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Home , Apology Resolution, Hawaiian language, Hawaiian Renaissance, Merrie Monarch Festival, Native Hawaiians

Fall 2017 Volume 2

LANGUAGE SUPPRESSION, REVITALIZATION, AND NATIVE HAWAIIAN IDENTITY Shari Nakata J.D. (UCI Law), Ph.D. (Classics, UCI) Inland Counties Legal Services.

I ka ʻōlelo nō ke ola, i ka ʻōlelo nō ka make1 Through language there is life; through language there is death

Having been the target of colonialist suppression for over a century and a half, the has experienced a period of revitalization that began with the Native Hawaiian cultural and political renaissance of the 1970s. This revitalization, achieved largely through the growth and development of immersion schools, has led to a dramatic increase in the number of official speakers of Hawaiian and to more widespread acceptance of the language. Suppression of the language, however, is still ongoing in different contexts, particularly in education, government, and the courts. This holds true despite Hawaiian’s designation as one of the two official languages of Hawaiʻi. Yet there are legal steps that might be taken to solidify the status of Hawaiian as an official language—not just in theory, but also in practice.

I. The Native Hawaiian both by means of ancient was political, as it precipitated Renaissance methods; and the spiritual long overdue official practices of the ancient recognition of Native Hawaiian In the 1970s, Hawaiʻi was religion, including the rights. To this end, the Hawaiʻi witness to an extraordinary preservation and maintenance State Constitutional Native of sacred spaces. Moreover, the Convention in 1978 enacted that revitalized an indigenous renaissance gave rise to a amendments to the Hawaiʻi people long subjected to renewed interest in learning the State Constitution that Western colonial domination ’ ancestral committed the state to the and suppression.1 This methods of navigation. In 1976, preservation and promotion of renaissance was multifaceted the newly-founded Polynesian Native Hawaiian culture. One and complex. On one level, it Voyaging Society2 launched of these amendments was a cultural renaissance, as it the Polynesian voyaging canoe established the Office of heralded a resurgence of Hōkūleʻa (“Star of Gladness”), Hawaiian Affairs, charged with interest in various aspects of which made a revolutionary the mission of improving the Native Hawaiian heritage: journey to Tahiti and back by well-being of Native traditional chants (oli), music, means of those ancient Hawaiians. The sovereignty and dance ( kahiko); the navigation techniques, using movement for Native Hawaiian cultivation of traditional crops only celestial signs and ocean self-determination also gained such as () and the currents as guides.3 ground during the renaissance, practice of aquaculture through On another level, the as Native Hawaiian political the use of fishponds (loko iʻa), Native Hawaiian renaissance leaders and activists belonging

1 See H. Wilson, The Hawaiʻi ke ola, ‘Life is found in the 3 , POLYNESIAN Sociopolitical Context of Establishing Hawaiian language,’ INT’L J. SOC. VOYAGING SOCIETY, Hawaiian-medium Education, in LANGUAGE 123, 130–131 (1998). http://www.hokulea.com/education-at- INDIGENOUS COMMUNITY-BASED 2 POLYNESIAN VOYAGING SOCIETY, sea/polynesian-navigation/. EDUCATION 95, 98–100 ( May ed., http://www.hokulea.com/. [https://perma.cc/AV5T-84MM] 1999); William H. Wilson, I ka ʻōlelo [https://perma.cc/8QFF-A98J]

14 Fall 2017 Volume 2 to different grassroots immersion schools began suppressed language goes hand organizations began organizing operating in 1984.6 These were in hand with a revitalization of and demonstrating on a regular the first official immersion a suppressed cultural and basis for the sovereignty schools in the political identity. Revitalizing cause.4 with an indigenous language as the Hawaiian language means the . In revitalizing Native Hawaiian “By 1983, there were only 1987, the state Board of identity. This Native Hawaiian two thousand native Education agreed to a pilot identity was erased in the speakers in Hawai’I.” program of Hawaiian language nineteenth century by a immersion in selected public “language shift and sovereignty Especially crucial, schools.7 Full-fledged shift in government and however, to the Native Hawaiian language programs education domains” that were Hawaiian renaissance was the and “simultaneous and symbiotic.”9 start of the revitalization of the programs—taught in Just as English supplanted the Hawaiian language (ʻōlelo Hawaiian—at the University of Hawaiian language as the Hawaiʻi). The language had Hawaiʻi, which had gotten off language of education and been banned in 1896 as a the ground in the 1970s, governance, so did the United medium of instruction in burgeoned in the 1980s.8 States supplant Hawaiian schools, and almost eighty This process of language sovereignty. Indeed, the years later, it was in serious revitalization has served as an linguistic dominance of English danger of extinction. attempt to resist the colonialist was largely dependent upon the By 1983, there were only suppression that the language language being granted the two thousand native speakers in had undergone over the past “sole legitimacy of Hawaiʻi, including fifty under century and a half. governance.”10 the age of eighteen, in addition In a number of ways, the to a number of much older “The language of a people revitalization of the Hawaiian native speakers, most of them is an inextricable part of language is no longer living in a community of full- the identity of that people. suppressed as it once was. It is blooded Native Hawaiians on Therefore, a revitalization now recognized, of course, as 5 the small island of Niʻihau. of a suppressed language one of Hawaiʻi’s two official Via a constitutional amendment goes hand in hand with a languages.11 It is now possible in 1978, the state had revitalization of a to receive a K-12 Hawaiian- designated Hawaiian as one of suppressed cultural and medium education in selected the two official languages of political identity.” public schools. The University Hawaiʻi. Due to the concerted of Hawaiʻi at Hilo offers efforts of a grassroots The language of a people is graduate degrees taught in organization of parents who an inextricable part of the Hawaiian: an M.A. in Hawaiian wanted Hawaiian to be their identity of that people. Language and Literature and children’s primary language, Therefore, a revitalization of a independent Hawaiian

4 For overviews of the sovereignty DAUGHTER: COLONIALISM AND 7 Id. movement, see, e.g., A NATION RISING: SOVEREIGNTY IN HAWAIʻI (1999). 8 Id. HAWAIIAN MOVEMENTS FOR LIFE, LAND, 5 NATIVE HAWAIIAN LAW: A TREATISE 9 Breann Nuʻuhiwa, “Language Is Never AND SOVEREIGNTY (Noelani Goodyear- 1274 (Melody Kapilialoha MacKenzie About Language”: Eliminating Language Kaʻōpua, Ikaika Hussey & Erin ed., 2015). Bias in Federal Education Law to Further Kahunawaikaʻala Wright eds., 2014); J. 6 See A Timeline of Revitalization, E OLA Indigenous Rights, 37 U. HAW. L. REV. KĒHAULANI KAUANUI, HAWAIIAN BLOOD: KA ʻŌLELO HAWAIʻI, 381, 406 (2015). COLONIALISM AND THE POLITICS OF http://www.ahapunanaleo.org/index.php?/ 10 Id. at 405. SOVEREIGNTY AND INDIGENEITY (2008); about/a_timeline_of_revitalization/. 11 Hawaiʻi is the only state in the nation HAUNANI-KAY TRASK, FROM A NATIVE [https://perma.cc/C6VL-3FQB] with two official languages.

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Hawaiian12 and a Ph.D. in immersion schools have Courts neither accept Indigenous Language and regularly faced uphill battles documents in Hawaiian nor Cultural Revitalization.13 The for recognition and state allow Hawaiian to be spoken in official state motto and anthem funding, notwithstanding the court proceedings. are in Hawaiian.14 The state commitment to the preservation The revitalization of the and municipal governments use and promotion of Native Hawaiian language and Native official Hawaiian orthography Hawaiian culture in the state Hawaiian identity thus for words and names in official constitutional amendments of continues to face various documents and street signs.15 1978. These advocates have challenges. For all the There is a weekly radio also faced the skepticism of achievements of the Native program broadcast entirely in those who believe that Hawaiian renaissance, and Hawaiian.16 There is also a Hawaiian immersion schools despite the progress that the television station that will produce individuals who language has made over the broadcasts programs in are monolingual and unable to past forty years in avoiding Hawaiian,17 and the prestigious make their way in a country extinction, the Hawaiian hula competition at the Merrie where English is the de facto language is still far from being Monarch Festival is now official language. Moreover, an official language in practice. broadcast in both English and despite its official status, The aim of this paper is to Hawaiian.18 Banks in Hawaiʻi Hawaiian is not an official interrogate the Hawaiian even accept checks drafted in language of government in language’s status as an official Hawaiian.19 Hawaiʻi. XV, Section 4 language of Hawaiʻi by Yet in other ways, the of the Hawaiʻi State examining how and why current situation belies the Constitution designates English suppression of the language Hawaiian language’s and Hawaiian as the state’s continues to this day, both in designated official status. The official languages, “except that ways that are different from total number of speakers Hawaiian shall be required for those implemented in the (including second-language public acts and transactions nineteenth century, but also in speakers) is estimated to be just only as provided by law.” With ways that are not very different over 18,000 out of a state very few exceptions, state at all. Part II of the paper will population of 1.4 million.20 statutes and city ordinances are trace the history of the Advocates for Hawaiian published only in English. colonialist suppression of the

12 Master of Arts (M.A.) in Hawaiian Ponoʻī, composed by King David Language Policy and the Courts, 34 HAW. Language and Literature, KA ʻULA Kalākaua. J. HIST. 1, 12 (2000). O KEʻELIKŌLANI (“COLLEGE OF HAWAIIAN 15 On the use of Hawaiian and non- 20 With 18,610 self-reported speakers, LANGUAGE”), Hawaiian place names in Hawaiʻi, see Hawaiian ranks fifth in a list of languages http://www.olelo.hawaii.edu/khuok/mhhm R.D.K. Herman, The Aloha State: Place other than English that people speak at a.php. [https://perma.cc/F9QV-GN9G] Names and the Anti-conquest of Hawaiʻi, home in Hawaiʻi. RESEARCH AND 13 Doctor of Philosophy (Ph.D.) in 89 ANNALS ASS’N AM. GEOGRAPHERS 76 ECONOMIC ANALYSIS DIVISION, Hawaiian and Indigenous Language and (1999). DEPARTMENT OF BUSINESS, ECONOMIC Cultural Revitalization, KA HAKA ʻULA O 16 The program is called Alana I Kai Ikina DEVELOPMENT AND TOURISM, STATE OF KEʻELIKŌLANI (“COLLEGE OF HAWAIIAN (“Rising in the Eastern Sea”), on KWXX- , DETAILED LANGUAGES SPOKEN LANGUAGE”), FM, broadcast from Hilo, Hawaiʻi. AT HOME IN THE STATE OF HAWAII 8 http://www.olelo.hawaii.edu/khuok/mhhp 17 The Native Hawaiian-owned and (2016), hd.php. [https://perma.cc/F9QV-GN9G] operated station is called ʻŌiwi TV. ʻŌiwi http://files.hawaii.gov/dbedt/census/acs/R 14 The state motto is Ua mau ke ea o ka is the Hawaiian word for “native.” eport/Detailed_Language_March2016.pdf ʻāina i ka pono (attributed to King 18 Instructions for SAP-Hawaiian . [https://perma.cc/FL9F-RQCR] On the Kamehameha III and translated literally as Language, , various categories of speakers of “The sovereignty of the land is restored, http://merriemonarch.com/instructions- Hawaiian, see Matthias Brenzinger & as it should be,” but generally sap-hawaiian-language. Patrick Heinrich, The Return of mistranslated as “The life of the land is [https://perma.cc/XH7D-2JLF[ Hawaiian: Language Networks of the perpetuated in righteousness.”). The state 19 Paul F. Nahoa Lucas, E Ola Mau Kākou Revival Movement, 14 CURRENT ISSUES anthem (with Hawaiian lyrics) is Hawaiʻi I Ka ʻŌlelo Makuahine: Hawaiian LANGUAGE PLAN. 300, 306–09 (2013).

16 Fall 2017 Volume 2 language, from the arrival of language developed a long producing instructional the in the 1820s to tradition of oral literature, materials, newspapers, and a the years following statehood including chants, prayers, Bible, all in the Hawaiian in 1959. Part III will trace the histories, myths, and traditional language. key steps taken towards the sayings.23 Traditional Native Despite the success of the revitalization of the language Hawaiian schooling took place Hawaiian-medium schools, as during and after the Hawaiian first in the home and then shown by the high levels of renaissance. Part IV will through instruction via the literacy among Native examine the ways in which equivalent of apprenticeships to Hawaiian adults in the 1850s,27 suppression of the language is elders. Apprentices were taught growing numbers of educators still ongoing in the face of this to “observe, listen, and were advocating an “English revitalization. Part V will imitate.”24 mainly” policy by the middle discuss a number of steps that The American of the century.28 In 1839, the might be taken to solidify the missionaries25 introduced missionaries had already status of Hawaiian as an Western-style formal schooling established the , official language of Hawaiʻi in 1824, but with Hawaiian as which was the first English- not just in theory, but also in the initial medium of medium school in Hawaiʻi. practice. instruction.26 The missionaries This private school was found it urgent to educate the intended to educate the Native II. The Colonialist natives as quickly as possible Hawaiian elite (royalty and Suppression of the in order to save them from chiefs) who expressed a desire Hawaiian Language what they perceived to be to learn a language that was superstitious and immoral ways quickly making its presence felt In what is generally known through conversion to in the kingdom29 —not only as the pre-contact period (i.e., . In addition, they due to the missionaries, but before the arrival of the first believed that they would risk also because of the increasing Europeans in 1778), the losing control over the natives influence of Westerners Hawaiian language was if the population at large were (largely ) in business entirely oral, and had no to acquire English proficiency. and politics. Advocates of the written form. It was rich, To this end, the missionaries “English mainly” policy nuanced, and sophisticated, found it simpler to learn viewed instruction in English with words having a multitude Hawaiian themselves and then as a logical response to the of meanings (kaona), both to teach the natives in their own steadily increasing English- literal and figurative, and it language. It was the speaking population, the abounded in poetic concepts.21 missionaries who created an rapidly decreasing Native Spoken words embodied a host alphabet for the language, Hawaiian population (due to of life forces (mana) with based on English. Having disease), the influx of “significant physical and brought a printing press with immigrants, and the “heathen spiritual powers unknown in them to Hawaiʻi, the practices” of the Native Western society.”22 The missionaries were soon Hawaiians that had persisted

21 Lucas, supra note 20, at 1–2. Massachusetts, sent missionaries to 28 Lucas, supra note 20, at 4–5. 22 Id. at 2. Hawaiʻi over a period of more than thirty 29 Both King Kamehameha III and King 23 THE GREEN BOOK OF LANGUAGE years. These missionaries belonged to the Kamehameha IV publicly espoused the REVITALIZATION IN PRACTICE 134 (Leanne . advantages of learning English, which Hinton & Ken Hale eds., 2001). 26 Nuʻuhiwa, supra note 10, at 398. they believed would allow Native 24 NATIVE HAWAIIAN LAW, supra note 6, 27 MAENETTE K.P. BENHAM & RONALD H. Hawaiians to engage with Westerners on at 1261. HECK, CULTURE AND EDUCATIONAL equal terms. NATIVE HAWAIIAN LAW, 25 The American Board of Commissioners POLICY IN HAWAIʻI: THE SILENCING OF supra note 6, at 1264. for Foreign Missions, founded in 1810 in NATIVE VOICES 70 (1998).

17 Fall 2017 Volume 2 despite the missionaries’ best Although Hawaiian was an colonial activity.”38 By the end efforts.30 These advocates official language of of the Kamehameha dynasty in supported the establishment of government in Hawaiʻi the early 1870s, the legislature English-medium government- throughout most of the was publishing laws and run schools that would be open nineteenth century, its status documents in English first and to all. These schools, which shifted over the years. A statute having them translated into began operating in 1854, came enacted in 1846 required all Hawaiian afterwards.39 to be better funded than the laws to be published in both There were, to be sure, Hawaiian-medium schools and Hawaiian and English.33 some voices of resistance to the had more resources overall in Indeed, laws as well as all other growing dominance of English terms of literature and teacher government documents were in the kingdom. In 1864, the training.31 As a result, bilingual, in order to meet the Native Hawaiian head of the enrollments began to decline in needs of both Native Hawaiians Board of Education severely the Hawaiian-medium schools. and Westerners.34 The Hawaiʻi criticized the legislature’s Growing numbers of Native Supreme Court had even practice of prioritizing English- Hawaiians started enrolling initially legitimized Hawaiian medium schools over the their children in the English- as the dominant language, but Hawaiian-medium schools. He medium schools in order to Hawaiian came to be perceived saw the preservation of the take advantage of their superior as ill-adapted to the uses of Hawaiian language as resources. Even the lawmakers and the courts.35 In necessary for the kingdom’s , founded 1859, the Hawaiʻi legislature identity as a Native Hawaiian later in the century (1887) for passed a law providing that the nation, but instruction in the education of Native English version of any statute English was teaching Native Hawaiian children, began by would be binding over the Hawaiians to view their own using English as the sole Hawaiian language version.36 language as inferior and not medium of instruction. The Reenacted six years later, the worth preserving.40 There were decline of Hawaiian-medium law provided that “[w]henever even some missionaries who schools increased through the there exists a radical and argued against these latter half of the nineteenth irreconcilable difference perceptions of the Hawaiian century as the numbers of between the English and language as inferior.41 immigrants to Hawaiʻi Hawaiian versions of the laws In the latter half of the increased, owing to the large- of the Kingdom, the English nineteenth century, King David scale recruitment of workers version shall be held Kalākaua fostered a resurgence for the sugar plantations. The binding.”37 Although the of Hawaiian culture42 in children of immigrants were legislature included both opposition to Western taught only in English-medium Native Hawaiian and American influences—yet this was met schools. By 1888, only 15.7 representatives, the former by counter-resistance on the percent of all students were group was largely - part of government. Kalākaua enrolled in Hawaiian-medium educated, a fact that may have sponsored efforts to schools.32 “sway[ed] government permanently record ancient decisions toward dominant chants and genealogies in

30 Nuʻuhiwa, supra note 10, at 399. HISTORY TO 1935, 32 (Stanley M. Tsuzaki 40 NATIVE HAWAIIAN LAW, supra note 6, 31 Lucas, supra note 20, at 5–6. ed., 1969). at 1267. 32 NATIVE HAWAIIAN LAW, supra note 6, 35 Id. 41 Id. at 1267–68. at 1265. 36 Civil Code of 1859, sec. 1493. 42 This resurgence is sometimes referred 33 Act of April 27, 1846, ch. 1, art. 1, sec. 37 Act of Jan. 10, 1865, sec. 1. to as the first Hawaiian renaissance, as 5. 38 BENHAM & HECK, supra note 25, at 50. opposed to the renaissance of the 1970s. 34 JOHN E. REINECKE, LANGUAGE AND 39 REINECKE, supra note 32. IN HAWAII: A SOCIOLINGUISTIC

18 Fall 2017 Volume 2 writing, supported instruction in both public and “These ‘English only’ laws performances of ancient music private schools.46 This law were part of the federal and hula, encouraged Native effectively banned all non- government’s broader Hawaiian religious practices English languages (not just effort at the time to and ancient medicinal healing, Hawaiian) as a medium of eradicate the indigenous and collected and preserved instruction. As an “English languages of Native 43 cultural artifacts. In 1883, only” advocate observed, Americans on the during Kalākaua’s reign, the “With this knowledge of mainland.” Hawaiʻi Supreme Court heard a English will go into the young case in which a non-Hawaiian American republican and These “English only” laws printer was convicted of Christian ideas; and as this were part of the federal publishing a program of hula knowledge goes in, kahunaism, government’s broader effort at written in Hawaiian for fetishism and heathenism the time to eradicate the Kalākaua’s coronation.44 The generally will largely go out.”47 indigenous languages of Native government deemed the hula to Since education in a language Americans on the mainland, be obscene. The court reversed is crucial for language survival, which included the removal of the conviction on the narrow the survival of the Hawaiian children to English-medium grounds that the printer did not language was now put to an boarding schools.53 The goal of know Hawaiian and, therefore, extreme test. In 1880, there this “English only” policy was had no criminal intent. The fact were as many as 150 Hawaiian- to assimilate, eradicate native that the government medium schools still in cultures, and promote national criminalized the publication of operation.48 Prior to the 1896 unity via the creation of a Hawaiian and the court did not law, there were seventy-seven; national character; in addition, comment on the government’s after 1896, only one of these it had the added purpose of obscenity claim indicated that schools remained.49 By 1902, it protecting indigenous people in the “free and open exercise of was gone.50 The very act of their business dealings and Hawaiian” was clearly coming speaking Hawaiian was transforming them into good to an end.45 forbidden and severely citizens.54 The illegal overthrow of the punished in schools; teachers After annexation, the in 1893 by even paid home visits to Hawaiian language entered a American businessmen (a reprimand parents for speaking linguistic dark age that was to number of whom belonged to Hawaiian to their children in last for a good part of the missionary families), with the their own homes.51 The twentieth century. The aid of military forces, dealt a Organic Act of 1900, which language went underground crippling blow to the Hawaiian was enacted two years after the and largely found refuge in language. In 1896, the U.S. annexation of Hawaiʻi, some churches, particularly in government of the new ensured the dominance of sermons and various church Republic of Hawaiʻi English in the new Territory of publications.55 A small group implemented an “English only” Hawaiʻi by providing that all of ministers from these policy by enacting a law government business was to be churches taught the language at establishing English as the conducted in English only.52 the University of Hawaiʻi for a exclusive medium of

43 Id. at 1268–69. 48 ALBERT J. SCHÜTZ, THE VOICES OF 50 SCHÜTZ, supra note 49. 44 The King v. Grieve, 6 Haw. 740 (1883). EDEN: A HISTORY OF HAWAIIAN 51 Lucas, supra note 20, at 9. 45 Lucas, supra note 20, at 8. LANGUAGE STUDIES 352 (1994). 52 Organic Act of April 30, 1900, ch. 339, 46 Act of June 8, 1896, ch. 57, sec. 30. 49 David Barnard, Law, Narrative, and the §44, 31 Stat. 141 (1900). 47 Lucas, supra note 20, at 8. Continuing Colonialist Oppression of 53 Nuʻuhiwa, supra note 10, at 407–08. Native Hawaiians, 16 TEMP. POL. & C.R. 54 Id. at 408. L. REV. 1, 33 (2006). 55 Lucas, supra note 20, at 9–10.

19 Fall 2017 Volume 2 period of thirty years.56 Yet the imperative in both education government. Instead, the churches were unable to sustain and government.62 amendment allows for the language for long, as the exceptions, “as provided by Hawaiian-speaking ministers III. The Revitalization of law,” to the rule that English died one by one and there were the Hawaiian Language remains the language of no qualified individuals to take government in Hawaiʻi. their place.57 The language also The revitalization of the Second, Article X, Section disappeared from the public Hawaiian language towards the 4 affirms the state’s media. While over a hundred end of the twentieth century commitment to promoting Hawaiian-language newspapers began with acts of formal Native Hawaiian culture had been published since 1834, recognition by the supreme law through educational there was only one remaining of the state. The heightened programming in the public in circulation by 1948.58 public attention brought to schools: Moreover, there was no place Native Hawaiian culture and for Hawaiian on the radio or on identity by the renaissance of The State shall promote television.59 There were the 1970s laid the foundations the study of Hawaiian attempts in 1919 and 1935 to for three crucial amendments to culture, history and reintroduce the language into the Hawaiʻi State Constitution language. The State shall the schools by amending the in 1978. These amendments provide for a Hawaiian 1986 law. But Hawaiian was to support, both directly and education program be reintroduced as a course of indirectly, the preservation and consisting of language, instruction rather than as a promotion of the Hawaiian culture and history in the medium of instruction, and in language. First, Article XV, public schools. The use the form of woefully Section 4 recognizes Hawaiian of community expertise inadequate lessons lasting ten as an official language of the shall be encouraged as a minutes a day.60 Reversing the state: “English and Hawaiian suitable and essential practice of a century of shall be the official languages means in furtherance of bilingual publication, the of Hawaiʻi, except that the Hawaiian education legislature enacted a statute in Hawaiian shall be required for program. 1943 that required laws to be public acts and transactions published in English only.61 only as provided by law.” This This amendment When Hawaiʻi became a state amendment gives what acknowledges the importance in 1959 and tourism developed appeared to be legal status to a of including Native Hawaiian into a booming industry, the language that had been driven culture in the public school influx of English-speaking underground for almost a curriculum.63 While the visitors and the century and was rendered amendment does not explicitly commodification and nearly extinct. Granted, the mandate instruction with the debasement of Native amendment includes a Hawaiian language actually Hawaiian culture for the benefit disclaimer to the effect that used as a medium of of these visitors only further despite its official status, instruction, it does clearly reinforced the “English only” Hawaiian is not automatically provide for the study of the deemed a language of language.64

56 NATIVE HAWAIIAN LAW, supra note 6, of ʻŌlelo Hawaiʻi, 30 U. HAW. L. REV. became a requirement for graduation from at 1273. 243, 250 (2008). a public high school. Wilson (1999), 57 Id. 61 1943 Haw. Sess. Laws, ch. 218, sec. 1. supra note 2, at 100. 58 Lucas, supra note 20, at 9. 62 THE GREEN BOOK, supra note 24, at 64 In contrast with the history requirement, 59 Id. 135. a language requirement was not 60 Id. at 10; Kaʻanoʻi Walk, “Officially” 63 In 1978, a semester-long course in something that could be implemented What? The Legal Rights and Implications modern Hawaiian history (1778–present) immediately, due to a lack of qualified

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Third, Article XII, Section language gathered together in This pilot program, called 7 asserts the state’s 1983 to establish a nonprofit Papahana Kula Kaiapuni, was commitment to protecting organization, ʻAha Pūnana Leo, gradually extended over the various Native Hawaiian rights: Inc. (“Language Nest years, one grade per year, to “The State reaffirms and shall Corporation”) for the purpose grade 12.70 The goals of this protect all rights, customarily of Hawaiian-medium pilot program were “to assist and traditionally exercised for instruction.66 The organization the Hawaiian-speaking families subsistence, cultural, and created the first Pūnana Leo in the revitalization of the religious purposes and immersion preschool in the language and culture and possessed by ahupuaʻa65 following year, modeled after maintain usage of the language, tenants who are descendants of the successful Maori language to assist those families who native Hawaiians who preschools Te Kohango Reo in wish to integrate into the inhabited the Aotearoa (New Zealand).67 Hawaiian-speaking community prior to 1778, subject to the Additional preschools opened by eventually replacing their right of the State to regulate in 1985.68 home language with Hawaiian such rights.” This amendment Because of the 1896 for future generations, and to covers the rights enjoyed by the “English only” law, however, assist those families who wish ancient Native Hawaiians these initial Pūnana Leo to use Hawaiian as a second or before European contact, immersion preschools did not third language in interacting including cultural rights. operate under the auspices of with the Hawaiian-speaking Granted, the amendment the state Department of community.”71 In 1999, the includes a disclaimer regarding Education. As a result of first class of students to have the state’s prerogative to intense lobbying efforts by received a K-12 education “regulate such rights,” which ʻAha Pūnana Leo, the state taught entirely in Hawaiian appears to limit the legislature passed an received their high school reaffirmation and protection of amendment in 1986 to the 1896 diplomas.72 In 2011, reports these rights asserted at the law, allowing special projects indicated that Hawaiian beginning of the section. using the Hawaiian language immersion students were The renewed interest in with approval by the state maintaining a 100% graduation revitalizing the Hawaiian Board of Education.69 The rate from high school, with language led to the Board itself then approved a over 80% going on to higher establishment of the first pilot Hawaiian Language education.73 By 2015, twenty- Hawaiian-language immersion Immersion Program in 1987 for one immersion schools across preschools in the early 1980s. children wishing to continue Native Hawaiian parents with their immersion in the seeking to raise their children language after graduating from to speak Hawaiian as their first the Pūnana Leo preschools.

instructors. Indeed, “short lessons in 66 Timeline, supra note 7. On the 67 Lucas, supra note 20, at 11; Nuʻuhiwa, colours, body parts and greetings” were advantages of Hawaiian-medium supra note 10, at 416–17. decidedly not what proponents had in education, see William H. Wilson & 68 Timeline, supra note 7. mind. Id. at 100–101. Kauanoe Kamanā, “For the Interest of the 69 Haw. Rev. Stat. sec. 298-2(b) (1993). 65 The ahupuaʻa was the traditional Hawaiians Themselves”: Reclaiming the 70 Lucas, supra note 20, at 11. Hawaiian pie-shaped land division, Benefits of Hawaiian-Medium Education, 71 Lucas, supra note 20, at 11. extending from the mountains all the way 3 HŪLILI 153 (2006); Keiki K.C. 72 Timeline, supra note 7. down to the seashore. Under the rule of a Kawaiʻaeʻa, Alohalani Kaluhiokalani 73 Celebrating Success of Hawaiian chief and under supervision by an (Kaina) Housman & Makalapua (Kaʻawa) Immersion Schools, HAWAIʻI ISLAND overseer, the common people maintained Alencastre, Pūʻā i ka ʻŌlelo, Ola ka JOURNAL, the ahupuaʻa, which was self-sufficient ʻOhana: Three Generations of Hawaiian http://www.hawaiiislandjournal.com/2011 due to the sustainable resources that it Language Revitalization, 4 HŪLILI 183 /06/celebrating-success-of-hawaiian- provided. (2007). immersion-schools/.

21 Fall 2017 Volume 2 the state were educating about Alaskans, Aleut peoples, “The resolution thus 2,000 students each year.74 Native Hawaiians, and grants implicit approval descendants of the aboriginal for future efforts to repair “These charter schools peoples of Pacific islands that the relationship between provide students with an are U.S. possessions or the United States and the education that emphasizes territories. Pursuant to § 2904 descendants of subjects Native Hawaiian culture of the Act, “[t]he right of of the kingdom.” and values.” Native Americans to express themselves through the use of In 1993, Congress passed A network of seventeen Native American languages an in public Native Hawaiian charter shall not be restricted in any official recognition of the schools has also developed, public proceeding, including illegal overthrow of the partly out of a desire for publicly supported education Hawaiian Kingdom in 1893.79 autonomy from the traditional programs.” The federal Native This joint resolution public school system and for Hawaiian Education Act acknowledges the “historical the freedom to explore (NHEA), enacted in 1994, has significance of this event which innovative pedagogical the goal of improving resulted in the suppression of methods. These charter schools educational opportunities for the inherent sovereignty of the provide students with an Native Hawaiians and restoring Native Hawaiian people.”80 education that emphasizes the linguistic integrity of the The resolution also notes the Native Hawaiian culture and Hawaiian language.78 The public apology granted in the 75 values. While the instruction Native Hawaiian Education same year by the United in some of these schools is in Council, which implements Church of Christ (the church of English, six of these schools programs under the NHEA, is the missionaries sent to are actual Hawaiian language comprised of members Hawaiʻi), which acknowledged 76 immersion schools. recommended by the Native its “historical complicity” in In the 1990s, the Hawaiian community. The the illegal overthrow.81 The revitalization of the Hawaiian Council awards grants to resolution expresses Congress’ language received legal Native Hawaiian educational “commitment to acknowledge validation through Congress. and community-based the ramifications of the The federal Native American organizations engaged in overthrow of the Kingdom of Languages Act (NALA), projects supporting Native Hawaiʻi, in order to provide a enacted in 1990, encourages Hawaiian education. Hawaiian- proper foundation for the preservation and promotion medium classroom instruction reconciliation between the of native languages by is on the list of prioritized United States and the Native encouraging children to be projects eligible for these Hawaiian people.”82 By educated in their own grants. acknowledging Native 77 language. The Act applies to Hawaiian suppression and the Native Americans, Native need for reconciliation between

74 Nuʻuhiwa, supra note 10, at 417. For a charter schools, see Nina K. Buchanan, 78 Native Hawaiian Education Act, 25 list of these immersion schools, see A. Fox, Susan Leigh Osborne & C. U.S.C. §§ 7511 et seq. Kaiapuni schools—Hawaiian language Puanani Wilhelm, Kua O Ka Lā: A 79 Joint Resolution, 103d Congress, Nov. immersion, HAWAII STATE DEPARTMENT Hawaiian Culturally Focused Charter 23, 1993, Publ. L. No. 103-150, 107 Stat. OF EDUCATION, School, in PROUD TO BE DIFFERENT: 1510. http://www.hawaiipublicschools.org/Teac ETHNOCENTRIC NICHE CHARTER SCHOOLS 80 Id. hingAndLearning/StudentLearning/Hawai IN AMERICA 21, 28–33 (Robert A. Fox & 81 Id. ianEducation/Pages/Hawaiian-language- Nina K. Buchanan eds., 2014). 82 Id. immersion-schools.aspx. 76 Kaiapuni schools, supra note 75. 75 For an overview of the development 77 Native American Languages Act, 25 and philosophy of these Native Hawaiian U.S.C. §§ 2902 et seq.

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Native Hawaiians and their Education has not recognized NALA creates no enforceable colonial oppressor, the any affirmative duty to fully rights or implied private right resolution thus grants implicit fund the Hawaiian language of action: in other words, approval for future efforts to immersion schools. The NALA does not impose an repair the relationship between Board’s official position in affirmative duty on the state to the United States and the 1997 was that the program is a provide what OHA requested. descendants of subjects of the program of choice and not of The court ruled in favor of kingdom. The illegal overthrow right.87 Therefore, the the DOE. It found that § 2904 was a colonial act that led immersion schools can and do of NALA provides that the directly to the legal prohibition receive funds if they are “right of Native Americans to of the Hawaiian language in the available, but not at the express themselves through use schools as well as in expense of other public schools of Native American languages government. Therefore, the and school programs where shall not be restricted in any resolution arguably apologizes English is the medium of public proceeding, including as well for this legal instruction. publicly supported education prohibition of the language.83 A lack of adequate funding programs.” However, the court While the resolution does and support for the Hawaiian did not see this provision as include a disclaimer asserting immersion schools gave rise in creating an enforceable right: that “[n]othing in this Joint the 1990s to a legal challenge “at most it prevents the state Resolution is intended to serve to the state Department of from barring the use of as a settlement of any claims Education (DOE). At stake was Hawaiian languages in against the United States,”84 the the potential for such funding schools.”88 Yet the court failed resolution’s official gesture and support, in the form of to consider the historical towards reconciliation efforts is curriculum materials and context for the decline of nonetheless significant. teacher training, to put the Hawaiian-medium schools in immersion schools on a level the nineteenth century— IV. The Ongoing equaling or exceeding English- particularly the fact that Suppression of the language instruction in the English-medium schools were Hawaiian Language public schools. In Office of better funded and enjoyed Hawaiian Affairs v. superior resources in A. Education Department of Education, 951 comparison.89 The court also While neither the federal F. Supp. 1484 (D. Haw. 1996), failed to acknowledge the nor state government generally the Office of Hawaiian Affairs skepticism (and even hostility) cannot enact laws restricting claimed that the DOE’s failure of certain DOE administrators the use of non-English to provide sufficient support and school principals regarding languages,85 the government and resources for the the viability of the Hawaiian does not necessarily have an immersion schools violated immersion schools.90 The affirmative duty to provide both state law and the Native refiling of portions of the non-English speakers with American Languages Act OHA’s lawsuit in 1998 led to a programs and/or services in (NALA). The State argued that settlement in 2000 for their own language.86 Indeed, OHA’s claim under NALA increased funding for the the Hawaiʻi state Board of should be dismissed because immersion schools over the

83 Summer Kupau, Judicial Enforcement 85 See, e.g., Meyer v. , 262 U.S. 88 Office of Hawaiian Affairs v. of “Official” Indigenous Languages: A 390 (1923). Department of Education, 951 F. Supp. Comparative Analysis of the Māori and 86 See, e.g., Guadalupe Organization, Inc. 1484, 1495 (D. Haw. 1996). Hawaiian Struggles for Cultural v. Tempe Elementary School District No. 89 NATIVE HAWAIIAN LAW, supra note 6, Language Rights, 26 U. HAW. L. REV. 3, 587 F.2d 1022 (9th Cir. 1978). at 1278. 495, 520 (2004). 87 Lucas, supra note 20, at 12. 90 Id. 84 Id.

23 Fall 2017 Volume 2 next five years, with the OHA allowed third and fourth an official language in the partially matching funds graders to take assessment tests state constitution.” allocated by the DOE.91 written in Hawaiian.95 The court ruled against the “The immersion schools B. Government plaintiff. It rejected the as well as the Native The right to use the argument based on the state Hawaiian charter schools Hawaiian language in the constitution, holding that have also come into courtroom was the subject of a Article XV, Section 4 conflict with the No Child legal challenge in 1994, sixteen “provides little guidance” for Left Behind Act (NCLB) of years after Hawaiian was the court to determine whether 2001.” designated an official language there indeed existed a right to in the state constitution. In give a deposition in The immersion schools as Tagupa v. Odo, 843 F. Supp. Hawaiian.96 The court also held well as the Native Hawaiian 630 (D. Haw. 1994), a bilingual that it was not Congress’ intent charter schools have also come Native Hawaiian attorney to extend the reach of NALA, a into conflict with the No Child (fluent in both Hawaiian and statute that dealt primarily with Left Behind Act (NCLB) of English) contested a court order education, to judicial 2001.92 The charter schools in requiring him to give his oral proceedings in federal courts.97 particular have the autonomy to deposition in English for an In addition, the court decided use innovative and culturally employment discrimination that allowing depositions in based pedagogical methods, but lawsuit. He claimed that he had Hawaiian would result in these methods do not meet the the right to give the deposition unnecessary delays and goals of the NCLB, which are in Hawaiian. He argued that expenses involved in finding based on standardization.93 The this right came from Article qualified interpreters. Because immersion schools have also XV, Section 4 of the state the plaintiff was bilingual and encountered problems with the constitution (recognizing spoke English, it was more NCLB’s standardized testing Hawaiian as an official expedient for him to give his requirements. Although these language) and from NALA deposition in English.98 The schools formally introduce (recognizing the right of Native court thus found practical English into the curriculum at a Americans to express concerns to be controlling. later stage than do English themselves through the use of Ultimately, the court found that language schools, the NCLB Native American languages is “a definitive judicial assessment tests in English are not restricted in public determination of this issue is still required for all students at proceedings). better left to the Hawaii state the same time.94 There has been courts.”99 However, no state ongoing experimentation with “The right to use the courts have yet interpreted the standard assessment tests Hawaiian language in the legal effect of Article XV, translated into Hawaiian, but courtroom was the subject Section 4. The discouraging with mixed results. In 2015, the of a legal challenge in message conveyed by the DOE received a one-year 1994, sixteen years after Tagupa decision is that waiver from the U.S. Hawaiian was designated “language revitalization and Department of Education that perpetuation efforts end in the

91 Id. 95 E ola ka ʻōlelo Hawaiʻi: Assessment 96 Tagupa v. Odo, 843 F. Supp. 630, 631 92 No Child Left Behind Act, 20 U.S.C. §§ tests in Hawaiian language granted (D. Haw. 1994). 6301 et seq. federal waiver, OFFICE OF HAWAIIAN 97 Id. at 632. 93 NATIVE HAWAIIAN LAW, supra note 6, AFFAIRS, 98 Id. at 631. at 1280. http://www.oha.org/news/assessment- 99 Id. 94 Id. tests-in-hawaiian-language-granted- federal-waiver/.

24 Fall 2017 Volume 2 schools and homes, with no which had the authority to Wharepapa v. Police in place in the government and investigate Māori claims under 2002.110 In this case, the court the courts.”100 the 1840 Treaty of Waitangi held that a person “ought not to The holding in Tagupa (by which Māori tribes be presumed to have committed stands in contrast with the arguably ceded sovereignty to an offence merely because he is holding in the 2003 case England). The Tribunal speaking a language other than Commonwealth of the Northern recommended that official English, particularly when the Mariana Islands v. recognition of Te Reo Māori language being spoken is an Guerrero.101 In this case, the must be more than “mere official language of New appellant sought to overturn his tokenism . . . those who want to Zealand.”111 conviction on the grounds that use our official language on the trial court did not allow him any public occasion or when V. Hawaiian as an to use the dealing with any public Official Language of during trial. The appellant authority ought to be able to do Hawaiʻi based his right to use Chamorro so.”105 on Article XXII, Section 3 of Although the court in What does the future the Commonwealth Mihaka v. Police (1980) held portend for the Hawaiian Constitution, which designates that English was the official language as an official Chamorro as an official language of the courts,106 Te language of the state? Having language of the Northern Reo Māori can now be used in stepped back from the brink of Mariana Islands, along with any legal proceeding, thanks to extinction, the language has Carolinian and English. The ensuing legislation. The Treaty made remarkable progress over Supreme Court of the Northern of Waitangi Amendment Act of the past forty years. Yet the Mariana Islands reversed the 1985107 allowed the Tribunal to fact remains that despite the trial court, holding that a native investigate claims dating back ever-increasing numbers of speaker of Chamorro or to the Treaty of 1840. The individuals who now speak and Carolinian has the resulting Tribunal’s Report of write Hawaiian in immersion constitutional right to speak 1986 on the Te Reo Māori schools and in their homes, that language in court.102 claim considered whether the Hawaiian is not the language of Indeed, this right applies even New Zealand Crown was government or the courts. Forty if that native speaker is fluent obligated to preserve Te Reo years ago, of course, it could in English as well—as was the Māori under the 1840 not have been so. Today, the appellant in Guerrero. Treaty.108 The Māori Language 18,000 individuals who identify The Tagupa holding also Act of 1987 established the Hawaiian as the language they stands in contrast with the legal expressed right to speak Te speak at home show that it is a situation regarding the Reo Māori in legal living language, and it is indigenous Māori language (Te proceedings, regardless of the thriving. If the same kind of Reo Māori) in Aotearoa (New speaker’s English progress continues, the number Zealand).103 The Treaty of proficiency.109 This Act of Hawaiian language speakers Waitangi Act of 1975104 generated a number of court will only grow. The question, created the Waitangi Tribunal, decisions, culminating in then, remains as to what it will

100 Kupau, supra note 84, at 500. 104 Treaty of Waitangi Act, 1975 (N.Z.). 107 Treaty of Waitangi Amendment Act, 101 Commonwealth of the Northern 105 WAITANGI TRIBUNAL, DEP’T OF 1975 (N.Z.). Mariana Islands v. Guerrero, 2003 MP 15. JUSTICE, REPORT OF THE WAITANGI 108 WAITANGI TRIBUNAL, supra note 103. 102 Id. ¶ 10. TRIBUNAL ON THE TE REO MAORI CLAIM 109 Māori Language Act, 1987 (N.Z.). 103 For a comparative analysis of the (Wai 11) § 8.2.8 (1986) (N.Z.). 110 Wharepapa v. Police, [2002] N.Z.L.R. revitalization movements for the Māori 106 Mihaka v. Police, [1980] 1 N.Z.L.R. 611. and the Hawaiian languages, see Kupau, 460. 111 Id. at 617. supra note 84.

25 Fall 2017 Volume 2 truly mean for Hawaiian to be bilingualism is rendered existing under state law, and an official language of the meaningless: it would not outlined “specific, although not state. matter whether an individual necessarily exhaustive, An important consideration knows English or not. guidelines” in interpreting the with regard to this question rights in Article XII, Section 7 involves the ways in which the “If the use of Hawaiian is of the state constitution.115 The state constitutional framed as a cultural right, right that is sought must be amendments of 1978 “can be then bilingualism is “reasonable” and “traditional” used as a tool to increase rendered meaningless: it and in place prior to 1892.116 benefits for Hawaiian would not matter whether The state (or opposing party) 112 speakers.” Although the an individual knows must then show that some court in Tagupa found “little English or not.” actual harm would result by guidance” in Article XV, implementation of this right. Section 4 of the state There has been some The language of Article constitution, there have been discussion over how to affirm XII, Section 7 of the state proposals regarding possible the cultural rights of Native constitution creates an ways of framing the Hawaiians by advocating for enforceable right in ahupuaʻa amendments so as to build a the traditional and customary tenants (tenants of the case for the use of Hawaiian in rights of Native Hawaiians traditional Hawaiian land government and in the courts. pursuant to Article XII, Section division) choosing to practice Because the court in 7 of the state constitution. In their traditions and customs Tagupa reasoned that the Public Access Shoreline under state law. The plaintiff was not actually Hawaii v. Hawaiʻi County amendment specifically refers prevented from giving his Planning Commission (PASH), to these traditions and customs deposition, albeit in a language 903 P.2d 1246 (Haw. 1995), as “all rights, customarily and that he did not want to use, a the Hawaiʻi Supreme Court traditionally exercised for distinction has arisen between held that the state was subsistence, cultural, and an individual’s right of self- obligated to protect Native religious purposes and expression and the cultural Hawaiians’ legitimate exercise possessed by ahupuaʻa 113 right of a people. While the of traditional access and tenants.” It has been argued court in Tagupa viewed the gathering rights that had been that because Article XII, plaintiff’s fluency in English as established by 1892. Hawaiʻi’s Section 7 applies to “all rights,” a practical solution to an custom and usage law it should apply to the use of the immediate problem and saw no established English common Hawaiian language, as it is a violation of his right to self- law in Hawaiʻi in 1892, with a “well-documented and expression and due process, it special exception for existing customary practice that has failed to consider the Hawaiian judicial precedent or been exercised by Native 117 significance of using the established usage.114 In effect, Hawaiians for centuries.” Hawaiian language as a means this law subordinated English The PASH holding might thus of revitalizing both the and American common law to support the reaffirmation and language itself and the culture traditional and customary protection of the traditional and of the Native Hawaiian people. Native Hawaiian practices. The customary practice of using If the use of Hawaiian is court in PASH reaffirmed all Hawaiian in government and in 118 framed as a cultural right, then traditional and customary rights the courts. Indeed, it can be

112 Lucas, supra note 20, at 18. 115 Public Access Shoreline Hawaii v. 116 Id. at 1263. 113 Kupau, supra note 84, at 501; NATIVE Hawaiʻi County Planning Commission 117 Lucas, supra note 20, at 19. HAWAIIAN LAW, supra note 6, at 1288. (PASH), 903 P.2d 1246, 1259 (Haw. 118 Id. 114 HAW. REV. STAT. § 1-1 (2013). 1995).

26 Fall 2017 Volume 2 argued that the right to use Hawaiian is already framed as a cultural right in the amendment. Analogized to the traditional and customary rights in PASH, the right to use Hawaiian could be an enforceable right as well. In 2013, the Hawaiʻi state legislature enacted the first bilingual statute in seventy years.119 Enacted to establish February as ʻŌlelo Hawaiʻi Month (“Month of the Hawaiian Language”) to “celebrate and encourage the use of Hawaiian language,” the statute was largely symbolic. But the historic gesture is significant. Even if the process is incremental, the revitalization of the Hawaiian language continues. As the first half of the Hawaiian proverb goes, “I ka ʻōlelo nō ke ola.” (“Through language there is life.”)

119 Haw. Rev. Stat. § 8-24 (2013).

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