Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 4, 1 April 1991 — Hawaiian Rights Handbook out this month [ARTICLE+ILLUSTRATION]

Hawaiian Rights Handbook out this month

"In the American tradition, people are supposed to stand upfor their rights. This book is intended to help Natiue Hawaiians do just that. It is also intended to be a Iegal primerfor indiuiduals and legal professionals, to enable them to better understand Natiue Hawaiian Rights and to prouide a basis for their pursuit. "

Melody MacKenzie, editor Native Hawaiian Rights Handbook The genesis of the Native Hawaiian Rights Handbook began with a group of University of Hawaii at Manoa law school students who were taking a Native Hawaiian rights class in the early 1980s. Their "texts" were thick folders of xeroxed cases and statutes relating to Hawaiian legal rights, but they asked themselves why there was no book to put it all together. Law student Cynthia Lee, then a part-time law clerk at Native Hawaiian Legal Corporation, and fellow law students Gina Green and Elizabeth Fujiwara, approached the Native Hawaiian Legal Corporation in 1983 and asked NHLC to do a Native Hawaiian rights handbook as a project. NHLC liked the idea and thus began an eight year project to make it a reality. Handbook editor Melody MacKenzie was NHLC executive director when the project began. She writes in the introduction "It soon became apparent that a

mere eompilahon of the materials was insufficient and that an analysis of the applicable statutory and case law would be of greater value to the legal community. At the same time, members of the Hawaiian community also expressed the need for a work that would help explain, in simple language, the law most relevant to Hawaiians. Most chapters of the handbook were written by attorneys who either are, or were at one time, staff of NHLC. MacKenzie credits the accumulated work and knowledge of many people— for example, law students for drafting chapters or case summaries — and other attorneys for

numerous reviews and editing changes. As editor-in-chief, MacKenzie read and edited all chapters and authored several chapters of the handbook. Her job was to ensure the chapters had a consistent viewpoint and continuity of style and to simplify the technical aspects. "We wanted it to be a sourcebook for attorneys, with case references, but also a lay person could read it and eome out with a general idea of what the law is at this time." Chapters cover the areas of Native Hawaiian Lands and sovereignty, securing land titles, natural resource rights, traditional and customary rights, and resources benefitting Native Hawaiians. Topics include a historical background on traditional land tenure and the influence of Western contact upon Hawaiians and their rights; the ceded land trust, the Hawaiian Homes Commission Act, access and trail rights, water rights, adverse possession, shoreline boundaries, religious freedom, ^self-governance and sovereignty and more. Contributing authors included Edward Halealoha Ayau, John Castle, Catherine Kau, Cynthia Lee, Paul Nahoa Lucas, Alan Murakami, Marie Riley and Livia Wang. Additional contributors included Charles Dickson, Jackie Mahi Erickson, Moniea Lee Loy and Louis Turbeville.

The Office of Hawaiian Affairs provided major funding to complete the project this month copies of the handbook are available for purchase from University of Hawaii Press. Early funding for the writing of the handbook was provided by the Department of Hawaiian Home Lands, the Wallaee Alexander Gerbode Foundation and the American Bar Association law student division. Financial support was also provided by the Legal Aid Society of Hawai'' Princess Po'omaikelani Kawananakoa and Marchesa Kapi'olani K. Marignoli. During the years it took to complete the

handbook none of the authors were ever able to devote any length of time exclusively to the writing tasks, since they were all active with legal cases. This is a major reason it took years to complete, yet during those years, major court decisions were made whieh significantly affected the status of

Native Hawaiian legal rights. From 1988 attorney/editor MacKenzie juggled her time on the handbook with her tasks as a part-time senior staff attorney for NHLC, her work as a per-diem judge for the state district court, and as a kumu hula for Halaau Mohala Ilima. MacKenzie notes that even as chapters of the book were completed, changes in the law made it necessary to revise the book up until just a few months before publication. Changes in law and legislation will probably make a supplement necessary, she says, but no work has yet begun on this. "Up until the last five or so years, Native Hawaiian rights weren't seen as a real area of study for lawyers or a serious field for practice." In 1984 and 1985 MacKenzie co-taught a Native Hawaiian Rights class covering such areas as land tenure system and evolution of private property in Hawai'i, creation and development of the Hawaiian Homes program, ceded lands and state responsibilities relative to ceded lands, and water rights. MacKenzie notes, "In any field of law there is a treatise to give the basics and to 'legitimize' that field. Previously Native Hawaiian rights haven't had that legitimacy." She says, "We are trying to develop a unique area of law to get broader recognition that Native Hawaiians have unique rights as a native people. Twenty years you would look to Native Amenean precedent. It's more of an international concept at this time." In February MacKenzie and NHLC executive director Mahealani Kamauu attended an Aboriginal Public Policy Conference in California and heard a talk by a law professor who drafts constitutions. He said that there are only seven constitutions in the world drafted before 1900. All others have been drafted since then. More are being drafted now in Africa and Eastern Europe.

She says, This is the perfect time for native people to look at constitutions and to assert their right to draft their own." Over the last 10 years the most progress in Native Hawaiian rights has eome, she thinks, in ceded lands issues and the sovereignty movement. This is also where she thinks the greatest challenge lies to protect and expand rights that have been defined. Another area to watch will be the effect on the native Hawaiian right to sue from whatever the state Legislature decides on the Governor's Action Plan to resolve Hawaiian trust controversies. Depending on their action, the continued page 10

Cover illustration of the "Native Rights Handbook" by 'lmaikalani Kahalele.

Melody Kapilialoha MacKenzie

Hawaiian Rights from page 3 Hawaiian right to sue for breach of trust before 1988 may kiek in. Another bellweather of change was the expanded public awareness of the ceded land trust. With the ConCon amendments that created OHA a new area of state constitution and statutory law was created. This was a major advance, she said. OHA is part of state government but its creation by the people of the state represents an important change in consciousness, believes. Looking at these first steps from an international perspective, she says, "This is Hawaii's opportunity to forge a nation of some kind." However she also points to the change in the times from the period of the 1970s and 1980s. Then, attitudes were more favorable toward Native right. Native American tribes were winning

highly publicized court cases. This attitude of the courts has changed, she says, "Case law may not be as helpful these days. Legislation may be more helpful to native concerns in the future." MacKenzie thinks there is a subtle change of consciousness among Native Hawaiians concerning their interest in understanding their past and taking charge of their future. There are more people involved and interested today in understanding what their rights are and asserting them. Even "silent" middle-class Hawaiians are wanting to know and assert their rights. She cautions lay readers to understand that law is not a matter of black and white absolutes, but that it is complex and dynamic and constantly being tested. "Read the book. Nothing is secure. Expect challenges to rights to eonhnue. Hawaiians must keep asserting all their rights."

Copies of the Native Hawaiian Rights Handbook (ISBN 0-8248-1374-X), $25 softbound, may be obtained from University of Hawaii Press, the UH Bookstore, and by the end of April from all major loeal bookstores. Mail orders may be placed with University of Hawaii Press, Order Dept., 2840 Kolowalu St., Honolulu, Hawaii 96822. Add $2 for the first book for postage and handling ($1 for eaeh additional book) and allow two weeks for delivery.