Ka Wai Ola - Office of Hawaiian Affairs, Volume 17, Number 4, 1 April 2000 — PASH meets Rice [ARTICLE+ILLUSTRATION]

PASH meets Rice

UH wins Native American Moot Court Competition

By Poulo D u r b I n tIGHT WOMEN law students, divided into teams of two, represented the University of Hawai'i at the Native American Moot Court Competition March 9-1 . And their understanding of Hawaiian legal issues allowed UH to take top honors for the second year in a row. Moot court is a "court" held to give students the ehanee to argue a hypothetical case in a simulated United States

Supreme Court setting and be judged on the merits of their arguments and brief. This is the first year UH has hosted the NAMCC and that Hawaiian issues were the focus of the competition. "Usually Native Hawaiian students have to become steeped in Native Ameriean law overnight," commented Richard Monette, a competition judge who teaches Indian law at the University of Wisconsin. At issue was the City and County of Honolulu's hypothetieal denial of a building permit to

Smith Development Co. whieh had recently purchased land, previously used by the military, and wanted to develop it as a resort, but without making any accommodation for Hawaiian cultural rights. The fact pattern raised muhiple legal questions. But the "justices," particularly those from Hawai'i, were most interested in the impact of Rice vs. Cayetano on Nansay, lne. vs Public Access Shoreline Hawai'i (PASH). In Rice, the U.S.Supreme Court invalidated requirements limiting participation in the election of Office of Hawaiian Affairs trustees to voters of Native Hawaiian ancestry saying that ancestry here was a "proxy for race." In PASH, the Hawai'i Supreme Court upheld Hawai'i's constitutional protection of Hawaiian cultural rights and clarified that Hawaiians could exercise these rights on undeveloped private property. o Applying Rice to PASH, if ° ancestry is a "proxy for race" ē with respect to voting rights, is o it also a proxy with regard to | cultural rights? If so, does proz tection of Hawaiian cultural rights violate the equal protection clause of the Fourteenth

Amendment of U.S. Constitution? Does it violate the doctrine of separation of church and state under the First Amendment? And if it is constitutional, does the denial of the permit constitute a taking of property, under the Fifth Amendment, for whieh the City must compensate Smith? None of these questions has been litigated yet in real life, so there are no easy answers. The contestants had to research existing decisions in cases with similar, but not identical, facts and weave those into an argument supporting their position. ^Phe grilling by some of the I extremely knowledgeable I loeal judges was probably I tougher than anything the I contestants will face in practice. Weighing their skills were Ernie Kimoto, Sebastian Aloot and Colin Kippen, all of the Office of Hawaiian Affairs; and the Native Hawaiian Legal Corporation's Arnold Lum and Carl Christiansen, among others. Former Hawai'i Supreme Court Chief Justice William Richardson, former Justice Robert Klein and former Court of Appeals Judge Walter Heen presided at

the final round. 'This competition brought to light Native Hawaiian issues for the many law students who took part - and for the mainland judges," eommented Joe Martin, Chief Justice of the Menominee Nation, and a competition judge from Wisconsin. "I had no idea of the extent to whieh Native Hawaiian law issues were out there and active." Vying for the naūonal title were 41 teams from 21 law schools. Miehelle Kim and Aimee Davis of UH captured the nahonal championship, plaeing first in the overall team category; Georgette Concepcion and Delia Ulima tied with a team from Harvard University for third plaee. Taking second plaee were Lewis and Clark's Romān Hernāndez and Steve Wheling who also placed third in the oralist category. Students from the University of New Mexico and the University of Arizona were considered best at oral argument; other contenders from the University of Colorado, Lewis and Clark and Stanford wrote the best briefs.B

UH's legal eagles: Back row, left to right. Delia Ulima, Le'a Kanehe. Stacey Aiuag, Miehelle Kim, Uluiani Cagle; front row, Amy Ono (organizer), Aimee Davis, Cindy Hironaka, Georgette Concepcion.