Melody Kapilialoha MacKenzie

Welina nui ‘oukou e nā hoa makamaka,

Welcome to the first issue of Ka He‘e, the e-newsletter of the Center for Excellence in Native Hawaiian Law at the William S. Richardson School of Law, University of Hawai‘i at Mānoa.

Why name our e-newsletter Ka He‘e – The Octopus? Last year, in working on a commentary for a symposium on Protecting Indigenous Identities: Struggles & Strategies Under International & Comparative Law sponsored by the Asian Pacific Law & Policy Journal, I sought to find an appropriate Hawaiian proverb or wise saying that describes the law. After fruitlessly searching through ‘Ōlelo No‘eau, Mary Kawena Pukui’s collection of Hawaiian proverbs, I happened upon a woodblock print of a he‘e and, in one of those “aha” moments, realized that the law and the he‘e have much in common. Hawaiians call the he‘e, "Ka i‘a mana nui" - the fish of many divided parts. Like the law, the he‘e is many faceted and complicated. The he‘e changes color and camouflages itself. It can melt into the background; it is malleable. And of course, the he‘e is most famous for its ability to squirt protective ink, obfuscating what should be clear and apparent. Illustrating this point is another Hawaiian proverb - "Pupuhi ka he‘e o kai uli." Literally translated as, “the octopus of the deep spews its ink,” it means “the octopus escapes from its foes by spewing its ink and darkening the waters.” In short, the he‘e is slippery, crafty, and can easily deceive.

As with all aspects of life, Hawaiians recognize that the he‘e possesses both positive and negative attributes. On the positive side, fishermen smash the liver of the he‘e to use as bait for other fish. When fish are not biting, Hawaiians mash the heart of the he‘e and mix it with poi – a very ‘ono concoction. The meat of the he‘e is prized by Hawaiians and, when combined with lū‘au leaves and coconut milk, makes a rich and tasty dish - a dish that unfortunately is increasingly hard to find at Hawaiian gatherings.

Like the he‘e itself, the law offers both the positive and negative – benefits and challenges – to Native Hawaiians. At its best – in cases recognizing and expanding native tenant rights, protecting water resources and shoreline access, and in constitutional provisions establishing ‘ōlelo Hawai‘i as an official language of the State and requiring Native Hawaiian education programs in the schools, the law expresses our deeply held values as well as our aspirations and hopes. At its worst, in striking down voting restrictions for Office of Hawaiian Affairs trustees and spawning further attacks on Hawaiian institutions, the law has caused great turmoil and validated our community’s worst fears that the law will always be applied to disenfranchise Hawaiians or to demean our culture and traditions.

In Ka He‘e we hope to highlight the law at its best, but we know that some of the current developments in the law are not positive for the Hawaiian community. In this issue, an article by Community Outreach Fellow Kelli Lee on Native Hawaiians and the U.S. Constitution, a review of recent cases affecting Hawaiian rights and resources, and summaries of law review articles discussing the Akaka Bill and the Doe v. Kamehameha Schools case show the many ways in which the law affects Native Hawaiians.

Another Hawaiian saying tells us that the he‘e is "Ka i‘a pipili i ka lima," the fish that sticks to the hand. Like the he‘e, the law sticks to our hands. Our ancestors understood and lived under a complex set of rules and laws that was meant to maintain social order and to conserve and share resources. Under European and American influence, our chiefs embraced written laws, adopted European-modeled governmental structures, and built a nation based on the rule of law. The law, like the he‘e, has a long history in our islands and, like the he‘e, the law will not go away. It is stuck to our hands and we must handle it – with its slippery nature and its many arms, with its ability to camouflage and obfuscate – and literally leave us spattered in ink. As our kūpuna would counsel, since we must live with this he‘e – the law – it is our responsibility to seek out and support the positive aspects of the law while recognizing and protecting against the law’s slippery and sometimes unpredictable negative attributes.

So, we welcome you to Ka He‘e and we hope that it will help you to understand and appreciate the law and how – through both its positive and negative attributes - it affects Native Hawaiians.

All proverbs used in this article are from Mary Kawena Pukui, ‘ŌLELO NO‘EAU, HAWAIIAN PROVERBS & POETICAL SAYINGS (Bishop Museum Press, 1983). Articles from the APL&PJ symposium on Protecting Indigenous Identities: Struggles & Strategies Under International & Comparative Law can be found in the Winter 2006 volume of the ASIAN PACIFIC LAW & POLICY JOURNAL.