Ka Wai Ola - Office of Hawaiian Affairs, Volume 14, Number 12, 1 December 1997 — Page 17 Advertisements Column 1 [ADVERTISEMENT]

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by Alan Murakami Iitigation director, Native Hawaiian Legal Corporation ■m*

Over ihe past two-decades trenffindous dianges have swept througli the polilieal, social and legal environment in the arena known as Native Hawaiian rights. No longer are such rights dtsmissed rii>cai Nolongerarethosewhochoosetopursue traditional and customar)- practices considered weird. So what has happened between now and the not-too-distant past when only "alivists" such as the Protect Kalio'olawe 'Ohana, Pele Defense Fund and Hui Alaioa held notions that Native Hawaiians had sornethuig uniqne that deserved protection by fhe courts? When 1 started as attomey with the Native Hawaiian k-ga! Corporation in 1983. NHLC was in its fourth yearof existence as a pubiic interest law: finu. Before that, NHLC functioned as a largely volunteer effort, responding to cries for lielp from Native Hawaiian families and the budding Kalio'olawe movement. It wouki have heen difficuit.fof the pioneers wlin gave birth to NHLC to have a full appreciation of what tliey startai. Thev knew, however, that tliey were part of the emerging Hawaiian Cultural Renaissance. They heiped nurture growing support for self-deter-mination and redress from the state and federal govemments for losses from the 1893 overthrow. In the midst of this movement, NHLC found itself poised at the legal forefront of significant developments that woukl shape a body of law now known as Native Hawaiian rights. For exampie NHLC has repeatedly sought to enforce rights granted to nati\e tenantsbv King Kamehameha III some 150years ago. These rights allowed native tenanfs to access oeean and mountain areas for suhsistence, cultural and religious purposes. Furtliemiore, these rights are sti!l in existence today During the Mahele, all mafor grants made througli the Land Commission conditioned the.conveyingof titleto property with the ciause "subject to the riglifs of native tenanb " Henee, the abiiity to fisli at the sea or to co!!ect medicinai and ceremoniai plants irom the moiuitain was a critical eomponent for continuing to live under the nw private property system created hv the Maheie. In . . 1978, the |veople of this state reaffirmed a policy to pmtect tho.se : rights tr:ulitionally and customarily exercised for cultural, subsis lenee and reiigious puipos©. In 1995 the Kohan;iiki R\SH decision reaffinned those rights. NHLC took this basic pnneiple and has been incorporating it into a variety of cases litigated on behalf of the modern dav native tenants over tlie pasi 23 y«irs. Oiirciients are those seeking to exercise thcse rights long ago establishedbut, over the decades, repeat- . . edly ignored by private property owners. who elaim unfettered ' righfe to exclude and develop lands for their own :ends, • In the eaiiy 1980s. NHI£ repreiented conimunity members on the Wai anae Coast who were qiposal to the deyelopment of , West Beach, an areaof traditional fishing arid subsistence gath-

ering for those along the Waianae Coast. In arguing the case before the Land Use Commission, NHI£ asserted thai novel issues of traditional ffehing, access, and gathering rights based on historic ase of tlie property. No one had attempted that approach previously. Uitimately, the clients in that case elected to settle the dispute, requiring the tandowner to maintain a public access to the shoreline aud leading to the creation of die Waiana1 Coast Altemative Development Cotporalion, wiiieh is still operating to bring community-based eeonomie deveiopment to tlie Waianae Coasf • Similarly. in response to the adjacent dredging of the planned Barber's Point Deep Draft H;ubor, NHLC represented Eric Enos in an attempt to chaiienge the adequacy of the environmental impact statement. NHLC charged that EIS had omitted tlie eonsideration of adverse impacte of the propcsed dredging on coral reefe and limu grounds important to subsistence gatherers. • In a major challenge to the exchange of approximately 25,000 acres of forested ceded Iands at Wao Kele O Puna for lavacovered volcanic property owned by the Campbeii Estate, NH1.C argued for the cancellation of the exchange in federal and state courL In both actions, NHI£ argued for the preservation of gathering areas long relied upon by numerous Hawaiians in the Puna area for hunting. medicuial plants, and religious worship. The federal court dismissed the federal action, Ulaleo v. Patv. whieh had heeu brought to preserve tlie right of Hawaiian worship of Peie on sovereign immunit): and other grounds. But in state court, NH1£ representing, Pele Defease Fund was dile to get the Hawaii Supreme Court to enumerate exteasive doctrine on the lega 1 righfe of Hawaiians to continue traditional and cnstomary practices. Signifkantly, the court allowai for tlie possibility of castom to extend to those whose traditions inclucfed tlie crossing of ahupua'a boundaries to engage in customary gathering, hunting and worship. • In major actions before the Land Use Commission, NHLC over the years has paved ground in estahlishing tlie role of the eommission to coasider the cultural impacte of ife boundarv amaidment and other Iand use decisions. For example, in eonsidering the appiication of the Hawaiian Riviera Resort, the LUC attempted to grant approval to the multi-million dollar marina. hotei resort, condominium and golf course project without first determining wiiether the proposed maiina would adverseiy impact the fisheries upon whieh Hawaiian fishermen from Miloli'i have relied for centuries. In tiiat case, Miloli'i fishermen demoastrated how they continued a centuries-old method of catching opelu with Hawaiian iioop nete u,sed only in Miloli'i. Ratlier tlian make that determination before taking action, the LUC attempted to force the developer to make a showing of tlie extent of its project impacts on the fisheries after

granting the boundary amendment. On appeal, judge Shunichi Kimura reversed the dedsion, agreeing with NHLC that such action violated the LUC's duty to fiist consider the impacts on the Hawaiian fishemien of Miloli'i. • Ka'u residents successfully fought a major battle at Punalu'u to stop a resort and golf-course improvement project thāt threatened to impact historic sites, water quality and cultural practicesthatlongexistedinthearea. NHLC assisted those resi(fenLs in reversing the County Planning Commission refusal to grant the residents an op|»rtunity to be heard at a contested case hearing. In the existing legal system, NHLC has sought to protect wliat is truly unique about the Nalive Hawaium people, their culture and legacy. Business leaders who participated in the governor's Eeonomie Revitaiization Task Force recentlv acknowledged that these riglite wiil play an integral part in whether Hawai'is eeonomy ean improve. They are correct to give these riglits their due weight in tlie evolution of the state's eeonomie and politica! future. However, this acknowiedgment shou!d forewani ail Native Hawaii;in to be vigilant in presemng their hard won gains. Current mounting demands for polilieal and eeonomie "quick fixes" could quickly and easily erode or eliminate those righte. One need onlv iook at last year's iegislative debate to see how close iawmakers eame to diminishingor wipingout traditional gathering and access rights on tlie basis ol' landowner/developer concerns about tlie eeonomie effecte of the Kohanalki/PASH decLsion on their land holdings. The upcoming 1 998 Iegislatnre will be considering new proposals that have been recommended by a Task Force on that decision. All those interested in these attempte to replate traditionai and customary righte must carefully watch the 1998 Legis!ative session to assure that rights established by King Kamehameha and retained in our current constitution are preserved.

The Native Hawaiian Legal Corporation is lookingfor qualified individuals to apply for its community education worker position. NHLC wants to bear from people who are interested in working hand-in-hand with Hawaiian communities, organizations and 'ohana in leaming about legal issues andgovem-

ment decisions that affect their rights as Native Hawuiiam. NHLC's aim is to strengthen the advocacy ability of Native Hawaiiam and Hawaiian Communities. A law degree or training is not necessary. Please callNHLCat 521 -2302 for more information. I MIHM I I I I ! I ! I ! ! i 1 1 II 1 1 1 1 1 1 II ī'i II I i i I i III III III ll I i