Native Hawaiian Scholars Respond to The Crown Lands Trust: Who Were, Who Are, the Beneficiaries?

Letani Peltier, Post-J.D. Legal Fellow

Who Owns The Crown Lands, published by the late Professor Jon Van Dyke in 2008, represents over ten years of thorough scholarship, research, and analysis on Native Hawaiian moral and legal claims to lands lost through the illegal overthrow of 1893. In the Winter of 2016, the University of Hawaiʻi Law Review published an article, The Crown Lands Trust: Who Were, Who Are, the Beneficiaries?, by the late Intermediate Court of Appeals Judge James S. Burns, which challenged Van Dyke’s conclusions—specifically alleging that Native Hawaiians have no special claims to the so-called “ceded lands.” The Burns article elicited a quick response from some of the top scholars in Native Hawaiian law, which was collectively published in the Summer 2017 edition of the University of Hawai‘i Law Review.

When Professor Jonathan Osorio first reviewed Who Owns the Crown Lands in 2008, he recognized the book’s value as a counter-narrative to the “onslaught of ‘puka’ scholarship” developed to justify the “blanket theft of the Crown and Kingdom lands and their subsequent transformation into a ‘public use’ regime.” Now, a decade later, Professor Osorio has teamed up with Professor Kamanamaikalani Beamer to once again defend Professor Van Dyke’s solid research and compassionate approach in Sullying the Scholar’s Craft: An Essay and Criticism of Judge James S. Burns’ Crown Lands Trust Article. Whereas Professor Van Dyke’s liberal attention to Maoli voices allowed him to achieve a deeper understanding of the context underlying the Crown, Professors Osorio and Beamer point out that Judge Burns’ article ignores an entire generation of scholarship, with only one citation of a contemporary work authored by a Native Hawaiian. In terms of new research or facts, the authors contend, Judge Burns’ article offers nothing but “the same narrative of greedy Aliʻi Nui, and an incompetent Kingdom government meeting its rightful demise because of the work of dedicated and freedom-loving haole.”

In A Collective Memory of Injustice: Reclaiming Hawai‘i’s Crown Lands Trust in Response to Judge James S. Burns, Professors Melody Kapilialoha MacKenzie and D. Kapua‘ala Sproat call to our attention the relationship between collective memory and struggles for justice. Since the Hawaiian renaissance of the 1970s, new scholarship and research have greatly informed our understanding of the events leading up to the 1893 illegal overthrow of the Hawaiian Kingdom. By redressing the historical inaccuracies of the previously dominant Western narrative, such scholarship has reshaped our understanding of the injustices that have occurred, thus setting the foundation for reparative action in the future. Professors MacKenzie and Sproat are not surprised that “reactionary forces are attempting to resurrect the colonizer’s memory of Hawaiʻi’s history and silence the indigenous narrative.” According to the article, Judge Burns’ article feeds directly into this effort by ignoring nearly forty years of scholarship and distorting the collective memory of the injustices committed against Kānaka Maoli. Whether intentional or not, Judge Burns’ article actively constructs the past in a misleading way and undermines modern-day efforts for remedial action.

Professor Avis Kuuipoleialoha Poai, in Tales from the Dark Side of the Archives: Making History in Hawai‘i Without Hawaiians, looks to the source of Judge Burns’ arguments and finds that his article relies heavily on authority that is questionable. For example, Judge Burns’ article relies almost exclusively on volume 3 of Ralph S. Kuykendall’s The Hawaiian Kingdom. Kuykendall himself relied primarily on three English-language newspapers, which were “infamous for espousing particularly anti-monarchical and racist sentiments.” Professor Poai cites noted scholar Linda Tuhiwai Smith to remind us that Indigenous peoples frequently struggle against the Western view of history. “We have often allowed our ʻhistories’ to be told and have become outsiders as we heard them being retold.” For Kānaka Maoli, the struggle for self-determination is intertwined with our ability to tell our own stories and have our history recognized more broadly.

Professor Troy Andrade wraps up the response to Judge Burns’ article in (Re)righting History: Deconstructing the Court’s Narrative of Hawai‘i’s Past by focusing on the larger issue of the U.S. Supreme Court’s reliance on an inaccurate characterization of Hawaiʻi’s history. In Rice v. Cayetano, for example, the majority opinion “ignored, erased, and revised the history of Native Hawaiians and created a uniquely American narrative of the past.” In short, the Rice decision held that Native Hawaiians are a “racial rather than a political group” and thus the state constitution’s Native Hawaiian requirement for Office of Hawaiian Affairs’ trustee elections violated the 15th Amendment. In reaching this conclusion, the Court relied on an oversimplified and decontextualized recitation of history that largely disregarded “America’s involvement in the overthrow and subjugation of the Hawaiian political body.” By re-writing history in this manner, the Court lessens the United States’ culpability, which slows down reconciliatory efforts. However, according to the author, the real danger of the Rice majority opinion’s narrative is that as future Courts rely on this racist and misleading history, it slowly gains traction and becomes the official history of Hawaiʻi so far as the federal legal system is concerned. Inaccurate information can be incredibly persuasive when coming from an authoritative source—which is why it is so important to address misinformation before it becomes the dominant narrative.

Although decades of historical research and academic debate have left us with a more informed understanding of Hawaiʻi’s history, the struggle for justice continues. Judge Burns’ article, in its attempt to revitalize an outdated narrative of history, serves as a reminder that our position is fragile and always at risk if left undefended. Mahalo to those vigilant scholars who shared their manaʻo in the Summer 2017 edition of the University of Hawai‘i Law Review. It is through their hard work that we continue to preserve the efforts of those who came before us.