A new narrative: native Hawaiian law

Abstract

Using John Ralston Saul's groundbreaking The Comeback, this article posits three indicia or phenomena of an Aboriginal legal comeback in post-colonial states, and the corresponding new narrative for which Saul calls:

(i) A dominant legal culture recognizing, and perhaps adopting, even if in small ways, the place of Aboriginal peoples and legal structures within the broader dominant structure. This we might call recognition by the legal order.

(ii) The political order of a dominant society might recognize, again, even in small ways, the place of Aboriginal peoples and political-legal structures within the broader order of the dominant society. We might call this recognition by the political order.

(iii) Perhaps most importantly, we would expect to find the scholarship of Aboriginal experts writing about the way in which dominant law can recognize Aboriginal peoples and legal and political structures as part of the broader political-legal order of a society.

This growing body of literature provides structure and, above all, content to the emergent recognition in the legal and political orders. Indeed, today one finds such scholarship in many parts of the modern world. In 2015, the US state of Hawai'i saw a significant example which fell into each of these three categories: the dispute over the construction of a thirty meter telescope on Mauna Kea, a site sacred to Native Hawaiians; the proposed election (ʻAha) of Native Hawaiian delegates to a proposed convention to discuss, and perhaps to organize, a 'Native Hawaiian governing entity'; and, the publication of Melody Kapilialoha MacKenzie’s second edition of Native Hawaiian Law: A Treatise. This article examines the contribution of each of these events to the new narrative emerging globally as part of an Aboriginal comeback.