The Hawaii Constitution: Rooted in Culture and ‘Āina (Land) 

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

The Hawaii Constitution is a leading model for environmental and cultural rights. Hawaii’s constitutional public trust doctrine and protections for Native Hawaiian and environmental rights have paved the way for precedent-setting legal cases to protect Hawaii’s ecosystems and cultural practices from mauka (the mountains) to makai (the ocean). New York has followed the lead of Hawaii in adopting a constitutional environmental rights provision, and other states have also considered similar amendments.

History

Before European contact in 1778, Native Hawaiians had developed a sophisticated and self-sustaining culture and land tenure system based on stewardship of land and natural resources. The concept of private land ownership was foreign to this system that had evolved over a thousand years. Rather, land and resources were managed for the benefit of all.

Amid western influence and pressure from foreigners seeking to secure land in Hawaii and interfering with the traditions and interests of the Native population, King Kamehameha III proclaimed a Bill of Rights for the Hawaiian Kingdom in 1839, which was followed by a written constitution in 1840, titled Ke Kumukānāwai a me nā Kānāwai o ko Hawaii Pae ‘Āina — The Constitution and Laws of the Hawaiian Islands.

The 1840 constitution established the kingdom’s governmental structure, which included a two-body legislative council, judicial system, and island governors. Specifically on the issue of land rights, this founding document declared in its preamble that, although all the land belonged to the king, “it was not his own private property. It belonged to the chiefs and people in common, of whom [the king] was the head, and had the management of the landed property.” As later Hawaii supreme court cases recognized, this relationship between the head of state and the land was that of a “trustee.”

Later, foreigners with business interests in the sugar plantation economy imposed their own versions of the constitution to usurp control over the government. The “Bayonet Constitution” of 1887 weakened the monarchy’s authority, extended voting rights to American and European males, regardless of their citizenship, and set property qualifications for voting that excluded many Native Hawaiians. After the illegal overthrow of the Hawaiian nation-state in 1893, the insurrectionists imposed another constitution in 1894, which cleared the way for annexation by the United States in 1898.

In a campaign for statehood to allow for greater self-governance, representation in U.S. Congress, and a state legal system after decades of operating as a U.S. territory, the first Hawaii state constitution was drafted by a constitutional convention in 1950 and adopted by voters later that year. The constitution went into effect in August 1959 upon Hawaii’s admission to the union. In 1968, the Hawaii Constitution was amended through another constitutional convention, a highlight of which ensured the right to collective bargaining for public employees.

The 1978 constitutional convention brought visionary amendments influenced by the 1970s “Hawaiian Renaissance” movement and other social and political movements that were occurring throughout the country and world. Also known as the “People’s Con Con,” the convention included a diverse delegation with representation by Native Hawaiians and women and almost no sitting elected officials.

Adopted in 1959 and codified in the 1978 Hawaii Constitution, the state motto is “Ua mau ke ea o ka ‘āina i ka pono,” which holds a multi-layered meaning that holistically translates to “the life/sovereignty of the land continues through righteousness or just acts.” This motto derives from the pronouncement by King Kamehameha III commemorating the restoration of Hawaiian sovereignty after a temporary incursion by a British warship in 1843 and highlights the relationship between Native Hawaiians and the land that underpins Hawaii’s constitution and laws.

Protecting Native Hawaiian Culture and the Environment

The Hawaii Constitution is known for its broad protections for Native Hawaiian culture and the environment, which were adopted through the 1978 convention. It establishes both English and Hawaiian as the official state languages and requires the state to “promote the study of Hawaiian culture, history and language” and “provide for a Hawaiian education program consisting of language, culture and history” in public schools.

The Hawaii Constitution codifies the public trust doctrine, which is rooted in Native Hawaiian Kingdom law and western common law, by broadly mandating that the state and counties “conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources” for the “benefit of present and future generations.” Hawaii’s public trust doctrine has enabled extensive protections for natural resources, including water flows, shorelines and beaches, public lands, and marine ecosystems that form the backbone and lifeblood for perpetuating Native Hawaiian culture.

Native Hawaiian rights are directly recognized and protected as well: “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes.” While these rights are established in Hawaii common law and recognized in statute, Hawaii’s constitution elevates the protection of Native Hawaiian rights to a constitutional mandate.

While a movement to pass and activate so-called green amendments that establish environmental rights in state constitutions has recently gained momentum across the country, Hawaii’s version dates to 1978, during the first wave of such provisions being adopted by various states. The Hawaii Constitution proclaims that “each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality,” and provides that “any person may enforce this right against any party, public or private.” Other states including Illinois, Massachusetts, Montana, and Pennsylvania have environmental rights provisions in their constitutions, and similar constitutional amendments have been proposed in other states in recent years. Most recently, New York adopted a green amendment in 2021.

State Supreme Court Interpretations

After the 1978 constitutional convention codified Hawaii’s public trust doctrine and mandated the creation of a state agency for conserving and protecting freshwater resources, the legislature in 1987 established the State Water Code and its administering agency, the Commission on Water Resource Management. Although the Hawaii Supreme Court had recognized a public trust governing water resources prior to the 1978 convention and the water code, its landmark opinion in 2000’s In re Waiāhole Ditch Combined Contested Case Hearing was the first decision to interpret and apply the doctrine under this comprehensive legal regime. 

The Waiāhole opinion held that the public trust confers on the state the continuing authority and affirmative duty to protect water resources for purposes such as ecological health and cultural practices of farming taro (a staple food revered as the elder sibling to Native Hawaiians), gathering native stream life, and fishing. The court confirmed that the public trust encompasses both surface and ground water resources without distinction, and that it imposes independent obligations on the state that are not overridden by statutes like the water code.

The court further held that the public trust establishes a presumption or default in favor of the trust’s purposes. This means the burden is not on the public to justify resource protection, but rather on those seeking or approving water use for private gain to account for and justify the use and its impacts. The court also recognized that the public trust incorporates the precautionary principle, which holds that scientific uncertainty should not tie the government’s hands but should weigh in favor of protecting the resource.

The Waiāhole opinion laid the groundwork for subsequent court decisions that have applied public trust duties to other government agencies and resources, including public lands, shorelines and beaches, and marine ecosystems.

Ka Pa‘akai O Ka ‘Āina v. Land Use Commission, in 2000, was the first Hawaii Supreme Court decision to define the government’s constitutional obligations to protect Native Hawaiian rights codified in 1978. The court adopted a three-step framework for state and county agencies to fulfill their constitutional duties. In its decision-making, the government must, at minimum, make specific findings and conclusions regarding the identity and scope of valued cultural, historical, or natural resources in the affected area; the extent to which those resources and Native Hawaiian traditional and customary practices would be affected or impaired by the proposed action; and the feasible actions the agency can take to protect Native Hawaiian rights. The Ka Pa‘akai framework thus requires government agencies to investigate, identify, examine, and mitigate impacts of their actions and decisions on Native Hawaiian traditional and customary practices.

The court later held in 2015’s Mauna Kea Anaina Hou v. Board of Land and Natural Resources that constitutional protections for Native Hawaiian traditional and customary rights entitle cultural practitioners to a due process hearing with trial-like procedures before government agencies, thus providing an avenue for Native Hawaiians seeking to protect their rights in administrative proceedings.

The Hawaii Supreme Court affirmed in 2010 in County of Hawaii v. Ala Loop Homeowners that the Hawaii Constitution’s environmental rights provision establishes both substantive rights to a clean and healthful environment, as defined by laws “relating to environmental quality,” and the procedural right to enforce them. The court ruled that, in the absence of statutes or rules allowing the public to enforce a state land use law, the section provided a procedural basis for a lawsuit. Hawaii’s environmental rights provision thus functions as a citizen enforcement provision for environmental-related laws.

The court subsequently held in In re Maui Electric Company, in 2017, that the same enforcement provision establishes a right to a trial-like due process hearing before government agencies addressing issues of environmental quality. That case involved the state Public Utilities Commission’s consideration of the climate impacts of fossil fuel use. Courts have subsequently confirmed that this right to a due process hearing also applies to other agencies such as the state Board of Land and Natural Resources.

More recently, the court has expressly declared that the constitutional right to a clean and healthful environment, as defined by statutes related to climate and clean energy, “subsumes a right to a life-sustaining climate system.” It held that this constitutional climate right is “constantly evolving” to address the “climate emergency,” which the court recognized poses an “existential” threat to humankind.

Separation of Powers

The Hawaii Constitution creates executive agencies and authorizes the legislature to establish other executive departments under the governor’s supervision. The 1978 constitutional amendments also established the Office of Hawaiian Affairs and its governing Board of Trustees, which are independent from the governor’s office. Sometimes referred to as Hawaii’s fourth branch of government, the Office of Hawaiian Affairs is responsible for managing proceeds from the public land trust passed down from the Hawaiian Kingdom and advancing policies to benefit Native Hawaiians.

The constitution also sets the rules governing elections, the legislature’s composition, and the process for appointing (rather than electing) judges. Judicial appointees must be selected from a list of nominees recommended by a nonpartisan judicial selection commission and confirmed by the senate. Judges serve for a 10-year term, at which time the commission decides whether they will be retained for an additional term. The Hawaii Supreme Court has one chief justice and four associate justices.

Other Notable Provisions

Unlike the U.S. Constitution, the Hawaii Constitution explicitly guarantees an individual’s right to privacy and includes specific protections against discrimination based on sex. It also prohibits nuclear power plants and nuclear disposal in Hawaii absent a two-thirds vote by both houses of the legislature.

The Hawaii Constitution can be amended by a constitutional convention or the lawmaking process. After a proposed amendment is approved through a constitutional convention or a two-thirds majority vote of both houses of the legislature, the amendment goes to the voters. By a majority vote during the 2024 general election, the Hawaii Constitution was amended to repeal a “bill of rights” provision adopted in 1998 that authorized the legislature to “reserve marriage to opposite-sex couples.”

The 1998 amendment had overridden the Hawaii Supreme Court’s landmark, first-in-the-nation ruling in 1993’s Baehr v. Lewin that declared marriage discrimination against same-sex couples presumptively unconstitutional. In 2013, the legislature passed the Hawaii Marriage Equality Act, removing restrictions against same-sex marriage; but the 2024 constitutional amendment brought Hawaii full circle to recognizing a constitutional right to marriage equality.

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The Hawaii Constitution provides a state-based framework for reclaiming lifeways, natural resources, and rights that were upended by foreign influence and the illegal overthrow of the Hawaiian Kingdom in 1893. It provides a window to inherited legal principles and traditions, a pathway to restorative justice, and a model for other states to conserve and protect the environment for present and future generations.

As the Hawaii Constitution’s preamble adopted in 1978 proclaims: “We reserve the right to control our destiny, to nurture the integrity of our people and culture, and to preserve the quality of life that we desire.”

Kylie Wager Cruz is a senior attorney practicing environmental law with Earthjustice’s Mid-Pacific Office in Honolulu, Hawaii.

Suggested Citation: Kylie Wager Cruz, The Hawaii Constitution: Rooted in Culture and ‘Āina (Land), Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Apr. 20, 2026), https://statecourtreport.org/our-work/analysis-opinion/hawaii-constitution-rooted-culture-and-aina-land