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A Story Left Untold

by Evan Gates | Fall 2019

Law professor David Forman is an expert on indigenous and environmental issues, particularly those that pertain to indigenous Hawaiians. In a short interview, he spoke on various failures of the legal system in following its duty to protect indigenous culture and rights, from cases on gathering rights to the illegal desecration of sacred lands. First documenting the past failures of abuses, we established what seemed already obvious in the shortcomings of the law for indigenous peoples. We then discussed the areas in which Hawaiʻi is beginning to make progress, before finally establishing the necessity of actively confronting injustice in order to further establish the rights of indigenous Hawaiians in a system that has left them in the dark.

2. Kimmelman, Ruben. “Hawaii's Supreme Court OKs Construction Of Giant Telescope Despite Native Objections.” NPR. November 1, 2018.

3. Watson, Trisha Kehaulani. “Civil Rights and Wrongs: Understanding Doe v. Kamehameha Schools.” Hūlili 3:1 (2006).

4. Barnes, Robert. “A priceless win at the Supreme Court? No, it has a price.” Washington Post, July 25, 2011.

5. Forman, David. “Applying Indigenous Ecological Knowledge for the Protection of Environmental Concerns: Case Studies from Hawaiʻi for the Benefit of ʻIsland Earth,’” University of Hawaiʻi Law Review 41:300 (2019).

7. Ibid., 323-330.

8. Ibid., 330-332.

The national debate over whether pineapple belongs on pizza has ravaged food enthusiasts for the past few years, pitting celebrities across all avenues to throw in their opinions. Many Hawaiians have comically watched this debate over “Hawaiian” pizza, as neither ham nor pineapple, ironically, are remotely Hawaiian in nature. Along with other innocent assumptions, these scenarios reflect a broader misunderstanding of what it means to be Hawaiian. I was fortunate to discuss the deeper topics of the issues facing indigenous Hawaiians with Professor David Forman, a Harvard ‘88 graduate himself, who is the current head of the Environmental Studies program at the William S. Richardson Law School at the University of Hawaiʻi and is a Faculty Specialist pursuing the advancement of indigenous issues for the Ka Huli Ao Center. His writings for amicus briefs, the Hawaiʻi Law Review, and various other publications have articulated the grim past in regard to the treatment of native Hawaiians that we have the chance to begin to rectify with the proper legal action. His work and our conversation highlighted the fact that the proper representation of and civil rights for native Hawaiians have severely lacked in the legal system since the absorption of Hawaiʻi to the United States.

From the banning of the native language in schools to the military’s use of the sacred island of Kahoʻolawe as target practice for bombings, Hawaiians have consistently been disregarded over the past century by the same state responsible for their protection. From gathering rights’ infringements to the failure to acknowledge legitimate land claims, these issues are still pervasive in the system. Until the last decade, in fact, native Hawaiians had not been viewed by the state as a party with unique interests at stake in most legal cases involving indigenous issues. Instead, they have been treated as members of the general public, relegating their opinions on their own cultural issues to be no different than any other opinion. As such, they were denied the right to a contested case hearing, in which groups can argue that particular rights or privileges of certain groups are being denied, informing the court for their later ruling on the issue.[1] This fundamental denial of representation helps explain the legal system’s slow journey to understand and properly litigate indigenous issues, for they were systematically denied the proper forum to articulate their views. In 2015, this was finally changed with the Mauna Kea case, as a hearing was finally granted.

The contentious case over the fate of Mauna Kea, the tallest mountain in the state with a summit that astronomers view as offering nearly unparalleled views into the cosmos, is the most current and stark of the issues. The proposed construction of the newest telescope by the Thirty Meter Telescope International Observatory (TIO) would be the largest telescope ever built in the state, but these same grounds are the most sacred lands in the Hawaiian culture, serving as the genealogical birthplace of the Hawaiian people as well as the residence of numerous gods. Such conflicting priorities have led to decades of legal action.

The legal history on this case in particular has demonstrated the lack of legal representation of native Hawaiians, Professor Forman views. Being such a contentious issue, the Hawaiʻi Supreme Court decided to take up the case before lower courts had, assuming that it would reach the court at some point anyways. The majority opinion on that case, which approved the permit to build the telescope and pushed construction forward, was issued and published before the dissent was even finished.[2] Such actions may in fact show the court was attempting to finish the process in order to meet the deadlines of the TIO. Regardless of the right decision, Professor Forman argues that Hawaiians and people in general need to feel they had a fair shake in the court system, even if they do not agree with the result, and when that trust is broken, respect for the rule of law further erodes, and the frequency of conflicts increases. Sadly, the Supreme Court did not offer Hawaiians that luxury in this case.

Other cases involving native Hawaiians are no stranger to upper courts. The Kamehameha Schools, founded in 1887 with the endowment of one of the last monarchs of the Kingdom of Hawaiʻi, Bernice Pauahi Bishop, exclusively accepts students of native Hawaiian origin. Established at a time when the culture and Hawaiians themselves were being subjugated due to oncoming Western forces, the school offered natives an opportunity to reclaim their heritage and culture. Such racially stringent application criteria have not gone without criticism, as the school has been sued numerous times over claims of racial discrimination. In Doe v. Kamehameha Schools, for instance, a non-Hawaiian student argued that he was denied entry due to his race, infringing 42 U.S.C. § 1981. After a district court ruled in favor of the school, a three judge panel overturned the ruling, but the school won the case in a narrow 5-4 decision by the Ninth District Court of Appeals in 2006. Fearing what the U.S. Supreme Court would rule, the school decided to settle in 2007 while the petitioner was in the process of appealing.[3]

Luckily, Professor Forman believes that these decisions are far from being overturned in the future. For one, he argues that the issue is largely settled at the state level court system. And with the unique history of the school and Hawaiians, it would take great action to even have a chance at affecting great change. This action would certainly, he views, have to reach the U.S. Supreme Court in order to be overturned. This process, however, can reach costs as high as $1,144,602.64.[4] Together, the high cost of litigation coupled with the state being on board with the admission policy’s legitimacy leads Professor Forman to feel that the Kamehameha Schools is largely safe for the near future.

Like many others, however, this issue is far from over, but significant progress has been made. In some areas, Hawaiʻi actually is leading the charge in terms of indigenous rights. Professor Forman’s most recent article in the University of Hawaiʻi Law Review highlights three particular sources of hope.[5] For one, subsistence fishing areas, a significant part of the conservation system in the traditional native Hawaiian land system, are being decentralized in at least 19 different localities in favor of community-based management.[6] Additionally, the approval of the ʻAha Moku Council, a new system of land management that will work with the DLNR to ensure that policies honor the ancestral past of and protect the resources of the areas with which they work, further increases the agency of indigenous Hwaiians.[7] Lastly, the Kamehameha Schools has altered its former land management policies that purely sought the maximization of profits in favor of promoting cultural education and flourishment.[8] Together, these new policies demonstrate that Hawaiʻi is slowly making progress on indigenous issues.

Each iterative step forward on these topics may require the purposeful use of confrontation, moves that put those in power and often even those who were mere witnesses in uncomfortable circumstances. Progress sometimes necessitates this temporary unease. While the rule of law is supposed to be a uniting figure, Professor Forman warned that it does not always protect all equally, as history has shown with cases like Korematsu. The path ahead, as the Mauna Kea issue demonstrates, will likely feature increasing tension and protests, forcing the state to make a decision rather than merely kicking the can down the road, an action all too familiar to Hawaiians. Hawaiians will also need to actively push for representation if they hope to reclaim parts of their culture and ultimately tell their story that has been left untold for so long.

 

REFERENCES

[1] Hrushka, Anna. “Hawaii Supreme Court says contested case not required for TMT sublease.” Pacific Business News. August 8, 2018.

[2] Kimmelman, Ruben. “Hawaii's Supreme Court OKs Construction Of Giant Telescope Despite Native Objections.” NPR. November 1, 2018.

[3] Watson, Trisha Kehaulani. “Civil Rights and Wrongs: Understanding Doe v. Kamehameha Schools.” Hūlili 3:1 (2006)

[4] Barnes, Robert. “A priceless win at the Supreme Court? No, it has a price.” Washington Post, July 25, 2011

[5] Forman, David. “Applying Indigenous Ecological Knowledge for the Protection of Environmental Concerns: Case Studies from Hawaiʻi for the Benefit of ʻIsland Earth,’” University of Hawaiʻi Law Review 41:300 (2019)

[6] Ibid., 318-323

[7] Ibid., 323-330

[8] Ibid., 330-332

1. Hrushka, Anna. “Hawaii Supreme Court says contested case not required for TMT sublease.” Pacific Business News. August 8, 2018.

6. Ibid., 318-323.