TRADITIONAL AND CUSTOMARY RIGHTS

 

     Section 7.  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. [Add Const Con 1978 and election Nov 7, 1978]

 

Note

 

  A proposal of the 1978 Constitutional Convention adding a section 7 defining the terms "Hawaiian" and "native Hawaiian" was not validly ratified.  Kahalekai v. Doi, 60 H. 324, 590 P.2d 543.  In view of the holding, the revisor has deleted the section and renumbered section 8 as section 7 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

 

Cross References

 

  Miscellaneous rights of the people, see chapter 7.

 

Law Journals and Reviews

 

  Beach Access:  A Public Right?  23 HBJ 65.

  Native Hawaiian Cultural Practices Under Threat.  I HBJ No. 13, at pg. 1.

  Pele Defense Fund v. Paty:  Exacerbating the Inherent Conflict Between Hawaiian Native Tenant Access and Gathering Rights and Western Property Rights.  16 UH L. Rev. 207.

  Public Access Shoreline Hawaii v. Hawaii County Planning Commission:  The Affirmative Duty to Consider the Effect of Development on Native Hawaiian Gathering Rights.  16 UH L. Rev. 303.

  The Reassertion of Native Hawaiian Gathering Rights Within the Context of Hawai`i's Western System of Land Tenure.  17 UH L. Rev. 165.

  Private Hopes and Public Values in the "Reasonable Beneficial Use" of Hawai`i's Water:  Is Balance Possible?  18 UH L. Rev. 1.

  Cultures in Conflict in Hawai`i:  The Law and Politics of Native Hawaiian Water Rights.  18 UH L. Rev. 71.

  Customary Revolutions:  The Law of Custom and the Conflict of Traditions in Hawai`i.  20 UH L. Rev. 99.

  The Backlash Against PASH:  Legislative Attempts To Restrict Native Hawaiian Rights.  20 UH L. Rev. 321.

  Loko i`a:  A Legal Guide to the Restoration of Native Hawaiian Fishponds Within the Western Paradigm.  24 UH L. Rev. 657.

  Method is Irrelevant:  Allowing Native Hawaiian Traditional and Customary Subsistence Fishing to Thrive.  32 UH L. Rev. 203 (2009).

  Native Hawaiian Homestead Water Reservation Rights:  Providing Good Living Conditions for Native Hawaiian Homesteaders.  25 UH L. Rev. 85.

  Wiping Out the Ban on Surfboards at Point Panic.  27 UH L. Rev. 303.

  Biopiracy in Paradise?:  Fulfilling the Legal Duty to Regulate Bioprospecting in Hawai`i.  28 UH L. Rev. 387.

  The Patenting of Sacred Biological Resources, the Taro Patent Controversy in Hawai`i:  A Soft Law Proposal.  29 UH L. Rev. 581.

  Public Beach Access:  A Right for All?  Opening the Gate to Iroquois Point Beach.  30 UH L. Rev. 495.

  The "Hawaiianness" of Same-Sex Adoption.  30 UH L. Rev. 517.

  Propagating Cultural Kīpuka:  The Obstacles and Opportunities of Establishing a Community-Based Subsistence Fishing Area.  31 UH L. Rev. 193.

  Indigenous Ancestral Lands and Customary International Law.  32 UH L. Rev. 391 (2010).

  Ke Ala Pono--The Path of Justice:  The Moon Court's Native Hawaiian Rights Decisions.  33 UH L. Rev. 447 (2011).

  The Moon Court, Land Use, and Property:  A Survey of Hawai`i Case Law 1993-2010.  33 UH L. Rev. 635 (2011).

  Demolition of Native Rights and Self Determination:  Act 55's Devastating Impact through the Development of Hawaii's Public Lands.  35 UH L. Rev. 297 (2013).

  A New Narrative:  Native Hawaiian Law.  39 UH L. Rev. 233 (2016).

 

Case Notes

 

  Appellants' contention that native Hawaiian rights were exclusive and possessory was unsupported in the law.  76 F.3d 280.

  Plaintiff lacked standing to challenge this section, where plaintiff clearly had not suffered any "injury" as a result of the section.  188 F. Supp. 2d 1219.

  Native Hawaiian rights protected by section may extend beyond the ahupua`a in which a native Hawaiian resides where such rights have been customarily and traditionally exercised in this manner.  73 H. 578, 837 P.2d 1247.

  Descendants of native Hawaiians who inhabited islands prior to 1778 who assert valid customary and traditional Hawaiian rights under §1-1 entitled to protection regardless of their blood quantum.  79 H. 425, 903 P.2d 1246.

  Section requires county planning commission to "preserve and protect" reasonable exercise of customary or traditional native Hawaiian rights to the extent feasible when issuing special management area use permits.  79 H. 425, 903 P.2d 1246.

  While unreasonable or non-traditional uses of land by non-owner Hawaiians not permitted, western concept of exclusivity as owner's property right not universally applicable in Hawaii; State however retains ability to reconcile competing interests under this section.  79 H. 425, 903 P.2d 1246.

  If property is deemed "fully developed", i.e., lands zoned and used for residential purposes with existing dwellings, improvements, and infrastructure, it is always "inconsistent" to permit the practice of traditional and customary native Hawaiian rights on such property.  89 H. 177, 970 P.2d 485.

  It is the obligation of the person claiming the exercise of a native Hawaiian right to demonstrate that the right is constitutionally protected.  89 H. 177, 970 P.2d 485.

  To establish the existence of a traditional or customary native Hawaiian practice, there must be an adequate foundation in the record connecting the claimed right to a firmly rooted traditional or customary native Hawaiian practice.  89 H. 177, 970 P.2d 485.

  Where defendant failed to adduce sufficient evidence to support claim of the exercise of a constitutionally protected native Hawaiian right and knowingly entered landowner's property which was fenced in a manner to exclude others, trial court properly concluded that defendant was unlawfully on property in violation of §708-814(1).  89 H. 177, 970 P.2d 485.

  To fulfill its duty to preserve and protect customary and traditional native Hawaiian rights to the extent feasible, the land use commission, in its review of a petition for reclassification of district boundaries, must, at a minimum, make specific findings and conclusions as to the identity and scope of the valued resources, the extent those resources will be affected or impaired by the proposed action, and any feasible action the commission may take to reasonably protect such rights.  94 H. 31, 7 P.3d 1068.

  Where land use commission allowed petitioner to direct the manner in which customary and traditional native Hawaiian practices would be preserved and protected by the proposed development, prior to any specific findings and conclusions by the commission as to the effect of the proposed reclassification on such practices, the commission failed to satisfy its statutory and constitutional obligations; in delegating its duty to protect native Hawaiian rights, the commission delegated a non-delegable duty and thereby acted in excess of its authority.  94 H. 31, 7 P.3d 1068.

  Where land use commission failed to enter any definitive findings or conclusions as to the extent of the native Hawaiian practitioners' exercise of customary and traditional practices in the subject area nor made any specific findings or conclusions regarding the effects on or the impairment of any uses under this section, or the feasibility of the protection of those uses, the commission, as a matter of law, failed to satisfy its statutory and constitutional obligations.  94 H. 31, 7 P.3d 1068.

  Where commission on water resource management refused to permit cross examination of water use applicant's oceanography expert regarding the limu population along the shoreline, in effect precluding the commission from effectively balancing the applicant's proposed private commercial use of water against an enumerated public trust purpose, the commission failed adequately to discharge its public trust duty to protect native Hawaiians' traditional and customary gathering rights, as guaranteed by this section, the Hawaiian Homes Commission Act, §220, and §174C-101.  103 H. 401, 83 P.3d 664.

  Commission on water resource management's conclusion that "no evidence was presented" to suggest that the rights of native Hawaiians would be adversely affected by permit applicant's proposed use erroneously shifted the burden of proof to complainants; thus, commission failed to adhere to the proper burden of proof standard to maintain the protection of native Hawaiians' traditional and customary gathering rights in discharging its public trust obligations.  116 H. 481, 174 P.3d 320.

  Where plaintiff--as a member of the general public and a beneficiary of the public lands trust under this section--made allegations sufficient to show an injury in fact, even though legitimate §5(f) Admission Act uses might not necessarily benefit members of the general public, and because a multiplicity of suits could be avoided by allowing plaintiff to sue to enforce the State's compliance with the §5(f) trust provisions, plaintiff had standing to pursue the claims raised in the suit.  121 H. 324, 219 P.3d 1111 (2009).

  Where defendant, cited three times for residing in a closed area of a state park, asserted as a defense the legal privilege of native Hawaiians to engage in customary or traditional native Hawaiian practices under this section, and showed that: (1) defendant was native Hawaiian; (2) the claimed right was constitutionally protected as a customary or traditional native Hawaiian practice; and (3) the conduct occurred on undeveloped property, in applying the totality of circumstances test, the balancing of interests weighed in favor of permitting the State to regulate defendant's activities notwithstanding defendant's argument of privilege.  127 H. 206, 277 P.3d 300 (2012).

  Where the commission on water resource management's (CWRM) findings of fact/conclusions of law (FOF/COL), and decision and order (D&O) lacked findings or conclusions articulating the effect of the amended interim instream flow standards (IIFS) on the native Hawaiian practices of petitioners, did not explain the feasibility of protecting those practices, and did not provide any analysis of the decision's effect on gathering rights, the CWRM failed to discharge its duty with regard to the feasibility of protecting native Hawaiian rights; thus, the CWRM's FOF/COL and D&O vacated and remanded.  128 H. 228, 287 P.3d 129 (2012).

  Plaintiff's allegation that the county planning commission failed to consider traditional native Hawaiian rights was ripe for adjudication because the determination of the access point to the development had little, if any, bearing on any alleged traditional or cultural rights that may be practiced within the development, and on the adequacy of the county planning commission's consideration of those rights.  131 H. 123, 315 P.3d 749 (2013).

  Administrative rules pertaining to entrance into the Kaho‘olawe island reserve did not abridge defendants' constitutional right to engage in traditional and customary native Hawaiian practices, where the Kaho‘olawe island reserve commission did consider the effect of its actions on Hawaiian traditions and practices when it promulgated the rules.  Further, as to defendants' "privilege defense", the State's interest as balanced against the potential harm to defendants' ability to engage in native Hawaiian traditional and customary practices weighed in favor of the State.  132 H. 36, 319 P.3d 1044 (2014).

  This section does not create a separate, additional right to form an indigenous nation.  132 H. 36, 319 P.3d 1044 (2014).

  Where to be entitled to intervention, appellee organization was required to show that gathering of opae was customarily and traditionally practiced on the subject land and that some of organization's native Hawaiian members exercised those rights, the record contained sufficient evidence to establish those requisites; [individual] appellee did not show that appellee's interest was "personal", i.e., that it was clearly distinguishable from that of the general public, where appellee did not assert that appellee or other native Hawaiians had engaged in any activities that might be protected under this section.  79 H. 246 (App.), 900 P.2d 1313.

  This section and/or §1-1 do not authorize for native Hawaiian grandparents any more visitation rights than §571-46(7) and §571-46.3 authorize for all grandparents, native and non-native Hawaiian.  112 H. 113 (App.), 144 P.3d 561.

  As it is not per se unreasonable for the State to use a permitting system to regulate the use of sensitive natural and cultural resources, where there was no evidence that (1) defendant attempted but was unable to get a camping permit in order to conduct defendant's cultural and religious practices, and (2) limiting the number of visitors and length of stay in Kalalau Valley for health, safety and resource protection, and for the State to manage, supervise, and direct ancient Hawaiian site restoration programs was unreasonable, the district court properly denied defendant's claim of constitutional privilege.  124 H. 329 (App.), 243 P.3d 289 (2010).

  Where nothing in expert's testimony, defendant's evidence, or district court's findings of fact supported the conclusion that ancient Hawaiian usage included such an extensive right to take up residency in Kalalau Valley, without permission, clear the land, build a shelter, cultivate and plant crops, and modify for one's own use the land of others, even if that use involved otherwise recognized customary or traditional subsistence, religious or cultural practices, defendant failed to meet defendant's burden to demonstrate that defendant's conduct fell within the scope of constitutional protection.  124 H. 329 (App.), 243 P.3d 289 (2010).

 

 

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