Native Hawaiians

New Scholarship on Tribal Customs and Land Use

Matthew L.M. Fletcher

John C. Hoelle has published his interesting paper, “Re-Evaluating Tribal Customs of Land Use Rights,” in the University of Colorado Law Review, available on SSRN.

Here is the abstract:

Indigenous peoples developed sustainable land tenure systems over countless generations, but these customary systems of rights are barely used by American Indian tribes today. Would increasing formal recognition of these traditional customs be desirable for tribes in a modern context? This Comment examines one traditional form of indigenous land tenure – the use right – and argues that those tribes that historically recognized use rights in land might benefit from increased reliance on these traditional customs. The Comment argues that in the tribal context, use rights can potentially be just as economically efficient, if not more so, than the Anglo-American system of unqualified, absolute ownership in land. The Comment also argues that tribal customs of land use rights may help preserve Indian cultural identity by cultivating core, non-economic values of tribal peoples. The Comment concludes by addressing some of the challenges tribes will likely face in attempting to more broadly rely on their customs of land use rights in the new millennium, while also remarking on some current and important opportunities for the re-integration of tribal customs in tribal land law.

Cert Opposition Brief in Corboy v. Louie (Challenge to Hawaii Homestead Lease Qualification)

Matthew L.M. Fletcher

Here.

State of Hawaii Enacts Law Recognizing Native Hawaiian Self-Determination

Matthew L.M. Fletcher4 Comments

Huge news in Hawaii!!!!

Here is the link to the pdf of the bill. And legislative history.

Here is the governor’s webpage and video on the signing of the law. The text of the governor’s release:

Honolulu –Governor Neil Abercrombie signed into law a measure that recognizes Native Hawaiians as the indigenous people of Hawai’i.  Act 195 gives the Governor the power to appoint a five-member Native Hawaiian Roll Commission that will build the foundation for self-determination.

“This is an important step for the future of Native Hawaiian self-determination and the ability for Native Hawaiians to decide their own future,” stated Governor Abercrombie.  “This Commission will put together the roll of qualified and interested Native Hawaiians who want to help determine the course of Hawai’i’s indigenous people.”

Act 195 starts the process that will eventually lead to Native Hawaiian Recognition. While in the U.S. House of Representatives, then-Congressman Abercrombie worked closely with U.S. Senator Daniel K. Akaka on moving the Native Hawaiian Government Reorganization Act, which was first introduced in 1999. In 2000 and 2007, then-Congressman Abercrombie successfully shepherded the legislation through the U.S. House of Representatives committees and won approval by the full House.

U.S. Senator Akaka, who is in Washington D.C., praised the bill signing stating: “The enactment of this bill is yet another example of Hawai’i’s ongoing desire to recognize the unique contributions and traditions of the Native people in our state.  Native Hawaiian values shape our sense of identity, our sense of aloha for one another, and our sense of what is pono, what is just.  This new law complements our efforts in Congress and demonstrates that the people of Hawai’i strongly support the right of Native Hawaiians to reorganize and perpetuate their culture and way of life.”

More than 150 people attended today’s bill signing ceremony at Washington Place this afternoon, including groups representing the ali’i societies and trusts; OHA trustees, Native Hawaiian civic clubs, and state lawmakers.

Governor Abercrombie has 180 days to appoint the five-member Native Hawaiian Roll Commission.  The Commission will be responsible for preparing and maintaining a roll of qualified Native Hawaiians as defined by the Act. The roll is to be used as the basis for participation in the organization of a Native Hawaiian governing entity.  The Commission is composed of five members, one from each county and one at-large seat.  Once its work is completed, the Governor will dissolve the Commission.

“We recognize the special relationship to Native Hawaiians that is part of our public conscience, enshrined in our laws, and entrusted to our leaders,” Governor Abercrombie said.  “With the signing of this bill, the State of Hawai’i is closer to the reorganization of a Native Hawaiian governing entity. As Native Hawaiians rise, all of Hawai’i rises.”

The Office of the Governor will announce the application process for consideration to be named to the Commission later this week.

 

Supreme Court Denies Cert in Doe v. Kamehameha Schools (Identity of Plaintiffs)

Matthew L.M. Fletcher

Here is the order list (docket no. 10-1100).

The cert stage briefs:

Doe Cert Petition

Kamehameha Schools Cert Opp

Doe Cert Stage Reply

Lower court materials here.

Cert Petition in Hawaiian Blood Quantum Dispute

Matthew L.M. Fletcher

Here is the petition in Day v. Apoliona: Day Cert Petition

Question presented:

Whether officials of the State of Hawaii may expend funds subject to the trust established by § 5(f) of the Hawaii Admission Act for the betterment of Hawaiians without regard to the blood quantum established by § 201(a)(7) of the Hawaiian Homes Commission Act, 1920?

Lower court opinion here.

Ninth Circuit Declines to Review Panel Decision to Force Challengers to Native Hawaiian School Preferences to Disclose Their Names Publicly

Matthew L.M. Fletcher1 Comment

Here is today’s order — with dissents (filled with outrage) from both Chief Judge Kozinski and Judge Reinhardt, as well as a concurrence signed by the three panel judges — denying en banc review in Doe v. Kamehameha Schools.

Here is the panel decision.

Akaka Bill Passes House

Matthew L.M. Fletcher

News article here.

SCIA to Consider the Carcieri Fix and Akaka Bills Tomorrow

Matthew L.M. Fletcher

Here is the agenda for tomorrow’s meeting, from SCIA.

Hawai’i Court Awards Damages in Hawai’i Home Land Lease Case

Matthew L.M. Fletcher

Here is the opinion in Kalima v. State of Hawai’i.

From the Honolulu Advertiser:

State First Circuit Judge Eden Elizabeth Hifo ruled the state Department of Hawaiian Home Lands is required to place Native Hawaiians on lands set aside for them by the federal government in a prompt and efficient manner. Hifo’s decision means the state could owe unspecified millions in damages to more than 2,700 Hawaiians who have been waiting for land.

“I’m very happy that it’s come to this point after waiting and waiting and waiting and being broken-hearted so many times,” said Wehilani Ching, who first applied for a Hawaiian Home Lands lease 47 years ago.

About 19,000 people with 50 percent or more Hawaiian blood are waiting to be placed on homesteads, which were promised to them as part of the Hawaiian Homes Act of 1920 passed by the U.S. Congress. When Hawaii became a state in 1959, it took over the obligation of distributing the land.

“The court concluded people should have been placed on the land quicker than they were,” said Thomas Grande, one of the attorneys who brought the class-action lawsuit 10 years ago.

Continue reading →

Hawaii Supreme Court Ends Ceded Lands Case

Matthew L.M. Fletcher

From How Appealing:

“Ceded lands suit to be dismissed”: Today’s edition of The Honolulu Advertiser contains an article that begins, “The Hawaii Supreme Court yesterday ordered the dismissal of claims by the final plaintiff in the ceded lands case, setting the stage for the end of 15 years of litigation.”

And The Associated Press reports that “Hawaii Supreme Court ending ceded lands case.”

You can access yesterday’s ruling of the Supreme Court of Hawaii at this link.