Originally published by the Diversity & Social Justice Forum Volume 3, pages 14-27 (2017).

I ka ʻōlelo nō ke ola, i ka ʻōlelo nō ka make.

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 Hawaiian language 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 Renaissance

In the 1970s, Hawaiʻi was witness to an extraordinary Native Hawaiian renaissance that revitalized an indigenous people long subjected to Western colonial domination and suppression.1 This renaissance was multifaceted and complex. On one level, it was a cultural renaissance, as it heralded a resurgence of interest in various aspects of Native Hawaiian heritage: traditional chants (oli), music, and dance (hula kahiko); the cultivation of traditional crops such as taro (kalo) and the practice of aquaculture through the use of fishponds (loko iʻa), both by means of ancient methods; and the spiritual practices of the ancient religion, including the preservation and maintenance of sacred spaces. Moreover, the renaissance gave rise to a renewed interest in learning the Native Hawaiians’ ancestral methods of navigation. In 1976, the newly-founded Polynesian Voyaging Society2  launched the Polynesian voyaging canoe Hōkūleʻa (“Star of Gladness”), which made a revolutionary journey to Tahiti and back by means of those ancient navigation techniques, using only celestial signs and ocean currents as guides.3

On another level, the Native Hawaiian renaissance was political, as it precipitated long overdue official recognition of Native Hawaiian rights. To this end, the Hawaiʻi State Constitutional Convention in 1978 enacted amendments to the Hawaiʻi State Constitution that committed the state to the preservation and promotion of Native Hawaiian culture. One of these amendments established the Office of Hawaiian Affairs, charged with the mission of improving the well-being of Native Hawaiians. The sovereignty movement for Native Hawaiian self-determination also gained ground during the renaissance, as Native Hawaiian political leaders and activists belonging to different grassroots organizations began organizing and demonstrating on a regular basis for the sovereignty cause.4

“By 1983, there were only two thousand native speakers in Hawaiʻi.”

Especially crucial, however, to the Native Hawaiian renaissance was the start of the revitalization of the Hawaiian language (ʻōlelo Hawaiʻi). The language had been banned in 1896 as a medium of instruction in schools, and almost eighty years later, it was in serious danger of extinction.

By 1983, there were only two thousand native speakers in Hawaiʻi, including fifty under the age of eighteen, in addition to a number of much older native speakers, most of them living in a community of full- blooded Native Hawaiians on the small island of Niʻihau.5 Via a constitutional amendment in 1978, the state had designated Hawaiian as one of the two official languages of Hawaiʻi. Due to the concerted efforts of a grassroots organization of parents who wanted Hawaiian to be their children’s primary language, independent Hawaiian immersion schools began operating in 1984.6 These were the first official immersion schools in the United States with an indigenous language as the medium of instruction. In 1987, the state Board of Education agreed to a pilot program of Hawaiian language immersion in selected public schools.7 Full-fledged Hawaiian language programs and Hawaiian studies programs—taught in Hawaiian—at the University of Hawaiʻi, which had gotten off the ground in the 1970s, burgeoned in the 1980s.8

This process of language revitalization has served as an attempt to resist the colonialist suppression that the language had undergone over the past century and a half.

“The language of a people is an inextricable part of the identity of that people. Therefore, a revitalization of a suppressed language goes hand in hand with a revitalization of a suppressed cultural and political identity.”

The language of a people is an inextricable part of the identity of that people. Therefore, a revitalization of a suppressed language goes hand in hand with a revitalization of a suppressed cultural and political identity. Revitalizing the Hawaiian language means revitalizing Native Hawaiian identity. This Native Hawaiian identity was erased in the nineteenth century by a “language shift and sovereignty shift in government and education domains” that were “simultaneous and symbiotic.”9 Just as English supplanted the Hawaiian language as the language of education and governance, so did the United States supplant Hawaiian sovereignty. Indeed, the linguistic dominance of English was largely dependent upon the language being granted the “sole legitimacy of governance.”10

In a number of ways, the revitalization of the Hawaiian language is no longer suppressed as it once was. It is now recognized, of course, as one of Hawaiʻi’s two official languages.11 It is now possible to receive a K-12 Hawaiian- medium education in selected public schools. The University of Hawaiʻi at Hilo offers graduate degrees taught in Hawaiian: an M.A. in Hawaiian Language and Literature and Hawaiian12 and a Ph.D. in Indigenous Language and Cultural Revitalization.13 The official state motto and anthem are in Hawaiian.14 The state and municipal governments use official Hawaiian orthography for words and names in official documents and street signs.15 There is a weekly radio program broadcast entirely in Hawaiian.16 There is also a television station that broadcasts programs in Hawaiian,17 and the prestigious hula competition at the Merrie Monarch Festival is now broadcast in both English and Hawaiian.18 Banks in Hawaiʻi even accept checks drafted in Hawaiian.19
Yet in other ways, the current situation belies the Hawaiian language’s designated official status. The total number of speakers (including second-language speakers) is estimated to be just over 18,000 out of a state population of 1.4 million.20 Advocates for Hawaiian immersion schools have regularly faced uphill battles for recognition and state funding, notwithstanding the commitment to the preservation and promotion of Native Hawaiian culture in the state constitutional amendments of 1978. These advocates have also faced the skepticism of those who believe that Hawaiian immersion schools will produce individuals who are monolingual and unable to make their way in a country where English is the de facto official language. Moreover, despite its official status, Hawaiian is not an official language of government in Hawaiʻi. Article XV, Section 4 of the Hawaiʻi State Constitution designates English and Hawaiian as the state’s official languages, “except that Hawaiian shall be required for public acts and transactions only as provided by law.” With very few exceptions, state statutes and city ordinances are published only in English. Courts neither accept documents in Hawaiian nor allow Hawaiian to be spoken in court proceedings.

The revitalization of the Hawaiian language and Native Hawaiian identity thus continues to face various challenges. For all the achievements of the Native Hawaiian renaissance, and despite the progress that the language has made over the past forty years in avoiding extinction, the Hawaiian language is still far from being an official language in practice. The aim of this paper is to interrogate the Hawaiian language’s status as an official language of Hawaiʻi by examining how and why suppression of the language continues to this day, both in ways that are different from those implemented in the nineteenth century, but also in ways that are not very different at all. Part II of the paper will trace the history of the colonialist suppression of the language, from the arrival of the missionaries in the 1820s to the years following statehood in 1959. Part III will trace the key steps taken towards the revitalization of the language during and after the Hawaiian renaissance. Part IV will examine the ways in which suppression of the language is still ongoing in the face of this revitalization. Part V will discuss a number of steps that might be taken to solidify the status of Hawaiian as an official language of Hawaiʻi not just in theory, but also in practice.

II. The Colonialist Suppression of the Hawaiian Language

In what is generally known as the pre-contact period (i.e., before the arrival of the first Europeans in 1778), the Hawaiian language was entirely oral, and had no written form. It was rich, nuanced, and sophisticated, with words having a multitude of meanings (kaona), both literal and figurative, and it abounded in poetic concepts.21 Spoken words embodied a host of life forces (mana) with “significant physical and spiritual powers unknown in Western society.”22 The language developed a long tradition of oral literature, including chants, prayers, histories, myths, and traditional sayings.23 Traditional Native Hawaiian schooling took place first in the home and then through instruction via the equivalent of apprenticeships to elders. Apprentices were taught to “observe, listen, and imitate.”24

The American missionaries25 introduced Western-style formal schooling in 1824, but with Hawaiian as the initial medium of instruction.26 The missionaries found it urgent to educate the natives as quickly as possible in order to save them from what they perceived to be superstitious and immoral ways through conversion to Christianity. In addition, they believed that they would risk losing control over the natives if the population at large were to acquire English proficiency. To this end, the missionaries found it simpler to learn Hawaiian themselves and then to teach the natives in their own language. It was the missionaries who created an alphabet for the language, based on English. Having brought a printing press with them to Hawaiʻi, the missionaries were soon producing instructional materials, newspapers, and a Bible, all in the Hawaiian language.

Despite the success of the Hawaiian-medium schools, as shown by the high levels of literacy among Native Hawaiian adults in the 1850s,27 growing numbers of educators were advocating an “English mainly” policy by the middle of the century.28 In 1839, the missionaries had already established the Royal School, which was the first English- medium school in Hawaiʻi. This private school was intended to educate the Native Hawaiian elite (royalty and chiefs) who expressed a desire to learn a language that was quickly making its presence felt in the kingdom29 —not only due to the missionaries, but also because of the increasing influence of Westerners (largely Americans) in business and politics. Advocates of the “English mainly” policy viewed instruction in English as a logical response to the steadily increasing English- speaking population, the rapidly decreasing Native Hawaiian population (due to disease), the influx of immigrants, and the “heathen practices” of the Native Hawaiians that had persisted despite the missionaries’ best efforts.30 These advocates supported the establishment of English-medium government- run schools that would be open to all. These schools, which began operating in 1854, came to be better funded than the Hawaiian-medium schools and had more resources overall in terms of literature and teacher training.31 As a result, enrollments began to decline in the Hawaiian-medium schools. Growing numbers of Native Hawaiians started enrolling their children in the English- medium schools in order to take advantage of their superior resources. Even the Kamehameha Schools, founded later in the century (1887) for the education of Native Hawaiian children, began by using English as the sole medium of instruction. The decline of Hawaiian-medium schools increased through the latter half of the nineteenth century as the numbers of immigrants to Hawaiʻi increased, owing to the large- scale recruitment of workers for the sugar plantations. The children of immigrants were taught only in English-medium schools. By 1888, only 15.7 percent of all students were enrolled in Hawaiian-medium schools.32

Although Hawaiian was an official language of government in Hawaiʻi throughout most of the nineteenth century, its status shifted over the years. A statute enacted in 1846 required all laws to be published in both Hawaiian and English.33 Indeed, laws as well as all other government documents were bilingual, in order to meet the needs of both Native Hawaiians and Westerners.34 The Hawaiʻi Supreme Court had even initially legitimized Hawaiian as the dominant language, but Hawaiian came to be perceived as ill-adapted to the uses of lawmakers and the courts.35 In 1859, the Hawaiʻi legislature passed a law providing that the English version of any statute would be binding over the Hawaiian language version.36 Reenacted six years later, the law provided that “[w]henever there exists a radical and irreconcilable difference between the English and Hawaiian versions of the laws of the Kingdom, the English version shall be held binding.”37 Although the legislature included both Native Hawaiian and American representatives, the former group was largely missionary- educated, a fact that may have “sway[ed] government decisions toward dominant colonial activity.”38 By the end of the Kamehameha dynasty in the early 1870s, the legislature was publishing laws and documents in English first and having them translated into Hawaiian afterwards.39

There were, to be sure, some voices of resistance to the growing dominance of English in the kingdom. In 1864, the Native Hawaiian head of the Board of Education severely criticized the legislature’s practice of prioritizing English- medium schools over the Hawaiian-medium schools. He saw the preservation of the Hawaiian language as necessary for the kingdom’s identity as a Native Hawaiian nation, but instruction in English was teaching Native Hawaiians to view their own language as inferior and not worth preserving.40 There were even some missionaries who argued against these perceptions of the Hawaiian language as inferior.41

In the latter half of the nineteenth century, King David Kalākaua fostered a resurgence of Hawaiian culture42 in opposition to Western influences—yet this was met by counter-resistance on the part of government. Kalākaua sponsored efforts to permanently record ancient chants and genealogies in writing, supported performances of ancient music and hula, encouraged Native Hawaiian religious practices and ancient medicinal healing, and collected and preserved cultural artifacts.43 In 1883, during Kalākaua’s reign, the Hawaiʻi Supreme Court heard a case in which a non-Hawaiian printer was convicted of publishing a program of hula written in Hawaiian for Kalākaua’s coronation.44 The government deemed the hula to be obscene. The court reversed the conviction on the narrow grounds that the printer did not know Hawaiian and, therefore, had no criminal intent. The fact that the government criminalized the publication of Hawaiian and the court did not comment on the government’s obscenity claim indicated that the “free and open exercise of Hawaiian” was clearly coming to an end.45

The illegal overthrow of the Hawaiian Kingdom in 1893 by American businessmen (a number of whom belonged to missionary families), with the aid of military forces, dealt a crippling blow to the Hawaiian language. In 1896, the government of the new Republic of Hawaiʻi implemented an “English only” policy by enacting a law establishing English as the exclusive medium of instruction in both public and private schools.46 This law effectively banned all non- English languages (not just Hawaiian) as a medium of instruction. As an “English only” advocate observed, “With this knowledge of English will go into the young American republican and Christian ideas; and as this knowledge goes in, kahunaism, fetishism and heathenism generally will largely go out.”47 Since education in a language is crucial for language survival, the survival of the Hawaiian language was now put to an extreme test. In 1880, there were as many as 150 Hawaiian- medium schools still in operation.48 Prior to the 1896 law, there were seventy-seven; after 1896, only one of these schools remained.49 By 1902, it was gone.50 The very act of speaking Hawaiian was forbidden and severely punished in schools; teachers even paid home visits to reprimand parents for speaking Hawaiian to their children in their own homes.51 The Organic Act of 1900, which was enacted two years after the U.S. annexation of Hawaiʻi, ensured the dominance of English in the new Territory of Hawaiʻi by providing that all government business was to be conducted in English only.52

“These ‘English only’ laws were part of the federal government’s broader effort at the time to eradicate the indigenous languages of Native Americans on the mainland.”

These “English only” laws were part of the federal government’s broader effort at the time to eradicate the indigenous languages of Native Americans on the mainland, which included the removal of children to English-medium boarding schools.53 The goal of this “English only” policy was to assimilate, eradicate native cultures, and promote national unity via the creation of a national character; in addition, it had the added purpose of protecting indigenous people in their business dealings and transforming them into good citizens.54

After annexation, the Hawaiian language entered a linguistic dark age that was to last for a good part of the twentieth century. The language went underground and largely found refuge in some churches, particularly in sermons and various church publications.55 A small group of ministers from these churches taught the language at the University of Hawaiʻi for a period of thirty years.56 Yet the churches were unable to sustain the language for long, as the Hawaiian-speaking ministers died one by one and there were no qualified individuals to take their place.57 The language also disappeared from the public media. While over a hundred Hawaiian-language newspapers had been published since 1834, there was only one remaining in circulation by 1948.58 Moreover, there was no place for Hawaiian on the radio or on television.59 There were attempts in 1919 and 1935 to reintroduce the language into the schools by amending the 1986 law. But Hawaiian was to be reintroduced as a course of instruction rather than as a medium of instruction, and in the form of woefully inadequate lessons lasting ten minutes a day.60 Reversing the practice of a century of bilingual publication, the legislature enacted a statute in 1943 that required laws to be published in English only.61 When Hawaiʻi became a state in 1959 and tourism developed into a booming industry, the influx of English-speaking visitors and the commodification and debasement of Native Hawaiian culture for the benefit of these visitors only further reinforced the “English only” imperative in both education and government.62

III. The Revitalization of the Hawaiian Language

The revitalization of the Hawaiian language towards the end of the twentieth century began with acts of formal recognition by the supreme law of the state. The heightened public attention brought to Native Hawaiian culture and identity by the renaissance of the 1970s laid the foundations for three crucial amendments to the Hawaiʻi State Constitution in 1978. These amendments support, both directly and indirectly, the preservation and promotion of the Hawaiian language. First, Article XV, Section 4 recognizes Hawaiian as an official language of the state: “English and Hawaiian shall be the official languages of Hawaiʻi, except that Hawaiian shall be required for public acts and transactions only as provided by law.” This amendment gives what appeared to be legal status to a language that had been driven underground for almost a century and was rendered nearly extinct. Granted, the amendment includes a disclaimer to the effect that despite its official status, Hawaiian is not automatically deemed a language of government. Instead, the amendment allows for exceptions, “as provided by law,” to the rule that English remains the language of government in Hawaiʻi.

Second, Article X, Section 4 affirms the state’s commitment to promoting Native Hawaiian culture through educational programming in the public schools:

The State shall promote the study of Hawaiian culture, history and language. The State shall provide for a Hawaiian education program consisting of language, culture and history in the public schools. The use of community expertise shall be encouraged as a suitable and essential means in furtherance of the Hawaiian education program.

This amendment acknowledges the importance of including Native Hawaiian culture in the public school curriculum.63 While the amendment does not explicitly mandate instruction with the Hawaiian language actually used as a medium of instruction, it does clearly provide for the study of the language.64

Third, Article XII, Section 7 asserts the state’s commitment to protecting various Native Hawaiian rights: “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural, and religious purposes and possessed by ahupuaʻa65 tenants who are descendants of native Hawaiians who inhabited the Hawaiian islands prior to 1778, subject to the right of the State to regulate such rights.” This amendment covers the rights enjoyed by the ancient Native Hawaiians before European contact, including cultural rights. Granted, the amendment includes a disclaimer regarding the state’s prerogative to “regulate such rights,” which appears to limit the reaffirmation and protection of these rights asserted at the beginning of the section.

The renewed interest in revitalizing the Hawaiian language led to the establishment of the first Hawaiian-language immersion preschools in the early 1980s. Native Hawaiian parents seeking to raise their children to speak Hawaiian as their first language gathered together in 1983 to establish a nonprofit organization, ʻAha Pūnana Leo, Inc. (“Language Nest Corporation”) for the purpose of Hawaiian-medium instruction.66 The organization created the first Pūnana Leo immersion preschool in the following year, modeled after the successful Maori language preschools Te Kohango Reo in Aotearoa (New Zealand).67 Additional preschools opened in 1985.68

Because of the 1896 “English only” law, however, these initial Pūnana Leo immersion preschools did not operate under the auspices of the state Department of Education. As a result of intense lobbying efforts by ʻAha Pūnana Leo, the state legislature passed an amendment in 1986 to the 1896 law, allowing special projects using the Hawaiian language with approval by the state Board of Education.69 The Board itself then approved a pilot Hawaiian Language Immersion Program in 1987 for children wishing to continue with their immersion in the language after graduating from the Pūnana Leo preschools.

This pilot program, called Papahana Kula Kaiapuni, was gradually extended over the years, one grade per year, to grade 12.70 The goals of this pilot program were “to assist the Hawaiian-speaking families in the revitalization of the language and culture and maintain usage of the language, to assist those families who wish to integrate into the Hawaiian-speaking community by eventually replacing their home language with Hawaiian for future generations, and to assist those families who wish to use Hawaiian as a second or third language in interacting with the Hawaiian-speaking community.”71 In 1999, the first class of students to have received a K-12 education taught entirely in Hawaiian received their high school diplomas.72 In 2011, reports indicated that Hawaiian immersion students were maintaining a 100% graduation rate from high school, with over 80% going on to higher education.73 By 2015, twenty- one immersion schools across the state were educating about 2,000 students each year.74

“These charter schools provide students with an education that emphasizes Native Hawaiian culture and values.”

A network of seventeen public Native Hawaiian charter schools has also developed, partly out of a desire for autonomy from the traditional public school system and for the freedom to explore innovative pedagogical methods. These charter schools provide students with an education that emphasizes Native Hawaiian culture and values.75 While the instruction in some of these schools is in English, six of these schools are actual Hawaiian language immersion schools.76

In the 1990s, the revitalization of the Hawaiian language received legal validation through Congress. The federal Native American Languages Act (NALA), enacted in 1990, encourages the preservation and promotion of native languages by encouraging children to be educated in their own language.77 The Act applies to Native Americans, Native Alaskans, Aleut peoples, Native Hawaiians, and descendants of the aboriginal peoples of Pacific islands that are U.S. possessions or territories. Pursuant to § 2904 of the Act, “[t]he right of Native Americans to express themselves through the use of Native American languages shall not be restricted in any public proceeding, including publicly supported education programs.” The federal Native Hawaiian Education Act (NHEA), enacted in 1994, has the goal of improving educational opportunities for Native Hawaiians and restoring the linguistic integrity of the Hawaiian language.78 The Native Hawaiian Education Council, which implements programs under the NHEA, is comprised of members recommended by the Native Hawaiian community. The Council awards grants to Native Hawaiian educational and community-based organizations engaged in projects supporting Native Hawaiian education. Hawaiian- medium classroom instruction is on the list of prioritized projects eligible for these grants.

“The resolution thus grants implicit approval for future efforts to repair the relationship between the United States and the descendants of subjects of the kingdom.”

In 1993, Congress passed an Apology Resolution in official recognition of the illegal overthrow of the Hawaiian Kingdom in 1893.79 This joint resolution acknowledges the “historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian  people.”80 The resolution also notes the public apology granted in the same year by the United Church of Christ (the church of the missionaries sent to Hawaiʻi), which acknowledged its “historical complicity” in the illegal overthrow.81 The resolution expresses Congress’ “commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaiʻi, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people.”82 By acknowledging Native Hawaiian suppression and the need for reconciliation between Native Hawaiians and their colonial oppressor, the resolution thus grants implicit approval for future efforts to repair the relationship between the United States and the descendants of subjects of the kingdom. The illegal overthrow was a colonial act that led directly to the legal prohibition of the Hawaiian language in the schools as well as in government. Therefore, the resolution arguably apologizes as well for this legal prohibition of the language.83 While the resolution does include a disclaimer asserting that “[n]othing in this Joint Resolution is intended to serve as a settlement of any claims against the United States,”84 the resolution’s official gesture towards reconciliation efforts is nonetheless significant.

IV. The Ongoing Suppression of the Hawaiian Language

A. Education

While neither the federal nor state government generally cannot enact laws restricting the use of non-English languages,85 the government does not necessarily have an affirmative duty to provide non-English speakers with programs and/or services in their own language.86 Indeed, the Hawaiʻi state Board of Education has not recognized any affirmative duty to fully fund the Hawaiian language immersion schools. The Board’s official position in 1997 was that the program is a program of choice and not of right.87 Therefore, the immersion schools can and do receive funds if they are available, but not at the expense of other public schools and school programs where English is the medium of instruction.

A lack of adequate funding and support for the Hawaiian immersion schools gave rise in the 1990s to a legal challenge to the state Department of Education (DOE). At stake was the potential for such funding and support, in the form of curriculum materials and teacher training, to put the immersion schools on a level equaling or exceeding English- language instruction in the public schools. In Office of Hawaiian Affairs v. Department of Education, 951 F. Supp. 1484 (D. Haw. 1996), the Office of Hawaiian Affairs claimed that the DOE’s failure to provide sufficient support and resources for the immersion schools violated both state law and the Native American Languages Act (NALA). The State argued that OHA’s claim under NALA should be dismissed because NALA creates no enforceable rights or implied private right of action: in other words, NALA does not impose an affirmative duty on the state to provide what OHA requested.

The court ruled in favor of the DOE. It found that § 2904 of NALA provides that the “right of Native Americans to express themselves through use of Native American languages shall not be restricted in any public proceeding, including publicly supported education programs.” However, the court did not see this provision as creating an enforceable right: “at most it prevents the state from barring the use of Hawaiian languages in schools.”88 Yet the court failed to consider the historical context for the decline of Hawaiian-medium schools in the nineteenth century— particularly the fact that English-medium schools were better funded and enjoyed superior resources in comparison.89 The court also failed to acknowledge the skepticism (and even hostility) of certain DOE administrators and school principals regarding the viability of the Hawaiian immersion schools.90 The refiling of portions of the OHA’s lawsuit in 1998 led to a settlement in 2000 for increased funding for the immersion schools over the next five years, with the OHA partially matching funds allocated by the DOE.91

“The immersion schools as well as the Native Hawaiian charter schools have also come into conflict with the No Child Left Behind Act (NCLB) of 2001.”

The immersion schools as well as the Native Hawaiian charter schools have also come into conflict with the No Child Left Behind Act (NCLB) of 2001.92 The charter schools in particular have the autonomy to use innovative and culturally based pedagogical methods, but these methods do not meet the goals of the NCLB, which are based on standardization.93 The immersion schools have also encountered problems with the NCLB’s standardized testing requirements. Although these schools formally introduce English into the curriculum at a later stage than do English language schools, the NCLB assessment tests in English are still required for all students at the same time.94 There has been ongoing experimentation with standard assessment tests translated into Hawaiian, but with mixed results. In 2015, the DOE received a one-year waiver from the U.S. Department of Education that allowed third and fourth graders to take assessment tests written in Hawaiian.95

B. Government

The right to use the Hawaiian language in the courtroom was the subject of a legal challenge in 1994, sixteen years after Hawaiian was designated an official language in the state constitution. In Tagupa v. Odo, 843 F. Supp. 630 (D. Haw. 1994), a bilingual Native Hawaiian attorney (fluent in both Hawaiian and English) contested a court order requiring him to give his oral deposition in English for an employment discrimination lawsuit. He claimed that he had the right to give the deposition in Hawaiian. He argued that this right came from Article XV, Section 4 of the state constitution (recognizing Hawaiian as an official language) and from NALA (recognizing the right of Native Americans to express themselves through the use of Native American languages is not restricted in public proceedings).

“The right to use the Hawaiian language in the courtroom was the subject of a legal challenge in 1994, sixteen years after Hawaiian was designated an official language in the state constitution.”

The court ruled against the plaintiff. It rejected the argument based on the state constitution, holding that Article XV, Section 4 “provides little guidance” for the court to determine whether there indeed existed a right to give a deposition in Hawaiian.96 The court also held that it was not Congress’ intent to extend the reach of NALA, a statute that dealt primarily with education, to judicial proceedings in federal courts.97 In addition, the court decided that allowing depositions in Hawaiian would result in unnecessary delays and expenses involved in finding qualified interpreters. Because the plaintiff was bilingual and spoke English, it was more expedient for him to give his deposition in English.98 The court thus found practical concerns to be controlling.

Ultimately, the court found that “a definitive judicial determination of this issue is better left to the Hawaii state courts.”99 However, no state courts have yet interpreted the legal effect of Article XV, Section 4. The discouraging message conveyed by the Tagupa decision is that “language revitalization and perpetuation efforts end in the schools and homes, with no place in the government and the courts.”100

The holding in Tagupa stands in contrast with the holding in the 2003 case Commonwealth of the Northern Mariana Islands v. Guerrero.101 In this case, the appellant sought to overturn his conviction on the grounds that the trial court did not allow him to use the Chamorro language during trial. The appellant based his right to use Chamorro on Article XXII, Section 3 of the Commonwealth Constitution, which designates Chamorro as an official language of the Northern Mariana Islands, along with Carolinian and English. The Supreme Court of the Northern Mariana Islands reversed the trial court, holding that a native speaker of Chamorro or Carolinian has the constitutional right to speak that language in court.102 Indeed, this right applies even if that native speaker is fluent in English as well—as was the appellant in Guerrero.

The Tagupa holding also stands in contrast with the legal situation regarding the indigenous Māori language (Te Reo Māori) in Aotearoa (New Zealand).103 The Treaty of Waitangi Act of 1975104 created the Waitangi Tribunal, which had the authority to investigate Māori claims under the 1840 Treaty of Waitangi (by which Māori tribes arguably ceded sovereignty to England). The Tribunal recommended that official recognition of Te Reo Māori must be more than “mere tokenism . . . those who want to use our official language on any public occasion or when dealing with any public authority ought to be able to do so.”105

Although the court in Mihaka v. Police (1980) held that English was the official language of the courts,106 Te Reo Māori can now be used in any legal proceeding, thanks to ensuing legislation. The Treaty of Waitangi Amendment Act of 1985107 allowed the Tribunal to investigate claims dating back to the Treaty of 1840. The resulting Tribunal’s Report of 1986 on the Te Reo Māori claim considered whether the New Zealand Crown was obligated to preserve Te Reo Māori under the 1840 Treaty.108 The Māori Language Act of 1987 established the expressed right to speak Te Reo Māori in legal proceedings, regardless of the speaker’s English proficiency.109 This Act generated a number of court decisions, culminating in Wharepapa v. Police in 2002.110 In this case, the court held that a person “ought not to be presumed to have committed an offence merely because he is speaking a language other than English, particularly when the language being spoken is an official language of New Zealand.”111

V. Hawaiian as an Official Language of Hawaiʻi

What does the future portend for the Hawaiian language as an official language of the state? Having stepped back from the brink of extinction, the language has made remarkable progress over the past forty years. Yet the  fact remains that despite the ever-increasing numbers of individuals who now speak and write Hawaiian in immersion schools and in their homes, Hawaiian is not the language of government or the courts. Forty years ago, of course, it could not have been so. Today, the 18,000 individuals who identify Hawaiian as the language they speak at home show that it is a living language, and it is thriving. If the same kind of progress continues, the number of Hawaiian language speakers will only grow. The question, then, remains as to what it will truly mean for Hawaiian to be an official language of the state.

An important consideration with regard to this question involves the ways in which the state constitutional amendments of 1978 “can be used as a tool to increase benefits for Hawaiian speakers.”112 Although the court in Tagupa found “little guidance” in Article XV, Section 4 of the state constitution, there have been proposals regarding possible ways of framing the amendments so as to build a case for the use of Hawaiian in government and in the courts.

Because the court in Tagupa reasoned that the plaintiff was not actually prevented from giving his deposition, albeit in a language that he did not want to use, a distinction has arisen between an individual’s right of self- expression and the cultural right of a people.113 While the court in Tagupa viewed the plaintiff’s fluency in English as a practical solution to an immediate problem and saw no violation of his right to self- expression and due process, it failed to consider the significance of using the Hawaiian language as a means of revitalizing both the language itself and the culture of the Native Hawaiian people. If the use of Hawaiian is framed as a cultural right, then bilingualism is rendered meaningless: it would not matter whether an individual knows English or not.

“If the use of Hawaiian is framed as a cultural right, then bilingualism is rendered meaningless: it would not matter whether an individual knows English or not.”

There has been some discussion over how to affirm the cultural rights of Native Hawaiians by advocating for the traditional and customary rights of Native Hawaiians pursuant to Article XII, Section 7 of the state constitution. In Public Access Shoreline Hawaii v. Hawaiʻi County Planning Commission (PASH), 903 P.2d 1246 (Haw. 1995), the Hawaiʻi Supreme Court held that the state was obligated to protect Native Hawaiians’ legitimate exercise of traditional access and gathering rights that had been established by 1892. Hawaiʻi’s custom and usage law established English common law in Hawaiʻi in 1892, with a special exception for existing Hawaiian judicial precedent or established usage.114 In effect, this law subordinated English and American common law to traditional and customary Native Hawaiian practices. The court in PASH reaffirmed all traditional and customary rights existing under state law, and outlined “specific, although not necessarily exhaustive, guidelines” in interpreting the rights in Article XII, Section 7 of the state constitution.115 The right that is sought must be “reasonable” and “traditional” and in place prior to 1892.116 The state (or opposing party) must then show that some actual harm would result by implementation of this right.

The language of Article XII, Section 7 of the state constitution creates an enforceable right in ahupuaʻa tenants (tenants of the traditional Hawaiian land division) choosing to practice their traditions and customs under state law. The amendment specifically refers to these traditions and customs as “all rights, customarily and traditionally exercised for subsistence, cultural, and religious purposes and possessed by ahupuaʻa tenants.” It has been argued that because Article XII, Section 7 applies to “all rights,” it should apply to the use of the Hawaiian language, as it is a “well-documented and customary practice that has been exercised by Native Hawaiians for centuries.”117 The PASH holding might thus support the reaffirmation and protection of the traditional and customary practice of using Hawaiian in government and in the courts.118 Indeed, it can be 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.”)