In a recently published article, Chief Judge James S. Burns (retired) contends that the Hawaiian Crown Lands were owned by all the people of Hawai'i. 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 Hawai'i’s complex political and legal history. The article specifically relies upon two Supreme Court opinions, Rice v. Cayetano and Hawai'i 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 Hawai'i’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.The second, Legacy in Paradise: Analyzing the Obama Administration's Efforts of Reconciliation with Native Hawaiians, appears in the Michigan Journal of Race & Law 22 (2017): 273-326:
This Article analyzes President Barack Obama’s legacy for an indigenous people — nearly 125 years in the making — and how that legacy is now in considerable jeopardy with the election of Donald J. Trump. This Article is the first to specifically critique the hallmark of Obama’s reconciliatory legacy for Native Hawaiians: an administrative rule that establishes a process in which the United States would reestablish a government-to-government relationship with Native Hawaiians, the only indigenous people in America without a path toward federal recognition. In the Article, Obama’s rule — an attempt to provide Native Hawaiians with recognition and greater control over their own affairs to counter their negative socio-economic status — is analyzed within the historical and political context of a government coy to live up to its reconciliatory promises. The Article analyzes past attempts to establish a government-to-government relationship and considers new avenues for reaching this end. The Article concludes that although the rule brings the federal government closer to its ideals of justice, it does not go far enough to engender true social healing, specifically because of the uncertainty that the rule will be followed by a conservative Trump Administration that will likely be hostile toward Native Hawaiians and other indigenous communities.