Developments in the Law -- Unjust Enrichment. Aloha 'Āina: Native Hawaiian Land Restitution

Abstract

In 2018, the Hawai‘i Supreme Court approved a permit granting the construction of a Thirty-Meter Telescope (TMT) on top of Mauna Kea, a sacred mountain on the Big Island of Hawai‘i. Native Hawaiians raised various legal claims to defend their rights to the mountain and to block the issuance of the sublease. Unjust enrichment was an unexplored cognizable claim for the Native Hawaiian plaintiffs. This Chapter argues that unjust enrichment is a viable claim for all indigenous people in the United States arguing for the restitution of land seized during colonization. Through a discussion of Native Hawaiian history, the common law of unjust enrichment as applied to land claims by Native Americans, and the Restatement (Third) of Restitution and Unjust Enrichment as applied to the Overthrow of the Kingdom of Hawai‘i, this Chapter reimagines the Mauna Kea litigation with restitution as a remedy for the historical injustice at the root of the title to Mauna Kea.

Keywords: native hawaiian rights, Hawaiian Law, Property Law, Restitution, Unjust Enrichment, Indian Law, Private Law, Transformative Justice, Reparations