Law's History in the Colonial and Postcolonial Pacific

In the last four decades, law-making and legal institutions have become central sites for processes of decolonization in settler societies such as Aotearoa-New Zealand, Australia and in the United States (in this paper I will focus on Hawai'i) as indigenous people in these places have demanded that their rights be recognized and their grievances attended to. These demands involve the righting of history and they have also stimulated a re-writing of history, for instance, through the incorporation of indigenous versions of the colonial past into national histories. But in the court, what has become manifest is that indigenous people do not themselves ‘have' history nor are they even ‘in' history. In order to claim their rights, indigenous people have to show how traditional they are. This traditionalism is defined in law such that the more modern indigenous people show themselves to be, the more engaged in history, they less authentically indigenous they appear to judges. In this paper, I argue that this racialization of indigenous people is, in fact, deeply embedded in settler societies and even in the modern disciplinary practices of law and of history. Without reducing the important differences between the purposes of each discipline - in law's case, to judge the past, and in history's to understand it – I argue that their shared evidentiary premises actually place firm limits around what we think history is. In the political context of decolonization, such limits are exposed even as various professionals attempt to expand their disciplines' reach and incorporate other ways of relating the past and the present.