This Introduction is an excerpt from https://manoa.hawaii.edu/kahuliao/wp-content/uploads/sites/122/2023/03/The-Duty-To-Aloha-Aina.pdf by D. Kapua‘ala Sproat* and MJ Palau-McDonald**

I. INTRODUCTION

Hawaiian language newspapers (nu ̄pepa) were a vital forum for public discourse and cultural expression, especially in the wake of the illegal over- throw of the sovereign Kingdom of Hawai‘i in 1893.1 As the social media of their era, nu ̄pepa now provide invaluable insight into Native Hawaiian2 life, culture, values, and more.3 An 1895 article deconstructed the cultural tenet of aloha ‘a ̄ina, describing it as the “magnetic pull within the hearts of a people, compelling them to live sovereignly in their own homeland.”4 An- other article highlighted the power of aloha ‘a ̄ina, detailing how, in the same way that objects can become magnetized, people “imbued with aloha for their land can pass on their aloha” to others.5 They “can introduce people,

* Professor of Law, William S. Richardson School of Law, University of Hawai‘i at Ma ̄- noa. Mahalo piha to Kala ̄, Ola, and Ulu for their unwavering koˆkua and aloha. This article would not have been possible without the guidance and support of Eric Yamamoto, Kamanamaikalani Beamer, MJ McDonald, Devin Kamealoha Forrest, and Hi‘ilei Casco. Mahalo no ̄ ho‘i to Melody MacKenzie, Susan Serrano, and Cory Lenz.

** J.D., William S. Richardson School of Law, University of Hawai‘i at Ma ̄noa, 2022. Mahalo nui to Kapua Sproat for her brilliance and mentorship, as well as to Devin Kamealoha Forrest, Hi‘ilei Casco, Gretchen, Steve, and Holland.

1 See M. Puakea Nogelmeier, Mai Pa‘a i ka Leo: Historical Voice in Hawaiian Primary Materials, Looking Forward and Listening Back 102–26 (Dec. 2003) (Ph.D. thesis, University of Hawai‘i Ma ̄noa) (on file with author). From 1843 to 1948, over 100 Hawaiian language newspapers were printed. Id. The independent press elevated native voices, scholarship, and culture, and epitomized the decentralization and sharing of Indigenous knowledge. Id. These newspapers represent one of the greatest repositories of traditional language. Id.; see also Kamanamaikalani B. Beamer, Ali‘i Selective Appropriation of Modernity: Examining Colonial Assumptions in Hawai‘i Prior to 1893, 5 ALTERNATIVE 139, 151 (2009) [hereinafter Beamer, Selective Appropriation].

2 This Article uses Native Hawaiian, native Hawaiian, Hawaiian, Ka ̄naka ‘ ̄Oiwi, ‘ ̄Oiwi, Ka ̄naka Maoli, and Ka ̄naka interchangeably and without reference to blood quantum. Ka ̄naka ‘ ̄Oiwi and Ka ̄naka Maoli are the Indigenous Hawaiian names for the population inhabiting Hawai‘i at the time of the first western contact. MARY KAWENA PUKUI & SAMUEL H. ELBERT, HAWAIIAN DICTIONARY 127 (1986) [hereinafter HAWAIIAN DICTIONARY] (noting that Ka ̄naka Maoli historically referred to a full-blooded “Hawaiian person”).

3 See generally Nogelmeier, supra note 1, at 102–26.

4 Ke Aloha Aina; Heaha Ia‘, KE ALOHA AINA, May 25, 1895, at 7 (“‘O ke Aloha ‘a ̄ina, ‘o ia ka ‘Ume Ma ̄ge ̄neti i loko o ka pu‘uwai o ka La ̄hui, e ka ̄ohi ana i ka noho Ku ̄‘okoa Lanakila ‘ana o kona one ha ̄nau pono‘ ̄ı.”) (translation by Devin Kamealoha Forrest, diacriticals added).

5 Ka Mana o Ka Mageneti, KE ALOHA AINA, May 25, 1895, at 7 (“Ua hiki i na ̄ ma ̄kua i piha i ke aloha i ka ‘a ̄ina e ‘a ̄nai aku i ka ‘ume e aloha i ka ‘a ̄ina i loko o ka ̄ la ̄kou mau keiki a lilo ke ̄la ̄ mau keiki i mau keiki kaulana no ko la ̄kou ‘a ̄ina makuahine.”) (translation by Devin Kamealoha Forrest, diacriticals added).

 

526 Harvard Civil Rights-Civil Liberties Law Review [Vol. 57

their children, and their families until they too are imbued with the Magnet- ism of Aloha ‘a ̄ina.”6

Over the intervening century, aloha ‘a ̄ina has maintained its cultural significance, and, indeed, interest in it has increased as aloha ‘a ̄ina has evolved from a cultural value into a legal requirement.7 This Article explores the Hawai‘i Supreme Court’s articulation of the legal duty to aloha ‘a ̄ina in Ching v. Case. That decision embraced and uplifted this cultural precept, and Native Hawaiian values more broadly, acknowledging them as foundational for Hawai‘i law and the Public Trust Doctrine in particular.8 This Article situates Ching within the caselaw’s and the state constitution’s embrace of restorative justice. Despite the pathbreaking nature of the opinion and favorable Hawai‘i law, the limitations of legal formalism—particularly when attempting to heal the harms that flow from colonization—and the court’s failure to deploy an analytic framework to operationalize the duty to aloha ‘a ̄ina threaten to limit the impact of that decision. This Article then argues that these limitations are best addressed by deploying contextual legal inquiry—the Four Values of Restorative Justice—to make the decision’s groundbreaking promise real.

Today, many within and beyond Hawai‘i’s shores fail to appreciate the full meaning of “aloha ‘a ̄ina.” Literally translated, aloha can mean love, grace, or affection, and it is often used as a greeting or farewell.9 Yet it also denotes mercy, respect, and more.10 ‘ ̄Aina is that which feeds, including land and natural and cultural resources. But ‘a ̄ina is also an ancestor, an extension of the family, and the physical embodiment of different akua (gods or ances- tors).11 It is sacred and revered. Because of the deep and profound meanings associated with each component word, the phrase aloha ‘a ̄ina is difficult to translate into English; it is a philosophy, relationship, and cultural obligation that is visceral for Ka ̄naka. It is a piko, or umbilical cord that tethers us as Indigenous People to Hawai‘i and defines our place in this universe. Aloha ‘a ̄ina invokes kuleana: the right and corresponding responsibility to care for Hawai‘i’s natural and cultural resources for present and future generations.12

6 Id. (“Pe ̄la ̄ no ̄ na ̄ ka ̄naka i piha i ke aloha no ko la ̄kou ‘a ̄ina ha ̄nau pono‘ ̄ı. Ua hiki ia ̄ la ̄kou ke ho‘olauna mai i na ̄ ka ̄naka a me na ̄ keiki a me na ̄ ‘ohana o la ̄kou a [lilo‘] mai ia ̄ la ̄kou i loko o ka ‘ume Ma ̄ge ̄neti o ke Aloha ‘a ̄ina.”) (diacriticals added).

7 See NOELANI GOODYEAR-KA‘O ̄PUA, THE SEEDS WE PLANTED: PORTRAITS OF A NATIVE HAWAIIAN CHARTER SCHOOL 31–34 (2013); Kamanamaikalani Beamer, Tu ̄tu ̄’s Aloha ‘a ̄ina Grace, in THE VALUE OF HAWAI‘I 2 (Aiko Yamashiro & Noelani Goodyear-Ka‘o ̄pua eds., 2014) [hereinafter Beamer, Tu ̄tu ̄’s Aloha ‘a ̄ina Grace]; Ching v. Case, 449 P.3d 1146, 1160 (Haw. 2019).

8 Both the lower court and the Hawai‘i Supreme Court recognized a “duty to ‘malama ‘aina,’ which the court translated as ‘to care for the land.’” Ching, 449 P.3d at 1160. The term “ma ̄lama ‘a ̄ina” is relatively new and is likely a product of the 1960s or 1970s. Because Ka ̄naka articulated and perpetuated this practice as aloha ‘a ̄ina, this Article will also use that.

9 See HAWAIIAN DICTIONARY, supra note 2, at 21.
10 See id.; see also GOODYEAR-KA‘O ̄PUA, supra note 7, at 31–33.
11 See HAWAIIAN DICTIONARY, supra note 2, at 15; see also infra Part II.
12 See HAWAIIAN DICTIONARY, supra note 2, at 179; see also Beamer, Tu ̄tu ̄’s Aloha ‘a ̄ina

Grace, supra note 7, at 2, 15 (“Aloha requires one to speak and act out in the face of injustice.

2022] The Duty to Aloha ‘ ̄Aina 527

And now, because of the Ching decision, aloha ‘a ̄ina is also a legal duty imposed on state and local decisionmakers as fiduciaries of the Public Trust and Public Land Trust that is available for enforcement by beneficiaries of those trusts, including Native Hawaiians.13 Yet this legal victory raises an important question: how, if at all, will aloha ‘a ̄ina as legal duty impact the larger struggle of Native Hawaiians and other historically underrepresented communities—who have been a training ground for the U.S. military—to combat resource dispossession?

All of this comes together at Po ̄hakuloa, a vast plain of lava fields and native dryland forest on the Island of Hawai‘i that is home to archaeological sites, high concentrations of native plants and animals, and the largest mili- tary installation in the archipelago. On this windswept upland plateau, mili- tary training with live ammunition and explosives has persisted for over half a century, utilizing nearly 23,000 acres held in trust by the State of Hawai‘i’s Department of Land and Natural Resources (“DLNR”) for five purposes, including bettering the conditions of Native Hawaiians.14 In 1964, DLNR charged the U. S. military one dollar for a 65-year lease of this sacred ‘a ̄ina.15

In 2014, two Native Hawaiian cultural practitioners with ancestral ties to the area—Clarence Ku ̄ Ching and Mary Maxine Kaha ̄’ulelio—sued DLNR for its failure to adequately care for trust resources at Po ̄kahuloa under lease to the military.16 The plaintiffs contended that Hawai‘i’s Consti- tution requires DLNR to diligently protect trust lands from degradation and that, by neglecting to investigate whether the military is following the terms of the lease, DLNR violated its trustee duties, which include a kuleana—a duty—to aloha ‘a ̄ina.17

The trial court’s 2018 decision, which the Hawai‘i Supreme Court up- held, highlighted new dimensions of Hawai‘i’s Public Trust and Public Land Trust, including their grounding in Indigenous culture and values. Uncle Ku ̄ and Aunty Maxine’s aloha ‘a ̄ina compelled them to take action to ensure that

Aloha is active and something that needs to be put into practice, not something that is a state of being.”).

13 See Ching, 449 P.3d 1146.
14 Id. at 1150; see Admission Act of March 18, 1959, § 5(f), Pub. L. No. 86-3, 73 Stat 4. 15 ROBERT H. HORWITZ, JUDITH B. FINN, LOUIS A. VARGHA & JAMES W. CEASER, LEGIS.

REFERENCE BUREAU, REP. NO. 5, PUBLIC LAND POLICY IN HAWAII: AN HISTORICAL ANALYSIS 76 tbl.9(B) (1969); Ching, 449 P.3d at 1150.

16 First Amended Complaint for Declaratory Judgment and Injunctive Relief ¶¶ 1, 56–62, Ching v. Case, No. 14-1-1085-04 GWBC, 2018 WL 11225507 (Haw. Cir. Ct. Apr. 3, 2018) [hereinafter First Amended Complaint]. Uncle Ku ̄ and Aunty Maxine named three defendants in this case: Suzanne Case in her capacity as the Chair of the Board of Land and Natural Resources and State Historic Preservation Officer; the Board of Land and Natural Resources; and the Department of Land and Natural Resources. Id. ¶¶ 3–5. This Article will collectively refer to these defendants as “DLNR.”

17 Id. ¶¶ 1, 56–62.

528 Harvard Civil Rights-Civil Liberties Law Review [Vol. 57

ancestral land was better stewarded.18 This deep commitment to place and practice magnetized others, and the court then imbued DLNR with the duty to aloha ‘a ̄ina. This Article delves into this incipient legal duty and its poten- tial to further magnetize Hawai‘i law and the Public Trust Doctrine in particular.

Part II provides the cultural and historical context for the duty to aloha ‘a ̄ina as a foundation for Native Hawaiian culture and society. It also high- lights the role of Indigenous custom and tradition, including aloha ‘a ̄ina, as a background principle of property law in Hawai‘i.

Part III uplifts the vital role of restorative justice as a vehicle for trans- formative change, especially for Indigenous People still living with the ves- tiges of colonization, including cultural destruction, resource dispossession, and the loss of self-governance. It underscores the significance of Hawai‘i’s unique legal regime, grounded in Native Hawaiian values, customs, and tra- ditions and its commitment to restoring that which was taken or destroyed. It also distills Hawai‘i’s Public Trust and Public Land Trust, including emer- gent understandings of these legal doctrines, with a focus on the role of Indigenous culture and values.

Part IV elucidates the duty to aloha ‘a ̄ina as a basic tenet of Hawai‘i’s Public Trust by deconstructing Ching v. Case and, in particular, the vital role of restorative justice in beginning to repair the harms of colonization. Hawai‘i’s embrace of restorative justice principles in its dealings with Native Hawaiians opens the door to international human rights norms of self-deter- mination for Indigenous Peoples, offering a powerful example of how they can be infused into local laws to provide meaningful remedies for environ- mental and cultural damage.

Yet as Part V explores, Ching v. Case and its court-ordered Manage- ment Plan are not without limitations. The legal process still struggles to deliver restorative justice for Native communities, especially in complex cases with cultural and environmental components. This Part offers insight into how the law actually operates for Native Peoples, and how legal formal- ism shrouds the dynamics of decisionmaking. It also highlights how contex- tual legal analysis, a jurisprudential approach grounded in the new legal realism, is key to actualizing restorative justice in a broad array of Indige- nous Peoples’ claims. It proffers the Four Values of Restorative Justice as an analytic framework to meaningfully engage restorative justice claims and operationalize the duty to aloha ‘a ̄ina.

18 Zoom Interview with Clarence Ku ̄ Ching, Named Plaintiff, Ching v. Case (July 10, 2021) [hereinafter Ching Interview]. Consistent with Native Hawaiian custom and tradition, this Article refers to revered elders as “Uncle” or “Aunty.”