v. Kempthorne (the “Cherokee Freedmen” case), the Doe v. Kamehameha Schools settlement and its aftermath, and the Hawai‘i Supreme Courts’ decision in Wailuku Agribusiness Co., Inc. v. Ah Sam.

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NATIVE HAWAIIAN LAW SUMMARIES: SELECTED LAW REVIEW ARTICLES
by Susan Serrano Director of Educational Development
Mana Moriarty 2L
Ka‘ano‘i Walk 3L

The Center for Excellence in Native Hawaiian Law is committed to exploring and critically examining the many significant and pressing issues facing Native Hawaiians. In order to provide lawyers, community members, students, advocates and legal scholars with helpful tools and critical analyses of Native Hawaiian law, the Center is providing below brief summaries of recent law review articles on legal issues facing Native Hawaiians. This issue of Ka He‘e summarizes law review articles on Native Hawaiian traditional knowledge, cultural property, bioprospecting and biopiracy, and the ways in which Native Hawaiians are protecting their traditional and cultural knowledge systems through self-determination efforts.

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RECENT STATE LEGISLATION AFFECTING NATIVE HAWAIIANS: A BRIEF OVERVIEW
by Carl Christensen Visiting Assistant Professor
D. Kapua Sproat Visiting Assistant Professor
Derek Kauanoe 3L

The Hawai‘i State Legislature addressed several issues of particular interest to Native Hawaiians during its 2007 Regular Session. Particularly important is the enactment of legislation creating an ‘Aha Moku council to provide community input for natural resource management issues. The Legislature also passed the Save Haven Bill, which allows parents to leave a newborn in a place of safety without fear of prosecution. While the law promotes child safety, it may create potential problems because a child may be unable to verify his or her Native Hawaiian ancestry. Finally, the Legislature also expended considerable, yet unsuccessful, efforts to amend Chapter 205, H.R.S., the statewide land use law allocating land to the Urban, Rural, Agricultural, and Conservation land use districts. Although this legislation failed to pass, we include a short note to highlight the possible effects of some of these proposals on efforts to protect Native Hawaiian traditional and customary practices.

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BROKEN PROMISE? A BRIEF UPDATE ON THE U.S. ROLE IN NATIVE HAWAIIAN RECONCILIATION SINCE THE 1993 APOLOGY
by Ashley Obrey 2L

What is past is not forgotten. The pain of the past lives on and justice delayed is justice denied…
From the mountain to the sea, the river of justice must flow freely.
-John Berry at ‘Iolani Palace Bandstand [1]

I.  Trusts Betrayed, Promises Made
The year 1893 evokes images of sadness, loss, and betrayal. For this year symbolizes the end of the Hawaiian nation at the hands of American businessmen and agents of the United States.

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VIRGINIA'S APOLOGY TO NATIVE AMERICANS: STEPS TOWARD RECONCILIATION AND SOCIAL HEALING?
by Sarah Wong 3L

The political landscape for some Indigenous Peoples is shifting – at least at the state level. A significant indication of this change is Virginia’s 2007 call for reconciliation in its path-breaking legislative statement of regret over not only the harms of slavery for African Americans [1] but also the “exploitation of Native Americans.” [2] In February 2007, the Virginia legislature unanimously acknowledged “with profound regret the involuntary servitude of Africans and the exploitation of Native Americans, and call[ed] for reconciliation among all Virginians.” [3] The legislative resolution recognized the manifold injuries inflicted upon Native Americans as well as African Americans by the state and, in turn, Virginia accepted responsibility for those harms.

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COMMUNITY OUTREACH UPDATE: OLA I KA WAI INITIATIVE
by D. Kapua Sproat Visiting Assistant Professor

The Center for Excellence in Native Hawaiian Law’s Community Outreach Program develops and facilitates outreach programs to both Native Hawaiian youth and community members. Our newest endeavor – the Ola I Ka Wai Initiative – involves creating and publishing a primer on water rights and issues, along with community outreach to disseminate such information to rural Native Hawaiian communities.

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LIBRARY UPDATE: ANNOUNCING NEW NATIVE HAWAIIAN LEGAL RESOURCES
by Susan K. Serrano Director of Educational Development

The Center for Excellence in Native Hawaiian Law is pleased to announce the release of two new Native Hawaiian legal resources. The new Bibliography of Native Hawaiian Legal Resources: Materials Available at the University of Hawai‘i at Manoa Libraries provides an easily-accessible listing of Native Hawaiian legal resources at the UH Hamilton Library, Hamilton Asia Collection, Hamilton Hawaiian & Pacific Collection, and the William S. Richardson School of Law Library. The Bibliography is categorized into areas such as: cultural knowledge and property; land and natural resources; current and historical laws; legal cases; native rights and claims; overthrow and annexation; sovereignty and self determination; and Hawaiian language documents.

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MAJOR SACRED SITES WIN FOR TRIBES: RFRA TRUMPS LYNG
by Carl Christensen Visiting Assistant Professor

Navajo Nation v. U.S. Forest Service, 479 F.3d 1024 (9th Cir. 2007), involves a dispute over a proposal to expand the private Snowbowl ski resort, located on U.S. Forest Service lands on the San Francisco Peaks of Arizona, and to use recycled sewage effluent to make artificial snow to increase the length of the skiing season. The Peaks are sacred to a number of Southwestern tribes; therefore, the Navajo Nation, White Mountain Apache Nation, Havasupai Tribe, Hopi Tribes, as well as other plaintiffs, challenged the Forest Service’s approval of the plan on various grounds, among them the claim that the use of recycled effluent would violate the Religious Freedom Restoration Act (RFRA) because it would destroy the mountain’s purity and contaminate the natural resources needed to perform certain religious ceremonies, thus making it impossible for the tribes to continue their religious practices.

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NEWS FROM THE ‘AHAHUI OF HAWAI‘I LAW STUDENT ORGANIZATION
by Derek Kauanoe 3L

This past spring, the members of ‘Ahahui O Hawai‘i (“Hui”) elected new alaka‘i (student leaders) for the law school’s oldest student organization. Outgoing alaka‘i include 2007 graduates Laura Edmunds and Jocelyn Macadangdang-Doane in addition to 3L Ka‘ano‘i Walk.The newly elected alaka‘i are Sunny Greer (2L), Mālama Minn (2L) and Kalei Rapoza (3L). The returning alaka‘i is Derek Kauanoe.

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WHAT'S NEW AT THE CENTER? FACULTY, STAFF, AND BOARD NEWS

The Center is pleased to welcome our five new Summer Fellows in Native Hawaiian Law: Moani Crowell; Li‘ulā Kotaki; Mana Moriarty; Chris Santos and Nāpali Souza. Moani is working for Paul, Johnson, Park & Niles, which represents the Office of Hawaiian Affairs in a water rights case. Mana and Nāpali are working with the Bioprospecting Commission housed at the Office of Hawaiian Affairs. Through the Summer Fellowship Program, I have been given a rare opportunity to explore an area of law that, as a Native Hawaiian law student, is deeply personal and reflects my future career pursuits,” said Nāpali. “I am grateful for the ability to immerse myself in a position that furthers the interests of the Native Hawaiian community.

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UPCOMING EVENT

RECONCILIATORY JUSTICE: Addressing Historic Injustices Against Indigenous Peoples

Tuesday, August 21, 2007
12:40-1:45 pm
Room 254

The Center is pleased to announce that Dr. Robert Joseph, a Māori legal scholar from the University of Waikato and a Research Fellow with the Te Mātāhauariki Institute will be speaking on “Reconciliatory Justice – Addressing Historic Injustices Against Indigenous Peoples.”

RSVP to nhlawctr@hawaii.edu by August 19th!

Ka He‘e Editors: Susan Serrano, Kapua Sproat and Melody Kapilialoha MacKenzie

Ka He‘e design by Justin Scott

To Subscribe to Ka He‘e, e-mail us at nhlawctr@hawaii.edu.

Like the law, the he‘e (octopus) is many faceted. The he‘e changes color and camouflages itself. It can melt into the background; it is malleable. It can squirt protective ink, obfuscating what should be clear and apparent. Native Hawaiians recognize that the he‘e has both positive and negative attributes. Like the he‘e, the law offers both benefits and challenges to Native Hawaiians.