Index to Law Review Articles on Native Hawaiian Law

Center for Excellence in Native Hawaiian Law William S. Richardson School of Law University of Hawai‘i at Mānoa Lori Kidani 2007

TABLE OF CONTENTS

AKAKA BILL ........................................................................................................................................1 CULTURAL KNOWLEDGE AND PROPERTY .................................................................................3 LAND AND NATURAL RESOURCES ...............................................................................................4 NATIVE RIGHTS AND CLAIMS ........................................................................................................6 RICE v. CAYETANO...............................................................................................................................9 SOVEREIGNTY AND SELF DETERMINATION ............................................................................11

AKAKA BILL

Bennett, Mark J. “Testimony of Hawaii Attorney General Mark J. Bennett in Support of Passage of the Akaka Bill.” Hawaii Bar Journal (July 2006). Makes critical points in support of the Native Hawaiian Government Reorganization Act of 2005.

Glendon, Crystal K. “A Political Solution for a Legacy Under Attack: The Akaka Bill’s Potential Effect on the Kamehameha Schools.” University of Hawai‘i Law Review 26 (Winter 2003): 69. Explores the potential effect of the Akaka Bill on Kamehameha Schools and analyzes the potential interaction between a Native Hawaiian government and Kamehameha Schools.

Goodner, Lindsay. “The Potential Passage of Proposed Senate Bill 147 and Its Implication on Native Hawaiians and Gaming.” American Indian Law Review 31 (2006/2007): 111. Asserts that the Akaka Bill must pass for Native Hawaiians to be sovereign and self-governing. Addresses the fears of those who oppose the Akaka Bill because its passage would lead to gaming in Hawaii. Describes the rise of Indian gaming operations and analyzes how sovereign status provides a loophole, which Indians have used to institute gaming and which Native Hawaiians could likely make use of as well.

Igasaki, Paul M. “ABA Resolution and Report on the Akaka Bill.” Hawaii Bar Journal (July 2006). Supports the extension of federal policies of self-determination and self-governance for America’s native and indigenous people to include Native Hawaiians.

Kanehe, Le‘a Malia. “The Akaka Bill: The Native Hawaiians’ Race for Federal Recognition.” University of Hawai‘i Law Review 23 (Summer 2001): 857. Provides a basic contextual background of Hawaiian history, legislation and case law leading to the Akaka Bill. Examines public controversy in Hawaii surrounding federal recognition of a Native Hawaiian government.

Liermann, Annmarie M. “Seeking Sovereignty: The Akaka Bill and the Case for the Inclusion of Hawaiians in Federal Native American Policy.” Santa Clara Law Review 41 (2001): 509. Explains the legal justifications for including Hawaiians in federal Native American policy and responds to activists who prefer that Hawaiians seek complete independence from the United States.

Lindsey, R. Hokulei. “Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual.” University of Hawai‘i Law Review 24 (Summer 2002): 693. Argues that a government-to-government relationship with the United States will benefit the Native Hawaiians but will not settle their international claims against the U.S.

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Sullivan, Paul M. “Recognizing” the Fifth Leg: The “Akaka Bill” Proposal to Create a Native Hawaiian Government in the Wake of Rice v. Cayetano.” University of Hawaii Asian-Pacific Law & Policy Journal 3 (July 2002): 4. Examines constitutional issues of the Akaka Bill and concludes that it would be unlikely to survive a constitutional challenge.

Sullivan, Paul M. “Seeking Better Balance: A Proposal for Reconsideration of the 2006 ABA Resolution on the Akaka Bill.” Hawaii Bar Journal (July 2006). Outlines the background of the Akaka Bill and summarizes the three most important points made by the Report in support of the bill.

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CULTURAL KNOWLEDGE AND PROPERTY

Conway-Jones, Danielle. “Safeguarding Hawaiian Traditional Knowledge and Cultural Heritage: Supporting the Right to Self-Determination and Preventing the Comodification of Culture.” Howard Law Journal 48 (Winter 2005): 737. “Expresses a non-Hawaiian’s observation that protection of Hawaiian traditional knowledge and cultural heritage has to emanate from a sui generis system originating with Native Hawaiians, not from Western intellectual property laws that promote the ‘commodification of culture,’ one of many remnants of colonization” (p. 739).

Kupau, Summer. “Judicial Enforcement of ‘Official’ Indigenous Languages: A Comparative Analysis of the Maori and Hawaiian Struggles for Cultural Language Rights.” University of Hawai‘i Law Review 26 (Summer 2004): 495. Examines the legal status of indigenous language in New Zealand and Hawai‘i and the courts’ perception of language as an individual right. Justifies judicial enforcement of the Hawaiian language to make it truly official and fulfill Hawaii’s duty to encourage use of the language.

Lindsey, R. Hokulei. “Responsibility with Accountability: The Birth of a Strategy to Protect Kanaka Maoli Traditional Knowledge.” Howard Law Journal 48 (Winter 2005): 763. Maps cases of misappropriation of Kanaka Maoli traditional knowledge. Examines the significance of the Paoakalani Declaration and the role it occupies in engaging in the issue and articulating the rights surrounding the protection and use of Kanaka Maoli traditional knowledge.

Moriwake, Isaac. “Critical Excavations: Law, Narrative, and the Debate on Native American and Hawaiian ‘Cultural Property’ Repatriation.” University of Hawai‘i Law Review 20 (Summer/Fall 1998): 261. Examines the legal debate over repatriation of Native “cultural property” through the ki‘i la‘au dispute.

Singeo, Lindsey. “The Patentability of the Native Hawaiian Genome.” American Journal of Law & Medicine 33 (2007): 119. Examines the proposed patenting of the Native Hawaiian genome for the purpose of economic and health related benefits for the Native Hawaiian people.

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LAND AND NATURAL RESOURCES

Banner, Stuart. “Preparing to Be Colonized: Land Tenure and Legal Strategy in Nineteenth-Century Hawaii.” Law and Society Review 39 (June 2005): 273. Argues that the Mahele was an intelligent response on the part of the Hawaiian elite to the prospect that Hawaii would soon be colonized. Examines the concept of private property as a way to prevent lands from being dispossessed.

Ede, Keala C. “He Kanawai Pono no ka Wai (A Just Law for Water): The Application and Implications of the Public Trust Doctrine in In Re Water Use Permit Applications.” Ecology Law Quarterly 29 (2002): 283. Discusses the Public Trust Doctrine in Hawaii and the Waiahole decision.

Garovoy, Jocelyn B. ‘Ua Koe ke Kuleana o na Kanaka’ (Reserving the Rights of Native Tenants): Integrating Kuleana Rights and Land Trust Priorities in Hawaii.” The Harvard Environmental Law Review 29 (2005): 523. Identifies the legal rights of kuleana holders and considers how these rights interact with the general priorities of Hawaii based land trusts.

Hlawati, Ian H. “Loko I‘a: A Legal Guide to the Restoration of Native Hawaiian Fishponds Within the Western Paradigm.” University of Hawai‘i Law Review 24 (Summer 2002): 657. Uses case law to catalog and anticipate legal issues as they may arise in relation to the restoration of the ancient Hawaiian fishpond.

Jarman, M. Casey, and Robert R.M. Verchick. “Balancing Private and Cultural Property Rights Under Hawai‘i Law.” The Scholar: St. Mary’s Law Review on Minority Issues 5 (Spring 2003): 201. Examines the development of land use law that governs the rights of native Hawaiians to access private and public lands to carry on traditional practices.

Kam, Sarah K. “Biopiracy in Paradise?: Fulfilling the Legal Duty to Regulate Bioprospecting in Hawai‘i.” University of Hawai‘i Law Review 28 (Summer 2006): 387. Demonstrates that bioprospecting in Hawaii will continue to increase and asserts that the State of Hawaii has a legal duty to regulate the bioprospecting of public natural resources. Addresses key issues that the Hawaii State Legislature must consider in creating a viable solution.

Kumabe, Brooke. “Protecting Hawai‘i’s Fisheries: Creating an Effective Regulatory Scheme to Sustain Hawai‘i’s Fish Stocks.” University of Hawai‘i Law Review 29 (Winter 2006): 243.

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Examines Hawaii’s current regulatory scheme for managing fisheries. Identifies factors that contribute to Hawaii’s declining fish population. Examines native Hawaiian practices and principles along with the State’s jurisdiction and constitutional duties.

Liu, Shaunda A.K. “Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders.” University of Hawai‘i Law Review 25 (Winter 2002): 85. Argues that Hawaiian Home Land beneficiaries have a constitutional right to a water reservation for current and foreseeable needs. Also asserts that a failure to ensure a water reservation breaches the State of Hawaii’s fiduciary duty to native Hawaiian homesteaders.

MackKenzie, Melody K. “The Ceded Lands Trust.” Hawaii Bar Journal (June 2000). Examines the background of the trust and defines the trust lands and revenue. Also analyzes OHA’s revenue entitlement and the alienation of ceded lands.

Sproat, D. Kapua. “The Backlash Against PASH: Legislative Attempts to Restrict Native Hawaiian Rights.” University of Hawai‘i Law Review 20 (Summer/Fall 1998): 321. Examines the fundamental differences in Western and Native Hawaiian property concepts and laws in Hawaii as it relates to certain legislative proposals introduced in reaction to PASH. Traces the legal developments of Native Hawaiian rights from the Kingdom of Hawaii to current law.

Sullivan, Paul M. “Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai‘i.” University of Hawai‘i Law Review 20 (Summer/Fall 1998): 99. Reviews the place of custom and usage in U.S. and Hawaii law. Examines customary access and gathering rights through the PASH case.

Yamamoto, Eric K., and Jen-L W. Lyman. “Racializing Environmental Justice.” University of Colorado Law Review 72 (Spring 2001): 311. Examines the meaning of ‘environmental justice’, focusing on the interplay between race and environment. Includes a case study on the Waiahole Water controversy.

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NATIVE RIGHTS AND CLAIMS

Brody, Evelyn. “A Taxing Time for the Bishop Estate: What is the I.R.S. Role in Charity Governance?” University of Hawai‘i Law Review 21 (Winter 1999): 537. Examines the resignation of the Kamehameha Schools Bishop Estate Trustees and provides fictitious court opinions that consider the management of Kamehameha Schools Bishop Estate.

Brophy, Alfred L. “Aloha Jurisprudence: Equity Rules in Property.” Oregon Law Review 85 (2006): 771. Examines Native Hawaiian rights to access property and statutory and constitutional provisions that run alongside Hawaiian case law. Discusses legislative restrictions on property rights that illuminate the popular conception of the community’s interest in property rights.

Burgess, H. William, and Sandra Puanani Burgess. “The Ceded Lands Case: Money Intended for Education Goes to OHA.” Hawaii Bar Journal (July 2001). Evaluates OHA v. State and illustrates OHA’s profound economic and other consequences for the State of Hawaii, its public schools, and its citizens.

Dettweiler, Kahikino Noa. “Racial Classification or Cultural Identification?: The Gathering Rights Jurisprudence of Two Twentieth Century Hawaiian Supreme Court Justices.” University of Hawaii Asian-Pacific Law & Policy Journal 6 (Winter 2005): 174. Explores the gathering rights jurisprudence of Justices Richardson and Klein, and considers the degree to which their ethnicity enhanced their perspectives on the matter. Analyzes later cases that have implications on gathering rights.

Jerome, Craig W. “Balancing Authority and Responsibility: The Forbes Cave Collection, NAGPRA, Hawai‘i.” University of Hawai‘i Law Review 29 (Winter 2006): 163. Outlines the history and practice of NAGPRA and examines the history of traditional Hawaiian burial practices. Identifies problems with NAGPRA and its implementation in Hawaii. Discusses the Kawaihae Caves case and proposes possible solutions.

Panarella, Samuel J. “Not In My Backyard PASH v. HPC: The Clash Between Native Hawaiian Gathering Rights and Western Concepts of Property in Hawaii.” Environmental Law 28 (Summer 1998): 467. Analyzes the historical framework and key cases surrounding traditional gathering rights of native Hawaiians.

Petrich, Matthew J. “Litigating NAGPRA in Hawai‘i: Dignity or Debacle?” University of Hawai‘i Law Review 22 (Summer 2000): 545.

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Explains the role of burials in Hawaiian culture along with struggles that Native Hawaiians face. Discusses the intent and goals of NAGPRA in the context of Hawaii.

Seto, Robert Mahealani, and Lynne Marie Kohm. “Of Princesses, Charities, Trustees, and Fairytales: A Lesson of the Simple Wishes of Princess Bernice Pauahi Bishop.” University of Hawai‘i Law Review 21 (Winter 1999): 393. Examines the accountability of trustees and testator intent using Kamehameha Schools as an example.

Tehranian, John. “A New Segregation? Race, Rice v. Cayetano, and the Constitutionality of HawaiianOnly Education and the Kamehameha Schools.” University of Hawai‘i Law Review 23 (Winter 2000): 109. Argues that both the Kamehameha Schools admissions policy and the Native Hawaiian Education Act's Hawaiian-only limitation do not violate the equal protection component of the Fifth Amendment's Due Process Clause.

Tsosie, Rebecca. “Engaging the Spirit of Racial Healing Within Critical Race Theory: An Exercise in Transformative Thought.” Michigan Journal of Race & Law 11 (Fall 2005): 21. Focuses on the contemporary debate surrounding the status of Native Hawaiians to show how race is being used to construct the civil and political rights of Native Hawaiian people. Identifies the foundation for Critical Race Theory as the need to achieve social justice for groups that have suffered a history of oppression, and engages what it means to heal injustice which is embedded in society at the level of both structure and consciousness.

Van Dyke, Jon M. “The Political Status of the Native Hawaiian People.” Yale Law & Policy Review 17 (1998): 95. Exposes the errors in Stuart Minor Benjamin’s Yale Law Journal article. Also argues that preferential or separate programs for the Native Hawaiian people must be evaluated under the same “rational basis” standard of judicial review applicable to programs applied to other native groups and that such programs are rational and constitutional if they are designed to protect or promote self-governance, self-sufficiency, or native culture.

Van Dyke, Jon M. “Population, Voting, and Citizenship in the Kingdom of Hawai‘i.” University of Hawai‘i Law Review 28 (Winter 2005): 81. Examines the nature of the political community in the Kingdom of Hawai‘i in the years before the 1893 overthrow.

Van Dyke, Jon M., and Melody K. Mackenzie. “An Introduction to the Rights of the Native Hawaiian People.” Hawaii Bar Journal (July 2006). Outlines the background to the overthrow and annexation of the indigenous government of Hawaii. Also analyzes current struggles with Native Hawaiian rights and sovereignty.

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Young, Kara M.L. “Kamehameha’s Hawaiians-Only Admissions Policy Under 42 U.S.C. § 1981: A Permissible Pursuit of Practical Freedom.” University of Hawai‘i Law Review 26 (Winter 2003): 309. Examines the background of civil rights jurisprudence under § 1981 and the history of the U.S. relationship with Hawaiians. Concludes that “Hawaiian” is not an impermissible racial classification under § 1981.

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RICE v. CAYETANO

Chestnut, Becky T. “Matters of Trust: Unanswered Questions after Rice v. Cayetano.” University of Hawai‘i Law Review 23 (Winter 2000): 363. Argues that the Court’s failure to resolve the trust relationship issue in Rice v. Cayetano leaves many federal and state programs for Hawaiians and native Hawaiians under a Constitutional cloud vulnerable to equal protection challenges.

Clarkson, Gavin. “Not Because They Are Brown, But Because of Ea: Why the Good Guys Lost in Rice v. Cayetano, and Why They Didn’t Have to Lose.” Michigan Journal of Race & Law 7 (Spring 2002): 317. Focuses on congressional policies regarding Indians and how those policies often treat Indian tribes as political entities rather than ethnic communities. Analyzes the Rice case and concludes that constitutionally permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians.

Costello, Kimberly A. “Rice v. Cayetano: Trouble in Paradise for Native Hawaiians Claiming Special Relationship Status.” North Carolina Law Review 79 (March 2001): 812. Discusses the background of Rice v. Cayetano and the current state of affairs for OHA. Analyzes the impact of recent initiatives intended to settle questions raised by Rice.

Deichert, Robert J. “Rice v. Cayetano: The Fifteenth Amendment at a Crossroads.” Connecticut Law Review 32 (Spring 2000): 1075. Argues that the U.S. Supreme Court’s reversal of the Ninth Circuit decision was correct as a matter of law and policy.

Iijima, Chris K. “Race over Rice: Binary Analytical Boxes and a Twenty-First Century Endorsement of Nineteenth Century Imperialism in Rice v. Cayetano. Rutgers Law Review 53 (Fall 2000): 91. Asserts that there is a fundamental relationship between the notion of racial categories and the legal argument that indigenous peoples, such as Hawaiians, have a special political status and relationship with the United States.

Katz, Ellen D. “Race and the Right to Vote after Rice v. Cayetano” Michigan Law Review 99 (December 2000): 491. Discusses the background to Rice v. Cayetano, address the Court’s decision, and explores the Court’s reasoning.

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Spruill, William E. “The Fate of the Native Hawaiians: The Special Relationship Doctrine, the Problem of Strict Scrutiny, and Other Issues Raised by Rice v. Cayetano. University of Richmond Law Review 35 (March 2001): 149. Critiques the Rice decision with emphasis on the competing interests involved in the case. Discusses the impact of the Rice decision on future challenges to laws designed to benefit Native Hawaiians specifically, and Native Americans generally.

Tatum, Melissa L. “Extending the Status Quo: Indian Law and the Supreme Court’s 1999-2000 Term.” Tulsa Law Journal 36 (Fall 2000): 195. Evaluates two cases with potentially large impacts on indigenous people who live within the United States. Rice v. Cayetano focuses on Native Hawaiians and self-determination and Arizona v. California discusses allocating water rights for three western tribes.

Yamamoto, Eric K. “Practically Reframing Rights: Culture, Performance, and Judging.” U.C. Davis Law Review 33 (Summer 2000): 875. Speaks to legal advocates not about crafting doctrinal arguments but about some of the problems and possibilities of shifting the cultural frameworks of decisionmakers to understand hard evidence and social context in cases. Provides an examination of Rice v. Cayetano as it was still being decided in court.

Zissu, Erik M. “What Hath Captain Cook Wrought?: Bloodlines, the Fifteenth Amendment, and Racial Democracy in the Pacific.” University of Pittsburgh Law Review 63 (Spring 2002): 677. Discusses Rice v. Cayetano and considers the distinction between members of federally recognized tribes and individual natives who lack federal recognition. Critiques the Court’s view of the Fifteenth Amendment and suggests ideas for reconsidering the holding in Rice.

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SOVEREIGNTY AND SELF DETERMINATION

Arnett, Jennifer L. “The Quest for Hawaiian Sovereignty: An Argument for the Rejection of Federal Acknowledgement.” Kansas Journal of Law & Public Policy 14 (Fall 2004): 169. Argues that by accepting limited sovereignty, Hawaiians limit the scope of their rights and do not gain much in return. By submitting to U.S. government control as a federally recognized tribe, Native Hawaiians will face serious bureaucratic and ideological conflicts with the United States and be subject to the whims of a regularly contradictory federal Indian policy.

Barnard, David. “Law, Narrative, and the Continuing Colonialist Oppression of Native Hawaiians.” Temple Political & Civil Rights Law Review 16 (Fall 2006): 1. Shows that theories of narrative in the law suggest that the forms of legal discourse that predominate the American legal system silence the native voice. Points to three strategies of resistance: reclaiming the native voice, critical analysis of “the law is colorblind,” and pursuit of Native Hawaiians’ selfdetermination through the mechanisms of international law.

Carroll, Michael. “Every Man Has a Right to Decide His Own Destiny: The Development of Native Hawaiian Self-Determination Compared to Self-Determination of Native Alaskans and the People of Puerto Rico.” The John Marshall Law Review 33 (Spring 2000): 639. Discusses how U.S. treatment of native Hawaiians, and Hawaii’s integration into the United States is inconsistent with the United States treatment of its former territories and their respective people.

Duus, Brian. “Reconciliation Between the United States and Native Hawaiians: The Duty of the United States to Recognize a Native Hawaiian Nation and Settle the Ceded Lands Dispute.” University of Hawaii Asian-Pacific Law & Policy Journal 4 (Summer 2003): 393. Seeks to persuade federal lawmakers that Congress should pass the Akaka Bill. Also argues that if Native Hawaiians want self-government over their own territory, the Akaka Bill is the best method to achieve it.

Gould, L. Scott. “Mixing Bodies and Beliefs: The Predicament of Tribes.” Columbia Law Review 101 (May 2001): 702. Examines the possibility that by redefining tribes that are recognized by the federal government, the conflict between absorption and resistance can be assuaged.

Hefner, John. “Between Assimilation and Revolt: A Third Option for Hawaii as a Model for Minorities World-Wide.” Texas International Law Journal 37 (Summer 2002): 591. Analyzes the legal reasoning of Rice v. Cayetano and asserts that only with an awareness of international law can courts balance the Hawaiians’ international and domestic interests with those of the parent sovereign, the United States.

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Kanahele, Deniis Pu‘uhonua “Bumpy”. “Clandestine Manipulation Toward Genocide.” Arizona State Law Journal 34 (2002): 63. Examines economic independence as a strategy for managing and controlling native Hawaiian assets and gaining political independence.

King, Samuel P. “Hawaiian Sovereignty.” Hawaii Bar Journal (July 1999). Explains the background and current issues of the Hawaiian sovereignty movement.

O’Malley, Eric Steven. “Irreconcilable Rights and the Question of Hawaiian Statehood.” Georgetown Law Journal 89 (January 2001): 501. Analyzes Hawaiian arguments for autonomy under the U.S. Constitution and international law, while accounting for certain political and economic realities.

Pybas, Justin L. “Native Hawaiians: The Issue of Federal Recognition.” American Indian Law Review 30 (2005/2006): 185. Analyzes the debate about whether governmental assistance should be given to Native Hawaiians in order to regain and restore their culture, lands, and sovereign status.

Tomasa, Taryn Ranae. “Ho‘olahui: The Rebirth of a Nation.” Asian Law Journal 5 (May 1998): 247. Asserts that Kanaka Maoli should strive for the use of either the process of decolonization or indigenous people’s rights to achieve decolonization and exercise their right to self-determination.

Yoshino, Troy M. “Ua Mau ke Ea o ka Aina i ka Pono: Voting Rights and the Native Hawaiian Sovereignty Plebiscite.” Michigan Journal of Race & Law 3 (Spring 1998): 475. Attempts to answer the question of whether the right to vote in an election concerning Native Hawaiian sovereignty can or should be limited to individuals of Hawaiian ancestry.

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