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RACIAL CLASSIFICATION OR CULTURAL IDENTIFICATION?: THE GATHERING RIGHTS

JURISPRUDENCE OF TWO TWENTIETH CENTURY HAWAIIAN SUPREME COURT JUSTICES

I. INTRODUCTION II. FOUNDATIONS OF HAWAIIAN GATHERING A. Hawaiian Prehistory B. Post Contact Changes in Land Tenure III. THE KULEANA ACT AND ONI A. Implementation of the Kuleana Act Through Oni B. The Effects of Oni

C. John Papa Ii and the Shift in Hawaii’s Power Structure

IV. THE RICHARDSON YEARS A. William Shaw Richardson

B. Palama: Setting the Stage for a Reexamination of Hawaiian Rights

C. Revisiting Traditional Gathering Rights in Kalipi D. Kalipi’s Significance to Richardson V. KLEIN AND BEYOND A. The Lum Era B. Klein’s Background and Appointment C. Waokele O Puna Revisited Through Pele D. PASH E. Reflections on Klein’s Gathering Rights Opinions F. Gathering Rights Decisions After Klein VI. CONCLUSION

I. INTRODUCTION

There is an age-old Hawaiian proverb that compares the land to a chief who holds dominion over his liege. Yet unlike a chief, the land has no need for vassals, for land in its unaltered state is self-sustaining.1 This proverb bares particular pertinence to pre- and early

1 MARY KAWENA PUKUI, OLELO NOEAU, HAWAIIAN PROVERBS AND POETICAL SAYINGS 62 (1983). He alii ka aina; he kauwa ke kanaka (The land is a chief; man is its servant).

Racial Classification or Cultural Identification? 175

post-contact Hawaii,2 where the indigenous population gleaned the natural resources of the land and harnessed nature for societal development. Even in modern times, many Hawaiians3 still draw supplementary sustenance from the land, be it for subsistence purposes, or to carry out the celebrated cultural patrimony of their ancestors. For example, on many rocky shorelines in Hawaii, one can often witness individuals gathering opihi,4 commonly considered a traditional Hawaiian delicacy.5 Likewise, Hawaiian artisans still travel

2 Because many of the Hawaiian terms in this work reference Kingdom law, Hawaiian terms used by the author appear in plain text and without diacritical markings. The author also feels that use of one diacritical mark (e.g., the okina (‘) and the exclusion of the other (e.g., the kahako (-)) creates inconsistency and confusion. Hawaiian terms used in quotations or case names appear as they do in the original source. In accordance with Hawaii Supreme Court policy, citations from Hawaii state courts appearing in or after volume 72 of the Hawaii Reporter Series include the okina in the word “Hawai’i” (e.g., “72 Hawai’i --”). Citations from Hawaii State courts before volume 72 appear as “Haw.” (e.g., “71 Haw. --”). 3 HAW. REV. STAT. § 10-2 (2004) provides in pertinent part:

§ 10-2 Definitions. ‘Hawaiian’ means any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii. ‘Native Hawaiian’ means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii.

I will use the terms “Hawaiian” or “part Hawaiian” to refer to all individuals described under the two definitions provided in HAW. REV. STAT. § 10-2, regardless of blood quantum. Although this paper focuses on issues affecting Hawaiians as defined supra, the Hawaii Supreme Court has not ruled on whether the right to exercise traditional gathering rights should be limited strictly to Hawaiians. See Public Access Shoreline Hawaii v. Hawai’i County Planning Commission, 79 Hawai’i 425, 449 n41, 903 P.2d 1246, 1270 (1995) [hereinafter PASH]. Therefore, this paper prefers the term “traditional gathering rights” as opposed to “native Hawaiian traditional gathering rights.” 4 Lit., “Limpet.” MARY KAWENA PUKUI & SAMUEL ELBERT, HAWAIIAN DICTIONARY 292 (rev. ed. 1986).

176 ASIAN-PACIFIC LAW & POLICY JOURNAL; Vol. 6, Issue 1 (Winter 2005)

upland to gather the endemic timber needed to turn modern replications of the wooden calabashes used by their ancestors as food receptacles and storage of precious personal effects.6 Such activities are only feasible when permitted by the sovereign as a general right. Thus, the intimate connection held by Hawaiians to the fruits of the land has traditionally been one in which the sovereign exercised some degree of control. Although this regulation on gathering ostensibly continued in a relatively static form during pre-contact times,7 the right of Hawaiians to gather in a manner similar to that exercised by generations of their ancestors has been affected by the changes brought about after Western contact. For post-contact Hawaii, the primary arbiter of this change has been Hawaii’s judicial branch as represented by the Hawaii Supreme Court. From the landmark Oni v. Meek,8 to the court’s recent decision in In re Wai’ola O Moloka’i, Inc.,9 the court has sought to formulate a workable relationship between gathering rights and western concepts of land tenure. The common law principles established in Oni were based primarily on the Kuleana Act of 1850.10 Nearly untouched for more

5 See Ka Pa’akai o ka ‘Aina v. Land Use Comm’n, 94 Hawai’i 31, 43, 7 P.3d 1068, 1080 (2000) [hereinafter Ka Pa’akai]. 6 ALANI APIO, GIVING BACK, IN WAO AKUA, SACRED SOURCE OF LIFE 84, 83-87 (Frank Stewart ed., 2003). 7 See generally SAMUEL M. KAMAKAU, N� HANA A KA PO’E KAHIKO (Mary K. Pukui, trans., 1976). 8 Oni v. Meek, 2 Haw. 87, 87 (1858). 9 In re Wai’ola o Moloka’i, 103 Hawai’i 401, 83 P.3d 664 (2004) [hereinafter In re Wai’ola O Moloka’i]. 10 The Kuleana Act of 1850 [hereinafter Kuleana Act] is currently codified under HAW. REV. STAT. § 7-1 (2004), which provides in whole:

§7-1 Building materials, water, etc.; landlords’ titles subject to tenants’ use. Where the landlords have obtained, or may hereinafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way.


than a century, these principles set forth the basic gathering rights afforded by the sovereign to the native tenants, 11 or hoaaina,12 who dwelled upon parcels of land called kuleana,13 within a larger land division known as the ahupuaa.14 However, the roots for change came about in 1966, when William S. Richardson became the first part Hawaiian Chief Justice of the Hawaii Supreme Court.15 During Richardson’s time on the bench, the court examined its legal precedent in a new light.16 By the 1980s, through opinions such as Kalipi v. Hawaiian Trust Company, Ltd.,17 traditional rights exercised by Hawaiians became a point of unique concern for the court, and Richardson in particular. Later, after Richardson’s retirement, Justice

The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use.

11 SAMUEL M. KAMAKAU, RULING CHIEFS 198 (1972). At the time of the Mahele, Hawaiian society was divided into two basic classes: commoners and chiefs. 12 Lit., “Tenant, caretaker, as on a kuleana.” PUKUI & ELBERT, supra note 4, at 73. 13 Lit., “Small piece of property, as within an ahupuaa.” Id. at 179. 14 Lit., “Land division usually extending from uplands to the sea.” Id. at 9. 15 Carol S. Dodd, The Richardson Court: Ho’oponopono, 6 U. HAW. L. REV. 9, 11 (1984). Technically, King Kamehameha III was the first Hawaiian to fill a similar position. He promulgated the Constitution of 1840, which established the first Chief Judge of the Hawaii Supreme Court. However, for the purposes of this paper, Richardson is considered the first part Hawaiian Chief Justice of the Hawaii Supreme Court. 16 See id. at 9; see also Lori Tighe, Judge Helped Keep Hawaii for the People, HONOLULU STAR-BULLETIN (Oct. 25, 1999), available at http://www.starbulletin.com/1999/10/25/news/story5.html (last visited Apr. 16, 2004). As opposed to previous courts, the Richardson court was known for its judicial activism in support of public rights. Most of the justices during Richardson’s time were first or second generation descendants of immigrant laborers who came to Hawaii to work on the vast sugar plantations of the nineteenth and early twentieth centuries. These immigrant groups would later form what is popularly known in Hawaii as the “local” culture. 17 Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d 745 (1982). [hereinafter Kalipi].


Robert G. Klein,18 also of Hawaiian descent, became the second member of the Hawaii Supreme Court to revisit the traditional gathering rights issue.19 The authorship of these gathering rights cases by Hawaiian members of the court may suggest that race and culture, coupled with life experience, endowed these two jurists with a unique perspective on the matter. This also may suggest that fellow justices during Richardson and Klein’s time acknowledged and appreciated that unique perspective. In general, these conclusions demonstrate that the proper application of relevant law can be complemented by a unique and personal sensitivity to indigenous rights. This paper will explore the gathering rights jurisprudence of Richardson and Klein, and consider the degree to which their ethnicity enhanced their perspectives on the matter. Section II of this paper will address the foundations of Hawaiian gathering in a pre-Western contact context. This part will also touch briefly on the effects of the Mahele20 of 1848 (Mahele) and the Kuleana Act as related to gathering rights. Section III presents an analysis of Oni, including a discussion about Justice John Papa Ii, the second Hawaiian member of the Hawaii Supreme Court, and the factors that may have influenced the outcome of that case. Section IV presents the Richardson court and its general political philosophy. It also offers an introduction to the Richardson court’s stance on traditional Hawaiian customs as first presented in Palama v. Sheehan.21 Section IV goes on to provide an in-depth examination of Richardson’s Kalipi opinion and how that case’s holding both broadened and circumscribed gathering rights.

18 Debra Barayuga and Gregg K. Kakesako, Justice Klein Leaving Top Court, HONOLULU STAR-BULLETIN (Jan. 18, 2000), available at http://starbulletin.com/2000/01/18/news/story2.html (last visited Apr. 16, 2004). Formerly a State of Hawaii Circuit Court judge, Robert G. Klein was appointed to the Hawaii Supreme Court in 1992 and resigned in 2000. 19 See generally Pele Defense Fund v. Paty, 73 Hawai’i 578, 837 P.2d 1247 (1992) [hereinafter Pele]; PASH, 79 Hawai’i 425, 903 P.2d 1246. 20 Lit., “The land division of 1848, alternatively called the ‘Great Mahele.’” PUKUI & ELBERT, supra note 4, at 219. 21 Palama v. Sheehan, 50 Haw. 298, 440 P.2d 95 (1968), [hereinafter Palama].


Section V begins with an analysis of Chief Justice Herman Lum’s22 opinion in Dedman v. Board of Land and Natural Resources23 - the facts of which that eventually led to Pele. This section then reviews Pele and its impact on Kalipi. Next, Section V addresses PASH and the broad implications it had on gathering rights, as well as the popular reaction to those implications. Section V also discusses recent developments in gathering rights case law and how those developments reflect Richardson and Klein’s jurisprudence on the topic.

II. FOUNDATIONS OF HAWAIIAN GATHERING

A. Hawaiian Prehistory

Through carbon dating, archaeologists have posited that the first Polynesian voyagers arrived in Hawaii around A.D. 300.24 Although they brought with them several easily propagated food crops, the early Hawaiians also relied heavily on the endemic flora and fauna of the Hawaiian Islands.25 For these first settlers, food, shelter and clothing - the basic necessities of human life – consisted primarily of the fruits of the land. What the early Hawaiians could not farm, they gleaned from nature: timber for housing and fuel; stone for infrastructure; and grass and reeds for thatch. As time went on, a distinct Hawaiian society that was unique from the early generations of Polynesian immigrants evolved. Along with societal evolution came the development of a culture rich in the arts and humanities.26

22 Herman T. F. Lum succeeded Richardson as Chief Justice of the Hawaii Supreme Court in 1983 and left the court in 1993. See http://www.jhchawaii.org/chiefjustices (last visited Apr. 23, 2004). 23 Dedman v. Bd. of Land & Natural Res., 69 Haw. 255, 740 P.2d 28 (1987) [hereinafter Dedman]. 24 ISABELLA A. ABBOTT, L�’AU HAWAI’I, TRADITIONAL HAWAIIAN USES OF PLANTS 4 (1992). 25 Id. 26 See PATRICK V. KIRCH, FEATHERED GODS AND FISHHOOKS: AN INTRODUCTION TO HAWAIIAN ARCHAEOLOGY AND PREHISTORY 302 (1985). Through study of the earliest layers of excavated materials from initial settlement sites such as Bellows, Oahu and Puu Alii, Molokai, Kirch proposed a Hawaiian


Gathering was no longer limited to securing life’s essentials. Hawaiian cultural development saw the blossoming of innovative and unique art forms, carved, sculpted and woven from the land’s natural bounty.27 Even utilitarian items such as bark cloth garments were enhanced with vivid dyes drawn from berries and rhizomes.28 As with nearly every aspect of prehistoric Hawaiian life, gathering activities were controlled by a triangular social system connecting man, gods and nature.29 At the pinnacle of this triangle were the gods, who demanded supplication in return for benevolence. Below that stratus were the chiefs and the priests, who were seen as the earthly conduit to the gods. Land tenure in pre-contact Hawaii dictated the gathering activities of the Hawaiians. Inexorably enmeshed in the land tenure system of ancient Hawaii was the three-tiered societal caste structure,30 where the chiefs sat as liege lords, or konohiki,31 over the tenant commoners, or hoaaina, that occupied their lands.32 In this konohiki system, 33 each konohiki was granted dominion over an

societal and cultural evolution scheme whereby A.D. 600 though A.D. 1100 is viewed as the Developmental Period. 27 See generally PETER BUCK, THE ARTS AND CRAFTS OF HAWAII (1962). 28 ABBOT, supra note 24, at 86. 29 LILIKALA KAMEELEIHIWA, NATIVE LAND AND FOREIGN DESIRES 46 (1992). 30 Pre-Contact Hawaii’s social system is most readily likened to a caste system, but there were numerous variances in the Hawaiian model as opposed to the traditional notion of Hindu caste society. See WEBSTER’S COLLEGE DICTIONARY 207 (8th ed. 2001). 31 Lit., “Headman of an ahupua’a land division under the chief.” PUKUI & ELBERT, supra note 4, at 166. 32 See Gina M. Watumull, Pele Defense Fund v. Paty: Exacerbating the Inherent Conflict Between Hawaiian Native Tenant Access and Gathering Rights and Western Property Rights, 16 U. HAW. L. REV. 207, 213 (1994). Although the chiefs of an ahupuaa held sway over the people and natural resources that populated it, they did not own the land. It was apportioned to the chiefs by the alii nui in trust and could be revoked at any time. Furthermore, unlike European fiefs, Hawaiian commoners were not bound to their ahupuaa or the chief that presided over it. Instead, they were free to move to another ahupuaa if motivated to do so.


ahupuaa. The geographical purpose of the ahupuaa was described in In re Boundaries of Pulehunui34 as follows:

A principle very largely obtaining in these divisions of territory was that land should run from the sea to the mountains, thus affording to the chief and his people a fishery residence at the warm seaside, together with the products of the high lands, such as fuel, canoe timber, mountain birds, and the right of way to the same, and all varied products of the intermediate land as might be suitable to the soil and climate of the different altitudes from sea soil to mountainside or top.35

In theory, the geographical comprehensiveness of the ahupuaa made it possible for resident hoaaina to satisfy their gathering needs within their home boundaries. A tributary percentage of the items gathered, or some other product of hoaaina labor, was then paid to the konohiki of the ahupuaa as compensation.36 In return, the konohiki was expected to oversee the fair distribution of resources and provide for the security and welfare of his subjects.37 Indeed, the original form of the ahupuaa system persisted for nearly forty years after Captain James Cook’s arrival in 1778,38 and vestiges of it remain to this day.

B. Post Contact Changes in Land Tenure

The societal changes of the early nineteenth century had a drastic effect on land tenure, and subsequently, gathering rights. Many chiefs developed a taste for the influx of Western goods that 33 See KAMEELEIHIWA, supra note 29, at 204. The term “konohiki system” was coined by Kameeleihiwa in describing the basic premise of an ahupuaa as a land-based economic system that encouraged productivity and economic use of natural resources. 34 In re Boundaries of Pulehunui, 4 Haw. 239 (1879).

35 Id. at 241. 36 ROSS CORDY, EXALTED SITS THE CHIEF, THE ANCIENT HISTORY OF HAWAI’I ISLAND 31 (2000). 37 Id. 38 KAMAKAU, supra note 11, at 92.


were introduced to Hawaii following initial contact with the West.39 A market economy centered upon the cash value of bartered goods developed, conjoining many chiefs into a debtor-creditor relationship with Western merchants.40 Cash-poor, but land-rich, reliance upon the natural resources of the land grew paramount for chiefs who clamored for Western goods.41 Nonetheless, the finite resources of the land were soon depleted, leaving many chiefs debt ridden, with denuded land as their sole, but non-marketable asset. On this matter, however, the rule was clear: the ultimate disposition of the land rested with the sovereign.42 The mix of an ancient land tenure system, chiefly debt to Western merchants and the ever-increasing incursion of foreigners did not bode well for the stability of the Kingdom. The proposed cure to this quagmire came during the reign of Kamehameha III,43 and was called the Mahele of 1848. 44 In concept, the Mahele provided a simple solution: land tenure in Hawaii would shift from centralized control under the king to general fee ownership by those who were able to perfect their claim with the government, be they chief or commoner.45 In reality, however, the Mahele and the principles it

39 Id. at 193. 40 See id. 41 Id. at 251. 42 Id. at 410. 43 KAMEELEIHIWA, supra note 29, at 101. Kamehameha III was also known as Kauikeaouli. He was the son of Kamehameha I and Keopuolani. 44 Id. at 208. Kameeleihiwa notes two distinct phases of the Mahele, the first is what she describes as the alii nui Mahele in which the chiefly class (particularly the chiefly members of King Kamehameha III’s privy council) secured ownership to their land holdings as granted to them by the King. The second phase, in which the commoners were able to secure ownership of individual plots of land in fee began in August of 1850. 45 Id. at 212. At first, Kamehameha III’s concept of the Mahele was that the land should be divided into equal thirds: one portion to the government (the King); another to the chiefs; and the other to the commoners. However, by 1847, long-term resident aliens were allowed to petition the Land Commission with their claims.


represented drastically altered a relationship between man and nature that Hawaiians had practiced for centuries.46 By February of 1848, the claims process of the Mahele had concluded.47 Two years later, the last Hawaiian commoners were allowed to claim their land awards as allotted by the Land Commission.48 The bulk of lands went to the chiefs and the sovereign,49 with a little less than one percent of total acreage up for grabs going to commoners.50 With the implementation of fee ownership, land became a marketable commodity. Indebted chiefs were able to settle longstanding accounts or accrue more liquid capital by offering their Mahele lands for lease or sale. Consequently, non-Hawaiians were able to secure title to land without the risk of arbitrary alienation by the sovereign. Those Hawaiians that were not able to perfect their claims under the Mahele could resort to leasing or purchasing land just as the non-Hawaiians did.

III. THE KULEANA ACT AND ONI

A. Implementation of the Kuleana Act Through Oni

In August of 1850, perhaps in response to the right to exclude implications that went along with land privatization, Kamehameha III’s Privy Council took action to preserve some of the gathering rights ostensibly accorded to hoaaina under the konohiki system by passing the Kuleana Act. 51 Eight years later, the Kuleana Act became

46 Watumull, supra note 32, at 209. The most significant of these real property principles was the Western notion of privacy and the right to exclude. 47 KAMAKAU, supra note 11, at 410. 48 KAMEELEIHIWA, supra note 29, at 2. The Land Commission was a three-member board that was charged with overseeing the land conversion process of the Mahele. 49 Id. at 284. Gerrit P. Judd and John Hall, two non-Hawaiians in service to Kamehameha III, were granted small parcels of land at the time of the alii nui Mahele, but the amount was insignificant in contrast to the sovereign, alii nui, and commoner awards. 50 KAMEELEIHIWA, supra note 29, at 389. 51 Oni, 2 Haw. at 93.


the crux of a legal claim presented by a hoaaina named Oni52 against John Meek. Meek was an American ex-patriot and former trading ship captain who leased land neighboring Appellee Oni’s in the ahupuaa of Honouliuli.53 Appellee Oni brought a claim against Meek after two of his horses were seized while grazing on Meek’s land. Following Appellee Oni’s success in the action below, Meek sought review in the Hawaii Supreme Court.54 The gravemen of Appellee Oni’s contention on appeal was that he had “a right to pasture his animals on the kula land of that Ahupuaa, upon one or both of two grounds; first, by custom; or secondly, by statute law.”55 The court chose to pass on the first grounds of Appellee Oni’s custom claim, observing that the pasturage of horses in the ahupuaa of Honouliuli had only gone on since 1833. In doing so, the court cited the traditional common law view of custom, holding that Appellee Oni’s claim of pasturage, as custom, did not match judicial precedent.56 Appellee Oni was also unable to base his custom claim on the traditional relationship between hoaaina and konohiki. If Appellee Oni held his land by way of a Land Commission award, he was in no way bound to the konohiki in a reciprocal relationship as in pre-Mahele times.57 Any right that Appellee Oni might have had to pasture his horses on other lands belonging to Haalelea, the landlord of Honouliuli, was conferred through private contract, to which Meek (as a third party) must have been given specific notice.58 The same logic would apply if Appellee Oni held his land according to “ancient tenure,” for the Mahele system would have abrogated Appellee Oni’s

52 Hereinafter “Appellee Oni.” 53 Id. at 88. Meek’s landlord was Levi Haalelea. Haalelea, a nephew of the noted Hawaiian historian David Malo, was granted significant land holdings on Maui and Oahu in the Mahele. He died six years after Oni was decided, deeply in debt. All of his holdings were subsequently sold off at significantly below market price to pay off his creditors. KAMEELEIHIWA, supra note 29, at 307. 54 Id. at 87. 55 Id. at 89. 56 Id. at 90. 57 Id. 58 Id. at 90-91.


liege duties in favor of a contract ripened through consideration. Again, Meek, as a third party, would have been entitled to notice of such.59 Finally, the court addressed the issue of Appellee Oni’s statutory gathering rights under legislation passed in 1846, which provided:

[The hoaaina] may also pasture his horse and cow and other animals on the land, but not in such numbers as to prevent the konohiki from pasturing his. He cannot make agreement with others for the pasturage of their animals without the consent of his konohiki, and the Minister of the Interior.60

It was at this juncture that the court established a fundamental gathering rights policy that, until Kalipi, would govern the issue well into the next century. Taking into account the pre-Mahele date of the 1846 legislation and the sweeping land tenure changes that had occurred since then, the court held that in the face of more current laws enacted during and subsequent to the Mahele, the 1846 pasturage clauses had been rendered moot. Echoing the modernist sentiment of the times, the Kuleana Act had been affirmed, with the court following the reasoning of the Master of the Rolls in the case of The Dean of Ely v. Bliss, “‘If two inconsistent acts be passed at different times, the last is to be obeyed, and if obedience cannot be observed without derogating from the first, it is the first which must give way.’”61 Oni, then, stood for the premise that traditional gathering rights were to be tailored according to western property rights standards as manifested in statutory law. The changes brought about by the Mahele signaled a new era in which tradition, when in conflict with the codification of laws, necessarily yielded to progress. Parameters established by the Kuleana Act were decidedly in step with the wave of western notions concerning land tenure.

59 Id. at 91. 60 Id. at 91-92. 61 Id. at 94.


Despite Oni’s constriction of gathering rights, the court held to the text of the Kuleana Act, preserving enumerated gathering rights for hoaaina as set forth by the most contemporary gathering rights legislation. Nonetheless, in closing, the court was careful to establish that the Kuleana Act encompassed “all the specific rights of the hoaaina (except fishing rights)62 which should be held to prevail against the fee simple title of the konohiki.”63

B. The Effects of Oni

Oni appeared at a crucial point in post-contact Hawaiian history. The enactment of the Mahele and the passing of the last of Kamehameha’s ruling children64 seemed to symbolize Hawaii’s entrance into a new time, one in which the early eighteenth century Hawaiian prophet Keaulumoku predicted, “That which is up shall fall down, that which is down shall ascend; the islands shall consolidate, the walls shall be erected.”65 Yet, Hawaiians retained a large degree of power within their own kingdom. Kamehameha III remained a strong sovereign, the governorship of each of the islands was held by a Hawaiian chief, and John Papa Ii, a well respected member of the courts of Kamehameha I, II,66 III, and IV,67 sat as an Associate Justice on the Hawaii Supreme Court.68 Considering Oni’s holding, a crucial

62 Hoaaina gathering rights to fish and other sea life were established in Haalelea v. Montgomery, 2 Haw. 62 (1858), which was decided in the same year as Oni. 63 Oni, 2 Haw. at 95. 64 Kamehameha III was the last of Kamehameha’s children to sit on the throne. KAMEELEIHIWA, supra note 29, at 101. He died in 1855. KAMAKAU, supra note 11, at 437. 65 Id. at 350. The Hawaiian translation of Keaulumoku’s prophecy reads: “E iho ana o luna, e pii ana o lalo; e hui ana na moku, e ku ana ka paia.” It is part of a longer chant in honor of the chief Kaianakukue entitled “Hauikalani.” 66 Kamehameha II was also known as Liholiho. He was the first son of Kamehameha I by Keopuolani. KAMEELEIHIWA, supra note 29, at 101. 67 Kamehameha IV was also known as Alexander Liholiho. He was the grandson of Kamehameha I and Kaheiheimalie. Id.


question remains unanswered: Why was it that Ii, a noted Hawaiian scholar, did not press for greater cultural rights in Oni? There is no direct answer, but influential factors at the time and Ii’s role in Hawaiian history suggest a possible rationale.

C. John Papa Ii and the Shift in Hawaii’s Power Structure

Born to a chiefly family in 1800, Ii’s wisdom and influence, particularly in the court of Kamehameha III, garnered him great respect among both Hawaiians and foreigners of the time.69 Ii’s personal history was a reflection of the changing times in Hawaii. While an active member of the king’s court and well versed in the traditions of pre-contact Hawaii, Ii was also a student of the Calvinist Missionary Hiram Bingham.70 During Kamehameha II’s reign, Ii became a devout convert to Christianity, and served as a teacher at Bingham’s school.71 After Kamehameha III came to the throne, Ii occupied several important government positions, including general superintendent of Oahu schools, Treasury Board member, Land Commission Board member, member of the King’s Privy Council and the House of Nobles and various other boards and commissions.72 Despite his political power and influence, Ii lived in a time when Hawaii was in the grasp of drastic change. Arguably, religion was the instigator of this change. In less than fifty years, the kapu system73 of pre-contact Hawaii had been cast aside in favor of Christianity. Yet, the effects of this change of faith were far more than spiritual. Those who introduced the new belief system to Hawaii simultaneously introduced an entirely new lifestyle. Many Hawaiians, Ii included, attempted to reach a compromise between the morals, 68 Kenneth P. Emory, Preface to JOHN PAPA II, FRAGMENTS OF HAWAIIAN HISTORY, at ix (Mary K. Pukui, trans., 1959). Ii served two terms on the Hawaii Supreme Court, beginning with his appointment by Kamehameha III in 1846 and ending with his resignation in 1864. 69 Id. 70 Id. 71 KAMAKAU, supra note 11, at 248. 72 Emory, supra note 66, at ix. 73 KAMEELEIHIWA, supra note 29, at 33.


values and perspectives of Hawaiian and New England Calvinist culture.74 Nevertheless, there were fundamentally irreconcilable differences between the two, and where those differences arose; attempts to harmonize Hawaiian and western culture often bore dismal results for the former. A graphic example of this clash was the Mahele and the property rights regime change it represented.75 As an agent of this change, Ii must have been torn between the old ways he learned in his youth at the court of Kamehameha I, and the ways of the newcomers. Oni was a vivid symbol of this conflict. Although the holding in Oni was clear as to what hoaaina were allowed to gather, implementation and enforcement of these limitations was unfeasible at best. Even though the laws of Hawaii were in a state of constant evolution, modernization had very little impact on the kingdom as a whole. A decided majority of the Hawaiian population still lived in rural areas where, except for the impacts of Christianity, the Hawaiian subsistence lifestyle continued at much the same pace as it had prior to western contact. Essentially, hoaaina continued to live in the same manner as their ancestors had for generations, farming taro, fishing, and gathering the resources of the uninhabited lands to ensure their livelihood.76 Oni remained the standard for gathering rights, even as the Kingdom was replaced by a republic, then by a territory and finally statehood. The period covered by that case saw many changes in Hawaii. By 1858, Hawaiians had started to lose power and influence within their own homeland. And by the time of the overthrow in 1893, few politically powerful Hawaiians remained. They were replaced in large part by Caucasian men, many of whom had resided in Hawaii for less than a decade.77 Still, some Hawaiians, mostly those of aristocratic descent, occupied influential government positions. Therefore, the Hawaiian people in general gained solace in the notion that their race was still represented in their own

74 Id. at 135. 75 Id. 76 For a detailed description of the lifestyle of a rural Hawaiian in the nineteenth century, see generally MARY KAWENA PUKUI & E.S. CRAIGHILL HANDY, THE POLYENISIAN FAMILY SYSTEM IN KA’U, HAWAI’I 84 (1977). 77 LAWRENCE H. FUCHS, HAWAII PONO 31 (1961).


homeland.78 Although there had always been a disparity in the lifestyles of Hawaiian chiefs and commoners, all Hawaiians born and reared as such understood and were empathetic to the basic tenets of Hawaiian identity.79 Nevertheless, Oni evidenced the waning authority of Hawaiians within their own land at a time when reverence for the traditions of ancient Hawaii gave way to the realities of western ideals.

IV. THE RICHARDSON YEARS

A. William Shaw Richardson

In 1962, John A Burns became the first Democrat to be elected governor of the State of Hawaii.80 Burns ran on a platform that emphasized the rights of Hawaii’s traditionally underrepresented

78 KAMEELEIHIWA, supra note 29, at 338. This conclusion is evidenced by petitions such as the following that were prepared by Hawaiians in opposition to the changes in government and society brought about by the Mahele:

To the King and our Lord, the Premier, under you. Have pity on us your beloved children of the Land, and harken to the voice of your servants. We wish to inform you that we still have in our minds those things which we have sent to you, and which are in your presence and in the presence of the Nobles of the Honorable Legislature of the Hawaiian Kingdom. Our wishes at this time, are the same as those expressed by us to you, it shall never change, because we are positive of the troubles that are sure to come to your government, to ourselves even to the first and third generations after us. If we have erred it is but proper that you show us wherein we your humble servants have done so. We still look with pride the glory of our Rulers and of our services under you. But with all this you have seen fit to surrender your throne to the care of the foreigners. Alas, for us you now dislike us and you together with your chiefs have turned and followed the advice of the foreigners. Aloha to the King and the honored Premier of the Hawaiian Kingdom. By more than 1600 of your true servants in Lahaina.

79 There are numerous examples of Hawaiian chiefs who embraced traditional Hawaiian culture and values while maintaining a sophisticated understanding of the implications of western influence. See FUCHS, supra note 75, at 29; KAMEELEIHIWA, supra note 29, at 304. 80 Id. at 345.


ethnic minorities,81 specifically, the groups that had immigrated to Hawaii to satisfy the labor needs of the vast sugar and pineapple plantations.82 Symbolic of the new era that Burns strove to promote was his lieutenant governor, William Shaw Richardson. Richardson was a part-Hawaiian attorney with longstanding roots in Hawaiian politics. His father and grandfather had a close association with the Hawaiian monarchy,83 and Richardson himself had long been active in the Hawaii Democratic Party.84 As Lawrence Fuchs describes in Hawaii Pono,

As a boy, Bill Richardson could not afford to go to Kamehameha School, even though his grandfather had been an aide to Queen Liliuokalani. Richardson, who grew up in the tough Palama Section of Honolulu, recalled his grandmother’s aloha for the Democrats, and when Burns asked him to help organize Hawaiian voters in alliance with the new Japanese electors, the part-Hawaiian Richardson responded warmly. He well remembered that Roosevelt High School would not admit his brother and sister, and etched even deeper

81 Id. at 338-43. 82 See id. at 339. At the time, Burns focused his candidacy on Hawaii’s Japanese American population – one of the largest and potentially powerful ethnic minorities in Hawaii. However, Burns’ labor friendly campaign strategy also included the other “plantation worker” minorities, including the Chinese, Filipino, Korean and Portuguese, as well as Hawaiian. 83 Richardson’s grandfather, Colonel John Richardson, had been an aide to Queen Liliuokalani and remained a staunch royalist even after the Queen was deposed in 1893. Richardson’s father, Wilfred K. K. A. Richardson, became an active member of the fledgling Hawaii Democratic Party in opposition to the Caucasian oligarchy at the time. He was the only one of his siblings to become a Democrat at a time when many chose to align themselves with the powerful Republican Party for practical concerns. See Dodd, supra note 15, at 10-11; FUCHS, supra note 75, at 317. 84 Richardson served as Hawaii Democratic Party chairman from 1956 to 1962. Dodd, supra note 15, at 11. At that point in Hawaii’s history, the Democratic Party was widely viewed as representing the interests of the “plantation worker” ethnic groups as opposed to the Caucasian oligopoly that claimed close association to the national Republican Party. See generally FUCHS, supra note 75, at 338-343.


was the memory of his paralyzed grandfather – a royalist until death – denouncing the oligarchy.85

In his 1966 bid for re-election, Burns proposed that Richardson stay on as his lieutenant governor. But Richardson, a 1943 Graduate of the University of Cincinnati’s School of Law, preferred the judiciary. Accordingly, in late 1966, Burns appointed Richardson to the Hawaii Supreme Court as its first Chief Justice of Hawaiian descent.86 Within three years of Richardson’s appointment as Chief Justice, the court was comprised entirely of Burns appointees.87 During the next several years, the Richardson court reviewed many of the issues that had been settled in the past by a stricter application of Anglo-American case law.88 The first and most vivid demonstration of the Richardson court’s willingness to break with that tradition was Palama.

B. Palama: Setting the Stage for a Reexamination of Hawaiian Rights

Although not a gathering rights case, Palama nevertheless demonstrated Richardson’s willingness to lend an unprecedented degree of deference to Hawaiian practices as legitimate precedent. In Palama, Appellant Philip Palama (Appellant Palalma), desiring clear title to his land, sought to enjoin the John Sheehan (Sheehan) from accessing his kuleana plot near an ancient Hawaiian fish pond that lay encompassed within Appellant Palama’s greater parcel. Along with the right of way claim, Sheehan argued that he was entitled to fishing rights within the pond as an ancient Hawaiian right. Appellant Palama countered that Sheehan failed to prove the existence of an ancient Hawaiian right-of-way, and even if he had, Sheehan should be restricted to the only method of access congruent with ancient Hawaiian practice: pedestrian.

85 Id. at 317. Fuchs’ description of Richardson came directly from an interview conducted between the two prior to the publishing of Fuchs’ book. 86 See Dodd, supra note 15, at 11. 87 Id. at 14-15. Masaji Marumoto, Kazuhisa Abe, Bernard H. Levinson, and Bert Kobayashi were all Burns appointees. 88 Id. at 15.


Richardson, writing for a unanimous court, agreed with the trial court in that Sheehan was entitled to reasonable right of way privileges for convenient exit and entry into his own property. However, observing that the trial court did not specifically link its holding to established ancient Hawaiian practice, Richardson applied HAW. REV. STAT. 7-1 to determine that “the rights of native tenants who held kuleana lands within the ahupuaas, were expressly reserved, ‘Koe no Kuleana o Kanaka.’”89 In this instance, Sheehan qualified as a kuleana holder who deserved reasonable, unfettered access to his land as protected by ancient Hawaiian right.90 Palama was a definite turning point in post-statehood Hawaiian jurisprudence, but it only touched on one of the many rights Hawaiians began to reassert starting in the 1970s - an era that would come to be popularly knows as the “Hawaiian Renaissance.”91 Throughout the second decade of Richardson’s tenure as Chief Justice, the court decided a line of cases with opinions that consistently favored public rights over private interests, include issues of great importance to Hawaiian tradition.92 By far the most monumental case concerning Hawaiian gathering rights since Oni, however, was Kalipi. Kalipi, again, authored by Richardson, provided a vehicle by which future Hawaii courts court could reach back into the past and reshape a gathering rights standard that had been untouched for over one and a quarter century.

C. Revisiting Traditional Gathering Rights in Kalipi

In a speech to a Honolulu Hawaiian Civic Club, Richardson had once remarked that for Hawaiians to effect real change and remedy the transgressions of the past, they must work within the

89 Palama, 50 Haw. 298 at 300, 440 P.2d at 97. 90 Id. at 301, 440 P.2d at 98. 91 Michael K. DUDLEY & KEONI K. AGARD, A CALL FOR HAWAIIAN SOVEREIGNTY 107 (1993). 92 See generally McBryde v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973); In re Ashford, 50 Haw. 314, 440 P.2d 76 (1968); County of Hawaii v. Sotomura, 55 Haw. 176, 517 P.2d 57 (1973); In re Sanborn, 57 Haw. 585, 562 P.2d 771 (1977).


system.93 Richardson’s opinion in Kalipi demonstrates how difficult that notion was to fulfill. Appellant William Kalipi94 was a Hawaiian who resided on Molokai, in the ahupuaa of Keawenui. He also owned a taro patch in the nearby ahupuaa of Manawai and a house lot in the ahupuaa of Ohia. Appellant Kalipi claimed that he often traveled to Manawai and Ohia to gather “indigenous agricultural products for use in accordance with traditional Hawaiian practices.”95 Conversely, the owners of Manawai and Ohia refused to allow Appellant Kalipi access to those lands to carry out gathering activities. Appellant Kalipi sought relief in the circuit court, which consequently found that he had no such right. On appeal, Appellant Kalipi proffered three sources to support his gathering rights claim. He first posited the argument that HAW. REV. STAT. § 7-1 guaranteed his right as a Hawaiian to gather such items. Appellant Kalipi also argued that his gathering rights were assured under the HAW. REV. STAT. § 1-196 “Hawaiian usage” clause.97 Finally, he claimed that reservations in the titles of both Manawai and Ohia ensured his gathering rights as a hoaaina tenant.98 Richardson started the analysis of Appellant Kalipi’s claims by first reiterating the importance of the newly added article XII, section 7 to the Hawaii Constitution (HAW. CONST. art. XII, § 7), which provides, “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 93 Dodd, supra note 15, at 29. 94 Hereinafter, “Appellant Kalipi.” 95 Kalipi, 66 Haw. at 3-4, 656 P.2d at 747. 96 HAW. REV. STAT. § 1-1 (1976) provides: “§ 1-1 Common law of the State; exceptions. The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly provided by the Constitution or laws of the United States, or by laws of the State, or fixed by Hawaiian judicial precedent, or established Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States or of the State.” 97 See infra note 102, HAW. REV. STAT. § 1-1. 98 Kalipi v. Hawaiian Trust Company, Ltd., 66 Haw. 1, 12, 656 P.2d 745, 752.


Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.”99 With the qualification that “this expression of policy...must guide our determinations,” Richardson set the stage for a new era in analyzing native Hawaiian gathering rights while keeping in mind the statute’s historical context as set forth in Oni.100 Richardson was cautious in addressing the fact that HAW. REV. STAT. § 7-1 only enumerated certain items that ahupuaa occupants could gather. He stated clearly, “[HAW. REV. STAT. § 7-1] simply contains no suggestion that any other items were intended to be covered by the law.”101 Nevertheless, Richardson also wrote of the complexities that arose when attempting to harmonize “these traditional rights born of a culture which knew little of the rigid exclusivity associated with the private ownership of land, with a modern system of land tenure in which the right of an owner to exclude is perceived to be an integral part of fee simple title.”102 Thus, in light of Oni, Richardson apparently reduced the contemporary meaning of HAW. REV. STAT. § 7-1 to the following:

We believe that this balance is struck, consistent with our constitutional mandate and the language and intent of the statute, by interpreting the gathering rights of § 7-1 to assure that lawful occupants of an ahupuaa may, for the purposes of practicing native Hawaiian customs and traditions, enter undeveloped lands within the ahupuaa to gather those items enumerated in the statute.103

By this proclamation, it appeared that Richardson was merely reasserting the holding in Oni, while imposing an additional requirement of residency. Richardson was similarly careful to add that even though not provided for in the statute, HAW. REV. STAT. § 7-1’s

99 Id. at 5, 656 P.2d at 748. 100 Id. at 6., 656 P.2d at 748. 101 Id. at 8, 656 P.2d at 750. 102 Id. at 7, 656 P.2d at 749. 103 Id. at 7-8, 656 P.2d at 749.


gathering rights were restricted to undeveloped lands. This restriction was quantified with “[the court’s] understanding of the traditional Hawaiian way of life in which cooperation and non-interference with the well-being of other residents were integral parts of the culture.”104 Addressing Appellant Kalipi’s second basis for gathering rights, Richardson once again applied the “Hawaiian usage” clause of HAW. REV. STAT. § 1-1 as he had in Palama. Richardson rejected the notion that Oni, in interpreting the Kuleana Act, was completely dispositive on the issue of specific gathering rights of Hawaiians as the owners of Manawai and Ohia had contended.105 Richardson explained that HAW. REV. STAT. § 1-1 was meant by the authors of that law to “avoid results inappropriate to the isles’ inhabitants by permitting the continuance of native understandings and practices which did not unreasonably interfere with the spirit of the common law.”106 Comparing HAW. REV. STAT. § 1-1’s exemption to the common law with the English doctrine of custom,107 Richardson determined that the retention of a Hawaiian tradition such as gathering which had continued since ancient times was acceptable insomuch as that tradition did not harm others.108 In a footnote to the opinion, the Chief Justice wrote plainly: “These [rights] include the gathering of items not delineated in § 7-1 and the use of defendants’ lands for spiritual and other purposes.”109 Further emasculating the holding in Oni, Richardson made it clear that the factual basis of that case was so different from that of Appellant Kalipi’s claims that Oni could not have precluded the court’s new treatment of gathering rights.110

104 Id. at 9, 656 P.2d at 750. 105 Id. at 10, 656 P.2d at 751. 106 Id. 107 Id. The court was clear to note, however, that the numerous requisite elements of custom did not necessarily have to be satisfied in the case of gathering rights because those requisites would fall under the Hawaiian usage exception clause in HAW. REV. STAT. § 1-1. 108 Kalipi, 66 Haw. at 10, 656 P.2d at 751. 109 Id. at 10 n.4, 656 P.2d at 751. 110 Id. at 11, 656 P.2d at 751.


Richardson declined to address the merits of Appellant Kalipi’s claim that reservations in the original kuleana awards of the two properties guaranteed certain rights to the public in general, amongst those being the right to gather traditional materials.111 Finding again that because “traditional gathering rights do not accrue to persons, such as the Plaintiff, who do not live within the ahupuaa in which such rights are sought to be asserted,” Appellant Kalipi’s claim failed strictly on the basis of tenancy.112 In the end, the holding in Kalipi concurrently served as an expansion and contraction of gathering rights. While the Richardson court expressly limited the gathering rights accorded by HAW. REV. STAT. § 7-1 to lawful occupants of the ahupuaa where the gathering took place, it also recognized that gatherable items were not limited to those enumerated in that statute. The Hawaiian usage exception to the adoption of the English common law found in HAW. REV. STAT. § 1-1 allowed the court to place loose reasonability restrictions on items that could be gathered.113 Both of these conclusions of law, Richardson believed, combined to form a logical and easily definable rule by which common law property rights and traditional Hawaiian custom could co-exist. However, because the case was ultimately disposed of on tenancy grounds, those positions would remain dicta until a later court set them as black letter law.

D. Kalipi’s Significance to Richardson

The conclusive observation that Richardson used Kalipi as a vehicle to expand gathering rights because as a Hawaiian, his experiences and personal knowledge of culture dictated so remains to be definitively proven. Inferences, however, can certainly be drawn from an individual’s life history, and with Richardson, such inferences are clearly present. Kalipi came near the end of

111 Id. at 12, 656 P.2d at 752. “The reservation in the Manawai award was ‘Koe nae no kuleana o na kanaka maloko,’ translated at trial to mean ‘the kuleanas of the people therein are excepted.’” 112 Id. at 12-13, 656 P.2d at 752. 113 See Kalipi, 66 Haw. at 10, 656 P.2d at 751. “Where these practices have, without harm to anyone, been continues, we are of the opinion that the reference to Hawaiian usage in § 1-1 insures their continuance for so long as no actual harm is done thereby.” Id.


Richardson’s tenure as Chief Justice. In some aspects, it can be seen as a culmination of Richardson’s efforts in seeking a balance between revered Hawaiian traditions and the application of Anglo-American law.114 Upon his appointment to the court, Richardson made these intentions quite clear when he stated:

The man who is Chief Justice must balance the rules of the past to conform with the state of society today. He must bring the old rules in line with modern times....He must adopt the fundamental principles of the past and bring them into focus with the present. And in Hawaii, the present – like the past – is a time of migration.115

This harmonization runs throughout the aforementioned opinions, with Richardson consistently keeping an eye to the logical foundations of Hawaiian tradition.116 At the time of these property rights decisions, “activism” was a popular descriptive reference to Richardson and the court as a whole. Yet to much of Hawaii’s public, for whom land usage had traditionally taken on a different character from that of purely western exclusivity concepts, the Richardson court became a champion of local rights and homeland traditions.117

114 See supra note 90 for other notable cases where the Richardson court appears to incorporate a traditionally Hawaiian viewpoint. 115 VICTORIA N. KNEUBUHL, ALI’I�LANI HALE, A SENTINEL IN TIME, 102 (2000). 116 Dodd provides a poignant example of Richardson’s respect for Hawaiian tradition when he reflected on the basis of his decision in the shoreline cases:

If I had my way, the public would have even greater access to water and shoreline property. Hawaiian kings, I’m sure, intended to give their subjects more public seashore lands than we now allot. No one but a fool would leave his canoe at the vegetation line and let the waves wash it out to sea! The kings really must have intended to extend public property to that area on the beach where canoes could be left without danger of being washed away.

Dodd, supra note 15, at 28. 117 See Lori Tighe, supra note 15; Lynda Arakawa, Liberal or Conservative? Court Defies Easy Labels, HONOLULU ADVERTISER, Nov. 24, 2003,


V. KLEIN AND BEYOND

A. The Lum Era

After Richardson retired from the bench in 1982, Governor George Ariyoshi appointed Herman T. F. Lum as Chief Justice.118 In comparison to the court under Richardson, it has generally been said that Lum’s tenure “was more conservative and less controversial.”119 Similar to the time between Oni and the Richardson court’s line of property rights cases culminating in Kalipi, the Lum era is rather devoid of relevant case law. Appointed as an Associate Justice in 1980,120 Lum joined with his fellow justices in the unanimous Kalipi decision, but case law is silent on actions directly affecting gathering rights until Pele arose in the early 1990s. Perhaps because Kalipi was a definite expansion of Oni regarding gathering rights under HAW. REV. STAT. § 7-1 and an affirmation of the HAW. CONST. art. XII, § 7 guarantee to those of native Hawaiian descent, the court under Lum felt that the issue was well settled. The only case that bears a measured degree of relation to gathering rights under Lum is Dedman. Authored by Lum, Dedman focuses on, amongst other things, the appellant’s right to exercise their religious beliefs in a manner according to Hawaiian tradition. Although ostensibly tenuous, the link between the claims presented by Appellant Ralph Dedman121 and his co-Appellant Noa Aluli (Aluli) has a culturally inherent relationship to gathering rights. The basic premise of Appellant Dedman and Aluli’s First Amendment claim was that geothermal development within the Waokele o Puna area of Hawaii Island would burden Appellant Dedman and Aluli’s ability to freely exercise their beliefs as “Pele practitioners.”122 The court observed that according to Aluli, the

available at http://thehonoluluadvertiser.com/article/2003/Nov/24/In.In05a.html (last visited May 1, 2004). 118 CAROL S. DODD, THE RICHARDSON YEARS: 1966-1982 16 (1985). 119 Arakawa, supra note 116. 120 1981 HAWAII ANN. JUD. REP. at 3. 121 Hereinafter, “Appellant Dedman.”


worship of Pele123 as a deity included the belief that natural items from the landscape encompassing the area at issue such as ferns, shrubs, land “and even the rain” were sacred.124 Although not addressed by the court,125 therein lies tenable a link to possible HAW. REV. STAT. § 7-1 claims under Kalipi, as access and use of those sacred items would logically, if not necessarily follow.126 In the end, however, the case was resolved on the facial first amendment claims.

B. Klein’s Background and Appointment

In Lum’s final year on the court, a person of Hawaiian descent once again joined its ranks. Governor John Waihee, the State’s first part Hawaiian governor, appointed Hawaii State Circuit Judge Robert G. Klein to the Hawaii Supreme Court in 1992. It was in that first year of his appointment to the court that Klein would pick up the issue of gathering rights last addressed in detail by fellow Hawaiian Richardson. Klein’s appointment made him only the fourth person of Hawaiian descent to serve as a Justice of the Hawaii Supreme Court from its inception during the reign of Kamehameha III to the present.127 In 1965, Klein had graduated from Punahou School, arguably Hawaii’s most prestigious primary and secondary educational institution.128 Following graduation from the University

122 See Dedman v. Bd. of Land & Natural Res., 69 Haw. 255, 259, 740 P.2d 28, 31-32. 123 Lit., “Volcano goddess.” PUKUI & ELBERT, supra note 4, at 323. 124 Id. 125 On appeal, neither petitioner was able to present a specific argument for gathering rights as a facet of their larger claims because they had not done so at the original BLNR hearing from which the appeal was taken. Thus they were barred by the doctrine of res judicata. See Hawaii v. Magoon, 75 Hawai’i 164, 190, 858 P.2d 712, 725 (1993). 126 Although varied, traditional worship of Hawaiian deities such as Pele incorporates use of “sacred” items as identified by Aluli, most commonly in the form of an offering of plants or flowers traditionally associated with the deity. See ABBOTT, supra note 24, at 117. 127 See Barayuga & Kakesako, supra note 18.


of Oregon Law School in 1972, Klein returned to Hawaii to serve as a law clerk for Richardson.129 After six years employed in various state government positions, Klein started his career on the state bench with an appointment to the Hawaii State District Court in 1978.130 His later appointment to the Hawaii Supreme Court by Governor Waihee131 came at a time when controversial issues affecting the Hawaiian people and the state as a whole neared an apex.132

C. Waokele O Puna Revisited Through Pele

In that first year of his term, and while the court was still headed by Lum, the newly appointed Klein authored Pele. Commonly viewed as the first of Kalipi’s two progeny, the basis for the claims in Pele originated in the land transaction that was the root of the appellant’s claims in Dedman. Essentially, Appellant Pele Defense Fund133 sought review of the original 1985 land exchange between the

128 Punahou School has long been viewed as an institution for the children of Hawaii’s elite, and concomitantly, reserved for those racial classes in Hawaii that represented the state’s socioeconomic upper class. See FUCHS, supra note 75, at 43-44. 129 FindLaw, Lawyer Profile: Hon. Robert G. Klein, available at http://pview.findlaw.com/view/1967247_1 (last visited Apr. 14, 2004). 130 Like all district court appointees in Hawaii, Klein’s selection came at the hands of the Chief Justice of the Hawaii Supreme Court, who, at that time, was William S. Richardson. 1978 HAWAII ANN. JUD. REP. at 6. 131 As recently as 1999, there still remained a degree of controversy surrounding Klein’s appointment to the Hawaii Supreme Court. Klein, as well as fellow appointee Steven H. Levinson, was not on the original candidate list given by the judicial selection committee to Gov. Waihee. As stated by United States Senior District Court Judge Samuel King, “According to our sources, Waihee simply sent the list back, saying he wanted either a new list or an expanded one. A number of commission members were bothered by this, but Gerard Jervis insisted that the group give in to the governor’s demands, and in the end, his importuning prevailed. Both names were on the revised list and they were the ones who got appointed.” Samuel King et al., Broken Trust, 21 U. HAW. L. REV. 691, 695 (1999). 132 Various events of great importance to Hawaii’s Hawaiian community occurred just prior to and following the year in which Klein was appointed to the Hawaii Supreme Court. These included the 1991 cessation of target practice bombing on the island of Kahoolawe and the 1993 centennial observation of the dethronement of Liliuokalani.


Board of Land and Natural Resources134 and the Campbell Estate, in which the area under State ownership known as Waokele o Puna was exchanged for Campbell’s lands in Kahaualea.135 Appellant PDF argued that the exchange violated the state’s fiduciary and general trustee duties under Section 5f of the Admissions Act,136 as well as the HAW. REV. STAT. § 7-1 protected gathering rights of Hawaiians who frequently accessed Waokele o Puna when it was under state control as a Natural Area Reserve land.137 Appellant PDF’s arguments concerning the State of Hawaii’s infringement of its member’s Kalipi rights to gathering were based on twofold:

(1) by the relinquishment of state lands on which native Hawaiians customarily and traditionally exercised subsistence, cultural and religious practices; and (2) by the continued denial of access into Wao Kele ‘O Puna to native Hawaiian PDF members who seek access for customarily and traditionally exercised subsistence, cultural and religious practices.138

The court, through Klein, found that because the first claim sought relief in retrospect for the land swap, it was barred by the State’s sovereign immunity.139 However, Appellant PDF’s denial of access

133 Hereinafter, “Appellant PDF.” Appellant PDF was an organization of both Hawaiians and non Hawaiians who held an interest in the disposition of the Waokele O Puna lands. The court held that because members of Appellant PDF could potentially show that they had suffered injuries in fact linked to their native Hawaiian gathering rights claims, the organization had standing to press those claims on their behalf. See Pele, 73 Hawai’i at 614-615, 873 P.2d at 1268-1269. 134 Hereinafter, “BLNR.” 135 Id. at 586-587, 873 P.2d at 1254-1255. As a condition of the exchange, the State sought declassification of Waokele O Puna as NARS land, which was ultimately achieved by way of Executive Order No. 3359. 136 Id. at 584, 837 P.2d at 1252. 137 Id. 138 Id. 139 Id. at 606, 837 P.2d at 1264.


claim triggered a reemergence of Kalipi in a somewhat unexpected manner.140 Klein began addressing Appellant PDF’s latter contention by reconfirming the court’s commitment to Hawaiian rights in general, and that Hawaiian rights fell within the broader category of public interest. By implication then, Appellant PDF’s representation of a group that could justifiably be defined as discrete and insular - specifically native Hawaiians who had a history of accessing the land in question to carry out gathering rights activities – necessarily met the relaxed standing barriers instituted by the court to satisfy the “needs of justice.”141 Klein then set about addressing the group’s HAW. REV. STAT. § 7-1 claim that because of the land transfer, its members had been denied the continued opportunity to enter Waokele o Puna lands to exercise, amongst other things, traditional gathering rights. However, under Kalipi, Appellant PDF’s gathering rights argument contained a flaw in that none of its practicing members resided in the ahupuaa where Waokele o Puna was located. Thus, the tenancy requirement that had disposed of the Appellant Kalipi’s claim was also lacking in Pele. Nevertheless, Appellant PDF challenged the Kalipi residency requirement by basing its claim on the “traditional access and gathering patterns of native Hawaiians in the Puna region,”142 rather than on land ownership as Appellant Kalipi had done. All things considered, Appellant PDF’s reasoning made perfect sense from a traditional Hawaiian perspective. For just as the items that were gathered in the Waokele o Puna were unique to that location, so were many other gatherable items throughout the Hawaiian archipelago.143 A precursor to this argument was presented in Dedman, where the appellants had asserted that both the land that constituted Waokele o Puna and its surrounding areas and those

140 See Watumull, supra note 32, at 207. 141 Pele, 73 Hawai’i at 614, 873 P.2d at 1269 (quoting Life of the Land v. Hawaii Land Use Comm’n, 63 Haw. 166, 176, 623 P.2d 431, 441 (1981)). 142 Id. at 619, 873 at 1270. 143 Ancient Hawaiian proverbs attest to this in their description of places where the choicest or most sacred products of the land could be obtained. See generally PUKUI, supra note 1.


things that came from that land were considered sacred to Hawaiians familiar to the area.144 Apparently, Klein saw the logic in Appellant PDF’s claim. First, he reasoned, “Unlike Kalipi, PDF claimed [gathering] rights based on the traditional access and gathering patterns of native Hawaiians in the Puna region.”145 Secondly, Klein found that based on the motivations of the 1978 Constitutional Convention committee that drafted article XIII, section 7 of the Hawaii Constitution,

[T]he committee contemplated that some traditional rights might extend beyond the ahupua’a; “[f]or instance, it was customary for a Hawaiian to use trails outside the ahupua’a in which he lived to get to another part of the island.” The committee intended this provision to protect the broadest possible spectrum of native rights[.]146

Relying heavily on this legislative history, the court came to a clear and unambiguous holding: “We therefore hold that native Hawaiian rights protected by article XII, section 7 may extend beyond the ahupua’a in which a native Hawaiian resides where such rights have been customarily and traditionally exercised in this manner.”147 Klein qualified the holding by remaining fact specific. In their affidavits, Hawaiian and Native Hawaiian Members of Appellant PDF claimed that in Puna, the access and gathering patterns of the Hawaiian community spanned the entire district, as opposed to limiting their practices to their home ahupuaa.148 Therefore, the court maintained, on remand, Appellant PDF had the burden of proving that “Wao Kele ‘O Puna was a traditional gathering area utilized by the tenants of abutting ahupua’a.”149 In sum, this holding meant that fact

144 See Dedman, 69 Haw. at 259, 740 P.2d at 31. 145 Pele, 73 Hawai’i at 618, 873 P.2d at 1271. 146 Pele, 73 Hawai’i at 619, 873 P.2d at 1271 (quoting in part, 1 Proceedings of the Constitutional Convention of Hawaii of 1978, 637). 147 Id. at 620, 837 P.2d at 1272. 148 Id. at 618, 873 P.2d at 1271.


specificity was essential to any claim under HAW. REV. STAT. § 7-1 where the Kalipi tenancy requirement was not already met. If a non-tenant wanted to assert a gathering right at a specific location, it was that person’s burden to show that the location was a gathering area traditionally utilized by such non-tenants. At that point, Pele stopped short of providing a comprehensive rule for non-tenant gatherers. As in Kalipi, the court declined to define the temporal component of tradition. Thus, the decisive question of how long a gathering practice must exist before it qualified as a “traditional practice” remained unanswered. In reference to the claims brought by Appellant PDF, Klein noted that “The practice of accessing the [Waokele o Puna] area as a common area for gathering and hunting by tenants of the Puna district may have commenced from the time of the Great Mahele and Kuleana Act.”150 Pele was definitely an expansion of Kalipi. Gathering rights advocates lauded the decision as vindication of a right, which should have been openly and freely exercised throughout post-contact Hawaiian history.151 Conversely, champions of a strictly western property rights regime in Hawaii saw Pele as “exacerbating the inherent conflict between Hawaiian native tenant access and gathering rights and western property rights.”152 On remand, Appellant PDF and its native Hawaiian members successfully proved to the trial court that the gathering traditions of the Puna district were not restricted solely to the ahupuaa in which they resided. Still, both the Campell Estate and its Waokele o Puna lesee True Energy Geothermal Corporation continued to clash with the members of Appellant PDF and residents of the Puna district in general for several years following the ultimate disposition of the case.153

149 Id. at 621, 873 P.2d 1272. 150 Id. 151 See Davianna P. McGregor, Hawaiian Cultural and Natural Resource Management, available at http://crm.cr.nps.gov/archive/19-8/19-8-5.pdf (last visited Apr. 24, 2004). 152 Watumull, supra note 32, at 207. 153 See Alan D. McNarie, Wao Kele ‘O Puna: One Last Battle?, HAWAII ISLAND J., Apr. 16, 2004, available at http//:www.hawaiiislandjournal.com/stories/5b03c.html (last visited Apr. 18, 2004).


D. PASH

The Big Island of Hawaii was again the center of controversy surrounding gathering rights in 1995 when the Hawaii Supreme Court decided PASH. This case began as an agency matter when Nansay Hawaii, Inc.154 applied to the Hawaii County Planning Commission155 for a special management area permit156 in 1990. Nansay had planned to build a large resort and community complex on over 450 acres of shoreline area in the Hawaii Island ahupuaa of Kohanaiki. Previously devoid of any substantial development, Kohaniki and its neighboring ahupuaa contained numerous sites of environmental and archaeological importance.157 As was agency policy, the HPC held public hearings on Nansay’s SMA permit application. It was at that time that members of Appellant PASH,158 along with Appellant Angel Pilago159 presented their concerns about the adverse impact that Nansay’s planned large scale development would have on the area as it was traditionally used.160 At one of the initial public hearings, both Appellant PASH 154 Hereinafter, “Nansay.” 155 Hereinafter, “HPC.” 156 Hereinafter, “SMA permit.” 157 Significant environmental sites included numerous anchialine (brackish) ponds that were habitat for several brackish waster species of marine life and stands of endangered endemic Hawaiian fauna. Archaeological sites included, “fifty house sites, four heiau, a holua slide, fishponds, salt pans, burial sites and petroglyphs.” JOCELYN FUJII, IN THE LEE OF HUALALAI 77 (1995). 158 Hereinafter, “Appellant PASH.” Appellant PASH was an unincorporated public interest group based in West Hawaii and coordinated by Jerry Rothstein. At the time of Appellant PASH’s intervention in Nansay’s SMAP application to the HPC, it counted native Hawaiians amongst its members. PASH, 79 Hawai’i at 425, 903 P.2d at 1245. 159 Hereinafter, “Pilago.” Pilago is a native Hawaiian resident of West Hawaii and the head of the Protect Kohaniki ‘Ohana, an unincorporated public interest group dedicated to preserving the environmental and archaeological integrity of Kohanaiki. See http://www.kohaniki.org (last visited Apr. 24, 2004). 160 Appellant PASH and Pilago originally based opposition to proposed development on the grounds that it would impede on the preservation and protection


and Pilago requested a contested case hearing. Denying the request, the HPC found that neither had sufficient standing to participate in a contested case hearing.161 In rationalizing the denial, HPC stated that neither Appellant PASH nor Pilago’s basis for contesting the application surpassed anything more than a general public interest.162 The HPC summarily approved Nansay’s SMA permit application, to which Appellant PASH and Pilago sought review in the state circuit court as was their right under HAW. REV. STAT. § 91-14.163 The circuit court reversed the HPC’s decision and ordered it to grant Appellant PASH and Pilago a contested case hearing. Nansay and the HPC appealed the circuit court’s order to the Hawaii Intermediate Court of Appeals.164 Affirming in part,165 that court held that the HPC “disregarded the rules regarding the gathering rights of native Hawaiians and its obligation to preserve and protect those rights.”166 Implicit in the Intermediate Court of Appeals’ findings was that Appellant PASH counted amongst its members individuals who were native Hawaiian and who exercised traditional gathering rights in the disputed area – a rule clearly set forth in Pele.167

of public beach and shoreline access. However, during the public hearings process on the SMAP, several witnesses (but apparently not Pilago himself) provided testimony that the land in question “had traditionally and was currently used by native Hawaiians for subsistence, religious and cultural purposes.” PASH, 79 Hawai’i at 430 n.6, 903 P.2d at 1251. 161 Id. at 429, 903 P.2d at 1250. 162 Id. 163 HAW. REV. STAT. § 91-14 (1993) provides for judicial review of contested agency cases. 164 Public Access Shoreline Hawai’i v. Hawai’i County Planning Comm’n, 79 Hawai’i 246, 900 P.2d 1313, (App.1993). (“PASH I”). 165 Interestingly enough, PASH I was authored by Judge Walter Heen, the first person of Hawaiian descent to sit on the ICA. See http://www.fjc.gov/servlet/tGetInfo?jid=2710 (last visited Apr. 21, 2004). 166 Id. at 253, 900 P.2d 1317. 167 Apparently, Pilago’s declared interests did not include the gathering claim, for he was dismissed as a valid party because his “‘special interest’ was not a sufficiently ‘personal’ interest ‘clearly distinguishable from that of the general public.’” PASH, 79 Hawai’i at 430, 903 P.2d at 1251.


Again, both Nansay and the HPC appealed, this time to the Hawaii Supreme Court. After briefing on the gathering rights issue as handled by the lower courts, the supreme court requested additional briefing on three separate issues, each of which touched on the relationship between gathering rights and property rights.168 The answers provided by the court to those three issues would send shockwaves through Hawaii’s development sector. Klein first addressed the State of Hawaii’s obligation to protect cultural and historical resources. He began the opinion’s substantive analysis with Nansay’s contention that the HPC had no obligation under the Costal Zone Management Act (CZMA)169 to protect the traditional and customary rights of native Hawaiians. Citing HAW. REV. STAT. § 205A-4(b) and 5, Klein held that all agencies in Hawaii, whether state or local, are obliged to ensure that their actions comply with the requirements of the CZMA. Explicit in those requirements are rules relating to the preservation of cultural resources as well as the economic or social welfare and activities of the community.170 Of course, the requirements that the HPC was obliged to follow in placing CZMA conditions on an SMA permit had

168 Id. at 435 n16, 903 P.2d at 1256. The court requested additional briefing on the following three issues: “(1) to what extent should native Hawaiian gathering rights on undeveloped land be protected when that same land is under consideration for development permits, and does the HPC have legal authority to condition an SMA permit on protection of those rights; (2) what criteria should be considered in determining whether the proposed development would infringe upon native Hawaiian rights; and (3) at what point, if any, doe the protection of native Hawaiian rights in the land being developed implicate the “Takings Clause” of the Hawai’i and United States Constitutions?” Id. 169 The Coastal Zone Management Act is a federal law that mandates each state bordering an ocean to regulate the development of coastal areas, with a particular emphasis on environmental protection. 16 U.S.C. § 1451 (1983). It is implemented in Hawaii under HAW. REV. STAT. § 205A-2 (2004). Particularly important to the PASH court’s analysis of the HPC’s obligations to traditional and customary Hawaiian rights is HAW. REV. STAT. § 205A-(2)(b)(2)(A) (2004) which provides in relevant part: “§ 205A Coastal zone management program; objectives and policies. (2) Historic resources; (A) Protect, preserve, and, where desirable, restore those natural and manmade historic and prehistoric resources in the coastal zone management area that are significant in Hawaiian and American history and culture.” 170 These two requirements were found within the HPC’s agency rules. They did not, however, specifically reference CZMA requirements but were general requirements to be applied to the decision making process when reviewing development permit applications. PASH, 79 Hawai’i at 436, 903 P.2d at 1257.


limits. Referencing the landmark Nollan171 and Dolan172 tests, the court held that “any conditions placed on a SMA permit [must] be deemed ‘reasonable,’ they must bear an essential nexus to the legitimate State interests and must be ‘roughly proportional’ to the impact of the proposed development.”173 After finding that the HPC did have an obligation under the CZMA to protect traditional and customary native Hawaiian rights when considering SMA permit applications, Klein set about determining the HPC’s obligations to native Hawaiians under HAW. CONST. art. XII, § 7 and HAW. REV. STAT. § 1-1.174 Klein noted at the outset that as an arm of the state, the HPC’s duties and rights under HAW. CONST. art. XII, § 7 were clearly expressed in the text of the law. As for HAW. REV. STAT. § 1-1, which establishes the Anglo-American common law as the law of the State of Hawaii, the PASH court read the clause “or as established by Hawaiian usage” to infer that due recognition was to be given to historical Hawaiian precedent. Klein strengthened the court’s position on HAW. CONST. art. XII, § 7 and HAW. REV. STAT. § 1-1 in PASH by laying a foundation through Kalipi and Pele. First, Klein noted that although Kalipi and Pele concerned individual gathering rights and the land-based boundaries within which those rights may be exercised, respectively, neither decision “precluded further inquiry concerning the extent that traditional practices have endured under the laws of this State.”175 Lending deference to precedent, Klein continued, “In Kalipi, we foresaw that ‘[t]he precise nature and scope of the rights retained by § 1-1 would, of course, depend on the particular circumstances of each case.’”176 The PASH opinion went on to provide an overview of Kalipi and Pele, noting the impact that each case had on native Hawaiian gathering rights. Klein’s interpretation of what Kalipi meant to the

171 Nollan v. C.A. Coastal Comm’n, 483 U.S. 825, 836 (1987). 172 Dolan v. City of Tigard, 512 U.S. 374 (1994). 173 PASH, 79 Hawai’i at 436-437, 903 P.2d at 1257-1258. 174 Id. 175 Id. at 438, 903 P.2d at 1259. 176 Id. (quoting in part, Pele, 73 Hawai’i at 619, 837 P.2d at 1271).


PASH court went beyond Kalipi’s basic holding that native Hawaiian access and gathering rights only accrued to those individuals who could prove tenancy within the ahupua a wherein they sought to exercise those rights. Instead, he opined that Kalipi stood more for the issue that it did not address, rather than the tenancy rule that it proclaimed. Kalipi, Klein maintained, “specifically refused to decide the ultimate scope of traditional gathering rights under H.R.S. § 1-1 because there was an insufficient basis to find that such rights would, or should, accrue to persons who did not actually reside within the [ahupua’a] in which such rights are claimed.”177 Therefore, as long as a claimant could lay a factual basis in custom or tradition for such an activity, his or her gathering right claim would be valid. Klein reasoned that the fundamental difference in the Kalipi and Pele holdings was that the Pele claims were grounded in custom, rather than on “mere land ownership.” As for custom, Klein pointed out that Kalipi never precluded revisiting that topic as handled in Oni. In fact, Kalipi made it known that HAW. REV. STAT. § 1-1 “may be used as a vehicle for the continued existence of those customary rights which continued to be practiced and which worked no actual harm upon the recognized interests of others.”178 PASH, then, followed the lead provided in Kalipi by interpreting Oni as “merely reject[ing] one particular claim based upon an apparently non-traditional practice that had not achieved customary status in the area where the right was asserted.”179 Klein used that reasoning to interpret HAW. REV. STAT. § 1-1 as potentially allowing any activity not delineated in HAW. REV. STAT. § 7-1 to be affirmed as a traditional Hawaiian gathering right, insomuch as it could be proven by custom. To Klein, Appellant Oni’s claim was bound to fail because it was asserted as a gathering right under an illusory pretext. Allowing horses to graze on another’s pasture was no more of a Hawaiian custom than cellophane hula skirts would be considered today.180

177 Id. at 439,903 P.2d at 1260. 178 Kalipi, 66 Haw. at 1210, 656 P.2d at 752. 179 PASH, 79 Hawai’i at 441, 903 P.2d at 1262. 180 As in Appellant Oni’s time, there are certain modern activities that Hawaiians and non-Hawaiians alike consider to be part of local “custom,” but are


Klein continued with a lengthy discourse on the development of property rights in Hawaii, focusing primarily on the pre- and post-Mahele period during the reign of Kamehameha III.181 At the end of this section, the Justice reached a conclusion that remains a source of controversy amongst property experts to this day: “Our examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity is not universally applicable in Hawai’i.”182 In an apparent attempt to quell the perceived backlash from exclusionary rights advocates, Klein tempered the shock of this finding with the qualification that “the State retains the ability to reconcile competing interests under article XII, section 7. We stress that unreasonable or non-traditional uses are not permitted under today’s ruling.”183 With its rejection of strict exclusivity, PASH got down to declaring the new legal policy towards Hawaiian gathering rights throughout Hawaii. Now that exclusion gave way to the reasonable exercise of customary tradition, it was essential for the court to delineate the requirements of custom, and the PASH court did not find it necessary to remain absolutely faithful to Blackstone’s notion of custom. Klein embraced the Kalipi court’s determination that “all the requisite elements of the doctrine of custom were [not] necessarily incorporated in § 1-1.”184 Now, that realization meant that HAW. REV. STAT.§ 1-1 would represent “the codification of the doctrine of custom as it applies in our State.”185 The standards by which an activity was to be adjudged custom would accordingly take on a new meaning in Hawaii. Instead of Blackstone’s “time immemorial”186 requirement, in Hawaii, a person asserting his or her gathering rights must prove that the activity to be undertaken had been practiced prior

clearly not an activity that was exercised by native Hawaiians at the time of Captain Cook’s arrival. 181 See PASH, 79 Hawai’i at 442-447, 903 P.2d at 1264-1268. 182 Id. at 447, 903 P.2d at 1268. 183 Id. 184 Id. 185 Id. 186 1 W. BLACKSTONE, COMMENTARIES 76 (1874).


to November 25, 1892 – the date that HAW. REV. STAT. § 1-1’s predecessor was enacted into Hawaiian Kingdom law.187 Klein was also quick to dismiss Nansay’s argument that Pele’s expansion of gathering rights to non-tenants who could prove their gathering practices through tradition and custom was an affront to previously existing law. Rejecting the contention, Klein found that the gathering practices undertaken by Appellant PDF’s members in Pele were sufficiently similar to those presented by members of Appellant PASH. “We reaffirm [Pele],” Klein asserted, “and expressly deem the rules of law posited therein to be applicable here.”188 Continuing the court’s validation of Pele, Klein, apparently of his own accord, brought up the matter of that case’s reference to members of Appellant PDF who were practitioners and claimed at least fifty percent Hawaiian blood.189 Klein emphatically stated that “[those] references were not intended to imply our endorsement of a fifty percent blood quantum requirement for claims based upon traditional or customary Hawaiian rights.”190 “Customary and traditional rights in these islands flow from native Hawaiians’ pre-existing sovereignty,” he declared. “The rights of their descendants do not derive from their race per se.”191 As added in a footnote to the opinion, the juggernaut of whether those non-Hawaiian members of a Hawaiian extended family was reserved for resolution at some later point in time.192 Finally, the opinion reached one of its more controversial holdings, that of the right of Hawaiians to enter onto “land that is less than fully developed”193 and exercise their traditional and customary gathering rights. Kalipi, Klein noted, drew a line at only allowing gathering on undeveloped property. Richardson’s rationale in Kalipi for the undeveloped property limit was that to allow otherwise “would 187 PASH 79 Hawai’i at 447, 903 P.2d at 1268. 188 Id. at 448, 903 P.2d at 1269. 189 Id. 190 Id. at 448-449, 903 P.2d at 1269-1270. 191 Id. at 449, 903 P.2d at 1270. 192 Id. at 449 n41, 903 P.2d at 1270. 193 Id. at 450, 903 P.2d at 1271.


conflict with our understanding of the traditional Hawaiian way of life in which cooperation and non-interference with the wellbeing of other residents were integral parts of the culture.”194 However, Richardson had only said developed property. Klein grasped on that language in order to further broaden the scope of traditional gathering rights. The remainder of PASH deals with the issue of uncompensated taking of property under the United States and Hawaii Constitutions. In sum, Klein wrote that the State’s recognition and protection of traditional gathering rights could not effect a taking under judicial or regulatory theories.195 Klein bluntly refuted Nansay’s claim that recognition of the gathering rights accorded by the court to native Hawaiians resulted in a fundamental alteration of Nansay’s property rights. Klein basically reiterated a policy set forth earlier in the opinion: “Nansay’s [judicial takings] argument places undue reliance on western understandings of property law that are not universally applicable in Hawai’i.”196 As for a regulatory taking, that issue could not be resolved until a contested case hearing was held by the HPC on remand, at which time the extent of conditions placed on Nansay’s property could be determined.197 The general reaction to PASH was predictable. Those hailing the decision included, amongst other, Hawaiian rights advocates and environmentalists. Just as vehement in opposition to the holding were developers, large land holders and title insurers, to mention a few. To many supporters of Hawaiian rights, the decision leveled the once drastically unequal power structure between Hawaiians and land developers. Alternately, those proponents of western property rights foresaw drastic downturns in the eagerness of property owners enter into wide scale development, and concomitantly, hesitation on the part of investors to fund such projects.198 Today, nearly ten years after

194 Kalipi, 66 Haw. at 9, 656 P.2d at 750. 195 Id. 196 Id. at 451, 903 P.2d at 1272. 197 Id. at 452, 903 P.2d at 1273. 198 Jacob Kamhis, Court Decision on PASH Case Gives Hawaiians New Voice in Development, PACIFIC BUSINESS NEWS, Sept. 6, 1996, available at http://www.kohanaiki.org/news (last visited Apr. 6, 2004).


PASH was decided, its effects on development appear to be far less devastating than foreseen at the time it was handed down.199 E. Reflections on Klein’s Gathering Rights Opinions

PASH was arguably Klein’s most significant opinion during his eight years on the Hawaii Supreme Court. As he made clear in that decision, in Hawaii, land and indigenous people have always been issues of great import. To be sure, both topics are so connected that one cannot be addressed without implicating the other. As the author of Pele and PASH, and as a native Hawaiian, Klein stood at the center of that quagmire. As with his predecessor Richardson, Klein was fully aware of his Hawaiian heritage while on the bench. Nevertheless, the extent to which that awareness shaped his reasoning in Pele and PASH can only be answered definitively by the man himself. When asked about this issue, he stated: Judges bring their viewpoints, including their

upbringing and experiences, to the decision making process. One can argue that their backgrounds and experiences are the very reasons they are selected to serve the court. But to say that ethnicity plays a role in decision making, especially decision making in these cases, is to diminish the law-based reasons for the outcomes.200

199 Nansay abandoned its plans for Kohaniki after withdrawing its SMA permit application in August of 1996. Since that time, the 450 acres held by Nansay were sold to Rutter Development Corporation, a California based developer. In 2003, Rutter announced that it had reached an agreement with Hawaii County to build not more than five hundred homes and an 18-hole golf course in exchange for setting aside 128 shoreline acres as a coastal park accessible to the public. The Protect Kohanaiki ‘Ohana, a non-profit community based organization dedicated to the preservation of Kohanaiki’s environmental and historical resources that was founded by Angel Pilago, continues to defend the claims that were asserted by Appellant PASH and Pilago in PASH. See http://www.kohanaiki.org/mission (last accessed on April 6, 2004); Bobby Command, Kohanaiki Deal Revealed, WEST HAWAII TODAY, Sept. 11, 2003, available at http://www.kohanaiki.org/news (last visited Apr. 6, 2004). 200 Email from Robert G. Klein, former Associate Justice, Hawaii Supreme Court to Kahikino Noa Dettweiler, class of 2005, William S. Richardson School of Law (Apr. 4, 2004, 05:38:21 HST) (on file with author).


Following the common perception of judges and the impartiality they are charged to uphold, that response is a fair and impartial reaction to this paper’s thesis. As members of the public, who may be directly or indirectly impacted by the outcome of judicial decisions, we base our expectations of the judicial system upon such reasoning. Then again, it is also a valid, if not simplistic truism that judges are people, too. Passion and prejudice are an irrefutable component of our individuality. Justice Klein left the Hawaii Supreme Court in 2000, two years short of his appointed ten-year term.201 Upon his return to private practice, he has taken on a variety of issues within the Hawaiian community, most recently that of general counsel to the Office of Hawaiian Affairs, Board of Trustees. In an interview conducted just prior to leaving the court, it was observed that “Klein, the only part-Hawaiian on the high court, is most proud of decisions he’s authored that involve the Hawaiian community, including expanding the rights of native Hawaiians, allowing them to go on private property under certain circumstances for traditional gathering, religious and cultural practices.”202

F. Gathering Rights Decisions After Klein

Overall, Kalipi and its progeny seem to have had a positive impact on the State of Hawaii. Despite dire predictions that “[m]ore people will not continue with their projects and won’t develop their property,” development continues at a steady pace throughout the islands.203 News of clashes between property owners and native Hawaiian cultural practitioners is rare.204 Since Klein left the court, 201 Barayuga & Kakesako, supra note 18. 202 Id. 203 Command, supra note 190. 204 Most notable of these is Hawai’i v. Hanapi, 89 Hawai’i 177, 970 P.2d 485 (1998), where a native Hawaiian (Appellant Hanapi) on the island of Molokai sought access to a neighbor’s land, ostensibly under “his constitutional right as a native Hawaiian tenant” to do so, to ensure that archaeological and culturally significant sites were not damaged when the neighbor began to develop the land. Appellant Hanapi was arrested for trespassing and found guilty in the district court. His defense to the trespassing charge was that he was exercising his rights as a


two significant opinions have been handed down that touch on native Hawaiian gathering rights as the court set forth in PASH. In the 2000 Ka Pa’akai decision, the court established guidelines for state and county land use agencies to use when trying to balance the competing interests of private property rights and native Hawaiian gathering rights as provided in PASH. In essence, Ka Pa’akai held that agencies such as the Land Use Commission must actively research the cultural, historical and natural resources of a subject property as they relate to native Hawaiian rights when determining what restrictions should be placed on development. 205 A detailed study by the agency responsible for protecting such rights, the court found, was essential in ensuring that development of the land was done in a culturally sensitive way.206 Most recently, in early 2004, the court again took up the matter of the State’s responsibility, through its various agencies, to protect traditional gathering rights. In In re Wai’ola o Moloka’i, a water use case from the island of Molokai, the court reiterated its commitment to the protection of those rights when it held that the Hawaii State Commission on Water Resource Management “did not adequately discharge its public trust duty to protect native Hawaiians’ traditional and customary gathering rights, as guaranteed by the [Hawaiian Homes Commission Act], the Hawai’i Constitution, and the [State Water] Code.”207 In dictum, the court observed that:

A substantial population of the native Hawaiians on Moloka’i engages in subsistence living by fishing, diving, hunting, and gathering land and marine flora and fauna to provide food for their families. Aside from the nutritional and affordable diet, subsistence

native Hawaiian to enter the property. Again writing for the court, Klein determined that as the person claiming the exercise of a native Hawaiian right, it was Appellant Hanapi’s obligation to demonstrate that that right is protected. Furthermore, Appellant Hanapi’s claim that he was on the property to “restore and heal the land” in accordance with Hawaiian custom or tradition failed because he did not lay an “adequate foundation in the record connecting the claimed right to a firmly rooted traditional or customary native Hawaiian practice.” Id. at 187, 970 P.2d at 495. 205 Ka Pa’akai, 94 Hawai’i at 39, 7 P.3d at 1076. 206 Id. 207 In re Wai’ola o Moloka’i, 103 Hawai’i at 439 83 P.3d at 702.


living is essential to (1) maintaining native Hawaiians’ religious and spiritual relationship to the land and nearshore environment and (2) perpetuating their commitment to “m�lama ka ‘�ina,” which mandates the protection of their natural ecosystem from desecration and deprivation of their natural freshwater resources.208

Writing for the court, Associate Justice Steven Levinson209 found that like the Land Use Commission in Ka Pa’akai, the Commission failed to discharge its duty to native Hawaiians when it granted a water use and well construction permit without sufficiently conditioning that use on the protection of natural resources traditionally and customarily gathered by native Hawaiians.210 Both Ka Pa’akai and In re Wai’ola o Moloka’i were authored at a time when there were no Hawaiians on the Hawaii Supreme Court.211 Nevertheless, both drew their reasoning and affirmation of native Hawaiian rights directly from PASH. It is difficult to predict the outcome of these two cases had PASH not been such a strong holding for traditional gathering rights. In any event, PASH certainly served as a vehicle through which native Hawaiian rights could be advanced in cases such as Ka Pa ‘akai and In re Wai’ola o Moloka’i. Barring unforeseen changes, the makeup of the court that decided In re Wai’ola o Moloka’i will remain the same for several years to come. If In re Wai’ola o Moloka’i is an indicator of the current court’s projected stance on traditional gathering rights, the PASH legacy will continue according to stare decisis.212

208 Id. 209 Levinson was appointed to the court by Governor John Waihee III at the same time as Klein. See King et al., supra note 136, at 635. 210 Id. 211 Ka Pa’akai was authored by former Associate Justice Mario Ramil. 212 See Lynda Arakawa, Top Jurists Represent Diverse Backgrounds, HONOLULU ADVERTISER, Nov. 23, 2003, available at http://thehonoluluadvertiser.com/article/2003/Nov/23/In.In09a.html (last visited May 1, 2004). In 2010, current Hawaii Supreme Court Chief Justice Ronald T.Y. Moon will reach the state mandatory retirement age of 70. Associate Justice Simeon R. Acoba, Jr. will complete his first ten-year term in 2010, as well.


VI. CONCLUSION

In consideration of the analysis provided, the notion that a balance can be struck in which the proper application of relevant law compliments a unique sensitivity to indigenous rights as interpreted by an indigenous person is a valid one. For the line of cases analyzed in this paper, the real answer to this hypothesis lies with Richardson and Klein. Understandably, this is a difficult question for jurists. As suggested by Klein, restraint, reason and impartiality are hallmarks of the judiciary and those that serve the courts. Public expectation that judicial decisions conform strictly to these characteristics places even more of a taboo on the topic of cultural perspective. Therefore, one must look to life experience as an indicator. Throughout time, Hawaiians, like many indigenous people, have looked to the past in facing the future. A common thread amongst many Hawaiians who maintain a strong connection with their culture is the belief that they are the reflection of generations past.213 In many ways, more so that Klein, Richardson is a living bridge between those two eras of Hawaiian consciousness. At an early age, Richardson was witness to the waning vestiges of a Hawaii that rapidly faded with the transition from monarchy to republic to territory. Richardson also grew up at a time of rapid modernization.214 When asked about whether his experiences as a youth helped to shape his understanding of Hawaiian issues he would face later in life, Richardson remarked, “Well, I took a little bit from each facet of my life, some fact, some stories from the older folks and the way I understood the [Hawaiian] songs and legends,” and then, with a smile, he added, “and of course there was a little dreaming and hoping on my own part.”215 Always the consummate scholar, the Richardson

213 See PUKUI, supra note 1, at 103. This notion is reflected in the proverb “Kalo kanu o ka aina.” Literally translated, this means “Taro planted on the land,” but in a figurative sense, legend records that the taro plant is the progenitor of the Hawaiian race, firmly planted in and nourished by the land. 214 In witness to the latter, the former Chief Justice often recalls with fondness an occasion in his youth when he and his brother trekked from their home in Kaimuki to the beach at Waikiki, carrying with them a heavy wooden surfboard, only to be chased off the sand by the Beach Boys of the Royal Hawaiian Hotel. Interview with William S. Richardson, former Chief Justice, Hawaii Supreme Court in Honolulu, Haw. (Apr. 26, 2004).


actively sought to increase his awareness of Hawaiian history, for which he had an ardent interest in.216 At nearly eighty five years old now, he remains spry and active in the legal community. He also maintains a strong interest in the Hawaiian culture, including that as perpetuated by many Hawaiian students at the William S. Richardson School of Law. Klein’s past is less accessible than Richardson’s. What is telling is that he was appointed by the state’s first Hawaiian governor at a time when Hawaiian issues were once again at the forefront of Hawaii’s modern politics and popular culture.217 Klein’s activities within the Hawaiian community as a lawyer following his departure from the court reflect his knowledge of Hawaiian issues and a willingness to apply that knowledge for the good of all Hawaii. Reviewing some of the dicta within Pele and PASH may also provide a glimpse at the motivations behind the disposition of those cases. This is especially evident in PASH, where Klein wrote “[a]lthough this premise [of fee ownership limited by cultural rights] clearly conflicts with ‘common understandings of property’ and could theoretically lead to disruption, the non-confrontational aspects of traditional Hawaiian culture should minimize potential disturbances.”218 Brief but insightful observations like this suggest an understanding by the author that is more than simply facial. True, one could come to such conclusions through any number of secondary sources on the topic, but treatises rarely reach a level of insightfulness 215 Id. 216 In an interview, Richardson noted that his secretary of 20 years was a granddaughter of the respected nineteenth century Hawaiian historian Samuel M. Kamakau. He described her as a “wealth of information concerning Hawaiian history.” Id. 217 In January of 1993, Hawaiians and non-Hawaiians alike observed the one hundredth anniversary of the overthrow of the Hawaiian monarchy. At that time, for a period of five days, Governor Waihee ordered that the United States flag not be flown at all state buildings, reasoning that not allowing the Hawaiian flag to be flown solo was an appropriate reminder of the U.S. involvement in the dethronement of Queen Liliuokalani. In his remarks addressing the opening ceremonies of the five day observation, Waihee stated that “The overthrow of the Hawaiian monarchy was a hostile act . . . an armed takeover of a legitimate government that was an established member of the community of nations.” See Mark LaRue, Hawaii Governor Bans U.S. Flag, LOS ANGELES TIMES, Jan. 17, 1993, available at http://www.hawaiian-nation.org/news (last visited Apr. 7, 2004). 218 PASH, 79 Hawai’i at 446, 903 P.2d at 1267.


and credibility in areas that more appropriately lend themselves to personal knowledge. Hesitation on the part of jurists to acknowledge anything other than case, statutory and constitutional law when reaching a decision is commonplace, but not absolute.219 The groups that an individual identifies with are generally reflective of that person’s values, motivations, passions and prejudices at the time of his or her association. No matter how blindly impartial justice is supposed to be, the human component of law inevitably goes beyond simple, detached logic. The human experience, whether race based or otherwise, pervades into all aspects of life, and justice is certainly no exception.

Kahikino Noa Dettweiler∗

219 Email from Robert G. Klein, former Associate Justice, Hawaii Supreme Court to Kahikino Noa Dettweiler, class of 2005, William S. Richardson School of Law (April 4, 2004, 05:38:21 HST) (on file with author). ∗ University of Hawaii, William S. Richardson School of Law, Class of 2005.

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