Constitution of Hawaii — Article 12

ARTICLE XII

 

HAWAIIAN AFFAIRS

 

Note

 

  This article was redesignated from "Article XI Hawaiian Home Lands" to "Article XII Hawaiian Affairs" by Const Con 1978 and election Nov 7, 1978.  The former Article XII now appears as Article XIII.

 

Law Journals and Reviews

 

  The Constitutionality of the Office of Hawaiian Affairs.  7 UH L. Rev. 63.

  The Office of Hawaiian Affairs and the Issue of Sovereign Immunity.  7 UH L. Rev. 95.

  The Lum Court and Native Hawaiian Rights.  14 UH L. Rev. 377.

  The Native Hawaiian Trusts Judicial Relief Act:  The First Step in an Attempt to Provide Relief.  14 UH L. Rev. 889.

  The Akaka Bill:  The Native Hawaiians' Race For Federal Recognition.  23 UH L. Rev. 857.

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

  Protecting Traditional and Customary Rights from Cruel and Unusual Punishment:  An Argument to Keep Incarcerated Kānaka Maoli Home.  45 UH L. Rev. 157 (2022).

  The Role of Human Rights in Advancing Justice for Native Hawaiians:  Infusing Indigenous Human Rights with Kanaka Maoli Values.  47 UH L. Rev. 77 (2024).

 

Case Notes

 

  Appellants who claimed that this article and the statutes implementing it violated the equal protection clause of the Fourteenth Amendment because it restricted benefits to only those classified as "native Hawaiians" or "Hawaiians", lacked standing.  342 F.3d 934.

  Plaintiff challenging constitutionality of this article insofar as it created Hawaiian homes commission and office of Hawaiian affairs and established native Hawaiian gathering rights, lacked standing, where, inter alia, as to OHA's programs, plaintiff had not suffered injury-in-fact.  188 F. Supp. 2d 1219.

  Where none of the six factors set forth in Trustees of the Office of Hawaiian Affairs v. Yamasaki were present in the case, the question of the legislature making sufficient funds available to the department of Hawaiian home lands was justiciable and therefore not a political question.  124 H. 437 (App.), 246 P.3d 369.

 

HAWAIIAN HOMES COMMISSION ACT

 

     Section 1.  Anything in this constitution to the contrary notwithstanding, the Hawaiian Homes Commission Act, 1920, enacted by the Congress, as the same has been or may be amended prior to the admission of the State, is hereby adopted as a law of the State, subject to amendment or repeal by the legislature; provided that if and to the extent that the United States shall so require, such law shall be subject to amendment or repeal only with the consent of the United States and in no other manner; provided further that if the United States shall have been provided or shall provide that particular provisions or types of provisions of such Act may be amended in the manner required for ordinary state legislation, such provisions or types of provisions may be so amended.  The proceeds and income from Hawaiian home lands shall be used only in accordance with the terms and spirit of such Act.  The legislature shall make sufficient sums available for the following purposes:  (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law.

     Thirty percent of the state receipts derived from the leasing of cultivated sugarcane lands under any provision of law or from water licenses shall be transferred to the native Hawaiian rehabilitation fund, section 213 of the Hawaiian Homes Commission Act, 1920, for the purposes enumerated in that section.  Thirty percent of the state receipts derived from the leasing of lands cultivated as sugarcane lands on the effective date of this section shall continue to be so transferred to the native Hawaiian rehabilitation fund whenever such lands are sold, developed, leased, utilized, transferred, set aside or otherwise disposed of for purposes other than the cultivation of sugarcane.  There shall be no ceiling established for the aggregate amount transferred into the native Hawaiian rehabilitation fund. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Note

 

  Reference to "effective date of this section" in last paragraph of section probably refers to effective date of section as amended November 7, 1978.

 

Attorney General Opinions

 

  This and next section may be deleted without consent of Congress.  Att. Gen. Op. 68-18.

  Allocating royalties from geothermal developments on department of Hawaiian home lands (DHHL) lands to the board of land and natural resources or the counties violated §4 of the Admission Act and article XII, §3 and this section of the Hawaii constitution.  It is clear from the Admission Act and the Hawaii constitution that the State has an obligation to manage such resources on Hawaiian home lands for the benefit of native Hawaiians pursuant to the Hawaiian Homes Commission Act (HHCA).  Allocation of royalties from geothermal developments on DHHL lands to entities other than DHHL would be violations of both the Admission Act and the Hawaii constitution because those proceeds would not be available to DHHL to carry out the terms and conditions of the HHCA.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

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

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

 

Case Notes

 

  Plaintiff challenging article XII insofar as it implemented Hawaiian Homes Commission Act lacked standing, where court was unable to redress plaintiff's injury as alleged in any meaningful way, in the absence of the United States as a party to the action.  188 F. Supp. 2d 1219.

  Hawaiian Homes Commission Act is part of Hawai'i constitution and does not constitute federal law; thus, federal preemption principles did not apply to case where there was no relevant federal law at issue and conflict between Act and state statute was matter of state constitutional law.  87 H. 91, 952 P.2d 379.

  The 1978 constitutional convention history provided judicially discoverable and manageable standards, as well as initial policy determinations, as to what would constitute "sufficient sums" for department of Hawaiian home lands' administrative and operating expenses only; therefore, judicial determination of "sufficient sums" as to that purpose under this section was not barred as a nonjusticiable political question.  127 H. 185, 277 P.3d 279 (2012).

  This section and the 1978 constitutional convention history do not shed light on what would constitute "sufficient sums" for (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; and (3) rehabilitation projects; therefore, the political question doctrine barred judicial determination of what would constitute "sufficient sums" for those purposes under this section.  127 H. 185, 277 P.3d 279 (2012).

  There was no clear waiver of sovereign immunity based on plaintiffs' claims regarding defendant State and state officials' violation of plaintiffs' constitutional duties under this section; there exists no authority entitling a prevailing party to attorneys' fees under the private attorney general doctrine where sovereign immunity did not preclude an underlying declaratory and/or injunctive relief claim that the State violated the Hawaii constitution.  130 H. 162, 307 P.3d 142 (2013).

  Where none of the six factors set forth in Trustees of the Office of Hawaiian Affairs v. Yamasaki were present in the case, the question of the legislature making sufficient funds available to the department of Hawaiian home lands was justiciable and therefore not a political question.  124 H. 437 (App.), 246 P.3d 369 (2011).

 

 

ACCEPTANCE OF COMPACT

 

     Section 2.  The State and its people do hereby accept, as a compact with the United States, or as conditions or trust provisions imposed by the United States, relating to the management and disposition of the Hawaiian home lands, the requirement that section 1 hereof be included in this constitution, in whole or in part, it being intended that the Act or acts of the Congress pertaining thereto shall be definitive of the extent and nature of such compact, conditions or trust provisions, as the case may be.  The State and its people do further agree and declare that the spirit of the Hawaiian Homes Commission Act looking to the continuance of the Hawaiian homes projects for the further rehabilitation of the Hawaiian race shall be faithfully carried out. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  This and preceding section may be deleted without consent of Congress.  Att. Gen. Op. 68-18.

  Prevents transfer to counties of title to highways on Hawaiian home lands.  Att. Gen. Op. 86-15.

 

Law Journals and Reviews

 

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

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

 

Case Notes

 

  In setting aside Hawaiian home lands, federal government undertook trust obligation benefitting aboriginal people.  State assumed fiduciary obligation upon being admitted as a state.  Commission's considerations gave undue weight to interests of State, county, and citizens or taxpayers generally, thus breaching fiduciary duty.  64 H. 327, 640 P.2d 1161.

 

 

COMPACT ADOPTION; PROCEDURES AFTER ADOPTION

 

     Section 3.  As a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the constitution of this State, as provided in section 7, subsection (b), of the Admission Act, subject to amendment or repeal only with the consent of the United States, and in no other manner; provided that (1) sections 202, 213, 219, 220, 222, 224 and 225 and other provisions relating to administration, and paragraph (2) of section 204, sections 206 and 2l2 and other provisions relating to the powers and duties of officers other than those charged with the administration of such Act, may be amended in the constitution, or in the manner required for state legislation, but the Hawaiian home-loan fund, the Hawaiian home-operating fund and the Hawaiian home-development fund shall not be reduced or impaired by any such amendment, whether made in the constitution or in the manner required for state legislation, and the encumbrances authorized to be placed on Hawaiian home lands by officers other than those charged with the administration of such Act, shall not be increased, except with the consent of the United States; (2) that any amendment to increase the benefits to lessees of Hawaiian home lands may be made in the constitution, or in the manner required for state legislation, but the qualifications of lessees shall not be changed except with the consent of the United States; and (3) that all proceeds and income from the "available lands," as defined by such Act, shall be used only in carrying out the provisions of such Act. [Add 73 Stat 4 and election June 27, 1959; ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Allocating royalties from geothermal developments on department of Hawaiian home lands (DHHL) lands to the board of land and natural resources or the counties violated §4 of the Admission Act and article XII, §1 and this section of the Hawaii constitution.  It is clear from the Admission Act and the Hawaii constitution that the State has an obligation to manage such resources on Hawaiian home lands for the benefit of native Hawaiians pursuant to the Hawaiian Homes Commission Act (HHCA).  Allocation of royalties from geothermal developments on DHHL lands to entities other than DHHL would be violations of both the Admission Act and the Hawaii constitution because those proceeds would not be available to DHHL to carry out the terms and conditions of the HHCA.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

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

 

PUBLIC TRUST

 

     Section 4.  The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as "available lands" by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public. [Add Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Power and authority to generate proceeds from, or power to alienate, lands held in public trust, exist under this section; history of this section indicates that section was intended to reiterate the trust contained in Admission Act.  Att. Gen. Op. 95-3.

 

Law Journals and Reviews

 

  Courts and the Cultural Performance:  Native Hawaiians' Uncertain Federal and State Law Rights to Sue.  16 UH L. Rev. 1.

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

  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).

  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 Collective Memory of Injustice:  Reclaiming Hawai`i's Crown Lands Trust in Response to Judge James S. Burns.  39 UH L. Rev. 481 (2017).

  PASH and the Evolution of Native Hawaiian Rights Protection.  43 UH L. Rev. 550 (2021).

  A Litigator's Approach to Issues Concerning Exercise and Protection of Native Hawaiian Traditional and Customary Rights.  43 UH L. Rev. 592 (2021).

  Intervening in the Public's Interest Before the Maui County Planning Commission, Hawai`i.  44 UH L. Rev. 1 (2022).

  The Role of Human Rights in Advancing Justice for Native Hawaiians:  Infusing Indigenous Human Rights with Kanaka Maoli Values.  47 UH L. Rev. 77 (2024).

 

Case Notes

 

  Does not violate §5 of the Admission Act.  921 F.2d 950.

  Where plaintiffs challenged the public lands trust administered by the department of Hawaiian home lands/Hawaiian homes commission because it preferred native Hawaiians in lease eligibility criteria, district court properly dismissed plaintiffs' trust beneficiary claims against the state defendants.  477 F.3d 1048.

  Section imposes fiduciary duty on Hawaii's officials to hold ceded lands in accordance with trust provisions of §5(f) of Admission Act; citizens of State must have means to mandate compliance.  73 H. 578, 837 P.2d 1247.

 

 

OFFICE OF HAWAIIAN AFFAIRS; ESTABLISHMENT OF

BOARD OF TRUSTEES

 

     Section 5.  There is hereby established an Office of Hawaiian Affairs.  The Office of Hawaiian Affairs shall hold title to all the real and personal property now or hereafter set aside or conveyed to it which shall be held in trust for native Hawaiians and Hawaiians.  There shall be a board of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians, as provided by law.  The board members shall be Hawaiians.  There shall be not less than nine members of the board of trustees; provided that each of the following Islands have one representative:  Oahu, Kauai, Maui, Molokai and Hawaii.  The board shall select a chairperson from its members. [Add Const Con 1978 and election Nov 7, 1978]

 

Cross References

 

  Statutory provisions, see chapters 10 and 13D.

 

Attorney General Opinions

 

  A voter must qualify as a Hawaiian in his or her own right, not on the basis of the racial descent of the adoptive parents.  Att. Gen. Op. 80-6.

  The requirement that trustees be Hawaiians is not violative of the equal protection clauses; also the restriction to Hawaiians of the right to vote for trustees is not impermissible.  Att. Gen. Op. 80-8.

 

Law Journals and Reviews

 

  To Dwell on the Earth in Unity:  Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawai`i.  V HBJ No. 13, at pg. 15.

  Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts.  14 UH L. Rev. 519.

  Native Hawaiian Entitlement to Sovereignty:  An Overview.  17 UH L. Rev. 427.

  The California Civil Rights Initiative:  Why It's Here, Its Far Reaching Effects, and the Unique Situation in Hawai`i.  22 UH L. Rev. 279.

  Matters of Trust:  Unanswered Questions After Rice v. Cayetano.  23 UH L. Rev. 363.

  The Akaka Bill:  The Native Hawaiians' Race For Federal Recognition.  23 UH L. Rev. 857.

  Akaka Bill:  Native Hawaiians, Legal Realities, and Politics as Usual.  24 UH L. Rev. 693.

  Doe v. Kamehameha Schools:  A "Discrete and Insular Minority" in Hawai`i Seventy Years After Carolene Products?  30 UH L. Rev. 295.

  Ensuring Our Future by Protecting Our Past:  An Indigenous Reconciliation Approach to Improving Native Hawaiian Burial Protection.  33 UH L. Rev. 321 (2010).

  The Moon Court's Environmental Review Jurisprudence:  Throwing Open the Courthouse Doors to Beneficial Public Participation.  33 UH L. Rev. 581 (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).

  The Crown Lands Trust:  Who Were, Who Are, the Beneficiaries?  38 UH L. Rev. 213 (2016).

  A Collective Memory of Injustice:  Reclaiming Hawai`i's Crown Lands Trust in Response to Judge James S. Burns.  39 UH L. Rev. 481 (2017).

  (Re)Righting History:  Deconstructing the Court's Narrative of Hawai`i's Past.  39 UH L. Rev. 631 (2017).

  Reconciling Maoli Interests in a Haole Forum:  Limitations to the U.S. Department of the Interior's Consultation Policy That Undermine Native Hawaiian Self-Determination.  46 UH L. Rev. 93 (2023).

 

Case Notes

 

  State's electoral restriction enacted a race-based voting qualification; Hawaii's denial of petitioner's right to vote, where petitioner was not a "Hawaiian", was a clear violation of the Fifteenth Amendment to the U.S. Constitution.  528 U.S. 495.

  Does not violate §5 of the Admission Act.  921 F.2d 950.

  Limitation of eligibility to be a candidate for office of Hawaiian affairs trustee to Hawaiians invalid under the Fifteenth Amendment and §2 of the Voting Rights Act; plaintiffs lacked standing to challenge the restriction that appointed trustees be Hawaiian.  314 F.3d 1091.

  Plaintiff challenging constitutionality of article XII, §§5 and 6 of state constitution and chapter 10, lacked standing, where plaintiff had not suffered any injury-in-fact.  188 F. Supp. 2d 1233.

 

 

POWERS OF BOARD OF TRUSTEES

 

     Section 6.  The board of trustees of the Office of Hawaiian Affairs shall exercise power as provided by law:  to manage and administer the proceeds from the sale or other disposition of the lands, natural resources, minerals and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians; to formulate policy relating to affairs of native Hawaiians and Hawaiians; and to exercise control over real and personal property set aside by state, federal or private sources and transferred to the board for native Hawaiians and Hawaiians.  The board shall have the power to exercise control over the Office of Hawaiian Affairs through its executive officer, the administrator of the Office of Hawaiian Affairs, who shall be appointed by the board. [Add Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  Language expressly acknowledges the continued viability of the power to alienate ceded lands, first conferred upon State by §5(f) of Admission Act.  Att. Gen. Op. 95-3.

  Receipts derived from ceded lands apportioned for native Hawaiians pursuant to this section and §10-13.5 may be transmitted directly to office of Hawaiian affairs by agencies that collect them, without legislative appropriation.  Att. Gen. Op. 03-4.

 

Law Journals and Reviews

 

  Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts.  14 UH L. Rev. 519.

  Native Hawaiian Entitlement to Sovereignty:  An Overview.  17 UH L. Rev. 427.

  Ensuring Our Future by Protecting Our Past:  An Indigenous Reconciliation Approach to Improving Native Hawaiian Burial Protection.  33 UH L. Rev. 321 (2010).

  The Crown Lands Trust:  Who Were, Who Are, the Beneficiaries?  38 UH L. Rev. 213 (2016).

  A Collective Memory of Injustice:  Reclaiming Hawai`i's Crown Lands Trust in Response to Judge James S. Burns.  39 UH L. Rev. 481 (2017).

  (Re)Righting History:  Deconstructing the Court's Narrative of Hawai`i's Past.  39 UH L. Rev. 631 (2017).

  The Role of Human Rights in Advancing Justice for Native Hawaiians:  Infusing Indigenous Human Rights with Kanaka Maoli Values.  47 UH L. Rev. 77 (2024).

 

Case Notes

 

  Plaintiff challenging constitutionality of article XII, §§5 and 6 of state constitution and chapter 10, lacked standing, where plaintiff had not suffered any injury-in-fact.  188 F. Supp. 2d 1233.

 

 

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).

  Nā Mo`o o Ko`olau:  The Water Guardians of Ko`olau Weaving and Wielding Collective Memory in the War for East Maui Water.  41 UH L. Rev. 189 (2018).

  Applying Indigenous Ecological Knowledge for the Protection of Environmental Commons:  Case Studies from Hawai`i for the Benefit of "Island Earth".  41 UH L. Rev. 300 (2019).

  Reoccurring Cultural Insensitivity:  Confronting the Abdication of Core Judicial Functions.  43 UH L. Rev. 341 (2021).

  Implementing PASH and Its Progeny Within DLNR.  43 UH L. Rev. 420 (2021).

  PASH:  No One Legacy.  43 UH L. Rev. 452 (2021).

  Takings, PASH, and the Changing Coastal Environment.  43 UH L. Rev. 525 (2021).

  PASH and the Evolution of Native Hawaiian Rights Protection.  43 UH L. Rev. 550 (2021).

  A Litigator's Approach to Issues Concerning Exercise and Protection of Native Hawaiian Traditional and Customary Rights.  43 UH L. Rev. 592 (2021).

  Finding a New Path:  A Practical Look at PASH, the Public Trust, and Western Property Law.  43 UH L. Rev. 613 (2021).

  Intervening in the Public's Interest Before the Maui County Planning Commission, Hawai`i.  44 UH L. Rev. 1 (2022).

  Ho`okahe Wai: An Analysis of a Proposed Exemption from Hawai`i's Water Leasing Process for Kalo Farming and Consistency with Hawai`i's Public Trust Doctrine.  44 UH L. Rev. 145 (2022).

  Protecting Traditional and Customary Rights from Cruel and Unusual Punishment:  An Argument to Keep Incarcerated Kānaka Maoli Home.  45 UH L. Rev. 157 (2022).

  Mai Kēia Manawa ā Mau Loa Aku:  Kānaka Maoli Governance Through Nearshore Fisheries Management in Mo`omomi.  45 UH L. Rev. 185 (2022).

  Mutual Aid and Maunakea:  Policing Protests Post-Flores.  45 UH L. Rev. 233 (2022).

  Kala:  Disentangling Kamehameha Schools From the 2022 Federal Indian Boarding School Initiative Investigative Report While Actualizing Social Healing Through Justice For its Kanaka Maoli Students.  46 UH L. Rev. 2 (2023).

  Ola i ka Malu `Ulu o Lele:  An Emerging Collective Memory of Injustice in Maui Komohana as a Foundation for Recovery from Lahaina's Wildfires and Restorative Justice for Hawai`i.  47 UH L. Rev. 2 (2024).

  The Role of Human Rights in Advancing Justice for Native Hawaiians:  Infusing Indigenous Human Rights with Kanaka Maoli Values.  47 UH L. Rev. 77 (2024).

  A Right to Living Culture:  Articulating Issues and Opportunities for Protecting Contemporary and Emerging Native Hawaiian Rights, Practices, and Resources.  47 UH L. Rev. 180 (2024).

 

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).

  Opponents of university's application for conservation district use permit to construct telescope observatory on mountain summit were entitled to contested case hearing before board of land and natural resources as a matter of constitutional due process, given that:  (1) the right to exercise Native Hawaiian customs and traditions was explicitly protected by the state constitution; (2) opponents argued that the project would have significant negative effects on their Native Hawaiian cultural practices on the mountain; (3) there was a risk of erroneous deprivation absent the protections provided by a contested case hearing; and (4) there was a lack of undue burden on the government in affording opponents a contested case hearing.  136 H. 376, 363 P.3d 224 (2015).

  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).