
Native Hawaiian Legal Corporation attorneys Sharla Manley, Camille Kalama and Kauila Kopper stand with the Clarabal plaintiffs in the Hawai‘i Supreme Court.
Six years ago this month, the first Hawaiian language rights case was heard by the Hawai‘i Supreme Court, Clarabal v. Department of Education. The oral argument was conducted in early February 2018, a month in which ‘ōlelo Hawai‘i is honored and celebrated.
At the heart of the case were two schoolchildren on Lāna‘i who were prohibited from communicating in ‘ōlelo Hawai‘i in the classroom. The Hawai‘i Supreme Court was asked by the Native Hawaiian Legal Corporation (NHLC) to decide that the State had a constitutional duty to provide reasonable and equal access to a Hawaiian language medium education to these two schoolchildren.
In the Clarabal case, the Hawai‘i Supreme Court ruled that under Article X, section 4, the state has a constitutional duty to provide school children with reasonable access to a Hawaiian language immersion education in our public school system. The case was heard by the Supreme Court at a time when there were incredibly regressive and discriminatory actions taken that were hostile to ‘ōlelo Hawai‘i.
Just days before oral argument in Clarabal, a judge on Maui refused to recognize as valid a court response made in ‘ōlelo Hawai‘i by a Native Hawaiian protesting the construction of the ATST telescope on Haleakala. In late January 2018, Samuel Kaleikoa Kaeo appeared in district court on Maui to defend himself at trial. The Court asked Kaeo to state his name and Kaeo responded in Hawaiian. The court made a few more requests for Kaeo to identify himself and Kaeo responded in ‘ōlelo Hawai‘i each time. Then, the judge issued a bench warrant effectively refusing to acknowledge as valid the use of ‘ōlelo Hawai‘i by Kaeo in court.
At the time the Hawai`i Supreme Court heard the Clarabal case, NHLC was also engaged in on-going litigation over an English-only correspondence policy that had led to the confiscation of letters written in ‘ōlelo Hawai‘i to pa‘ahao incarcerated out-of-state. For years, there had been reports of letters written in ‘ōlelo Hawai‘i being confiscated by prison officials both in Hawai‘i and out of state.
At the time the Hawai‘i Supreme Court heard the Clarabal case, no academic scholarship had emerged to support the contention that Article X, section 4 could be enforced to vindicate the right to access to a Hawaiian-language medium education.
The Clarabal decision was a sea change in the law. It was an example of the law finally catching up with those in our community who had the foresight and initiative to start kula kaiapuni programs to ensure that the language could live. At the time the Hawai`i Supreme Court heard the Clarabal case, there were 21 kula kaiapuni throughout the pae ʻāina but none on the island of Lāna‘i. Today there are 28 kula kaiapuni including Lāna‘i. The Department of Education implemented a premium pay incentive for kula kaiapuni teachers, an idea that the State argued vociferously against in the trial court proceedings leading up to the Clarabal decision.
It remains to be seen whether the framer’s intent for Article X section 4 – which was the complete revitalization of ʻolelo Hawai‘i to the extent that it is no longer in danger of extinction – will be achieved. The language is the repository of Native Hawaiian knowledge, consciousness and ways of knowing. Extinguishing the language was critical to the colonial project to deprive Native Hawaiians of self-determination and identity, which was recognized by the Clarabal court. This regressive impulse is embedded in the systems that exist today in ways seen and unseen. Thus, it cannot be taken for granted that ‘ōlelo Hawai‘i is safe, even though much attention and ceremony is afforded to the language each February. Vigilance is needed to safeguard the free and full use of the language.
NHLC counsel in the Clarabal case included Sharla Manley, Camille Kalama and Kauila Kopper.
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