Ka Wai Ola - Office of Hawaiian Affairs, Volume 14, Number 3, 1 March 1997 — SB 8: Hawaiians must apply for permits for traditional and customary practices on private land [ARTICLE]

SB 8: Hawaiians must apply for permits for traditional and customary practices on private land

by Kelli Meskin Senate Bill 8 would require native Hawaiians to get a permit to practice traditional and customary practices on private land. In order to get a permit native Hawaiians must submit to the State Land Use Commission: • theirname • lineal descent • a description of the land they want to access • an explanation of what they will do on the land • any documents that show their

ancesrors accessea that same land Before a permit is awarded the landowner would be notified of the request and could contest it within 30 days. The landowners would also be able to request a terminahon of native Hawaiian rights on their property. By the same rules native Hawaiians

would be able to contest the landowner's request. Native Hawaiians see this process as a violation of their rights. Land owners, title insurance companies and money lenders see this process as a security measure. "The major problem with Senate Bill 8 is that they are overreacting to the Kohanaiki decision whieh reaffirms existing rights to practice," said OHA trustee-elect Hannah Springer. Mililani Trask of Ka Lāhui Hawai'i testified against SB 8, saying "a hula dancer living in an ahupua'a would have to research every parcel of land - go to see if it is undeveloped - then if it is undeveloped they would have to inventory all the plants, kupe'e shells, etc. on the land. Next, they would have to file an application stating what their cultural use is for eaeh parcel. They would not be successful unless they could also prove that one of their ancestors also picked the same flowers on the same parcel in that ahupua'a. Presumably, they would have to present a 'certified' genealogy and "by a clear preponderanee of the evidence" prove the ancestor actually gathered these flowers before 1892! How ean anyone meet these standards?" "Growing up in Kula here on Maui we use to go up to the mountains and gather fern and go through many properties to gather medicinal

plants and other things that were used by my family," said Charles Kauluwehi Maxwell Sr., a Hawaiian cultural specialist. "At no time the ranch owners stopped us or other property owners because we passed through or gathered on their property. They understood that we had 'prior rights' to pass through or access their land," Kauluwehi said. Charles Kaneshiro of the First Hawai'i Title Corporation says that encumberances in an insurance policy protect the insurer from suits involving native Hawaiian rights. However, loan companies don't want to loan

are exceptions to the insurance. David Pietch, Jr., the executive vice president of Title Guaranty of Hawai'i, in his testimony supporting SB 8, referred to an Australian developer who was unable to get a loan or title insurance

native Hawaiian rights to the property. "The Kapili, Pele Defense Fund and PASH decisions, through their articulation of native Hawaiian rights created massive confusion and disruption in the Hawai'i real estate market," he said. "The major concerns with respect to native Hawaiian rights have been the potential unreasonable intrusion into private property rights and especially the inability to determine whether such rights exist with respect to a specific parcel of property." Another bill relating to native Hawaiian rights, House Bill 1920, requires that native Hawaiians request the courts, by submitting similar information as for SB 8, to attain access to land they wish to utilize. No permits are involved. The landowner ean contest native Hawaiians' requests and even work to modify the customary and traditional practices approved by the courts relating to their land. OHA Trustee Hannah Springer testified that "House Bill 1920 is a better written pieee but places, again like Senate Bill 8, the burden on practitioners unfairly." Springer added that in the House there was "a display of willingness to sit together and see what ean be worked out."

"The major problem with Senate Bill 8 is that they are overreacting to the Kohanaiki eleeision whieh reaffirms existing rights to practice." — Trustee-elect Hannah Springer