Title

Law, Narrative, and the Continuing Colonist Oppression of Native Hawaiians

Authors

David Barnard

Abstract

The article does three things. First, and for the first time, it brings to bear the perspectives of critical race theory, postcolonial theory, and narrative theory on the U.S. Supreme Court’s 2000 decision in Rice v. Cayetano, which dealt a severe blow to Native Hawaiians’ struggles for redress and reparations for a century of dispossession and impoverishment at the hands of the United States. Second, it demonstrates in the concrete case of Hawaii the power of a particular historical narrative—when it is accepted uncritically by the Supreme Court—to render the law itself into an instrument of colonial domination. Third, it links important postcolonial writers—Edward Said, Albert Memmi, and Ngugi wa Thiong’o—to contemporary discourse in critical race theory and the narrative aspects of law.

The history of the Hawaiian Islands is a far cry from the idyllic, palm fringed beaches of the travel posters. It is a story of domination and dispossession of an indigenous society. The article shows how Western historians have tried to erase this story, and put in its place a story of the civilizing influences of Western missionaries and traders, who brought modern technology and democratic government to a primitive people. This story played a pivotal role in the Rice opinion, enabling the Supreme Court to ignore and evade the U.S. government’s own apology to the Native Hawaiians for the loss of their sovereignty as a result of colonialist policies of the United States. The article further demonstrates how the Court, in addition to suppressing the historical record, adhered woodenly to the fiction of the colorblindness of American law to find that the requirement of Native Hawaiian ancestry to vote for the trustees of the Office of Hawaiian Affairs violated the Fifteenth Amendment to the U.S. Constitution.

The article concludes with three strategies of resistance to law as an instrument of colonial power that apply in the Hawaiian case. These are: to reclaim the native voice in the law at both the trial and appellate level; to deepen and extend criticism of “the law is colorblind”; and to pursue Native Hawaiian self-determination through mechanisms of international law.

Disciplines

Civil Rights and Discrimination | Constitutional Law | Human Rights Law | Indian and Aboriginal Law | International Law | Law and Society | Public Law and Legal Theory

Date of this Version

February 2006