Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 2, 1 February 1993 — Sept. '92 court ruling expanded native access rights [ARTICLE]

Sept. '92 court ruling expanded native access rights

by Jeff Clark The scope of native access rights has been expanded in a ruling by the Hawai'i State Supreme Court last September. In a case involving access into the Wao Kele o Puna rainforest for gathering purposes, Associate Justice Robert Klein wrote in the court's opinion that Hawaiians may gain access and gather native plants in ahupua'a in whieh they do not live if they reside in adjacent ahupua'a, provided that residents of adjacent ahupua'a have traditionally used the ahupua'a in question for gathering. The ruling was part of a case in whieh the Pele Defense Fund (PDF) challenged the state's 1983 swap of 27,800 acres of ceded land in the Wao Kele o Puna rainforest for about 25,800 acres of land owned by Campbell Estate. The estate leases the former ceded land for geothermal development. The court upheld the swap, but granted the Pele Defense Fund a trial to determine whether the geothermal project has violated state law by prohibiting the Fund's native Hawaiian members from accessing the land to perform traditional practices. The Native Hawaiian Legal Corp. (NHLC), whieh will represent the Pele Defense Fund assisted by attorney Yuklin Aluli and the Native American Rights Fund, is setting a date for that trial for sometime in July in the Third Circuit Court in Hilo. Previously, one had to reside in the ahupua'a in order to enjoy gathering rights there. In the 1982 case Kalipi v. Hawaiian Trust Co., William Kalipi, who farmed taro in the Moloka'i ahupua'a of Manawai and owned a houselot in 'Ōhi'a, sued the owners of the two ahupua'a for denying him unrestricted gathering rights in the districts. He asserted his rights on two bases. One basis was Hawai'i Revised Statutes section 7-1 (formerly section 7 of the Kuleana Act), whieh lists the items that a native resident ean gather: firewood, house timber, aho cord, thatch, and ti leaf. The court said that to gather under

this law, the native ean only gather from undeveloped lands, the gathering must be for the purpose of practicing native Hawaiian customs and traditions, and the gatherer must live in the ahupua'a from whieh the items are gathered. The court ruled that Kalipi had no gathering rights in the ahupua'a because he did not live there. Kalipi's other elaim eame from section 1-1 of the Hawai'i Revised Statutes, whieh states that the eommon law of England is the law of Hawai'i except where the U.S. Constitution, federal or state law, judicial precedent, or "Hawaiian usage" applies. The court interpreted Hawaiian usage as allowing for "native understandings and practices whieh did not unreasonably interfere with the spirit of the eommon law." Again, the court ruled that Kalipi did not have gathering rights because he did not live in the ahupua'a. He lost

his case, but the court's interpretation of Hawai'i Revised Statutes section 1-1 expanded tenants' gathering rights beyond those items listed in HRS section 7-1. According to the Native Hawaiian Rights Handbook, the phrase "native understandings and practices whieh did not unreasonably interfere with the spirit of the eommon law" could include materials essential to the lifestyle of Hawaiian tenants, such as medicinal plants. It could be interpreted to include the right to gather items, such as kiawe, koa haole and deer, introduced after 1778 but whieh through custom have been incorporated into the native lifestyle. The court also wrote that the "precise nature and scope of rights retained by section 1-1" would have to be determined on a case-by-base basis. The differenee between the Kalipi and Pele Defense Fund cases was

that the Fund's members claimed their gathering rights "based on the traditional access and gathering patterns of native Hawaiians in the Puna region." Kalipi based his rights on land ownership, but the PDF showed that Puna region ahupua'a tenants traditionally accessed all areas of the Puna Forest Reserve for hunting and gathering. For example, the lava tube extending into the reserve extends across several ahupua'a and has entry points in more than one ahupua'a, and the area was associated not with any particular district but with "Pele and her family." The Committee on Hawaiian Affairs at the 1978 Constitutional Convention provided a constitutional basis for native access rights by amending the state Constitution to include Article XII, section 7, whieh "reaffirms all rights customarily and traditionally held by ancient

Hawaiians." In its report, the Committee stated its intention to define these rights as broadly as possible. It "intended to provide a provision in the Constitution to encompass all rights of native Hawaiians, such as access and gathering" and "did not intend to have the section narrowly eonstrued or ignored by the Court." NHLC staff attorney Paul Nahoa Lucas said the NHLC was disappointed with the Court's decision upholding the land swap, but pleased with the access ruling. The access ruling "may signal that the Court may be more receptive in the future to claims brought by natives regarding access." Lucas said the Native American Rights Fund on Dec. 28, 1992 filed an appeal to the U.S. Supreme Court on the land swap question. The Court probably won't decide whether it will hear the matter until July, he added.