The Indigenous Peoples’ Journal of Law, Culture & Resistance

This article discusses a hypothetical case: on behalf of the Native Hawaiian People as a whole, a group of Native Hawaiians has petitioned a Hawai’i State court seeking two declaratory rulings. First, a declaration that Native Hawaiians have not lost their inherent sovereignty as an indigenous people. Second, a declaration that Native Hawaiians collectively retain a beneficial interest in the former Crown Lands of Hawai’i. The article responds affirmatively to those requests, in the form of a draft opinion by a fictional Justice of the Hawai’i Supreme Court. Citing long settled U.S. federalism doctrine, the text explains that the State of Hawai’i possesses concurrent power with the United States to recognize the inherent sovereignty of Native Hawaiians, and to define the legal scope of that sovereignty as a matter of Hawai’i law. Relying upon exisiting Hawai’i legislation, exisiting Hawai’i Supreme Court precedent, and a similar doctrine developed by the Supreme Court of Canada, the text concludes that Native Hawaiians collectively retain a usufructary right in the remaining publicly-owned Crown Lands. Finally, this article envisions only incremental steps. It is intended and respectfully submitted without prejudice of any kind, conceptual or otherwise, to other, further theories of Native Hawaiian sovereignty and restorative justice.