I. INTRODUCTION

I ka ‘ōlelo nō ke ola, i ka ‘ōlelo nō ka make: Through language there is life, through language there is death.1 The native people of Hawaiʻi know the power of the spoken word. The survival of a people’s language is the key to the survival of their identity. ‘Ōlelo Hawaiʻi,2 the native language of Hawaiʻi, was nearly extinguished by a “ban” on the language in 1896 and subsequent government policies.3 Fortunately, ‘ōlelo Hawaiʻi was added as an official language of the State of Hawaiʻi in the Constitutional Convention of 1978.4

Since then, Hawaiʻi law has failed to give real meaning to having ‘ōlelo Hawaiʻi as an “official language.” ‘Ōlelo Hawaiʻi has been given a place in Hawaiʻi to survive but not to thrive. Because ‘ōlelo Hawaiʻi is an official language of Hawaiʻi, it is important for legal practitioners to understand the rights and responsibilities associated with its use in Hawaiʻi. Part II of this article recounts the history of the aboriginal people of Hawaiʻi and their language, both before and after the overthrow of the Kingdom of Hawaiʻi, the role that missionaries have played in suppression and support of the language, and the current status of ‘ōlelo Hawaiʻi. Part III provides a legal analysis of the Hawaiʻi State Constitution, federal Native language mandates, and federal and state caselaw. Part III also examines how other United States jurisdictions--New Mexico and the Commonwealth of the Northern Mariana Islands--and international jurisdictions--Aotearoa (New Zealand) and Canada--have addressed multi-lingual populations. Parts IV and V offer the legislative process as a way to promote the resurgence of ‘ōlelo Hawaiʻi.

II. HISTORY OF ‘ŌLELO HAWAI‘I

A. Ka Po‘e ‘Ōiwi: The Natives

‘Ōlelo Hawaiʻi is the native language and speech of Hawaiʻi.5 It is a “poetic, expressive language consisting of a vocabulary of some twenty-five thousand words.”6 According to Western linguistics, ‘ōlelo Hawaiʻi belongs to the “Malayo-Polynesian (Austronesia) language family.”7 ‘Ōlelo Hawaiʻi is rich with figurative meanings, or kaona, “to an extent unknown in English.”8 Furthermore, for the Hawaiʻi ‘ōiwi,9 “‘Ōlelo, ‘word’ or ‘speech,’ [is] far more than a means of communicating[,]. . . the spoken word [does] more than send into motion forces of destruction and death, forgiveness and healing. The word [is] itself a force.”10

B. Nā Mikioneli a me ka ‘Ōlelo ‘Ē: Missionary Linguists

Shortly after Captain Cook stumbled upon Hawaiʻi, the mikioneli, “missionaries,” arrived in Hawaiʻi in 1820.11 They “eventually sought to educate [the Hawaiʻi ‘ōiwi] about Christianity in their [‘ōlelo Hawaiʻi], motivated primarily by the directives of their employer, the American Board of Commissioners for Foreign Missions,” but also because of “simple logistics” because the Hawaiʻi ‘ōiwi “were many and the missionaries were few.”12 Their work was simplified by the previous efforts of missionaries “that developed a written or Roman alphabet” for the Reo Tahiti.13 ‘Ōlelo Hawaiʻi was constructed on an “orthographic base of 12 letters” and by 1822, the first sixteen-page primer, Pī-ā-pā, had been printed.14 The Hawaiʻi ‘ōiwi mastered the new written medium of ‘ōlelo Hawaiʻi swiftly.15 By 1853, only thirty-one years after the publication of the Pī-ā-pā, “nearly three fourths of the [Hawaiʻi ‘ōiwi] population over the age of sixteen years [was literate in ‘ōlelo Hawaiʻi].”16

C. Ke Aupuni o Hawaiʻi: The Kingdom of Hawaiʻi

Throughout the nineteenth century, the relationship between the United States and the Kingdom of Hawaiʻi solidified. The United States not only recognized the independence of the Kingdom of Hawaiʻi, but extended full and complete diplomatic recognition to the Kingdom and entered into treaties and conventions governing commerce and navigation in the years of 1826, 1842, 1875 and 1887.17

1. Loliloli nā kānāwai: Judicial and legislative change

Beginning in 1846, the Kingdom’s legislature declared that all laws enacted were to be published in both ‘ōlelo Hawaiʻi and English.18 However, “[b]y 1850, English had become the language of business, diplomacy, and to a considerable extent, of government itself.”19 The dispute between the use of both languages in Hawaiʻi’s laws eventually led to court cases in which the Hawaiʻi Supreme Court upheld the supremacy of ‘ōlelo Hawaiʻi as the governing law.20 In 1865, Associate Justice George Robertson, writing for the court in Metcalf v. Kahai,21 held that, regarding a law concerning property damages caused by an owner’s animals, the ‘ōlelo Hawaiʻi version prevailed over the English.22 Five months later, in Hardy v. Ruggles,23 Chief Justice William L. Lee found that “where there is a radical and irreconcilable difference between the English and [‘ōlelo Hawaiʻi], the latter must govern, because it is the language of the legislators of the country. This doctrine was first laid down by the Superior Court in 1848, and has been steadily adhered to ever since.”24

The Kingdom of Hawaiʻi and Territory of Hawaiʻi published all of their laws in both ‘ōlelo Hawaiʻi and English until 1943,25 when “the practice of publishing laws in [‘ōlelo Hawaiʻi] was abolished by statute.”26

2. Kāko‘o ‘ia ka namu: Armstrong’s preference

Richard Armstrong, former missionary and second minister of public instruction of the Kingdom of Hawaiʻi from 1848 to 1860, was a strong supporter of the use of English in Hawaiʻi schools.27 Armstrong explains that, [w]ere the means at our command, it would be an unspeakable blessing to have every native child placed in a good English school and kept there until it had [acquired] a thorough knowledge of what is now . . . the business language on the Islands, and which would open its mind to new and exhaustless treasures of moral and intellectual wealth.28

However, Armstrong understood that “[t]he language of a nation is part of its very being and never was and never will be changed except by a very gradual process.”29

During Armstrong’s administration, “the first government-sponsored school in English was established in 1851, and by 1854, government-run English schools were effectively competing with the [‘ōlelo Hawaiʻi] schools.”30 Consequently, a major shift occurred, and more students enrolling in the English-speaking schools decreased the need for ‘ōlelo Hawaiʻi teachers.31 In 1886, the report of the minister of public instruction to the Kingdom of Hawaiʻi legislature stated that “[i]n the future, . . . if these heterogeneous elements are to be fused into one nationality in thought and action, it must be by means of the public free schools of the nation, the medium of instruction being the English language chiefly.”32 Moreover, the amount of written material for the English-medium schools was greater than for ‘ōlelo Hawaiʻi-medium schools.33

The influence of Armstrong’s English preference policies continued on through subsequent administrations. In 1884, the president of the Board of Education commented: “[W] hy worry over the quality of teachers in [‘ōlelo Hawaiʻi]? We shan’t need them much longer, anyway.”34 Likewise, in 1890, the president of the Board of Education noted that ‘ōlelo Hawaiʻi schools were “[u]seful in places where it is absolutely impossible to obtain teachers who know anything of the English language . . . . In such places funds at the disposal of the Board hardly warrant the expenditure of even twenty dollars a month upon a teacher.”35 In 1887, the private Kamehameha Schools for Boys had an Armstrong-like stance on the medium of instruction.36 William B. Oleson, the first headmaster, imposed “strict rules” to prevent any language other than English on the campus.37 The culmination of these events ultimately led to the closing of all ‘ōlelo Hawaiʻi common schools.38

3. Kū‘ē: Resistance to English

In 1864, the Reverend Lorrin Andrews stated that “for the Government to set up English schools, to the neglect of educating its own people in their own language, would, in my opinion, be a suicidal act.”39 Likewise, Reverend Lorenzo “Makua Laiana” Lyons remarked:

I’ve studied [‘ōlelo Hawaiʻi] for 46 years . . . . It is an interminable language . . . it is one of the oldest living languages of the earth, as some conjecture, and may well be classed among the best . . . . [T]he thought to displace it, or to doom it to oblivion by substituting the English language, ought not for a moment to be indulged. Long live the grand old, sonorous, poetical [‘ōlelo Hawaiʻi].40

According to Mataio Kekūanāo‘a, 1864 Board of Education President:

The theory of substituting the English language for the [‘ōlelo Hawaiʻi], in order to educate our people, is as dangerous to [Hawaiʻi] nationality, as it is useless in promoting the general education of the people . . . . [I]f we wish to preserve the Kingdom of Hawai[‘]i for [Hawaiʻi ‘ōiwi], and to educate our people, we must insist that the [‘ōlelo Hawaiʻi] shall be the language of all our National schools, and the English shall be taught whenever practicable, but only, as an important branch of [Hawaiʻi] education.41

4. ‘A‘ohe malu: English reigns

On January 17, 1893, the Kingdom of Hawaiʻi’s government was overthrown by a United States-backed coup.42 During the following years, the Hawaiʻi ‘ōiwi people were active in their opposition to the “annexation” of Hawaiʻi.43 In 1896, three years after the overthrow of the Hawaiʻi government, the controversial44 Republic of Hawaiʻi enacted a law which required that English be the medium of instruction in all schools.45 According to the Act of June 8, 1896, Chapter 57, Section 30:

The English language shall be the medium and basis of instruction in all public and private schools . . . . Any schools that shall not conform to the provisions of this section shall not be recognized by the Department.46

Reverend McArthur, six months before the 1896 law took effect, shared: “The English language will be taught in all the public schools . . . . The present generation will generally know English; the next generation will know little else.”47

According to the 1896 act, the schools in Hawaiʻi had a choice to use English or not; however, a choice contrary to the law meant forfeiture of government funding.48 As a result of this English preference law, the number of ‘ōlelo Hawaiʻi schools dropped greatly “from a high of 150 in 1880 down to zero in 1902.”49 Conversely, “the number of English-medium schools significantly rose from 60 in 1880 to 203 in 1902.”50 The Republic report of 1896 remarked that “[t]he gradual extinction of a Polynesian dialect may be regretted for sentimental reasons, but it is certainly for the interest of the [Hawaiʻi ‘ōiwi] themselves.”51 Also, under the Organic Act of 1900, all government business would only be conducted in English.52

The effect of the law of 1896 and corporal punishment, “social sanctions,” in school brought results as if the language had been banned.53 ‘Ōlelo Hawaiʻi was “strictly forbidden anywhere within schoolyards or buildings.”54 Deceased kupuna Rose Manu, a mānaleo (native speaker), shared her experience at school: “I went to school not knowing the English language. The teacher told me to write my name, I could not [respond to her in English]. And I want to go to the bathroom but I cannot speak English . . . so when I return home, my clothes are drenched.”55 While ‘ōlelo Hawaiʻi “was still quite strong in public life in the early days of the Territory, the main loss of language came through the school system, which attacked the language at its most vulnerable and important point, the children from [‘ōlelo Hawaiʻi]-speaking Homes.”56

‘Ōlelo Hawaiʻi speaking teachers were sent to homes where ‘ōlelo Hawaiʻi was spoken to chastise parents for speaking to their children in their native tongue.57 A writer to Ka Puuhonua o Na Hawaii in 1917 sadly states that “[t]here is no child under 15 years of age who can converse correctly in the mother tongue of this land.”58

The Territory of Hawaiʻi legislature attempted to reintroduce ‘ōlelo Hawaiʻi in the school curriculum, but not as a medium of instruction. In 1919, the legislature amended the 1896 law by including that “[‘ōlelo Hawaiʻi] shall be taught in addition to the English in all normal and high schools of the Territory.”59 This statute was further amended in 1935 to include “that daily instruction for at least ten minutes in conversation or, in the discretion of the department, in reading and writing, in [‘ōlelo Hawaiʻi] shall be given in every public school conducted in any settlement of homesteaders.”60 Albert Schütz comments that the 1919 and 1935 amendments were “at best–farcical, and--at worst–-insulting to the language and culture.”61 The amendments were consequently repealed in 1965.62

In the late 1880’s, newspapers printed in ‘ōlelo Hawaiʻi flourished.63 The number of newspapers drastically declined from “twelve (nine secular, three religious) in 1910 to one (religious) in 1948.”64 As radio and television were introduced, no ‘ōlelo Hawaiʻi programs were produced.65 The impact of this shift in the medium of education, coupled with no speaking forum, ultimately led the language into public dormancy.

The island of Ni‘ihau is the last single native-speaking community with approximately 150 individuals.66 Furthermore, there are “fewer than two thousand native speakers, all above sixty years of age scattered throughout O‘ahu, Moloka‘i, Hawaiʻi, Lāna‘i, Maui and Kaua‘i, who must function [in an] English-speaking environment.”67 As the English language appeared to triumph over the ‘ōlelo Hawaiʻi, political changes in the 1970’s shifted this balance.

5. ‘Auhea ka ‘ōlelo Hawaiʻi: Where did it go?

During the 1970’s “Hawaiʻi ‘Ōiwi Renaissance,” the Hawaiʻi ‘ōiwi sought to return to their ancestors’ way of life, especially their language. Consequently, the Hawaiʻi State Constitutional Convention of 1978 added ‘ōlelo Hawaiʻi as an official language to the State constitution.

During the 1980’s, ‘ōlelo Hawaiʻi returned as a medium of instruction in the public schools. In 1983, the ‘Aha Pūnana Leo was created by a small group of ‘ōlelo Hawaiʻi educators to revive ‘ōlelo Hawaiʻi medium instruction.68 By this time, the use of ‘ōlelo Hawaiʻi as a medium of instruction had ceased for nearly ninety years.69 ‘Aha Pūnana Leo created the Pūnana Leo preschools, modeled after Māori-language preschools Te Kōhanga Reo in Aotearoa, to reestablish ‘ōlelo Hawaiʻi as the medium of instruction.70 In 1986, an amendment to the Hawaiʻi Revised Statute section 298-2, the ‘ōlelo Hawaiʻi “ban” law of 1896, was passed to allow “special projects using [‘ōlelo Hawaiʻi] as approved by the board of education.”71 Therefore, in 1987, the State Board of Education (“BOE”) “approved the Hawaiian Language Immersion Project, a two-year pilot program for children who wished to continue their education in [‘ōlelo Hawaiʻi] after graduating from Pūnana Leo.”72 The BOE cautioned, however, that “it will be in concept only and that it will be contingent on the Department of [Education] being able to find the resources to implement the program.”73 The program was specifically “contingent on the availability of qualified personnel, parent/student interest, and sufficient curriculum materials.”74

In 1987, the Papahana Kula Kaiapuni--‘ōlelo Hawaiʻi immersion program--was created and has continued to grow.75 In 1988, the “BOE voted to expand the program to the second grade, and a year later, to the sixth grade.”76 In 1992, the BOE approved the program to extend to grade twelve.77 In 1994, the BOE approved a long-range development plan to:

(1) assist the [‘ōlelo Hawaiʻi]-speaking families in the revitalization of the language and culture and maintain usage of the language; (2) to assist those families who wish to integrate into the [‘ōlelo Hawaiʻi]-speaking community by eventually replacing their home language with [‘ōlelo Hawaiʻi] for future generations; and (3) to assist those families who wish to use [‘ōlelo Hawaiʻi] as a second or third language in interacting with the [‘ōlelo Hawaiʻi]-speaking community.78

Moreover, “[w]hen fifteen or more qualified children . . . wish to enroll in [Papahana Kula Kaiapuni] the superintendent of education may provide facilities . . . or provide transportation to the nearest schooling site providing the program.”79 The first two Kula Kaiapuni classes graduated from high school in June of 1999.80 In 2004, Kahuku High & Intermediate School and Moloka‘i Intermediate School became the eighteenth and nineteenth Papahana Kula Kaiapuni schools.81

6. Nā pōpilikia: Kaiapuni woes

Although Papahana Kula Kaiapuni has made significant strides with ‘ōlelo Hawaiʻi, the “BOE has remained unwilling to commit sufficient funds to develop curriculum materials and teacher training that will place Papahana Kula Kaiapuni on a level that equals or exceeds the instruction given in English in public schools.”82 Despite the addition of eight schools since 1994, “funding for the sixteen Kaiapuni school sites has remained constant since 1993 at $3.1 million.”83 Furthermore, spending per pupil has decreased “from $1,845 in fiscal year 1991-1992 to $849 per student in fiscal year 1997-1998.”84

III. LEGAL ANALYSIS OF ‘ŌLELO HAWAI‘I

A. He ‘Ōlelo Kūpono no Hawaiʻi: “Official” State of ‘Ōlelo Hawaiʻi

In 1978, Article XV, Section 4 of the Hawaiʻi State Constitution was amended to read:

English and [‘ōlelo Hawaiʻi] shall be the official languages of Hawaiʻi, except that [‘ōlelo Hawaiʻi] shall be required for public acts and transaction only as provided by law.85

The amendment was made “in order to give full recognition and honor to the rich cultural inheritance that [Hawaiʻi ‘ōiwi] have given to all ethnic groups of this State, by making [‘ōlelo Hawaiʻi] an official language of the State.”86 Furthermore, the Committee of the Whole stated that:

[T]he study of [‘ōlelo Hawaiʻi], culture, and history was important to the diversity of cultures in the State of Hawaiʻi. Moreover, this is the only place where [Hawaiʻi] studies [are] likely to occur since the State of Hawaiʻi is the ‘āina [land] for [Hawaiʻi ‘ōiwi]: there is no other place. Other ethnic groups in Hawaiʻi can return to their originating country, such as Japan, Korea, China, Portugal, England, the mainland, etc. to study.”87

More importantly, the intent was “to overcome certain insults of the past where the speaking of [‘ōlelo Hawaiʻi] was forbidden in the public school system, and of today where [‘ōlelo Hawaiʻi] is listed as a foreign language in the language department at the University of Hawaiʻi.”88

Although this amendment does not give specific rights to ‘ōlelo Hawaiʻi, the “constitutional amendment should have power, even though it is non-implementing.”89 At this point however, there is nothing for the judiciary to enforce.90 As a result, there have not been any cases adjudicated that address the legal rights associated with Article XV, Section 4 of the Hawaiʻi State Constitution and the official status of ‘ōlelo Hawaiʻi.

B. He Aupuni Noho Hewa: U.S. rule

The United States has little regard for indigenous languages, when compared to “Western European countries in general.”91 One writer states that the “awareness of and support for language rights in America are in a primitive state,” as reflected in the treatment of Native American languages.92 However, the U.S. Congress acknowledges “evidence that student achievement and performance, community and school pride, and educational opportunity is clearly and directly tied to respect for, and support of, the first language of the child or student.”93

1. He kānāwai no nā ‘ōlelo ‘ōiwi: NALA

Passed in 1990, the Native American Languages Act (“NALA”) is the “only federal law that attempts to address the concerns of [‘ōlelo Hawaiʻi] language-rights advocates.”94 Prior to NALA’s enactment, the Select Committee on Indian Affairs “favorably reported on the bill . . . finding ‘language is the basis of culture.’”95 Section 2904 of NALA states: “The 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.”96 NALA applies to the Native Americans, Native Alaskans, Aleut peoples, Hawaiʻi ‘ōiwi, and “any descendant of the aboriginal people of any island in the Pacific Ocean that is a territory or possession of the United States.”97

2. Tagupa v. Odo

In 1993, William H. Tagupa, a Hawaiʻi ‘ōiwi attorney and member of the Hawaiʻi Bar Association, “brought an employment discrimination suit . . . against the University of Hawaiʻi Board of Regents” in Hawaiʻi state court.98 Tagupa attempted to give his deposition in ‘ōlelo Hawaiʻi as a pro se plaintiff in a case against the University of Hawaiʻi.99 Tagupa knew “this choice was pono.”100 On December 21, 1993, Magistrate Judge Yamashita granted a protective order for the defendants that required Tagupa to respond to the deposition in English.101 Tagupa appealed Magistrate Judge Yamashita’s ruling on the grounds that it was “clearly erroneous and contrary to both Article XV, Section 4 of the Hawai[‘]i Constitution and the 1990 Native American Language Act.”102 The issue before Federal Judge Alan Kay was “whether an individual of [Hawaiʻi ‘ōiwi] ancestry has a right to use [‘ōlelo Hawaiʻi] in a civil judicial proceedings regardless of their proficiency in English.”103

Regarding the official language amendment claim, Judge Kay commented that:

[T]he Hawai[‘]i Constitution, and the subsequent case law interpreting it, provides little guidance regarding whether an American citizen of [Hawaiʻi ‘ōiwi] ancestry residing in Hawai[‘]i can assert, as a matter of right, the privilege of giving oral deposition testimony in [‘ōlelo Hawaiʻi] when he or she is fluent in the English language.104

Judge Kay declined judgment on this issue because “a definitive judicial determination of this issue is better left to the Hawai[‘]i state courts.”105 Judge Kay did, however, find that Tagupa’s request for an interpreter at his deposition was an “unnecessary expense that would needlessly complicate and delay the deposition process.”106 Also, “[t]he mere fact that [‘ōlelo Hawaiʻi] is also an official language of Hawaiʻi does not compel this Court to ignore the practical realities of this dispute.”107

The NALA claim did not work in Tagupa’s favor either. Although section 2904 of NALA states that “the use of Native American languages shall not be restricted in any public proceeding,” Judge Kay did not find its application in this case.108 He ultimately found that “Congress did not . . . intend to extend the Language Act to judicial proceedings in federal courts.”109 For these reasons and others,110 Tagupa was later forced to give his oral deposition in English.111 As observed by an author, “whatever protections NALA provides for indigenous languages, they are subordinate to generalized concerns for litigation costs and apparently subject to some sort of showing of need.”112

The ruling in this case is disturbing because it will most likely affect all involved in the resurgence of ‘ōlelo Hawaiʻi. According to one article, this case “closes the door to any future Pūnana Leo graduate, proficient in English and [‘ōlelo Hawaiʻi], who chooses to speak ‘[ō]lelo Hawaiʻi in the courts.”113 According to the 1990 census of Hawaiʻi, a little more than 8,800 people speak ‘ōlelo Hawaiʻi, of which approximately ninety-three percent are bilingual.114 This creates a dire situation where only a select group of native speakers, those that are not proficient in English, may use ‘ōlelo Hawaiʻi in court proceedings.

3. Office of Hawaiian Affairs v. Department of Education

On November 27, 1995, the Office of Hawaiian Affairs (“OHA”) filed suit against the State of Hawaiʻi Department of Education (“DOE”).115 The “crux of Plaintiffs' complaint is that the State of Hawai[‘]i should provide more [Papahana Kula Kaiapuni] programs in public schools.”116 The program was not meeting the growing need of Hawaiʻi students interested in joining the program.117 The Plaintiffs claimed that the Defendants violated: (1) article X, section 4 of the Hawaiʻi State Constitution “by failing ‘to provide a comprehensive Hawaiian education program’ and failing to encourage ‘community expertise’ to develop [‘ōlelo Hawaiʻi] programs and teachers”; and (2) Hawaiʻi Revised Statutes section 1-1 “by failing to protect the ‘customary rights’” of Hawaiʻi ‘ōiwi to use their native tongue.118 Plaintiffs sought injunctive relief to “require Defendants to provide sufficient resources (teachers, classrooms, and learning materials) for [Papahana Kula Kaiapuni], to devise a plan to expand [Papahana Kula Kaiapuni] and make them accessible, and to develop a pool of teachers for [Papahana Kula Kaiapuni] education.”119

Defendants removed the case to federal court, contending that “OHA’s claim under NALA should be dismissed because the statute creates no enforceable rights nor an implied private right of action.”120 The major issue before the court was “whether NALA confers a private cause of action to sue.”121 The Plaintiffs insisted that NALA created “an implied cause of action for members of the class protected under the act.”122 In particular, OHA claimed that they had the right “to sue the State of Hawaiʻi’s educational departments and officials for ‘restricting’ their use of [‘ōlelo Hawaiʻi] in public schools.”123 The United States Supreme Court has set forth four factors “to determine whether Congress intended to imply a private cause of action in a federal statute.”124 The four factors are:

(1) is the plaintiff in the special class which the statute intended to protect; (2) is there legislative intent to create a private cause of action; (3) is a private cause of action consistent with the purpose of the legislative scheme; and (4) is the cause of action traditionally relegated to state law, in which case it would be inappropriate to infer a federal cause of action.125

The court identified the most important question to be “whether Congress intended to create the private remedy sought by the plaintiffs.”126 The court ultimately concluded that “Congress did not intend NALA to create a private cause of action against states.”127 Furthermore, “[a]lthough Plaintiffs represent a subset of those who NALA intended to benefit--[Hawaiʻi ‘ōiwi] who speak [‘ōlelo Hawaiʻi]--there is no indication that Congress intended [Hawaiʻi ‘ōiwi] or any other Native Americans to have a private cause of action under the Act.”128

The court provided four reasons why NALA did not create a private right of action:

(1) legislative history weighted against implying a cause of action; (2) NALA itself spoke only of general policies and made no specific directives; (3) most of NALA’s language was merely hortatory; and (4) there was no affirmative evidence in NALA that it was meant to apply to the states as opposed to the federal government.129

Judge Kay found that NALA would only apply if the state did not allow the use of [‘ōlelo Hawaiʻi] in schools,130 reasoning that the creation and continuation of the Papahana Kula Kaiapuni illustrated no restriction on the language by the State.131 At the time, the State of Hawaiʻi had created the Papahana Kula Kaiapuni, in “which 923 students participate and which Congress commended as an exemplary model when it enacted NALA.”132 As one author opines, “[b]ecause linguistic discrimination was no longer practiced in Hawaiʻi, an injunction was not available to make whole those who were not directly victimized by unequal treatment.”133

The Office of Hawaiian Affairs v. Department of Education (OHA) case is controversial for several reasons. First, in determining the legislative intent of NALA, Judge Kay relied upon President Bush’s statement when signing NALA.134 President Bush “construe[d] [the Act] as a statement of general policy and [did] not understand it to confer a private right of action on any individual or group.”135 It is perplexing that the executive branch can illustrate legislative intent: “While this statement clearly expressed President Bush’s opinion on whether NALA created a private cause of action, it said nothing about Congress’ intent with respect to the issue. The court admitted that the congressional legislative history was silent on the issue . . . .”136 In the Senate Select Committee report, NALA was created “to provide Native Americans with a tool to develop programs that they believe will enrich their children and perpetuate their cultures.”137

Secondly, NALA may be binding on the states.138 In OHA, Judge Kay ruled that NALA was not intended to be binding on the states.139 However, in the finding section of NALA, Congress states that it “is clearly in the interests of the United States, individual States, and territories to encourage the full academic and human potential achievements of all students and citizens and to take steps to realize these ends.”140 Although NALA uses “encourage” instead of “establish,” or any other implementing words, NALA has been viewed by state agencies as a mandate that must be obeyed.141 In Arizona, when the Attorney General was “considering the scope of the state’s bilingual education ban in public schools serving the Navajo Nation, [he] stated that NALA denied the state authority to prohibit teaching of Native American languages whether the public schools were on or off the reservation.”142 Accordingly, NALA should be upheld as binding on states, but has not been treated as such in Hawaiʻi.

As illustrated by the cases above, “NALA is basically a statement of government policy; [and] it contains no substantive mandates for achieving its goals.”143 NALA has not enabled ‘ōlelo Hawaiʻi advocates to hold the State of Hawaiʻi accountable for lack of support towards the language.

C. ‘Elua ‘Ōlelo: Dual Language Governments

1. New Mexico

New Mexico, the forty-seventh state, does not have an official language,144 but it does accommodate two languages. In 1912, the first state constitution went into effect and it contained “several provisions in it that provided for a transition from the formally prevalent Spanish [language] to the acknowledged adoption of English.”145 A major cornerstone of Spanish language education in New Mexico is found in Article XII, Section 8 of the New Mexico Constitution. Section 8 states that:

The legislature shall provide for the training of teachers in the normal schools or otherwise so that they may become proficient in both the English and Spanish languages, to qualify them to teach Spanish-speaking pupils and students in the public schools and educational institutions of the state . . . .146

The constitution also states that “[c]hildren of Spanish descent in the state of New Mexico shall never be denied the right and privilege of admission and attendance in the public schools or other public educational institutions of the state, and they shall never be classed in separate schools.”147 These sections not only address the need for bilingual teacher training in the public schools, but also grant equal educational rights to all children of Spanish descent.148

Building upon Spanish history and incorporation of the language in education, New Mexico still caters to the English and Spanish languages. Currently, “election ballots are published in both English and Spanish, the pledge to the New Mexico flag is available in both English and Spanish, and a Spanish Drivers Manual is available at the Motor Vehicle Division web site.”149 Furthermore, some statutes require publication in both English and Spanish,150 and official Spanish language newspapers have been recognized by New Mexico for the purpose of publishing legal notices.151

2. Commonwealth of the Northern Mariana Islands

The Commonwealth of the Northern Mariana Islands (“CNMI”), like Hawaiʻi, has more than one official language. In 1976, a constitutional convention convened and thirty-nine elected delegates drafted the constitution in Saipan.152 The constitution was ratified by the Northern Mariana voters and became effective on January 9, 1978.153 In 1985, Article XXII, Section 3 was amended to state: “The official language of the Commonwealth shall be Chamorro, Carolinian and English, as deemed appropriate and as enforced by the legislature . . . . This section shall not be subject to judicial review.”154 The Committee of Finance and Other Matters explained that “this new Article would be appropriate as part of its recognition of the culture and traditions of the people of the Commonwealth.”155

In the 2003 case Commonwealth of the Northern Marianna Islands v. Guerrero,156 appellant Peter M. Deleon Guerrero, a Chamorro, sought to overturn an assault and battery conviction against him on the grounds that “the trial court did not allow him and his attorney to use the Chamorro language when conducting his trial and questioning witnesses.”157 Guerrero properly filed a “Notice to Speak Chamorro,” a document giving notice that Guerrero, “his attorneys and witnesses would speak Chamorro exclusively throughout the trial,” before trial began.158 The trial court denied his request and instructed Guerrero’s attorney to proceed in English, but this was reversed on appeal.159 The Supreme Court of CNMI had previously decided a similar case in Jasper v. Quitugua,160 in which the court “made clear that native Chamorro-speaking people have a constitutional right to speak Chamorro in court.”161 In Jasper, the court held that “because there are three official languages in the Commonwealth, the pro se defendant in a tort case, who was allowed by the trial court to make opening and closing statements in Chamorro, should have been allowed to question the witnesses in Chamorro as well.”162 Furthermore, although the “defendant in Jasper spoke very good English, he was nonetheless entitled to speak Chamorro because the Commonwealth Constitution lists Chamorro as an official language.”163

Although the CNMI “judiciary has chosen to conduct court proceedings in all three languages,”164 there are some restrictions to the rule. Chief Justice Demapan closes his writing in Guerrero by stating:

[W]e hold that in order for the constitutional right to speak Chamorro or Carolinian to apply, the person who wishes to use these languages must be a native speaker of these languages. It would be too costly and time-consuming to allow everyone, regardless of their native language, to speak Chamorro and Carolinian.165

The Guerrero ruling is an example of the judiciary recognizing and enforcing the constitutional rights of official languages. Judge Demapan established that native speakers of Chamorro, or of any official language, would not be denied judicial proceedings in their tongue because of their fluency in English.166 Admittedly, Tagupa and Guerrero can be distinguished because Tagupa was ruled in federal court and Guerrero was ruled in the Supreme Court of CNMI. As Judge Kay stated in Tagupa, the Hawaiʻi state courts should issue a definitive position on the parameters of ‘ōlelo Hawaiʻi in judicial proceedings.167

D. Nā ‘Āina ‘Ē: Internationally

1. Aotearoa (New Zealand)

The 1980 case Mihaka v. Police was the “first appellate case in [Aotearoa] to determine the existence of a right to speak [t]e Reo Māori in the high courts.”168 Mangu Mihaka’s request to hear the prosecutions against him in te Reo Māori, the native language of Aotearoa, was denied because he “had not been disadvantaged in any way.”169 The High Court declared that “English is the language of the courts in [Aotearoa].”170 Mihaka is no longer followed.171

Three years before Mihaka, the Parliament passed the Treaty of Waitangi Act of 1975.172 The Act created the Waitangi Tribunal and vested it with authority to “investigate Māori claims under the Treaty of Waitangi.”173 In 1986, the “Waitangi Tribunal published Wai 11: Te Reo Māori Claim (“Te Reo Report”), a report determining whether the New Zealand Crown had an obligation to preserve [t]e Reo Māori under the Treaty of Waitangi.”174 Huirangi Waikerepuru and Nga Kaiwhakapumau I te Reo, Inc., claimed that “the Treaty mandated official recognition of the Māori language for all purposes enabling its use as of right in Parliament, the Courts, Government Departments, local authorities and public bodies.”175

The Tribunal concluded that te Reo Māori “must be regarded as a ‘valued possession,’”176 and recommended to Parliament that official recognition must be more than “mere tokenism. Official recognition must be seen to be real and significant which means that 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.”177 Furthermore, in the Te Reo Report, the Waitangi Tribunal stated that the “judicial enforcement of the language right greatly assists in rehabilitating the language back” to its dominant state before the arrival of the English language.178

In 1987, the New Zealand Parliament enacted the Māori Language Act of 1987.179 This legislation “marked the shift from viewing an indigenous language right as an individual right, embedded in notions of justice and fairness for the individual, to a cultural right with preservation as its main objective.”180 Furthermore, the act established an expressed right to speak te Reo Māori in legal proceedings.181

In 2001, a citizen, Wharepapa, was stopped by police and when the police asked for his driver’s license, name and address, he responded in te Reo Māori.182 He continued to speak in te Reo Māori, although warned by the police, and was later “convicted of failing to supply his name and address on demand to a law enforcement officer.”183 The following year, in Wharepapa v. Police, Judge Priestly held that a “person in the appellant’s situation 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.”184

2. Canada

In 1988, English and French were declared the official languages of Canada, “therefore establishing a fully operative and official vernacular bilingualism for its residents.”185 It is interesting that the French-Canadian population accounts for only about one-quarter of Canada’s population, yet that population was successful in “forcing the entire country to recognize and use French as an official language.”186 Five years later, “Canada's federal government announced its Action Plan for Official Languages, which aimed to provide a ‘new momentum for Canada’s linguistic duality, through increased inter-departmental co-ordination, and new investments in education, community development and the public service.’”187

According to Prime Minister Lester B. Pearson, “in a diverse federal state such as Canada it is important that all citizens should have a fair and equal opportunity to participate in the national administration and to identify themselves with, and feel at home in, their own national capital.”188 As a testament to Canada’s conviction, “constituents can communicate with, and receive services from, federal institutions in either English or French,”189 all laws enacted are in both English and French,190 all “[c]itizens may speak English or French in Parliament,”191 “an accused person in a criminal proceeding has the right to be tried in either English or French” languages,192 and all federal institutions have employees that speak either language.193 Interestingly, the choice of either speaking French or English “ensures equal opportunity for employment and advancement for both English and French speaking Canadians, regardless of ethnic origin or primary language.”194

However, “Canada is better described as an English-speaking country, with French considered a second (or minority) language.”195 For instance, although both languages are spoken in all government-run organizations, the French language “is not necessarily used outside certain geographical areas.”196 Furthermore, the “English-speaking citizens in Canada dominate in the areas of administration, politics, and the economy.”197 There is also preference given to employment applicants who are proficient in English, thereby showing a preferential language in business.198 As observed by one author, “[t]he disadvantaged group, in this case French- speaking Canadians, are thereby forced from their national identity and must either adapt to the English-speaking society or resist demands to learn English.”199 A country’s “national unity is best promoted when cultural and linguistic diversity is not discouraged.”200

IV. SOLUTIONS FOR ‘ŌLELO HAWAIʻI

Prior to 1978, before the adoption of the official language amendment, lawmakers were aware of challenges but looked to a future when ‘ōlelo Hawaiʻi could be used: Your Committee was cognizant of certain practical problems that might exist if [‘ōlelo Hawaiʻi] was declared an official language without any proviso. The committee feared that all official acts and transactions might have to be in [‘ōlelo Hawaiʻi], such as statutes, proceedings of the legislature and judicial decisions. At this point in history, it might be too expensive and impractical to require both languages in these situations. The committee decided that it would be more sensible to delegate discretion to the legislature in determining the appropriate documents and acts to be in both languages.201

Inclusion of ‘ōlelo Hawaiʻi may have been “too expensive and impractical” at that “point in history,” but the numbers of ‘ōlelo Hawaiʻi speakers have tremendously grown since 1978.202 The legislature is the appropriate place to advance ‘ōlelo Hawaiʻi. In fact, it is already “welcomed in pule [prayer], speeches, or testimony.”203 A newly proposed bill, Senate Bill 1052 (“S.B. 1052”), may hold the State accountable for the spelling of Hawaiʻi’s native language and words on State letterheads.204 As Senator Clayton Hee pointed out in a Senate committee meeting, “what better way to respect the culture of our land than to spell its words correctly? . . . Is that too difficult a task in this land of aloha?”205 The purpose of S. B. 1052 is “to ensure the constitutionally and ethically mandated preservation of the [‘ōlelo Hawaiʻi] and culture by requiring that all state and county letterheads, when newly created or reprinted, contain the accurate, appropriate, and authentic [Hawaiʻi] names and language printed above the English translations.”206 Senator J. Kalani English introduced this bill and similar bills for the past six years; however, the previous bills died in the House after passing the Senate.207 Senator English’s main reason for introducing the bill is because ‘ōlelo Hawaiʻi is an official language, and he wants it to return to the “common vernacular of Hawaiʻi.”208

S.B. 1052 does acknowledge that the “Constitution of the State of Hawaiʻi provides for the preservation and promotion of [Hawaiʻi ‘ōiwi] culture, history, and language.”209 In particular, the “State shall promote the study of [Hawaiʻi ‘ōiwi] culture, history and language”210 and “shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes” of the Hawaiʻi ‘ōiwi.211 Making sure that the official writings, signs, and emblems of the state are “accurate, and spelled correctly and use the proper [‘ōlelo Hawaiʻi] macrons and glottal stops not only shows the deserved respect for the native language of these islands, but also fully comports with the intent and words of the state constitution.”212

S.B. 1052 does include some provisions that seem to show compromise. Section 2 of S.B. 1052 amends Hawaiʻi Revised Statute section 1-13.5, which currently gives ‘ōlelo Hawaiʻi its official status. The bill states that “[a]ll letterheads for documents prepared by or on behalf of state or county agencies or officials shall include in the letterhead, if the letterhead contains [Hawaiʻi] names or language, the accurate, appropriate, and authentic [‘ōlelo Hawaiʻi] punctuation, spelling, macrons, and glottal stops, printed above the English translation.”213 However, the bill does not apply to “state artwork or to the hanging state emblem in the rotunda of the [Hawaiʻi] state capitol.”214

Likewise, Section 3 amends Hawaiʻi Revised Statute section 5-6.5 to state that “[‘ōlelo Hawaiʻi] is the native language of Hawaiʻi and shall be used on all emblems and symbols representatives of the State, its departments, agencies, and political subdivisions; provided that this requirement shall not apply to state or county letterheads . . . until a replacement for the letterhead is required.”215 S.B. 1052 is a small step in the right direction. If this bill gets passed, it will have taken almost thirty years for the legislature to pass a bill that holds the State responsible for correct ‘ōlelo Hawaiʻi usage.

V. CONCLUSION

‘Ōlelo Hawaiʻi continues to resist extinction. However, the Hawaiʻi judiciary must

affirmatively rule on the rights associated with the co-official language, ‘ōlelo Hawaiʻi, for it to survive. Judge Alan Kay stated that the Hawaiʻi State courts should make a definitive judicial determination on the issue of ‘ōlelo Hawaiʻi official language rights.216 As a proud pupil of Papahana Kula Kaiapuni, this author would not be able to speak my native tongue in court because I am also proficient in English.

The Commomwealth of the Northern Mariana Islands and Aotearoa courts illustrate a definitive judicial determination that the Hawaiʻi courts should adopt. Furthermore, Canada and New Mexico provide excellent examples of how a dual language system could work in Hawaiʻi. Although Spanish is not an official language in New Mexico, the state has judiciously relied on their constitution to proffer language support. S.B. 1052 will bring more awareness to ‘ōlelo Hawaiʻi and is a move in the right direction. However, the legislature must also continue to increase funding of Papahana Kula Kaiapuni to an equal status with the English speaking public school counterparts.217

As a student at the Kula Kaiapuni o Waiau, I learned the ‘ōlelo no‘eau, I ka ‘ōlelo nō ke ola, i ka ‘ōlelo nō ka make.218 Now I speak for its survival.