Language Policies in the Kingdom of Hawaiʻi or Dispossession by Language


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Presentend at the Graduate Student Conference of the College of Language, Linguistics & Literature at University of Hawaii at Manoa, April 2013

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  • Key word: ‘effectuate’, i.e., ‘cause’ power inequalities rather than just mirror them.
  • the Marxist account of language and society only grants language the role of mere superstructure, byproduct and signal of previous economic conditions.
    exposing how the pecking order pinned onto language varieties correlates with social and economic factors or mapping the analogies between social and linguistic orders is clearly not enough.
    Compare with question whether Hawaiians should learn Hawaiian or promote Pidgin rather than learning ‘proper English’ to succeed in American society
  • Stress difference: statutory law enacted by Parliament, case law is the interpretation of statutory law by the courts.
    Statutory law: originally bilingual without original or translation, then English made original & binding, finally bilingualism made irrelevant.
    Case law:issued in English from the very beginning and translated to Hawaiian, although Common law wasn’t official
  • Where the landlords have obtained, or may hereafter obtain allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use.
  • Causes of low number of applicants: lack of information in Hawaiian, early deadline (February 1848), cost of surveying, finding testimonies of occupancy, fear of enmity from the konohiki, resistance to the new order, fear of losing rights to commons.
    Quote: King Kamehameha III to the Privy Council, asking to add assurance of customary rights to the Kuleana Act (Minutes of the Privy Council)
  • Three first cases relevant for the solution of discrepancies between Hawaiian & English versions of statutes or documents.
    Content of the cases only relevant for the two last cases.
  • attachment -- (a writ authorizing the seizure of property that may be needed for the payment of a judgment in a judicial proceeding) confiscation, sequestration.
    Internal coherence of the Hawaiian text prevails over the its literal meaning.
    Supreme Court of the USA: “in construing a statute, the intention of the makers is to govern, although such construction may seem contrary to the letter of the statute.”
    Kent: “the reason and intention of the law-giver will control the strict letter of the law, when the letter would lead to palpable contradiction and absurdity.”
  • Stress that the first quote is the statute that had to be applied, and the second is from the court’s ruling.
    Decided against the plaintiff, because he didn’t tender or proposed any amount he found “reasonable”
  • Hardy sold Ruggles and Thurston a stock of drugs; to secure payment, he took a mortgage on the goods sold and the incoming stock; then Ruggles and Thurston resold the goods to Field and Goodale to pay debts.
    Field and Goodale argued that they didn’t have the duty to separate the old and new stock, since they weren’t informed of the mortgage. Ruggles & Thurston claimed that they weren’t compelled by law to register the mortgage for third parties.
    Ruling: “bad faith” on the part of Ruggles, Thurston, Field and Goodale against Hardy.
  • Lorrin Andrews: former missionary, Judge of the Probate Court to 1855
  • In 1848, brother of defendant bought part of the ahupuaʻa of Honouliuli (Oʻahu) to chiefess Kekauonohi, its ‘konohiki’
    Kekauonohi died 1851, late husband Levi Haalelea (member of House of Nobles) inherited remainder.
    Defendant prevented Haalelea and his tenants from fishing in the sea fronting his property.
    Defendant claimed exclusive fishing rights.
    Plaintiff claimed defendant and all people living on his property lacked any fishing rights.
  • Pleading in English Act: 1362
  • Compare with current ‘redefinition’ of marriage: what if is applied only in English and denied to other languages?
  • Hypothesis Sapir-Whorf, formulated about 1945
    Nunan: “folk-Whorfianism” of American culture; immigrants have to be able to read the US Constitution in English
    Compare with the translation of the Bible, or with Civil Law traditions
    Bayonet Constitution already excluded naturalization to speakers of Asian languages
  • John Meek seized and sold two young mares that Mr. Oni pastured on land Meek leased from Ha‘alelea in ‘Ewa (Oʻahu). Meek claimed the horses had no right to pasture on land that he had leased.
    Oni claimed the right to pasture his animals on the land division as one of his traditional tenant rights. Oni said that although his house and taro lands had
    been awarded to him as private property, he continued to work labor days for Ha‘alelea.
    Ha‘alelea later testified that after the land was divided as private property, his tenants asked for the right to work labor days so that they would continue to have their traditional right to pasture.
    Appeal to the Supreme Court, October 1858. The judgment was given to Mr. John Meek, the defendant, with costs.
  • Statute claimed was Resolution of 1846: “the rights of the tenants in the land consist of... He may also pasture his horse and his cow and other animals on the land, but not in such numbers as to prevent the konohiki from pasturing his.”
  • In Re Ross: it was the candidates of the
  • Comparing Metcalf v. Kahai & Haalelea v. Montgomery: same judge’s decision (Robertson), same plaintiff’s counsel (A. Bates), same primacy of statutes over customary rights, judgment entered for the Hawaiian party, but primacy given first to Hawaiian, then to English.
  • Language Policies in the Kingdom of Hawaiʻi or Dispossession by Language

    1. 1. Language Policies in the Kingdom of Hawaiʻ i or Dispossession by Language Rubén Fernández Asensio ●
    2. 2. A Bit of Theory ● ● Research question: Are languages marginalized because their speakers have lost power, or viceversa? Guiding concept: “linguicism” – Borrowed from Linguistic Human Rights theory – Coined by analogy with racism, sexism, classism ageism – “Ideologies, structures, and practices which are used to legitimate, effectuate, and reproduce an unequal division of power and resources (both material and immaterial) between groups which are defined on the basis of language” (Skutnabb-Kangas, 1988)
    3. 3. Materialist Objections ● ● ● ● “Language is indicative, it is not causal of social divisiveness” (Davies, 1996) “Language rights treat symptoms and not causes” (Brutt-Griffler, 2002) “To attack English in any way is to attack the wrong target, to indulge in linguistic Luddism, as it were” (P. Lysandrou & Y. Lysandrou, 2003) Problem: How can linguicism not only “reproduce” but also “effectuate” inequality?
    4. 4. Hawaiʻ i: A Unique Test Case ● Atypical precolonial scenario in the 19th century ● Indigenous sovereignty down to 1893 ● Constitutional government since 1840 ● ● Switch to predominance of English before explicit colonial coercion Focus: penetration of English language into the kingdom’s legal system & its interaction with land dispossession
    5. 5. The Sidelining of Hawaiian ● Statutory law: – – 1859: The new Civil Code makes its own English version “binding” over the Hawaiian – 1864: An act extends the primacy of English to all past and future laws – ● Publication of laws in both Hawaiian and English from 1846 to 1943 1892: A Supreme Court decision makes bilingual ballots not mandatory Case law: – 1881: Translation of Supreme Court decisions into Hawaiian is discontinued – 1892: English common law officially adopted
    6. 6. The Great Māhele ● ● Introduction of Western-style private land ownership Traditional ownership: – King granted lifelong leases of land to chiefs – Chiefs received tribute from their tenants in labor or produce – Tenants farmed small land plots for subsistence and used commons for fishing and gathering
    7. 7. The Great Dispossession ● ● ● 1850 Kuleana Act: 7,932 commoners are granted fee-simple titles (3 acres average) Total population: 88,000; 70% excluded from land ownership A reason for low turnout: fear of losing customary rights on common lands awarded to the chiefs for water, gathering, fishing... – “A little bit of land, even with allodial title, if they be cut off from all other privileges would be of very little value”
    8. 8. Timeline of Supreme Court Decisions ● January 1856: Metcalf v. Kahai ● June 1856: Hardy v. Ruggles et al. ● January 1858: Haalelea v. Montgomery ● October 1858: Oni v. Meek
    9. 9. Jan. 1856: Metcalf v. Kahai ● ● Hawaiian version of statutory law made binding Interpretation problem: discrepancy between the two versions of the statute: – – ● English: “four times the amount of damage done” Hawaiian: “a fair and reasonable amount” “The counsel for plaintiff claims that the Court should be guided by the provisions of the Hawaiian version. Such, we believe, has been the practice of this Court hitherto, in such cases, and we conform to it in this instance.”
    10. 10. June 1856: Hardy v. Ruggles et al. ● ● Interpretation problem: meaning of the Hawaiian version of the statute “na palapala hoolilo”: ‘pledges & mortgages’ or ‘absolute sales’? – ● “The parties in this suit acknowledge the English to be their mother tongue [ …] but where there is a radical and irrecon-cilable difference between the English and the Hawaiian, the latter must govern, because it is the language of the legis-lators of the country.” Guiding principle of statute interpretation: “the intention of the law-giver”
    11. 11. First Undermining of Hawaiian ● Lorrin Andrews, witness for the defendants in Hardy v. Ruggles et al. ● ● ● ● ● Member of the first mission to Hawaiʻi (1827) Author of the first Hawaiian dictionary (1836) and first Hawaiian grammar (1838) Contributor to the translation of the Bible (1839) Judge from 1846 to 1855 “The words ‘lilo’ and ‘hoolilo’, as stated by Judge Andrews, are very broad and indefinite in their meaning, having no corresponding word in the English language, but, on the contrary, as being capable of answering to a hundred different words in the English language.”
    12. 12. Jan. 1858: Haalelea v. Montgomery ● ● English version of laws made binding Interpretation problem: whether the meaning of a deed of conveyance included exclusive fishing rights as appurtenance to the land – – ● English: “all the tenements and hereditaments situate thereon” Hawaiian: “a me na mea e pili pono ana” Case: did holders of new fee-simple titles after the Māhele enjoy customary tenant rights under preMāhele laws?
    13. 13. Turning Point on Language ● Defendant’s claims: – – ● Hawaiian words “sufficiently broad in their signification to carry everything appurtenant to the land” Hawaiian version of deed controlling as mother tongue of the grantor and preferred language of statutory construction Plaintiff’s claims: – “The deed in both versions forms but one instrument” – Nullity of the deed in case of inconsistency
    14. 14. Hawaiian: Polysemy as a Liability ● ● “The English version of this formula is, of course, the original, and the Hawaiian merely a translation.” “There do not exist in the Hawaiian language two words with would exactly represent the two English words tenements and hereditaments. The exact legal signification of those terms could not be expressed in Hawaiian without great difficulty.”
    15. 15. English: Polysemy as a Virtue ● Tenant right of fishery accorded to fee-simple owners by extending the meaning of words: – ● ● “We understand the word tenant to have lost its ancient restricted meaning, and to be almost synonymous, at the present time, with the word occupant.” Former tenants with fee-simple titles under the Kuleana Act “continue to enjoy the same rights that they had as hoaainas under the old system” Redefinition of ‘tenant’/’hoaʻāina’ acknowledged in English but not in Hawaiian
    16. 16. Ideological Innovations ● ● ● Abandonment of plain language usage and the lawmakers’ intent as principles of statute interpretation Expert testimony, dictionaries and etymologies given preference Fixation of Hawaiian meaning vs. fluidity of English meaning
    17. 17. Folk-Whorfianism ● ● One-to-one correspondence required in translation Linguistic relativism avant-la-lettre: institutions cannot be transplanted without their original words – “Of necessity the English language must be employed to record transactions of the government in its various branches, because the very ideas and principles adopted by the government come from countries where the English language is in use” (In Re Ross, 1892)
    18. 18. Oct. 1858: Oni v. Meek ● ● ● Landmark case in the restriction of customary rights of way, gathering, water use and pasturage on unused private land Plaintiff: a kuleana holder in fee simple, claiming pasturage rights as tenant/hoa ʻāina “by custom and by statute” Defendant: a haole holding a land lease from the konohiki (chief owning dry grass land)
    19. 19. The Demand For Authenticity ● ● Implicit enforcement of English common-law concepts Customs not existing from “time immemorial” (i.e., pre-contact) are abolished, despite mention in preMāhele laws: – “The custom contended for is so unreasonable, so uncertain, and so repugnant to the spirit of the present laws, that it ought not to be sustained by judicial authority.”
    20. 20. Equality in Dispossession ● ● Refusal to acknowledge the coexistence of “old” and “new” land tenure Customary rights not listed in the Kuleana Act are abolished for both title holders and tenants: – “...without any distinction as to whether the plaintiff is a kuleana holder, or otherwise; our understanding of the term people, as used in the 7th section of the of the act of 1850, being that it is synonymous with the term tenants, as used in […] Haalelea v. Montgomery.”
    21. 21. Māhele Consummated ● ● Small size of kuleanas & loss of access to commons compromised their economic viability even for subsistence Remainder of the population (70%) also lost customary rights without gaining land ownership
    22. 22. Invisible Discrimination ● ● ● “Groups which are defined on the basis of language”? “The records of our courts show pleadings of all kinds in the Hawaiian language received with as much approval as those in the English” (In Re Ross) Metcalf v. Kahai & Haalelea v. Montgomery compared: ● ● ● ● ● Same court, same 3 judges (including 1 Hawaiian) Same haole judge writes ruling Same haole attorney defends primacy of Hawaiian version Judgment entered in favor of the Hawaiian party Different language made binding
    23. 23. Linguicism Reexamined ● ● ● It may reproduce but also effectuate an unequal distribution of power It is a belief in an inherent inequality of languages and in their fixity in dissociation from their speakers It is first legitimized as a technicality of limited scope: primacy of English affirmed “so far then as purely legal phraseology, or words of technical import, are concerned” and “where such legal or technical language is used” (Haalelea v. Montgomery)
    24. 24. Questions and answers: Mahalo nui loa!