Abstract

Excerpted From: Lauren Wiederkehr, Native Hawaiians and Environmental Stewardship: Reclaiming the 'Āina in the Face of a Western System, 40 Maryland Journal of International Law 215 (2025) (148 Footnotes) (Full Document)

Hawai’i has been cast as an innovator in the world of environmental law. The state constitution has a seemingly robust combination of environmental protections, including a provision guaranteeing a right to a clean and healthful environment, as well as a provision keeping the land in a public trust for native Hawaiians. Hawai’i was the first state to declare a climate emergency in 2021 by senate resolution. The Hawai’i Judiciary has sometimes shown itself to be receptive to more novel environmental protection arguments. One might expect for the combination of these legal approaches to protect indigenous interests. However, the legislative and constitutional promises of the state are not always fulfilled by state governmental actors. When Hawaiian courts are required to step in, do they always act in the best interest of Native Hawaiians?

The history of Hawai’i is fraught and marred by western colonization. Native Hawaiians are understood to be an indigenous people, yet they do not have the same guardian-ward, government-to-government status as Alaskan or Indian tribes -- which hinders the extent of Native Hawaiian self-determination in governance.

The Hawaiian legislature and court system is very active in addressing the threat of anthropogenic climate change and the duties of the state to protect natural resources for all. But the fundamental question that remains is if this activity serves to further the interests of Native Hawaiians? Are indigenous voices being heard when it comes to environmental stewardship in Hawai’i?

This comment will focus on the failures and successes of the Hawai’i judicial system in furthering the environmental and cultural interests of Native Hawaiians. The question this comment seeks to answer through these case studies is if indigenous environmental and cultural interests can persist in the face of centuries of western exploitation and influence. Some modern state supreme court decisions have worked against the interests of Native Hawaiians, and indigenous voices have responded to enforce cultural and environmental preservation. Later, cases in which the state judiciary has ruled more favorably to indigenous interests will be analyzed.

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Despite numerous legal facets that purport to protect the environmental and cultural interests of Hawai’i’s indigenous people, at times Native Hawaiians have still had to turn to means outside of the legal system to enforce their rights. Though the more favorable story would be that Native Hawaiians’ rights are considered more carefully at the outset of a legal proceeding, Native Hawaiians have still been able to leverage their voices such that their environmental and cultural interests are protected. This occurred via the protesting that led to the Kanahele result triumphing over the initial adverse decision in the Thirty Meter Telescope case.

In subsequent years, it seems as though the Hawai’i judiciary has become more receptive to this concept of protecting Native Hawaiian environmental and cultural interests from the outset. The early proceedings in the Navahine settlement case and the Sunoco case seem to signify a willingness of the judiciary to push the boundaries of environmental law in their novelty. Though we do not yet know what the outcome in the potentially precedent setting Sunoco case, it has the possibility of affecting far more than just Native Hawaiians. However, as exemplified in the MECO decision as recently as 2022, the judicial system may be too quick to defer to agencies that do not have the defense of constitutional protections at the front of mind. Ultimately, it does not appear that the western legal system can fully capture the breadth of the relationship Native Hawaiians have with the 'āina, though perhaps the judiciary is beginning to move closer to centering it.

J.D. Candidate 2026, University of Maryland Francis King Carey School of Law.