Summer 2017

KA MOAʻE: SUMMER 2017

Director’s Column — Judicial Independence in Peril: Impacts on Justice for Kānaka Maoli

By: Melody Kapilialoha MacKenzie, Director

Aloha e nā hoa makamaka,

When I was a young law school graduate clerking for Chief Justice William S. Richardson, he tasked me with researching and helping to draft an article on a subject very dear to his heart – judicial independence. It was the year after the 1978 Constitutional Convention, where there had been several major positive innovations in how Hawaiʻi’s judges were appointed and retained, including the establishment of a Judicial Selection Commission (JSC) representing a broad range of community interests to screen and recommend a pared down list of judicial applicants for consideration by either the Governor or Chief Justice.

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Native Hawaiian Law Treatise Is Cited by the U.S. Supreme Court

By: Susan K. Serrano, Director of Research and Scholarship

Native Hawaiian Law: A Treatise, edited by Melody Kapilialoha MacKenzie, Susan K. Serrano & D. Kapua‘ala Sproat, was cited in the first footnote of a recent U.S. Supreme Court case, Lewis et al. v. Clarke, No. 15-1500 (Apr. 25, 2017), alongside the well-known Cohen’s Handbook of Federal Indian Law.  In a unanimous decision authored by Justice Sonia Sotomayor, the Court considered the scope of the Mohegan Tribe’s sovereign immunity when plaintiffs brought suit against a tribal employee in his individual capacity as a result of an off-reservation car accident.  The Court held that, in a suit brought against a tribal employee in his or her individual capacity, “the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated.”

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Ka Huli Ao Awards 100th Certificate in Native Hawaiian Law!

On May 2017, Ka Huli Ao awarded its 100th Certificate in Native Hawaiian Law! The first of its kind, the Native Hawaiian Law Certificate is awarded to students who complete a range of courses that prepare them with the knowledge and tools to advance the legal rights of Native Hawaiians and other Pacific and Indigenous Peoples.

For example, students take courses in Native Hawaiian Rights, Federal Indian Law, international law, human rights and natural resources law, among others, and do clinical work and intensive legal writing on Native Hawaiian and Indigenous legal issues. Ka Huli Ao awarded the its first three Certificates in 2007 (then known as Pacific Asian Legal Studies Certificates with a Specialty in Native Hawaiian Law).

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Environmental Law Clinic Update: Kaʻūpūlehu

By: N. Mahina Tuteur, Post-J.D. Teaching and Research Fellow

During the Spring Semester 2017, the Environmental Law Clinic took on an important project assisting a community-driven effort to preserve natural and cultural marine resources on the North Kona coast in Kaʻūpūlehu. This continues the work that the Clinic started in the Fall Semester 2016.

The Kaʻūpūlehu Marine Reserve was established in July 2016 with the amendment of the administrative rules for the West Hawaiʻi Regional Fishery Management Area. Covering waters off a 3.6-mile stretch of coastline between Kalaemanō to Kīkaua Point, the Reserve includes a nearshore “rest” area, within which no take of marine species is allowed, as well as a “limited-take” area, within which select species may be caught.

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Legal History and Archives Update: Fostering Partnerships

By: Avis Kuuipoleialoha Poai

Aloha mai! On behalf of Ka Huli Ao’s legal history and digital archives program, I am pleased to share a few highlights from the past few months that best illustrate our continuing efforts to serve students, faculty, and the community. In this issue, I would like to focus on Ka Huli Ao’s partnerships with the King Kamehameha V Judiciary History Center and the Hawaiʻi State Archives, which reflects Ka Huli Ao’s ongoing commitment to community outreach efforts.

On September 30, 2016, Governor Ige proclaimed October 2016 as “Archives Month.” Specifically, the proclamation stated, “historical records contain much of Hawaiʻi’s rich and diverse heritage and are crucial to understanding the past, learning from the accomplishments of our predecessors, tracing our ancestors . . . maintaining laws and providing guidance to future generations.”

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Ola i ka Wai: The Battle over East Maui Waters

By: Christina Lizzi

On December 12, 2016, Alexander and Baldwin (“A&B”) subsidiary Hawaiian Commercial and Sugar Company (“HC&S”) made its final cane haul on Maui, closing a long chapter of sugar plantation agriculture in Hawai‘i. Continuing, however, is the 140 year old battle over A&B’s diversion of East Maui waters to feed its fields, compromising both Native Hawaiian rights to kalo farming and native stream life.

The struggle is fueled by Act 126, known in the 2016 Legislative Session as House Bill (“H.B.”) 2501, and signed into law by Governor David Ige on June 28, 2016.

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What’s New!

 

Congratulations to Melody Kapilialoha MacKenzie, who will be the Acting Dean of the William S. Richardson School of Law for the Fall 2017 semester, and to Kapua Sproat, who will be the Acting Director of Ka Huli Ao during the same time period!

A belated welcome to Ku‘ulei Arakaki, who joined Ka Huli Ao and the Law School as an Administrative and Fiscal Specialist in March 2016!

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Mahalo!