Not in my backyard PASH v. HPC: The clash between native Hawaiian gathering rights and western concepts of property in Hawaii.

• Author: Panarella, Samuel J.
• Position: Public Access Shoreline Hawaii, Hawai'i County Planning Commission

Western property law in Hawaii exists in an uneasy truce with the original native gathering practices that existed before the arrival of Europeans. The Author traces the development of Hawaiian law, from the early cases that severely restricted gathering rights to the more permissive results in PASH v. HPC. The Author argues that this trend is a positive one, but that it must take place within the dominant fee simple land tenure system now in place in Hawaii. I. INTRODUCTION

It is the first day of spring and you drive out to the little piece of land you recently purchased in the country for a picnic. When you get there you find a group of people with axes busily chopping down several of the trees that give the property its appeal. You rush over to confront these people and save your trees. After much blustering, you learn that the culprits are a family that live on the next plot over. The mother calmly informs you that they, and their ancestors before them, have been harvesting trees from this land for firewood for several hundred years. You scream nasty words like "trespass," "litigation," and "damages" at them until they finally leave your property. Watching them go, you shake your head and laugh ruefully at the nerve of some people. After all, it is your land and your trees. Who cares if they and their ancestors have been doing it for hundreds of years? You have the law on your side; this is your private property.

But what if you live in Hawaii? And what if the family is a family of native Hawaiians? Do the same rules of exclusivity apply in this situation? Should they? Over the last several years there has been a growing trend in Hawaii to offer legal protection to native Hawaiian gathering rights even where these rights are in direct conflict with the Western system of land tenure now in place in the state. The impetus for this legal movement was the passage by Hawaiian voters in November 1978 of article XII, section 7, an amendment to Hawaii's Constitution. The amendment provides that:

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.(1) Many see article XII, section 7 as an explicit guarantee of the continuance of a number of religious, cultural, and subsistence practices by native Hawaiians.(2) As such, this amendment has the potential to create considerable havoc in a state where there is already tension between native Hawaiians and the non-native population.(3) Among the traditional rights protected by article XII, section 7 are native Hawaiian gathering rights.(4) In the years since the passage of article XII, section 7 there have been several cases attempting to trace the exact shape of these gathering rights.(5)

The dilemma is obvious. As with so many other places around the world, Hawaii's native people and their culture have been profoundly changed by contact with Westerners. A familiar pattern developed on the Hawaiian Islands. An economically and militarily stronger Western society has dominated a native people and their culture to the point where many of the customary and traditional practices of that native culture have been, if not extinguished altogether, at least made subservient to the norms of the imposed culture. Such has been the case with the traditional Hawaiian system of land tenure. The Western system of private land ownership, with its ingrained notion of exclusivity, is at best an uncomfortable fit with the land tenure system practiced by native Hawaiians before contact with Westerners.(6) The traditional Hawaiian land tenure system did not place great importance on the tenets of privacy and exclusivity in land use.(7) It is therefore unsurprising that the imported Western legal system in place in Hawaii has been used to legitimize the imposed fee simple property system, often at the expense of traditional native practices, such as gathering, that were viewed as incompatible with the fee simple system.(8)

The Western system of land tenure has been dominant in Hawaii for the last one hundred years.(9) However, when the government of Hawaii converted its land tenure system to one modeled on the Western fee simple system, it did reserve certain traditional and customary rights for the native Hawaiian tenants of an ahupua'a.10) Section 7-1 of the Hawaii Revised Statutes expressly permits native tenants of an ahupua'a to retain gathering rights within the ahupua'a.(11) In addition, section 1-1 of the Hawaii Revised Statutes provides that native Hawaiians have the right to gather items that are not specifically included in section 7-1 where the gathering of these items can be demonstrated by a pattern of "Hawaiian usage."(12)

In practice, however, private property owners have often prevented native Hawaiians from exercising these traditional gathering rights.(13) Private property owners fear that allowing native Hawaiians to continue these traditional practices would create an intolerable invasion of their exclusive rights to use and occupy their land as fee simple land owners.(14) As a result, despite these express statutory protections, native Hawaiian gathering rights have traditionally taken a back seat to the concerns of the fee simple landowner in Hawaii.

In the 1960s, a grassroots movement directed at gaining judicial and legislative affirmation of native practices on the islands began to gain momentum. The passage of article XII, section 7, which guarantees native Hawaiians their traditional and customary rights for religious, cultural, and subsistence purposes, was the first major victory for the movement.(15) Along with sections 7-1 and 1-1, this amendment gave proponents of native Hawaiian gathering rights a powerful new tool in their struggle. The years since the passage of this amendment have seen the struggle move from the legislature to the courts. It is a struggle to reconcile gathering practices that, developed in Hawaii when the people of the islands practiced a subsistence economy(16) with the mercantile system that developed in the years following contact with Westerners.(17)

This Comment will analyze the contours of this struggle by providing a historical framework with which to view the issues, and by surveying several key cases where the Hawaii Supreme Court has attempted to strike a balance between traditional gathering rights of native Hawaiians, and the modern system of fee simple land ownership and Western property rights now in place on the islands. A line of cases beginning with Oni v. Meek(18) in 1858, and continuing to this day with the recently decided case of Public Access Shoreline Hawaii v. Hawai'i County Planning Commission(19) demonstrate the difficulty the court has faced in trying to strike a balance between these sometimes antagonistic systems. This Comment will demonstrate both the strengths and weaknesses of the present system of land tenure in Hawaii. Although this analysis will argue for the continued expansion of native Hawaiian gathering rights, it will do so in the firm belief that any such expansion will have to take place within, not outside of, the dominant fee simple land tenure system now in place in Hawaii.

Part II gives a brief historical sketch of the development and nature of native Hawaiian gathering practices. Part III outlines the process by which Westerners gradually took control of Hawaii's government as the traditional Hawaiian land tenure system was replaced by a fee simple system of land ownership that was outwardly hostile to many of its practices. Part IV analyzes, in chronological order, a series of cases wherein the Hawaii Supreme Court has struggled to balance the legally protected interests of native Hawaiians in exercising traditional gathering practices with the demands of the modern fee simple land tenure system in place in Hawaii for exclusivity. Part V concludes by proposing that this line of cases demonstrates a positive evolution away from an either/or view of land tenure possibilities in Hawaii and toward a system in which the traditional practice of gathering can be tailored in ways that will allow its exercise in a modern Hawaii that operates under a Western land tenure system.

2. The Traditional Hawaiian Gathering System

   Prior to contact with Westerners, the people of Hawaii had a highly developed culture and a stable land tenure system that supported an estimated 300,000 individuals.(20) Traditional Hawaiian culture was closely linked with the land on which the people lived.(21) The ahupua'a was the unit that was most closely related to the everyday life of the Hawaiian people.(22) An ahupua'a is an economically self-sufficient, pie-shaped unit of land with the nose of the pie starting in the mountain tops and spreading out along the shore.(23) The ahupua'a could be as large as 100,000 acres or as small as 100 acres.(24)

   Gathering activities were an important part of this land tenure system. Gathering provided the tenant with items for both religious and medicinal practices, and, most importantly, with an additional source of food in times of famine due to drought or other adverse climate conditions.(25) Gathering took place in the uplands as well as along the sea coast. Hunting feral pigs was considered gathering.(26) The result of this extensive system of gathering was that early Hawaiians gathered on a great deal more land than they actually cultivated.(27) As an early Western observer of the islands remarked: "Hawaiian life vibrated from uka, mountain, whence came wood, kapa, for clothing, olona, for fish line, ti-leaf for wrapping paper, ie for rattan lashing, wild birds for food, to the kai, sea, whence came ia, fish, and all connected therewith."(28)

   Early Hawaiian culture followed a fairly strict hierarchical...