Ka Wai Ola - Office of Hawaiian Affairs, Volume 40, Number 5, 1 May 2023 — E NHLC... [ARTICLE+ILLUSTRATION]

E NHLC...

V E NINAU IA NHLC V ^ ASK THE NATIVE HAWAIIAN LEGAL CORPORATION *

How do courts decide what words in 'ōlelo Hawai'i mean?

By Devin K. Forrest, Esq„ NHLC Research Specialist Interpreting the meaning of language is eentral to the work of all eourts in all parts of the world. Whether it be words

used by governments in laws, orders, and rules; words used by parties when making agreements; or words used to show the mental state and intent of someone aeeused of a erime, determining what words mean - and how that impaets a legal outeome - is a eore funetion of judges. Here in Hawai'i, the usage, meaning, and interpretation of olelo Hawai'i has affeeted the outeome of eases and guided our law. Generally, there are a few methods that the eourts use to interpret the meaning of olelo Hawai'i at issue in a ease. The eourts ean eonsider the "plain meaning" interpretation or the regular meaning and definition of a word in reeognized sourees sueh as Pukui and Elbert's Hawaiian Dictionary (1986) and A Dictionary of Hawaiian Legal Land-Terms (1995). Where appropriate, the eourt ean also look to the "statutory meaning" or the definition ereated by law. Another method the eourt employs is known as the "eustom and usage" of the word and is guided by the eustoms of a group, people, businesses, trades, ete. The State of Hawai'i Supreme Court, through its jurisprudenee and that of the Kingdom eourts, has deeided eases that required interpretation of olelo Hawai'i. In several eases, the eourt has done so based on the eultural understanding and interpretations of various words rather than on plain dictionary meaning or statutory interpretation of Hawaiian words. One example is the 1968 court decision of In re Application ofAshford, whieh affirmed the puhlie ownership of beaches. In that case, the court needed to determine what "ma ke kai" meant in relation to property boundaries along the beaches throughout the Hawaiian Islands. The Court interpreted these words using kingdom maps, land grants, and Native Hawaiian custom to determine where the high wash of the waves

was located. This approach, using historical and eultural context to inform the meaning and legal effect of Hawaiian words, enables the most accurate interpretation and culturally sound outcome that best reflects Native Hawaiian intention and understanding of the language. Advocating for this care with the language, however, is important in every case in whieh interpretation of olelo Hawai'i is required. If not, there is a risk that the multi-layered and rich meanings of our language will not be properly eonsidered. Instead, olelo Hawai'i could be deemed as having only colloquial, contemporary meanings not centered on Hawaiian culture and disconnected ffom Native Hawaiian usage and understanding. This is an issue of eoneem for many Indigenous people. Indeed, just this March, the Oxford English Dictionary announced the addition of more than 40 words in te reo Māori (the Māori language) to its publication, declaring them "New Zealand English," mueh to the anguish of Māori eommunity members.* This also surfaced as an important issue here in Hawai'i in a recent case, in whieh the argument was made that "haole" is a racial slur. 'O ka 'ōlelo ke ka'ā o ka mauli - language is the fiber that binds us to our cultural identity. 'Ōlelo Hawai'i binds Kānaka together. A thorough, faithful interpretation of it in a legal context is essential to achieving justice. ■ * glish-dictionary-for-including-m-ori-kupu.html E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You ean contact NHLC about your legal needs by calling NHLC's offices at 808-521-2302. You ean also learn more about NHLC at nativehawaiianlegalcorp.org. Lhe Native Hawaiian Legal Corporation (NHLC) is a nonprofit law firm dedicated to the advancement and protection of Native Hawaiian identity and culture. Eaeh month, NHLC attorneys will answer questions from readers about legal issues relating to Native Hawaiian rights and protections, including issues regarding housing, land, water, and traditional and cultural practice. You ean submit questions at NinauNHLC@nhlchi. org.