The Value of Hawaii: Law and the Courts by Melody Kapilialoha MacKenzie

University of Hawaii Press

Reconciliation v. U.S. law (revisited)

The Hawaii Supreme Court and the U.S. Supreme Court’s vastly different interpretations of the 1993 Apology Resolution highlight their conflicting views of history and law. In the Resolution, Congress apologized to the Native Hawaiian people for the overthrow of the Hawaiian Kingdom with the participation of agents and citizens of the United States.

Congress also expressed its “commitment to acknowledge the ramifications of the overthrow . . . in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people.” Congress specifically recognized that the Government and Crown Lands were taken without the consent of or compensation to the Native Hawaiian people or their sovereign government, and that “the indigenous Hawaiian people never directly relinquished their claims . . . over their national lands to the United States.”

In a 2008 unanimous opinion authored by Chief Justice Ronald Moon, the Hawaii Supreme Court placed a moratorium on the sale of public trust lands until Native Hawaiian claims to the land were resolved. In Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, the Court reasoned that the Apology Resolution and analogous State laws gave rise to the State’s fiduciary duty to preserve the trust lands until a resolution of Native Hawaiian claims. This duty, the Court believed, was consistent with the State’s “obligation to use reasonable skill and care” in managing the public lands trust, and thus the State’s conduct should be judged by the most exacting fiduciary standards.

In summing up, the Court found it significant that

Congress, the Hawaii state legislature, the parties, and the trial court all recognize (1) the cultural importance of the land to native Hawaiians, (2) that the ceded lands were illegally taken from the native Hawaiian monarchy, (3) that future reconciliation between the state and the native Hawaiian people is contemplated, and (4) once any ceded lands are alienated from the public land trust, they will be gone forever.

Notably, in placing a permanent moratorium on land sales, the Court recognized that the trust lands or aina hold unique cultural, spiritual, and political significance for the Native Hawaiian people—they are not fungible or replaceable:

Aina is a living and vital part of the [n]ative Hawaiian cosmology, and is irreplaceable. The natural elements—land, air, water, ocean—are interconnected and interdependent. To [n]ative Hawaiians, land is not a commodity; it is the foundation of their cultural and spiritual identity as Hawaiians. The aina is part of their ohana, and they care for it as they do for other members of their families. For them, the land and the natural environment [are] alive, respected, treasured, praised, and even worshiped.

Unfortunately, even though the legal issues were unique and best resolved in Hawaii, in a controversial move that appeared to reverse the State’s long-standing commitment to reconciliation, the State administration sought U.S. Supreme Court review. Given the U.S. Supreme Court’s increasingly conservative views, as well as the opinion in the 2000 Rice v. Cayetano case in which the Court held that restricting the votes for OHA trustees solely to those of Hawaiian ancestry was unconstitutional, the Court’s March 2009 decision was no surprise. According to the Court, the Apology Resolution was merely conciliatory, and its findings had no operative effect and did not substantively alter the State’s obligations.

The Hawaii Court’s views of the public land trust and claims of Native Hawaiians are in sharp contrast to those of the U.S. Supreme Court. The U.S. Supreme Court did not dispute the findings of the Apology Resolution. These findings, when coupled with the State’s independent trust duties in relation to the trust lands, were clearly sufficient for the Hawaii Supreme Court to make its determination. The Hawaii Court examined both the legal and equitable issues involved, seeking to strike a balance. Although it declined to rule on the ultimate claims of Native Hawaiians, the Hawaii Court sought to protect the trust lands until a political resolution could be achieved.

After the U.S. Supreme Court decision, most of the plaintiffs settled with the State, agreeing to dismiss the lawsuit without prejudice. The 2009 Legislature passed Act 176 implementing the settlement by requiring a super-majority legislative approval for the sale or gift of trust lands.

Ironically, land exchanges, which require only a two-thirds disapproval of either house or disapproval by a majority of the entire legislature, have often been a method to dispose of trust lands. Moreover, in the 2010 legislative session, only six months after Act 176 became effective, an effort [although it failed] was made to bypass the super-majority requirement and sell trust lands.

Aloha

Our laws and our courts have been instrumental in moving our community toward reconciliation. Sometimes that movement has been reluctant, sometimes the State has reneged on its promises, and sometimes reconciliation has taken a back seat to expediency or the economy. Yet, to move forward as a community, we must recognize past injustice, and we must recommit ourselves to returning to balance and harmony through reconciliation. In doing so, we should allow our path to be guided by aloha, a foundational value of Native Hawaiian life, encompassing a way of living that promotes healing, harmony, compassion, and balance.

Is aloha enough? Aloha is the foundation and base; it is a place to come from, a place in which to ground ourselves as we undertake the challenges of reconciliation. Aloha requires courage and perseverance, and ultimately, it requires principled actions. These actions may lead us down unknown paths, perhaps to restructuring our legal relationships and redefining Hawaiian sovereignty and nationhood in our laws and through our courts. Most importantly, without aloha, can we ever hope to reconcile our past with our present and live together as a community?

DISCUSSION: This essay is part of a 14-week series of excerpts from the book, "The Value of Hawaii: Knowing the Past, Shaping the Future." What do you think about Melody Kapilialoha MacKenzie's essay? Do you have any questions for her? Join the conversation about law and the courts and their role in reconciliation between the United States and the Native Hawaiian people.

TO LEARN MORE ABOUT THE BOOK: The Value of Hawaii: Knowing the Past, Shaping the Future

ATTEND A BEATUP WITH THE VALUE OF HAWAII AUTHORS: We're also discussing our series on "The Value of Hawaii" in person in Beatups at Civil Beat headquarters. You can come and meet Melody Kapilialoha MacKenzie and talk to her about her essay on law and the courts and their role in reconciliation. You'll also be able to meet and hear from Tom Coffman, author of the essay on Reinventing Hawaii. The Beatup will be at 5:30 p.m. Thursday, Sept. 23 at 3465 Waialae Ave., Suite 200. The sessions are free and open to the public. But please RSVP to beatup@civilbeat.com so we can reserve you a spot. You'll also be able to buy the book and get the authors to sign it. To learn about our previous Value of Hawaii Beatups, A Second Night on 'The Value of Hawaii' and A Night on 'The Value of Hawaii' .

ABOUT THE AUTHOR: Melody Kapilialoha MacKenzie is an Associate Professor and Director of Ka Huli Ao Center for Excellence in Native Hawaiian Law, William S. Richardson School of Law, University of Hawaii at Mānoa. After serving as a law clerk to Hawaii Supreme Court Chief Justice William S. Richardson, she joined the staff of the Native Hawaiian Legal Corporation, a public interest law firm advancing Native Hawaiian rights. Prof. MacKenzie is chief editor for the second edition of the Native Hawaiian Rights Handbook, and has litigated cases dealing with Hawaiian lands, asserting traditional and customary rights, and defending the constitutionality of Hawaiian programs.

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