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 (1979).  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.

  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.


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.

  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.


















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