Melody MacKenzie

Melody Kapilialoha MacKenzie has been working in the field of Native Hawaiian law long enough that a book she helped write and edit in 1991, “The Native Hawaiian Rights Handbook,” was publicly re-released this month by Kamehameha Publishing and now is almost 4.5 times longer (320 pages then versus 1,420 now).

Director of the Ka Huli Ao Center for Excellence in Native Hawaiian Law at the University of Hawaii’s William S. Richardson School of Law, MacKenzie said the book, now titled “Native Hawaiian Law: A Treatise,” is larger because, “obviously, it’s been since 1991, so there’s a whole growth in law related to the Native Hawaiians.”

A review of the book’s 21 chapter subjects suggests how much growth. They include Native Hawaiians and U.S. law, gathering rights, religious freedom, burial rights, education, health, charitable and public land trusts, the island of Kahoolawe and more — all subjects prominent in today’s political landscape.

Besides her UH affiliation, MacKenzie’s standing to edit “Native Hawaiian Law” (along with Susan K. Serrano and D. Kapua‘ala Sproat) includes being immediate past president of the Native Hawaiian Bar Association, former executive director of the Native Hawaiian Legal Corp. and the Hawaii Claims Office, and a director of the Native Hawaiian cultural organization Hika‘alani.

Part-Hawaiian herself, she is related, even, to Princess Kaiulani, through her great-great-grandmother, a half-sister of Kaiulani.

MacKenzie is a graduate of Kailua High School (Class of ’66), Beloit College in Wisconsin, where she earned a bachelor’s degree in comparative religion, and the UH law school. One of her first jobs after UH was clerking for Hawaii Chief Justice William S. Richardson, who, she said, was her mentor and virtually the founder of the Native Hawaiian law field.

She is married and lives with her husband in Kailua.

Question: What is Native Hawaiian law?

Answer: Well, basically, I would say it’s the body of law that specifically relates to the people, cultural and natural resources of the Native Hawaiian community. And then there are other laws that are broader but specifically impact the Native Hawaiian community, such as quiet title and adverse possession, … because Hawaiians were the original owners of the lands.

Q: Could you explain briefly how those two laws affect Native Hawaiians?

A: Well, especially in the context of traditional kuleana lands, the adverse possession law basically says if somebody possesses the property for 20 years — I can’t remember all the criteria right now — that then they can be deemed to own the land and, say, go to court. And so often in the past that has been used to dispossess Native Hawaiian kuleana owners.

The other major impact, quiet title, happens when there are a number of owners of land. So, back in the 1850s, in the Mahele, an individual would get their land, and it would be in their name. Over the generations, of course, there are now many heirs to the land. It’s called tenants in common.

So if one person sells the land to a big corporation — in the past it would have been to a plantation or sugar company — then that company could bring what’s called a quiet title action, to get quiet title to the land. They had an interest in the property so they could do that.

Oftentimes, Hawaiian families didn’t know that there was a quiet title action taking place, or because it’s been in the family for generations, they had a very, very small interest, like 1/300th, or something like that, so it was not necessarily worth it for them to take part in the court action. So because of all these fractionated interests, it created a problem for many Hawaiians.

Q: The landmark decision in that field (Hustace v. Kapuni, 1986) was that they couldn’t just publish it (the notice of a quiet title action) in the newspaper, right? What were they required to do?

A: In that case, the state Supreme Court said they have to go and do their due diligence. … You know, if it’s a co-tenancy, they have to look for and find the other heirs, if at all possible. But at some point, the courts often allow either publication for unknown heirs or the heirs of one person and they will name as many as they can find.

Q: About the new book, who is it intended for, in terms of readership?

A: It’s intended, obviously, for attorneys and law students, but we have tried to make it so that the language is accessible to the general public and to the Hawaii community generally, and I think we’ve succeeded.

Q: I know there’s a lot there to chew on, but overall, are there any cases that you think are maybe the most important ever involving Native Hawaiian law?

A: I don’t think it’s a great case, but one case you could point to … is the Rice v. Cayetano case, in 2000, decided by the U.S. Supreme Court. That really threw into question the relationship of the Native Hawaiian community to the federal government, whether laws that were established to benefit the Native Hawaiian community, could be characterized as unconstitutional.

Q: You have some background in Native American law, and I’m thinking you think Hawaiians should be considered as Native Americans, because apparently there was a Supreme Court ruling that thereby they would be allowed to offer exclusive race-based programs.

A: Well, one of the things that’s happened in the last 15 or 20 years is the whole growth internationally of the recognition of the rights of indigenous people.

In 2007, the United Nations General Assembly passed the Declaration on the Rights of Indigenous People, and the U.S., although it initially didn’t sign on to it, did eventually, once President Obama came into office … in 2010. One part of that declaration … recognizes … the right to internal self-determination … so I believe that the movement in Hawaii for an election and a constitutional convention (by Native Hawaiians) is very consistent with … the right of internal self-determination.

With regard to what’s called federal recognition or federal acknowledgement, I do see that as maybe the next logical step for Native Hawaiians in seeking greater self-determination, and, as you said, the U.S. Supreme Court has recognized that laws that benefit Native Americans are based in part on a recognition that the indigenous people of the U.S. were pre-existing sovereigns …

Q: In light of the aha (convention of Native Hawaiian delegates) that might be coming up, … are you saying the federal recognition option is the way to go?

A: I think, realistically, that’s probably the next logical step for us. But like many Native Hawaiians, I want to make sure it’s not seen as foreclosing other possible options.

Q: If they are arguing that the Hawaiian government was illegally overthrown, how is it the aha would be starting with a clean slate instead of saying we have to restore our previous government?

A: We’re kind of looking at two different theories, or principles, and one is definitely related to re-establishment of the independent nation state.

The other relates to the indigenous people of Hawaii. If an independent nation state were re-established, it would still have obligations under the international regime toward Hawaii’s indigenous people. So I don’t see any inconsistency with saying the U.S., as now the authority in Hawaii, has those responsibilities toward these indigenous peoples.

Q: But there’s no possibility of going back to the kingdom status?

A: I just think that at this point in history there’s no clear-cut way to do that.

Q: In terms of the obligations, where do you think the line is between being paternalistic toward Native Hawaiians and treating them as free individuals with equal rights as others, in terms of land ownership, contract law, and all the rest?

A: I think what we’re moving toward, and what the aha is all about, is really the ability to have more self-determination, to control Native Hawaiian lands and resources, right? And really that was the movement in the ’70s with regard to the Office of Hawaiian Affairs. … So, yes, there is this vein of paternalism that runs through some programs, and particularly you might look at the history of the Hawaiian Homes Commission Act, in which the Act did not turn out the way it was proposed by Prince Kuhio and others, and in reality what ended up is Native Hawaiians got the worst land, a blood quantum was imposed, etc.

Q: How did that blood quantum get imposed; do you know?

A: Basically it was a compromise between Hawaiian interests and the plantations and ranchers and the territorial government. … When Hawaiians came up with this idea, they had no blood quantum. … So the 50 percent was proposed; it was a compromise with plantation and ranching interests.

Q: How did that serve those guys?

A: Part of this has to do with Hawaii’s crown lands, some of which were under long-term leases to plantations and ranchers. … When those leases came up … they wanted to be able to continue to have those leases. … So they were willing to say, “OK, Hawaiians, you can have third- and fourth-class agricultural and pastoral lands; we get to keep the best of the lands, and in addition to that, we want the 50 percent blood quantum.”

Part of it, indeed, was the racism of the time that basically said … “Oh, if you’re 50 percent (Hawaiian) and the other percent is haole or Chinese or other hard workers, then you don’t really need this program. You’re going to make it OK in the outside world. But if you’re 50 percent, you’re probably not going to make it. And so” — this is the paternalism — “we’re going to have to help them to rehabilitate.” The word was “rehabilitate.”

Q: OK, fast-forward to 2015: Why do I not hear Native Hawaiian advocates speaking out against that? Why is this DHHL land trust continuing? Why don’t they just give it to the people who qualify and be done with it?

A: You know, there has been talk in the past, and there were Hawaiians at ConCon (the 1978 state Constitutional Convention) who actually suggested changing Hawaiian Homes so that people would have their lands in fee simple. But the concern there is the same concern about what happened at the Mahele, … which is they ended up losing a lot of their land.

Q: “Losing it” because you mean they agreed to sell it or because of adverse possession and quiet title?

A: In some instances they agreed to sell it. In some instances it was because of quiet title and adverse possession. …

I guess the other thing I would say is that as long as we have over 27,000 people on the (DHHL) waiting list, the idea of making the home lands fee-simple title would not fly. … And the other thing is I think we’re still dealing with the idea that Hawaiian lands originally were in some kind of communal ownership, … with everyone having some use rights in the land. So fee simple has not really worked really well for many native people, including the tribes in the continental U.S.

Q: I imagine something could be arranged — co-ops or whatever.

A: Yes, there might be other kinds of ideas, like land trusts. …

At this point I think people, with regard to the Hawaiian Home Lands trust, are basically, like, OK, this wasn’t the best deal, and it’s not the best land, but we’re going to try to do the best job that we can. I foresee maybe 20 or 30 years down the road, if we do have a Native Hawaiian government, … it might eventually be that the Native Hawaiian government takes over administering the Hawaiian Home Lands program. And that’s part of the reason to keep it as a corpus together, I think. … But here’s the thing: This is a state responsibility. I mean, the DHHL has been totally underfunded … it’s never been fully funded.

Q: What about the state Office of Hawaiian Affairs? Were you disturbed at all by the deal to give it land to manage as part of that settlement with the (Neil) Abercrombie administration, or would you have preferred to see it just be in charge of disbursing its share of ceded lands revenues?

A: Actually I’ve always taken the position that OHA should get as much land as it can. That settlement, though, was for back revenue. The big issue going forward is what is the true pro rata 20 percent share of the public land trust revenues (that is supposed to go to OHA), and is OHA ever going to get that?

Q: Do you think OHA is doing enough for its part to benefit Hawaiians with the money that it gets?

A: I think OHA has a very, very large kuleana, a lot of responsibility, and I think it’s doing the best that it can, given its resources.

Q: In a 2006 interview you said that to be a lawyer in the Native Hawaiian rights field was really frustrating, that it was really an uphill battle. … Do you still think that’s the case, or has it been a little less frustrating lately?

A: I think, as with probably other areas of law, there are good things that happen and negative things, and things that give you incredible hope. I mean, I have to say, for the most part our Hawaii Supreme Court comes out with some very good decisions on Native Hawaiian issues, particularly in relation to natural resources, so that certainly gives me hope.