RIGHTS OF NATURE IN HAWAI'I: PRESERVING THE RELATIONSHIP BETWEEN NATURAL RESOURCES AND CULTURAL SIGNIFICANCE.

• Author: Uwaine, Karli

1. INTRODUCTION 240 II. ENVIRONMENTAL (IN)JUSTICE TO KANAKA MAOLI COMMUNITIES 243 A. Why Hawai'i? 243 B. The Kingdom of Hawai'i-Land Tenure 246 III. ENVIRONMENTAL JUSTICE AS APPLIED TO KANAKA MAOLI COMMUNITIES 248 IV.CURRENT ENVIRONMENTAL STATUTORY STRUCTURE (FEDERAL) 250 A. The National Environmental Policy Act (NEPA) 250 B. Caselaw Highlighting Shortcomings Under NEPA 255 1. Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers 255 2. Navajo Nation v. U.S. Forest Service 259 V. AT THE STATE LEVEL 263 A. The Hawai 'i Environmental Policy Act (HEPA) 268 B. State Constitution-Right to a Healthy Environment 265 VI. THE RIGHTS OF NATURE LEGAL FRAMEWORK 268 VII. COCLUSION 270 I. INTRODUCTION

   Many Indigenous groups have deep cultural and spiritual connections to their traditionally inhabited lands, as well as the associated natural resources that have sustained their lives and those of their ancestors. Kanaka Maoli (2) are no different. As the beloved Haunani-Kay Trask explained, "[i]n Polynesian cultures, genealogy is paramount." (3) An individual's connection to their lands and to their families determines their identity. (4) According to their creation chant, Kumulipo, Native Hawaiians have lived in the Hawaiian Islands since the time Papa (earth mother) and Wakea (sky father) gave birth to the lands and taro (5) in the age following Po (darkness). (6) Additionally, Native Hawaiians believe that all living things have spirit and conciousness, just like them; (7)

   Since the land was an ancestor, no living thing could be foreign. The cosmos, like the natural world, was a universe of familial relations with human beings but one constituent link in the larger family. Nature was not objectified, but personified, resulting in an extraordinary respect (when compared to Western ideas of nature) for the life of the sea, the forest, and the earth. (8) For this reason, Indigenous peoples like Kanaka Maoli, have a great interest in the preservation and conservation of land and natural resources. Unfortunately, western-centric laws do not appropriately cater to their perspective of the natural world, leaving little protection of the land and natural resources that hold this unique cultural significance.

   Native Hawaiian interests in the preservation of land and natural resources go beyond physical and economic aspects of ownership and control. Rather, their desire for the respect of lands and natural resources originates with their spiritual beliefs regarding the sacredness of the natural world. Other indigenous groups around the world share similar cultural and spiritual connections to nature. For example, the Maori tribe (the Indigenous people of New Zealand) believes that Mount Taranaki and the Whanganui River are sacred. (9) Similarly, the Anishinaabe people of White Earth (the largest Ojibwe tribe in Minnesota) believe that a wild rice, referred to as Manoomin, is not only a vitally important crop but also a relative. (10) Due to the spiritual and cultural significance that these natural entities possess, New Zealand recognized the Whanganui River and Mount Taranaki as "legal persons" with accompanying rights and obligations, (11) and the "Rights of Manoomin" was recently passed and became part of tribal regulatory authority under their 1855 Treaty. (12)

   The concept of the rights of nature, which grants legal personhood rights to natural resources, has slowly gained traction around the world. (13) Although granting these rights involves complicated legal issues, legal recognition of natural resources presents a possible resolution to environmental conflicts in Hawai'i. Most importantly, the rights of nature framework could ease the ongoing struggle to preserve the special relationship between the cultural and spiritual significance of Hawai'i's natural resources. Granting natural entities such as taro, rivers, and Mauna Kea legal personhood rights in Hawai'i would protect and preserve not only the natural resources themselves, but also the cultural and spiritual significance attributed to these natural entities by native Hawaiian beliefs, traditions, and culture. With a rights of nature framework, the legal system in Hawai'i could support the unique perspective that Native Hawaiians have of the natural world, erasing the mismatch between intimate relationships to nature and the inadequate legal framework currently in existence.

   First, this Comment explains why Native Hawaiians present a unique case given their cultural ties with natural resources and the problems that they face due to their lack of status as a federally recognized tribe and their ancient land tenure system. Next, this Comment discusses why existing legal frameworks fail to adequately protect Native Hawaiian cultural and natural resources, and why this failure is an environmental justice issue despite not falling squarely within the ordinary definition of "environmental justice." The third section of this Comment focuses on the United States' federal law system, specifically the National Environmental Policy Act (NEPA) (14) and how it falls short of protecting natural resources, as well as the cultural and spiritual significance tied to these natural resources. This Comment then discusses Hawai'i's state laws. In particular this Comment discusses the Hawai'i's Environmental Policy Act (HEPA) (15) and how the development of this statute, in relation with Hawai'i's State Constitution, supports a future rights of nature legal framework. Finally, this Comment concludes with how the rights of nature legal framework could help mend the gaps and shortcomings of NEPA and HEPA in the context of Native Hawaiians' cultural and spiritual relationship with the environment.

2. ENVIRONMENTAL (IN)JUSTICE TO KANAKA MAOLI COMMUNITIES

   On the ancient burial ground of our ancestors, glass and steel shopping malls with layered parking lots stretch over what were once the most ingeniously irrigated taro lands, lands that fed millions of people over thousands of years. Large bays, delicately ringed long ago with well-stocked fishponds, are now heavily silted and cluttered with jet skis, windsurfers, and sailboards. Multistory hotels disgorge over six million tourists a year onto stunningly beautiful (and easily polluted) beaches, closing off access to locals. On the major islands of Hawai'i, Maui, O'ahu, and Kaua'i, meanwhile, military airfields, training camps, weapons storage facilities, and exclusive housing and beach areas remind the Native Hawaiians who owns Hawai'i: the foreign, colonizing country called the United States of America. (16)

   1. Why Hawai 'i?

      Recently, there has been numerous projects that have caused Kanaka Maolis to question the efficacy of Hawai'i's environmental review process, (17) especially projects that would have a drastic native effect on the protection of "Hawai'i's natural and cultural resources." (18) "It is this history of continued cultural harms, despite broad environmental protections, that explains why these projects continue to symbolize an 'injustice' to the Kanaka Maoli people, and to their cultural and natural resources." (19) Colonization and the degredation of natural resources are not problems unique to Native Hawaiians; they affect many Indigenous people around the world. While Kanaka Maoli continue to go through issues similar to other indigenous groups, Native Hawaiians present a unique case because of their land tenure system and the fact that they are not a federally recognized tribe by the United States, despite being an Indigenous people group.

      The U.S. government has crafted a political relationship with many Native American Tribes and Alaska Native peoples, making them "federally recognized Indian tribes" (federally recognized tribes). (20) Within the contiguous 48 states and Alaska, the government currently recognizes 574 Tribal entities eligible for funding and services from the Bureau of Indian Affairs (BIA) by virtue of their status as Indian Tribes. (21) Listed Tribes and communities "are recognized to have the immunities and privileges available to federally recognized Indian Tribes by virtue of their Government-to-Government relationship with the United States as well as the responsibilities, powers, limitations, and obligations of such Indian Tribes." (22) Native Hawaiians, however, are not on this list--even though they are recognized as Indigenous peoples by federal and state governments--making them ineligible for certain political and legal rights that are extended to federally recognized tribal rights. (23)

      Despite the clear difference between federally recognized tribes and nonfederal recognized tribes, many tend to assume that all Indigenous peoples hold the same political rights and recognitions, regardless of status. (24) This becomes particularly important in an era of environmental crises because only federally recognized tribes have jurisdiction to govern their lands and resources. (25)

      Non-recognized tribes and Native Hawaiians are indigenous peoples, but they do not have the ability to regulate their lands and resources as distinctive governments, nor do they have the ability to receive statutory delegations of federal authority, which would allow them to exercise meaningful control over air, water, or land resources. In that sense, members of these groups, [such as Native Hawaiians,] must rely upon their status as individual citizens of the United States in order to participate in the existing structures of governance. Because of these distinctions, federally recognized tribal governments are the only indigenous peoples within the United States who have the ability to generate environmental laws of their own choosing and apply them to their lands and resources. (26) This leaves Indigenous groups like Native Hawaiians in a unique and challenging situation.

   2. The Kingdom of Hawai'i--Land Tenure (21)

      Ancient Hawai'i's land tenure system was in harmony with the environment and the natural...