E Ola Mau Ka ‘Ōlelo Hawaiʻi: Language Revitalization, Reparations, and the Courts

Once considered a dying language, ‘ōlelo Hawaiʻi (the Hawaiian language) has made a powerful resurgence in recent decades, thanks in large part to the proliferation of Hawaiian immersion programs at schools across the State. In 2019, the Hawaiʻi State Supreme Court strengthened these programs in Clarabal v. Department of Education, which held that the State of Hawaiʻi has a constitutional obligation to make all reasonable efforts to provide access to Hawaiian immersion education. This Note argues that the Clarabal court adopted a framework of reparations in its reasoning, derived from the act of “looking to the bottom”—or uplifting and centering the voices of the “bottom” marginalized group.

The Clarabal court adopted the collective memory of injustice advanced by the “bottom” when it explicitly situated its reasoning within the context of the overthrow of the Hawaiian Kingdom and subsequent decades of de jure language suppression, while constantly referencing Native Hawaiian sources and scholarship. In adopting this “bottom” perspective, the court ultimately provides a remedy—education programs designed to preserve and protect ‘ōlelo Hawaiʻi—that functions as a form of cultural reparations. The Clarabal opinion serves as an example of the type of reparative jurisprudence that is necessary to provide tangible restitutive benefits to historically victimized peoples.

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Notes on ʻōlelo Hawaiʻi

Ka ʻōlelo Hawaiʻi (the Hawaiian language) was originally a purely oral language. Over the past two centuries, the language has been codified and specific diacritical marks have been incorporated into the written system, namely the ʻokina and the kahakō. The ʻokina (ʻ) indicates a glottal stop between two vowel sounds (like the English “uh-oh”) and is also considered a separate letter in the alphabet. The kahakō or macron ( ¯ ) extends the length of a vowel sound. In the Glossary, I list the words in Hawaiian alphabetical order, which proceeds as:

A, E, I, O, U, H, K, L, M, N, W, P, ʻ.

Additionally, throughout the text I have chosen to not italicize Hawaiian words “in keeping with the recent movement to resist making the native tongue appear foreign in writing produced in and about a native land and people.”[1] English definitions are included in parentheticals following the Hawaiian word. Where a translation is of the name of a person or place, dashes are used to connect the words in the translation.

Introduction

I ka ʻōlelo nō ke ola, i ka ʻōlelo nō ka make.[2]

In language there is life; in language there is death.

This ʻōlelo noʻeau (wise saying, proverb) serves as both instruction and warning, guiding the listener to reflect on traditional Hawaiian beliefs around the power of language and cautioning them on the magnitude of harm that would result from its loss. Modern scholarship has reached consensus with this ancient wisdom, with the National Science Foundation and the National Endowment for the Humanities, among other entities, recognizing the intrinsic relationship between language and culture.[3] Without language, the traditions, values, worldview, histories, and customs that make up a culture are lost.

The stakes of language-loss are perhaps highest among the world’s indigenous peoples. According to the United Nations Office of the High Commissioner on Human Rights, an indigenous language dies every two weeks.[4] In 1985, it seemed almost certain that Kānaka Maoli[5] (Native Hawaiians) would see their language become part of this statistic—at the time, only thirty-two Native Hawaiian children under the age of eighteen spoke ‘ōlelo Hawaiʻi (the Hawaiian language) fluently.[6] Once the language of commerce, politics, and daily life in the Hawaiian Kingdom, the use of ʻōlelo Hawaiʻi rapidly declined following the forceful overthrow of the monarchy and the subsequent ban of the language in all public schools.[7] It was not until the 1970s, after Hawaiʻi’s statehood and nearly eighty years of de jure language suppression, that the revitalization of ʻōlelo Hawaiʻi began.[8] This revitalization, largely facilitated by the development of Hawaiian immersion schools, has functioned as a key component of the Hawaiian cultural renaissance[9] and as a source of pride and identity for the Hawaiian people.

In the context of this resurgence of language and other cultural practices, the Hawaiian political consciousness began to rally around the call for reparative action. The 1978 Constitutional Convention introduced new protections for traditional Hawaiian practices to the Constitution and restored the status of ʻōlelo Hawaiʻi as an official language of the State.[10] The Convention also attempted to reinstate a degree of Hawaiian political autonomy by establishing the Office of Hawaiian Affairs (OHA), which was intended to be a “clearinghouse for all Hawaiian issues,” with authority over all lands held in trust for the Hawaiian people.[11] This movement for reparative action reached the national stage in 1993 with the passing of the Apology Resolution, in which the federal government formally acknowledged the United States’s role in the overthrow of the Hawaiian Kingdom.[12]

Despite this momentum, each of these measures faced considerable setbacks immediately following implementation. In the years following the Constitutional Convention and establishment of OHA, the State Legislature gradually limited OHA’s designated powers, stripping it of its function as an independent and exclusive political body.[13] Similarly, Senator Daniel Akaka’s follow-up to the Apology Resolution, known as the Akaka Bill, which aimed to establish a process for federal recognition of Native Hawaiians,[14] died in Congress in four consecutive legislative sessions.[15] At the root of each of these setbacks was a failure by bodies of power to listen to the lived experiences and needs of the Hawaiian people. By choosing not to center these stories, decision-making bodies abandoned the collective narrative of disenfranchisement told by Kānaka and ultimately took actions which were not only unhelpful but actively harmful to the Hawaiian community.

The Hawaiʻi Supreme Court’s recent decision in Clarabal v. Department of Education,[16] however, has shown what is possible for Native Hawaiians when courts rely on a bottom-up perspective. The court’s adoption of such a perspective is promising for those seeking to preserve Hawaiian cultural identity because it shows that the court is willing to act on past wrongs and ongoing harms and to implement remedies identified by that perspective.

In Clarabal, the court held that the State has a constitutional obligation to make all reasonable efforts to provide access to Hawaiian immersion education.[17] The holding relied on Article X, Section 4 of the State Constitution (“the Hawaiian education provision”), which provides that the “State shall promote the study of Hawaiian culture, history and language.”[18] The Court’s reasoning referenced both the history of language suppression following the overthrow of the Kingdom and the legislative intent of the Framers, who indicated the provision was designed to “revive the Hawaiian language, which is essential to the preservation and perpetuation of Hawaiian culture.”[19] In explicitly situating the Hawaiian education provision within this objective and within the Framers’ narrative of political and cultural oppression of Native Hawaiians, the court created a type of reparative jurisprudence that is necessary to provide tangible restitutive benefits to the Hawaiian people.

This Note frames the Hawaiʻi Supreme Court’s holding in Clarabal as a type of cultural reparations achieved through a bottom-up approach. Professor Mari Matsuda posits reparations as a legal remedy defined by “[l]ooking to the bottom”—uplifting the voices of the most marginalized peoples.[20] “Looking to the bottom” allows for new conceptions of “justice” designed around the harms experienced and remedies requested by the “bottom” or victim group. Combining this framing with Eric Yamamoto’s model of collective memory, this Note conceptualizes “looking to the bottom” as the process of giving historically disenfranchised groups a voice to shape their collective narrative of injustice and their collective destiny. This Note contends that the Clarabal court’s reliance on Hawaiian scholarship,[21] centering the Hawaiian story as told by Hawaiian people, facilitated its adoption of a bottom-up perspective and implicit application of this reparative framework. The Clarabal opinion exemplifies the type of jurisprudence and remedies that are possible when courts accept the bottom’s collective memory of injustice, and signals that the courts may be a powerful venue for activists pursuing legal benefits for Native Hawaiians.

Part I of this Note provides a brief background of Hawaiʻi’s history, with particular emphasis on the evolving legal status of language and other cultural practices from the overthrow of the Hawaiian Kingdom through the Hawaiian Renaissance of the 1970s. This Part explains why Hawaiʻi’s specific historical, political, and legal context allows for implementing a bottom-up theoretical framework. Part II details Mari Matsuda’s legal theory of “looking to the bottom” and synthesizes it with Eric Yamamoto’s notion of “collective memory” to articulate a bottom-up framework for reparations. Finally, Part III examines the court’s reasoning in Clarabal and demonstrates how the court implicitly used the reparative bottom-up framework in its decision to address the stated needs of the Hawaiian people.

I. Memory From the Bottom: Contests Over the History of Hawaiʻi

To grasp how the Hawaiʻi Supreme Court practiced “looking to the bottom” in the Clarabal holding, it is necessary to understand the conflicting memories of Hawaiʻi’s history that the court parsed through to create its operative narrative. This Section provides background on Hawaiʻi’s history and identifies where the contest over collective memory is most acute. In doing so, this Section aims to demonstrate why Hawaiʻi’s specific historical, political, and legal context (especially with respect to the legal status of ʻōlelo Hawaiʻi) enabled the Clarabal court to take reparative action.

A.     Nā Hoʻomaka a me nā Hopena: Beginnings and Endings

Traditional Western narratives of Hawaiʻi stand in stark contrast to the collective memory of the “bottom,” i.e., of Kānaka Maoli. In the traditional Western narrative, the history of Hawaiʻi often begins in 1778, when Captain James Cook “discovered” the islands.[22] A modern, more bottom-looking revision to this might situate the beginnings of Hawaiʻi as part of a broader pattern of settlement in the Pacific, with at least two waves of Polynesian migrants from the Marquesas Islands and Tahiti arriving between 1,000 and 1,500 years ago, the descendants of whom we now know as Native Hawaiians.[23] However, Kānaka Maoli have their own collective memory of their origins, passed through an oli (chant) called the Kumulipo.[24] The Kumulipo details the union of two akua (gods, deities)—Wākea (the-vast-expanse-of-sky) and Hoʻohōkūkalani (the-making-of-stars-in-the-heavens)—who bore a stillborn son, Hāloanakalaukapalili (the-long-breath-in-the-quivering-leaf). Hoʻohōkūkalani buried her son beside her hale (home) and nourished his grave with her tears. From this place grew the first kalo (taro plant), the traditional staple food of Kānaka Maoli.[25] Hoʻohōkūkalani and Wākea had another son, the first Kanaka, who they named Hāloa in honor of his older brother.[26] Thus, Kānaka Maoli trace their moʻokūauhau (genealogy) to the ‘āina (land) itself. The word “‘āina” also means “that which feeds.” In this way, language serves as an active reminder of lineage and of the familial responsibility Kānaka bear to care for the land.

Kānaka worldviews, such as this connection to ‘āina, were directly challenged by the arrival of Western settlers. The Western narrative posits the ensuing decades as a period of progressive civilizing of the Hawaiian “savages.”[27] Missionaries furthered their pursuit of proselytism by developing a written Hawaiian alphabet and translating the Bible.[28] Missionaries also became close advisors to newly converted aliʻi (chiefs). Missionaries, along with other Euro-American settlers, used their positions to influence Hawaiian law and politics.[29] In 1848, this influence resulted in a mass privatization of land known as the “Great” Māhele.[30] Western memory marks the Māhele as a major turning point towards modernity and economic development, since the new land tenure system allowed Euro-American plantation owners and businessmen to develop fertile Hawaiian land to its fullest productivity.[31]

This narrative stands in stark contrast to the collective memory of the “bottom.” Kānaka understand their lifeways prior to contact as rooted in sustainability and spirituality[32]—an ordered society[33] far removed from the savagery and chaos invoked in Western tellings. Hawaiians kept extensive oral histories and marked significant events in stone with kiʻi pōhaku (petroglyphs).[34] Once an orthography was established, Kānaka Maoli quickly adopted the written form of their language, recognizing its potential for mass communication and recordkeeping.[35] Throughout much of the mid-1800s, ʻōlelo Hawaiʻi was also the primary language of schooling and Kānaka Maoli achieved incredibly high literacy rates, especially in comparison to other ethnic groups living in the islands.[36] Although the Māhele is also a major event in Kānaka memory, it instead marks a turning point towards extreme disenfranchisement of makaʻainana (common people), who were not only unaccustomed to the concept of private land ownership but whose cultural understandings of who had the right to allocate and claim land led to a high incidence of failure to claim land title.[37]

Growing foreign control over Hawaiian lands and politics, coupled with a dwindling Native Hawaiian population[38] and economic circumstances unfavorable to the newly landed class of Western businessmen,[39] created the perfect conditions for foreign usurpation of the Hawaiian government. In January 1893, thirteen Euro-American and English business owners, supported by a 1,500-man militia and personnel of the USS Boston, deposed Queen Liliʻuokalani.[40] The insurgents quickly established a Provisional Government, which created the new Republic of Hawaiʻi in 1894. By 1898, the islands were officially annexed by the United States under President William McKinley and incorporated as the Territory of Hawaiʻi.[41] Here, the contest over collective memory is especially fierce: where Western memory frames this process as one of “replacing” the monarch in favor of democracy, Kānaka see the forceful theft of their Kingdom and the end of their sovereignty. This perspective underscores the deep hypocrisy of the colonial Western narrative, as it was descendants of those early missionaries who decried the violence of Hawaiian society who ultimately threatened violence upon the Hawaiian people.[42]

Under the new constitutions of the Republic and Territory, ʻōlelo Hawaiʻi was banned in schools and Hawaiian-medium educational institutions were forced to close.[43] The new governments understood the role of language in consolidating power and maintaining cultural knowledge and thus designed this policy with the goal of eliminating the language by targeting the younger generation.[44] This approach proved remarkably effective—combined with corporal punishment in school and home visitations by teachers, ʻōlelo Hawaiʻi eventually disappeared in both the school and home settings.[45] All-Hawaiian newspapers also collapsed under government pressure to convert completely to English and because of the diminishing audience of ʻōlelo Hawaiʻi-literate individuals.[46] By the time Hawaiʻi became a state in 1959, there were no Hawaiian-speaking children entering school outside of the community on Niʻihau.[47] Such rapid and widespread language loss is cited as a key facet of cultural trauma[48] and is detrimental to the social and health status of the population.[49] Hawaiian community leaders witnessed these detrimental effects and, throughout the 1970s and 80s, endeavored to restore lost language and cultural practices in what came to be known as the Hawaiian Renaissance.[50]

B. Modern Legal Developments: Hawaiian Renaissance and Constitutional Convention

In part inspired by the Civil Rights struggles and women’s movements on the continental United States, the Hawaiian Renaissance represented a period of reclaiming a Hawaiian identity that had been forced underground by oppressive policies. This period also saw the first attempts to obtain monetary reparations to settle claims from the overthrow.[51] Kanaka historian, activist, and author George Kanahele emphasizes the revival of language as a key component of the Renaissance since “no culture can long survive, let alone achieve a renaissance, without its language being spoken and understood.”[52] Indeed, the growth of ʻōlelo Hawaiʻi in the early 1970s through the introduction of Hawaiian language courses in schools, including the University of Hawaiʻi, fostered a stronger connection to Native Hawaiian culture and identity.[53] This reclamation of Hawaiian group identity allowed Kānaka to reevaluate the key question posed in constructing collective memory: “Who [were we] and what happened?”[54] Language revitalization and the resurgence of other cultural practices gave momentum to Kānaka resistance of colonization and the colonizer’s narrative.[55] This Section outlines the Renaissance project of language revitalization in both the legislative and education systems.

The 1978 Constitutional Convention, dubbed the “People’s Convention” for its diverse, youth-led delegates,[56] represented a groundswell of interest in protecting and promoting the rights of Native Hawaiians. Perhaps the most significant, and certainly most radical, amendment passed by the Convention was the “Hawaiian Affairs Package.” This package introduced several major additions to the Hawaiʻi Constitution: Article XV, Section 4 and Article X, Section 4. The former provides that both “English and Hawaiian shall be the official languages of Hawaii,” signaling the end of the subordinate status of ʻōlelo Hawaiʻi.[57] The latter declares that “[t]he State shall promote the study of Hawaiian culture, history and language.”[58] The Committee members stated that their purpose in proposing these amendments was to “overcome certain insults of the past,” referring specifically to previous laws banning Hawaiian-medium education and the use of ʻōlelo Hawaiʻi in schools.[59] This statement of intent explicitly articulated the collective memory of injustice from which the Committee was operating, and, in passing these amendments, the delegates of the Convention signaled their adoption of this collective memory.

Additionally, in the process of creating and adopting these amendments, Committee members and other delegates expressed their personal regret for having been denied the chance to learn about their culture and language during their upbringing.[60] Reading these comments into the Committee’s statement of intent to address past wrongs, the amendments can also be understood as pursuing a remedy or form of redress long sought by Native Hawaiians: the revitalization of ʻōlelo Hawaiʻi as a means of preserving and perpetuating Hawaiian culture.[61]

The other major component of the Hawaiian Affairs Package was the creation of the Office of Hawaiian Affairs under Article XII, Sections 5 and 6. OHA was designed to be “a body that could formulate policy relating to all native Hawaiians and make decisions on the allocation of those assets belonging to native Hawaiians,” including administering any monetary reparations.[62] Section 5 specifically declares that both the board members and the voters who elect them shall be native Hawaiians.[63] While the formation of OHA as a governing body by and for Hawaiians[64] itself was intended to serve as a form of redress for lost sovereignty, its effectiveness as a remedy was undermined by the U.S. Supreme Court’s removal of the “Hawaiians-only” voting policy in Rice v. Cayetano.[65] Part III of this Note discusses this shortcoming in more detail.

On the education front, the language revitalization movement placed most of its emphasis on the formation of language immersion schools. Taking cues from the Kōhanga Reo language nests of their Māori counterparts in Aotearoa (New Zealand), Kānaka educators recognized the importance of full immersion at an early age for creating fluent speakers.[66] Initially, efforts to establish such immersion programs were confined to grassroots initiatives in private education settings led by these Kānaka educators.[67] In 1984, the ʻAha Pūnana Leo grassroots organization founded a private Hawaiian immersion preschool, creating an opportunity to study in ʻōlelo Hawaiʻi[68] for the first time in over eighty years.[69] ʻAha Pūnana Leo now operates thirteen private preschools on five of the main Hawaiian Islands.[70]

Following the establishment of Hawaiian-medium preschools, grassroots organizers, including the parents of keiki (children) who attended these preschools, turned their attention to advocating for Hawaiian-medium education at the K–12 level. At the urging of these organizers, the Department of Education initiated pilot programs at two public elementary schools in 1986.[71] Now, Ka Papahana Kaiapuni Hawaiʻi (the Department of Education’s immersion system) includes twenty-eight public or charter Hawaiian immersion schools encompassing all grades from K–12.[72] In 1999, for the first time in over one hundred years, a class of students educated entirely in ʻōlelo Hawaiʻi graduated high school.[73] The success of the program has been widely celebrated—at a 2011 hearing before the Committee on Indian Affairs, former Pūnana Leo director Namaka Rawlins cited the 100 percent high school graduation rate and 80 percent college enrollment rate of those students who were part of the P–20[74] Native immersion education pipeline.[75]

ʻŌlelo Hawaiʻi, though once on the brink of extinction, has been revitalized through the legislative and education systems outlined above and is growing in usage among both the Native Hawaiian and non-Native communities of Hawaiʻi. As of 2016, more than 18,000 people reported speaking ʻōlelo Hawaiʻi at home,[76] a roughly 1,400 percent increase from the barely 1,200 fluent speakers recorded just twenty years ago.[77] However, the project of revitalization is not over, and entities with power must continue to make concerted efforts to protect the progress that has been made. The remainder of this Note examines how the judiciary contribute to such an effort.

II. Theories of Reparations: Redefining Doctrine, Relationships, and Remedies

According to critical race scholars, conceptualizing and achieving “justice” requires listening to the most affected marginalized communities, or “[l]ooking to the bottom.”[78] This Section outlines Mari Matsuda’s legal theory of “looking to the bottom” and synthesizes it with Eric Yamamoto’s notion of “collective memory” to articulate a broader theory of reparations.[79] When courts practice “looking to the bottom,” they create a new “jurisprudence of possibility.”[80] Here, “looking to the bottom” elevates the collective narrative of injustice advanced by Kanaka Maoli over the competing Western narratives of Hawaiʻi’s history and creates space for courts to take reparative action by providing remedies specifically sought by Kānaka in their pursuit of justice.

A.     Looking to the Bottom and Conceptualizing Justice

In the seminal critical race theory[81] piece “Looking to the Bottom: Critical Legal Studies and Reparations,” Professor Mari Matsuda defines “looking to the bottom” as “adopting the perspective of those who have seen and felt the falsity of the liberal promise”—in other words, listening to “outsider” or subordinate voices of “bottom” communities.[82] Matsuda defines these communities as those “pushed to the bottom of the socioeconomic pile”[83] who have collectively “suffered through history,”[84] enduring social and political wrongs committed by a dominant group. As a result of this collective suffering, members of these groups often do not subscribe to traditional Western notions of justice and legality.[85] Listening to their voices, therefore, allows for new formations of doctrine, relationships, and remedies.

“Looking to the bottom” reconceptualizes doctrine by creating new framings of realities, which allow formerly irreconcilable concepts to exist simultaneously. Matsuda illustrates this by asking how an individual could believe both that (1) they deserve equal rights to others in society and (2) rights “are whatever people in power say they are.”[86] For those at the bottom, the ability to simultaneously believe both of these statements is critical to sustaining themselves and their communities in the face of wrongs perpetrated against them. Matsuda demonstrates this duality by recalling the Japanese American experience of internment during World War II.[87] Incarceration and racist policies stripped citizens of their supposedly inalienable constitutional rights, demonstrating how the extent of these rights is easily molded by the dominant (White) class. Yet, Japanese Americans remained devoted to principles of constitutionalism, invoking the Bill of Rights in their subsequent fight to delegitimize the Korematsu[88] decision.[89] Matsuda reconciles the apparent opposition between these beliefs by explaining that the “non-[W]hite tradition of constitutional interpretation . . . draws upon the experience of racism to read the Constitution as a text of liberation.”[90] Therefore, in the Japanese American consciousness, the U.S. Constitution became a “radical document” that “ultimate[ly] legitim[ized] . . . their fight against racism.”[91]

Similarly, for Kānaka Maoli, the State Constitution occupies a position as both a liberating and oppressive document. On one hand, its existence and legitimacy are directly tied to the overthrow of the Hawaiian Kingdom—representing the very deprivation of sovereignty which is at the root of their historical suffering. On the other, it has served as a vehicle for securing fundamental political, social, and cultural rights for Kānaka.[92] By “looking to the bottom” and adopting a Hawaiian perspective, one can understand the U.S. Constitution to exist as both an emblem of an oppressive, occupying State and as a mechanism for advancing expressions of sovereignty[93] of the very people occupied. This dual consciousness, which accommodates both skepticism surrounding the rule of law (based on its historical [mis]applications) and radical hope in the existence of “a determinate rule of law committed to the end of oppression,”[94] facilitates the creation of new concepts of legality and justice, including reparations.

B.     Reconstructing Relationships and Reframing Relief

Reparations is a legal concept derived by “looking to the bottom” because it is fundamentally rooted in the lived experiences and worldview of “bottom” communities.[95] At its core, the call for reparations aims for the recognition and remedy of historical wrongs.[96] However, it is distinguished from other, traditional Western legal theories by two unique features derived from “looking to the bottom”: its conception of relationships and its formulation of relief.

Traditional Western legal doctrine is predicated on the identification of discrete victims and perpetrators, where the victims have suffered concrete harm that can be directly traced to an act committed by the perpetrators.[97] Reparations expands this doctrine by challenging its rigidly formulated horizontal and vertical logics.[98] Horizontal logics define intragroup relationships and identify the contours of “victim” and “perpetrator.”[99] Conversely, vertical logics outline intergroup relationships between these classes and articulate the connection between the perpetrator’s act and the harm caused.[100] “Looking to the bottom” reconceptualizes relationships from the perspective of those who were harmed, making space for imagining new inter and intragroup structures. The following Section unpacks each of these directional logics in turn.

1.     Reconstructing Horizontal Relationships from Individuals to Groups

Reparations expand horizontal logics from a focus on individuals to a focus on groups. In the case of Hawaiʻi, the victim group consists of Native Hawaiians, who suffered the loss of their sovereign Kingdom. The contours of this class are determined not by measuring the perceived individual harm experienced against an arbitrary threshold,[101] but by identifying the ongoing group harm that ties group members together.[102] For Kānaka Maoli, ongoing harm is reflected in poor health and social outcomes, including higher rates of infant mortality, disease, illiteracy, imprisonment, and homelessness compared to other demographics in Hawaiʻi.[103] These factors cut across differences in individual income levels, cultural engagements, and political persuasions, creating a unifying basis for identifying the victim class.[104] Most importantly, victims self-identify as a group “because they are treated and survive as a group.”[105]

A similar analysis can be performed to identify the perpetrator group, except their unifying feature is their ongoing group benefit rather than group harm. Ongoing group benefits derive “from the wrongs of the past and the presumptions of inferiority imposed upon victims.”[106] The types of past wrongs that reparations seek to rectify are “tied to the idea of [W]hite dominance and non-[W]hite difference,”[107] which promoted the hierarchical structure that advanced dominant groups at the expense of victim groups at the bottom. In the case of Hawaiʻi, the benefits non-Native residents continue to reap from the loss of Hawaiian sovereignty are clear: “If Hawaiians had not lost their land, others would not be living on it. If the Hawaiians had not been pushed to the bottom of the socioeconomic pile, non-[N]atives would not hold as many positions of power and influence.”[108] Thus, “looking to the bottom” also outlines the contours of the perpetrator groups by identifying their continuing group benefit.

2.     Reconstructing Vertical Relationships to Expand the Timeframe of Causality

Reparations expand vertical logics by widening the temporal distance over which past harms committed by the perpetrator group are logically (and legally) connected to the present suffering of the victim group. The rigid conception of timeliness in traditional legal doctrine is predicated on promoting a sense of “fairness” in adjudicating the wrongdoing.[109] Yet, by “looking to the bottom,” it becomes clear that limiting causation to such truncated timeframes does not give “bottom” groups a fair opportunity to identify and seek relief for ongoing harms. Indeed, the injuries identified in reparation claims—“deprivation of land, resources, educational opportunity, personhood, and political recognition—are disabilities that . . . preclude[] successful presentation of the claim[s] at an earlier time.”[110] Reparations, therefore, exist as a legal mechanism through which victim groups might seek relief for claims that would otherwise fail a traditional causation requirement.

Importantly, the decision to expand the admissible vertical time gap to allow for reparation claims is “essentially political” and therefore influenced by how the dominant narrative frames the past wrong.[111] Generally, finding causation over longer temporal distances is more justified if the past wrong is seen as more egregious,[112] or if its effects linger longer. For example, if the dominant Western narrative frames the Republic and Territory-era law outlawing teaching in ‘ōlelo Hawaiʻi as an exercise in state-building and public order rather than a genocidal project, then even if the loss of ‘ōlelo Hawaiʻi is seen as harmful for Kānaka, this harm is not deemed to stem from a past wrong that is worthy of redress decades later. It is therefore critical that the egregiousness of the past wrong and longevity of its effects be defined by the people who are suffering the resulting harm: the “bottom” victim group. To do so, courts must “look to the bottom” and adopt the “bottom’s” collective memory as the dominant framing device in creating their master narrative.

Collective memory refers to “a community’s shared narrative of the past.”[113] For “bottom” communities, constructing their collective memory of injustice is a factual, political, and historical exercise centered on answering the question: “[W]hat happened and who [were we]?”[114] Professor Eric Yamamoto notes that, for Kānaka Maoli, “collective memory is ancestral,” constructed by an oral tradition of oli (chants) and mele (songs) preserved over generations.[115] Yamamoto also emphasizes the importance of collective memory in revivifying a group’s past and situating them within the social power hierarchy.[116] Adopting the collective memory dictated by the “bottom” centers the severity and ongoing nature of the harms caused by the past wrong, necessitating the expansion of vertical logics in legal doctrine. For “bottom” groups, the power to define, in their own terms, the harms they have experienced by dictating this selective reconstruction of the past is a critical facet of reparations. In this light, the stakes of preserving ʻōlelo Hawaiʻi—as not only a language but a vehicle for the creation of a Hawaiian collective memory—are made even clearer.

3.     Reframing Remedy: Reparations and the Courts

While “looking to the bottom” allows “bottom” groups to express their collective memory, courts and other legal entities (like legislative bodies) must still actively choose to adopt this memory as their operative narrative.[117] Sources of memory (whether they be individuals or institutions) and the content and characterization of memory are in constant contest to gain supremacy in the dominant collective narrative.[118] This competition is necessarily fierce because “[c]ollective memory affects attitudes about the past that manifest as values and actions in the present.”[119] Such manifestations in the legal context can be seen in both deliberative[120] and judicial bodies.[121] These bodies are powerful sites for (re)framing collective memory due to their ability to address the twin goals of reparations: recognition and remedy.

The remedy, i.e., the reparations themselves, is perhaps the most important, and certainly most controversial,[122] element of the doctrine of reparations. As a legal concept derived by “looking to the bottom,” reparations formulate relief with respect to the wants and needs expressed by the “bottom.”[123] In some cases, the victim group may deem individual monetary awards an appropriate remedy.[124] However, in many cases, such awards are seen as an inadequate means to effectively address the social problems caused by the root historical harm.[125] This is especially true in the Hawaiian case, where no amount of cash award would address the primary demand of Native Hawaiians: the reinstitution of Hawaiian sovereignty.[126]

Reparative action that is desired by victim groups can take many forms, including educational programs, like language immersion schools, and land grants for preserving subsistence and cultural practices.[127] In the case of Hawaiʻi, the efforts made by Kānaka to institute the first private immersion programs and their pressure on the State to initiate the Kaiapuni program in public schools show that such educational programs are a form of redress desired by the community. However, this type of reparative action only occurs “when those in power frame the past as a collective memory of injustice,” centering the past wrongs against the “bottom” group in their master narrative.[128] Courts, as tools of “those in power,” employ this type of framing in their decisions. In choosing which facts to rely on, and to what extent, courts actively shape and reshape the dominant memory to codify in the narrative of their holding.

Ultimately, reparations is a transformative doctrine; “[i]t is the formal acknowledgment of historical wrong, the recognition of continuing injury, and the commitment to redress, looking always to victims for guidance.”[129] Acknowledging historical wrongs and ongoing injury is significant because it recognizes the personhood of victims. Reparations are a legal assurance to victims that “[they] exist. [Their] experience of deprivation is real [and that the colonizing power] and its laws acknowledge [them].”[130] The ensuing discussion will identify the ways in which the Hawaiʻi Supreme Court’s holding in Clarabal adopted a reparative “bottom-looking” framework, thereby reinforcing the Hawaiian collective memory surrounding language loss and suppression and enabling programmatic redress for this past injustice.

III. Jurisprudence of Possibility: Clarabal as an Example of Reparative Jurisprudence

In 2019, the Hawaiʻi Supreme Court decided Clarabal v. Department of Education,[131] which considered the extent of the State’s duty under the Hawaiian Education provision of the Hawaiʻi Constitution .[132] This Section first discusses the facts of Clarabal and argues that the court implicitly practiced “looking to the bottom” through constant reference to Hawaiian scholarship and consequent adoption of the Hawaiian collective memory of injustice. In doing so, this Note contends that the court’s holding effectively functions as a form of cultural reparations. This Section concludes by contrasting the Clarabal holding with the U.S. Supreme Court’s ruling in Rice v. Cayetano and discussing how, by willfully omitting Hawaiian voices and thus refusing to adopt the “bottom” perspective, the judiciary can and have failed to actualize the reparative intent behind OHA. Ultimately, this Section argues that implementing a framework of reparations requires the narrative of the “bottom” group to become the basis from which relief is constructed. This framework can only be accomplished through constant reference to sources from the “bottom” group that raise the voices of the victims themselves.

A.  The Case: Clarabal v. Department of Education

Clarabal garnered widespread media coverage in Hawaiʻi as the first Hawaiian language rights case to be heard by the Hawaiʻi Supreme Court.[133] This Section details the facts of the case and outlines the key arguments from both parties.

Chelsa-Marie Kealohalani Clarabal, a mother of two school-age daughters living on the island of Lānaʻi, filed suit against the Department of Education in 2019.[134] The Clarabal ʻohana (family) had previously resided on Maui, where the two daughters had been enrolled in the Kula Kaiapuni program at Pā’ia Elementary School.[135] Clarabal, who is Native Hawaiian, “viewed it as fundamental to her cultural identity that her daughters learn their ancestors’ language.”[136] Through the Kaiapuni program at Pā’ia Elementary, both daughters became exclusively literate in ʻōlelo Hawaiʻi.[137] This proved to be challenging following the family’s move to Lāna’i, where there was no Kaiapuni program.[138]

This is not to say, however, that the people of Lānaʻi did not want a Kaiapuni program on their island.[139] In 2013, a Hawaiian immersion stakeholders group was formed and began meeting with the Lānaʻi High and Elementary School (“Lānaʻi School”) principal to discuss the development of a Kaiapuni program.[140] The Clarabal ‘ohana relocated to Lānaʻi around this time, and both daughters enrolled at Lānaʻi School during the 2013-2014 school year.[141] Clarabal applied for and received notice that her younger daughter was admitted to the immersion program slated to begin in the 2014-2015 school year.[142] However, despite buy-in from the principal, the school’s efforts to recruit a qualified teacher for the immersion program were unsuccessful and the program did not commence.[143] In the interim, the school hired a long-term substitute to “provide supplemental lessons on Hawaiian language, culture, and history to elementary school students.”[144] At the time of the case, recruiting efforts for the immersion program were ongoing.[145]

In addition to attempting to enroll her daughters in the immersion program, Clarabal also requested accommodations for her daughters to assist with their language barrier.[146] Clarabal made this request after one child was reprimanded for submitting an assignment in ʻōlelo Hawaiʻi.[147] These accommodations were denied.[148]

Clarabal subsequently filed suit[149] against the Hawaiʻi Department of Education, the Board, and its members in their official capacities (collectively, “the State”). She specifically alleged that “by failing to establish a Hawaiian immersion program on Lānaʻi that her daughters could attend, the State had breached the duty to provide a Hawaiian education program in public schools imposed by [A]rticle X, [S]ection 4 of the Hawaiʻi Constitution.”[150] Clarabal contended that this constitutional provision was intended by the framers at the 1978 Constitutional Convention to “require that the State provide a ‘comprehensive Hawaiian education program’ sufficient to revive the Hawaiian language.”[151] Clarabal sought both declaratory and injunctive relief, asking the court to declare that the State’s “failure to provide a Hawaiian immersion program and a stable teacher workforce on Lānaʻi violated her children’s rights under the Hawaiʻi Constitution” and to order the State to implement a Kaiapuni program with regular staffing at Lānaʻi School.[152]

The State argued that “article X, section 4 does not on its face establish an individually enforceable right to Hawaiian immersion education.”[153] In making this argument, the State also referred to the intent of the Constitutional Convention delegates, contending that the delegates “intended to preserve and perpetuate Hawaiian culture by ensuring Hawaiian history, culture, and language are integrated into the ‘regular curriculum’ of public schools that is typically taught in English.”[154] The State maintained that these goals were fulfilled by the standard Hawaiian history classes[155] and supplemental lessons provided at Lānaʻi school, which were sufficient to inspire students to take Hawaiian language electives and thus contribute to revival of ʻōlelo Hawaiʻi.[156] The Circuit Court[157] sided with the State, finding that the Hawaiian education provision[158] does not establish a constitutional right to an immersion program.[159] The Hawaiʻi Supreme Court accepted Clarabal’s application for transfer.[160]

B. Clarabal as an Example of Bottom-Looking Jurisprudence and Cultural Reparations

Reversing the Circuit Court’s decision, the Hawaiʻi Supreme Court found that the Hawaiian education provision was “intended to require the State to institute a program that is reasonably calculated to revive the Hawaiian language”[161] and that the State was “therefore constitutionally required to make all reasonable efforts to provide access to Hawaiian immersion education.”[162] In reaching this conclusion, the Clarabal court implicitly employed the bottom-up, reparative framework discussed in Part II of this Note. This Section identifies three distinct areas where the Justices practiced “looking to the bottom” in creating their operative narrative: in their recognition of past wrongs done to the Hawaiian people, their identification of resulting, ongoing harms, and their promotion of immersion education as a remedy.

From the beginning of the opinion,[163] the Clarabal court showed that the Justices were “looking to the bottom” by declaring their adoption of the Hawaiian collective memory of injustice centered on colonization and loss of sovereignty. The court directly referenced “Western colonialism”[164] on the first full page of the opinion, explaining how this colonialism worked to undermine the “common link” tying Native Hawaiians together[165] (horizontal relations).[166] The court also employed other telling phrases indicating its adoption of the “bottom’s” memory of these past wrongs, such as “forceful[] assimilat[ion]” to describe the ban on ʻōlelo Hawaiʻi,[167] and “conspired,” “invasion,” and “deposing” to explain the violent nature of the overthrow of the monarchy.[168] The court’s very use of “overthrow”[169]—as opposed to “transition” or “takeover”—clearly indicated its adoption of the “bottom” perspective on the egregiousness of this past wrong.

With respect to the legislation banning Hawaiian-medium schools, the Clarabal court illustrated its assumption of the “bottom’s” collective memory of injustice by acknowledging that “the [Republic and Territory era] law [banning Hawaiian-medium education] was specifically intended to eradicate knowledge of ʻōlelo Hawaiʻi in future generations.”[170] By expressly calling out the Territorial government’s genocidal[171] intent, the court announced its subscription to the Hawaiian perspective, classifying this law as a past wrong worthy of redress.

Having identified the past wrongs done to the Hawaiian people, specifically the enactment of the language ban, the Clarabal court next turned to the “bottom” in its discussion of ongoing harms caused by the language ban. First, the court based its operative narrative on the conception of language not just as a means of communication, but as a reflection of the “history and cultural priorities of the people who speak it”[172] and as a vehicle for “the formation and perpetuation” of a shared cultural identity.[173] The harm caused by language loss is thus contextualized by centering the connection between a people’s language and culture. This framing is derived directly from sources written by Hawaiians, like Kanaka scholar Paul Nahoa Lucas’s article on Hawaiian language policy.[174] Other such sources referenced by the court include Melody Kapilialoha MacKenzie’s treatise on Native Hawaiian Law[175] and the Apology Resolution.[176] The court’s distinct reliance on sources written by Hawaiian scholars announced its adherence to the “bottom” perspective by centering the voices of the victims of these ongoing harms—Hawaiian people themselves. The correlation between the weight given to these sources and the reasoning and outcome of the case exemplifies the application of the reparative framework from Part II.

The court also looked to the “bottom” by giving space to Native Hawaiians to express their personal experiences of this harm. In its factual background of the case, the court noted Clarabal’s family history of language loss[177] stemming directly from the suppressive policy of the Territorial government. The opinion also quoted similar individual stories from delegates to the Constitutional Convention.[178] The court additionally noted the physical abuse and social reprimands endured by Hawaiian students and teachers in the enforcement of the law.[179] By “looking to the bottom,” the court identified concrete and ongoing harms experienced by Hawaiian people as a result of the language ban, effectively bridging the vertical time gap and identifying the causal link between the past wrong and the resulting harm.

Finally, the Clarabal court adopted a distinctly Hawaiian (“bottom”) perspective in framing the provision of language immersion education as a remedy for past wrongs. In interpreting the Hawaiian education provision, the court looked to the intent of its Framers.[180] Situating express statements by the Hawaiian Affairs Committee[181] in the historical context of the Hawaiian Renaissance and within the Hawaiian collective memory of injustice, the court concluded that the provision “was designed to correct the lasting effects of the campaign of suppression that had deprived them and their families of the opportunity to become fluent in ʻōlelo Hawaiʻi.”[182] The court signified its recognition of the past wrong through its characterization of the Territory’s language policy as a “campaign of suppression,” and acknowledged the ongoing harm in noting the “lasting effects” of this campaign.[183]

Consistent with its practice of “looking to the bottom,” the court again looked to the Framers of the Constitution’s Hawaiian education provision to determine how, specifically, to make amends for this campaign of suppression. It found that the program required by the Hawaiian education provision was intended to achieve three goals: educate the public on Hawaiian history, preserve Hawaiian culture, and “revive the Hawaiian language, which is essential to the preservation and perpetuation of Hawaiian culture.”[184] Thus, the court concluded that the Hawaiian education provision was adopted for the express purpose of reviving[185] the Hawaiian language and intended to “require the State to provide a Hawaiian education program in public schools that is reasonably calculated to revive and preserve ʻōlelo Hawaiʻi.”[186] This step in the court’s reasoning is critical because it fulfills one of the key components of the reparative framework: keeping the wants and needs of victims centered in determining the form of redress—Hawaiians wanted to revive their language and needed an education program reasonably calculated to do so. Raising the voices at the “bottom” is what ultimately cemented the court’s final holding, that the State must take all reasonable steps to provide access to Hawaiian immersion education, a form of reparations.

In sum, having looked to the bottom to understand the past wrongs done to the victim group and the ongoing harms they experience, employing bottom-derived horizontal and vertical logics, the court actively adopted the Hawaiian collective memory of injustice as the operative narrative in their reasoning. Armed with this narrative of a campaign of language suppression, the court again looked directly to the bottom group to understand how to repair these injustices. Only because each of these steps was taken with constant reference to and guidance from victim voices, in the form of treatises and other articles written by Hawaiian scholars, can the remedy ultimately constitute a form of reparations. Without this direct reliance on Kānaka voices, the court’s reasoning would not have been premised on a narrative of injustice, and the remedy would not have provided the relief sought by Hawaiians.

The Clarabal court exemplified the application of the framework of reparations in its reasoning, demonstrating a jurisprudence of possibility that can arise from “looking to the bottom.” In the following Section, this Note briefly considers decisions surrounding the Office of Hawaiian Affairs and why the federal judiciary failed to apply this reparative framework.

C.    OHA and the Failure to Implement a Reparative Framework

The Hawaiʻi Supreme Court’s reasoning in Clarabal takes a uniquely expansive approach to administering justice, one that has not been frequently shared by other courts. This Section contrasts the reparative framework applied by the Clarabal court with the U.S. Supreme Court’s approach to shaping OHA via its decision in Rice v. Cayetano. Ultimately, this Section argues that the Rice Court’s refusal to reference Hawaiian scholarship resulted in its adoption of a Western version of Hawaiʻi’s history that explicitly ignored the bottom’s collective memory of injustice, leading to its failure to effectuate OHA’s intended function as a reparative body. In contrast to the Rice decision, the Clarabal decision thus serves as example of reparative jurisprudence that courts should take note of when designing or evaluating remedies for bottom groups.

As discussed in Part I, OHA was created during the 1978 Constitutional Convention as part of the Hawaiian Affairs Package.[187] It is codified in Article XII, Sections 5 and 6 of the Hawaiʻi Constitution. As conceived by the delegates, OHA would serve as a vehicle for self-determination of Kānaka by giving them control over the assets that OHA would manage.[188] OHA was created to function as a reparative body on two fronts. First, the Committee specifically included in OHA’s powers and responsibilities the authority to administer monetary reparations.[189] The very mention of reparations represented a shift towards the adoption of a more bottom-looking framework. Second, OHA was formed from a movement for Kānaka Maoli self-governance.[190] Indeed, one Hawaiian Affairs Committee staff member stated, with respect to the creation of OHA, “This was Hawaiian. The Hawaiians did it.”[191] Thus, the creation of OHA was intended to be a form of reparations, providing redress for Hawaiians’ loss of sovereignty by establishing a new, exclusively Hawaiian political entity.

Despite this clear intent for OHA to facilitate Hawaiians’ self-determination, its reparative capability was severely curtailed by the U.S. Supreme Court’s decision in Rice. The Rice suit was initiated by a haole (foreigner, Caucasian person) rancher on the island of Hawaiʻi, who sued Hawaiʻi’s then-governor to invalidate OHA’s “Hawaiians-only” voting provision.[192] Rice argued that the voting limitation constituted a special privilege for a racial minority, which is precluded by the Fourteenth and Fifteenth Amendments to the U.S. Constitution.[193] The Court agreed, finding the voting restrictions “impermissibly used ancestry as a proxy for race.”[194]

In a process Kanaka Professor Troy Andrade refers to as “reparative retrenchment,”[195] the Rice Court reframed the collective memory advanced by Convention delegates to dismiss their reparative intent and undermine the effectiveness of OHA as a reparative remedy. In contrast to the resources relied on by the Clarabal court, the Rice Court relied on older works written by non-Hawaiian authors.[196] This selection of scholarship to provide context for their decision indicates a failure to look to the “bottom” because they did not seek to understand the history of Hawaiian political dispossession—which OHA was designed to remedy—from the perspective of Hawaiians themselves. Instead, the Court adopted the Western colonizer’s narrative, which minimizes past injustices and ignores ongoing harms. According to this Western memory, the “privileges” afforded to Hawaiians under OHA’s exclusive voting scheme are unfair “because there are no effects of U.S. colonization.”[197] Indeed, the Court framed colonization and loss of Hawaiian sovereignty as passive occurrences,[198] completely sidelining any mention of the insidious intent of White colonizers and their racist policies.[199] The Court also conspicuously omitted any mention of the 1993 Apology Resolution, in which the federal government explicitly acknowledged the very history of colonization and injustice that the Court ignored.[200]

Perhaps the most consequential omission by the Court, however, was its lack of acknowledgment of Kānaka Maoli resistance to U.S. colonialism and the emergence of OHA from a movement for Hawaiian self-governance.[201] Erasing this history allowed the Court to frame the issue as one of racial discrimination by a (typical) state agency, as opposed to an issue of self-determination and redress for lost sovereignty.[202] By electing to ignore voices from the bottom and refusing to adopt the Hawaiian memory of injustice, the Rice Court further entrenched harmful and dismissive narratives about Kānaka and ultimately deprived OHA of its intended reparative function.

Situated against the backdrop of Rice, the Hawaiʻi Supreme Court’s holding in Clarabal emerges as a distinctly progressive administration of justice. Where the Rice Court failed to embrace a “bottom-looking” approach, the Clarabal court constantly deferred to victim perspectives in its reliance on Hawaiian-written sources and actively signaled its adoption of the bottom’s collective memory. The correlation between the weight given to certain sources and the reasoning and outcome of these cases is clear: where the Clarabal court’s reliance on Hawaiian sources informed its adoption of a “bottom-up” perspective and its resulting holding, the Rice Court’s willful omission of these sources led to its failure to employ the “bottom-looking” reparative framework. Consequently, only the Clarabal court was ultimately able to affirm the experiences of victims and provide a remedy that was wanted and needed by the “bottom” group. Other courts should heed the lessons from Rice and look to Clarabal’s “bottom”-centered approach as an exemplar of reparative jurisprudence that is necessary to bring justice to communities at the “bottom.”

Conclusion

Language roots us in our culture, our genealogies, and our worldviews. The Hawaiʻi Supreme Court begins its opinion in Clarabal with a statement on the importance of language: “The language of a people is an inextricable part of the identity of that people. Therefore, a revitalization of a suppressed language goes hand in hand with a revitalization of a suppressed cultural and political identity.”[203]

For Kānaka Maoli, who were subjected to a decades-long campaign of language suppression following the overthrow of their nation, the effects of language loss are especially acute. In Clarabal, the court took the opportunity to remedy this history of injustice and its ongoing harms by amplifying the language revitalization movement. As this Note shows, the court’s success in using this opportunity stemmed from its reliance on sources written by “bottom” voices and its consequent adoption of a framework of reparations. Derived from the jurisprudential method of “looking to the bottom,” the legal concept of reparations is based on making victims whole by providing “acknowledgment of and payment for past injustice.”[204] By “looking to the bottom” to adopt Hawaiians’ narrative of past injustice, the Clarabal court was able to take reparative action towards revitalizing ʻōlelo Hawaiʻi.

The Clarabal decision serves as an example of a new type of transformative jurisprudence made possible by elevating minority voices. As our society grapples with the ongoing, structural effects of our past wrongs, remedying these entrenched systems will require concerted efforts by the judiciary, and other branches of government, to employ reparative frameworks. “Looking to the bottom” and centering “bottom” voices through intentional selection of sources and language are critical practices for courts in other social contexts seeking to employ these frameworks. While, at times, our societal structural harms may seem insurmountable, traditional wisdom reminds us:

ʻAʻohe puʻu kiʻekiʻe ke hōʻāʻō ʻia e piʻi.[205]

No cliff is so tall that it cannot be scaled.

Glossary

akua: god(s), deity(ies)

aloha: love, affection, greetings (hello, goodbye)

aliʻi: chief, ruler

oli: chant that was not danced to

haole: foreigner, Caucasian person

kalo: taro

Kānaka Maoli: Native Hawaiians (plural)

Kānaka: plural and shortened form of Kanaka Maoli, Native Hawaiian persons

kuleana: right, privilege, concern, responsibility

kūpuna: ancestors, elders, plural: kūpuna

lāhui: nation, race, tribe, people

maka’āinana: common people

mele: song, anthem, chant of any kind

moʻokūʻauhau: genealogical successions

mōʻī: sovereign, monarch

‘āina: land, earth, that which feeds

ʻohana: family

ʻōlelo Hawaiʻi: Hawaiian language

ʻōlelo noʻeau: proverb, wise saying

Copyright © 2024 Stephanie Spear, J.D. 2024, University of California, Berkeley, School of Law. I am deeply grateful to Professor Jonathan Glater and my peers in Professor Glater’s Fall 2022 Education Law and Policy course for their feedback on the early iterations of this Note. I am also indebted to the hardworking staff at the California Law Review for their tireless efforts throughout the editing process. In particular, my deep thanks go to Andy Secondine, Mackenzie Gettel, Drake Goodson, and Belinda Grunfeld for their candid and detailed feedback. All remaining errors are my own. Lastly, mahalo to my ‘ohana and my hoaloha for their endless aloha and support.

           [1].     Katrina-Ann R. Kapāʻanaokalāokeola Nākoa Oliveira, Ancestral Places: Understanding Kanaka Geographies xvii (2014).

           [2].     Mary Kawena Pukui, ʻŌlelo Noʻeau: Hawaiian Proverbs & Poetical Sayings 129 (1983); Mark Warschauer, Keola Donaghy & Hale Kuamoʻo, Leokï: A Powerful Voice of Hawaiian Language Revitalization, 10 Comput. Assisted Language Learning 349, 349 (1997).

           [3].     See David Elmes, The Relationship Between Language and Culture, Nat’l Inst. of Fitness and Sports in Kanoya Int’l Exch. and Language Educ. Ctr. 11 (2013).

           [4].     Many Indigenous Languages are in Danger of Extinction, U.N. Off. of the High Comm’r for Hum. Rts. (Oct. 17, 2019), https://www.ohchr.org/en/stories/2019/10/many-indigenous-languages-are-danger-extinction [https://perma.cc/4K5X-ACK2]. Indigenous languages currently make up more than 4,000 of the world’s approximately 6,700 languages. Indigenous Languages, U.N. Permanent F. on Indigenous Issues, https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/04/Indigenous-Languages.pdf [https://perma.cc/W6QA-AMQK].

           [5].     The kahakō is used to mark plural words. In this case, I use the kahakō to refer to plural Kānaka Maoli or Kānaka (people), but not when using “Kanaka Maoli” or “Kanaka” as an adjective. Throughout this paper, the terms Kānaka Maoli, Kānaka, Native Hawaiian, and Hawaiian are used interchangeably to refer to all individuals of indigenous Hawaiian ancestry. Where referencing the population of Hawaiʻi at large (including non-Native peoples), I  use the term “residents.” Under most federal legislation, Native Hawaiian (capital ʻN’) has been defined to include any “descendent of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that constitutes the State of Hawaiʻi.” Leʻa Malia Kanehe, The Akaka Bill: The Native Hawaiians’ Race for Federal Recognition, 23 U. Haw. L. Rev. 857, 880 (2001). In contrast, native Hawaiian (lowercase ‘n’) as defined under the 1921 Hawaiian Homes Commission Act (HHCA) is restricted to those Native Hawaiians with at least 50-percent blood quantum. Id. at 869. Certain legal benefits, namely eligibility for Hawaiian Homestead land under the HHCA, are restricted to native Hawaiians. Id. For the purposes of inclusivity, I rely on the broader definition of “Native Hawaiian” throughout this paper.

           [6].     Saving the Hawaiian Language, Univ. of Haw. Found., https://www.uhfoundation.org/saving-hawaiian-language [https://perma.cc/75GP-CJPX] (last visited July 22, 2024).

           [7].     Melody Kapilialoha MacKenzie, Ke Ala Loa - The Long Road: Native Hawaiian Sovereignty and the State of Hawaiʻi, 47 Tulsa L. Rev. 621, 654–56 (2013).

           [8].     Id. at 655.

           [9].     Spanning from approximately 1970–80, the Hawaiian Renaissance was a period of Hawaiian cultural resurgence inspired by, among other things, the Civil Rights Movement on the continental United States, and language and cultural revitalization movements throughout the Pacific. See infra Part I.B; William H. Wilson, The Sociopolitical Context of Establishing Hawaiian-Medium Education, 11 Culture and Curriculum 325, 326–27 (1998).

         [10].     See Haw. Const. art. XV, § 4 (establishing English and ʻōlelo Hawaiʻi as the “official languages” of Hawaiʻi, with the exception of ʻōlelo Hawaiʻi being “required for public acts and transactions” when provided by law); Haw. Const. art. X, § 4 (requiring the “language, culture and history” of ʻōlelo Hawaiʻi to be taught in all public schools).

         [11].     Troy J.H. Andrade, Hawaiʻi ’78: Collective Memory and the Untold Legal History of Reparative Action for Kānaka Maoli, 24 U. Pa. J. L. & Soc. Change 85, 124, 133 (2021).

         [12].     S.J. Res. 19, 103d Cong. (1993) (enacted).

         [13].     Delegates from the 1978 Constitutional Convention, where OHA was developed and codified, intended for it to be an autonomous entity with the power and authority of other government branches, stating it should be “independent from the executive branch and all other branches of government although it will assume the status of a state agency.” Andrade, supra note 11, at 124. However, in the two legislative sessions following the Convention, legislators voted to limit the pay of OHA’s administrator (to be lower than a director’s salary of another state agency), limit OHA’s staffing and resources, and make OHA subordinate to the State Legislature. Id. at 133–35. Later, Rice v. Cayetano stripped the Hawaiians-only voting policy for OHA trustees, making OHA elections open to the public and undermining its intended purpose as an exclusively Hawaiian entity. See 528 U.S. 495, 524 (2000); infra Part III.C.

         [14].     Currently, Native Hawaiians are not a federally recognized group, meaning that, unlike Native Americans and Alaska Natives, they do not have a government-to-government relationship with the United States. See Justin L. Pybas, Native Hawaiians: The Issue of Federal Recognition, 30 Am. Indian L. Rev. 185, 187 (2005/2006); Kanehe, supra note 5, at 859–60. Federal recognition acknowledges “certain inherent powers of self-government” which Tribes possess, and entitles them to “certain federal benefits, services, and protections because of the special trust relationship.” Frequently Asked Questions about Native Americans, U.S. Dep’t of Just. Off. of Tribal Just., https://www.justice.gov/otj/about-native-americans [https://perma.cc/ZY8Y-NP2V] (last visited Mar. 1, 2024). Lack of federal recognition means Hawaiian is not recognized as a political identity, as with Tribal membership, but is rather treated as a racial identity, creating problems for special treatment of Hawaiians under the Fourteenth and Fifteenth Amendments. See, e.g., Cayetano, 528 U.S. at 519 (invalidating a voting restriction for OHA that limited voter eligibility to those with Hawaiian heritage as an impermissible racial classification under the Fifteenth Amendment).

         [15].     Native Hawaiian Government Reorganization Act of 2009, S.1011, 111th Cong. (2009) [hereinafter Akaka Bill].

         [16].     Clarabal v. Dep’t of Educ., 145 Hawai’i 69 (Haw. 2019).

         [17].     Id. at 71.

         [18].     Haw. Const. art. X, § 4.

         [19].     State of Hawaiʻi, Proceedings of the Constitutional Convention of Hawaiʻi 1978, Volume I, at 637 (1980) [hereinafter I978 Proceedings Volume I].

         [20].     Mari J. Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 324 (1987).

         [21].     In particular, the court relied on Paul F. Nahoa Lucas, E Ola Mau Kākou I Ka ‘Ōlelo Makuahine: Hawaiian Language Policy and the Courts, 34 Haw. J. Hist. 1 (2000), and Native Hawaiian Law: A Treatise (Melody Kapilialoha MacKenzie, Susan K. Serrano, D. Kapuaʻala Sproat, Ashley Kaiao Obrey & Ais Kuuipoleialoha Poia eds., 2015).

         [22].     Gavin Daws, Shoal of Time: A History of the Hawaiian Islands 1 (1974); Lawrence H. Fuchs, Hawaii Pono: A Social History 3 (1961) (“In 1778, Hawaii had been discovered by the English explorer Captain James Cook . . . .”).

         [23].     See Kenneth P. Emory, Origin of the Hawaiians, 68 J. Polynesian Soc’y 29, 34 (1959); Melinda S. Allen, Marquesan Colonisation Chronologies and Post-Colonisation Interaction: Implications for Hawaiian Origins and the ‘Marquesan Homeland’ Hypothesis, 5 J. Pac. Archaeology 1, 2 (2014).

         [24].     See The Kumulipo: A Hawaiian Creation Chant 7, 55–57 (Martha Warren Beckwith trans. & ed. 1951).

         [25].     Kekuewa Kikiloi, Rebirth of an Archipelago: Sustaining a Hawaiian Cultural Identity for People and Homeland, 6 Hūlili: Multidisciplinary Rsch. on Haw. Well-Being 73, 82–83 (2010).

         [26].     The Kumulipo: A Hawaiian Creation Chant, supra note 24, at 55–57.

         [27].     Daws, supra note 22; Rice v. Cayetano, 528 U.S. 495, 500 (2000) (describing a feudal land system where “[i]n Cook’s time the islands were ruled by four different kings, and intra-Hawaiian wars could inflict great loss and suffering. Kings or principal chieftains, as well as high priests, could order the death or sacrifice of any subject”).

         [28].     Suzanne Romaine, Signs of Identity, Signs of Discord: Glottal Goofs and the Green Grocer’s Glottal in Debates on Hawaiian Orthography, 12 J. Linguistic Anthropology 189, 190 (2002); Lucas, supra note 21, at 2.

         [29].     See Daws, supra note 22, at 66–67, 124–28.

         [30].     King Kamehameha III enacted this change in land tenure under the advisement of his predominantly Euro-American counselors. This process resulted in the division of land into three categories: crown lands of the mōʻī (sovereign, monarch), government lands of the lesser aliʻi (chief, ruler), and common lands of the makaʻainana (common people). Jonathan Kay Kamakawiwoʻole Osorio, Dismembering Lāhui: A history of the Hawaiian nation to 1887 46 (2002); Leandra Swanner, Instruments of Science or Conquest? Neocolonialism and Modern American Astronomy, 47 Hist. Studs. Nat. Scis. 293, 294 n.5 (2017).

         [31].     The Alien Land Law of 1850 allowed non-citizen residents to file land ownership claims and purchase land for the first time. Osorio, supra note 30, at 63.

         [32].     See generally Scott Fisher, Hawaiian Culture and Its Foundation in Sustainability, in Thinking Like an Island: Navigating a Sustainable Future in Hawaiʻi 7 (Jennifer Chirico & Gregory S. Farley eds., 2015) (discussing the foundations of Hawaiian sustainability as rooted in an island worldview which centers the interdependence and sacredness of all life).

         [33].     Traditional Hawaiian society operated on strict kapu (rules). These rules determined times for planting and harvesting (based on lunar phases and other natural phenomena), rest and work (the Makahiki), and war and peace (the seasons of Kū and Lono), as well as protocol for entering spaces (which varied depending on the type of room one was entering) and eating (men and women did not eat in the same building). These rules also kept the social hierarchy intact. Broadly, this structure consisted of three classes: aliʻi (chiefs), kahuna (priests), and makaʻainana (common people). Kapu surround protocol of makaʻainana in the presence of aliʻi (such as bowing and averting one’s eyes), where makaʻainana could fish (certain ponds were reserved strictly for upper classes), and what aliʻi of different rankings could wear (only the most senior could wear capes or helmets adorned with yellow feathers, as this was the rarest color). See Stephenie Seto Levin, The Overthrow of the Kapu System in Hawaii, 77 J. Polynesian Soc’y 402, 407–14 (1968); Linda Wedel Greene, Chapter I: Before the Written Record, in A Cultural History of Three Traditional Hawaiian Sites on the West Coast of Hawaiʻi Island (1993).

         [34].     See Warschauer, supra note 2, at 350; J. Christopher Gillam, Going Polynesian in Hawaiʻi: Natural and Cultural Landscapes of the Big Island, 17 Legacy 26, 27–28 (2013).

         [35].     In 1834, Ka Lama Hawaiʻi became the first newspaper published in ʻōlelo Hawaiʻi. By the 1920s, nearly one hundred different Hawaiian newspapers had existed or were still in existence. See Karen Louise “Kealohakuʻulei” Finneran-Swatek, Pehea ka no’ono’o? Transitional Experiences of Hawaiian Language Immersion School Graduates Moving into Higher Education 6 (Aug. 2012) (Ph.D. dissertation, University of Hawaiʻi at Mānoa) (on file with the University of Hawaiʻi Library); Eric Kapono, Hawaiian Language Revitalization and Immersion Education, 112 Int’l J. Soc. Language 121, 124 (1994).

         [36].     “[I]n 1890, 79.8% of Hawaiians and 83.1% of part-Hawaiians were literate; and in 1910, 95.3% and 98.6% were literate, compared to 96.5% of Haoles, 67.7% of Chinese, and 65.0% of Japanese.” Kapono, supra note 35, at 124 (italics in original); see also Rebecca J. I. Luning, The Effects of a Hawaiian Immersion Program on Student and Family Development 15 (2007) (unpublished M.A. thesis, University of Hawaiʻi at Mānoa) (on file with the University of Hawaiʻi Library) (highlighting that “[b]y the 1850s, it was reported that every Hawaiian adult was able to read and write in their native language”).

         [37].     See Jocelyn Linnekin, Statistical Analysis of the Great Māhele: Some Preliminary Findings, 22 J. Pac. Hist. 15, 27–28 (“It was not illiteracy, naïvete, or deception that kept many commoners from filing claims. Fundamentally different understandings of rights in land are clearly evident in the process of the Māhele. Claims were frequently filed on behalf of an extended-family household group.”); see also Osorio, supra note 30, at 46 (“Historians and economists have concluded that the Mahele, whether a huge political fiasco or a devious theft, disinherited the vast majority of the kānaka.”). Indeed, many have taken to dropping the colloquial misnomer of “Great” in favor of simply referring to the event as “the Māhele” “because it proved to be such a terrible disaster for the Hawaiian people, and the word ‘great’ has a connotation of superior.” Lilikalā Kame’eleihiwa, Native Land and Foreign Desires: Pehea Lā E Pono Ai? 8 (1992).

         [38].     Estimates put this decline from approximately 300,000­–400,000 Native Hawaiians in 1778 to roughly 57,000 in 1866. Andrade, supra note 11, at 97 (citing David E. Stannard, Before the Horror: The Population of Hawaii on the Eve of Western Contact xvi, 3–5 (1989)).

         [39].     The 1890 McKinley Act removed duty for sugar imports from other countries into the United States and negated the previous advantage held by Hawaiʻi sugar plantation owners from the Reciprocity Treaty of 1876, which provided for duty-free import of agricultural products from Hawaiʻi. See Sumner J. La Croix & Christopher Grandy, The Political Instability of Reciprocal Trade and the Overthrow of the Hawaiian Kingdom, 57 J. Econ. Hist. 161, 181–82 (1997).

         [40].     See id. at 161, 185–87.

         [41].     See Huanani-Kay Trask, The Birth of the Modern Hawaiian Movement: Kalama Valley, Oʻahu, 21 Haw. J. Hist. 126, 130 (1987).

         [42].     The Provisional Government was led by Sanford B. Dole, a descendant of the missionary community in Hawaiʻi and citizen of the former Kingdom. Poka Laenui, The Rediscovery of Hawaiian Sovereignty, 17 Am. Indian Culture & Rsch. J. 79, 79 (1993).

         [43].     See Dorothy Aguilera & Margaret D. LeCompte, Resiliency in Native Languages: The Tale of Three Indigenous Communities’ Experiences with Language Immersion, 46 J. Am. Indian Educ. 11, 13 (2007); Luning, supra note 36, at 15; Finneran-Swatek, supra note 35, at 6–7; Kapono, supra note 35, at 125–26.

         [44].     See Lucas, supra note 21, at 8 (quoting the Reverend McArthur) (“The present generation will generally know English; the next generation will know little else. Here is an element of vast power in many ways. With this knowledge of English will go into the young American republican and Christian ideas; and as this knowledge goes in, kahunaism, fetishism and heathenism generally will largely go out.” (emphasis in original)).

         [45].     See William H. Wilson & Kauanoe Kamanā, “For the Interest of the Hawaiians Themselves”: Reclaiming the Benefits of Hawaiian-Medium education, 3 Hūlili: Multidisciplinary rsch. on Haw. well-being 153, 154–55 (2006) (noting that children were under constant surveillance and “[d]escriptions of physical and psychological punishment for speaking Hawaiian in public schools and in the Supreme Court–controlled private Kamehameha Schools are commonly found in oral histories”); Ka’ano’i Walk, “Officially” What? The Legal Rights and Implications of ‘Ōlelo Hawaiʻi, 30 U. Haw. L. Rev. 243, 249 (2007) (“The effect of the law of 1896 and corporal punishment, ‘social sanctions,’ in school brought results as if the language had been banned. ‘Ōlelo Hawaiʻi was ‘strictly forbidden anywhere within schoolyards or buildings.’ . . . ʻŌlelo Hawaiʻi speaking teachers were sent to homes where ʻōlelo Hawaiʻi was spoken to chastise parents for speaking to their children in their native tongue.”).

         [46].     See Walk, supra note 45, at 250; Kapono, supra note 35, at 126.

         [47].     Aguilera & LeCompte, supra note 43, at 14. Niʻihau is privately owned by the Robinson family and was able to preserve its Hawaiian language-use through its isolationist policies. No one from the outside is allowed to enter unless given express permission by the family. The Hawaiian families living on Niʻihau still use ʻōlelo Hawaiʻi as their primary language. See Matthias Brenzinger & Patrick Heinrich, The Return of Hawaiian: Language Networks of the Revival Movement, 14 Current Issues Language Plan. 1, 7 (2013).

         [48].     See, e.g., Michelle Sotero, A Conceptual Model of Historical Trauma: Implications for Public Health Practice and Research, 1 J. Health Disparities Rsch. & Prac. 93, 100 (2006) (describing the cyclical trauma that ensues after widespread “loss of culture and language” or “experiences of discrimination, injustice, poverty, and social inequality”).

         [49].     See Onowa McIvor, Indigenous Language Revitalization and Applied Linguistics: Parallel Histories, Shared Futures?, 40 Ann. Rev. Applied Linguistics 78, 88–89 (2020) (finding language is a major aspect of both individual and group identity); Claire Keiko Martin Townsend, Impacts of Hawaiian Language Loss and Promotion via the Linguistic Landscape 2 (Aug. 2014) (DrPH dissertation, University of Hawaiʻi at Mānoa) (on file with the University of Hawaiʻi Library) (noting that language loss increases antisocial behavior and engenders a sense of both collective and individual deprivation).

         [50].     See Luning, supra note 36, at 16; Finneran-Swatek, supra note 35, at 8.

         [51].     Inspired by the 1971 Alaska Native Claims Settlement Act, “which provided Alaska Natives with title to approximately forty million acres of land and a nearly one billion dollar cash settlement in exchange for their extinguishment of all claims against the government and the revocation of any existing Native reserves,” the Aboriginal Lands of Hawaiian Ancestry (“ALOHA”) sought a one-billion-dollar cash settlement from the federal government. Andrade, supra note 11, at 110–11.

         [52].     George S. Kanahele, Hawaiian Renaissance 17, 18 (1982).

         [53].     See Andrade, supra note 11, at 104.

         [54].     Sharon K. Hom & Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA L. Rev. 1747, 1760 (2000).

         [55].     See Andrade, supra note 11, at 103–04.

         [56].     See id. at 120 (citing 1978 Proceedings Volume I, supra note 19, at vii) (“[O]nly seven of the 102 delegates had held political office; there were thirty women compared with seven women ten years earlier; and almost half of the delegates were under thirty-four years old.”).

         [57].     Haw. Const. art. XV, § 4.

         [58].     Haw. Const. art. X, § 4.

         [59].     Comm. of the Whole Rep. No. 12 in I Proceedings, supra note 19, at 1016.

         [60].     See, e.g., State of Hawaiʻi, Proceedings of the Constitutional Convention of Hawaiʻi 1978, Volume II, at 427–30 (1980) [hereinafter 1978 Proceedings Volume II].

         [61].     See 1978 Proceedings Volume I, supra note 19, at 637.

         [62].     Id. at 644.

         [63].     The State has distinct legal definitions for “Native Hawaiians” and “native Hawaiians”: the former refers to all individuals of Hawaiian ancestry, while the latter refers only to those with at least 50 percent Hawaiian blood. Appendix, OHA Data Book (2021), https://www.ohadatabook.com/go_appendix.21.html [https://perma.cc/R86P-Q3QW].

         [64].     See 1978 Proceedings Volume I, supra note 19, at 646 (stating that creating OHA would recognize “the right of native Hawaiians to govern themselves and their assets by their assumption of the trust responsibility imposed on the State to better their condition”).

         [65].     See 528 U.S. 495, 522 (2000).

         [66].     See Wilson & Kamanā, supra note 45, at 173–74; Andrew Cowell, The Hawaiian Model of Language Revitalization: Problems of Extension to Mainland Native America, 218 Int’l J. Socio. Language 167, 170–72 (2012).

         [67].     See Our History, ‘Aha Pūnana Leo, https://www.ahapunanaleo.org/history-hl-1 [https://perma.cc/CSM8-EX3M] (last visited Apr. 26, 2024) [hereinafter Pūnana Leo Timeline].

         [68].     As opposed to learning it as a secondary or “foreign” language.

         [69].     Pūnana Leo Timeline, supra note 67.

         [70].     Kula Kamaliʻi, ‘Aha Pūnana Leo, https://www.ahapunanaleo.org/kula-kamalii-1 [https://perma.cc/YHB9-XR7S] (last visited Jul. 22, 2024).

         [71].     Hawaiian Language Immersion Program, Haw. State Dep’t of Educ. https://www.hawaiipublicschools.org/TeachingAndLearning/StudentLearning/HawaiianEducation/Pages/translation.aspx [https://perma.cc/UQA6-U9DR] (last visited Mar. 1, 2024) (“At urging of parents concerned with the need to extend Hawaiian language education for their keiki matriculating from the Pūnana Leo Hawaiian language immersion private preschools, [the Hawaii Department of Education] began implementation of the HLIP pilot programs.”).

         [72].     See id.

         [73].     See Wilson & Kamanā, supra note 45, at 164.

         [74].     This includes the Hawaiian language program offered at the University of Hawaiʻi.

         [75].     In Our Way; Expanding the Success of Native Language and Culture-Based Education, Hearing Before the Comm. on Indian Affs., 112th Cong. 7, 8 (2011) (statement of Namaka Rawlins).

         [76].     Haw. State Data Ctr., Detailed Languages Spoken at Home in the State of Hawaii 8 (2006) [https://perma.cc/6L3W-9YGQ].

         [77].     “In 1993, there is one native speaking community of 230 living on the privately-owned and restricted island of Niʻihau, approximately 200 from Niʻihau living on the island of Kauaʻi, and another estimated 750 native speakers, all over the age of 60 years.” Kapono, supra note 35, at 122.

         [78].     Matsuda, supra note 20, at 324.

         [79].     See Hom & Yamamoto, supra note 54, at 1757–60.

         [80].     Rebecca Tsosie, Engaging the Spirit of Racial Healing Within Critical Race Theory: An Exercise in Transformative Thought, 11 Mich. J. Race & L. 21, 22 (2005).

         [81].     Critical race theory is a successor to the field of critical legal studies (“CLS”). CLS emerged as a countermovement to the traditional conception of the law as an objective, apolitical field. The central message of CLS is that “legal ideals are manipulable and that law serves to legitimate existing maldistributions of wealth and power.” Matsuda, supra note 20, at 327. Critical race theorists added to this theory the “recognition of how race and racial inequality were reproduced through the law.” Janel George, A Lesson on Critical Race Theory, Am. Bar Assoc. (Jan. 11, 2021), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/civil-rights-reimagining-policing/a-lesson-on-critical-race-theory/ [https://perma.cc/8YYY-J9P6].

         [82].     Matsuda, supra note 20, at 324.

         [83].     Id. at 379.

         [84].     Id. at 325.

         [85].     See, e.g., id. at 394–95 n.289 (discussing how Kānaka concepts of land and landownership are distinct from Western conceptions of property, and legal remedies for loss of land are thus not properly constituted under the Western legal doctrine of property damage).

         [86].     Id. at 338.

         [87].     See id. at 339.

         [88].     Korematsu v. United States, 323 U.S. 214 (1944).

         [89].     See Matsuda, supra note 20, at 339.

         [90].     Id. at 341.

         [91].     Id. at 340–41.

         [92].     See infra Part I.B. (discussing the 1978 Constitutional Convention and the Hawaiian Affairs Package constitutional articles).

         [93].     Expressions of “cultural sovereignty” can include “regaining lands, reclaiming customary practices, and restoring language fluency.” MacKenzie, supra note 7, at 657.

         [94].     Matsuda, supra note 20, at 341.

         [95].     Id. at 362.

         [96].     Id. at 381.

         [97].     Id. at 373–74.

         [98].     Id. at 374.

         [99].     See id. at 374–80.

      [100].     See id. at 380–85.

      [101].     Metrics that could be imagined (and have been used) include measuring the individual’s “Hawaiian-ness” (blood quantum, engagement with cultural practice, lifestyle), socioeconomic status (where poverty and lack of land ownership are traced as effects of the overthrow), or the political position of the individual’s Hawaiian ancestors at the time of the overthrow (a “proof of loyalty” test). Each of these are problematic for a number of reasons, including that they do not reflect a Native Hawaiian perspective on Hawaiian identity. Id. at 375. Unlike federally recognized Tribes on the continent, which have the power to determine their own membership criteria and have a corresponding discrete set of members, Native Hawaiians do not have a federally recognized governing body and thus do not have a legally recognized self-selection criterion. See supra note 15and accompanying text.

      [102].     Matsuda, supra note 20, at 377.

      [103].     See Saba Behjati Kam, Kawailehua K. Paikai, J.T. Kala’iokamanu Carreiro & Dula F. Pacquiao, Sociohistorical Perspective on Health Vulnerability of Native Hawaiians, 9 J. Nursing Prac. Applications & Revs. Rsch. 28, 30–31 (2019) (discussing the social and historical forces that have contributed to long-standing vulnerabilities for Native Hawaiians, namely poor health, rampant poverty and unemployment, and low educational achievement); George S. Kanahele, Current Facts and Figures About Hawaiians 8 (1982) (life expectancy); id. at 9 (infant mortality); id. at 12 (diseases); id. at 13 (suicide); id. at 21 (arrests); id. at 35 (income); see also Native Haw. Study Comm’n, Report on the Culture, Needs and Concerns of Native Hawaiians Vol. 1 33–145 (1983) (acknowledging Hawaiians’ low rank in education, health, housing statistics) [https://perma.cc/J994-HNCM]; Interview with Sam Slom, in Hawaiian Reparations: Three Points of View, Ka Wai Ola O OHA, 1 (1986) (remarks of Senator Inouye, citing “the largest number of dropouts, the highest incidence of diseases, whether it be cancer or Hansen’s disease, the lowest number of college graduates, the lowest number of professionals — they’re all native Hawaiians”) [https://perma.cc/AAB3-VESE].

      [104].     See Matsuda, supra note 20, at 377.

      [105].     Id. at 376. Historical treatment as a group is especially important for this self-identification because it lays the groundwork for placement of the group at the bottom of the socioeconomic hierarchy built on white dominance. Their positioning as the “bottom” group then gives rise to discrimination and identifiable collective group damage. See id. at 380.

      [106].     Id. at 379.

      [107].     Id. at 376.

      [108].     Id. at 379.

      [109].     See id. at 381 (“[T]he sins of the past should not forever burden the innocent generations of the future, nor should the consequences of one false step create disproportionate fault into eternity.”).

      [110].     Id. at 382.

      [111].     Id. Matsuda describes the boundary of liability as a policy decision influenced by ideas of what justice requires in a given situation and constrained by concerns of administration and convenience. See id. at n.244.

      [112].     See id. at 382–83.

      [113].     Sean A. Berman, Collective Memory, Criminal Law, and the Trial of Derek Chauvin, 72 Duke L. J. 481, 482 (2022).

      [114].     Hom & Yamamoto, supra note 54, at 1760.

      [115].     Id. at 1759.

      [116].     See id. at 1758.

      [117].     See id. at 1765 (“The construction of collective memory implicates power and culture. Action on justice claims often turns on which memories are acknowledged by decisionmakers.”).

      [118].     See Berman, supra note 113, at 487–88.

      [119].     Id. at 488.

      [120].     Such as legislatures and Constitutional Conventions. Andrade, supra note 11, at 92.

      [121].     Id. at 92.

      [122].     See generally Gregory Kane, Why the Reparations Movement Should Fail, 3 U. Md. L.J. RaceRelig. Gender & Class 189 (2003) (arguing against reparations); Institute of Politics at Harvard Kennedy School, Reparations for Black Americans: Radical or Routine?, YouTube (Feb. 18, 2022), https://www.youtube.com/watch?v=HyUAg0_Gtpc&embeds_euri=https%3A%2F%2Fiop.harvard.edu%2F&embeds_origin=https%3A%2F%2Fiop.harvard.edu&feature=emb_imp_woyt [https://perma.cc/B4HJ-QV88] (arguing that the US has both the means and responsibility to compensate Black Americans for slavery-related and racial harms).

      [123].     See Matsuda, supra note 20, at 387 (“Whatever the form and administration of an award, the choice does not necessarily belong to the perpetrators.”).

      [124].     Id. at 387 n.264 (“A Rafu Shimpo poll of Japanese-Americans indicated that 90% of respondents favor monetary redress.”).

      [125].     See id. at 387.

      [126].     See id. at 396.

      [127].     See id. at 387.

      [128].     Andrade, supra note 11, at 94.

      [129].     Matsuda, supra note 20, at 397.

      [130].     Id. at 390.

      [131].     145 Hawaiʻi 69 (2019).

      [132].     Haw. Const. art. X, § 4.

      [133].     The Legacy of Clarabal v. the Department of Education, Native Haw. Legal Corp. (Feb. 23, 2024), https://nativehawaiianlegalcorp.org/the-legacy-of-clarabal-v-the-department-of-education/ [https://perma.cc/K7V3-YLNA].

      [134].     Clarabal, 145 Hawaiʻi at 77. The sixth largest of the eight main Hawaiian islands, Lānaʻi is part of Maui County and has a permanent population of roughly 3,300 residents. Lanai CCD, Maui County, Hawaii, Census Rep. https://censusreporter.org/profiles/06000US1500992070-lanai-ccd-maui-county-hi/ [https://perma.cc/38AP-3XGW] (last visited Aug. 6, 2024). There is one school on the island, Lānaʻi High and Elementary School, which serves all children grades K-12. Lānaʻi High and Elementary School, https://lanaihighandelementaryschool.org/ [https://perma.cc/WV9W-RNXT].

      [135].     Clarabal, 145 Hawaiʻi at 77.

      [136].     Id.

      [137].     Id.

      [138].     Id.

      [139].     An early community meeting to discuss the issue attracted considerable interest, with over one hundred people in attendance. Id. at 76.

      [140].     Id.

      [141].     Id. at 77.

      [142].     Id.

      [143].     Id. at 76–77. Additionally, general staffing shortages at the school resulted in neither daughter’s standard (non-immersion) classes having a permanent teacher. Consequently, the vice-principal and other substitutes were recruited to teach those classes on a temporary basis. Id.

      [144].     Id. at 76.

      [145].     Id. at 76–77.

      [146].     Id. at 77.

      [147].     Id.

      [148].     Id.

      [149].     Clarabal was represented by Sharla A. Manley, Camille Kaimālie Kalama, and David Kaulia Kopper, all Kānaka attorneys from the Native Hawaiian Legal Corporation (NHLC), a non-profit law firm dedicated to representing Native Hawaiians in legal disputes over land rights, use of natural resources, sovereignty, and other such issues in Hawaiʻi. NHLC was founded in 1974, during the Hawaiian Renaissance. See About Us: Mission, Vision, Values, & History, Native Haw. Legal Corp., https://www.nativehawaiianlegalcorp.org/history [https://perma.cc/FUX4-22MY] (last visited Apr. 26, 2024).

      [150].     Clarabal, 145 Hawaiʻi at 77–78. Clarabal also alleged violations of a number of other constitutional provisions, including providing a statewide system of public schools under article X, section 1 (by “fail[ing] to address the teacher shortage and provide instruction in ʻōlelo Hawaiʻi”); protection of traditional and customary Native Hawaiian rights under article XII, section 7 (speaking ʻōlelo Hawaiʻi being one such right which the State neglected to protect when it failed to “provide a Lānaʻi-based immersion program or to account for the costs of an immersion education when allocating funding violated the State’s duty to protect such rights”); due process under article I, section 5 (under which the children have a “fundamental right to an adequate public school education” that was denied when the State failed to “maintain a stable teacher workforce at Lānaʻi School”); and equal protection under article I, section 5 (due to the “disparate negative impact” of the high teacher turnover rate on children living on Lāna’i). Id. at 78 n.20.

      [151].     Id. at 78 (internal citations omitted).

      [152].     Id. at 77.

      [153].     Id. at 78.

      [154].     Id. (citing 1978 Proceedings Volume I, supra note 19, at 637–38).

      [155].     All public school students in Hawaiʻi are required take courses on Hawaiian history and culture, including “Pre-Contact Hawaiʻi History,” also referred to as Hawaiiana, in fourth-grade, “History of the Hawaiian Kingdom” in seventh-grade, and “Modern Hawaiian History” in high school. Id. at 76.

      [156].     Id. at 78.

      [157].     Circuit Court is the trial court in the Hawaiʻi State court system. Circuit Courts, Haw. State Judiciary, https://www.courts.state.hi.us/courts/circuit/circuit_courts [https://perma.cc/K326-K68E] (last visited Apr. 26, 2024).

      [158].     Haw. Const. art. X, § 4.

      [159].     Clarabal, 145 Hawaiʻi at 79.

      [160].     Id. On appeal, the petitioner may file for transfer from the Intermediate Court of Appeals to the Supreme Court if the case meets certain criteria outlined in Haw. Rev. Stat. § 602-58 (West 1979).

      [161].     Id. at 71.

      [162].     Id.

      [163].     Recktenwald, C.J., filed an opinion concurring in the judgment. Nakayama, J., filed an opinion concurring in part and dissenting in part.

      [164].     Clarabal, 145 Hawaiʻi at 71.

      [165].     See id. at 70–71 (“[The Hawaiian language] was utilized not only for practical communication in daily life, but also to express and preserve . . . knowledge that connected Native Hawaiians with each other and their ancestors through a shared cultural identity. This common link was nearly severed as a result of Western colonialism, which sought to impose English as the exclusive medium of communication as part of a larger effort to forcefully assimilate the Hawaiian people.”).

      [166].     See infra Part II.B.1.

      [167].     Clarabal, 145 Hawaiʻi at 71.

      [168].     Id. at 73 (“[I]n 1893 a group of ‘American and European sugar planters, descendants of missionaries, and financiers’ conspired with the United States Minister to cause the invasion of United States armed forces, ultimately ‘depos[ing] the Hawaiian monarchy and proclaim[ing] the establishment of a Provisional Government.’”) (quoting S.J. Res. 19, 103d Cong. (1993) (enacted)).

      [169].     See, e.g., id. at 73 (labeling Section A.2 of their analysis as “Post-Overthrow Suppression”).

      [170].     Id.

      [171].     Cultural genocide includes extermination of language and cultural identity. See Lindsey Kingston, The Destruction of Identity: Cultural Genocide and Indigenous Peoples, 14 J. Hum. Rts. 63, 65–66 (2015) (describing cultural genocide as the destruction of “specific characteristics of [a] group,” including “language, religious practices and objects, traditional practices and ways, and forms of expression”).

      [172].     Clarabal, 145 Hawaiʻi at 71.

      [173].     Id. at 71–72.

      [174].     See Lucas, supra note 21, at 1–2.

      [175].     MacKenzie, supra note 21.

      [176].     S.J. Res. 19, 103d Cong. (1993) (enacted). The Resolution was introduced by Kanaka Senator Daniel Akaka and was heavily shaped by Kānaka contributors, which resulted in the first formal acknowledgement by the federal government of the United States’ role in the overthrow of the Hawaiian Kingdom.

      [177].     Clarabal’s great-grandmother was fluent in ʻōlelo Hawaiʻi, but she discouraged her daughter (Clarabal’s grandmother) from speaking it or teaching it to her children. In the span of three generations, the language was lost. Clarabal, 145 Hawaiʻi at 77.

      [178].     See id. at 82.

      [179].     See id. at 73, 82 (quoting 1978 Proceedings Volume II, supra note 60, at 429) (one Constitutional Convention delegate described how his father was “made to do detention . . . pulling weeds” if caught speaking ʻōlelo Hawaiʻi).

      [180].     Precedent establishes that “the fundamental principle in interpreting a constitutional provision is to give effect to that intent.” Id. at 80 (citing Hirono v. Peabody, 81 Hawaiʻi 230, 232 (1996)).

      [181].     See, e.g., id. at 81 (emphasis in original) (quoting 1978 Proceedings Volume I, supra note 19, at 637) (“The report states that the ‘Committee decided to adopt this amendment to the Constitution in order to insure that there is a comprehensive Hawaiian education program consisting of language, culture and history as part of the regular curriculum of the public schools.’”).

      [182].     Id. at 82.

      [183].     Id.

      [184].     Id. (citing 1978 Proceedings Volume I, supra note 19, at 637).

      [185].     The court noted its use of “‘revive’ to mean that the language is actively spoken and no longer in danger of extinction.” Id. at 82 n.28.

      [186].     Id. at 82 (emphasis added).

      [187].     See infra Part I.B.

      [188].     The Hawaiian Affairs Committee was “unanimously and strongly of the opinion that people to whom assets belong should have control over them.” 1978 Proceedings Volume I, supra note 19, at 644–45.

      [189].     Id. at 644.

      [190].     See Lisset M. Pino, Colonizing History: Rice v. Cayetano and the Fight for Native Hawaiian Self-Determination, 129 Yale L.J. 2574, 2597 (2020).

      [191].     Id. (quoting Curt Sanburn, OHA: The Beginning—Part One, KA WAI OLA O OHA, Apr. 1991, at 13 (1991)).

      [192].     Rice v. Cayetano, 528 U.S. 495, 499 (2000).

      [193].     Id. at 510. Rice additionally argued that Hawaiians could not avail themselves of the quasi-political classification that was excepted from strict scrutiny under Morton v. Mancari, 417 U.S. 535 (1974) because they are not a formally recognized “Indian tribe.” Id. at 553–55; see also Pino, supra note 190, at 2580–85 (discussing the Court’s reasoning around three core arguments of the case related to beneficiary status, “Hawaiian” as a proxy for race, and the federal definition of Native Hawaiian in comparison to tribal membership).

      [194].     Pino, supra note 190, at 2578.

      [195].     Andrade, supra note 11, at 131.

      [196].     See, e.g., Fuchs, supra note 22; Ralph S. Kuykendall, The Hawaiian Kingdom (Vol. 1 1938) (Vol. 2 1953); (Vol. 3 1967); Daws, supra note 22.

      [197].     Hom & Yamamoto, supra note 54, at 1775.

      [198].     See Rice, 528 U.S. at 524 (describing the process of Hawaiian colonization as “the culture and way of life of a people . . . all but engulfed by a history beyond their control”).

      [199].     See Hom & Yamamoto, supra note 54, at 1772 (“Nor did the main opinion recognize that colonial powers often used race to legitimate conquest, denigrating in racial terms those colonized. The opinion even failed to mention [W]hites or Caucasians, although [W]hite racism was central to much of recorded Hawaiian history and Rice’s claim was implicitly one of ‘reverse discrimination’ against [W]hites.”).

      [200].     See id.

      [201].     See id. at 1773; Pino, supra note 190, at 2587–88.

      [202].     Pino, supra note 190, at 2600.

      [203].     Clarabal v. Dep’t of Educ., 145 Hawai’i 69, 70 (Haw. 2019) (citing Shari Nakata, Language Suppression, Revitalization, and Native Hawaiian Identity, 2 Chap. Diversity & Soc. Just. F. 14, 15 (2017)).

      [204].     Matsuda, supra note 20, at 398.

      [205].     Pukui, supra note 2, at 209.