MacKenzie, Melody Kapilialoha (on native law)

Melehina Groves
August 2006

Currently the director for the Center of Excellence in Native Hawaiian Law at the University of Hawai‘i at Mānoa, Kapilialoha MacKenzie has extensive experience in Native Hawaiian rights and the law. She joined the staff of the Native Hawaiian Legal Corporation in 1980, serving there in various capacities for over ten years, then worked as Executive Director for the Hawaiian Claims Office from 1992–1999. Kapilialoha has dedicated her career to advancing Native Hawaiians and, through her work at the law school, is part of a concerted effort to not only support Native Hawaiian law students but to educate the broader community about Native Hawaiian rights and the law. We caught up with her a week before UH went back into session and gained some insights into her background, challenges Native Hawaiian attorneys face, and plans for the future of the Center.

MG:  How did you get interested in studying law?

KM:  I went to undergraduate school in Wisconsin. I went to this really small school and I majored in anthropology and religion. I didn’t know what I was going to do with my life, and I moved to Boulder, Colorado. At that time there was a law firm that was just beginning called the Native American Rights Fund. They represent Indian tribes across the U.S. They were looking for staff, and I happened to know somebody that was their administrator, and she hired me in part because I was Hawaiian. I was kind of surprised and thought, "I’m considered Native American?"

I worked there doing clerical things and they decided to start something called the National Indian Law Library, and even though I didn’t have a background in law or library science or anything, they asked me to head it. I was there for probably two or three years, and then I decided to go to law school. I was really inspired by the work that they did. 

Law is a different way of thinking than, say, in the social sciences or humanities. I mean, I was a religious studies major, and that’s very different. So is anthropology. But law is intellectually challenging and sometimes it just clicks, you can understand it, you can see how certain things and principles evolve, and it helps you to understand the way the world today works a little bit better. 

MG:  How long have you been the director for the Center for Excellence in Native Hawaiian Law? 

KM:  Actually, the Center was only really started last year. Over the years, the law school has had courses in Native Hawaiian rights. I was an adjunct [professor] and taught Native Hawaiian Rights clinic. Years ago, back in the ’80s, I taught a basic Native Hawaiian Rights course. Williamson Chang, one of the professors here, has taught the Native Hawaiian Rights course in recent years. The idea is really that . . . we’re here in Hawai‘i. This is the only possible place where people would really, intensely study Native Hawaiian rights, issues, and law.

I think part of it was that we had a new dean and he went to Washington and visited Senator Inouye’s office and talked to them about the exciting things happening at the law school. Part of the result of that visit was the Senator took an interest in ensuring that there was the ability to have a concentration in Native Hawaiian law at the law school. 

The law school offers what are called certificate specialties—you can get a specialty in Pacific and Asian law, you can get a specialty in environmental law, and it seems like you should be able to get a specialty in Native Hawaiian law. That’s kind of what we’re moving towards, having a nucleus of enough courses so that students could get a specialty. 

MG:  So it’s not there yet? 

KM:  No, but we’re moving towards that, I think within a year we’ll be able to do it. We’re still trying to figure out what course work to offer, and we also want to have a community outreach part of things. We want to be able to bring issues to the community in kind of a more neutral way, explain what the law is, currently, so people can make more informed decisions and choices. 

Another part of it is supporting Native Hawaiian law students in whatever goals they have. One of the things we’ve done this summer is place students in work environments, Native Hawaiian organizations, where they get to work on issues that are important to the Native Hawaiian community. We also just started a post-graduate fellowship program. They can take a year to work on a certain project—for instance, we have one of our students looking at what’s called the Indian Child Welfare Act, which is a law that Congress passed which basically gives preference—when you’re looking at issues of adoption or placement of Indian children—the law basically says the preference is with a member of their own family or tribe, and if not that, then another Indian person. 

Because there have been issues raised in Hawai‘i about Hawaiian children not able to be raised and exposed to their culture, the student is taking a look at that act and seeing whether it might be something the Hawai‘i State Legislature could enact, what are the positives and the negatives, how does it work, and what are the impacts—the whole child welfare system and its effect on Native Hawaiians. I feel like even in the short period of time we’ve been here, we’ve been able to do a lot of interesting things. 

MG:  Are there a lot of students enrolled? 

KM:  Our law school is pretty small, an entering class has around 90 students, and maybe something like 16% are of Native Hawaiian ancestry. You can’t assume that all of them will be interested in Native Hawaiian law—a lot of them are, and non-Hawaiian students are certainly interested and take the basic Native Hawaiian law course or clinic for the actual experience. In clinic, you’ll actually help an attorney with a real-life case. This last semester we worked on the East Maui water rights case that affected the Ke‘anae area. It’s been a long-standing dispute . . . and there’s really good case law giving Native Hawaiian rights and preferences to the water, especially for kalo cultivation, but the actual implementation of that case law is difficult. 

The semester before that, we worked on the whole issue surrounding the ‘iewe (placenta, afterbirth). We worked with the attorneys at Native Hawaiian Legal Corporation so it was really neat to see the legislature act on it. In the past we’ve looked at some issues dealing with the Hawaiian Homelands trust, what are the commissioners’ trust responsibilities . . . and one year we worked on a case dealing with prisoners in Oklahoma who were not given the right to meet on a regular basis to practice Native Hawaiian religion and were not allowed to participate in Makahiki. That case ultimately settled and we were successful, so that was fun. 

MG:  And all of that happened before this Center even existed?

KM:  The ‘iewe case may have been the first case when the Center was initially getting off the ground.

MG:  What are some of the unique challenges that come with this position?

KM:  One of them is balancing time and obligations. Balancing the teaching part with the other obligations—professors are supposed to be researching and writing, and I have done some writing but not as much as I would like. I don’t have the time to spend doing that. Even preparing for classes has been really hard. It’s really exciting and highly challenging. 

The classes are small, for instance in a clinic there will be eight students. I did a class last semester that looked at repatriation and the national law—NAGPRA, the Native American Graves and Repatriation Act—and the local law Chapter 6E. We looked at the law and cases that have defined those laws and then we looked at specific, live cases. For NAGPRA, we had speakers come and talk about the Nā Lei v. Hui Mālama case, and then for the Chapter 6E we looked at the Hōkūli‘a case on the Big Island and what happened in that case. It was really interesting.

It used to be that someone would specialize in "Native Hawaiian Rights" but, more and more, there are specific areas of Native Hawaiian rights that are very complicated. Just the whole iwi and repatriation issue itself . . . if you look at both the federal and state law and all the kinds of law related to cultural and historic preservation. Each area of law is becoming more and more complicated for people to try and understand. 

Intellectual property rights, for example, is a whole new emerging area and there are actually very few attorneys in Hawai‘i that practice in that area, generally, and very few people who study it. Well, we do have intellectual property rights courses here and we have a professor who specializes in that area, but the whole question of traditional knowledge and culture and protection is relatively new. I think it’s just expanding and being developed now. The professor here who teaches Intellectual Property is Danielle Conway-Jones and she’s been working really closely with Vicky (Holt-Takamine) and ‘Īlio (‘Īlio‘ulaokalani) and the Ka ‘Aha Pono conference. There’s another Hawaiian attorney, Leighton Chong, who they’ve been working a lot with, too. 

MG:  When it comes to issues like intellectual property rights, how important is networking with other indigenous peoples? I would think some of them have the same concerns and challenges.

KM:  Very important. It’s very important, and that’s one of the things we’re always trying to make sure of. Obviously our relationship with the Māori is very strong and recently we’ve been able to bring some speakers down. For instance, Maui Solomon was recently here and the Center had a small part in supporting his trip financially and bringing him for the Native Hawaiian Trademark conference. He was so knowledgeable about so many different areas, and yet we still have to be so concerned about what U.S. law is, because at this point, that’s the jurisdiction under which we’re operating. Then we look to Native American lawyers and professors, also.
 
The Māori have adopted their own trademark, Toi Iho, and I’ve heard mixed things about it, but most of what I’ve heard from Māori is positive. The other thing is that Toi Iho was supported by the government of New Zealand and millions of dollars went into that. The question is if Native Hawaiians wanted to adopt a trademark, where is that mechanism going to come from for setting it up and enforcing or policing it? 

The Māori have a very different relationship with the New Zealand government than we have with the U.S. government. People in Hawai‘i look at the Māori and Aotearoa and use it as an example. But, as Maui (Solomon) said—in looking at the Waitangi Tribunal process—of all the claims that have been brought to the Tribunal, less than 1% have resulted in settlements that bring about what was asked for in the Māori claim. There are Māori who are getting frustrated with that process. He made some really good points, and part of what he believes they’re doing is creating a foundation for the future. Yes, you may not get everything you ask for and it’s years and years of negotiation, and he’s been going through that process himself within his own iwi. But it’s really about laying the foundation for the next generation to be able to step in and take over and advance it further. You can’t look at twenty years or thirty years, you’re looking way off into the future . . . [laughing] I know! I know how that sounds! 

MG:  Do you have an area within Native Hawaiian law that you specialize in, like ceded lands or water rights? 

KM:  Definitely not water rights! [laughing] I’ve actually done a lot of writing and researching on the ceded lands issue, both for the Office of Hawaiian Affairs and independently. That’s an area I feel comfortable in, I feel I know the cases, and I actually helped work on some of them. Recently, within the last couple of years, I represented OHA as part of their litigation team on the constitutional challenges, so I feel like I’m familiar with that, but it’s really complicated stuff. Traditional and customary rights is another area of law in which I’ve worked, and I’ve studied fairly extensively how the law in Hawai‘i has developed to recognize those rights. I worked on some of the early cases dealing with traditional and customary rights. Those are kind of the areas I feel most comfortable in. Hawaiian Homes, too, because I was head of the Hawaiian Claims office, which was the office established to review breach of trust claims against DHHL and the State. I feel like I have some knowledge about Hawaiian Homes, but actually our office was set up to look at a time period between 1959 and 1988, so in some ways I feel like my knowledge stops in 1988! [laughing]

MG:  Over recent years there seems to be an increase in court cases attacking our programs and assets, do you have any insight into why that might be?

KM:  Part of it is the natural swing of the pendulum—I personally think that with increased visibility of Native Hawaiians and increased . . . power . . . I don’t know if that’s the word I’m looking for, but . . . OHA’s assets and resources have increased, Kamehameha’s assets and resources have increased, even Hawaiian Homes has increased its assets tremendously in the last twenty years. I think that’s part of it. It’s almost a sign they’re doing a good job! If they were doing a bad job nobody would be challenging them, nobody would want to go to Kamehameha Schools, or to get a homestead. I think it’s partly that. Obviously after the Supreme Court decided the Rice v. Cayetano case the way that it did, then you have to look at the national picture. 

When OHA was created in 1978, it was only four years after a really important case decided by the U.S. Supreme Court dealing with Native Americans. That case basically said that special preferences for Native Americans are constitutional if they’re related to the relationship between the federal government and Native Americans, and they increase self-governance and federal policies towards Native Americans.

OHA was created within that climate and everyone at that time and throughout the years has believed that that general pronouncement by the Court applies to Native Hawaiian programs. I guess it’s important to remember that in the Rice case, the Court decided on the Fifteenth Amendment, not on Equal Protection grounds, but unfortunately in doing so the Court used language that has really undercut that whole idea that Native Hawaiians fall within that class of people that is covered by the Native American context and principles.

Well, at least in federal law, sometimes we’re included in as Native Americans and sometimes we’re not. Generally, the Native Americans that I’ve talked to are pretty supportive, for example, of federal recognition for Native Hawaiians. Once people understand the parallels, I think they can see that if Native Hawaiian programs are challenged successfully that, subsequently, Native American programs could be challenged as well.

MG:  I remember a political science professor also mentioning that "everything swings" and given time and patience, and not jumping for anything too soon, things eventually may swing back in our favor. 

KM:  Well, you know, all I can say is over the years, I’ve seen setbacks. For instance, in the very early days of Kaho‘olawe I was a young attorney when the occupations first began. I was clerking for Chief Justice Richardson and he was a very generous man, he let me work on the cases at night and on weekends to help the attorneys who were defending the occupations. We lost—we lost those cases and it seemed then that things were really black and bleak. But here we are today. 

MG:  Are there other organizations that you work with? 

KM:  Oh yeah, I still work really closely with the Native Hawaiian Legal Corporation, especially for the clinic. As a professor I don’t really take cases so I need to be working with people in the field who are doing actual case work so the cases we work on don’t die after our clinic is pau. NHLC has played a prominent role in developing Native Hawaiian law, so we partner with them on cases. And most importantly, right here at the law school is the ‘Ahahui o Hawai‘i, which is the Native Hawaiian law students association. They’ve been fabulous, they’re really a strong group. 
 
One of the things the ‘Ahahui has been working on involves the LSAT, the exam you have to take to get into law school. They got a grant from OHA to get an LSAT preparation class for Native Hawaiians. So they’ve been doing that, and they also recently got another OHA grant and were partly funded by our Center to look at two national programs that help minority students prepare to go to law school. It’s the summer before law school or two summers before law school, students go through this intensive training. One of them is the PreLaw Summer Institute which is specifically aimed at Native Americans. So the ‘Ahahui is looking at whether or not such a program could be instituted here, what would be the positives and negatives, or would it be better for them to raise funds to send students to the one that already exists. It’s an already existing structure, it’s tailored for Native Americans, and there are Hawaiians who have gone through that program, so that’s an option.

Another thing the law school and now the Center has done over the years is support the Native American Court Competition, we send a team to compete. 

MG:  Is that like a mock trial? 

KM:  Yeah, except that it’s at an appellate level, it’s really intense! They get the problem and then they have to write briefs, brief all the issues, then different attorneys or professors will come and act as judges and rate them, then they go off to the national competition. Pretty intense.

MG:  Do you have a highlight from your career, something that really stands out or makes you proud?

KM:  Wow, well . . . the thing that is kind of like my baby was the Native Hawaiian Rights Handbook—it’s the only book that discusses all the cases and issues relating to Native Hawaiian rights. It came out in 1991. Now for almost seven years we’ve been revising it, it’s been a major thing. I’ll be really, really proud when it’s completed. Of course the law keeps changing, so that’s an added challenge!

MG:  For the average person, like me, who might be interested in keeping up with current issues, are there some suggestions you could make as far as resources to draw on, ways to educate ourselves?

KM:  It’s so hard, because all the information we get is usually through the media. And the media reports very basic information . . . I think the best thing is to try to go to meetings and conferences, those kinds of things, try to get more information and sides to the story or issue than you would through the paper. Ka Wai Ola o OHA of course, and Honolulu Weekly actually does a pretty good job, but they can only cover one or two issues at a time. Everybody of course has their perspective.

To be a lawyer in Native Hawaiian rights is really frustrating, it’s really an uphill battle. I think when we’re young or just entering law practice, we all think we can change the world, but again it’s that whole thing where you have to take the long view. If you can just change one thing, or help one family, ultimately it has a big impact but you just have to slog through it all.