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New Zealand Yearbook of New Zealand Jurisprudence |
Last Updated: 25 April 2015
HAWAIIAN CUSTOM IN HAWAI‘I STATE LAW
MELODY KAPILIALOHA MACKENZIE
I. INTRODUCTION
Over hundreds of years and in relative isolation, Native Hawaiians developed
a complex society and subsistence economy based on their
relationship with the
gods and the natural world. Prior to Hawai‘i’s first written laws,
Hawaiian custom and usage regulated
Hawaiian life.1 Thus, Hawaiian
customary practices, particularly those related to land, have been recognised
and incorporated into Hawai‘i’s
statutory law since the earliest
formal written laws in 1839. During the reign of Kamehameha III, the Kingdom of
Hawai‘i developed
written laws that included protections for ancient
custom and usage.2 These laws survived political transitions and
continue to apply as underlying principles of property law in Hawai‘i. Of
equal
importance is that modern Hawaiians continue traditional practices and
usage. As one scholar notes, today there are “customs
and practices
related to each major aspect of Hawaiian lifestyle and livelihood, including
family, community life, human well-being
and spirituality, natural environment,
cultural and ecological resources, rights, and
economics”.3
In 1978, the Hawai‘i State Constitution was amended to specifically recognise
traditional and customary Hawaiian practices by adopting Article XII, Section
7:4
1 John Ricord, Preface to [1846] 1 Statute Laws of His Majesty Kamehameha III, King of the Hawaiian Islands 3 (“[1846] 1 King. Haw. Laws”) (stating that “the Hawaiian kingdom was governed until the year 1838, without other system than usage, and with a few trifling exceptions, without legal enactments”), cited in Public Access Shoreline Hawaii v Hawai‘i County Planning Comm’n (“PASH”), 79 Hawai‘i 425, 437 n. 21, 903 P.2d 1246, 1258 n.
21 (1995), cert. denied, 517 U.S. 1163 (1996).
2 See, PASH, 79 Hawai‘i, at 442-47, 903 P.2d at 1263–68 (tracing the development of private property rights in Hawai‘i).
3 Davianna Pōmaika‘i McGregor “An Introduction to the Hoa‘āina and Their Rights” (1996)
30 Haw J of Hist 1 at 3.
4 Haw. Const. art. XII, § 7.
Traditional and Customary Rights
Section 7. The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence, cultural and religious
purposes and possessed by ahupua‘a tenants who are descendants of native
Hawaiians who inhabited the Hawaiian Islands prior
to 1778, subject to the right
of the State to regulate such rights.
In deliberations on this provision, the constitutional framers recognised
that Native Hawaiian “sustenance, religious and cultural
practices ... are
an integral part of their culture, tradition and heritage, with such practices
forming the basis of Hawaiian identity
and value systems”,5 and
viewed the amendment as a vehicle to “preserve the small remaining
vestiges of a quickly disappearing culture [by providing]
a legal means by
constitutional amendment to recognize and reaffirm native Hawaiian
rights”.6
In a series of cases beginning in 1982, the Hawai‘i Supreme Court has
interpreted this section and other statutory provisions
to allow access by
Native Hawaiian cultural practitioners to undeveloped or less than fully
developed lands in order to exercise
traditional and customary rights. The Court
has also imposed a duty on public agencies to assess and protect to the extent
feasible
such rights when issuing development permits. Nevertheless, many open
questions remain about the reach and extent of the amendment
– who can
exercise these rights, on what kinds of property, what kind of state regulation
is appropriate, and what are the
responsibilities of government agencies in
regulating development that impacts traditional and customary rights?
This paper explores the historical roots of Hawai‘i’s recognition
of traditional and customary practices related to land
and natural resources and
the development of custom in modern times through Hawai‘i case law. It
also presents a brief overview
of three other areas of law in which Native
Hawaiian customs have been recognised and incorporated into State legislation.
The paper
concludes with an Oli Aloha or chant expressing the values of Aloha.
This oli, which has been adopted into State law, seeks to encourage
and infuse
state actions with traditional Hawaiian concepts and
values.
ii. HISTORICAL BACKGROUND
In Hawai‘i, the transition from a land tenure system characterised by
use-rights of the high chief, other chiefs, and maka‘āinana7
or common people to one of private land ownership occurred in a process
called the Māhele. Māhele means division or share,
and designates a
series of steps undertaken by the Hawaiian Kingdom in the mid-19th century,
separating out the interests of the
government, king, chiefs and people in all
the lands of Hawai‘i.8 Complex reasons have been given for this
voluntary transformation of the land tenure system by Kamehameha III and the
chiefs –
among them, increasing the status of the new kingdom-state among
the independent sovereign states; the fear that Hawai‘i would
be forcibly
annexed by one of the Western powers, in which case private property rights
would be recognised; pressure from Western
business interests desiring to own
land so that profits could be made in sugar and ranching; and the belief,
expressed primarily
by the Protestant missionaries, that owning land would make
Native Hawaiians more industrious, give them a secure living, and bring
them
into the “civilised” world and thereby stem the drastic decline in
the Hawaiian population.9
One formulation for the Māhele, as set out in the principles adopted by
the Board of Commissioners to Quiet Land Titles, which
had been established to
settle all private claims to land existing prior to 10 December 1845, envisioned
one-third of the lands going
to the King, one-third to the chiefs, and the final
third to native tenants.10 Indeed, this was in keeping with
Hawai‘i’s first constitution, the Constitution of 1840, which
declared that the land
and its resources were not the private property of the
King but “belonged to the Chiefs and the people in common, of whom [the
King] was the head and had the management of the landed
property”.11
7 Maka‘āinana means commoner, populace, people in general, and literally “people that attend the land”. Mary Kawena Pukui and Samuel H. Elbert Hawaiian Dictionary (University of Hawai‘i Press, Honolulu, 1986) [“Hawaiian Dictionary”].
8 For a discussion of the division of lands between Kamehameha III and the chiefs and konohiki, see Lilikalā Kame‘eleihiwa Native Lands and Foreign Desires (Bishop Museum Press, Hawai‘i) at 227-285. Earlier scholars set the number of ali‘i receiving lands as 245; see, for instance, Marion Kelly “Land Tenure in Hawai‘i” (1980, Fall-Winter) 7(2) Amerasia Journal 65 (Asian American Studies Center, University of California at Los Angeles).
9 For various perspectives on the factors leading to the Māhele, see generally, Kame‘eleihiwa, above note 8, at 169-225; Robert H Stauffer Kahana: How the Land Was Lost (University of Hawai‘i Press, Honolulu, 2003) at 9-76; Stuart Banner Possessing the Pacific (Harvard University Press, Cambridge, Massachusetts) at 128-162; Jon Van Dyke Who Owns the Crown Lands of Hawai‘i? (University of Hawai‘i Press, Honolulu, 2007) at 19-58.
10 “Principles Adopted by the Board of Commissioners to Quiet Land Titles (Aug. 20, 1846)”, reprinted in Revised Laws of Hawaii of 1925 (vol 2) at 2124 [“2 Revised Laws 1925”].
11 Haw. Const. of 1840, reprinted in Lorrin A Thurston (ed) The Fundamental Law of Hawaii
3 (The Hawaiian Gazette Company Ltd, Honolulu, 1904).
Beginning on 27 January 1848, all lands in Hawai‘i were divided between Kamehameha III and the chiefs and recorded in the Māhele Book. The King quit-claimed his interest in specific traditional land units called ahupua‘a and
‘ili,12 and the chiefs quit-claimed their interests in the
balance of the lands to the King. These quit-claims did not confer title, but
merely
acknowledged that the King had no claim to these specific lands of the
chiefs and the chiefs had no claim to the King’s
lands.13
After this initial division, the chiefs or konohiki14 were still
required to go before a land commission and make claim to their lands.15
In addition, they had to pay a commutation tax of one-third the value of
the unimproved land or cede one-third of the land to the
government. The
konohiki were entitled to receive full allodial title to their lands in the form
of royal patents. These awards specifically
reserved the rights of the native
tenants by including the phrase “Koe nae no kuleana o na kanaka
maloko”16 or similar wording. The konohiki received awards to
lands by name only, with the ancient boundaries pertaining until a survey could
be made. Subsequently, in 1862, a Boundary Commission was established to settle
questions of the boundaries of the ahupua‘a
and ‘ili awarded by name
only.17
After the last division between Kamehameha III and the chiefs on 7 March
1848, the king held approximately 2.5 million acres or 60.3 per cent of the
total land, while the chiefs had received a total approximating
1.6
million
12 An ahupua‘a is a land division, usually extending from the uplands to the sea (Hawaiian Dictionary). An ‘ili is a smaller land division, usually within an ahupua‘a and next in importance to the ahupua‘a (ibid). An early Hawai‘i case explained that traditionally the ahupua‘a afforded to the chief and people “a fishery residence at the warm seaside, together with the products of the high lands, such as fuel, canoe timber, mountain birds, and the right-of-way to the same, and all the varied products of the intermediate land as might be suitable to the soil and climate of the different altitudes from sea soil to mountainside or top.” In re Boundaries of Pulehunui, 4 Haw. 239, 241 (1879).
13 Louis Cannelora The Origin of Hawaii Land Titles and of the Rights of Native Tenants
(Security Title Corporation, Honolulu, 1974) at 15; see Kanoa v Meek, 6 Haw. 63 (1871).
14 Konohiki is defined as a “headman of an ahupua‘a land division under the chief” (Hawaiian Dictionary). Subsequent to the Māhele, the term was used to indicate the grantee of an ahupua‘a or ‘ili and the grantee’s successor. Robinson v Ariyoshi, 65 Haw. 641, 670, n.26,
658 P.2d 287, 307 (1982).
15 The konohiki were given several extensions of time in which to file and prove their claims.
See Act of August 10, 1854, reprinted in 2 Revised Laws 1925, above note 10, at 2147; Act of August 24, 1860, reprinted in 2 Revised Laws 1925, at 2148; and Act of December
16, 1892, reprinted in 2 Revised Laws 1925, at 2151. The last act allowed claims until 1
January 1895, after which all lands not claimed reverted to the government.
16 In Kalipi v Hawaiian Trust Co. Ltd, 66 Haw. 1, 656 P.2d 745 (1982); this phrase was
translated as: “The kuleanas [sic] of the people therein are excepted.”
17 Act of August 23, 1862, reprinted in 2 Revised Laws 1925.
acres.18 The king then divided his lands into two parts. The
larger portion, approximately 1.5 million acres, he “set apart forever to
the chiefs and people” of the kingdom.19 Later in the year, the
legislative council ratified and accepted the lands conveyed to the chiefs and
people, declaring them to be
“set apart as the lands of the Hawaiian
government, subject always to the rights of tenants”.20 These
lands were designated as Government Lands.
Kamehameha III retained for himself, his heirs and successors the remaining
lands, nearly 1 million acres.21 These private lands became known as
the King’s Lands. When this action was ratified by the legislature, the
King’s Lands
were also made subject to the rights of native
tenants.22
Consequently, as a result of the Māhele, all lands of the king, government
and chiefs were given subject to the rights of native tenants. It wasn’t until
1850, however, that a process was established to more firmly delineate the
rights of native tenants.
A. The Kuleana Act
The final step in the Māhele process was dividing out the interests of
the maka‘āinana or common people. The Kuleana
Act of 6 August 1850
authorised the land commission to award fee simple title to native tenants for
their plots of land.23 Hoa‘āina or tenant farmers could
apply for their own plots of land or kuleana.24 A kuleana parcel
could come from lands of the king, government, or chiefs. Moreover, native
tenants were not required to pay a commutation
tax since the chief or konohiki
of the ahupua‘a or ‘ili kūpono in which the kuleana was located
was responsible
for the commutation. Consequently, upon the death of a kuleana
owner without an heir, the kuleana escheated to the owner of the ahupua‘a
or ‘ili kūpono who had a reversionary interest as a result of paying
the commutation.25
18 Jon J Chinen The Great Mahele: Hawaii’s Land Division of 1848 (University of Hawai‘i
Press, Honolulu, 1958) at 25, 31.
19 Van Dyke, above note 9, at 42, gives the following totals: the King’s lands constituted
984,000 acres, the Government Lands were 1,523,000 acres, and the lands granted to the
Chiefs totalled 1,619,000 acres.
20 Act of June 7, 1848, reprinted in 2 Revised Laws 1925, above note 10, at 2152-2176 (listing of lands and act ratifying division of lands).
21 See Estate of Kamehameha IV, 2 Haw. 715, 722-723 (1864).
22 Act of June 7, 1848, above note 20.
23 Act of August 6, 1850, reprinted in 2 Revised Laws 1925, above note 10, at 2141-2142 [“Kuleana Act”] — In this context, kuleana means a small piece of property (Hawaiian Dictionary).
24 Ibid.
25 Chinen, above note 18, at 30 (1958).
While kuleana lands were generally among the richest and most fertile in the
islands, there were a number of restrictions placed on
kuleana claims. First,
kuleana could only include the land that a tenant had actually cultivated plus a
houselot of not more than
a quarter acre.26 Second, the native
tenant was required to pay for a survey of the land as well as bring two
witnesses to testify to the tenant’s
right to the
land.27
One scholar estimates that the Land Commission approved 8,421 awards,
averaging less than 3 acres per award, to 29 per cent of the
adult Native
Hawaiian male population.28 The original plan adopted by the king and
chiefs for division of the land had stated that the maka‘āinana were
to receive,
after the king partitioned out his personal lands, one-third of the
land of Hawai‘i. However, only 28,658 acres, much less
than one per cent
of the total land, went to the maka‘āinana through this claims
process.29
Recognising that not all natives would be able to claim kuleana, another
provision of the Kuleana Act allowed natives to purchase
between one and 50
acres of government lands at a minimum of 50 cents an acre.30 One
researcher estimates that the maka‘āinana received another 150,000
acres through this provision of the Kuleana Act.31 Moreover, it is
generally conceded that although the maka‘āinana received fewer
acres, these lands were the most fertile
and productive.32
The only section of the Kuleana Act that has survived is section 7, codified
today as Hawai‘i Revised Statutes (“Haw.
Rev. Stat.”) §
7–1:33
Building materials, water, etc.; landlords’ titles subject to
tenants’ use. 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
26 Kuleana Act, above note 23, sections 5-6.
27 Land Commission Principles, reprinted in 2 Revised Laws 1925, above note 10, at 2134.
28 Kame‘eleihiwa, above note 8, at 295-297, citing Marion Kelly “Results of the Great Mahele of 1848 and the Kuleana Act of 1850” (unpublished manuscript).
29 Jon J Chinen They Cried for Help (Xlibris Corporation, 2002) at 141-142, citing the 1896
Thrum’s (Hawaiian) Annual.
30 Kuleana Act, above note 23, section 4.
31 Donovan Preza, MA Candidate in Political Science, lecture to Native Hawaiian Rights Class
(University of Hawai‘i at Mānoa, 15 September 2008).
32 Stauffer, above note 9, at 5.
33 Haw. Rev. Stat. § 7–1 (2008).
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.
The Kuleana Act’s legislative history indicates that this section was
included at the request of Kamehameha III. The Privy Council
minutes show
Kamehameha III’s concern that “a little bit of land even with
allodial title, if they [the people] were
cut off from all other privileges,
would be of very little value”.34 The Privy Council thus
adopted the King’s suggestion:35
[T]he proposition of the King, which he inserted as the seventh clause of the
law, a rule for the claims of the common people to go
to the mountains, and the
seas attached to their own particular land exclusively, is agreed to[.]
The original version of this section required the tenant to seek the consent
of the konohiki in exercising these rights. The consent
provisions were
eliminated in 1851, the legislature reciting that “many difficulties and
complaints have arisen, from the bad
feeling existing on account of the
Konohiki’s [sic] forbidding the tenants on the lands enjoying the benefits
that have been
by law given them”.36
The Kuleana Act provided native tenants the right of access to their kuleana
and also gave them unobstructed access within the ahupua‘a
to obtain items
necessary for their subsistence and to make their lands productive. However, the
first Hawai‘i case to discuss
the provision interpreted it narrowly to
disallow any customary rights not specifically identified in section 7.
B. Oni v Meek, 2 Haw. 87 (1858)
The first Hawai‘i Supreme Court case to discuss the scope of the rights
under section 7 of the Kuleana Act was Oni v Meek (1858).37
Oni, a tenant of the ahupua‘a of Honouliuli, O‘ahu, filed suit
against John Meek, who had leased the entire ahupua‘a
from its konohiki.
Oni brought suit when some of his horses, which had been pastured on
Meek’s land, were impounded and sold
34 3B Privy Council Record 681, 713 (1850).
35 3B Privy Council Record 681, 763 (1850).
36 Act of July 11, 1851, Statute Laws of His Majesty Kamehameha III, King of the Hawaiian
Islands 98–99 (1851).
37 Oni v Meek, 2 Haw. 87 (1858).
by Meek. Oni claimed that he had a right to pasture his horses, presenting
two legal bases for that right: (1) custom; and (2) the
Act of 1846, predecessor
to the Kuleana Act, which allowed a tenant the right of
pasturage.38
The Hawai‘i Supreme Court rejected both arguments. First, the Court
appeared to reject the idea that any form of custom had
survived the change to a
fee simple land tenure system and enactment of the Kuleana Act, stating that,
“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”.39 The Court
continued:40
it is perfectly clear that, if the plaintiff is a hoaaina [native
tenant],41 holding his land by virtue of a fee simple award from the
Land Commission, he has no pretense for claiming a right of pasturage by
custom, for so far as that right ever was customary, it was annexed to
the holding of land by a far different tenure from that by which
he now
holds.
The Court also concluded that while the Act of 1846 was not expressly repealed
by subsequent legislation, it was implicitly repealed by the passage of the
1850 Kuleana Act.42 The Court noted several unsuccessful attempts
after 1850 to include a right of pasturage in the Kuleana Act.43
Moreover, the Kuleana Act had been amended after 1850, but the right of
pasturage had not been
38 Ibid, at 91–92; see also Joint Resolutions on the Subject of Rights in Lands and the Leasing,
Purchasing, and Dividing of the Same, § 1 (Nov. 7, 1846), 2 Haw. L. 1847, at 70, reprinted in
2 Revised Laws 1925, above note 10, at 2193. The Joint Resolutions provided, in pertinent part, that:
The rights of the Hoaaina in the land, consists of his own taro patches, and all other places which he himself cultivates for his own use; and if he wish to extend his cultivation on unoccupied parts, he has the right to do so. He has also rights in the grass land [sic], if there be any under his care, and he may take grass for his own use or for sale, and may also take fuel and timber from the mountains for himself. He may also pasture his horse and cow and other animals on the land, but not in such numbers as to prevent the konohiki from pasturing his. He cannot make agreements with others for the pasturage of their animals without the consent of his konohiki, and the Minister of the Interior.
Joint Resolutions, supra, cited in Oni, 2 Haw. at 91–92.
39 Ibid, at 90.
40 Ibid.
41 Hoa‘āina means tenant (Hawaiian Dictionary).
42 Oni, 2 Haw. at 94 (finding that “several of the provisions of the [Kuleana Act (Aug. 6,
1850)] are clearly inconsistent with those of the [Joint Resolutions (Nov. 7, 1846)], and ... so far as this is true, the provisions of 1846 must be held, by necessary implication, to be repealed by those of 1850”).
43 Ibid, at 95 (noting that “during several subsequent sessions of
the Legislature, petitions were presented for the enactment
of a law granting to
the common people the right of pasturage on the lands of the konohikis, but
without success”).
included.44 Pointing to these unsuccessful attempts to amend the
enumerated rights of tenants in the Kuleana Act, the Court stated, “it
was
the intention of the Legislature to declare, in this enactment, all the specific
rights of the hoaaina (excepting fishing rights)
which should be held to prevail
against the fee simple title of the konohiki”.45 Thus, Oni
construed the Kuleana Act as the exclusive source of rights reserved to
ahupua‘a tenants.
For over a hundred years, the Oni case appeared to foreclose claims
based on custom, standing for the proposition that all customary rights of
native tenants had been
abrogated except for those rights explicitly listed in
Haw. Rev. Stat. section 7-1. In 1995, however, the Hawai‘i Supreme Court,
in a case discussed in detail below, explained that “Oni merely
rejected one particular claim based upon an apparently non-traditional practice
that had not achieved customary status in the
area where the right was
asserted.”46
c. Hawai‘i Revised sTaTuTes secTion 1–1
The Hawaiian usage exception, set forth in Haw. Rev. Stat. § 1–1,
is a second basis for customary and traditional rights:47
Common law of the State; exceptions. The common law of England, as
ascertained by English and American decisions, is declared to be the common law
of the State of Hawaii
in all cases, except as otherwise expressly provided by
the Constitution or laws of the United States, or by the laws of the State,
or
fixed by Hawaiian judicial precedent, or established by Hawaiian usage;
provided that no person shall be subject to criminal proceedings except as
provided by the written laws of the United States or of
the State.
Since section 1-1 is derived from section 5 of Act 57, approved on 25
November 1892, Hawai‘i Courts have held that “Hawaiian usage” is usage
that predates 25 November 1892.48
In Public Access Shoreline Hawaii v Hawai‘i County Planning
Commission (1995) (“PASH”),49 discussed
below, the Hawai‘i Supreme Court concluded that section 1–1
“represents the codification of custom as
it applies in our
State”.50 In reviewing section 1-1, the Court noted that
the
44 Ibid.
45 Ibid.
46 PASH, 79 Hawai‘i at 441, 903 P.2d, at 1262.
47 Haw. Rev. Stat. § 1–1 (2004) (emphasis added).
48 State v Zimring, 52 Haw. 472, 474-74, 479 P.2d 202, 204 (1970).
49 PASH, 79 Hawai‘i 425, 903 P.2d 1246 (1995), aff’g 79 Hawai‘i 246, 900 P.2d 1313 (App.
1993), cert. denied, 517 U.S. 1163 (1996).
50 Ibid, at 447, 903 P.2d at 1268.
principles codified in the statute have a much earlier origin.51
Custom and usage governed the Kingdom almost exclusively until the
promulgation of the Declaration of Rights in 1839.52 As the
government developed further, oral traditions and laws were codified in written
form. The third Act of Kamehameha III created
an independent Judiciary. The
Judiciary was given the authority to cite and adopt:53
the reasonings and analysis of the common law, and of the civil law [of other
countries] ... so far as they are deemed to be founded
in justice, and not in
conflict with the laws and usages of this kingdom.
When the Kingdom adopted a Civil Code in 1859, section 14 included “received usage” as a source of law.54 On 25 November 1892, the Judiciary was reorganised, repealing the relevant section in the 1859 Civil Code and adopting language similar to that found in section 1-1.55 The original language, however, referred to the common law and Constitution of the Hawaiian Islands, “or fixed by Hawaiian judicial precedent, or established by Hawaiian national usage”. The Organic Act of 1900, which organised the territorial government under US control, made this provision applicable to the Territory of Hawai‘i.56
When the laws of the Territory were reorganised and compiled in 1905, that
statute became chapter 1, section 1 of the Revised Laws of
Hawai‘i.57
iii. 1978 constitutionAL Amendment And subsequent cAses
As noted above, in 1978, the Hawai‘i Constitution was amended to
include a provision protecting the traditional and customary
rights of
ahupua‘a tenants. A review of the Committee Reports and Constitutional
Convention debates on the amendment indicates
that the provision was meant to be
liberally construed and to cover the widest possible range of customary
rights.58 The debates particularly highlight the various perspectives
on whether the rights to be protected by the amendment were those already
established in Haw. Rev. Stats. Section 1-1 and 7-1 or whether the section
granted “new” rights.
51 Ibid, at 437, 903 P.2d at 1258, n.21.
52 See 1 Statute Laws of His Majesty Kamehameha III, King of the Hawaiian Islands 3
(1845–1846).
53 Act of September 7, 1847, ch. I, § IV; 2 Statute Laws of His Majesty Kamehameha III, King of the Hawaiian Islands 5 (1847).
54 See Civil Code ch. 3 § 14 (1859).
55 See Session Laws ch. LVII, § 5 (1892).
56 See An Act to Provide a Government for the Territory of Hawaii (Organic Act) §§ 6, 10,
32, Act of Apr. 30, 1900, c. 339, 31 Stat. 141.
57 See Revised Laws of Haw. ch. 1, § 1 (1905).
58 Standing Comm. Rep. No. 57 on Hawaiian Affairs Prop. No. 12, reprinted
in 1 Proceedings of the Constitutional Convention of
Hawaii of 1978 (1980) at
640.
Chair of the Hawaiian Affairs Committee, Delegate Frenchy De Soto, as well as
Delegate Hoe, a member of the committee, stated several
times that no new rights
were being established.59 Delegate Waihee made the point that the
provision was a vehicle for an individual to prove the existence of traditional
rights and
that if the burden of proof was met, the right would then become
subject to state regulation.60 Delegate Burgess, who opposed the
amendment, clearly believed that the section went beyond reaffirming existing
rights and granted
new rights.61 There was overwhelming support for
the amendment, which easily passed out of the convention. Although the amendment
was enacted in
1978, it was not until 1982 that the Hawai‘i Supreme Court
decided the first case relating to the provision.
A. Kalipi v Hawaiian Trust Co.
In Kalipi v Hawaiian Trust Co. (1982),62 its first case on
Native Hawaiian gathering rights, the Hawai‘i Supreme Court
stated:63
We recognize that permitting access to private property for the purpose of
gathering natural products may indeed conflict with the
exclusivity
traditionally associated with fee simple ownership of land. But any argument for
the extinguishing of traditional rights
based simply upon the possible
inconsistency of purported native rights with our modern system of land tenure
must fail. For the
Court’s obligation to preserve and enforce such
traditional rights is a part of our Hawaii State Constitution.
The Court continued, citing the full text of Article XII, section 7, and
stating, “it is this expression of policy which must
guide our
determinations”.64
In this case, William Kalipi, who owned a taro field in Manawai and an
adjoining houselot in ‘Ōhi‘a, Moloka‘i,
filed suit
against owners of the ahupua‘a of Manawai and ‘Ōhi‘a when
he was denied unrestricted gathering
rights in those ahupua‘a. Kalipi had
been raised on the houselot and lived there and worked the taro field until
1975, but
had since moved to Keawenui, a neighbouring ahupua‘a. Kalipi
sought to gather certain items for subsistence
59 Second Reading, Comm. of the Whole Rep. No. 12 on Hawn. Aff. Prop. No. 12, reprinted in 1 Proceedings of the Constitutional Convention of Hawaii of 1978 (1980) at 277.
60 Ibid, at 278.
61 Second Reading, Comm. of the Whole Rep. No. 12 on Hawn. Aff. Prop. No. 12, reprinted in 1 Proceedings of the Constitutional Convention of Hawaii of 1978 (1980) at 275.
62 66 Haw. 1, 656 P.2d 745 (1982).
63 66 Haw. 1, 4, 656 P.2d 745, 748.
64 Ibid.
and medicinal purposes, citing three sources for his claim – Haw. Rev.
Stat. sections 7-1 and 1-1 and language in the original
title documents of the
relevant ahupua‘a that reserved the people’s
rights.65
With regard to Kalipi’s claims based on Haw. Rev. Stat. section 7-1,66 which
enumerates items that can be gathered within an ahupua‘a by a native tenant
– firewood, house-timber, aho cord, thatch, or kī-leaf,67
the Court held that a native tenant asserting a right to gather under
section 7–1 must meet three conditions: (1) the native
tenant must reside
within the relevant ahupua‘a; (2) the right to gather must be exercised
upon undeveloped lands; and (3)
the right must be exercised in order to practise
Hawaiian customs and traditions.68
Although section 7-1 did not contain an “undeveloped lands”
requirement, the Court reasoned that it must be deemed a condition
precedent,
since gathering on developed lands would conflict with modern property law as
well the “cooperation and non-interference
with the well-being of other
residents” that were integral parts of the traditional “Hawaiian way
of life”.69 In the Court’s view, only if all conditions
were satisfied would a tenant have a right to gather; moreover, gathering would
be restricted solely to those items expressly enumerated in the statute.70
In an important footnote, the Court stated that the rights under section
7-1 are rights of access and collection:71
They do not include any inherent interest in the natural objects themselves
until they are reduced to the gatherer’s possession.
As such those
asserting the rights cannot prevent the diminution or destruction of those
things they seek. The rights therefore do
not prevent owners from developing
lands.
Unfortunately, Kalipi did not physically reside within either the
ahupua‘a of Manawai or ‘Ōhi‘a, and thus,
under the
Court’s formulation, could not assert rights under Haw. Rev. Stat. section
7–1.72
65 Ibid, at 3-4, 656 P.2d at 747.
66 Ibid, at 4-5, 656 P.2d at 747-748.
67 Haw. Rev. Stat. § 7–1 (2004).
68 Kalipi, 66 Haw. at 7-8, 656 P.2d at 749 (stating that “[w]e believe that this balance [between customary practices and private property rights] is struck, consistent with our constitutional mandate and the language and intent of the statute, by interpreting the gathering rights of [H.R.S.] § 7–1 to assure that lawful occupants of an ahupuaa may, for the purposes of practicing native Hawaiian customs and traditions, enter undeveloped lands within the ahupuaa to gather those items enumerated in the statute”).
69 Ibid, at 9, 656 P.2d at 750.
70 Ibid, at 7-9, 656 P.2d at 749-50.
71 Ibid, at 8, 656 P.2d at 749, n.2.
72 Ibid, at 9, 656 P.2d at 750.
In reviewing Kalipi’s claims under Haw. Rev. Stat. section 1-1, the
Court articulated a balancing test in which the retention
of a Hawaiian
tradition is determined first by deciding if a custom has continued in a
particular area and, second, by balancing
the respective interests of the
practitioner and harm to the landowner. The Court observed:73
We perceive the Hawaiian usage exception to the adoption of the English
common law to represent an attempt on the part of the framers
of the statute to
avoid results inappropriate to the isles’ inhabitants by permitting the
continuance of native understandings
and practices which did not unreasonably
interfere with the spirit of the common law. The statutory exception to the
common law is
thus akin to the English doctrine of custom whereby practices and
privileges unique to particular districts continued to apply to
the residents of
those districts even though in contravention of the common law. This, however,
is not to say that we find that all
the requisite elements of the doctrine of
custom were necessarily incorporated in § 1–1. Rather, we believe
that the retention
of a Hawaiian tradition should in each case be determined by
balancing the respective interests and harm once it is established that
the
application of the custom has continued in a particular area.
The Court also clarified that Oni v Meek rejected a particular custom
– pasturage – as opposed to custom in general. The Court thus
interpreted section 1-1 as
“a vehicle for the continued existence of those
customary rights which continued to be practiced and which worked no actual
harm
upon the recognized interests of others”.74 Applying the
balancing test, the Kalipi Court held that where practices associated
with the Hawaiian way of life “have, without harm to anyone, been
continued, ...
the reference to Hawaiian usage in § 1–1 insures their
continuance for so long as no actual harm is done
thereby”.75
Because there was no evidence in the record to find that gathering rights
customarily extended to persons who did not reside within
the ahupua‘a in
which the rights are asserted, and because Kalipi was not a resident of the
ahupua‘a, the Court held
that he did not have gathering rights under Haw.
Rev. Stat. section 1–1.76
73 Ibid, at 10, 656 P.2d at 750-51 (citations omitted).
74 Ibid, at 1, 656 P.2d at 752.
75 Ibid, at 10, 656 P.2d at 751. The Court clearly stated that “[t]hese [practices] include the gathering of items not delineated in [H.R.S.] § 7–1 and the use of defendants’ lands for spiritual and other purposes”. Ibid, at 10, 656 P.2d at 751 n.4.
76 Ibid, at 12-13, 656 P.2d at 752.
Finally, with regard to Kalipi’s claim under the native tenants right reservation found in the original awards of the two ahupua‘a, the Court intimated that an earlier case77 that appeared to limit such rights was not dispositive. Nevertheless, the Court concluded that as with the rights preserved by sections
7-1 or 1-1, traditional gathering rights do not accrue to persons who are not
residents of the ahupua‘a in which the rights are sought to be
asserted.78
B. Pele Defense Fund v Paty
Ten years later, in Pele Defense Fund v Paty (1992),79 the Hawai‘i Supreme
Court recognised that:80
native Hawaiian rights protected by article XII, section 7 [of the
Hawai‘i Constitution] may extend beyond the ahupua‘a
in which a
native Hawaiian resides where such rights have been customarily and
traditionally exercised in this manner.
In this case, Native Hawaiian residents of ahupua‘a neighbouring a
large tract of land, Wao Kele O Puna, on the Island of Hawai‘i,
based
their claims on Haw. Rev. Stat. section 1-1 and Article XII, section 7. In the
trial Court, they had submitted evidence to
support their claims concerning the
exercise of subsistence, cultural and religious practices according to ancient
custom and tradition
in the Wao Kele O Puna area.81
The Hawai‘i Supreme Court explained that although the Kalipi case had limited gathering rights under section 7-1 to the ahupua‘a in which a native tenants lives, the Court in Kalipi also held that section 1-1’s “Hawaiian usage” clause may establish certain customary Hawaiian rights beyond those found in section 7-1.82 The Pele Court also reviewed the proceedings of the 1978
Constitutional Convention, noting that the Hawaiian Affairs Committee
“contemplated that some traditional rights might extend
beyond the
ahupua‘a” and found persuasive the Hawaiian Affairs
Committee’s statement that the amendment should
not be narrowly
construed.83 The Court concluded:84
77 In Territory v Liliuokalani, 14 Haw. 88, 95 (1902), the Hawai‘i Supreme Court held that “the words ‘koe nae ke kuleana o na kanaka [reserving however the people’s kuleana rights therein]’ ... refer to the house lots and taro patches and gardens of tenants living on land within the boundaries of the larger tract granted” and did not incorporate any public right to the use of certain shoreline areas included within a grant of land.
78 Kalipi, 66 Haw. at 12; 656 P.2d at 752.
79 73 Hawai‘i 578, 837 P.2d 1247 (1992), cert. denied, 507 U.S. 918 (1993).
80 Ibid, at 620, 837 P.2d at 1272.
81 Ibid, at 618, 620–21, 837 P.2d, at 1271, 1272.
82 Ibid, at 619, 837 P.2d at 1271.
83 Ibid.
84 Ibid, at 621, 837 P.2d at 1272.
if it can be shown that Wao Kele ‘O Puna was a traditional gathering
area utilized by the tenants of the abutting ahupua‘a,
and that the other
requirements of Kalipi are met in this case, then PDF members ... may
have a right to enter the undeveloped areas of [Wao Kele O Puna] to exercise
their
traditional practices.
In a footnote, the Court also reiterated its earlier holding that Article XII,
section 7, does not require the preservation of lands in their natural
state.85
On remand in Pele Defense Fund v Estate of James Campbell
(2002),86 the trial Court ruled in favour of Pele Defense Fund,
determining that customarily and traditionally exercised subsistence and
cultural
activities actually practised by Native Hawaiians in the Puna area
prior to 1892 were not limited to one’s ahupua‘a of
residence or by
common law concepts associated with tenancy or land ownership.
C. Public Access Shoreline Hawaii v Hawai‘i County Planning
Commission
In Public Access Shoreline Hawaii v Hawai‘i County Planning
Commission (1995) (“PASH”),87 Defendant Nansay
Hawai‘i (“Nansay”) had applied for a Special Management Area
(SMA) permit to develop a resort complex
on the island of Hawai‘i, and the
shoreline organisation, Public Access Shoreline Hawai‘i
(“PASH”), which
opposed the development, filed a request for a
contested case hearing before the Hawai‘i Planning Commission. The
Planning
Commission denied PASH’s request for a hearing and issued the SMA
permit and PASH filed suit. The trial Court vacated the SMA
permit and directed
the Planning Commission to hold a contested case hearing in which PASH would be
allowed to participate. On appeal,
the Hawai‘i Supreme Court held that:
(1) the circuit Court had jurisdiction to consider the claims; (2) PASH had
standing,
so a contested case hearing should be held; and, most importantly, (3)
Native Hawaiians retain rights to pursue traditional and customary
activities,
since land patents in Hawai‘i confirm only a limited property interest
when compared with Western land patents/concepts
of
property.
85 Ibid, at 621, 837 P.2d at 1272, n.36.
86 Pele Defense Fund v Paty, No. 89–089 Haw. 3d Cir. Aug. 26, 2002 (Findings of Fact,
Conclusions of Law, and Order) (on file with author).
87 PASH, 79 Hawai‘i at 429, 903 P.2d at 1250.
Nansay Hawaii did not contest PASH’s claims on the exercise of
traditional native Hawaiian gathering rights, including gathering
for food and
fishing for ‘ōpae, or shrimp,88 but argued that
“[w]hen the owner develops land, the gathering rights
disappear”.89 The Court rejected this argument, holding that
the State is obligated to protect the reasonable exercise of traditional and
customary
rights to the extent feasible.90 The Court’s opinion
traced the origins of Haw. Rev. Stat. section 1–1 back to the third Act of
Kamehameha III91 authorising the adoption of common law principles,
provided they were “not in conflict with the laws and usages of this
kingdom”.92 The PASH Court further stressed that
“the precise nature and scope of the rights retained by [Haw. Rev. Stat.]
§ 1–1 ... depend
upon the particular circumstances of each
case”.93
The Court devoted considerable attention to the extent that Haw. Rev. Stat.
section 1-1 preserved customary practices, noting that
Kalipi
specifically refused to decide the “ultimate scope” of
traditional rights under section 1-1. The Court also distinguished
the doctrine
of custom in Hawai‘i in several ways. First, contrary to the “time
immemorial” standard used by English
and American common law, traditional
and customary practices in Hawai‘i must be established in practice by 25
November 1892.94 Second, continuous exercise of the right is not
required, although the custom may become more difficult to prove.95
The PASH Court stated, “[t]he right of each ahupua‘a
tenant to exercise traditional and customary practices remains intact,
notwithstanding
arguable abandonment of a particular
site”.96
The Court set out a test for the doctrine of custom, requiring that a custom
be consistent when measured against other customs;97 a
practice be certain in an objective sense, “[A] particular custom
is certain if it is objectively defined and applied; certainty is not
subjectively determined”;98 and a traditional
88 Ibid, at 430, 903 P.2d at 1251 n.6 (noting that Nansay “did not directly dispute the assertion that unnamed members of PASH possess traditional native Hawaiian gathering rights at Kohanaiki, including food gathering and fishing for ‘ōpae, or shrimp, which are harvested from the anchialline ponds located on Nansay’s proposed development site”).
89 Second Supplemental Brief (Opening Brief) for Petitioner-Appellee-Appellant Nansay
Hawaii at 19, PASH, 79 Hawai‘i 425, 903 P.2d 1246 (1995).
90 PASH, 79 Hawai‘i at 451, 903 P.2d at 1272.
91 Ibid, at 437, 903 P.2d at 1258 n.21.
92 Ibid.
93 Ibid, at 438, 440, 903 P.2d at 1259, 1261.
94 Ibid, at 447, 903 P.2d at 1268.
95 Ibid, at 441, 903 P.2d at1262 n.26 (citation omitted).
96 Ibid, at 450, 903 P.2d at 1271.
97 Ibid, at 447, 903 P.2d at 1268 (internal quotation marks omitted).
98 Ibid (internal quotation marks omitted).
use be exercised in a reasonable manner.99 Defining the
reasonable use requirement, the Court further explained that the balance leans
in favour of establishing a use in the
sense that “even if an acceptable
rationale cannot be assigned, the custom is still recognized as long as there is
no ‘good
legal reason’ against it”.100
The Court also held that the State has the authority to reconcile competing
interests;101 thus, “[d]epending on the circumstances of each
case, once land has reached the point of ‘full development’ it
may be inconsistent to allow or enforce the practice of traditional
Hawaiian gathering rights on such property”.102 The PASH
Court, however, clearly stated that:103
[a]lthough access is only guaranteed in connection with undeveloped
lands, and article XII, section 7 [of the Hawai‘i Constitution] does not
require the preservation of such lands, the State does not have the
unfettered discretion to regulate the[se] rights ... out of existence.
The PASH Court also clarified that:104
those persons who are “descendants of native Hawaiians who inhabited
the islands prior to 1778,” and who assert otherwise
valid customary and
traditional Hawaiian rights under HRS § 1–1, are entitled to
protection regardless of their blood
quantum.
The PASH Court, however, declined to decide whether descendants of non- Hawaiian citizens of the Hawaiian Kingdom are entitled to such protection and expressly reserved comment on the question whether non-Hawaiian members of an ‘ohana may “legitimately claim rights protected by article XII, section
7 of the state constitution and H.R.S. §
1–1”.105
While recognising that “the western concept of exclusivity is not
universally applicable in Hawai‘i”, the Court
addressed concerns
that the ruling could theoretically lead to disruption by relying on
non-confrontational aspects of traditional
Hawaiian culture, which should
“minimize potential disturbances”. The Court also pointed out that
“the State retains
the ability to reconcile competing interests under
article XII, section 7”.106 The State’s
regulatory
99 Ibid, at 447, 903 P.2d at 1268 (citation and internal quotation marks omitted).
100 Ibid (citation and internal quotation marks omitted).
101 Ibid.
102 Ibid, at 451, 903 P.2d at 1272 (emphasis added).
103 Ibid (emphasis added); see also ibid at 441, 903 P.2d at 1262 n.26 (stating that one of the requirements for custom is that the use or right at issue is “obligatory or compulsory (when established)”).
104 . Ibid, at 449, 903 P.2d at 1270.
105 Ibid, at 449, 903 P.2d at 1270 n.41. ‘Ohana is a family or kin group (Hawaiian Dictionary).
106 Ibid, at 447, 903 P.2d at 1268.
authority does not provide it with “the unfettered discretion to
regulate the rights of ahupua‘a tenants out of existence”.107
However, the State is authorised to permit private property owners to
exclude persons “pursuing non-traditional practices or
exercising
otherwise valid customary rights in an unreasonable
manner”.108
The Hawai‘i Supreme Court’s guidance in PASH was never
applied in that case; the landowner withdrew its permit application and the
proceedings were terminated.109
D. State v Hanapi
In a criminal case, State v Hanapi (1998),110 the
Hawai‘i Supreme Court held that “it is the obligation of the person
claiming the exercise of a native Hawaiian right
to demonstrate that the right
is protected”.111 The defendant, Alapa‘i Hanapī,
lived in the ahupua‘a of ‘Aha‘ino on the island of
Moloka‘i, on
property adjoining the two fishponds, Kihaloko and
Waihilahila.112 The owner of land next to Hanapī’s
property had graded and filled the area near the ponds in apparent violation of
US Army
Corps of Engineers wetland regulations. The landowner thus conducted a
voluntary, unsupervised restoration of the area, with the
advice and oversight
of a consultant archaeologist.
Hanapī saw the landowner’s actions as a “desecration of [a]
traditional ancestral cultural site”,113 and felt that it was
his obligation as a Native Hawaiian tenant to perform religious and traditional
ceremonies to heal the land.114 Thus, Hanapī twice entered the
property to observe and monitor the restoration.115 On a third visit,
Hanapī was ordered off the property; Hanapī refused and was arrested
and charged with second-degree criminal
trespass.
107 Ibid, at 451, 903 P.2d at 1272; see also ibid at 442, 903 P.2d at 1263 (“[T]he regulatory power provided in article XII, section 7 does not justify summary extinguishment of such [traditional and customary] rights by the State merely because they are deemed inconsistent with generally understood elements of the western doctrine of ‘property’.”).
108 Ibid at 442, 903 P.2d at 1263 (emphasis added).
109 Hugh Clark “Builder Withdraws its Kona Resort Application” Honolulu Advertiser (Hawai‘i,
2 August 1996) at A5.
110 89 Hawai‘i 177, 970 P.2d 485 (1998), recons. denied, 1999 Haw. LEXIS 34 (Haw. Feb. 8,
1999).
111 Ibid, at 184, 970 P.2d at 492.
112 Ibid, at 178, 970 P.2d at 486.
113 Ibid.
114 Ibid, at 181, 970 P.2d at 489.
115 Ibid, at 178, 970 P.2d at 486.
At trial, Hanapī represented himself. The trial Court repeatedly
sustained the prosecution’s objections as Hanapī
asserted a defence
of privilege based upon his constitutional rights as a Native Hawaiian.116
Hanapī persisted and was able to elicit some testimony in support of
his defence.117 Ultimately, Hanapī was convicted of the criminal
trespass charge.118 On appeal, the Hawai‘i Supreme Court
concluded that the district Court’s errors were harmless;
Hanapī’s conviction
was affirmed.119 The Court stated,
however, that “constitutionally protected native Hawaiian rights,
reasonably exercised, qualify as a privilege
for purposes of enforcing criminal
trespass statutes”.120 The Court then set forth three minimum
requirements that must be met for a defendant to successfully assert a defence
based on a constitutionally
protected Native Hawaiian traditional and customary
right:121
First, a defendant must qualify as a “native Hawaiian”,
regardless of blood quantum, as defined in PASH – a descendant of
the inhabitants of the Hawaiian islands prior to 1778.122
Second, a defendant must “establish that his or her claimed right is
constitutionally protected as a customary or traditional
native Hawaiian
practice”.123 The Court also stated that in order to establish
the existence of a traditional or customary Native Hawaiian practice, there must
be an “adequate foundation in the record connecting the claimed right to a
firmly rooted traditional or customary native Hawaiian
practice”.124
Such a foundation can be made through the testimony of
kama‘āina witnesses or experts as proof of Hawaiian custom and
usage.125
116 Ibid, at 179-181, 970 P.2d at 487-89.
117 Ibid, at 185, 970 P.2d at 493.
118 Ibid, at 181, 970 P.2d at 489.
119 Ibid, at 185, 188, 970 P.2d at 493, 496.
120 Ibid, at 184, 940 P.2d at 492.
121 Ibid, at 185-86, 970 P.2d at 493-94.
122 Ibid, at 186, 970 P.2d at 494.
123 Ibid, at 186, 970 P.2d at 494. The Court noted that, although some customary and traditional native Hawaiian rights are codified in the Hawai‘i Constitution, article XII, section 7, or in H.R.S. sections 1–1 and 7–1, “[t]he fact that the claimed right is not specifically enumerated in the Constitution or statutes, does not preclude further inquiry concerning other traditional and customary practices that have existed”. Ibid (citing PASH, 79 Hawai‘i at 438, 903 P.2d at 1259).
124 Ibid, at 187, 970 P.2d at 495.
125 Ibid. A kama‘āina literally means “land child” and is one who is native-born and familiar
with a particular place (Hawaiian Dictionary).
Finally, a defendant must show that “the exercise of the right occurred
on undeveloped or less than fully developed property”.126 In
clarifying and perhaps limiting PASH, the Court held that on property
deemed “fully developed”, which it characterised as property zoned
and used for residential
purposes with existing dwellings, improvements, and
infrastructure, it is always “inconsistent” to permit the practice
of traditional and customary rights.127 The Court, however, also
reserved the question of the status of Native Hawaiian traditional and customary
rights on property that
is “less than fully
developed”.128
E. Ka Pa‘akai O Ka ‘Aina v Land Use Comm’n.
In Ka Pa‘akai O Ka ‘Aina v Land Use Commission (2000),129 the Hawai‘i Supreme Court provided an analytical framework “to effectuate the State’s obligation to protect native Hawaiian customary and traditional practices while reasonably accommodating competing private [property] interests”.130
This case arose from the reclassification of nearly 1,010 acres of land in
the Ka‘ūpūlehu ahupua‘a on the island
of Hawai‘i
from conservation to urban use by the State Land Use Commission
(“LUC”) upon application by defendant
Ka‘upulehu Developments.
Ka‘upulehu Developments sought to develop a luxury subdivision with
upscale homes, a golf course
and other amenities. Plaintiffs argued that their
Native Hawaiian members’ customary and traditional gathering rights would
be adversely affected by the proposed development.131
The Hawai‘i Supreme Court held that the LUC improperly delegated its
obligations under Article XII, section 7, to the developer
by placing a
condition in the order granting reclassification requiring the developer to
“preserve and protect any gathering
and access rights of native
Hawaiians”.132 The Court stated that the wholesale delegation
of responsibility for the preservation and protection of such rights to the
developer
“was improper and misses the point. These issues must be
addressed before the land is reclassified”.133
The Court also held that:134
126 Ibid, at 187, 970 P.2d at 495 (citing PASH, 79 Hawai‘i at 450, 903 P.2d at 1271).
127 Ibid, at 186-87 and n.10, 970 P.2d at 494-95, n.10.
128 Ibid, at 187, 970 P.2d at 495 (citing PASH, 79 Hawai‘i at 450, 903 P.2d at 1271).
129 94 Hawai‘i 31, 7 P.3d 1068 (2000).
130 Ibid, at 46-47, 7 P.3d at 1083-84.
131 Ibid, at 34-36, 7 P.3d at 1071-73.
132 Ibid, at 50, 7 P.3d at 1087.
133 Ibid.
134 Ibid, at 35, 7 P.3d at 1072.
the [LUC’s] findings of fact and conclusions of law are insufficient to
determine whether it fulfilled its obligation to preserve
and protect customary
and traditional rights of native Hawaiians[;] [t]he LUC, therefore, must be
deemed, as a matter of law, to
have failed to satisfy its statutory and
constitutional obligations.
The Court held that the LUC “must – at a minimum – make specific findings
and conclusions” regarding:135
(1) the identity and scope of “valued cultural, historical, or natural
resources” in the petition area, including the
extent to which traditional
and customary native Hawaiian rights are exercised in the petition area;
(2) the extent to which those resources – including traditional and
customary native Hawaiian rights – will be affected
or impaired by the
proposed action; and
(3) the feasible action, if any, to be taken by the [LUC] to reasonably
protect native Hawaiian rights if they are found to exist.
F. In re Waiola o Molokai
In a water case from the island of Moloka‘i, In re Waiola o Molokai
(2004),136 the Hawai‘i Supreme Court applied the analytical
framework set out in Ka Pa‘akai. In reviewing a decision by the
State Commission on Water Resource Management (COWRM), the Court utilised Ka
Pa‘akai’s guidelines to find that COWRM had not met “its
public trust obligation to protect native Hawaiians’ traditional
and
customary gathering rights”,137 by granting a water use and
well construction permit, without adequately protecting the natural resources
that are customarily and
traditionally gathered. The Court
stated:138
A substantial population of native Hawaiians on Moloka‘i engages in
subsistence living by fishing, diving, hunting, and gathering
land and marine
flora and fauna to provide food for their families. Aside from the nutritional
and affordable diet, subsistence living
is essential to (1) maintaining native
Hawaiians’ religious and spiritual relationship to the land and nearshore
environment
and (2) perpetuating their commitment to “malama ka
aina,” which mandates the protection of their natural ecosystems
from
desecration and deprivation of their natural freshwater
resources.
135 Ibid, at 47, 7 P.3d at 1084.
136 103 Hawai‘i 401, 83 P.3d 664 (2004).
137 Ibid, at 443, 83 P.3d at 706.
138 Ibid, at 439, 83 P.3d at 702.
The Court found that, like the Land Use Commission in Ka Pa‘akai, COWRM
“lacked an adequate evidentiary basis for its conclusion that [the developer’s]
‘applied-for uses ... do not abridge or deny traditional or customary
Hawaiian rights, customs, practices, or appurtenant water
rights, or any other
rights referred to in or protected by [Hawai‘i law]’”.139
Thus, the Court vacated the decision, holding that COWRM failed to place
adequate conditions on the permitted use in order to protect
the natural
resources that were the basis of Native Hawaiian customary and traditional
fishing and ocean gathering practices.140
G. In re Kukui (Molokai) Inc.
In a more recent case, the Hawai‘i Supreme Court again reviewed a COWRM
decision, this time approving a permit authorizing the
use of over 1 million
gallons of water per day from Well-17 on Moloka‘i. The Court determined,
inter alia, that COWRM erred because it “impermissibly shifted the
burden of proving harm to those claiming a right to exercise a traditional
and
customary native Hawaiian practice”.141 The Court concluded
that COWRM failed to adhere to the proper burden of proof standard to maintain
the protection of Native Hawaiian
traditional and customary gathering rights in
discharging its public trust obligation.142
iV. JudiciALLy defined criteriA for customAry And trAditionAL
prActices
A. Balancing the Interests of Property Owners and
Practitioners
In reviewing customary rights claims, the Hawai‘i Supreme Court has
articulated a balancing test in which the retention of a
Hawaiian tradition is
determined first by deciding if a custom has continued in a particular area and,
second, by balancing the respective
interests of the practitioner and possible
harm to the landowner.143
In Kalipi, the Court did not need to implement this balancing test
since it found that there was insufficient evidence to show that such rights
should accrue to someone who did not reside in the ahupua‘a in which such
rights are claimed. The Court also noted, however,
that testimony had shown
that
139 Ibid, at 443, 83 P.3d at 706 (quoting Conclusion of Law No. 29 entered by the State Commission on Water Resource Management in the contested case hearing decision that formed the basis for this appeal).
140 Ibid.
141 116 Hawai‘i 481, 507, 174 P.3d 320, 346 (2007).
142 Ibid, at 509, 174 P.3d at 348.
143 Kalipi, 66 Haw. at 10, 656 P.2d at 750-51 (citations omitted).
there was a range of traditional practices – including the gathering of
items not included in Haw. Rev. Stat. section 7-1 and
use of lands for spiritual
and other purposes – that required the use of undeveloped property of
others. The Court then concluded
that where such practices, “without
harm to anyone”, have continued, section 1-1 ensures their continuance
“so long as no actual harm is done thereby”.144
Thus, for the Kalipi Court, the balancing test focused on whether
the customary practice harmed another’s interest.
In Pele, the Court characterised Kalipi as upholding rights
under Haw. Rev. Stat. section 1-1 to:145
enter undeveloped lands owned by others to practice continuously exercised
access and gathering rights necessary for subsistence,
cultural or religious
purposes so long as no actual harm was done by the practice.
Subsequently, in PASH, the Court amplified on the test, stating that
the “reasonable exercise of ancient Hawaiian usage is entitled to
protection under article XII, section 7”, although:146
the balance of interests and harms clearly favors a right of exclusion for
private property owners as against persons pursuing non-traditional practices
or exercising otherwise valid customary rights in an unreasonable
manner.
Similarly, when the PASH Court reached its landmark conclusion that
“the western concept of exclusivity is not universally applicable in
Hawai‘i”,147 it immediately attempted to alleviate fears
of private property owners by stressing “the non-confrontational aspects
of traditional
Hawaiian culture” which “should minimize potential
disturbances”.148 The Court then emphasised that
“unreasonable or non-traditional uses are not permitted under
today’s ruling”.149
Consequently, in balancing the interests of practitioners and private
property owners, the Court has focused on (1) whether the practice
is indeed
customary and traditional; (2) whether the practice is exercised in a reasonable
manner; and (3) whether the practice causes
harm to another’s recognised
interest. The question of harm to another’s interest is closely related to
whether a customary
practice is exercised in a reasonable
manner.
144 Ibid, at 10, 656 P.2d at 750 (emphasis added).
145 Pele, 73 Haw. at 618, 837 P.2d at 1270 (emphasis added).
146 PASH, 79 Hawai‘i at 442, 903 P.2d at 1263 (emphasis added).
147 Ibid.
148 Ibid, at 447, 903 P.2d at 1268.
149 Ibid.
In a footnote in PASH, the Court highlighted three aspects of the
doctrine of custom in Hawai‘i: (1) a custom is consistent when
measured against other customs; (2) a custom is certain if it can be
objectively defined and applied; and (3) reasonableness concerns the
manner in which an otherwise valid customary right is exercised –
“even if an acceptable rationale cannot
be assigned, the custom is still
recognised as long as there is no ‘good legal reason’ against
it.”150 Thus, the reasonableness of the manner or method
employed in the exercise of a valid practice determines whether it warrants
constitutional
protection, but the balance tips toward reasonableness as long as
there is no good legal reason against recognising the
custom.151
B. Practice Established by 25 November 1892
Based on the enactment of Haw. Rev. Stat. section 1-1, traditional and
customary practices in Hawai‘i must be established in practice by 25
November 1892.152
C. Customary Rights not Limited by Tenancy
Although Kalipi appeared to hold that customary and traditional rights
were associated with residency within the ahupua‘a, Pele clarified
that Article XII, section 7, protects customary rights exercised beyond the
boundaries of the ahupua‘a in which a
Native Hawaiian resides where those
rights were customarily and traditionally exercised in that manner.153
In PASH, the Court reaffirmed its holding in Pele and
declared that “common law rights ordinarily associated with tenancy do not
limit customary rights existing under the laws
of this
state”.154
D. Definition of Native Hawaiian
In PASH, the Court rejected an interpretation of Pele that
would have limited protection under Article XII, section 7, to those Native
Hawaiians of 50 per cent or more Hawaiian ancestry.
The PASH Court held
that descendants of Native Hawaiians who inhabited the islands prior to 1778 who
assert valid customary and traditional
Hawaiian rights are entitled to
protection, regardless of their blood quantum.155
150 Ibid, at 447, 903 P.2d at 1269 n.39.
151 See D Kapua‘ala Sproat “Comment: The Backlash against PASH: Legislative Attempts to
Restrict Native Hawaiian Rights” (1998 Summer/Fall) 20 U Haw L Rev 321 at 342.
152 PASH, 79 Hawai‘i at 447, 903 P.2d at 1268.
153 Pele, 73 Haw. at 620, 837 P.2d at 1272.
154 PASH, 79 Hawai‘i at 448, 903 P.2d at 1269.
155 Ibid, at 449, 903 P.2d at 1270.
E. Continued Existence of a Customary Practice
Both Kalipi and Pele implied that a customary practice, in
order to be valid, must have been exercised continuously.156
Moreover, in the earlier case of State v Zimring,157 the
Court seemed to reject the idea that customary practices had carried over into a
private property regime. PASH characterised the relevant language in
Zimring as dicta and specifically stated that the “ancient usage of
lands practiced by Hawaiians did, in fact, carry over into the new
system of
property rights” and that “fee simple title in Hawai‘i is
limited by the sovereign’s authority
to regulate its use”.158
This analysis led the Court to conclude that that the “right of each
ahupua‘a tenant to exercise traditional and customary
practices remains
intact, notwithstanding arguable abandonment of a particular
site”.159
F. Undeveloped/Fully Developed Land
In the Kalipi case, the Hawai‘i Supreme Court imposed a restriction on the exercise of traditional and customary under Haw. Rev. Stat. section 7-1, determining that such practices could only be exercised on “undeveloped lands within the ahupua‘a”.160 The Court acknowledged that the undeveloped land limitation “is not, of course, found within [Haw. Rev. Stat. 7-1]”.161
The Court added the restriction to avoid conflicts between practitioners and
landowners and characterised it as necessary to prevent
residents from going
“anywhere within the ahupua‘a, including fully developed property,
to gather the enumerated items”.162 Such a result, the Court
said, “would so conflict with understandings of property, and potentially
lead to such disruption”
that it would be absurd and therefore not what
was intended by the statute’s framers.163 The Kalipi
Court also expressed its opinion that such a result would conflict with the
“traditional Hawaiian way of life in which cooperation
and
non-interference with the well-being of other residents were integral parts of
the culture”.164
156 Kalipi, 66 Haw. at 11-12, 656 P.2d at 751-52; Pele, 73 Haw. at 619, 837 P.2d at 1271.
157 State v Zimring, 58 Haw. 106, 566 P.2d 725 (1977). In Zimring, the Court determined that lava extensions are owned by the State and rejected the trial Court’s determination that Hawaiian usage was always to give lava-extended shorelines to the abutting landowner. In doing so, the Zimring Court questioned the relevance of customary usage prior to institution of a fee simple land ownership system in Hawai‘i.
158 PASH, 79 Hawai‘i at 449-450, 903 P.2d at 1270-71.
159 Ibid, at 45, 903 P.2d at 1271.
160 Kalipi, 66 Haw. at 7, 656 P.2d at 749.
161 Ibid, at 8, 656 P.2d at 750.
162 Ibid.
163 Ibid.
164 Ibid.
In Pele, the Court did not specifically comment on this requirement,
but implicitly applied it to customary practices recognised under Haw.
Rev.
Stat. section 1-1.165 However, in PASH, the Court declined the
“temptation to place undue emphasis on non-Hawaiian principles of land
ownership” and elected “not
to scrutinize the various gradations in
property use that fall between the terms ‘undeveloped’ and
‘fully developed’”.166 Instead, the Court
emphasised the need to make determinations on a case-by-case basis. However, the
PASH Court also stated that, “once land has reached the point of
‘full development’ it may be inconsistent”167 to
allow the exercise of Native Hawaiian rights. On its face, this language
indicated that there could be instances in which fully
developed land might be
subject to the exercise of Native Hawaiian customary and traditional
rights.
Subsequently, the Court clarified this statement. In the Hanapi case,
the Court held that:168
if property is deemed “fully developed,” i.e., lands zoned and
used for residential purposes with existing dwellings,
improvements, and
infrastructure, it is always “inconsistent” to permit the
practice of traditional and customary native Hawaiian rights on such
property.
In a footnote, the Court acknowledged that residential property is only one
example of fully developed property and that there may
be other such
examples.169 In accordance with the holding in PASH, however,
the Court reserved the question as to the status of Native Hawaiian rights on
property that is “less than fully developed”.170
G. Establishing Customary and Traditional Practices
Of the cases decided by the Hawai‘i Supreme Court, only Hanapi
offers concrete guidance on what is required to establish a customary and
traditional practice. In Hanapi, the Court first noted that some
customary and traditional native Hawaiian rights are codified either in Article
XII, section 7,
of the State
165 See Pele, 73 Haw. at 621, 837 P.2d at 1273, stating that upon a showing that Wao Kele O Puna was a traditional gathering area utilised by tenants of the abutting ahupua‘a, PDF members may have a right to enter the undeveloped areas to exercise their traditional practices. PDF based its customary and traditional rights claim on Haw. Rev. Stat. § 1–1 and Art. XII, § 7 of the Hawai‘i Constitution. Ibid, at 618, 837 P.2d at 1270.
166 PASH, 79 Hawai‘i at 450, 903 P.2d at 1271.
167 Ibid.
168 Hanapi, 89 Hawai‘i at 186-87, 970 P.2d at 494-95.
169 Ibid, at 187, 970 P.2d at 495, n. 10.
170 Ibid, at 187, 970 P.2d at 495.
constitution or in Haw. Rev. Stat. sections 1-1 and 7-1.171 The
Court stated, however, “The fact that the claimed right is not
specifically enumerated in the Constitution or statutes,
does not preclude
further inquiry concerning other traditional and customary practices that have
existed.”172
In Hanapi, the defendant, although testifying to his own practice and
the basis for the practice, did not offer an explanation of the “history
or origin of the claimed right. Nor was there a description of the
‘ceremonies’ involved in the healing process.”173
The Court in Hanapi believed that the defendants’ testimony
and the testimony of his wife, standing alone, were insufficient to meet the
burden
of proving a customary and traditional right. The Court stated that to
establish the existence of a traditional or customary Native
Hawaiian practice,
there must be an “adequate foundation in the record connecting the claimed
right to a firmly rooted traditional
or customary native Hawaiian
practice”.174 According to the Court, such a foundation can be
made through testimony of experts or kama‘āina witnesses as proof of
ancient
Hawaiian tradition, custom and usage.175
What is less clear is to what extent Native Hawaiian practitioners can use
modern means and methods – for instance a motorboat
for fishing or a
chainsaw to fell a tree – to exercise customary and traditional rights.
Although the Hawai‘i Supreme
Court has never been called upon to decide
these kinds of issues,176 federal Court cases interpreting American
Indian treaty rights may provide some guidance. Several federal Court decisions
appear to
support the use of modern technology while native peoples are engaged
in traditional and customary practices. These decisions affirmed
the right of
tribes to employ
171 Ibid, at 186, 970 P.2d at 494. Notwithstanding the Court’s statement, arguably only Haw.
Rev. Stat. § 7–1 actually enumerates customary and traditional rights.
172 Ibid, at 186, 970 P.2d at 494.
173 Ibid, at 187, 970 P.2d at 495.
174 Ibid.
175 Ibid, at n.12.
176 One state trial Court judge determined, with respect to a claim of customary and traditional
fishing rights, that:
Method is relevant to claimed traditional and customary rights. Fishing and gathering lose their traditional and customary nature when performed with modern technology that: (a) substantially replaces human dexterity, energy or propulsion (e.g. manual harvesting, hand retrieval of lines and nets, swimming, rowing) or natural energy or propulsion (e.g. surfing, sailing) with engines or motors; or (b) replaces and substantially extends the scope or intensity of traditional methods (e.g. miles long synthetic lines vs. traditionally made lines). A difference in amount can be a difference in kind.
Kelly v 1250 Oceanside Partners (Civ. No. 00-1-0192K, Findings of Fact; Conclusions of
Law and Order With Respect to Counts II and V in the Fifth Amended Complaint, October
21, 2002), Conclusion of Law No. 4.
modern boats, nets and other techniques while exercising their treaty fishing
rights.177 For example, United States v Washington178
discussed the fact that the treaty tribes utilise modern techniques to
fish and some, such as the Makah, even desired assurances in
negotiating their
treaties that they would not be bound to aboriginal techniques and methods in
fishing. Ultimately, the Court determined
that the “treaty tribes may
utilize improvements in traditional fishing techniques, methods and gear subject
only to restrictions
necessary to preserve and maintain the
resource”.179
Similarly, there are federal statutes, including the Marine Mammal Protection
Act of 1972,180 which provide specific exemptions for Alaska Natives,
allowing them to take protected marine mammals such as seals, whales, and sea
otters for subsistence or for use in traditional native handicrafts. These
statutes as well as cases interpreting them may provide
some guidance on this
issue.181 The answer, however, is likely to lie in a case-by-case
determination by Hawai‘i Courts as to whether the particular means or
method employed is reasonable and whether its use is harmful to another’s
interest.
Hawaiian scholar Davianna Pomaika‘i McGregor, who has extensively
studied traditional and customary practices in rural communities,
has suggested
some behavioural factors that should be considered in determining whether
practices, in this modern age, are firmly
linked to custom. She
states:182
These rules of behaviour are tied to cultural beliefs and values regarding
the respect of the ‘āina (land), the virtue of sharing and not
taking too much, and a wholistic perspective of organisms and ecosystems that
emphasises balance
and coexistence.
She also notes:183
177 United States v Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff’d[1975] USCA9 362; , 520 F.2d 676 (9th Cir. 1975), cert. denied, 414 U.S. 44, 48 (1976). See also Puyallup Tribe v Department of Game, [1968] USSC 193; 391 U.S. 392 (1968); Sohappy v Smith, 302 F. Supp. 899 (D. Or. 1969), aff’d. and remanded[1976] USCA9 97; , 529 F.2d 570 (9th Cir. 1976); United States v Michigan, 471 F. Supp. 192, 260 (W.D. Mich. 1979); Peterson v Christensen, 455 F. Supp. 1095, 1099 (E.D. Wis. 1978); Grand Traverse Band of Chippewa and Ottawa Indians v Director, Michigan Department of Natural Resources, 971 F. Supp. 282, 289 (W.D. Mich. 1995), aff’d. [1998] USCA6 177; 141 F.3d 635 (6th Cir. 1998), rehrg denied, 1998 U.S. App. LEXIS 13638 (1998), cert. denied, 525 U.S. 1040 (1998).
178 U.S. v Washington, 384 F. Supp. 312, 363-64 (W.D. Wash. 1974), aff’d[1975] USCA9 362; , 520 F.2d 676 (9th
Cir. 1975), cert. denied, 423 U.S. 1086 (1976).
179 Ibid, at 402.
180 16 U.S.C. § 1361-1421h (2000).
181 Ibid, § 1371(b).
182 McGregor, above note 3, 30 Hawn. J. of Hist. at 16 (1996).
183 Ibid, at 16.
In communities where traditional Hawaiian customs and practices have
continued to be practiced, the ‘ohana respects and cares
for the
surrounding natural resources. They only use and take what is needed. They allow
the natural resources to reproduce. They
share what is gathered with family and
neighbors.
Other factors include: protecting the knowledge that has been passed down
from generation to generation; acting with purpose and mindfulness
when engaged
in the particular activity; respecting the traditional areas of other families
and practitioners; and honouring the
gods and deities that guard a particular
resource.184
H. Impact on Private Property Interests
In PASH, the Hawai‘i Supreme Court rejected the
developer’s argument that the recognition of traditional Hawaiian rights
beyond
those established in Kalipi and Pele would fundamentally
alter its property rights and result in a judicial taking.185 The
Court summarily disposed of the argument, noting that a judicial decision
constitutes an unconstitutional taking of private property
if it
“involve[s] retroactive alteration of state law such as would constitute
an unconstitutional taking of private property”186 and stating
that the argument placed undue reliance on Western understandings of property
law “not universally applicable in
Hawai‘i”.187 The
Court also stated that custom and usage have always been part of the
State’s laws.188
The PASH Court then turned to the question of whether a “regulatory taking”
– a taking that occurs when government application of a law to a
particular landowner denies all economically beneficial use
of the property
without compensation – might result from recognition of traditional and
customary rights during the process
of obtaining permits to develop
land.189 The PASH Court agreed with the developer that the
issue was premature since it was impossible to know, at that stage of the case,
whether and
what types of conditions might be placed by the regulatory agency on
development in order to protect customary and traditional
rights.190
184 Ibid, at 16-18.
185 PASH, 79 Hawai‘i at 451, 903 P.2d at 1272.
186 Ibid (citing Bonelli Cattle Co. v Arizona, [1973] USSC 254; 414 U.S. 313, 337 n.2[1973] USSC 254; , 38 L. Ed. 2d 526, 94 S.
Ct. 517 (1973) (Stewart J, dissenting)).
187 Ibid.
188 Ibid.
189 Ibid, at 452, 903 P.2d at 1273.
190 Ibid.
Although the PASH case has been criticised as a radical departure from
prior Hawai‘i law, because of the ripeness doctrine,191 it can
only be challenged in federal Court once it has been applied in a specific
factual situation. As one commentator has noted,192
[u]ntil there is some specific permit condition imposed or some denial of a
permit based on PASH, or until some specific claimant’s
individual demand
for access is adjudicated, there will likely be reluctance on the part of the
U.S. Supreme Court to become involved.
Since the PASH decision, few cases have made their way to the
Hawai‘i Supreme Court relating to customary and traditional rights –
Ka Pa‘akai and Waiola specifically deal with the permitting
process and neither one has resulted in a federal Court challenge to the
Court’s customary
rights jurisprudence.193
Soon after the Hawai‘i Supreme Court’s decision in PASH,
calls came from the business and private-property rights sectors of the
community to define and regulate customary and traditional
rights.194
In 1997, bills were introduced in the Hawai‘i State Legislature that
would have regulated customary and traditional rights.195 Senate
Bill 8, for instance, instituted a process of determining and registering all
traditional and customary uses exercised on a
parcel of land. House Bill 1920,
on the other hand, created a declaratory cause of action that could be initiated
in circuit Court
to “determine the nature and extent of customary and
traditional practices in land”. Both bills failed, due in large
part to
opposition from the Native Hawaiian community.
191 See Paul M Sullivan “Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai‘i” (1998 Summer/Fall) 20 U Haw L Rev 99 at 126-33 for a discussion of federal Court cases in which the argument has been made that the Hawai‘i Supreme Courts’ decisions in specific cases resulted in judicial taking of property and the resulting federal decisions finding such claims not ripe for review.
192 Ibid, at 161.
193 See M Casey Jarman and Robert RM Verchick, “Beyond the ‘Courts of the Conqueror’: Balancing Private and Cultural Property Rights under Hawai‘i Law” (2003, Spring) 5 Scholar
201 for a discussion of the Ka Pa‘akai case on remand to the Land Use Commission and application of the Ka Pa‘akai analysis in other proceedings.
194 See, for example, Kenneth R Kupchak “Native-Use Rights to Affect Permits” Pacific Business News (Hawai‘i, 16 April 1996) calling for a comprehensive solution and the creation of a Native Rights Commission to determine such rights.
195 See D Kapua‘ala Sproat, above note 151, (Summer/Fall 1998) 20 U
Haw L Rev at 353 for a description of these legislative
efforts and analysis of
the bills in relation to the Hawai‘i Supreme Court’s
decisions.
One outcome of these legislative efforts, however, was the establishment of a
PASH-Kohanaiki Study Group,196 which released a report on its
deliberations in January 1998. The report surveyed the issues raised by the
PASH decision from various perspectives including those of
landowners/business interests, Native Hawaiian practitioners and government
agencies. The landowner/ business perspective was that a resolution was needed
that would (1) protect and perpetuate traditional
rights without diminishing
private property owner rights, (2) provide predictability, certainty and
finality, and (3) foster stewardship
of the land.197 Specific
concerns noted were the impact of the decision on title insurance and
development financing, the possible increased regulatory
burden on those wishing
to develop properties, and the potential liability of landowners for injury to
those accessing private property
to practise customary and traditional rights.
An overarching concern expressed was that the PASH decision had the potential to
“undermine
the State’s investment climate” with resulting
negative consequences throughout the State’s economy. More than
15 years
after the PASH decision, however, it does not appear that the concerns
and fears expressed by business and private property rights advocates have
actually affected real estate transactions or Hawai‘i’s
economy.
V. custom in other stAte LAws
Although it is not possible to do a complete survey of other Hawai‘i
laws incorporating or protecting Hawaiian custom, several
important examples
indicate the extent to which custom plays a role in Hawai‘i law. These
examples include water rights, the
protection of Hawaiian human remains or iwi
kūpuna, and enactment of a law allowing parents to keep the ‘iewe or
placenta
of a newborn.
A. Hawaiian Water Rights198
In ancient Hawai‘i, water or wai was a procreative force and the
physical embodiment of the god Kāne.199 In addition to defining
social and cultural development because of the importance of water to the growth
of kalo or taro, the Hawaiian
staple plant, how water was shared and managed was
literally the basis for law. For growth and to prevent disease, kalo requires
constantly
196 See H.R. No. 197, H.D. 1, Regular Session of 1997, Nineteenth State Legislature, State of
Hawai‘i.
197 PASH-Kohanaiki Study Group Report at 9 (January 1998).
198 For an extended discussion of Hawaiian water rights law see John Castle and Alan Murakami in Melody Kapilialoha MacKenzie (ed) Native Hawaiian Rights Handbook (University of Hawai‘i Press, Honolulu, 1991) Chapter 7 [“Handbook”].
199 ES Craighill Handy and Elizabeth Green Handy, Native Planters in Old Hawaii (Bishop
Museum Press, Honolulu, 1972) at 64-65.
flowing cool, fresh water. Hawaiians constructed complex systems of ‘auwai or irrigation ditches and developed a management system that apportioned water among lo‘i kalo or taro fields next to a ditch or stream.200 After water flowed through the lo‘i, it was returned to the ‘auwai or stream to flow downstream to the next lo‘i and eventually to the sea. On the lo‘i banks, kalo farmers grew other crops like banana, sugar cane and yam.201 This system, which served the ancient Hawaiians well, continues today in rural communities throughout the islands. Kalo is still a staple food for the Hawaiian community and indeed, in the Hawaiian creation story, kalo and Hawaiians share a common ancestor.202
Thus, kalo is viewed as the older sibling of the Hawaiian people.
Kānāwai (relating to water) is the word for law in the
Hawaiian
language and, as commentators have noted, this term reflects Hawaiian
society’s203
focus on managing the shared use of water. Hawaiians deemed water and other
natural resources a public good. The entire community,
regardless of social
rank, dutifully respected this principle and did not lightly suffer any
violaters.
Hawai‘i water law today is a mix of Hawaiian traditional concepts,
common law based on those concepts, and constitutional and
statutory provisions
incorporating those concepts. While it is beyond the scope of this article to
examine Hawai‘i water law
in detail, several general principles –
appurtenant water rights, riparian uses, and the public trust nature of water
–
show the extent to which Hawaiian tradition has been incorporated into
State law. In addition, the Hawai‘i Water Code contains
specific
provisions protecting traditional and customary rights.
Early Hawai‘i case law recognised appurtenant water rights based on the
ancient Hawaiian agricultural system. Through ancient
custom, the right to use
water for irrigating taro lands became attached or “appurtenant” to
the lands. This customary
right became a legal right when land titles were
awarded204 with the quantity of water allowed tied to the amount
customarily used at and immediately prior to a land award during the Māhele
process.205 The earliest Hawai‘i water rights case established
this principle. In Peck v Bailey (1867),206
200 See Antonio Perry “Hawaiian Water Rights” in Thomas G Thrum (ed) Hawaiian Annual & Almanac for 1913 (1912) at 95 for a description of traditional Hawaiian water usage and management.
201 Handy and Handy, above note 199, at 92-93 (1972).
202 David Malo, Hawaiian Antiquities (Bishop Museum Press, Honolulu, 1903) at 320.
203 D Kapua‘ala Sproat and Isaac H Moriwake “Ke Kalo Pa‘a o Waiāhole: Use of the Public Trust as a Tool for Environmental Advocacy” in C Rechtschaffen and D Antolini (eds) Creative Common Law Strategies for Protecting the Environment (Environment Law Institute, Washington, 2007) at 249.
204 Peck v Bailey, 8 Haw. 658, 661 (1867).
205 Carter v Territory, 24 Haw. 47, 66 (1917); Territory v Gay, 31 Haw. 376, 383 (1930).
206 8 Haw. 658 (1867).
a dispute arose between two landowners within the ahupua‘a of Wailuku
on Maui, with the plaintiff claiming a superior right
based on title derived
from the konohiki of the ahupua‘a.207 The Court rejected the
claim, stating, “[i]f any of the lands were entitled to water by
immemorial usage, this right was included
in the conveyance as an
appurtenance”.208 Consequently, each party was limited to
ancient appurtenant rights to use water for its lands, neither party having any
superior rights.
Since the Peck decision, the doctrine of appurtenant
rights has become a basic tenet of Hawai‘i water
law.209
In McBryde Sugar Co. v Robinson,210 the Hawai‘i
Supreme Court clarified Hawai‘i law to hold that waters flowing in natural
watercourses belong to the State
of Hawai‘i. In McBryde, the Court
looked to the Māhele and its implementing laws to examine what Kamehameha
III intended to convey in granting fee
simple titles. The Board of Land
Commissioners, which was responsible for hearing and determining land claims,
adopted certain principles
including the principle that the king’s
prerogatives as head of the nation – his “sovereign prerogatives
–
could not be conveyed. One of these sovereign prerogatives was “to
encourage and even to enforce the usufruct of lands for
the common
good”.211 The McBryde Court reasoned that the right to
use water was one of the most important usufructs of land. The principles showed
the king’s
intent to reserve the right to use water to himself as
sovereign for the common good. Thus, no right to private ownership of water
had
been conveyed with any land title grant as a result of the Māhele
process.212 The Court held that the State, as successor to the King,
owned all waters flowing in natural watercourses.
In McBryde, the Court also pointed to section 7 of the Kuleana Act of
1850, which guarantees the right to “drinking water and running
water”. The Court said that the term “running water” must have
meant water flowing in natural watercourses, since
artificial watercourses were
exempted from the statute. Pointing to the influence of the missionaries from
Massachusetts, the Court
207 Ibid, at 659.
208 Ibid, at 661.
209 Wells A Hutchins The Hawaiian System of Water Rights (US Dept of Agriculture and the
Board of Water Supply, City and County of Honolulu, Honolulu, 1946) at 103.
210 54 Haw. 174, 504 P.2d 1330 (1975), affm’d on rehearing.
211 Ibid, at 186, 504 P.2d at 1338, quoting from 2 Revised Laws of Hawaii, 1925 app. at 2124,
2128 (1925).
212 Ibid, at 187, 504 P.2d at 1339.
found parallels to the English common law doctrine of riparianism, which
Massachusetts had adopted.213 Consequently, the Court held that a
landowner adjoining a natural watercourse had riparian water rights.
Subsequently, the Hawai‘i Supreme Court in Reppun v Board of Water
Supply214 reaffirmed the doctrine, specifically highlighting the
needs of Hawaiian kalo farmers and the shared use of water resources in
traditional
Hawaiian society:215
First, the doctrine is consistent with the needs of native commoners at the
time of the law’s passage. Taro, the predominant
agricultural crop, grew
best where a steady flow of running water, most of which could be subsequently
utilised by lower riparian
users, occurred; the cultivation of taro took place
principally upon riparian lands; and grants to commoners were restricted to
lands
they had in fact cultivated. Second, the principles underlying the
doctrine are consistent with those that appear to pervade the
native system of
water allocation and preexisting civil law inasmuch as: “title” to
the water was not equated with the
right to use; each person’s right to
use was a “correlative” nature; and rights to use were predicated
upon beneficial
application of the water to the land.
In 1978, the Hawai‘i State Constitution was amended to expressly
declare that “[a]ll public natural resources are held
in trust by the
State for the benefit of its people”.216 Another amendment
reiterated the State’s “obligation to protect, control and regulate
the use of Hawaii’s water
resources for the benefit of its
people”.217 This amendment also provided for the creation of a
water resources agency that would, among other things, “establish criteria
for water use priorities while assuring appurtenant rights and existing
correlative and riparian uses and establish procedures for
regulating all uses
of Hawaii’s water
resources”.218
213 The cases cited by the Court indicated that natural water courses were publici juris; meaning that such waters were public and common to the extent that all who had a right of access could make reasonable use of them. Ibid, at 186-87, 504 P.2d at 1338-1339.
214 65 Haw. 531, 656 P.2d 57 (1982), cert. denied, 471 U.S. 1014 (1984).
215 Ibid, at 545, 656 P.2d at 67 (1982).
216 Haw. Const. art. XI, § 1.
217 Haw. Const. art. XI, § 7.
218 Ibid.
In 1987, the State Legislature adopted the State Water Code. The Code ensures
that “traditional and customary rights of ahupua‘a
tenants ... shall
not be abridged or denied” in implementing its provisions and states
that:219
such traditional and customary rights shall include, but not be limited to,
the cultivation or propagation of taro on one’s
own kuleana and the
gathering of hihiwai, opae, o‘opu, limu, thatch, ti leaf, aho cord, and
medicinal plants for subsistence,
cultural, and religious purposes.
In a landmark water rights decision interpreting the State Constitution and
the Water Code, the Hawai‘i Supreme Court gave substance
to the public
trust doctrine in Hawai‘i.220 Although the decision contains
many significant and groundbreaking determinations, for our purposes, the most
relevant is the Court’s
recognition that “Native Hawaiian and
traditional and customary rights” are public trust
purposes.221
B. Protection of Ancestral Remains222
Values and customs related to death “are deeply ingrained in Hawaiian culture, calling for utmost respect and reverence”.223 For traditional Hawaiians, the bones and the spirit of a person are connected and the spirit remains near the bones or iwi following death. The burial area is a sacred place, particularly because the life force or mana of the deceased person is infused into the place of burial. The mana of the deceased is imparted to the ahupua‘a and eventually to the entire island. The iwi of the deceased and the burial site were so sacred that if either was disturbed, the ability of the spirit to join the
‘aumākua or ancestors in eternity was in jeopardy. This then could result in
injury and spiritual trauma to the living descendants of the deceased
person.
219 Haw. Rev. Stat. § 174C-101(c). Hīhīwai are “endemic grainy snails” eaten by Native Hawaiians; ‘ōpae is the “general name shrimp”; ‘o‘opu is the “general name for certain families of fish ... some in salt water near the shore, others in fresh water, and some said to be in either fresh or salt water”; limu is a “general name for all kinds of plants living under water, both fresh and salt, also algae growing in any damp place in the air, as on the ground, on rocks, and on other plants”; aho means “line, cord, lashing” (Hawaiian Dictionary). Section 174C-101(d) also provides that the “appurtenant water rights of kuleana and taro lands, along with those traditional and customary rights assured in this section, shall not be diminished or extinguished by a failure to apply for or to receive a permit under this chapter.”
220 See, generally, Sproat and Moriwake, above note 203, for a discussion of the public trust
doctrine in Hawai‘i water cases.
221 In re Water Use Permit Applications, 94 Haw. 97, 137 n.34, 9 P.3d 409, 449 n.34 (2000).
222 This section is based on information from Chapter 13 in Handbook, above note 198, written by Edward Halealoha Ayau.
223 Ibid, at 245. See MK Pukui, EW Haerting, C Lee Nānā I Ke Kumu
(Look to the Source) Vol. I (Hui Hanai, Honolulu, 1972)
at 115-118, 195-196 for
discussion of Hawaiian concepts of death and treatment of human remains.
In 1988, during the construction of a large resort on the island of Maui near Honokahua Bay, Hawaiian remains were removed to make room for the new hotel. Although there certainly had been other instances where remains had been discovered, in the past, iwi kūpuna or ancestral remains had been dug up and historic sites paved over for development with impunity. At Honokahua, however, when local news accounts began to report the exhumation of more than 1,100 skeletal remains, Hawaiians were outraged by the desecration.224
They mobilised and held a 24-hour vigil at the state capitol. Ultimately, the
developer agreed to move the hotel inland, the disturbed
‘iwi kūpuna
were reinterred, and the burial area was set apart.225
The activities at Honokahua sparked a demand for legislative protection for
Hawaiian burial sites. In 1990, the Hawai‘i State
legislature passed a
burials law giving Hawaiian burial sites – especially those with large
numbers of remains – additional
protection.226 The law
establishes island burial councils for each of the major islands, with
representatives from both the Native Hawaiian community
and large landowner
interests, with Hawaiian interests constituting a majority on the
councils.227 The councils assist the State Historic Preservation
Division (SHPD) with the inventory and identification of unmarked prehistoric
and historic Hawaiian burial sites. The councils also make recommendations on
the treatment and protection of iwi kūpuna.
A major role of the councils is to “determine the preservation or
relocation of previously identified native Hawaiian burial
sites”.228
The law states that “[a]ll burial sites are significant and shall be
preserved in place until compliance with this section is
met...”.229
The law also establishes criteria that the councils must consider,
including giving higher priority to in situ preservation
to230
areas with a concentration of skeletal remains, or prehistoric or historic
burials associated with important individuals and events,
or that are within a
context of historic properties, or have known lineal descendants[.]
Before a State project affecting unmarked prehistoric or historic Hawaiian
burials begins, SHPD must be notified for review and comment.
Similarly, for
projects located on private property, before any agency of the State or its
political subdivisions approves a project
involving a permit, licence,
land
224 Handbook, above note 198, at 245.
225 Kūnani Nihipali “Stone by Stone, Bone by Bone: Rebuilding the Hawaiian Nation in the
Illusion of Reality” (2002, Spring) 34 Ariz St LJ 27.
226 Act 306, Haw. Sess. Laws. 1990 (codified at Haw. Rev. Stat. Chap. 6-E).
227 Haw. Rev. Stat. § 6E-43.5.
228 Ibid, § 6E-43.5(f)(1).
229 Ibid, § 6E-43(b).
230 Ibid.
use change or other entitlement for a use that may affect burials, the agency
must advise SHPD.231 If an archaeological inventory survey reveals
evidence of burials on the relevant property, the appropriate island burial
council
has jurisdiction to determine whether to preserve in place or relocate
the remains.
If Hawaiian remains are “inadvertently” discovered during
construction, SHPD has jurisdiction to decide whether to preserve
in situ or
relocate; in making that decision, SHPD must use the same criteria as the
councils.232 In either instance, a mitigation plan will be developed
by the SHPD or with its concurrence. Preservation in place should be the
mitigation
plan if there is no threat to the iwi. The landowner or developer is
usually responsible for executing the mitigation plan.233
On the other hand, if removal is necessary due to imminent harm to the iwi,
burial council members are notified and allowed to oversee
the process. SHPD
determines the place of relocation after consulting with the property owner,
lineal descendants and the council.
Lineal and cultural descendants may perform
traditional ceremonies during relocation of the iwi.234
The burials law defines “burial site” to address concerns that
human remains should not be classified as ordinary property
and that the area
surrounding a burial is sacred.235 Thus, burial sites are
“unique class[es] of historic property”. Moreover, under the law,
the State of Hawai‘i holds
title to known Hawaiian burial sites “in
trust for preservation or disposition by ... [Native Hawaiian]
descendants”.236 Finally, the State cannot transfer a burial
site without consulting the appropriate island burial
council.237
The success of the burial law depends on how well SHPD implements the law and whether all parties – particularly developers and landowners – cooperate. Indeed, with the large number of development activities in Hawai‘i, the law can only be successful if developers and landowners are responsive to the complex cultural, spiritual and legal issues involved. Recent controversies
– in urban Honolulu and on the island of Kaua‘i – indicate
that the process envisioned by the law may not be working.
Several lawsuits are
currently pending in State Courts dealing with the interpretation of the law in
an urban setting where permits
have been granted for development, allegedly
without
231 Ibid, § 6E-42.
232 Ibid, § 6E-43.6(c)(3).
233 Ibid, § 6E-43.6(e).
234 Ibid, § 6E-43.6(f).
235 Ibid, § 6E-2.
236 Ibid, § 6E-7(c).
237 Ibid, § 6E-7(d).
following the careful review process established in the law.238
This means, for instance, that in one case where remains of over 60
kūpuna have been discovered, they are classified as “inadvertently
discovered” and jurisdiction over whether to preserve in place or remove
to another location has fallen to the SHPD rather
than the O‘ahu Island
Burials Council.239
C. Protection for Customs Related to Birth
Just as customary practices related to death are culturally and spiritually
significant to Native Hawaiians, so too are those relating
to birth. The proper
care of both the piko or umbilical cord, and ‘iewe or placenta, of a
newborn increases the child’s
health and well-being throughout its life.
Important rituals associated with both the piko and ‘iewe connected a
child to its
homeland. The piko would be carefully guarded and then placed in a
special reserved place. Hawaiian scholar Mary Kawena Pukui
stated,240
In every district on every island were places, usually stones, especially
reserved for the piko. Wailoa was one on the Big Island ...
another was Mokuola. Ola means ‘life’ and loa
means ‘long’. Mothers took the cords to stones with names like
these so their babies would live long, healthy lives.
Traditionally, Hawaiians cleaned the ‘iewe of blood to ensure that the
child’s eyes would not be weak or sore. The ‘iewe
was later buried,
usually under a tree, to keep the child connected to its home and to prevent the
child’s spirit from wandering
homeless or hungry after
death.241
In 2005, the State of Hawai‘i Department of Health began enforcing a
policy that classified the ‘iewe as infectious waste.
Previously,
hospitals and doctors had given the ‘iewe to a mother upon request. A
Native Hawaiian couple filed a lawsuit in
the US District Court for the District
of Hawai‘i contesting the policy as a violation the US
Constitution’s provision
guaranteeing religious
238 See, for example, Kaleikini v Thielen, 124 Hawai‘i 1, 237 P.3d 1067 (2010); Vicki Viotti
“Wal-Mart Asked to Delay Store Opening” Honolulu Advertiser (Hawai‘i, 3 October
2004) <http://the.honoluluadvertiser.com/article/2004/Oct/03/ln/ln15a.html> (last visited
5 November 2011); see Charles Kauluwehi Maxwell “Kūkākūkā: Apply the Law to Protect Naue iwi kūpuna” Ka Wai Ola o OHA (Hawai‘i, June 2009) <www.oha.org/kwo/loa/2009/06/ story13.php> (last visited 5 November 2011) for discussion of a recent controversy on Kaua‘i.
239 For a discussion on the Hawai‘i burials law and controversies surrounding its implementation in urban Honolulu, see Rona Bolante “Bones of Contention” Honolulu Magazine (Hawai‘i, November 2007) <www.honolulumagazine.com/Honolulu-Magazine/November-2007/ Bones-of-Contention/> (last visited 5 November 2011).
240 Nānā I Ke Kumu Vol. I, above note 223, at 184.
241 Ibid.
freedom and of Hawaiian traditional and customary practices.242
Once the mother had given birth, the federal Court ordered the ‘iewe
to be frozen and stored while the suit was pending. Subsequently,
the
‘iewe disappeared from the hospital and the Court dismissed the
lawsuit.243
Native Hawaiian families then sought relief through the State Legislature
and, in 2006, the Legislature passed and Governor signed
a law that allows a
hospital to release the ‘iewe to the mother or her designee after a
negative finding of infectious or hazardous
disease.244 A draft of
the bill stated that “the State has the obligation to assure that
religious and cultural beliefs and practices are
not impeded” without a
strong reason.245 The final committee reviewing the bill noted that
“the rich ethnic and cultural practices of Native Hawaiian traditions are
essential to sustaining the Hawaiian culture, and need
protection”.246 According to news reports, no other US state
has laws addressing the cultural need to take placentas from
hospitals.247
VI. conclusIon – an olI aloha
In Hawai‘i, state law encourages legislators, judges and policy-makers to
apply the “Aloha Spirit” by providing:248
In exercising their power on behalf of the people and in fulfillment of their
responsibilities, obligations and service to the people,
the legislature,
governor, lieutenant governor, executive officers of each department, the chief
justice, associate justices, and
judges of the appellate, circuit, and district
Courts may contemplate and reside with the life force and give consideration to
the
“Aloha Spirit.”
242 N.S. and E.K.N. v State of Hawai‘i, U.S. D. Ct. for the District of Hawaii, Civ. No. 05-00405
HG, Complaint (24 June 2005).
243 Ibid, Minute Order (5 August 2005).
244 Act 12, Haw. Sess. Laws (2006).
245 Twenty-Third Legislature, State of Hawai‘i, H.B. No. 2057 (20 January 2006).
246 Twenty-Third Legislature, State of Hawai‘i, Senate Comm. on Health, Standing Comm.
Report No. 3185 on H.B. No. 2057, H.D. 2 (31 March 2006). The Committee also noted that many other ethnic groups in Hawai‘i, including Filipinos, Chinese and Japanese, also have practices that require burial of the placenta to protect the health of the child.
247 Tara Godvin “Hawaiians Await Bill on Access to Placenta” Honolulu Star-Bulletin (Hawai‘i,
17 April 2006) <http://starbulletin.com/2006/04/17/news/story01.html> (last visited 5
November 2011).
248 Haw. Rev. Stat. § 5.75(b) (2008).
Recognising that the aloha spirit was “the working philosophy of native
Hawaiians” which was presented as a gift to the
general community,
Hawai‘i law defines aloha as “mutual regard and affection”
with “no obligation in return”
and “the essence of
relationships in which each person is important to every other person for
collective existence”.249
The PASH Court specifically cited this provision in rejecting an
approach reflecting an “unjustifiable lack of respect for gathering
activities as an acceptable cultural usage in pre-modern Hawai‘i, which
can also be successfully incorporated in the context
of our current
culture”.250 Subsequently, the Hawai‘i State Legislature,
in enacting a law that broadened the requirements of an environmental impact
statement
to include impacts on the cultural practices of the community,
recognised that “the native Hawaiian culture plays a vital role”
in
the preservation of the “aloha spirit” and
that:251
the past failure to require native Hawaiian cultural impact assessments has
resulted in the loss and destruction of many important
cultural resources and
has interfered with the exercise of native Hawaiian culture.
Hawai‘i’s unique history and culture have resulted in a modern
society renowned for its warmth and generosity of spirit.
That spirit finds its
roots in traditional Hawaiian culture and it continues to infuse island life
today, in part because of Hawai‘i’s
long-standing recognition and
protection for Hawaiian tradition and custom. Thus, I close this paper with the
words from the Oli
Aloha as expressed in Hawai‘i state
law:252
Akahai, meaning kindness to be expressed with tenderness; Lōkahi, meaning unity, to be expressed with harmony;
‘Olu‘olu, meaning agreeable, to be expressed with pleasantness;
Ha‘aha‘a, meaning humility, to be expressed
with modesty; Ahonui,
meaning patience, to be expressed with perseverance.
‘Ano ‘ai, ‘ano ‘ai, me ke aloha. Aloha ē, aloha
ē, aloha ē.
249 Haw. Rev. Stat. § 5.75(a) (2008). The law incorporates the words to an Oli Aloha, or chant of Aloha, composed by Pilahi Paki, a Hawaiian chanter, composer and writer. The oli assigns important Hawaiian cultural values to each of the letters of Aloha.
250 PASH, 79 Hawai‘i at 450, 903 P.2d at 1271, n. 44.
251 Act 50, Haw. Sess. Laws (2000); see Ka Pa‘akai, 94 Hawai‘i at 47, 7 P.3d at 1084, n. 28
(2000).
252 Haw. Rev. Stat. § 5.75(a) (2008).
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