(Re)Righting History: Deconstructing the Court's Narrative of Hawai'i's Past

Abstract

In a recently published article, Chief Judge James S. Burns (retired) contends that the Hawaiian Crown Lands were owned by all the people of Hawaiʻi and were not held in trust for Native Hawaiians as Professor Jon Van Dyke argued in his book, Who Owns the Crown Lands. Although this author, as with many others, takes issue with the research and conclusions of that article, this Article focuses upon the larger issue of the reliance on the Supreme Court of the United States’ jaded recitation of Hawaiʻi’s complex political and legal history. The article specifically relies upon two Supreme Court opinions, Rice v. Cayetano and Hawaiʻi v. Office of Hawaiian Affairs — two politically charged cases that dealt large blows to the Native Hawaiian community particularly because of the Court’s skewed views of Hawaiʻi’s past. Native Hawaiians, like most indigenous people, are faced with a legal system that rarely recognizes their stories and their histories. Due in large part to the enshrined principle of stare decisis, Native Hawaiians have been left with a less than adequate narrative of their legal and political history that has ramifications for other indigenous and marginalized communities across the United States. The Court’s narrative is oftentimes then interpreted, particularly by jurists and legal practitioners, as the “official” history of a people. This Article criticizes the Court’s writing of Hawaiian history in its opinions and also the re-writing of history and silencing of Native voices that occurs when jurists and practitioners blindly adhere to “precedent.” This Article demands careful use of history when analyzing complex issues involving Native Hawaiians, and provides methods for ensuring an accurate recitation of history.