ISSUE 4 - DEC 2007
IN THIS ISSUE

Director's Column


DIRECTOR’S COLUMN - WAO KELE O PUNA DEDICATION CEREMONY: MĀPU KE‘ALA O PUNA
by Melody Kapilialoha MacKenzie

Aloha no e nā hoa makamaka,

In August, I was fortunate to attend a dedication ceremony for Wao Kele o Puna, the 25,856-acre rainforest on the flanks of Kīlauea Volcano. The ceremony was held in the forest itself, near the site of an abandoned geothermal well, a testament to the folly of trying to harness Pele. The beautiful morning was hot and humid, with clouds building up throughout the day. Wao Kele o Puna is a descriptive term that means the rain-belt of Puna – an area where clouds attracted by the forest, accumulate. Thus it was not unexpected when rain fell in the late afternoon and a rainbow appeared as a blessing to close the day. It was a sweet day indeed for the many involved in more than twenty years of protest and litigation over the fate of Wao Kele.

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MESSAGE FROM THE DIRECTOR OF EDUCATIONAL DEVELOPMENT: CIVIL RIGHTS AND THE AKAKA BILL
by Susan K. Serrano

Recent public hearings by the U.S. Commission on Civil Rights (USCCR) and its Hawai‘i State Advisory Committee (HSAC) on the Native Hawaiian Government Reorganization Act (also known as the Akaka Bill), have highlighted ongoing battles over Native Hawaiian history and underscored the need to examine the larger framework being used to define Native Hawaiian and civil rights issues.

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INDIGENOUS LAW SUMMARIES: RECENT CASES
by Carl Christensen, Visiting Assistant Professor

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 Day v. Apoliona, Navajo Nation v. U.S. Forest Service, Pono v. Molokai Ranch, Ltd., State of Texas v. United States. The Access Fund v. U.S. Dep’t of Agriculture, and Miner Electric, Inc. v. Muscogee (Creek) Nation.

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Message from the Director of Educational Development

Indigenous Law Summaries: Recent Cases

Indigenous Law Summaries: Selected Law Review Articles

Pacific Island Issues: Reconciliatory Justice & Why Micronesia Matters

The Real Victims in the Hawai‘i Superferry Debacle

Remarks by Professor Mark A. Levin at Hokkaido University

Indigenous Issues Update: Declaration on the Rights of Indigenous Peoples

Save the Dates! Center Presentations and Speaker Series

Spring 2008 Course Offerings from Center Faculty

Update on the Native Hawaiian Government Reorganization Act

NAMC Commentary: Too Early to Determine Akaka Bill Impact

News from the ‘Ahahui o Hawai‘i Law Student Organization

Funding update and Donate Now!

What's New at the Center? Faculty, Staff, and Board News


INDIGENOUS LAW SUMMARIES: SELECTED RECENT LAW REVIEW ARTICLES
by Susan K. Serrano, Director of Educational Development
Derek Kauanoe, 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 issues facing Native Hawaiians and other Indigenous peoples. This issue of Ka He‘e summarizes articles on different aspects of self-determination, including the concept of “nationhood” under domestic U.S. law and contemporary international law, the institutional protection of traditional Hawaiian knowledge, and the implications of international court decisions on the political rights of Indigenous peoples.

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PACIFIC ISLAND ISSUES: MĀORI LEGAL SCHOLAR ROBERT JOSEPH ON “RECONCILIATORY JUSTICE” AND CHAMORU SCHOLAR-ACTIVIST JULIAN AGUON ON “WHY MICRONESIA MATTERS”
by D. Kapua Sproat, Visiting Assistant Professor
Susan K. Serrano, Director of Educational Development


The Center for Excellence in Native Hawaiian Law promotes education, scholarship, community outreach and collaboration on issues of law, culture and justice for Native Hawaiians and other Pacific and Indigenous peoples. This semester, the Center has increased its emphasis on Pacific Island rights and issues by hosting two exciting presentations: Reconciliatory Justice: Addressing Historic Injustices Against Indigenous Peoples featuring Māori Legal Scholar Dr. Robert Joseph, and Why Micronesia Matters: Present-Day Realities of the U.S.-Micronesia Relationship, with Julian Aguon, a Chamoru human rights scholar and activist.

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THE REAL VICTIMS IN THE HAWAI‘I SUPERFERRY DEBACLE
by Representative Hermina Morita
District 14: Hanalei, Anahola, Kealia, Kapa‘a, Waipouli

Note: The Center asked Representative Hermina Morita to author a piece on the Superferry for this issue of Ka He‘e. The following is the author's opinion and analysis.

If one were to make lemonade out of lemons, the Hawai‘i Superferry provides an excellent opportunity for a civics lesson to closely examine the roles and balance of power between the three branches of government. Unfortunately, the victim in this debacle is not the Superferry, but the Hawai‘i Environmental Policy Act, Hawai‘i Revised Statutes ch. 343 (HEPA). Disputes over the Superferry’s failure to complete an Environmental Impact Statement (EIS) to consider potential impacts of establishing and operating ferry service between O‘ahu, Kaua‘i and Maui on natural and cultural resources, were eventually spun out of control. HEPA was wrongly fingered as a barrier to business, trashed by Hawai‘i’s executive branch, considered suspiciously by many members of the legislature, and is now threatened with being gutted in the next legislative session.

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REMARKS BY PROFESSOR MARK A. LEVIN AT THE CENTER FOR AINU AND INDIGENOUS STUDIES AT HOKKAIDO UNIVERSITY, SAPPORO, JAPAN

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.

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INDIGENOUS ISSUES UPDATE: DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES & INDIGENOUS MAYA LAND RIGHTS VICTORY
by Melody Kapilialoha MacKenzie, Director

UN Declaration on the Rights of Indigenous Peoples Adopted

On September 13, 2007, the United Nations General Assembly adopted the long anticipated Declaration on the Rights of Indigenous People. Only four states – the United States, Canada, New Zealand, and Australia – voted against the Declaration, while eleven others abstained.

The Declaration recognizes a wide range of basic human rights and fundamental freedoms of Indigenous peoples. Among these are the right to self-determination and to freely determine their political status; an inalienable collective right to the ownership, use and control of lands, territories and other natural resources; and the right to maintain and develop political, religious, cultural and educational institutions along with the protection of cultural and intellectual property.

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SAVE THE DATES! CENTER PRESENTATIONS AND SPEAKER SERIES

This semester, the Center launched its popular Maoli Thursdays, a lunchtime forum and speaker series on Native Hawaiian and other Pacific and Indigenous issues, held every first Thursday of the month. Save the dates for Maoli Thursdays in the Spring Semester: February 7th, March 6th, and April 3rd. Visit the Center’s website soon for Maoli Thursday topics!

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SPRING 2008 COURSE OFFERINGS FROM CENTER FACULTY

If you’re interested in the PALS ‐ Specialty in Native Hawaiian Law Certificate, the Environmental Law Certificate, or just want to understand the fascinating issues affecting indigenous peoples or Hawai‘i’s resources, consider these courses:

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UPDATE ON THE NATIVE HAWAIIAN GOVERNMENT REORGANIZATION ACT
by Melody Kapilialoha MacKenzie, Director

On October 24, 2007, the U.S. House of Representatives approved H.R. 505, The Native Hawaiian Government Reorganization Act of 2007, more commonly referred to as the “Akaka Bill,” after its sponsor Hawai‘i’s own U.S. Senator Daniel Akaka. The bill aims to establish a process to reorganize a Native Hawaiian government that will lead to federal recognition of that government, thereby affording Native Hawaiians a status similar to American Indians and Alaska Natives. The House passed the bill on a 261-153 vote.

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NAMC COMMENTARY: TOO EARLY TO DETERMINE AKAKA BILL IMPACT


By Derek Kauanoe, Greg Schlais, Moani Crowell, Anosh Yaqoob, and Scott Hovey Jr.

To provide additional analysis and another perspective on the Akaka Bill, reprinted below is a commentary by five third-year students at the William S. Richardson School of Law, who are returning members of the Native American Moot Court Team. This commentary first appeared in the Honolulu Advertiser on September 4, 2007 and is reprinted here with permission. Team members won First Place in the National Competition in Minneapolis, Minnesota, in February 2007. Team member Anosh Yaqoob placed Second for Best Oralist.

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NEWS FROM THE ‘AHAHUI O HAWAI‘I LAW STUDENT ORGANIZATION AND THE NATIVE AMERICAN MOOT COURT TEAM
by Derek Kauanoe, 3L

The ‘Ahahui o Hawai‘i kicked off the 2007-08 academic year with a reception on August 13 to welcome first-year Native Hawaiian students to the Law School. At the event, incoming Native Hawaiian students, along with second- and third-year Native Hawaiian students met and mingled with a number of Native Hawaiian and non-Hawaiian attorneys and faculty working in the fields of environmental law and Native Hawaiian rights.

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THE CENTER FOR EXCELLENCE IN NATIVE HAWAIIAN LAW RECEIVES NEEDED FUNDING AND LAUNCHES NEW FUNDRAISING EFFORTS

Hulō! Hulō! On October 4, 2007, the Office of Hawaiian Affairs’ (“OHA’s”) Board of Trustees voted unanimously to award the Center for Excellence in Native Hawaiian Law a $630,000 grant in support of our Na‘au Pono Initiative. Na‘au Pono is a deep sense of justice, which is what the Center strives to achieve for Native Hawaiians. Funding will be provided over two years to help enable the Center’s continued existence at the Law School. OHA’s support has proved critical, as the Center is facing a significant budget shortfall this year.

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

On November 7th, Center Director Melody Kapilialoha MacKenzie and 3rd year Native Hawaiian law student and ‘Ahahui o Hawai‘i alaka‘i (student leader) Derek Kauanoe, met with the Mānoa Pre-Law Association to discuss the law school admissions process, the Hui’s Law School Admission Test (LSAT) Preparation Course, and the Center’s courses and programs. In the spring of 2006, the Hui established a recruitment program that offers LSAT Preparation classes to Native Hawaiians interested in pursuing a legal education. For more information, please visit http://www2.hawaii.edu/~ahahui.

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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.