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Commentary – Mililani Trask on Geothermal Development

I received the following commentary on behalf of Mililani Trask regarding geothermal development in Puna.

Mililani Trask

In recent weeks a small group of angry & uninformed individuals have begun a campaign of misinformation, the goal of which is to prevent the development of geothermal energy on Hawaii Island. Claiming ownership of the Pele name & case information, this group is asserting that geothermal development threatens the cultural & religious practices of Hawaiians and violates their First Amendment rights under the US Constitution.

I am sending out this email to clarify what occurred when the Pele cases were litigated and how the outcome of the cases expanded Hawaiian cultural practice but did not stop or prevent geothermal development.

In the early 1980’s the Campbell Estate made public its plan for geothermal development at Kahauale’a. They brought in cheap filthy technology, never had a public community meeting, ignored Hawaiian traditional rights to gather & worship, and presented a plan under which they would reap hundreds of millions of dollars without any benefit to the public & native Hawaiians, who were the owners of geothermal public trust assets. Campbell Estate had wanted to develop Kahauale’a , but when these lands proved undevelopable, Campbell & the State moved for a land exchange in order to develop Wao Kele O Puna Forest.

Palikapu Dedman & others then challenged the land exchange in State contested case hearings. They claimed genealogical ties to Pele & asserted that drilling for geothermal was a desecration & rape of Pele’s body & a violation of their rights under the 1st Amendment of the Constitution. The Pele Defense Plaintiffs lost on appeal to the Hawaii Supreme Court. The Supreme Court ruled their right to worship had not been burdened because the area of development was not a traditional place of ceremony. (see Dedman V. DLNR , 740 P.2d 28 (1987)

Following this loss, the Pele Defense plaintiffs brought suit in Federal Court arguing that the land exchange violated the trust contained in the Admissions Act. The Pele Defense Plaintiffs lost this case when the court ruled their claims were barred because of the State’s Sovereign Immunity under the 11th Amendment.

The Pele Defense Plaintiffs also litigated this in State Court, but lost when the State Court ruled that the Federal decision had resolved the issue.

Despite these losses, Hawaiians did win a significant victory when the Court acknowledged & supported Hawaiian cultural rights and expanded the exercise of these rights to areas outside the ‘ahupua’a. Prior to this case, the practice of cultural rights had been limited to the area of the ‘ahupua’a.

Initially, the legal strategy and work was undertaken by the Law Offices of Yuklin Aluli & Mililani Trask. Early on, I left Oahu and returned to Hawaii Island to represent the Kupuna who would later be called upon to lead the march. Soon, the Native Hawaiian Legal Corporation (NHLC) joined in and with the help of many Hawaiian legal minds and the Native American Rights Fund (NARF) the Pele cases were initiated & litigated. Some attorneys gave advice, some did research & some took the case to the Supreme Court. Attorneys from the continent helped with the environmental claims, it was a collective effort by many. The Pele cases are important legal precedents that should be understood by all because they set criteria on Hawaiian rights to worship, and also established conditions for development in culturally sensitive areas.

In March 1990, environmentalists called for the ‘Big March’. Shortly after the announcement, it became evident that the so-called ‘Hawaiian leaders’ of the PDF were not going to get arrested. None of them lived in Puna, One was a medical doctor from Molokai & Oahu, who was concerned about his reputation, his girlfriend (an academic from Manoa) was worried about her career, Palikapu Dedman also backed out claiming he could not get arrested because he was a convicted felon on probation! In the end, it was aunty Pele Hanoa, (Palikapu’s mother) who walked at the head of the March with other Kupuna wahine from Ka Lahui Hawaii. I walked with them as their attorney, I met with the police before hand to ensure there would be no problems, I held their purses when they climbed over the fence & bailed them out of jail. The police, some of whom were Hawaiian, helped the Kupuna by assisting them over the fence, there was no negativity, injury or anger.

If you check the record you will find that none of the PDF ‘leaders’ have ever gotten arrested protecting Hawaiian cultural or religious rights. Palikapu Dedman did not bring or win these cases, he does not have the capacity, the attorneys brought and won this case. Whenever the time has arisen to stand up to stop desecration of culture, Palikapu has always used the same excuse….he is a felon with criminal convictions (shoplifting, firearms violations & multiple convictions for Promoting Detrimental Drugs in our community) and can’t risk getting arrested again!!!!!
As a Hawaiian who has been arrested protecting cultural rights & burials, I am proud of the effort that went into the Pele cases, and proud to have been a part of the legal effort to advance & expand our cultural rights to worship. Its time we use these wins to ensure that culture is respected & protected when renewable energy is developed for Hawaii Island.

In the 24 years since the case was brought and for the last 18 years that PGV has been operating in Puna, there has not been a single case or instance of a Hawaiian being denied their right to worship Pele because of geothermal development.

Mililani B. Trask, Attorney
Indigenous Expert to the United Nations
Indigenous Consultants, LLC

Governor Abercrombie Appoints Native Hawaiian Roll Commission

Governor Neil Abercrombie today announced his appointments for the Native Hawaiian Roll Commission (NHRC).  Established in July when Governor Abercrombie signed Act 195, the NHRC starts the process that will eventually lead to federal recognition of Native Hawaiians.

The Commission is composed of five members, one from each county and one at-large seat.  They are: former Governor John D. Waihe’e (At-Large), Lei Kihoi (Hawai’i), Mahealani Perez-Wendt (Maui), Na’alehu Anthony (O’ahu), and Robin Puanani Danner (Kaua’i).
“These individuals represent various sectors of the Hawaiian community.  Each brings experience, talent, knowledge, and skills that collectively create a broad-based team,” Governor Abercrombie said.  “This team will put together the roll of qualified and interested Native Hawaiians who want to help determine the course of Hawai’i’s indigenous people.”
The Commission will be responsible for preparing and maintaining a roll of qualified Native Hawaiians as defined by the Act. Once its work is completed, the Governor will dissolve the Commission.  The roll is to be used as the basis for participation in the organization of a Native Hawaiian governing entity.
“Now is the time to unify as a people,” said At-Large Commissioner Waihe’e.  “The belief in our nation building process is being realized.  It has been a long time coming but today we have a renewed sense of confidence for our people and our future.”
About the Native Hawaiian Roll Commissioners:
John D. Waihe’e III is the appointed At-Large commissioner. After serving as Lt. Governor under Governor George Ariyoshi, Waihe’e became the first Native Hawaiian Governor and served two terms from 1986 to 1994.  His administration created the A-plus after-school-care program, restored more than 16,000 acres of public lands to the Hawaiian Home Lands Trust, and created a committee to help define sovereignty.  In 1993, he created the Hawaiian Sovereignty Advisory Commission.  Waihe’e, 65, became active in politics after serving as a delegate on the 1978 Hawai’i State Constitutional Convention where he was instrumental in the creation of the Office of Hawaiian Affairs.  He earned his undergraduate degree at Andrews University in Michigan and was a member of the first graduating class of the William S. Richardson School of Law at the University of Hawai’i.  Waihe’e lives in Honolulu.
Na’alehu Anthony is the appointed O’ahu County commissioner.  Anthony is the Chief Executive Director of ‘Oiwi TV and the Principal of Paliku Documentary Films.  He is the Director and Executive Producer of ‘Aha’i ‘Olelo Ola, Hawaiian Language news.  Anthony has produced and directed a number of films including the award winning PBS Documentary of Mau Piailug: The Wayfinder. Anthony, 36, is a member of the Polynesian Voyaging Society and a captain for interisland and coastal sails. He has documented all the major voyages made by Hokule’a.  Anthony holds an MBA and a BA in Hawaiian Studies from UH-Manoa.  He is a 1993 graduate of Kamehameha Schools and lives in Kailua.
Lei Kihoi is the appointed Hawai’i County commissioner.  Kihoi has served the Native Hawaiian community in various aspects for over 25 years.  As a former staff attorney for Judge Walter Heen, she wrote and promoted legislation regarding Hawaiian matters.  Kihoi, 66, is a trained counselor in ho’oponopono, mediation and facilitation. She served on a number of boards and organizations including Hui Hanai (Queen Liliuokalani Trust), Polynesian Voyaging Society, and the Native Hawaiian Bar Association.  Kihoi is a graduate of Castle High School.  She earned her BS in Education from UH-Manoa, a MSSW from the University of Wisconsin, Madison; and her law degree from the UH Richardson School of Law.  A beneficiary of the Queen Lili’uokalani Trust, Kihoi is a resident of Kailua-Kona.
Mahealani Perez-Wendt is the appointed Maui County commissioner.  Perez-Wendt was the Executive Director of Native Hawaiian Legal Corporation (NHLC) for 32 years before retiring in December 2009.  During her tenure the NHLC litigated landmark cases including Public Access Shoreline Hawai’i v. State, and Waiahole Community Association v. State.  Perez-Wendt, 64, was the first Native Hawaiian board member of the Native American Rights Fund.  She has been recognized with a number of awards including Outstanding Hawaiian Woman for Community Service, in 1983; Liberty Bell Award from the Hawai’i State Bar Association in 1990; Kalanianaole Award in 2003 from the Association of Hawaiian Civic Clubs; Native Hawaiian Advocate Award in 2009 from the Council for Native Hawaiian Advancement; and Hawai’i Women Lawyers Lifetime Achievement Award in 2009. Perez-Wendt has published poetry and stories in more than a dozen literary journals and anthologies.  A graduate of the Kamehameha School for Girls, Perez-Wendt lives in Wailuanui, East Maui.
Robin Puanani Danner is the appointed Kaua’i Commissioner.  She is the President and Chief Executive Officer of the Council for Native Hawaiian Advancement (CNHA).  Danner has over 20 years of experience working in the field of Native to federal trust responsibilities and government relationships to empower Native peoples.  She has extensive management experience in the nonprofit, for-profit business and government sectors.  She was the Vice-President and Branch Manager of that National Bank of Alaska and is the former North Slope Borough and Tagiugmiullu Nunamiullu Housing Authority County Housing Director and Indian Housing Authority Executive Director. Danner, 48, founded CNHA in 2001 and developed each of its programs including the first statewide Native Loan Fund, the Hawai’i Family Finance Project, which is certified by the U.S. Housing and Urban Development and funded by the U.S. Treasury to promote financial literacy; the Homestead Self Help Program; and the Hawaiian Way Fund, to advance philanthropy in support of culture, knowledge, and language.
Danner resides on her homestead in Anahola.

Native Hawaiian Law Certificates More than Doubled this Year

The number of Native Hawaiian Law Certificates awarded to graduating Hawaiʻi law students increased to 15 this year compared to 7 in 2010, at the William S. Richardson School of Law.

Media Release:

The 15 awardees are diverse and composed of both Native Hawaiian and non-Native Hawaiian students: Natasha Baldauf, Amy Brinker, Elena Bryant, Maria Carmichael, Amanda Donlin, Mark Jensen, Ha‘aheo Kaho‘ohalahala, Ryan Kanaka‘ole, Sarah Kaopuiki, Kekoa Keiley, Christopher Leong, Ann Otteman, Jeannin-Melissa Russo, Sherilyn Tavares, and Alexa ZenThe certificate’s coursework requirements include Native Hawaiian Rights, Administrative Law, Federal Courts, legal clinics, Federal Indian Law, International Law, Pacific Islands Legal Systems, as well as a research and writing requirement.

In addition to fulfilling the required courses, several law students played meaningful roles in the community and experienced important successes.  Baldauf and Kahoohalahala participated in outreach efforts to 11th grade students at Kula Kaiapuni O Ānuenue, a Hawaiian-language immersion school, this spring, and Hakipu‘u Learning Center, a public charter school, in the fall.  Brinker spearheaded a successful legislative effort to “legalize pa‘i‘ai” through Senate Bill 101, which passed both the state House and Senate and now awaits Governor Abercrcombie’s signature. Carmichael, Jensen, Kaopuiki, Russo and Tavares represented Hawaiʻi at Columbia Law School in New York for a national native moot court competition where team members brought home First and Third Place awards.  Donlin was an intern at KAHEA: the Hawaiian-Environmental Alliance and the Native Hawaiian Legal Corporation, two public-interest law firms.  Zen volunteered with attorneys Carl Varady and Tom Grande as they proceed with the Kalima case involving trust claims against the Department of Hawaiian Home Lands.

Hilo-born Sherilyn Tavares described her Environmental Law Clinic as memorable because, “for the first time, a class actually put me back on the land, where I was able to reconnect and make that important connection between what we do in law school classrooms, and what the real world needs are.  It was such a valuable class on so many levels.  It made us accountable to actual people doing work on the ground to preserve our culture and way of life.  It was real and the work was important and gratifying.”

When asked how he’ll apply what he’s learned through the certificate program to his legal practice, Mark Jensen replied, “Without sounding too idealistic, I’d like to think that I will have plenty of opportunities in the public interest field to help advance the interests of Native Hawaiians.”

Jeannin Russo commented that the certificate “is a great accomplishment and it has given me more knowledge of the issues I need to protect and address in my career.”

“Native Hawaiian law is challenging!  I find this subject to be very dimensional, given that it spans both state and federal law, and within that encompasses property law, Indian law, historic preservation, legislative and political work,” is how Alexa Zen described the program.

Amanda Donlin described the writing requirement as memorable and explained, “I wrote my paper on the legal certification of traditional Hawaiian healers.  It was the first time I wrote a paper of that magnitude and I enjoyed the journey.  I even had my paper published in a law journal, something I never dreamed I would ever accomplish.”

The annual spring commencement of the William S. Richardson School of Law awarded 15 students with Native Hawaiian Law Certificates on Sunday, May 15, 2011.

Established with federal funding in 2005 at the William S. Richardson School of Law, Ka Huli Ao Center for Excellence in Native Hawaiian is an academic center that promotes education, scholarship, community outreach and collaboration on issues of law, culture and justice for Native Hawaiians and other Pacific and Indigenous peoples.  Law Professor Melody Kapilialoha MacKenzie serves as the Director of Ka Huli Ao, and is also among the Law School’s first graduates.