Abstract

Excerpted From: Melody Kapilialoha MacKenzie, He Ali'i Ka 'Āina: The Recktenwald Court’s Engagement with Native Hawaiian Rights, 48 University of Hawai'i Law Review 329 (Spring 2026) (302 Footnotes) (Full Document)

He ali’i ka 'āina, he kauwā ke kanaka.

The land is chief; man is its servant.

This article surveys the Hawai’i Supreme Court’s decisions during the tenure of Chief Justice Mark Recktenwald in several areas impacting the Kānaka Maoli (Native Hawaiian) community. Necessarily, this can only be a brief analysis of some of the most important cases the court decided because, during his fifteen years as chief justice, the Recktenwald Court decided numerous cases affecting Native Hawaiians. First, this article examines the court’s decisions on controversial issues surrounding the public land trust or ““ceded” lands. Second, the court has been largely supportive of beneficiary claims for breaches of the Hawaiian Homes Commission Act (“HHCA”), although it did pull back on an impactful decision on funding for the Department of Hawaiian Home Lands (“DHHL”). Third, the court has taken action to protect iwi kūpuna (Hawaiian ancestral remains). Fourth, while the court built upon and expanded earlier decisions relating to Hawaiian traditional and customary rights, it also appeared to limit the rights of traditional practitioners in important contexts. Finally, the court issued a groundbreaking decision in 2019 in the ongoing struggle to preserve and revive 'Ōlelo Hawai’i, the Hawaiian language.

It should also be noted that jurisdictional and procedural obstacles have threatened consideration of otherwise meritorious claims. Based on the state constitutional protections of Kānaka Maoli rights, the significant public interest in addressing these issues, and the court’s own commitment to justice, the Recktenwald Court has largely allowed Native Hawaiians to pursue their claims through the courts.

[ . . . ]

Chief Justice Recktenwald’s fifteen-year tenure on the Hawai’i Supreme Court has had a lasting impact on the Kānaka Maoli community. The Recktenwald Court, in cases like Ching v. Case, Kalima v. State, Kanahele v. State, Kaleikini v. Yoshioka, and Clarabal v. Department of Education, proved largely sympathetic to Native Hawaiians and recognized the claims of Native Hawaiians to public land trust resources, provided compensation under the Hawaiian Home Lands individual claims process, condemned the illegal transfer of HHCA 'āina, upheld the protection of iwi kūpuna, and reaffirmed the State’s constitutional commitment to revive 'Ōlelo Hawai’i so that it may flourish for generations to come.

On an equally positive note, procedurally, the court also ensured in Mauna Kea I that when a contested case hearing is requested by traditional practitioners, the contested case must be held before a decision on any land use application. Moreover, as the court held in Flores-Case 'Ohana v. University of Hawai’i, even in the rulemaking process, traditional and customary practices must be considered.

Thus, over the last fifteen-years, the decisions of the Recktenwald court have largely been positive for the Kānaka Maoli community. In State v. Pratt, however, the court appeared to place additional restrictions on traditional and customary practices, and in Mauna Kea II, the court failed to fully understand and honor the deep connection between 'āina and the Hawaiian people and took a very narrow perspective on the scope of traditional and customary practices as they have evolved over time. Moreover, in Nelson II, after pushback from the legislative and executive branches, the court pulled back on its initial positive ruling on the constitutional promise of funding for the DHHL.

Going forward, controversies over trust 'āina, iwi kūpuna, natural and cultural resources, protecting and allowing customary practices to evolve, and the tension between development and cultural survival of Hawai’i’s native people, will continue. As in the past, Hawai’i’s courts will be called upon to address those controversies. In doing so, the Hawai’i Supreme Court must fully recognize that Hawai’i’s laws--especially the State Constitution, as well as some of the original laws of the Hawaiian Kingdom, and prior interpretations of these laws by our Supreme Court--require our courts to understand and honor the deep connection between Kānaka Maoli culture and ' āina, wai, and all of Hawai’i’s natural and cultural resources. Indeed, in going forward, we all must be cognizant that we come from the 'āina and, thus, all of us must do everything in our power to serve, restore, and grow the ' āina for ourselves and future generations. He ali’i ka 'āina, he kauwā ke kanaka.

Melody Kapilialoha MacKenzie is Professor of Law Emerita at the William S. Richardson School of Law and the founding director of Ka Huli Ao Center for Excellence in Native Hawaiian Law.