AuthorTitleCitationSummaryYear
Rhonda McMillion Kamehameha's Children 94-JAN ABA Journal 65 (January, 2008) Even after more than a century, hawaii still has not come fully to terms with the events that transformed it from an independent nation into a U.S. territory and, in 1959, the 50th state. After King Kamehameha I united the islands at the end of the 18th century, Hawaii's sovereignty was recognized by the United States and other nations. But a coup... 2008
Nicole Harris, San Francisco Our Mini-theme: Native America 18-DEC Business Law Today Today 8 (November/December, 2008) The law is a system that provides social cohesion while at the same time revealing much about our culture in a nation of many people and customs. In this issue, we celebrate the Native peoples of our nation, which include Native Americans, Alaska Natives, and Native Hawaiians. Few of us have had the opportunity to develop a deep understanding of... 2008
Jodi Higuchi Propagating Cultural Kipuka: the Obstacles and Opportunities of Establishing a Community-based Subsistence Fishing Area 31 University of Hawaii Law Review 193 (Winter 2008) I guess the saying is, if you teach a man to fish, he going eat for the rest of his life. I think what we want to change the saying down in Mo'omomi to, if you teach a man the right way to fish, he going eat for generations. In Hawaiian tradition, kipuka are known as islands of life spared from destruction within a sea of hardened lava. The... 2008
Lorie M. Graham REPARATIONS, SELF-DETERMINATION, AND THE SEVENTH GENERATION 21 Harvard Human Rights Journal 47 (Winter 2008) In each deliberation, we must consider the impact of our decisions on the next seven generations. --Great Law of the Haudenosaunee [T]he grandmothers and grandfathers . . . thought about us as they lived, confirmed in their belief of a continuing life . . . . --Simon Ortiz, Poet and Writer Indigenous teachings on law and family help define our... 2008
Sean M. Smith The "Hawaiianness" of Same-sex Adoption 30 University of Hawaii Law Review 517 (Summer, 2008) Between 2000 and 2005, the number of same-sex couples in Hawai'i increased by more than thirty percent, from 2389 to 3262. At the same time, more than thirty-nine percent of same-sex couples nationwide were raising children under the age of eighteen. Extrapolating from national data, one might expect to find at least 1200 same-sex couples raising... 2008
David M. Forman The Hawaiian Usage Exception to the Common Law: an Inoculation Against the Effects of Western Influence 30 University of Hawaii Law Review 319 (Summer, 2008) On behalf of the unanimous United States Supreme Court in Damon v. Territory of Hawaii, the esteemed Justice Oliver Wendell Holmes wrote the following statement about a claim based on Hawaiian custom and usage: A right of this sort is somewhat different from those familiar to the common law, but it seems to be well known to Hawaii, and, if it is... 2008
Mahealani Wendt The Needs of Native Hawaiians in Achieving Access to Justice 12-DEC Hawaii Bar Journal 10 (December, 2008) Native Hawaiians continue to be chronically overrepresented on many indicia of social, political and economic well-being. Based on the last available census figures, there are approximately 239,655 Native Hawaiians living in Hawai'i, 14%, or approximately 33,552 of whom live below the federal poverty level. In addition, 28% of all recipients of... 2008
D. Kapua Sproat, Aarin F. Gross The Nw. Hawaiian Islands Marine National Monument 22-SPG Natural Resources & Environment 57 (Spring, 2008) On June 15, 2006, President George W. Bush signed Presidential Proclamation 8031. One swish of his pen established the largest marine protected area in the entire world and the biggest single conservation area in U.S. history--the Northwestern Hawaiian Islands Marine National Monument pursuant to the Antiquities Act of 1906, 16 U.S.C. §§ 431-433... 2008
Kenneth L. Marcus THE RIGHT FRONTIER FOR CIVIL RIGHTS REFORM 19 George Mason University Civil Rights Law Journal 77 (Fall 2008) Long hailed as the conscience of the nation, the United State Commission on Civil Rights (USCCR or the Commission) marks its 50th anniversary this year amidst one of the most dramatic periods in its noble, if checkered, history as a temporary, long-unauthorized, federal agency. Since conservative appointees gained majority control of the... 2008
Cruz Reynoso , William C. Kidder TRIBAL MEMBERSHIP AND STATE LAW AFFIRMATIVE ACTION BANS: CAN MEMBERSHIP IN A FEDERALLY RECOGNIZED AMERICAN INDIAN TRIBE BE A PLUS FACTOR IN ADMISSIONS AT PUBLIC UNIVERSITIES IN CALIFORNIA AND WASHINGTON? 27 Chicana/o-Latina/o Law Review 29 (2008) The group at the statistical bottom of all the scales thought to measure lack of opportunity is American Indians. A line of viable Supreme Court authority holds that equal protection of the law does not require strict scrutiny of laws singling out Indians for advantage or disadvantage, when Indians is understood to mean members of federally... 2008
Kathryn Nalani Setsuko Hong Understanding Native Hawaiian Rights: Mistakes and Consequences of Rice V. Cayetano 15 Asian American Law Journal L.J. 9 (May, 2008) This paper comprehensively reviews the Supreme Court case Rice v. Cayetano and its implications for Native Hawaiian legal rights. The Rice opinion, issued in 2000, continues to affect the Native Hawaiian community today. The issue of Native Hawaiian legal rights remains controversial, as demonstrated by recent suits challenging programs that... 2008
Ka'ano'i Walk "OFFICIALLY" WHAT? THE LEGAL RIGHTS AND IMPLICATIONS OF 'ŌLELO HAWAI'I 30 University of Hawaii Law Review 243 (Winter 2007) I ka 'lelo no ke ola, i ka 'lelo no ka make: Through language there is life, through language there is death. The native people of Hawai'i know the power of the spoken word. The survival of a people's language is the key to the survival of their identity. 'lelo Hawai'i, the native language of Hawai'i, was nearly extinguished by a ban on the... 2007
Eric K. Yamamoto , Sandra Hye Yun Kim , Abigail M. Holden AMERICAN REPARATIONS THEORY AND PRACTICE AT THE CROSSROADS 44 California Western Law Review 1 (Fall 2007) Slowed by controversial legal claims, skeptical judges, and flagging mainstream public support, American reparations theory and practice stand at a crossroads. The path they next traverse will likely determine the long-term viability of reparations claims, not only for African Americans, but also for anyone suffering the persistent wounds of... 2007
Jenny Rivera AN EQUAL PROTECTION STANDARD FOR NATIONAL ORIGIN SUBCLASSIFICATIONS: THE CONTEXT THAT MATTERS 82 Washington Law Review 897 (November, 2007) The Supreme Court has stated, [c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause. Judicial review of legislative race-based classifications has been dominated by the context of the United States' history of race-based oppression and consideration of the effects of institutional racism.... 2007
Ronald D. Aucutt Book Review: Broken Trust 42 Real Property, Probate and Trust Journal 409 (Summer, 2007) Broken Trust, written by Senior U.S. District Court Judge Samuel P. King and University of Hawai'i School of Law Professor Randall W. Roth, tells the story of the legacy of Hawaiian Princess Pauahi, the great-granddaughter of Kamehameha the Great. It is the story of Kamehameha Schools, which the Princess's will directed her trustees to establish... 2007
John Tehranian COMPULSORY WHITENESS: TOWARDS A MIDDLE EASTERN LEGAL SCHOLARSHIP 82 Indiana Law Journal 1 (Winter, 2007) Some time ago, I was on the teaching market and I received an invitation to give a job talk at a law school. I flew to the school, enjoyed a pleasant day of meetings with the faculty, and received strong indications of support for my candidacy. I had been warned about the vagaries of the academic hiring process, so I naturally took this signal with... 2007
Helen Y. Kim DO I REALLY UNDERSTAND? CULTURAL CONCERNS IN DETERMINING DIMINISHED COMPETENCY 15 Elder Law Journal 265 (2007) Cultural beliefs, values, and differences play an important role in the context of client competency determinations. In this note, Helen Y. Kim explores the potential effects of culture on the attorney-client relationship. Specifically, she focuses on the salient role that cultural factors play in the client competency determinations attorneys are... 2007
Christopher W. Schmidt DOE v. KAMEHAMEHA: SECTION 1981 AND THE FUTURE OF RACIAL PREFERENCES IN PRIVATE SCHOOLS 42 Harvard Civil Rights-Civil Liberties Law Review 557 (Summer, 2007) On December 5, 2006, one day after the United States Supreme Court heard oral arguments on the constitutionality of race-based pupil assignment in public schools, the Ninth Circuit handed down its decision in Doe v. Kamehameha, a case that raised analogous issues in the context of private education. The Ninth Circuit rejected a challenge brought... 2007
Melody Kapilialoha MacKenzie, Susan K. Serrano, Koalani Laura Kaulukukui Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources 21-WTR Natural Resources & Environment 37 (Winter, 2007) Hnau ka 'ina, hnau ke ali'i, hnau ke kanaka. Born was the land, born were the chiefs, born were the common people. Mary Kawena Pukui, lelo No'eau, Hawaiian Proverbs & Poetical Sayings 56 (1983). So begins an ancient proverb that describes the inseparable spiritualand genealogicalconnection between Native Hawaiians and their land and... 2007
Samuel P. King, Randall W. Roth Erosion of Trust 93-AUG ABA Journal 48 (August, 2007) Arrogance was just one ingredient--but a crucial one--in the trouble at Hawaii's powerful Bishop Estate. It finally boiled over in 1999, when all five trustees were removed from office after the Internal Revenue Service threatened to strip the estate of its status as a tax-free charitable organization. No one was ever convicted of wrongdoing. In... 2007
Justin D. Levinson FORGOTTEN RACIAL EQUALITY: IMPLICIT BIAS, DECISIONMAKING, AND MISREMEMBERING 57 Duke Law Journal 345 (November, 2007) In this Article, I claim that judges and jurors unknowingly misremember case facts in racially biased ways. Drawing upon studies from implicit social cognition, human memory research, and legal decisionmaking, I argue that implicit racial biases affect the way judges and jurors encode, store, and recall relevant case facts. I then explain how this... 2007
  Hsba Happenings 11-DEC Hawaii Bar Journal 16 (December, 2007) WINNER of the HAWAII IDLE LAWYER title at the HSBA's Annual Fundraising Dinner, held on November 16, 2007, was Dianne Winter Brookins. Other contestants Sabrina McKenna, Susan Jaworowski, Adrienne King, David Pendleton, Colette Gomoto, A.J. Quan, Robert Kekuna and Lyle Hosoda sang their hearts out. THE PRIZE: A trip to Las Vegas. A GREAT TIME WAS... 2007
Summer Sylva Indigenizing Water Law in the 21st Century: Na Moku Aupuni O Ko'olau Hui, a Native Hawaiian Case Study 16 Cornell Journal of Law & Public Policy 563 (Summer 2007) INTRODUCTION: THE CONTEMPORARY LANDSCAPE OF WATER LAW IN HAWAII. 563 I. NATIVE HAWAIIAN UNDERSTANDINGS OF WATER. 566 II. HAWAII'S PUBLIC TRUST DOCTRINE. 568 III. HAWAII'S LEADING WATER LAW CASES. 572 IV. NA MOKU CASE STUDY. 576 CONCLUSION. 578 2007
Rebecca Tsosie INDIGENOUS PEOPLE AND ENVIRONMENTAL JUSTICE: THE IMPACT OF CLIMATE CHANGE 78 University of Colorado Law Review 1625 (Fall 2007) The international dialogue on climate change is currently focused on a strategy of adaptation that includes the projected removal of entire communities, if necessary. Not surprisingly, many of the geographical regions that are most vulnerable to the effects of climate change are also the traditional lands of indigenous communities. This article... 2007
Sharon Hsin-Yi Lee JUSTIFYING AFFIRMATIVE ACTION IN K-12 PRIVATE SCHOOLS 23 Harvard BlackLetter Law Journal 107 (Spring, 2007) This Comment examines the consequences of using identical rules to govern affirmative action in both private employers and private schools. It explores accepted legal justifications for private affirmative action, focusing on whether they are internal or external to the defendant. In light of developments in Equal Protection Clause jurisprudence,... 2007
Jonathan Kahn RACE-ING PATENTS/PATENTING RACE: AN EMERGING POLITICAL GEOGRAPHY OF INTELLECTUAL PROPERTY IN BIOTECHNOLOGY 92 Iowa Law Review 353 (February, 2007) I. Introduction. 355 II. Race, Genes, and Drug Development. 360 III. Producing and Organizing Social Data on Race and Ethnicity: OMB Directive 15. 366 IV. Producing and Organizing Genetic Information: Federally Sponsored Genetic Databases. 368 V. BiDil: Portent of Things to Come. 379 VI. The Rise of Racial Patents. 383 A. Patent Law Basics. 383 B.... 2007
Susan K. Serrano , Eric K. Yamamoto , Melody Kapilialoha MacKenzie , David M. Forman Restorative Justice for Hawai'i's First People: Selected Amicus Curiae Briefs in Doe V. Kamehameha Schools 14 Asian American Law Journal 205 (May, 2007) In 2003, an anonymous plaintiff (John Doe) filed suit in federal court against Kamehameha Schools, claiming that its 117-year-old admissions policy favoring indigenous Hawaiian children discriminates against non-Hawaiians in violation of federal civil rights law. John Doe's attorneys called the policy categorical racial exclusion and... 2007
Lindsey Singeo The Patentability of the Native Hawaiian Genome 33 American Journal of Law & Medicine 119 (2007) In 2003, the University of Hawaii proposed patenting the Native Hawaiian genome with the purpose of generating both economic- and health-related benefits for the Native Hawaiian people. This proposal, however, was strongly opposed by the Native Hawaiian community, which viewed it as an unwelcome imposition of Western property concepts upon their... 2007
Gregory K. Schlais The Patenting of Sacred Biological Resources, the Taro Patent Controversy in Hawai'i: a Soft Law Proposal 29 University of Hawaii Law Review 581 (Summer, 2007) On June 20, 2006, opponents of the patenting of kalo, or taro, tore up copies of the plant patents on the new hybridized varieties of the Native Hawaiian people's staple, symbolizing that no entity or person owned the sacred plant. The University of Hawai'i (UH) relinquished its patents to the three plant varieties after months of pressure from... 2007
Lindsay Goodner The Potential Passage of Proposed Senate Bill 147 and its Implication on Native Hawaiians and Gaming 31 American Indian Law Review 111 (2006-2007) Native Hawaiians comprise one of the few indigenous groups in the United States who are not deemed to be a sovereign, self-governing entity. Currently, Congress strangely does not uniformly recognize Hawaiians as Native Americans who have a right to self-determination. As a result, many Hawaiians today advocate sovereignty from the United... 2007
Kamaile A. Nichols Turtles and Tourism: Where the Endangered Species Act Ends and Community Activism Begins 25 UCLA Journal of Environmental Law & Policy 411 (2006-2007) Visitors and residents of Hawaii alike can take a walk along Laniakea Beach and enjoy a rare spectacle: green sea turtles sunbathing on the sand. Over the past six years, human-turtle encounters have grown more frequent and potentially problematic for the well-being of the threatened turtle species. This article addresses the ability of the... 2007
John Duncan Uti Possidetis: Is Possession Really Nine-tenths of the Law? The Acquisition of Territory by the United States: Why, How, and Should We? 38 McGeorge Law Review 513 (2007) I. Introduction. 514 II. Past Acquisition Rationales. 515 A. The Louisiana Purchase. 515 B. Alaska. 516 C. The Treaty of Guadalupe Hidalgo: Texas. 517 D. Oregon and the Doctrine of Discovery. 518 E. Guano Islands. 519 F. The Treaty of Peace of 1898: Puerto Rico, Guam, and the Philippine Islands. 519 G. Hawaii. 520 H. Panama Canal. 520 I. American... 2007
Joaquin G. Avila , Eugene Lee , Terry M. Ao VOTING RIGHTS IN CALIFORNIA: 1982-2006 17 Southern California Review of Law & Social Justice 131 (Fall 2007) The purpose of this report is to assess whether discrimination against minority voters and minority voting strength exists in California. In assessing whether such discrimination exists, this report will chronicle the efforts of minority communities in California to secure access to the political process utilizing the Voting Rights Act of 1965... 2007
  Aba Resolution and Report on the Akaka Bill 10-JUL Hawaii Bar Journal 80 (July, 2006) RESOLVED, That the American Bar Association urges Congress to pass legislation to establish a process to provide federal recognition for a native Hawaiian governing entity. FURTHER RESOLVED, That a native Hawaiian governing entity is defined as an authority similar to that which American Indian and Alaska Native governments possess. The ABA has... 2006
Jon M. Van Dyke , Melody K. MacKenzie An Introduction to the Rights of the Native Hawaiian People 10-JUL Hawaii Bar Journal 63 (July, 2006) Almost 240,000 people now living in Hawaii are descendants of the Polynesian people who had a complex thriving culture in the Hawaiian Islands until Westerners started arriving at the end of the eighteenth century. Native Hawaiians had a stable political order, a self-sustaining economy based on agriculture and fishing, and a rich spiritual and... 2006
Craig W. Jerome BALANCING AUTHORITY AND RESPONSIBILITY: THE FORBES CAVE COLLECTION, NAGPRA, AND HAWAI'I 29 University of Hawaii Law Review 163 (Winter 2006) By New Year's Eve of 2005 the frustration and tension about the implementation of the Native American Graves Protection and Repatriation Act (NAGPRA) in Hawai'i had come to a head. As the smoke, light, and sound of fireworks filled the Honolulu sky, Edward Halealoha Ayau sat in a prison cell at the Federal Detention Center. U.S. District Court... 2006
Melvin Masuda Cases and Places in Hawaii 10-JUL Hawaii Bar Journal 110 (July, 2006) Attorneys, whether malihinis (newcomers) visiting Hawaii for the first time or kamaainas (long-time residents), have a strong sense of history. After all, the hand of the past is constantly lurking in the use of precedents to analyze current cases. What follows are places that have made legal history here in Hawaii: Iolani Palace; Aliiolani Hale,... 2006
Eric K. Yamamoto , Carly Minner , Karen Winter CONTEXTUAL STRICT SCRUTINY 49 Howard Law Journal 241 (Winter 2006) One wonders whether the majority still believes that race discrimination-- or more accurately, race discrimination against nonwhites--is a problem in our society, or even remembers that it ever was. Justice Harry Blackmun Justice Blackmun's famous dissent highlighted a stark truth about the Supreme Court's late 1980s' equality jurisprudence--an... 2006
Melody Kapilialoha MacKenzie Ever Loyal to the Land 33-SPG Human Rights 15 (Spring, 2006) Kaulana npua a'o Hawai'i Kpa'a mahope o ka 'ina Famous are the children of Hawai'i Ever loyal to the land These lyrics are from a song by Ellen Keho'ohiwaokalani Wright Prendergast, written shortly after the overthrow of the Hawaiian Kingdom in 1893. They express the sorrow of the Native Hawaiian people and their determination to oppose... 2006
Christine Daleiden Hawaii's Ditch Systems: Water Allocation after the Sugar Cane 10-JUL Hawaii Bar Journal 28 (July, 2006) First you enter a tunnel of stone, with rock and dirt beneath your feet. The sunlight behind you allows you to see the carved-out path ahead of you. As you walk away from the sunlight, you can feel that you are descending into the tunnel and your feet start to get wet. Within yards, you are waist-deep in strikingly cold water. It is time to turn... 2006
David Barnard Law, Narrative, and the Continuing Colonialist Oppression of Native Hawaiians 16 Temple Political & Civil Rights Law Review Rev. 1 (Fall 2006) The article does three things. First, and for the first time, it brings to bear the perspectives of critical race theory, postcolonial theory, and narrative theory on the U.S. Supreme Court's 2000 decision in Rice v. Cayetano, which dealt a severe blow to Native Hawaiians' struggles for redress and reparations for a century of dispossession and... 2006
Trever K. Asam Nana I Ke Kumu: Looking to the Source for Protections of Native Hawaiian Culture 10-JUL Hawaii Bar Journal 96 (July, 2006) From surfers on the North Shore to the hula shows in Waikiki, the Native Hawaiian culture touches almost all aspects of life in modern Hawaii. Because of the importance of these traditions to Hawaii and its people, both state and federal laws provide specific protections for Native Hawaiian cultural practices and those who perpetuate them. These... 2006
Melody Kapilialoha MacKenzie Native Hawaiians and the Law: Struggling with the He'e 7 Asian-Pacific Law and Policy Journal 79 (Winter, 2006) I've been grappling the last few days with what to say as a commentary to Judge Williams' speech, not knowing the content of his talk ahead of time. Fortunately, I did have an opportunity to meet with him yesterday and he told me that he was generally going to discuss whether the law can be used to protect the interests of native peoples, how well... 2006
Justin L. Pybas Native Hawaiians: the Issue of Federal Recognition 30 American Indian Law Review 185 (2005-2006) The Native Hawaiian people inhabited the Hawaiian Islands for hundreds of years before any Westerner even set foot on the islands. They had a thriving, isolated culture which was self-sufficient and relied on a sophisticated language and religion. By the end of the eighteenth century and throughout the nineteenth century, while the Westerners... 2006
Mark A. Chinen On Lawyers and Good Samaritans: a Reflection 4 Seattle Journal for Social Justice 497 (Spring/Summer, 2006) One summer during law school, I worked as a summer associate for a firm in Hawaii that engaged in insurance defense work. One of the lawyers asked for help in preparing a motion in a case the firm was handling. According to the file, a high school boy took the family SUV for a drive. A classmate, a fifteen-year-old girl, went along for the ride. As... 2006
Ralph D. Mawdsley, J.D., Ph.D. SECTION 1981 AND PRIVATE SCHOOLS: THE NINTH CIRCUIT REVISITS RACE–CONSCIOUS ADMISSIONS POLICIES 210 West's Education Law Reporter 23 (August 10, 2006) In 1976, the United States Supreme Court, in Runyon v. McCrary (Runyon), held that private schools were subject to section 1981 of the Civil Rights Act of 1870. The Act provides that, All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties,... 2006
Paul M. Sullivan Seeking Better Balance: a Proposal for Reconsideration of the 2006 Aba Resolution on the Akaka Bill 10-JUL Hawaii Bar Journal 70 (July, 2006) The House of Delegates of the American Bar Association, at the urging of its Section of Individual Rights and Responsibilities (the Section), adopted a resolution urging Congress to pass legislation to provide federal recognition for a Native Hawaiian governing entity. The legislation to which the resolution refers is commonly known as the Akaka... 2006
Paul D. Carrington Testamentary Incorrectness: a Review Essay 54 Buffalo Law Review 693 (December, 2006) Broken Trust tells an extraordinary tale of private corruption indulged by private trustees and public officials in the state of Hawaii. The reported misdeeds were enabled and perhaps inspired by racial politics. The authors are legitimate heroes of the story they tell. The troubling events depicted may be results of diverse causes. In some... 2006
  Testimony of Hawaii Attorney General Mark J. Bennett in Support of Passage of the Akaka Bill 10-JUL Hawaii Bar Journal 78 (July, 2006) (Ed. Note: The following is the testimony of Hawaii Attorney General Mark J. Bennett in support of passage of the Akaka bill before the United States Commission on Civil Rights on January 20, 2006.) Thank you for the opportunity to make some critical points about the Native Hawaiian Government Reorganization Act of 2005, or the Akaka Bill, and... 2006
Hon. Jon J. Chinen (ret.) The Hawaiian Land Revolution of the 1840s and 1850s 10-JUL Hawaii Bar Journal 46 (July, 2006) When King Kamehameha I brought the Hawaiian Islands under his control, he followed the examples of the previous conquering chiefs. He kept the choicest lands for his personal use, then divided the rest among his principal warrior chiefs who had assisted in his conquest. Each principal chief then kept a certain portion for himself and divided the... 2006
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