Native Hawaiian

Unpublished California ICWA Case on Determining Child’s Tribe

Kate Fort

Here.

Grandmother argued child is Native Hawaiian and registered with OHA. Mother argued child is affiliated with Mooretown Rancheria. Mooretown Rancheria argued same. Lower and appellate courts held under a significant contacts discussion child is affiliated with Mooretown, and registration with OHA doesn’t disturb the Mooretown affiliation for the application of ICWA.

Side note–Looks like California law doesn’t list the preference of the parent in the significant contacts determination. Cal. Welf. & Inst. Code 224.1(2). The updated Guidelines and proposed Regs both list preference of the parent first as allowable considerations. (B.4 (C)(1) & 23.109(c)(1)(i). Regardless, the outcome in this case is consistent with both.

Randall Akee: “The press for Native Hawaiian federal recognition is presumptuous”

Matthew L.M. Fletcher

From the Hawaii Independent. A response to this news.

An excerpt:

In moving forward, what should be done? The process for Federal recognition was a knee-jerk reaction to the Rice v. Cayetano decision. Surely there are other legal strategies and plans that the Office of Hawaiian Affairs and State officials can undertake to protect the OHA trust assets and Native Hawaiian entitlement programs. In the 14 years since the decision, the trust and programs have survived without a serious attack. It should be noted that political winds change all the time and there is no absolute certainty with Federal recognition either. For instance, during the 1940s, 1950s and 1960s the US Federal government’s policy was to terminate the legal and political existence of some Federally recognized American Indian tribes in California, Oregon and a number of other US States. During the Civil Rights era of the 1960s and 1970s, the US Federal government made a significant change in that policy and worked to empower tribal governments. However, it is impossible to guarantee that future US Federal policies will not shift back in that direction again. 

DOI Considers Procedures to Reestablish Government-to-Government Relationship with Native Hawaiians

Kate Fort1 Comment

Press release here.

Federal Registry Advance Notice of Proposed Rulemaking here.

2000 DOI/DOJ Report on the Reconciliation Process here.
FAQ here.

Senator Akaka Bids Farewell to the Senate

Matthew L.M. Fletcher

Here.

Article and video of Sen. Akaka’s speech. The clip is the portion of his speech about native sovereignty, self-determination, and Hawaiian recognition.

New Scholarship on Congress’ Authority to Recognize a Native Hawaiian Polity United by Common Descent

Matthew L.M. Fletcher

Derek Hoohauoli Kauanoe and Breann Swann Nuuhiwa have posted “We are Who We Thought We Were: Congress’ Authority to Recognize a Native Hawaiian Polity United by Common Descent” on SSRN. It is forthcoming in the Asian-Pacific Law & Policy Journal.

Here is the abstract:

In an attempt to fulfill the federal government’s moral imperative, the United States Congress has spent more than a decade considering several proposed versions of the Native Hawaiian Government Reorganization Act (colloquially referred to as the “Akaka Bill”), which seeks to restore a small measure of Native Hawaiian self-governing authority by providing a process for the formal federal acknowledgment of a reorganized Native Hawaiian governing entity. The proposed Act changes significantly with each new Congress, but from its initial introduction in 2000 to the present, the Act has consistently required that the initial reorganization of the Native Hawaiian polity be carried out by the Native Hawaiian community, united by common Native Hawaiian descent without regard to blood quantum.

Doe v. Kamehameha Schools — Plaintiffs Must Reveal Identity

Matthew L.M. Fletcher

Here is the Ninth Circuit’s decision in this latest opinion in the long-running challenge to the school’s admissions preference toward Native Hawaiians.

Congressional Research Service Reports

Matthew L.M. Fletcher1 Comment

If anyone out there wants to find out what “secret” reports Members of Congress and their staffers read when confronted with an Indian law question, check out some of these CRS reports, now starting to appear online.

Indian Reserved Water Rights: An Overview (2005)

United States v. Lara (2003)

IGRA: Gaming on Newly Acquired Lands (2006)

Wagnon v. Prairie Band Potawatomi Nation (2005)

Cobell (2005)

Contract Support Costs: Cherokee Nation v. Leavitt (2005)

NAGPRA (2005)

Adam Walsh Act (2007)

Native Hawaiian Recognition (2005)

There are more reports at http://www.opencrs.com/