Abstract

Excerpted From: Stephanie Spear, E Ola Mau Ka ' Lelo Hawai'i: Language Revitalization, Reparations, and the Courts, 112 California Law Review 2135 (December, 2024) (205 Footnotes) (Full Document)

I ka ' lelo n ke ola, i ka ' lelo n ka make.

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

This ' lelo no'eau (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. 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. In 1985, it seemed almost certain that Knaka Maoli (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 ' lelo Hawai'i (the Hawaiian language) fluently. Once the language of commerce, politics, and daily life in the Hawaiian Kingdom, the use of ' lelo Hawai'i rapidly declined following the forceful overthrow of the monarchy and the subsequent ban of the language in all public schools. It was not until the 1970s, after Hawai'i's statehood and nearly eighty years of de jure language suppression, that the revitalization of ' lelo Hawai'i began. This revitalization, largely facilitated by the development of Hawaiian immersion schools, has functioned as a key component of the Hawaiian cultural renaissance 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 ' lelo Hawai'i as an official language of the State. 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. 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.

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. 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, died in Congress in four consecutive legislative sessions. 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 Knaka and ultimately took actions which were not only unhelpful but actively harmful to the Hawaiian community.

The Hawai'i Supreme Court's recent decision in Clarabal v. Department of Education, 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. 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." 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." 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 Hawai'i 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. ""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, 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 Hawai'i'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 Hawai'i'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.

[. . .]

Language roots us in our culture, our genealogies, and our worldviews. The Hawai'i 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."

For Knaka 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." By ""looking to the bottom" to adopt Hawaiians' narrative of past injustice, the Clarabal court was able to take reparative action towards revitalizing " lelo Hawai'i.

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:

'A'ohe pu'u ki'eki'e ke h 'Ba'D 'ia e pi'i

No cliff is so tall that it cannot be scaled.

Glossary

akua

god(s), deity(ies)

aloha

love, affection, greetings (hello, goodbye)

ali'i

chief, ruler

oli

chant that was not danced to

haole

foreigner, Caucasian person

kalo

taro

Knaka Maoli

Native Hawaiians (plural)

Knaka

plural and shortened form of Kanaka Maoli, Native Hawaiian persons

kuleana

right, privilege, concern, responsibility

kpuna

ancestors, elders, plural: kpuna

lhui

nation, race, tribe, people

maka'inana

common people

mele

song, anthem, chant of any kind

mo'okBu'auhau

genealogical successions

m 'i

sovereign, monarch

'ina

land, earth, that which feeds

'ohana

family

' lelo Hawai'i

Hawaiian language

' lelo no'eau

proverb, wise saying

J.D. 2024, University of California, Berkeley, School of Law.