Ka Huli Ao Archival Project

Keith Johnston, a 2008 graduate of the William S. Richardson School of Law is one of the Post-Juris Doctor Fellows at Ka Huli Ao Center for Excellence in Native Hawaiian Law. Keith's work as a Fellow is to develop the Center's digital archive.

In our November 7, 2008, blog entry, we briefly mentioned our efforts to make Hawaiian Kingdom era archived documents more accessible. After experiencing a brief delay, I'm happy to announce that Ka Huli Ao is making progress in regards to this particular project.

Two first-year law students, Troy Andrade and Maxwell Kaanohi Kopper have begun the transcription process starting with handwritten Hawaiian Kingdom documents from the year 1841. We expect our transcription efforts to be a long and enduring process that shows great promise for making rare documents more easily accessible. Ka Huli Ao expects to increase the number of law students working on this project over the next semester and following semesters. Other students have previously expressed enthusiasm towards the idea of having access to these old documents and contributing to the effort of making them more accessible.

The transcription process is no easy task. As can be expected, there are no Hawaiian diacritical marks. In addition, transcribing copies of the original documents can be challenging at times, but definitely not impossible. We believe that by the end of this calendar year, which is soon, we will have a number of archived documents transcribed, because of the work of Troy, Maxwell, and Keith. At this time, we do not know exactly when these documents will be availble for viewing. But we'll be sure to keep people updated through this blog.

If this is your first time visiting our blog, and want to be kept updated, please be sure to subscribe to our blog by going to the area right above our organization logo on the upper-right side of this screen. By subscribing to our blog, we can be sure to keep you updated on the latest information regarding our archive transcription efforts and other information on Ka Huli Ao.

Two recent deaths

Although it might appear on this blog that our focus is often more on occurrences on O'ahu, I actually try to keep on top of things by reading other neighbor island based newspapers online.

Today for instance, I'm writing briefly about an article published on The Maui News website. The article, "Kalaupapa leader Richard Marks dies."

The article highlights many of Marks' accomplishments. Marks was also a Hansens' disease (leprosy) patient who was sent to Kalaupapa because of his condition. Richard was a strong advocate in the effort to make Kalaupapa leprosy settlement a National Historic Park and he worked with the late Patsy Mink, to have Kalaupapa settlement managed by the National Park Service.

Marks' activism is inspiring. The article provides, "Gloria Marks recalled that her husband boldly proclaimed, 'I am a leper,' in a controversial 1968 magazine article, and went on to talk about the injustice of continuing to isolate patients. The Department of Health threatened to sue him over the interview, she said, but a year later the Legislature repealed the state's 104-year-old quarantine policy.

'He was the one who opened up the door,' she said.

In 1996, he was recognized by the Damien-Dutton Society for Leprosy Aid for his efforts to educate people about the disease and about the history of Kalaupapa.

'They have all the worst ideas about leprosy being such a contagious disease, which is plain nonsense,' he said in a subsequent interview with The Associated Press. 'Over 1,100 people have come here to work since Father Damien and Father Damien was the only one who got the disease.'"

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Last week, I met an attorney at a downtown event. Upon learning that he was an attorney that represented a few labor unions in Hawai'i, he immediately said, "No labor unions, no middle class."


I was surprised to find out last night that long time labor activist, Ah Quon McElrath passed away. I was surprised because earlier this week, I noticed that she was on the cover of the current Midweek magazine which also has an article on this incredible icon. Today, the story can be found on the front page of the Honolulu Advertiser website. The Honolulu Star-Bulletin, in their story, appropriately refers to Ah Quon as a "stalwart champion"

I remember the first time I heard of and saw Ah Quon McElrath. I was a second year law student at the time, the fall of 2005. Cathy Lowenberg, a speaker at the same event, then was a first year law student who helped to organize a presentation at the UH campus on social activism. Cathy spoke on labor issues. Other speakers included 2005 William S. Richardson School of Law graduate Beau Bassett and then visiting professor of law from the Georgetown University Law Center, Mari Matsuda.

I didn't immediately realize back at that event in 2005 that Ah Quon was then 89 years old. Her liveliness and continuous advocacy against injustice was mis-leading in terms of her age.

I'd like to post what a few people have said about her so far online,

At the Pacific Business News website, Patty Keaweamahi wrote,
Ah Quon was truly salt of the earth quality and will surely be missed. She was such a strong influence to all of us who got to know her, and had such a strong will, made of iron. She utilized her wisdom and strength to stand up against all the injustices committed against any human being, especially women. It was truly an honor to know this remarkable woman. She has left such an indelible mark on my life.

Governor Linda Lingle, as reported by the Honolulu Star-Bulletin, said,
She was "the voice of working men and women in Hawaii and across the country. The people of our state owe her a debt of gratitude for her tireless efforts to improve the lives of Hawaii's residents."

Also in the Honolulu Star-Bulletin, Hawaii state Representative, Marcus Oshiro is quoted as saying, "Although we look at her as being maybe the matriarch of the union movement in Hawaii, she had a bigger constituency, she served the larger community. She used her life's energies and talents for the common good. She was a role model for women, the disenfranchised, the underdogs, the have-nots."



Both Richard Marks and Ah Quon McElrath will be sorely missed.

Bankruptcy and ancient Native Hawaiian Burials Part 2

In a previous blog entry, I wrote about General Growth Properties under the heading of "Bankruptcy and ancient Native Hawaiian Burials."

The Thursday, December 11, 2008 edition of the Honolulu Star-Bulletin, there is an article that revisits General Growth Properties ("GGP"), its financial troubles, and the Ward Center area that it was in the process of developing.

The article reports that GGP is now trying to sell the Ward Center property to "stave off bankruptcy." According to the article, the ability to sell the property to a willing buyer unlikely for GGP. Considering the current economy, it may be difficult for a buyer to purchase the rather large property and that financing generally isn't available for this type of purchase.

This very same area generated concern among members of the Native Hawaiian community because of the rather high number of ancient burials that were found there. No mention of the burials was made in this recent article or the previous article. Might there have been a settlement between GGP and the parties who fought to protect the burials? I do not recall reading anything in the news about a settlement, so if someone knows, it'll be interesting to find out.

If there is a purchase of this land, it is unclear what impact that purchase (or subsequent action taken on the land) might have on the burials. The disturbed burials and other events brought criticism to the State Historic Preservation Division. Since then, there has been changes.

I can't help but wonder though, if there was a settlement (between GGP and the party that fought to preserve the burials), how might that settlement affect what a different developer can or can't do with the property?

One of the many good things about Native American Moot Court

I previously posted here about the school's Native American Moot Court team. Over the years, they have shown to be a strongly competitive and successful team.

Yesterday, I read on indianz.com that the author of last year's moot court problem, Professor Kevin Gover, is reportedly on the short list of candidates for the position of Secretary of the Interior under the Obama administration. Kevin Gover is a former professor of law at Arizona State University and since December of last year has been the current director of the Smithsonian Institute's National Museum of the American Indian.


Politico.com also has an article about Gover as potential Secretary of the Interior as well. Politico emphasizes that a number of "environmental groups are pushing Gover for the post." In pushing for this, politico.com explains, "A source close to the President-elect Barack Obama’s transition says several environmental groups have contacted environmental transition head Carol Browner, urging her to consider Gover for the top Interior Department post."

Previously there were three top candidates being considered. Gover is one out of two names now supposedly being considered.

Politico.com points out however, that "Traditionally, the interior secretary has been a Westerner." I'm not sure how much of a role tradition is playing in President-elect Obama's decision for cabinet members. Already, Barack Obama is being recognized for his diverse choices in choosing his cabinet.

Members of last year's moot court team were surprised to find out today that the author of the problem they worked hard on last year might be considered for the position of Secretary of the Interior. Last year, the team competed at Arizona State University and demonstrated their strong grasp of the issues of the problem and their ability to parry questions from competition judges. They also showed their innovative-ness in developing arguments that could not were not refuted at the competition.

Happy Aloha Monday

Today's Honolulu Advertiser reports on the chances of the Akaka Bill being passed in the upcoming session of Congress and under the Barack Obama administration. Barack Obama has expressed strong support for the Native people of the United States. A good number of Native American law students, attorneys and tribal leaders campaigned for Obama also. Obama has also expressed support for the federal recognition of Native Hawaiians. The Advertiser article wrote, "'This is an important bill, and if it is not signed into law this year, I commit to supporting it as president,' Obama said back in January when he was campaigning. As a senator, Obama voted in 2006 to bring the bill up for a debate and vote."

The article also provides the opinions of a number of people.

• "I am optimistic about working with President-elect Obama, who supports federal recognition and understands Hawai'i's unique history," Akaka said.
• "I think some of the barriers that have been put up in the Senate can be overcome this time," Abercrombie said.
• "I think that climate of opinion is such right now that this is the kind of bill that would go through," Toni-Michelle Travis said.

One thing I appreciated about this article was the description of the Akaka Bill, "The bill creates a process for reorganizing a Native Hawaiian government, including development of a roll of Native Hawaiians and election of an interim governing council."

Often times, the Bill is mis-understood as providing federal recognition itself. The Bill actually provides a process.

The Akaka Bill is interesting because it has received mixed-reviews from the Native Hawaiian community. There are very vocal opponents from both the Native Hawaiian community and the non-Native Hawaiian community who oppose the Akaka Bill for very different reasons. But, according to five former law students (all 2008 William S. Richardson graduates) federal indian law, the context for which the Akaka Bill is written, is "one of the most complex, and often confusing, ares of the law for practitioners, policymakers, students and professors. The law comprises thousands of overlapping statutes, treaties, executive ordrs, court precedents and administration regulations."

Last year, (9/4/2007) five law students who were also the returning members of the award winning Native American Moot Court team wrote a commentary for the Honolulu Advertiser titled, "Too Early to Determine Akaka Bill Impact" (click here to read article).

In February of this year (2008), these same five students captured the top awards at the annual National Native American Law Students Association's annual moot court competiton; First Place Best Legal Brief, First Place Best Oralist, Third Place Best Advocate and Second Place Best Advocate. In 2007, two of the five students won First Place in the Best Advocates category (formerly known as Best Overall) and one of those two won Second Place Best Oralist. One might assume that these students have developed a good understanding of this field of law.

These students, left-to-right are: Derek Kauanoe, Greg Kimo Schlais, Moanikeala Crowell, Anosh Yaqoob, and Scott E. Hovey.

There are very few people in Hawai'i who are substantially familiar with federal Indian law. The only law school in Hawai'i first included Federal Indian Law as a 3-credit law school course in the fall of 2005. We are currently experiencing our fourth semester of having the class. In addition to the class, participation with this particular moot court competition provides law students with an opportunity to develop their understanding of federal Indian law.

With these opportunities the students were able to study and examine federal Indian law objectively. Probably due to word count limitations, a small part of their understanding of federal Indian law is demonstrated in the article.

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Late Friday night/early Saturday morning, the Honolulu Advertiser reported on what it described as the Lingle Administration's "new tack" in the ceded-lands dispute.

The so-called "new tack" is defined at the beginning of the article, "The Lingle administration will argue before the U.S. Supreme Court that Native Hawaiians do not have an ownership claim to land that belonged to the Hawaiian government prior to its overthrow in 1893."

This is an interesting position to take from an administration that has previously supported the Native Hawaiian community. We will see how things develop.

Catching up

Aloha mai kākou,

Last week, November 23-29, was not only a short week, but a very busy week, thus no blog posts.

But now, things are beginning to get back on track and its time to start providing more updates. We'll begin first with some newer updates, then try to back track. In summary, there are five main topics discussed in this post:

• Young Native Hawaiian chosen as newest trustee to Lunalilo Trust
• The Office of Hawaiian Affairs chooses its leadership
• Kamehameha Schools is in the news again
• Hawai‘i courts lack jurisdiction over Native Hawaiians?
• Governor Lingle's News Conference

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Young Native Hawaiian Chosen As Newest Trustee to Lunalilo Trust
Kamani Kualaau, a 29-year old Kamehameha Schools alum, has recently been named as a Trustee to the King William Charles Lunalilo Trust. This trustee appointment was approved by Judge Colleen Hirai.

Kamani Kualaau was known for his support of Kamehameha Schools' President, Dr. Michael Chun in 1997 during the time when Chun's authority at the school was being challenged by a trustee.

Stanley Hong, chairman of the Lunalilo Trust, described Kamani as, "very young but bright and mature, very experienced for such a short working career. The trust will benefit from his experience in the financial field."

Kamani Kualaau went against 41 other applicants for the position of trustee.

For more information on this story, read the Star-Bulletin article here.



Office of Hawaiian Affairs Trustees Elect Leadership

Photo from www.oha.org

The Office of Hawaiian Affairs' website reports that the OHA Board of Trustees has re-elected Trustee Haunani Apoliona as Board Chairperson.

Former Hawai'i Intermediate Court of Appeals Judge and current OHA Trustee was voted as Vice-Chairman.

Trustee Oswald Stender is the Chairman of the Committee on Asset and Resource Management. Robert Lindsey is the vice chairman.

Trustee Colette Machado is the Chairperson of the Committee on Beneficiary Advocacy and Empowerment. Retired Maui circuit judge and current OHA Trustee Boyd Mossman is vice chairman.



Kamehameha Schools in the News ... Again?
The Honolulu Star-Bulletin has a great article on Kamehameha Schools and it is not about any legal attacks on the Trust this time.

Instead, the focus of the article is service learning education and how service learning is benefiting the Native Hawaiian community. The article briefly describes some of the service projects done in different areas including: Haena, Hilo, Keaukaha, Molokai, Pohoiki Beach Park, Puna, and Waipio.

The Star-Bulletin quotes Kamehameha Schools senior Kaideen Kelly as saying, "I feel that I am doing something for a greater cause than just myself, and that's one of the best rewards of this high school."
Photo from www.starbulletin.com




Lack of Jurisdiction Argument Made in Court?

Both the Honolulu Advertiser and the Honolulu Star-Bulletin report on the conviction and sentencing of Rita Makekau for abuse to her nieces and nephews. The description of the child abuse that Rita Makekau pleaded no contest to is heinous and no person should have to endure that type of treatment.

The articles from the two Honolulu daily newspapers bring up an interesting legal issue that can go easily un-noticed because of the descriptions of the horrible acts that Makekau has been sentenced for. In this blog-post we will explore that legal issue, BUT, we want to make sure that readers do not mis-interpret our exploration of this particular legal issue as supporting Rita Makekau's actions of child abuse.

Rita Makekau "plans to appeal her conviction on the grounds that as a Native Hawaiian, she is outside the jurisdiction of state courts" according to the Honolulu Advertiser article. The Star-Bulletin reports that, Judge Crandall "allowed Makekau to remain free pending the filing of her appeal in which she will argue that state laws do not apply to her." Basically, Makekau plans to argue that the State of Hawai'i judicial system lacks jurisdiction over her.

Since around 1992-94, there have been a few people who attempted to argue that state and federal courts lack jurisdiction over certain individuals, usually a Native Hawaiian or a descendant of a Hawaiian Kingdom citizen. One of the earliest cases where a Native Hawaiian mentioned that a court lacked jurisdiction because of ancestry to either a Native Hawaiian or a Hawaiian Kingdom citizen, was United States v. Dianne Hoapili, 981 F.2d 1260 (9th Cir. 1992). The Ninth Circuit Court of Appeals however, did not address the issue of jurisdiction in that case and instead ordered a new trial while also questioning the competency of the defendant Diane Hoapili.

Shortly after the Hoapili case came United States v. Windyceslau Lorenzo, 995 F.2d 1448 (9th Cir. 1993). This particular case involved two defendants, Nathan Brown and Windyceslau Lorenzo. The defendants argued, that because they were Hawaiian nationals, the federal district court had no jurisdiction over the case. The 9th Circuit Court of Appeals disagreed and basically said that both Brown and Lorenzo did not present any “evidence that the Sovereign Kingdom of Hawai‘i is currently recognized by the federal government or that they have received any immunity arising from the existence of the Kingdom.”

In 1994, the Hawai‘i Intermediate Court of Appeals heard, State of Hawai‘i v. Anthony Lorenzo, 883 P.2d 641 (Haw. Ct. App. 1994). In that case, Lorenzo argued,

[T]he Kingdom of Hawaii (Kingdom) . . . was recognized as an independent sovereign nation by the United States . . . [that] the Kingdom was illegally overthrown . . . with the assistance of the United States; the Kingdom still exists as a sovereign nation; he is a citizen of the Kingdom; therefore, the courts of the State of Hawai‘i have no jurisdiction over him.

Judge Walter Heen (now retired and currently serving as a trustee to the Office of Hawaiian Affairs) wrote the court's opinion. Heen's opinion is the first judicial opinion, that thoroughly examined the legal issue and has been cited to by subsequent courts for the same legal argument of lack of jurisdiction that was used in other cases. Other such cases include:

• State of Hawai‘i v. French, 883 P.2d 644 (Haw. Ct. App. 1994)
• Nishitani v. Baker, 921 P.2d 1182 (Haw. Ct. App. 1996)
• State of Hawai‘i v. Sherman, 95 Haw. 243 No. 22764 (Haw. Ct. App. 2000)
• United States v. Goo
• State of Hawai‘i v. Araujo
• State of Hawai‘i v. Keliikoa
• State of Hawai‘i v. Fergestrom, 101 P.3d 652, 664 (Haw. Ct. App 2004)
• State of Hawai‘i v. Spinney

What may be important to realize, for purposes of context, is that in November of 1993, the 103rd Congress of the United States passed Public Law 103-150 apologizing for the role the United States played in the "overthrow" of the Hawaiian Kingdom. This apology resolution was not available to the Ninth Circuit Court of Appeals for the case involve Dianne Hoapili. More than likely, the Apology Resolution was not available to the court when Nathan Brown and Windyceslau Lorenzo challenged the federal court's jurisdiction.

Judge Walter Heen appears to have been on the first court that had an opportunity to examine the legal defense of "lack of jurisdiction" based on Hawaiian sovereignty or because some asserted that they were Native Hawaiian (or descendants of Hawaiian Kingdom citizens/subjects,) after the passage of the Apology Resolution. The Apology Resolution, among other things, recognized that "the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum."

It will undoubtedly be interesting to see how Rita Makekau handles her appeal in light of the line of cases that have dealt with the same legal defense of "lack of jurisdiction" based on a person being either a Native Hawaiian, a citizen of the Hawaiian Kingdom, or a descendant of a citizen to the Hawaiian Kingdom. No defendant (criminal or civil) has won their case using the same defense.



Governor Linda Lingle Expresses Intent to Proceed With U.S. Supreme Court Review
On November 24, 2008, Governor Lingle held a news conference where she discussed the ceded lands case now pending at the Supreme Court of The United States. You can watch the press conference by clicking here.