Abstract

Excerpted From: Hi'ilei K. Casco, A Right to Living Culture: Articulating Issues and Opportunities for Protecting Contemporary and Emerging Native Hawaiian Rights, Practices, and Resources, 47 University of Hawaii Law Review 180 (Winter 2024) (425 Footnotes) (Full Document)

On July 15, 2019, I stood on the slopes of Mauna a Wkea. Together, kia'i chanted:

He aha la he kkulu, he mauna
What is a pillar, a mountain
He aha la he kkulu, he ahu
What is a pillar, an altar
He aha la he kkulu, he p haku
What is a pillar, a rock
He aha la he kkulu, he kanaka
What is a pillar, a person

As Knaka Maoli, to stand on Mauna a Wkea is to stand on the shoulders of our kpuna. We oli to her in remembrance of our place in our collective mo'okBu'auhau, the Kumulipo. And in doing so, we honor the Mauna as a form of Papa, a central source of our existence. As Knaka, our descent from 'ina formulates an inherent kuleana to honor and protect all its forms, especially those we deem sacred. Often, this kuleana means to k and k': to stand, stop, and resist actions that are not pono that run contrary to our duty to aloha 'ina.

E k kkou. It is this pilina that brought me and many other young Knaka to Mauna a Wkea in 2019. We stood, hand in hand, heart to heart, as pillars of resistance to the Thirty Meter Telescope (“TMT”) by embodying the Mauna herself, and erecting ahu to represent the same. To Knaka ' iwi, a mountain, an altar, a rock, and a person are synonymous: We are 'ina. For me, to stand in protection of Mauna a Wkea is to honor my existence and that of everyone else, human and non-human, who made our being possible.

From a different but related lens, the movement to protect Mauna a Wkea was a response to the outcome of In re Conservation District Use Application HA-3568 (“In re TMT”). There, the Hawai'i Supreme Court upheld the State Board of Land and Natural Resources' (BLNR) decision granting the University of Hawai'i a conservation district use permit for the development of an observatory near the Mauna's summit. The court, through its analysis and conclusions, adopted harmful language and legal ideology regarding Native Hawaiian people, practices, and efforts toward self-determination. In particular, it rejected any notion of Native Hawaiians' ability to practice or protect contemporary and emerging Native Hawaiian practices. As a glaring example, the court refused to acknowledge recently-erected ahu, a contemporary practice, in the vicinity of the TMT Observatory site as constituting any form of Native Hawaiian right, practice, or resource. Additionally, the court ignored a point of error raised on appeal that inquired “whether the [BLNR] erred in concluding that the Hawai'i Constitution does not protect contemporary [N]ative Hawaiian cultural practices.”

Instead, the court ruled that the BLNR fulfilled its constitutional requirement to protect Native Hawaiian rights because the BLNR “found no evidence ... of Native Hawaiian cultural resources, including traditional and customary practices, within the TMT Observatory site area and the Access Way.” The court also concluded that development of a thirty-meter telescope observatory near Mauna a Wkea's summit did not violate public trust principles or provisions of the Hawai'i Constitution requiring public natural resources to be held in trust by the state for the benefit of the people, even though the summit was considered a public natural resource under the provision. The court reasoned that “astronomy and Native Hawaiian uses on Mauna Kea have co-existed for many years and the TMT Project will not curtail or restrict Native Hawaiian uses.”

Given that Hawai'i's laws embody a strong commitment to restorative justice, these conclusions are startling. Article XII, section 7 of Hawai'i's Constitution, for example, affirms the state's obligation to “protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of [N]ative Hawaiians who inhabited the Hawaiian Islands prior to 1778.” Moreover, judicial precedent such as Public Access Shoreline Hawaii v. Hawaii County Planning Commission (“PASH”) and Ka Pa'akai O Ka 'Aina v. Land Use Commission (“Ka Pa'akai”) exemplify a responsibility to operationalize reconciliation and restorative justice values to redress the harms to Native Hawaiians over the last century. “Hawai'i's people ... ratified th[e]se obligations, even though the state as a whole has struggled to actualize this commitment.”

This Article recognizes that culture is adaptive through time, and must be, to persist through the diverse and pervasive changes brought on by colonization, settler colonialism, and climate change. In doing so, it posits that Hawai'i's laws should afford Native Hawaiians the ability to develop new manifestations of the fundamental values, worldviews, relationships, and religions that undergird Maoli culture as part of their ability, as a people, to express self-determination in a modern era. In re TMT, and the litany of injustices surrounding Mauna a Wkea, serve as poignant examples that illuminate both the shortfalls of legal formalism and the need for discussion and solutions to protect contemporary and emerging Native Hawaiian practices. Moreover, this Article illustrates how a “right to living culture”--a right to maintain, protect and develop the past, present, and future manifestations of culture--can accommodate the rights of Native Hawaiians living now and beyond the 21st century. For this Article, “contemporary” practices are traditional and customary in nature (existed prior to 1778), but are effectuated in the present-day and may contain modern modifications. “Emerging” practices are those created after 1892, including those currently evolving and are products of the present-day contexts in which Native Hawaiians live.

Part II of this Article reviews the impetus for this paper: the transformations of Maoli culture in view of colonization and settler colonialism, the current and future impacts of climate change on Maoli ways of life, and legal formalism's key shortcomings as they relate to Native Hawaiian rights and practices. Part III uses In re TMT as a case study to demonstrate how formalism hinders Native Hawaiians' ability to assert self-determination through cultural practices. It provides an analysis of the outcomes of In re TMT using the “Four Values of Restorative Justice” framework, which centers on four realms or “values” of restorative justice embodied in the human rights principle of self-determination. The analysis reveals a need for discussion on--and potential solutions for--protecting contemporary and emerging Native Hawaiian practices in light of Hawai'i's history, laws, and sociopolitical context. Part IV articulates a “Right to Living Culture” rooted in the restorative justice and self-determination provisions of Hawai'i's laws and international human rights principles, and advances an expanded analytical interpretation of the Ka Pa'akai restorative justice framework to operationalize this right. This interpretation assures that a right to living culture is read into Ka Pa'akai's effectuation by providing specific analytical guidance for each element of the framework. As a result, all Native Hawaiian rights, practices, and resources--those that are traditional, customary, contemporary, and emerging--should be more thoroughly considered, and the right to living culture upheld.

[. . .]

In recognizing there is still much work ahead to change the legal discourse around what it means to meaningfully possess a right to self-determination and living culture, I encourage us to reflect on the oli performed by kia'i on Mauna a Wkea:

He aha la he kkulu, he mauna

What is a pillar, a mountain

He aha la he kkulu, he ahu

What is a pillar, an altar

He aha la he kkulu, he p haku

What is a pillar, a rock

He aha la he kkulu, he kanaka

What is a pillar, a person

This chant embodies my call for the legal recognition of a right to living culture. Through its metaphors likening a mountain, an altar, a rock, and a person to one another, the chant asserts a Native Hawaiian worldview--a perspective that 'ina and Knaka Maoli are one in the same. It exemplifies the ideas shared in Part II of this Article detailing the breadth and depth of Maoli cultural innovation.

This oli also directly ties us to the K Kia'i Mauna Movement, and the Supreme Court's decision in In re TMT that spurred Native Hawaiians to protect Mauna a Wkea by acting as physical pillars of resistance to the Thirty Meter Telescope. This oli represents the discussion provided in Part III, which uses the case study of Mauna a Wkea to evaluate the current treatment of Native Hawaiian rights in the courts, and the need to protect contemporary and emerging cultural practices into the future.

Lastly, the simple existence of this chant is an comteporary manifestation of Native Hawaiian culture itself. Created out of necessity and in response to In re TMT, it is the kind of cultural innovation that the recommendations in Part IV intend to protect. While there is indeed work ahead, it is my hope that an initial articulation of a “Right to Living Culture” and expanded analytical interpretation of the Ka Pa'akai restorative justice framework gets us closer than we were before.

Like my ancestors before me, this paper strives to be forward-thinking. I understand that there may be opposition to it; it is true that not everyone, including Native Hawaiians, think homogeneously on all issues. Yet, the law as it currently stands does not and cannot accommodate the mo'olelo of Maoli people. In the words of Indigenous author and poet Julian Aguon, “the matter of our survival at law will depend on our ability to bend, stretch, think, imagine--in short, our ability to reanimate the law to reflect the real.” At bottom, I hope this paper demonstrates that one of our most powerful ways to aloha 'ina is to actively assert our existence through our practices every day, in every way, and in every place within and beyond Hawai'i. Collectively, our customs are kkulu in defense against settler colonialism, climate change, and future difficulties we can't yet see. This Article is my humble attempt at being a good ancestor. It is my love letter to the Lhui. And in many ways, an ahu itself--a symbol of Maoli resistance, persistence, and existence.

Hi'ilei Kamaile Casco is a kupa of Wai'ehu, Lhaina, and Kaup, Maui. She graduated from the William S. Richardson School of Law in 2023 with certificates in Native Hawaiian Law and Environmental Law to nurture her passion for upholding and improving legal protections for the livelihoods of native communities, as well as their ability to understand and utilize legal resources in ways they can embrace and be co-powered by.