Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 3, 1 March 1998 — RECOGNITION OF TRADITIONAL AND CUSTOMARY RIGHTS HAVE COME A LONG WAY BUT... [ARTICLE+ILLUSTRATION]

RECOGNITION OF TRADITIONAL AND CUSTOMARY RIGHTS HAVE COME A LONG WAY BUT...

by Alan Murakami litigation director, Native Hawaiian Legal Corporation

Ōver the past two . deqades, tfemendous changes lmve ' swe[)t toough the poliheal, sociaI and legal environment in the arena known as Native Hawaiian rights. No longer are such riglits dismissed as "radical". No longer are those who choose to pursue traditional and customary practices mnsidered weiri So whal has happened between now and the not-too-distant past when only "activists" such as the Protect Kaho'olawe 'Ohana, Pele Drfense Fund ;utd Hui Alaloa hekl notions that Native Hawaiians had somet!iing unique that deserved protection by ihe courts? Whai I start#.as an attomey witli the Native Hawaiian legal Coxporation in 1983, NHLC was in lts fourth year of existence as a puhlie interest, lawlimi. ; Before tbaLNHt£ fiiadtioited as a large- . Iy volunteer effort. responding to cries for heip from Native. HawaiKin f:iniilifs andt!iebudding haiio'olawe innwn-enl. It woidd have been difficult for the pioneers who gave birth to NHLC to have a full appreciation of wliat they startedL Tliey knew. however, that tliey were part of the emerging Hawaiian Cultural Renaissance. They helped nurture growing support for self-deter-minalion and iedress from the state and federal govemments for losses frotn tlie 1893 u\erthrow In the midst of this movement. . NHLC found itself poised at the legal forefront of significant de\elq>ments that woukl shape a body of law now known as Native Hawaiian riglits, For example NHLC has rqieatedly sought to enforce rights granted to native tenants by King Kamehameha III some 1 50 years ago. 11iese rights allowed native tenants to access oeean and mounlain areas tor subsistence, eukunil ;uid religious puq»ses. Furthemiore, tliese rights are ^ili in i-wenee !oday. . .. During the Mahele, all major grants made through the Land Commission conditioned the conveving of title to property with the clause "subject to the rights of native tenants." Henee, the ability - lo fish at the sea or fo coliect medicinal and ceremonial plants from tlte mountain was a critical componentfor continuing to live under the new private property. svstem creat«l by the Mahele. in 1978, the people of this state reafilrmed a policy to protect those rigffts tfaditionally and custoniarily exercised forcultural( subsistence and religious purposes. In 1995 the Kohanaiki P,ASH decision reaffirmed tliose rights. NHLC took this basic pnneiple and has been incorporating it into a variety of cases litigaled on behalf of the mottem day native tenants over thepast 23 years. 0ur clients are th«« seeking to exercise those rights long ago established Liut, over the decades, repeatediy ignored by private propertv owners, who elaim unfetteied rights to exclude ml develqi lands for their own ends. • !n die earlv 1980s, NHLC iepresented community memhers on the Waianae Coast who were opposed to tlie development of West Beach, an area of traditional fishing and subsistence gath-

ering for those along the Waianae CoasL In arguuig the case before the Land Use Commission, NHLC asserted tlien novei issues of traditional fishing, access, and gathering rights based on historic use of the propert\: No one had attempted tliat appnoaeh prevkwsly. Ultimately, the clients in that case elected to settle the dispute, nequiring the landowner lo mainlain a puhlie access to the shoreline aiul !eading to tlie enealion of the Waianae Coast .Altem;ihw Devclopment Corporation, whieh is still operating to bring communih-based eeonomie <tevelq>ment to the Waianae CoasL • Similariy, in response to tlie adjacent dredging of the planned Rarber's Point Deep Draft Haibor, NHLC represented Eric F,nos in an attempt to challenge tlie adequacy of the environmental impact statemenl NHLC charged that EIS had omitted the eonsideration of adverse impacts of the proposed dredging on coral reefs and limu grounds important to subsistence gatherers. • In a major challenge to the exchange of approximately 25,000 acres of forested ceded lands at Wao Kele 0 Puna for lava-cov-ered volcanic property owned by the Campbell Estate, NHLC aigued for tlie eaneellahon of the exchange in federal and state court. In both actions, NHLC argued for the preservation of gathering areas !ong relied upon by numerous Hawaiians in the Puna area for hunting, medicinal plants, and religious worship. The federal court dismissed the federal action, Olaleo v. Paty. whieh had heen brought to prcserve the riglit of Hawaiian worship of Pele on sovereign immunity and other grounds. But in state court, NH1,C representing, Pele Deiense Fund, was ahle to get the Hawaii Supreme Court to enumerate extensive doctrine on the legai rights of Hawaiians to eonhnue traditional and customary practices. Significantly, tlie court allowed for the possibility of custom to extend to those wliose traditions inciuded the 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 establishing tlie role of the eommission to consider the cultural impacts of its boundary amendment and other land use <tecisions. For example, in eonsidering the applieahon of tlie Hawaiian Riviera Resort, tlie LUC attempted to grant approval to the multi-million dollar manna, hotel resort, condominium and golf course project witliout first detemiining whether the proposed maiina would adversely impact the fislieries upon whieh Hawaiian fishemien from Miioli'i liave relied for centuries. In that case, Miloli'i fishermen demonstrated how they continued a centuries-old method of catching opeiu with Hawaiian hoqi nets used only in Miloli'i. Ratlier than make that determination before taking action, the LUC attenipted to force the deveIoper to make a showing of llie extentof itsproject impaets on tlie ftsheries after

granting the boundary amendment. On appeal, judge Shunichi Kimura reversed the derision, agreeing wiili NHLC that such action violatai the LUG's duty to fiist aiasider tlie impxts on the Hawaiian fishermen of Miloli'i. • Kau residaits successfully fought a major battle al Punalu'u to stop a resort and goff-course improvement project that thneatened to impael historic sites, water quality and cultural practices that long existed in the area. NHLC assisted those residents in rewrsing the County Planning Commission refusal to grant the nesidents an opportunity to be heard at a contested case heanng In the existing legal system, NHLC has sought to protect what is tmly unique about the Native Hawaiian people, their culture and legacy. Business leaciers who participated in the govemor's Eeonomie Revitalization Task Force recently acknowledged tliat tliese rights wili play an integral part in whether Hawai'i's eeonomy ean improve. Tliey are correct to give these rights their due weight in the evoiution of the state's eeonomie and poliheal future. However, this acknowledgment should forewarn al! Native Hawaiian to be vigilant in preserving their hand won gains. Cunent mounting demands for [»litical and eamomie "quick ftxes" could quickly and easily erode or eliminale those rights. One need only look at last yearts legislative dehate to see liow dose lawmakers eame to diminishing or wiping out traditional gathering and access rights on the basis of landowner/developer concerns about tlie eeonomie effects of the Kohanaiki/PASH decision on their Iand holdings. The upcoming 1998 Iegslature will be considering new pne posals that have been rea)mmendal by a Task Force on that decision. Ail those interested in these attempts to regulate tradition;il and customary rights must airefully watch the 1998 Legislative session to assure that rights established by King Kamehameha and retained in our current constitution are preserved

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