Abstract

Excerpted From: Derek H. Kauanoe, The Role of Human Rights in Advancing Justice for Native Hawaiians: Infusing Indigenous Human Rights with Kanaka Maoli Values, 47 University of Hawaii Law Review 77 (Winter 2024) (425 Footnotes) (Full Document)

Hnau ka 'ina, hnau ke ali'i, hnau ke kanaka. Born was the land, born were the chiefs, born were the common people.

He ali'i ka 'ina, he kauw ke kanaka. The land is a chief, man is her servant.

The symbiotic bond between 'ina (lands and resources), ali'i (chiefs), and the Knaka Maoli (Native Hawaiian people) is illustrated in the two ' lelo no'eau (Hawaiian proverbs) above. Chiefs and the people care for the land, which in turn provides for them, creating a state of balance or harmony that requires protection and maintenance for the benefit of all. To maintain pono (perfect order, equity, balance), Native Hawaiians ““are instilled, at birth, with particular kuleana” (privileged responsibilities, birthrights) that stem from their familial relationship to ' ina (lands and natural resources). These rights and responsibilities preserve pono and serve as a pathway for achieving restorative justice and reconciliation for Native Hawaiians.

These special relationships to 'ina, ali'i, and other Knaka (Native Hawaiian people) dictate Native Hawaiians' kuleana. They also inform how Native Hawaiians 'auamo (shoulder, carry, bear) that kuleana to each other and to the land itself, along with all its resources and elements--all of which were held in trust for future generations. Just as ali'i managed resources as trustees on behalf of the maka'inana (commoners), today, maka'inana are trustees of 'ina on behalf of future generations of Native Hawaiians. This primordial relationship between Native Hawaiians and 'ina has been preserved not only through native traditions and customs carefully perpetuated over generations, expressed as the above Hawaiian proverbs, but also, since the late-1970s, through legal provisions encoded in Hawai'i's constitution and other local laws. These protections, located in the State's constitution, embody principles of reparative justice and amount to promises to restore and protect Native Hawaiians' relationship with 'ina.

Today, the State of Hawai'i stewards, as trustee, about 1.2 million acres of Public Land Trust 'ina made up of former Kingdom Crown and Government lands. The State and its agencies are thus charged with legal kuleana to the Public Land Trust and its beneficiaries, especially Native Hawaiians. The State, however, has continually failed to fully and effectively protect Native Hawaiians' specially recognized interests in these lands. Especially given recent legislation, the mishandling of the Public Land Trust offers a poignant example of how fusing Hawaiian values with international human rights norms reveals the continuing injustice meant to be rectified by the State's constitution and local court rulings. That fusion does this by providing a framework for assessing and crafting combined efforts by Hawaiian communities, government, and the public to ensure that Native Hawaiian justice is an integral aspect of future land decisions.

During Hawai'i's 2021 legislative session, the House of Representatives and State Senate passed House Bill 499, despite overwhelming opposition by Native Hawaiians and others. Subsequently, Governor David Ige allowed House Bill 499 to become law without his signature as Act 236. Act 236 enables the Board of Land and Natural Resources (“Board” or “BLNR”) to extend the duration of certain leases of the Public Land Trust 'ina to non-Hawaiians--lands to which Native Hawaiians have had unrelinquished claims--to a total of one-hundred and five years.

The State's handling of Act 236, in the face of massive Native Hawaiian opposition, uplifts important questions for Hawai'i, its people generally, and its Indigenous population of Native Hawaiians specifically. When Act 236 became law, did the State legislative and executive branches betray the restorative justice values espoused during the 1978 Constitutional Convention? If the 1978 Constitutional Convention “defined Hawaii's political identity,” how does Act 236, and other State conduct disregarding Native Hawaiian claims, change that identity? Did the State of Hawai'i turn its back on its restorative justice commitments to advance greater Native Hawaiian self-determination and self-governance by ignoring Native Hawaiian land claims and allowing a state agency to extend leases to 'ina that an anticipated Native Hawaiian government may also claim?

Act 236 epitomizes how Hawai'i's diverse populace as a whole continues to grapple with Native Hawaiian justice issues. Moreover, there is no consensus within the Native Hawaiian community regarding the best way forward for its collective self-determination. Discourse within that community has focused largely on two options. One is a U.S. domestic option: federal recognition of a Native Hawaiian government akin to federally recognized Indigenous governments with a government-to-government relationship with the United States. Under this framework, Indian tribes also enjoy substantial autonomy from state governments surrounding them as a result of their sovereign immunity and exercise of criminal and civil jurisdiction over their territories. The other is complete independence from the United States and international recognition of a restored Hawaiian Kingdom based on a theory that the Hawaiian Kingdom continues to exist under international law. The lack of consensus and meaningful developments, however, poses another important question: how can Native Hawaiians, as an Indigenous People, protect their land claims in the absence of both federal recognition and international recognition? Moreover, how can the State of Hawai'i safeguard Native Hawaiian interests without a formal government-to-government relationship? In other words, how can Native Hawaiians and the State 'auamo their kuleana to Hawai'i's public lands and its natural and cultural resources, including Native Hawaiians' rights as Indigenous Peoples?

As Native Hawaiians contemplate how best to advance their interests, protect their rights and perfect their claims, this article examines the efficacy of their pursuit of restorative justice. It does so in part through international law, especially at a time when governments worldwide are increasingly recognizing Indigenous Peoples' rights. Notably, two United Nations member states, New Zealand and Canada, which previously voted against the United Nations Declaration on the Rights of Indigenous Peoples, are now working to infuse the Declaration into their national laws.

This article concludes that Native Hawaiians will most significantly and appropriately advance their interests as Indigenous People by infusing international human rights principles into accepted Native Hawaiian values of restorative justice and making those principles and values an explicit part of the legal framework for handling Hawai'i's lands. In doing so, Native Hawaiians can deploy human rights norms as important tools to further promote restorative justice to begin to heal from the persisting wounds of colonization. Concurrently, the State government can be encouraged-- indeed pressured-- to infuse such norms into its policies, procedures, and processes to fulfill its kuleana to Native Hawaiians and the Public Land Trust and deepen its commitments to Native Hawaiian self-determination consistent with international obligations.

This article contributes to the literature by providing a comprehensive analysis of Hawai'i's Act 236 through the lens of Indigenous values of restorative justice--mo'omeheu (cultural integrity), 'ina (land and natural resources), mauli ola (social determinants of health and well-being), and ea (self-governance or autonomy). It uniquely integrates restorative justice principles with international human rights frameworks, highlighting the necessity of balancing legal formalism with contextual understanding to protect Native Hawaiians' rights to lands and resources. By drawing parallels with human rights instruments, human rights bodies, and landmark cases from the Inter-American Human Rights system, the article underscores the importance of Indigenous Peoples' rights to their lands, legal recognition of those rights, and the physical protection of Indigenous territories, lands, and resources. This approach not only enhances the understanding of Act 236's implications but also offers a robust template for evaluating similar legislative measures globally, providing a resource for policymakers, legal scholars, and advocates of Indigenous rights.

To this end, in Part II, this article deconstructs relevant Native Hawaiian history, highlighting the origin of Hawai'i's public lands and the Public Land Trust. This part also shows the unique status of Native Hawaiians in the State of Hawai'i, and highlights some of the State and federal governments' efforts toward restorative justice for Native Hawaiians. Next, Part III recenters Act 236 and frames the remaining sections by deploying contextual legal analysis rooted in Maoli values and aimed toward restorative justice, rather than ““equality” in a manner that both complements and challenges traditional legal formalist analysis. Part IV situates the State's approach to public lands--to which Native Hawaiians have unrelinquished claims--within a larger global framework by identifying international human rights instruments and bodies relevant to Indigenous Peoples' restorative justice pursuits. Part V then analyzes issues surrounding Act 236 and Hawai'i's Public Land Trust in the context of international Indigenous human rights and the four Indigenous values for contextual legal analysis. Lastly, Part VI highlights local and non-local developments and identifies opportunities for the State to better fulfill its restorative justice promises to Native Hawaiians by implementing international human rights principles and protections for Indigenous Peoples into its policies and laws.

[. . .]

This article examines the implications of Act 236 on Native Hawaiian cultural integrity (mo'omeheu), land and natural resources (‘ina), social determinants of health and well-being (mauli ola), and self-governance (ea). The analysis concludes that the Act poses significant threats to principles of restorative justice for Native Hawaiians, which are embodied in Hawai'i's Constitution and elaborated upon by Hawai'i's courts. Analyzing Act 236 through these intertwined realms of contextual legal inquiry reveals significant deficiencies. Specifically, it highlights the State's mismanagement of the Public Land Trust and its failure to meaningfully consult Native Hawaiian beneficiaries. This brings us to a broader discussion on the management of public lands, incorporating international human rights standards and best practices from other jurisdictions. These broader discussions provide opportunities to contextualize Hawai'i's approach within a global framework and to explore how the principles of restorative justice can guide the State of Hawai'i in better managing the Public Land Trust for the benefit of Native Hawaiians.

The infusion of international human rights principles into legal frameworks is crucial for addressing historical injustices faced by Indigenous Communities. By incorporating international human rights standards, contextual legal analysis provides a more comprehensive understanding of justice and complements formalist analysis by ensuring that legal outcomes are aligned with global human rights norms and the specific needs and rights of Indigenous Peoples.

As described above, the U.N. Principles on Reparation provide a framework for reparations that include restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition. They emphasize the necessity of restoring victims to their previous condition before the violation occurred and ensuring that the harms suffered are adequately addressed through effective remedies. Implementing these principles involves recognizing the harm done and actively working to repair it through tangible actions. This approach is crucial for advancing restorative justice for Native Hawaiians by ensuring that their rights to land, culture, health and well-being, and self-governance are not only recognized but also protected and restored. The State of Hawai'i, by adopting these principles, can create policies and practices that ensure Native Hawaiians are consulted and their consent obtained, aligning state actions with global human rights norms and making a significant stride towards healing and justice.

Governments around the world are increasingly adopting restorative justice principles and human rights frameworks to protect Indigenous Peoples' rights to land and resources. Canada and New Zealand, for instance, are incorporating the U.N. Declaration on the Rights of Indigenous Peoples into their domestic laws. Agencies and entities within the United States are also exploring ways to consult with Indigenous Communities and obtain their consent on projects that impact them. Inter-American Human Rights system reports and decisions have required national governments to adopt “legislative, administrative, and any other measures necessary” to effectuate Indigenous Peoples' property rights and to “abstain from any acts that might lead the agents of the State itself, or third parties acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located” in the areas of the affected Indigenous Community. Directives like these, along with guidance regarding the applicability of human rights principles to Indigenous Peoples are designed to help national, state, and local governments to better implement human rights protections.

The State of Hawai'i has a unique opportunity to learn from these other instances involving Indigenous Communities, national governments, and human rights. This opportunity allows the State to reimagine state and local laws and policies that translate into substantive protections that advance restorative justice and promote healing on the ground and in Native Hawaiian Communities. Hawai'i's commitment to restorative justice is crucial as it provides a significant opportunity to operationalize international human rights norms at the local level. The State of Hawai'i is the fiduciary over Public Land Trust resources and Native Hawaiians are recognized beneficiaries. As a result of this fiduciary-beneficiary relationship, the State of Hawai'i is in a position to reevaluate its approaches to Native Hawaiian issues and re-envision a way forward that takes heed of the human rights bodies' decisions and guidance for protecting Indigenous Peoples' human rights. The State and local governments can implement guidelines, policies, processes, and procedures for protecting Knaka Maoli international Indigenous human rights in Hawai'i.

Hawai'i's State legislative and executive branches can implement consultation policies and practices with the Native Hawaiian community that actively seek to obtain their free, prior and informed consent in ways that are consistent with existing Hawai'i law and that respect international human rights norms. For example, the State of Hawai'i is already required to “protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes[.]” The Hawai'i Supreme Court gave the State a minimally-basic analytical framework for protecting those traditional and customary rights against private property interests in Ka Pa'akai. The language the court used is consistent with international Indigenous human rights principles. The court explained, “[w]e therefore provide this analytical framework in an effort to effectuate the State's obligation to protect native Hawaiian customary and traditional practices while reasonably accommodating competing private interests[.]” The court required the Land Use Commission, when reviewing district boundary reclassification petitions, to at a minimum-make specific findings and conclusions as to the following: (1) the identity and scope of “valued cultural, historical, or natural resources” in the petition area, including the extent to which traditional and customary native Hawaiian rights are exercised in the petition area; (2) the extent to which those resources-including traditional and customary native Hawaiian rights-will be affected or impaired by the proposed action; and (3) the feasible action, if any, to be taken by the LUC to reasonably protect native Hawaiian rights if they are found to exist. Recall also that the Hawai'i Supreme Court, in Flores-Case 'Ohana, reaffirmed its Ka Pa'akai holding and extended the requirement for that analytical framework to the State administrative rulemaking process.

Enhancing the Ka Pa'akai analysis to include international Indigenous human rights principles, like free, prior and informed consent, into the practices of State government agencies will transform a procedural safeguard into a more impactful process for Native Hawaiians. Consultation processes aimed at obtaining Native Hawaiians' free, prior and informed consent for decisions affecting them can enhance the fiduciary-beneficiary relationship. Such processes can also positively impact the four intertwined realms of restorative justice: mo'omeheu (cultural integrity), ‘ina, (land and resources), maoli ola (social determinants of health and well-being), and ea (self-governance). Early and meaningful consultation processes with Native Hawaiians, and Native Hawaiian entities or organizations, have the potential to include expert knowledge from Native Hawaiian cultural practitioners about how State and local policies, actions, or projects will impact Native Hawaiian cultural integrity, and provide government agencies with opportunities to revise or abandon policies, actions or projects to adequately support and restore cultural integrity. These consultations are likely to have a more positive impact on the realm of land and natural resources, primarily because of the cultural significance of lands and resources to Native Hawaiians. This approach would provide opportunities for the Native Hawaiian community, particularly Indigenous experts in Native Hawaiian land and resource management practices, to share their knowledge. Their expertise would help the State reevaluate its approach to restorative justice for Native Hawaiians and better address the historical injustices related to land and natural resources. Consultation processes, especially when there is an honest effort to obtain Native Hawaiians' free, prior and informed consent and with a goal towards restorative justice, have the potential to support greater Native Hawaiian self-determination and self-governance, including over lands and resources, by inviting Native Hawaiians early in a process that seeks to determine land usage.

In implementing Act 236, DLNR can most effectively advance restorative justice for Native Hawaiians by paying close attention to each of these four realms while developing its policies, procedures, and rules for extending current sixty-five-year leases for Public Land Trust land for another forty years. In pursuit of the State's embrace of restorative justice for Native Hawaiians, DLNR has an opportunity to implement Indigenous values based on the human rights principle of self-determination. In doing so, it can better assess whether the content and form of policies, procedures, and rules used to determine whether it will extend a sixty-five-year lease for another forty years strengthens cultural integrity for Native Hawaiians, provides some form of redress for the loss of their lands and natural resources, advances health and well-being, and more strongly supports forms of Native Hawaiian self-determination and self-governance. Alternatively, the State could also ground its “fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands” in international human rights principles. These principles, instruments, and decisions recognize Indigenous Peoples' rights to their lands and resources. The State should also “abstain from any acts that [would result in the] ... State ..., or third parties acting with its acquiescence ..., to affect the existence, value, use or enjoyment of the [lands] ....” These lands, formerly Hawaiian Kingdom Crown and Government lands, are subject to Native Hawaiians' unrelinquished claims. Therefore, the State should not extend leases on them.

The significance of the contextual analysis of Hawai'i's Act 236 extends well beyond the local context. It serves as a case study for other jurisdictions grappling with similar issues of Indigenous Peoples' land rights, cultural preservation, and self-governance. The insights gained from Hawai'i's experience can inform global efforts to implement international human rights standards and promote restorative justice for Indigenous Peoples. By examining Hawai'i's successes and challenges, other states and nations can learn valuable lessons about creating policies that recognize, restore, and protect Indigenous Peoples' rights. This broader perspective underscores the importance of integrating Indigenous values and human rights principles into public land management to foster restorative justice for Indigenous Peoples--locally and globally.

Derek H. Kauanoe, Assistant Professor of Law at the University of Hawai'i at Mnoa, William S. Richardson School of Law.