Excerpted From: Susan K. Serrano, A Social Healing Approach to Native Hawaiian Claims: Law and Resistance at Maunakea, 52 Southwestern Law Review 50 (2023) (118 Footnotes) (Full Document)


SusanKSerranoMauna a Wkea, Hawai'i's tallest mountain, is known to Knaka Maoli as the realm of the gods. It is the piko--the umbilical cord--that “ties the earth to the heavens.” And it is the site of lasting struggle against the construction of the massive Thirty Meter Telescope (TMT) atop its sacred summit. But the battle on the mountain is about much more than a single telescope. It shines a bright light on the “contested meanings of land, scientific progress, and meaningful ‘consultation’ with Indigenous communities.” And it is emblematic of the longstanding damage of U.S. colonization and unrealized reparative justice for Knaka Maoli.

After years of protest, contested case hearings, and appeals, a split Hawai'i Supreme Court in Mauna Kea II allowed the telescope's construction to proceed. In so doing, the court upheld the state Board of Land and Natural Resources' conclusion that no Native Hawaiian traditional and customary rights were exercised in the relevant area. Hawai'i's agencies are constitutionally mandated to protect Native Hawaiian rights “customarily and traditionally exercised for subsistence, cultural and religious purposes.” This obligation is part of the edifice of Hawai'i's 1978 constitutional convention amendments steeped in reparative justice principles. Convention delegates saw the damaging impacts of land confiscation, cultural destruction, and loss of self-governance on Knaka Maoli life and crafted amendments as reparative measures aimed at preserving “the small remaining vestiges of a quickly disappearing culture.” Together, the amendments “enshrine resource protection, Native Hawaiian practices, and the Public Land Trust as constitutional mandates.”

Hawai'i case law reaffirms these reparative justice values. For example, in Ka Pa'akai O Ka ‘Aina v. Land Use Commission, the Hawai'i Supreme Court articulated an analytical framework for state and county agencies to operationalize their obligation to protect Native Hawaiian rights. In short, when considering a proposed action, agencies are required to identify cultural practices and resources in the petition area, assess the proposed action's impact on those practices and resources, and determine the feasible action that must be taken to reasonably protect them. But when decision makers and courts misemploy these legal frameworks as perfunctory administrative procedures without attention to relevant context, they hinder reparative justice for Native Hawaiians. Such mechanistic approaches to Native Peoples' claims often fail to recognize lived group experiences and, as a result, fall far short of repairing group harms and restoring communities.

In Healing the Persisting Wounds, a culmination of years of work and scholarship, Eric K. Yamamoto powerfully elaborates upon and refines his Social Healing Through Justice “4R” framework to offer workable concepts and practical guidance for shaping, assessing, and recalibrating these kinds of messy and shifting reparative justice initiatives. His conceptual and pragmatic framework provides “starting points of inquiry for engaging diverse stakeholders and interested observers in a dynamic process aimed at fostering the kind of reparative justice that heals--both in launching initiatives and in later recalibrating them with an eye on comprehensive and enduring social healing through justice.” In doing so, the framework “strategically aim[s] for a converging [of] interests that is attentive to words, actions and realpolitik influences” so that the participants work to both heal the wounds of communities and repair the damage to society reflected in persisting ill-will, social divisions, and dampened productivity.

Healing the Persisting Wounds centers on the South Korea Jeju 4.3 Tragedy--the “peacetime” military destruction of Jeju islander lives and villages--and the United States' pivotal role in underlying events and its ongoing obligation to engage in social healing. The book's central theory, though, is far-reaching and illuminating, laying the foundation for guiding and assessing a wide array of domestic and international reparative initiatives.

This essay employs Yamamoto's Social Healing Through Justice framework to briefly assess the court's missed opportunity in Mauna Kea II to contextually deploy Hawai'i's laws in ways that foster reparative justice for Knaka Maoli. In doing so, it also points a way forward for engaging the laws' inquiries to address restorative justice more resonantly for Native Hawaiians. Yamamoto's 4Rs are illustrative. Recognition and responsibility entail “identify[ing] disabling constraints--the social structures of oppression and their justifications--imposed by one group upon another” and accepting responsibility for repairing the damage. Reconstruction and reparation involve remaking institutions and relationships and repairing the material harms of injustice through capacity-building for those harmed.

In the context of Mauna Kea II, these inquiries counsel Hawai'i's decision makers and courts to employ Hawai'i's laws to repair, restore, and transform, by recognizing and promoting Native Hawaiians' living, cultural practices, and by expansively and contextually addressing the impacts to those practices in ways that enliven the laws' reparatory goals. Such an approach seeks to repair the damage, not just to individuals, but to communities--culturally and environmentally--and endeavors to foster true social healing through justice for Knaka Maoli.

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Eric Yamamoto's renewed Social Healing Through Justice framework coalesces working principles into “grounded and workable means for tackling messy, conflictual yet significant, social healing initiatives.” Briefly assessing the Hawai'i Supreme Court's decision through this lens suggests that complete recognition and responsibility, meaningful reconstruction, and comprehensive reparation that genuinely heals Native Hawaiian communities are still works in progress. Of course, one court decision alone will not restructure institutions and relationships in ways that fully repair lingering harms. But when the court contextually employs reparative laws in ways that recognize historic injustice--alongside policymakers, agencies, and communities advancing concrete acts of reparative justice--transformation is possible. And Yamamoto's Social Healing Through Justice 4Rs framework powerfully offers the language, concepts, and approach for articulating, assessing, organizing around, and guiding that kind of transformative justice and social healing that both heals the wounds of communities and repairs the damage to society.

Director of Faculty Research; Professor of Law and Associate Director, Ka Huli Ao Center for Excellence in Native Hawaiian Law, William S. Richardson School of Law, University of Hawai'i at Mnoa.