ISSUE 5 - JULY
2008
IN THIS ISSUE
DIRECTOR’S COLUMN – THE 1993 APOLOGY RESOLUTION
by Melody Kapilialoha MacKenzieWelina nui ‘oukou e nā hoa makamaka:
In 1993, when Congress passed the Apology Resolution, Public Law 103-150, acknowledging the 100th anniversary of the overthrow of the Hawaiian Kingdom and formally apologizing to the Native Hawaiian people for U.S. involvement in the overthrow, the Hawaiian community was cautiously optimistic. The Apology Resolution contains strong findings, establishes a foundation for reconciliation, and calls for a reconciliation process. It does not, however, require any particular restorative action or even set forth a process for reconciliation. Thus, some skeptics believed the Apology Resolution, although having the force of law, was of minimal value.
READ MORE
MESSAGE FROM THE DIRECTOR OF EDUCATIONAL DEVELOPMENT: FOCUS ON HEALING AND RECONCILIATION
by Susan K. Serrano
January 2008. The Hawai‘i Supreme Court proclaimed that “Congress, the Hawai‘i state legislature, the parties, and the trial court all recognize … that future reconciliation between the state and the native Hawaiian people is contemplated.”1February 2008. Australian Prime Minister Kevin Rudd apologized to Aborigines “for the laws and policies of successive parliaments and governments that have inflicted profound grief, suffering and loss.”2
The Hawai‘i Supreme Court’s recognition of the state’s commitment to reconciliation and the Australian government’s expressions of apology and regret are part of a growing worldwide movement toward reconciliation between governments and Indigenous communities. What potential do these reconciliation efforts hold? Will they lead to concrete restructuring of relationships or are they “simply masks for continuing status quo oppression?”3 These are questions currently being addressed by legal scholars and others.4
INDIGENOUS LAW SUMMARIES: RECENT CASES
by Carl Christensen, Visiting Assistant ProfessorThe 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 provides 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 Carcieri v. Kempthorne and Nobriga Enterprises v. State of Hawai‘i.
Carcieri v. Kempthorne, 497 F.3d 15 (1st Cir. 2007) (en banc), cert. granted, 76 U.S.L.W. 3226, 128 S.Ct. 1443 (Feb. 25, 2008) (No. 07-526).
On February 25, 2008, the U.S. Supreme Court agreed to hear Carcieri v. Kempthorne, a case in which the State of Rhode Island challenged the decision of the Secretary of the Interior to take about 30 acres of land in Charlestown, Rhode Island, into trust for the Narragansett Tribe of Indians. The case raises significant questions about the land-into-trust process, as well as broader issues relating to the relationship between Indian Tribes and state governments under federal law.
Indigenous Law Summaries: Selected Recent Law Review Articles
Yalangu: The "True Spirit of Reconciliation" for Australia's Indigenous Peoples
Update on Native American Moot Court/Native American Law Students Association
HO‘OHOLO I MUA - TOWARDS RECONCILIATION?
OFFICE OF HAWAIIAN AFFAIRS V. HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAI‘I
by Moanikeala Crowell, JD 2008On January 31, 2008, the Hawai‘i Supreme Court issued a unanimous decision, authored by Chief Justice Ronald Moon, in Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawai‘i.1 The Court held that the State of Hawai‘i is prohibited from alienating approximately 1.4 million acres of “ceded lands” until the claims of the Native Hawaiian people to those lands have been resolved. Native Hawaiian claims to ceded lands are based on their historical significance to the Hawaiian Kingdom. Many in the Native Hawaiian community saw the opinion as a positive step or ho‘oholo i mua towards reconciliation and as encouraging Native Hawaiians, the larger community, and those with differing perspectives to continue a dialogue not only on the use and disposition of ceded lands, but also on Native Hawaiian self-determination.
LEGAL UPDATE: SUMMARY OF NEW LAWSUIT KUROIWA V. LINGLE
by Anosh Yaqoob, JD 2008On April 3, 2008, attorney H. William Burgess filed a complaint in the United States District Court for the District of Hawai‘i on behalf of several plaintiffs including James I. Kuroiwa, Earl F. Arakaki, and former Honolulu Advertiser owner Thurston Twigg-Smith, against Governor Linda Lingle along with a number of other state officials including Trustee Haunani Apoliona, Chairperson of the Office of Hawaiian Affairs (OHA), claiming the State of Hawai‘i is breaching its fiduciary duties to “non-ethnic Hawaiians” by not providing all Hawai‘i residents revenues derived from the ceded lands trust created under §5(f) of Hawai‘i’s Admission Act.
LEGAL UPDATE: SUMMARY OF IN RE WATER USE PERMIT APPLICATION (KUKUI MOLOKA‘I, INC.)
by Kamaile Nichols, JD 2008In its recent decision, In Re Water Use Permit Application (Kukui Moloka‘i, Inc.), 116 Hawai‘i 481, 174 P.3d 320 (2007), the Hawai‘i Supreme Court vacated the Commission on Water Resource Management’s (Commission’s) final decision and order granting Kukui (Moloka‘i), Inc.’s (KMI’s) Water Use Permits for proposed and existing uses, and remanded for further proceedings. At issue was KMI’s permit applications to pump ground water from the Kualapu‘u Aquifer on the island of Moloka‘i for private commercial use.
INDIGENOUS LAW SUMMARIES: SELECTED RECENT LAW REVIEW ARTICLES
by Anosh Yaqoob, JD 2008The Center for Excellence in Native Hawaiian Law is committed to exploring and critically examining the many significant and pressing issues facing Native Hawaiians and other indigenous peoples. This includes exploring new theories and practical arguments being developed by legal and Indigenous scholars in law reviews and journals. This issue of Ka He‘e summarizes law review articles analyzing indigenous peoples' use of international law, community- and native-oriented property rights, and lawyering in indigenous communities.
YALANGU1 : THE “TRUE SPIRIT OF RECONCILIATION”
FOR AUSTRALIA’S INDIGENOUS PEOPLES
by Ashley Obrey, 3LThe Parliament is today here assembled to deal with this unfinished business of the nation, to remove a great stain from the nation’s soul, and in a true spirit of reconciliation to open a new chapter in the history of this great land, Australia. -Prime Minister Kevin Rudd (Feb. 13, 2008)
I. A Community BrokenNanna Nungala Fejo’s earliest memories honor her relationship with her family and community in a bush camp outside Tennant Creek, Australia. Born in the 1920s, Fejo recalls the “love and warmth and kinship” of her childhood.2 And the dancing. She loved traditional Aboriginal dancing so much that, as a four-year-old, she broke custom instructing the girls to sit and watch, instead insisting on dancing with the male tribal elders.
THE CENTER CONGRATULATES OUR GRADUATES WHO RECEIVED PALS-SPECIALTY IN NATIVE HAWAIIAN LAW CERTIFICATES
Maika‘i loa! Congratulations to our three 2008 graduates who recently received Pacific Asian Legal Studies (PALS) Certificates with a Specialty in Native Hawaiian Law, Moanikeala Crowell, Derek Kauanoe, and Ka‘ano‘i Walk. This is the second year that PALS-Specialty in Native Hawaiian Law certificates were awarded. We hope there will be many more to follow in the footsteps of these talented scholars and leaders.
CENTER EVENTS AND SPEAKER SERIES
This semester, the Center continued 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.
NEW BOOK ON MICRONESIAN ISSUES – WHAT WE BURY AT NIGHT: DISPOSABLE HUMANITY
Julian Aguon, a Chamoru human rights scholar and recognized international activist on Micronesian and Chamoru issues, published his third book, What We Bury At Night: Disposable Humanity, in early 2008. Julian is a second year student at the William S. Richardson School of Law and the author of two other books, The Fire this Time and Just Left of the Setting Sun.
PROFESSOR CHRISTINE ZUNI CRUZ SHARES HER KNOWLEDGE OF INDIGENOUS RIGHTS AND ISSUES
During the 2008 January Term, the Center for Excellence in Native Hawaiian Law was honored to host Christine Zuni Cruz, Professor of Law from the University of New Mexico Law School.
NEWS FROM THE ‘AHAHUI O HAWAI‘I LAW STUDENT ORGANIZATION
by Derek Kauanoe, JD 2008The Hui kicked off the school year by bringing a number of public interest and Native Hawaiian attorneys and retired judges to the law school in August to meet with incoming and current Native Hawaiian law students. This mixer provided an opportunity for current Native Hawaiian law students and attorneys to talk with the incoming Native Hawaiian law students about law school and the legal profession.
THE CENTER FOR EXCELLENCE IN NATIVE HAWAIIAN LAW RECEIVES ADDITIONAL FUNDING BUT CONTINUES FUNDRAISING EFFORTS
by D. Kapua Sproat, Visiting Assistant ProfessorHulō! Hulō! The Center recently was awarded a $1.2 million Native Hawaiian Education Act (NHEA) grant to support education and legal scholarship, community outreach, and the preservation of invaluable historical, legal, and other materials. The grant will enable the Center to offer specialized courses and provide financial, academic, and educational support to Native Hawaiian and other students interested in working on issues of significance to the Native Hawaiian community.
UPDATE ON NATIVE AMERICAN MOOT COURT/NATIVE AMERICAN LAW STUDENTS ASSOCIATION
by Derek Kauanoe, JD 2008This year’s Native American Moot Court (NAMC) team brought home more awards than any other law school at the competition, which was held at Arizona State University in Tempe, Arizona.
WHAT’S NEW AT THE CENTER?: FACULTY, STAFF AND BOARD NEWS
The Center for Excellence in Native Hawaiian Law was listed in the May 2008 issue of Mālamalama magazine as one of the 100 University of Hawai‘i contributions that “made a difference” in the last 100 years. The Center was listed in the category of “Greater Good.”
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.
If you enjoy reading Ka He‘e, please consider donating to the Center. Donations are tax-deductible. Donate now
Like the law, the he‘e (octopus) is multi-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.