This enduring commitment is supported by an extensive body of federal legislation, with over 150 Acts of Congress explicitly recognizing the unique political and trust relationship that exists between the United States and Native Hawaiians.

Key legislations that directly benefit Native Hawaiians include the Hawaiian Homes Commission Act of 1920 (42 Stat. 108, 1921), the Native Hawaiian Education Act (20 U.S.C. 7511), the Native Hawaiian Health Care Improvement Act (42 U.S.C. ch. 122), and the Hawaiian Homelands Homeownership Act, which is incorporated into the Native American Housing Assistance and Self-Determination Act (Title VIII, 25 U.S.C. 4221). These laws exemplify the United States’ commitment to promoting Native Hawaiian self-determination and addressing the unique needs of our Indigenous, once-sovereign people. By acknowledging and upholding this trust relationship, the federal government is actively fulfilling its responsibility to support the well-being and self-determination of Native Hawaiians.

Role of the Native Hawaiian Education Council in priority recommendations to the U.S. Department of Education

The federal trust responsibility to Native Hawaiians, deeply ingrained in the history and political landscape of Hawai’i, underpins a commitment by the United States government to uphold the rights and well-being of the Indigenous people of Hawai’i. This responsibility is enshrined in over 150 Acts of Congress. These laws illustrate the federal government’s dedication to promoting Native Hawaiian self-determination and addressing their unique needs.

In conjunction with this federal trust responsibility, the Native Hawaiian Education Council, established under the Native Hawaiian Education Act, holds a pivotal role in advising and providing recommendations to the U.S. Department of Education for priority funding areas. As outlined in Section 6204(d)(6) of the Native Hawaiian Education Act, the Education Council is tasked with evaluating the educational needs of Native Hawaiians, assessing the effectiveness of existing programs, and identifying funding priorities in specific geographic communities. By fulfilling this mandate, the Education Council plays a vital role in aligning federal resources with the educational needs of Native Hawaiians, thereby contributing to the realization of their right to self-determination and self-sufficiency in education.

Efforts to strengthen Hawaiian language use and federal law

In the context of federal law, it is established that neither the federal nor state government can enact laws restricting the use of non-English languages. However, there is no federal duty to provide non-English speakers with programs or services in their native language.

Unique Hawaiian Language Situation: Efforts to promote and strengthen the use of the Hawaiian language create a unique situation since most Hawaiian immersion students use English as their first language and Hawaiian as their second language. The Native American Languages Act (NALA) is the primary federal law addressing the concerns of Hawaiian language advocates by promoting education in Indigenous languages, including Hawaiian. However, federal courts have taken a restrictive stance in implementing NALA.

Federal Court Cases: Two reported cases under NALA involved Native Hawaiians. In one case, the court rejected a claim that NALA prohibited giving a deposition in English. In another case, a claim under NALA and state law was dismissed, as the statute did not impose an affirmative duty on the state to provide specific resources for Hawaiian language programs.

State Recognition of Hawaiian Language: Hawai’i is the only state in the U.S. with a language in addition to English as its official language – Hawaiian. Hawai’i has constitutionally recognized and protected the Hawaiian language. The state constitution promotes the study of Hawaiian culture, history, and language and mandates the provision of a Hawaiian education program in public schools.

No Court Interpretation: Despite these provisions in the state constitution, no court has provided a definitive interpretation of the legal effect and scope of these amendments. State courts have yet to define the legal impact of Hawai’i’s “official language” constitutional provision.

Affirmative Duty to Protect Traditional Practices: In contrast, the Hawai’i Supreme Court has interpreted Article XII, Section 7, of the state constitution as imposing an affirmative duty on the judiciary and the executive branch, including administrative agencies, to protect and perpetuate traditional and customary practices, subject to state law. This includes practices such as speaking the Hawaiian language. In the pivotal 1995 case of Public Access Shoreline Hawaii v. Hawaii County Planning Commission, often referred to as the PASH case, the Hawaii Supreme Court established an essential legal precedent. This precedent revolved around the interpretation of Article XII, Section 7 of the state constitution, which reaffirms and protects traditional rights exercised for subsistence, cultural, and religious purposes by ahupua’a tenants of Hawaiian ancestry.

The PASH case clarified that Article XII, Section 7 doesn’t create a brand-new, independent enforceable right. Instead, it serves as a means to uphold existing traditional and customary rights recognized under state law. Within this landmark decision, the court articulated certain guidelines – collectively known as the “PASH criteria” – for assessing the nature and scope of these protected rights.

According to the PASH criteria, those seeking to exercise traditional practices must demonstrate that the right they wish to uphold is “reasonable,” “traditional,” and has existed prior to November 25, 1892. Upon establishing the validity of such a custom or practice, the burden shifts to those opposing the exercise to prove that it would cause actual harm. The state, as a guardian of these rights, is obligated to protect the legitimate exercise of such rights to the greatest extent possible. It’s important to note that state officials have the authority to regulate the exercise of these rights; however, they are not granted unrestricted discretion to eliminate these rights entirely.

While the PASH case initially concerned access and gathering rights, it is crucial to recognize that the same standard should be applied to various other traditional and customary practices that individuals of Hawaiian ancestry seek to exercise. These practices encompass a wide range, including the Hawaiian language. This interpretation underscores the significance of preserving and promoting the Hawaiian language as an integral cultural and educational asset in Hawaii, within the broader context of safeguarding “all rights” articulated in Article XII, Section 7.

Balancing Interests: The Hawai’i Supreme Court’s interpretation establishes criteria for evaluating traditional and customary rights exercised by persons of Hawaiian ancestry, such as speaking Hawaiian. These criteria include demonstrating that the right is reasonable, traditional, and existed before November 25, 1892. Once established, the burden shifts to opponents to show that actual harm would result from exercising the practice, and the state must protect the legitimate exercise of these rights, regulating them only to the extent necessary.

Applying PASH Criteria: These criteria, as outlined in the PASH case, should be applied equally to other traditional and customary practices exercised by persons of Hawaiian ancestry, including speaking Hawaiian, as the state constitution mandates the protection of “all rights.” This interpretation affirms the importance of preserving and promoting the Hawaiian language as a fundamental cultural and educational asset in Hawai’i (Lucas, 2000).

Impact of colonization on traditional ways of knowing and learning

Native Hawaiians, akin to other Indigenous communities, grapple with the enduring repercussions of colonialism. The historical trauma stemming from the forced displacement from ancestral lands (‘āina, kulāiwi), which sustained their well-being, has spawned a web of interconnected health disparities. Native Hawaiians describe a collective sense of “kaumaha” (a profound and oppressive sorrow) brought about by the collective dispossession of land, the overthrow of the Hawaiian Kingdom, cultural erosion, and the premature loss of loved ones. While historical trauma has been correlated with elevated rates of substance abuse, depression, suicidal tendencies, and mental health disparities in American Indian populations, there exists a dearth of empirical research examining the manifestation of historical trauma among Native Hawaiians.

Despite being one of the fastest-growing populations in Hawai‘i, Native Hawaiians disproportionately grapple with physical, mental, and social challenges. Historical trauma is characterized as the cumulative emotional and psychological wounds endured throughout one’s lifetime and passed down through generations. Globally, historical trauma is pervasive among survivors of colonization, genocide, and dispossession and is closely tied to elevated rates of substance use, depression, suicidal tendencies, and other mental health disparities. This is rooted in a history of colonization and compounded in contemporary times by persistent racism, microaggressions, and epigenetic expressions, which reflect the trauma of the environment within one’s genetic makeup (Riley et. al, 2022).

The priority criteria for Native Hawaiian Education Program funding include recognizing and supporting the Hawaiian language and acknowledging the state’s affirmative duty to protect traditional practices, including speaking Hawaiian. Additionally, five criteria focus on innovative approaches, collaboration, representation, economic disadvantage, low performing schools, and community involvement to address the well-being and academic success of Native Hawaiian students: