(c) Copyright June 1, 2010
Kenneth R. Conklin, Ph.D.
All rights reserved
SUMMARY
Many property deeds nationwide include easements to guarantee ownership and access for electric, cable, water, and sewer lines. But Hawaii is unique among the 50 states in having racial entitlements which strip government and private landowners of property rights commonly recognized elsewhere and give superior rights to one racial group.
Ethnic Hawaiians are given special rights by explicit racial language in some laws, and by the way some non-racially-explicit laws are interpreted on account of traditional and customary practices. The Hawaiian racial easements are broad and pervasive, affecting all property. They are subtle and insidious, to the extent that most newcomers are unaware of them and will not find them listed in any deed.
Owners have been surprised by legislative and judicial decisions that suddenly took away long-standing property rights. Companies that built very lengthy water ditches more than a century ago to irrigate sugar cane crops now find that a suddenly robust "public trust" doctrine gives the government the right to decide how much water will be taken away from them to enhance stream flow to protect endangered species and to give water to newly resurgent taro growers. People who bought property thinking they had a right to exclusive access suddenly found out through the PASH decision that trespassers have a right to pass through their land on the way to the shoreline, and also to harvest various materials from their land. While such decisions might normally be regarded as regulatory takings for which property owners could demand compensation through inverse condemnation, these decisions circumvent any such outcome by claiming to be based on newly rediscovered "traditional and customary" practices which have always been part of Hawaii's common law or written law even though long forgotten.
Although water rights, shoreline access, and gathering rights have a history that makes them rightfully race-neutral, and the language of the decisions could easily be written in a race-neutral manner, the way these issues have actually been handled makes them racial entitlements. They have become racial easements on all public and private property in Hawaii.
For no good reason at all, a Hawaiian language phrase in royal patent deeds from the time of the Mahele has been translated as "reserving the rights of the native tenants" when in fact the word "native" does not belong there.
For no good reason at all, taro (beloved by ethnic Hawaiians) is elevated above rice and sugar (which ethnic Hawaiians prefer not to cultivate) in having appurtenant water rights, even though rice and sugar are traditional and customary crops which have been cultivated for 150 years in Hawaii.
For no good reason at all, the regulations for the Northwest Hawaiian Islands are written to recognize all "Native Hawaiians" as having special rights to access for religious and cultural practice even though very few ethnic Hawaiians actually engage in such things and even though Japanese, Chinese, Filipino, and Caucasian bones are there which should guarantee those racial groups the same rights of access.
For no good reason at all, legislation was proposed to give ethnic Hawaiians a majority of seats on a new commission proposed to regulate bioprospecting on all public and private lands. The commission would be empowered to collect permit fees from landowners and a portion of the royalties due to landowners for the use of the samples collected from their lands, and to allocate a large portion of the fees and royalties to the exclusive use of ethnic Hawaiians.
For no good reason at all, a 40,000 acre forest reserve Waokele O Puna that was purchased by a nonprofit land conservation group was simply turned over to OHA. Likewise, Waimea Valley on Oahu, purchased with Honolulu County tax dollars and private funds, was simply turned over to OHA. There were recently bills in the legislature (which failed) regarding at least three valleys on O'ahu (Haiku, Kahana, and Makua) that proposed to create cultural reserve commissions with explicitly guaranteed majorities of ethnic Hawaiian commissioners, place them under the authority of OHA, and then automatically turn those valleys over to the Akaka tribe once the tribe has achieved federal recognition.
During 1500 years, hundreds of thousands of native Hawaiians lived, died, and were buried in unmarked shallow graves in all parts of all the Hawaiian islands, especially in sand dunes near shorelines but also in back yards and under primitive houses and in caves. Today's construction projects usually begin with archeological reports focused on the likelihood of disturbing ancient burials or cultural artifacts. Then, if a burial is inadvertently encountered, all work must stop for a lengthy period of time while further studies are done and a committee of native cultural practitioners is asked to make recommendations on whether to move the bones or leave them in place. Hawaiian activists nearly always demand that the burial be left in place, which they believe will stop any further construction or force the project to move elsewhere. Architectural plans are changed, and changed again. Eventually (perhaps years later) any landowner sufficiently persistent can hope for a final decision by an agency of the state government.
No private landowner in Hawaii is safe from extreme expense, delay, public character assassination, intimidation, and extortion related to any construction or development project on his land, whether it's a house or a shopping mall. No government executive, legislator, or judge can avoid similar problems regarding government lands or the laws related to Hawaiian burials. The fact that Hawaiian bones are being used as pawns in a cynical political power play is confirmed by two observations: very few ethnic Hawaiians today believe the spirit of a dead person continues to reside in the bones; and those activists who do assert such a belief during their high-profile protests never make any protest when Hawaiians who die are cremated and their bones are scattered, as in the high-profile public funerals of Israel Kamakawiwo'ole, Rell Sunn, and Don Ho.
The ceded lands comprise about 1.8 million acres, which is about 40% of all the land in Hawaii. About 95% of all the public land owned by the State of Hawaii is ceded lands. For 110 years ethnic Hawaiian sovereignty activists have claimed that the ceded lands were illegally ceded to the U.S., illegally ceded back to the illegal State of Hawaii, and rightfully belong to ethnic Hawaiians as their communal property. The Hawaiian activists point to the U.S. apology resolution of 1993 as proof that the U.S. has admitted the illegality of annexation and hence the illegality of ceding the lands.
This assertion of racial ownership of nearly all government land is a very serious matter. It became even more serious on January 31, 2008 when the Hawaii Supreme Court issued a unanimous ruling saying that the assertion of racial ownership has sufficiently strong probability of being true, on account of the apology resolution, that the State of Hawaii is prohibited from selling any parcel of ceded land unless ethnic Hawaiians collectively give permission or until the issue has been permanently resolved through a global settlement of land claims. Fortunately the U.S. Supreme Court unanimously overturned the state court's ruling and affirmed that the state owns the ceded lands in fee simple absolute with no federally imposed racial encumbrance from the apology resolution.
But upon remand, the State Supreme Court final dismissal in regard to plaintiff Jonathan Osorio included very troubling language establishing the Hawaiian religious belief in the Kumulipo creation legend as the reason why Osorio has an injury in fact if any parcel of land is sold, whereas someone with no native blood would not have such injury. Thus, Osorio's legal standing and claim to injury is based on race. It should be very worrisome to property owners and citizens of Hawaii to see the state Supreme Court imposing such a racial easement or encumbrance on their public lands. Indeed, Osorio's alleged special relationship with the land would apply equally to private land as to public land. Private landowners might be justified in fearing that Osorio or other ethnic Hawaiians might assert personal injury and demand an injunction if they try to sell their privately owned land. According to the Kumulipo creation legend, all ethnic Hawaiians have an inherent and indissoluble spiritual and genealogical relationship with all the lands of Hawaii, whether public or private.
Here are the titles of each section below. Some of the material from the summary is repeated in the appropriate section, but with much more detail.
ORDINARY EASEMENTS ON PROPERTY DEEDS
THE "PUBLIC TRUST" DOCTRINE FOR WATER AVOIDS BEING ATTACKED AS A REGULATORY TAKING BECAUSE IT IS TREATED AS MERELY A RECENT CODIFICATION OF TRADITIONAL AND CUSTOMARY USAGE IN HAWAII
THE PUBLIC TRUST DOCTRINE FOR WATER SLIDES QUIETLY INTO A RACIAL EASEMENT ON PUBLIC AND PRIVATE PROPERTY BECAUSE DIFFERENT TRADITIONAL AND CUSTOMARY USES ARE TREATED DIFFERENTLY: TARO TAKES PRIORITY OVER SUGAR AND RICE BECAUSE OF CULTURAL PRACTICES AND RELIGIOUS BELIEFS.
THE HAWAIIAN RELIGION ASSERTS A GENEALOGICAL FAMILY RELATIONSHIP AMONG THE GODS, THE HAWAIIAN ISLANDS, TARO, AND THE ETHNIC HAWAIIAN PEOPLE. THIS RELIGIOUS BELIEF IS THE CORE BASIS FOR DEMANDING HAWAIIAN SOVEREIGNTY AND FOR JUSTIFYING ALL THE RACIAL EASEMENTS ON PROPERTY RIGHTS DESCRIBED IN THIS ESSAY.
THE PASH DECISION IS REGARDED AS A RACIAL ENTITLEMENT TO TRESPASS.
BONES AND BURIALS
THE CEDED LANDS
PAPAHANAUMOKUAKEA -- THE NORTHWEST HAWAIIAN ISLANDS MARINE SANCTUARY AND NATIONAL MONUMENT
ATTEMPTED RACIAL POWER GRAB TO CONTROL AND REGULATE ALL PUBLIC AND PRIVATE LANDS THROUGH LEGISLATION ON BIOPROSPECTING, INCLUDING THE RIGHT TO COLLECT A PORTION OF ROYALTIES DUE TO A LANDOWNER, FOR THE EXCLUSIVE BENEFIT OF ETHNIC HAWAIIANS
SOME EXAMPLES OF RACE-BASED OWNERSHIP OF ENTIRE AREAS OF LAND
THE IMPOSSIBILITY OF A GLOBAL SETTLEMENT OF LAND CLAIMS IN HAWAII
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ORDINARY EASEMENTS ON PROPERTY DEEDS
Fee-simple owners of residential or business property who read their deeds are likely to find a list of easements. These are rights of use or access belonging to someone other than the property owner. Examples might be the right of the electric company and cable TV company to own and maintain wires and their associated below-ground conduits or above-ground poles; the right of the government or private water distributor and sewage processor to own and maintain their pipes; etc. Property owners who have a "flag lot" behind them are likely to have an easement in their deed for the driveway or road whereby the occupant of the flag lot can get access to that lot.
Other easements might not be listed in individual property deeds but nevertheless have the force of constitutional or statute law applying to all property owners. For example, in many Western states including Hawaii the federal or state government owns all rights to any minerals that might be found either above or below ground. If someone in Hawaii were lucky enough to discover gold, oil, or uranium under his land, the state government would own it.
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THE "PUBLIC TRUST" DOCTRINE FOR WATER AVOIDS BEING ATTACKED AS A REGULATORY TAKING BECAUSE IT IS TREATED AS MERELY A RECENT CODIFICATION OF TRADITIONAL AND CUSTOMARY USAGE IN HAWAII
During the past few decades the Hawaii Supreme Court has made rulings declaring the "public trust" doctrine for water. No matter whose land the rain falls upon or travels through, the rainwater and resulting stream water is a public trust. The government may allocate water to various users who can prove in a contested case hearing that they need specific amounts of water for good purposes which might include industrial, agricultural, or private consumption. Companies which previously built pipelines running dozens of miles to send windward water to the leeward side of the mountains might still own those pipelines, but they must now apply to the government for permission to send a specific number of gallons per day through them. Government bureaucrats must also take into account the need to send a scientifically determined amount of water through natural streams in order to allow creatures to live where they have always lived, and to allow taro farmers to divert an adequate supply of water for their crops.
The "public trust" doctrine for water in Hawaii might be regarded as a "regulatory taking" in the sense that property owners who previously thought they owned the rainwater falling on their land became unexpectedly subjected to legislative and judicial actions which deprived them of water they had customarily regarded as their own. More recently the Office of Hawaiian Affairs has asserted that it has standing on behalf of all ethnic Hawaiians to demand money and regulatory oversight not only for stream and artesian water but even for water from wells dug by private landowners. The theory is that even artesian or well water is part of the public trust because it originated from, or commingled with, rain. The Office of Hawaiian Affairs appears to have declared a racial easement on all drinking water in Hawaii which had the effect of putting a bottled water company on Kaua'i out of business. See Andrew Walden's article "Ue ka lani, ola ka OHA? -- OHA Trustees Claim Ownership of Underground Water" Hawaii Reporter, March 14, 2007 at
http://208.106.154.79/story.aspx?e5869ad7-aa86-49a6-8345-f04c1cc74d7a
Perhaps landowners could make a case for inverse condemnation and financial compensation from the government because the relatively recent adoption of the public trust doctrine for water could be attacked in a lawsuit claiming it is a regulatory taking.
However, the issue of regulatory taking is nicely circumvented by the assertion that the public trust doctrine for water was a traditional and customary practice in Hawaii for more than a thousand years before the arrival of the white man. The ali'i 'aimoku who controlled the land by right of conquest appointed a konohiki to manage the land in each ahupua'a (land division). The konohiki awarded parcels of land to preferred individuals, on condition that they must give a portion of their harvest to the ali'i and konohiki, and must also give their own labor to the konohiki for numerous days every month for community projects which included the digging and maintenance of 'auwai (water irrigation ditches) to supply water to all the taro patches throughout the ahupua'a.
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THE PUBLIC TRUST DOCTRINE FOR WATER SLIDES QUIETLY INTO A RACIAL EASEMENT ON PUBLIC AND PRIVATE PROPERTY BECAUSE DIFFERENT TRADITIONAL AND CUSTOMARY USES ARE TREATED DIFFERENTLY: TARO TAKES PRIORITY OVER SUGAR AND RICE BECAUSE OF CULTURAL PRACTICES AND RELIGIOUS BELIEFS.
Hawaii law does not treat all customary uses as equal. Windward taro farming seems to take priority over leeward sugar cane farming, even though diversion of windward water to leeward sugar cane fields was customary for about 150 years. Windward taro farming also takes priority over windward rice farming, even though Chinese and Japanese immigrants to Hawaii created large and numerous rice paddies as long as 150 years ago -- they continued rice farming into the mid-20th Century, even using water buffalos in Kane'ohe within the memory of some still-living residents.
Lands where taro was grown once upon a time have "appurtenant" water rights to demand that water flow be restored to those lands in case today's owner chooses to resume growing taro. Such appurtenant water rights do not seem to apply to any attempt to resume the growing of sugar or rice. Ethnic Hawaiians do not seem to have any desire to grow sugar or rice; and very few people who lack Hawaiian native blood have any interest in growing taro.
The prioritizing of taro above sugar and rice at first seems not to be racial, but merely the recognition that a thousand years of tradition takes priority over a hundred years. But as with any civil rights complaint, a policy which appears non-discriminatory on its face may be discriminatory in its actual effects. And in this case it most definitely has a racially discriminatory purpose.
The prioritizing of taro above sugar and rice is typical of the numerous racial easements on public and private property rights to be described later in this essay, in the following ways. At first it seems benevolent, mild, and unthreatening; until its full ramifications become visible. It is very broad and general, applying throughout all parts of all the islands in the entire archipelago. It is insidious, sitting in the background, unnoticed until some particular event or controversy raises it to awareness.
The Hawaiian racial preference for taro is not merely a matter of personal taste or cultural upbringing. The Hawaiian creation legend places taro in a very special relationship among the gods, the lands, and the ethnic Hawaiians. That creation legend is the core of the ancient Hawaiian religion now being revived not merely for cultural pride but also as a political weapon. It has become an "establishment of religion" in government laws regarding land use, violating the first clause of the First Amendment to the U.S. Constitution.
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THE HAWAIIAN RELIGION ASSERTS A GENEALOGICAL FAMILY RELATIONSHIP AMONG THE GODS, THE HAWAIIAN ISLANDS, TARO, AND THE ETHNIC HAWAIIAN PEOPLE. THIS RELIGIOUS BELIEF IS THE CORE BASIS FOR DEMANDING HAWAIIAN SOVEREIGNTY AND FOR JUSTIFYING ALL THE RACIAL EASEMENTS ON PROPERTY RIGHTS DESCRIBED IN THIS ESSAY.
Ethnic Hawaiians who are either political activists or cultural activists all hold a religious belief that there is a sacred family relationship among the gods, the land, and the ethnic Hawaiians. This religious belief is taught in the "Hawaiian focus" public charter schools, as well as the Hawaiian studies component of the curriculum in the regular public schools. According to the creation legend known as Kumulipo, the gods mated and gave live birth to the Hawaiian islands as living beings. Later the gods mated and gave birth to a stillborn baby from whose buried body the taro plant sprang forth. Later the gods mated and gave birth to Haloa, a perfect child who was the primordial ancestor of all ethnic Hawaiians. Any person with at least one drop of Hawaiian native blood is therefore a child of the gods and a younger brother or sister of the land and the taro.
Since the gods gave birth to taro before they gave birth to humans, therefore taro is mankind's elder brother and holds a superior place to humans in the family hierarchy. During the first decade of the 21st Century there was major conflict between scientists and ethnic Hawaiian political activists over the issue whether genetic modification of taro should be allowed, and whether specific strains of taro should be patented. The activists screamed that tampering with the taro gene would be the same as genocide against ethnic Hawaiians, and that patenting a type of taro would be like claiming ownership of one's own grandmother. Today most ethnic Hawaiians are Christians, and very few believe the ancient religion to the extent of practicing it actively on a daily basis. Nevertheless the sovereignty activists constantly assert the ancient religion in hopes of gaining public sympathy and political power.
That sacred family relationship among the gods, the Hawaiian islands, and the ethnic Hawaiians; and the accompanying rights and obligations of receiving and giving care; pertain to ethnic Hawaiians exclusively. Anybody who lacks a drop of Hawaiian native blood can never be a child of the gods or a brother to these islands and is always an outsider -- a mere guest in the Hawaiian ancestral homeland. Therefore ethnic Hawaiians are entitled to racial supremacy in Hawaii, while everyone else is relegated to second-class citizenship. The family relationship among the gods, the land, and the ethnic Hawaiians means that all decisions about how the land is used, who has a right to live here, and what the laws should be, belong to ethnic Hawaiians. For further information about the Kumulipo religious doctrine and its impact on the politics of Hawaiian sovereignty, see the webpage "Religion and zealotry in the Hawaiian sovereignty movement: How religious myths are used to support political claims for racial supremacy in Hawaii" at
https://www.angelfire.com/hi2/hawaiiansovereignty/religion.html
Any ethnic Hawaiian who holds power as a state or county official is likely to believe in or at least be sympathetic to that religious theory. Their decisions will be shaped by it, especially when their friends and family and ethnic-identity activists remind them of it. That's why ethnic Hawaiians have a wide-ranging conflict of interest and should not be elected or appointed to high offices in state or county government. See
https://www.angelfire.com/big09a/AkakaHawnConflictRecuse.html
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THE PASH DECISION IS REGARDED AS A RACIAL ENTITLEMENT TO TRESPASS.
In discussing the public trust doctrine for water it was noted that the claim of traditional and customary practice has been used successfully to circumvent the issue of regulatory taking. Before the coming of the white man, high-ranking chiefs and their land agents treated water as communal property and allocated water to whatever purposes seemed to serve the general good of the community or to whichever individual tenants seemed productive and politically favored. The fact that a practice was traditional and customary seems to mean that it can be revived and newly asserted as government policy without raising issues of regulatory taking or inverse condemnation. Property owners or business tenants who were operating for many decades might be surprised to learn that the new policy will strip them of resources they have come to rely upon; but they have no right to demand compensation because they had a duty to know the "common law" and thus cannot complain when long-ignored communal rights are newly reasserted. As is often said, "Ignorance of the law is no excuse."
The same sort of theory seems operative in the PASH decision. For about 150 years it was assumed that a property owner or tenant in Hawaii has the same right as a property owner anywhere else in the U.S. to exclude from his property anyone he has not invited or who is unwelcome. Trespassing is a crime for which someone can be prosecuted and fined or sent to prison; while a trespasser who takes animals, plants, or objects can be charged with theft and is also liable for restitution and damages in a civil suit.
But in Hawaii things are different. In 1995 the Hawaii Supreme Court issued a ruling in the PASH case (Public Access Shoreline Hawaii) which suddenly recognized that the bundle of rights conveyed by purchase of a property deed does not include the right to exclude ethnic Hawaiians if the property is undeveloped or partially developed and if the Hawaiians are crossing the property on the way to the shoreline or are gathering from the property various materials which were traditionally and customarily used for various cultural purposes.
Let's take a brief look at the history of private real estate in Hawaii to understand the basis for the PASH decision.
For more than a thousand years before the white man came to Hawaii, the natives were free to roam throughout the ahupua'a where they lived in order to gather thatch needed for houses, fiber needed for kapa (bark cloth), wood needed for fires, fruit for food, flowers for lei, etc. Upland residents near streams grew taro and hunted pigs and birds, lowland residents near the shore went fishing. Some people specialized and traded with other specialists. Some families preferred to be mostly self-sufficient, with members roaming throughout their ahupua'a to gather, fish, and hunt. All commoners owed a portion of their harvest to their chief and his land agent, plus a specific number of days of labor per month for communal projects. While most people stayed within their ahupua'a, the Hawaiian style of feudalism was not like European serfdom where people were bound to their land and their lord -- Hawaiians were free to move to a different ahupua'a, and some traveled frequently to trade.
King Kauikeaouli Kamehameha III was the owner of all the lands and waters of Hawaii in fee-simple absolute, by right of conquest inherited from his father Kamehameha The Great. Because of advice from foreign advisers and from his own high chiefs, and to encourage investment, the King decided in the mid-1830s to create private property. He set aside land in three categories: crown lands for himself to own; government lands for schools, roads, etc.; and private lands which he gave in large pieces to his high chiefs and also to a few high-ranking foreign advisers. The King and most of the chiefs then gave away or sold some of their lands to lower-ranking chiefs or to commoner natives or to Caucasians who were either native-born or naturalized as Kingdom subjects. Later on the laws were changed to allow foreigners to own land, whereupon many chiefs and commoners sold some or all of their land. A general summary of the Mahele process shows that (royal) patent deeds continued to be issued in decreasing numbers not only throughout the Kingdom's history but also throughout the Republic's and Territory's history and even into current times. See
https://www.waihona.com/rpArticles.html
Early during the Mahele (dividing up of the land), and continuing for several decades, the King also allowed individual commoners to claim small parcels of land where they had a house and had been farming. Those "kuleana" lands were usually very valuable although relatively small in size, and were usually entirely surrounded by the land of the chief for whom the commoner had been working as a tenant farmer. The King wanted to be sure that the commoners could continue to hunt and gather in their traditional way, even though their small plots of land would be completely surrounded by the land of a chief. Thus it was necessary to include in all the chiefs' property deeds a clause that would give everyone living on the land the right to trespass into the chiefs' lands in order to pass through and in order to continue gathering the necessities of life as they had always done. So when the King issued royal patent deeds for the land he gave to his chiefs, he included in those deeds the phrase "Ua koe ke kuleana o na kanaka" for the purpose of allowing commoners to pass through, or gather from, chiefly lands.
The phrase "Ua koe ke kuleana o na kanaka" simply means "The rights of the people are reserved." The word "kuleana" refers to the small parcel of land belonging to the tenant farmer, even though it is entirely surrounded by the land of a chief. Thus the tenant has an easement -- a right of access to and from his land, through the land of someone else. The word "kuleana" also refers to "rights and responsibilities" in general. Thus the tenant has the right to gather the necessities he has always gathered from the chief's land.
But there is nothing racial in the phrase "Ua koe ke kuleana o na kanaka." Unfortunately that phrase is almost always translated as "recerving the rights of the native tenants" with insertion of the word "native" when it does not belong there. "Kanaka" is simply "person." Sometimes it can be used to mean "servant" as in the famous name Kanaka'ole which means (someone who has) no servant. The phrase "na kanaka" uses the pluralizer "na" and thus means "the people." The phrase does NOT mean "reserving the rights of the NATIVE tenants." It simply means "reserving the rights of the people" or perhaps "reserving the rights of the tenants." In other places the word "hoa'aina" is used, which literally means "friend of the land" and can be translated as "tenant" or "steward of the land" -- it is also race-neutral.
One of the wonderful things about Hawaii is the fact that all beaches are public, and the public is guaranteed to have an access pathway to any beach within a reasonable distance from it. Another wonderful thing about Hawaii is the large number and size of beautiful places for hiking, hunting, and gathering flowers and ferns. If the PASH decision ultimately survives legal challenge and guarantees that people have a limited right to trespass through private property to get to the shoreline, or to gather flowers and ferns for cultural purposes, that might be a good thing. Hawaii can have property law that is unique among the 50 states.
But it is both historically false and morally evil to claim that shoreline access and gathering rights belong to any particular racial group. The 1995 PASH decision is vague on the issue of race. It seems to imply that shoreline access and gathering rights are racially exclusive entitlements. The Hawaii Supreme Court is irrationally fond of racial entitlements, as will be seen below in the discussion of the ceded lands. Perhaps someday this issue will be settled through further litigation. For a heavily footnoted analysis of the PASH decision by attorney Paul M. Sullivan, published in the University of Hawaii Law Review in 1998, see
https://www.angelfire.com/hi2/hawaiiansovereignty/sullivanpash.html
Article 12, Section 7 of the state constitution, in its entirety, says: "Section 7. The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights."
The only justification for claiming that Section 7 confers rights upon Native Hawaiians that are not also conferred upon residents of all races is this phrase: "all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778"
I believe that phrase could and should be interpreted to be an identification of what the rights are rather than an identification of which people today have those rights. The language of section 7 identifies the rights as those which were customarily and traditionally exercised ... and which were possessed by ahupua'a tenants who were descended from natives who inhabited the islands prior to 1778.
People today can continue to practice the traditional and customary shoreline access and gathering rights pertaining to Hawaiian culture. In my opinion those traditional and customary practices can be engaged in by people of all races, whether or not they have Hawaiian native blood. We all have a right to shoreline access, and to gather flowers and ferns to make leis, for example.
If a court in Hawaii cannot be persuaded to interpret Section 7 in the way I have proposed, then the only remedy will be to file a lawsuit in federal court to force the State of Hawaii to interpret it that way in view of the Equal Protection clause of the 14th Amendment of the U.S. Constitution. Surely the time will come when a Hawaii citizen with no native ancestry will seek to exercise the Section 7 right to trespass through private property to get shoreline access, or the Section 7 right to gather flowers and ferns from privately owned undeveloped or partially developed property; and the would-be trespasser will be denied that right on account of lacking a drop of native blood. That person would then have standing to file such a 14th Amendment lawsuit.
The PASH decision, in conformity with Article 7 of the State Constitution, does clearly say that the State has the right to regulate shoreline access and gathering rights. Not long after the PASH decision Ed Case, then a representative in the State legislature, introduced legislation to establish such regulations, which would have required cultural practitioners to register with a government agency and prove that they are descended from an ancestor who exercised specific rights in a specific ahupua'a. But there was a huge outcry from ethnic Hawaiian political activists who forced the legislation to be withdrawn.
The right of the state to regulate access and gathering rights was reaffirmed by the Hawaii Supreme Court in 2012 in the Pratt decision. The Court ruled that an ethnic Hawaiian cultural practitioner does have PASH rights but those rights are not absolute and the state has a right to regulate them by requiring a permit for entry to an area that is otherwise closed (Kalalau Valley in the Na Pali Coast State Park on Kaua'i), and entry without such a permit is a trespass that can be prosecuted and punished. However the Pratt decision does not clarify exactly what rights are involved or exactly how the regulations must be written or enforced. The Pratt decision merely says the State has a right to regulate how the PASH rights are exercised. Regulating such activities is nothing new. In ancient times the konohiki told people what, when, and where they could exercise those rights. Today the State government is the konohiki.
Full text of the Pratt decision is available at
State of Hawaii v. Pratt, No. SCWC-27897 (May 11, 2012)
http://www.scribd.com/doc/93361823/State-of-Hawaii-v-Pratt-No-SCWC-27897-May-11-2012
Attorney Robert H. Thomas wrote a short article analyzing the decision at
http://www.hawaiireporter.com/?p=50213
Extensive references and case law citations related to Section 7 of the State constitution can be found on the legislature's webpage devoted to the Constitution, at
http://www.capitol.hawaii.gov/hrscurrent/Vol01_Ch0001-0042F/05-Const/CONST_0012-0007.htm
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BONES AND BURIALS
The Native American Graves Protection and Repatriation Act (NAGPRA) is a nationwide law passed in 1990 written by ethnic Hawaiian advisers to Hawaii Senator Dan Inouye in response to a catastrophic unearthing of hundreds of ancient burials during a shoreline hotel construction project in Hawaii. Although the law applies nationwide, it has its greatest real estate impact in Hawaii because of the very large number of unmarked shallow native burials throughout all areas of these relatively tiny islands during a period of 1500 years. Hawaii state laws are generally more stringent than NAGPRA. Hawaii has a burial council on each island responsible for advising whether bones inadvertently discovered during construction projects should be moved or remain in place. The Hawaii Department of Land and Natural Resources has a State Historic Preservation Division which spends most of its time taking advice from the burial councils and making legally binding decisions on what to do about particular native Hawaiian burials.
Ethnic Hawaiian activists often try to block development and grab political power by insisting that a decision to leave bones in place means that nothing should be built on top of them.
No private landowner in Hawaii is safe from extreme expense, delay, public character assassination, and extortion related to any construction or development project on his land, whether it's a house or a shopping mall. No government executive, legislator, or judge can avoid similar problems when making decisions about government lands or the laws related to Hawaiian burials.
A highway bypass road in the Kona area has been stalled for about 20 years, and no construction has begun, while more than seven million dollars have been spent on designs and redesigns to avoid disturbing burials. The multibillion dollar O'ahu rail project will undoubtedly encounter similar problems when construction reaches the Kaka'ako area. Walmart, Ward Villages, a house being built in the Nau'e Ha'ena area of Kaua'i, and even the ethnic Hawaiian dominated Kawaiaha'o Church, have each been the focus of major controversy and delay in recent years because of burials.
Burial controversies in Hawaii are all racial, because the only burials affected by NAGPRA are ethnic Hawaiian. The NAGPRA law gives automatic legal standing and authority on burials to all federally recognized Indian tribes, and in addition it specifically mentions the State of Hawaii Office of Hawaiian Affairs and the shadowy organization whose name is Hui Malama I Na Kupuna o Hawai'i Nei. Eddie Ayau, head of Hui Malama, was a staffer with Senator Inouye when the NAGPRA law was written. Hui Malama has received large amounts of federal funding, has not filed required paperwork to account for how the money was spent, and will probably never be held accountable so long as Senator Inouye remains in office (or if the Akaka bill passes).
A webpage was started in 2003 to keep track of the controversy over Bishop Museum possession of 180-year-old artifacts from Forbes Cave, a burial cave in the cliffs overlooking Kawaihae, Hawaii Island. Research was done regarding the NAGPRA law in general, and various related controversies including Kennewick Man, the Ka'ai stolen from Bishop Museum, the spear-rest repatriated from Providence Museum to Hawaii, etc. Among the numerous subpages are compilations of news reports and commentaries about burial issues in Hawaii and related issues worldwide, for each year from 2005 through now. See
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii.html
A 1300-word commentary by Ken Conklin entitled "Hawaiian Bones -- History, Respect, and Rights" was published in West Hawaii Today newspaper in August 2007. See
https://www.angelfire.com/planet/big60/HawaiianBonesWHT080407.html
A detailed, extended version of that article with numerous references was put on a webpage entitled "Hawaiian Bones -- The 3 Rs -- Rites For the Dead, Rights Of the Living, and Respect for All." See
https://www.angelfire.com/planet/big60/HawaiianBonesDetailed.html
The fact that Hawaiian bones are being used as pawns in a cynical political power play is confirmed by two observations: very few ethnic Hawaiians today believe the spirit of a dead person continues to reside in the bones; and those activists who do assert such a belief during their high-profile protests never make any protest when Hawaiians who die are cremated and their bones are scattered, as in the high-profile public funerals of Israel Kamakawiwo'ole, Rell Sunn, and Don Ho.
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THE CEDED LANDS
The ceded lands comprise about 1.8 million acres, which is about 40% of all the land in Hawaii. About 95% of all the public land owned by the State of Hawaii is ceded lands. For 110 years ethnic Hawaiian sovereignty activists have claimed that the ceded lands were illegally ceded to the U.S., illegally ceded back to the illegal State of Hawaii, and rightfully belong to ethnic Hawaiians as their communal property. The Hawaiian activists point to the U.S. apology resolution of 1993 as proof that the U.S. has admitted the illegality of annexation and hence the illegality of ceding the lands. This assertion of racial ownership of nearly all government land is a very serious matter. It became even more serious on January 31, 2008 when the Hawaii Supreme Court issued a unanimous ruling saying that the assertion of racial ownership has sufficiently strong probability of being true, on account of the apology resolution, that the State of Hawaii is prohibited from selling any parcel of ceded land unless ethnic Hawaiians collectively give permission or until the issue has been permanently resolved through a global settlement of land claims. Fortunately the U.S. Supreme Court unanimously overturned the state court's ruling and affirmed that the state owns the ceded lands in fee simple absolute with no federally imposed racial encumbrance from the apology resolution. But upon remand, the State Supreme Court final dismissal in regard to plaintiff Jonathan Osorio included very troubling language establishing the Hawaiian religious belief in the creation legend as the reason why Osorio has an injury in fact if any parcel of land is sold, whereas someone with no native blood would not have such injury.
Let's review what the ceded lands are, and the claims by ethnic Hawaiians asserting communal racial ownership of them.
As previously discussed, in the mid-1830s King Kauikeaouli Kamehameha III voluntarily gave up his sole ownership of all the lands of Hawaii to create the Mahele -- a process whereby the land was divided among fee-simple owners. Some of the lands were kept by the King for himself (the crown lands), some were given to the government for public purposes such as schools, roads, and harbors (the government lands). Large tracts of land were given to various high chiefs and high-ranking foreign advisers, and provisions were made for commoners to get fee-simple ownership to small parcels of land where they were living and farming inside the land already given to a chief.
By 1865 King Lot Kamehameha V had mortgaged his crown lands to pay his personal gambling debts, and was in danger of losing the crown lands through foreclosure. The Legislature passed a law issuing government bonds to pay off the King's personal mortgage, in return for the King's turning over ownership to the government and promising never to sell or mortgage them again. Income from the crown lands remained earmarked to support the office of head of government. After the revolution of 1893 that overthrew the monarchy, the Provisional Government merged the crown lands into the government lands because there was no longer a monarch whose lavish lifestyle needed separate support. The merged crown and government lands were now called the public lands, and were held by the government on behalf of all Hawaii's people (regardless of race).
In the annexation of 1898, the Republic of Hawaii ceded the public lands to the United States in return for two things: the U.S. paid off all the accumulated government debt from the Kingdom and Republic; and the U.S. agreed not to take absolute ownership of the ceded lands but rather to hold the ceded lands in trust for the people of Hawaii with all revenues from them being used "for education and other public purposes." When Hawaii became a state in 1959, ownership of the ceded lands was returned to Hawaii, except for military lands, national parks, and federal buildings; on condition that the revenue from the ceded lands must be spent for any one or more of five public purposes. Thus the public lands of the Kingdom of Hawaii eventually became the public lands of the State of Hawaii, whose revenue now serves the same purpose as during the Kingdom; i.e., to benefit all the people of Hawaii regardless of race.
One of the five purposes for ceded land revenues specified in the Statehood Act of 1959 was "the betterment of native Hawaiians as defined in the Hawaiian Homes Commission Act of 1921" (i.e., at least 50% native blood quantum). In 1978 the State of Hawaii held a Constitutional Convention which proposed numerous amendments to the state Constitution. One of those amendments was the creation of the Office of Hawaiian Affairs, whose main purpose is the "betterment of Native Hawaiians" (regardless of blood quantum).
The Legislature then decided to provide funding for OHA not by annual appropriation of tax dollars from the general fund like all other departments, but by allocating 20% of ceded land revenue to OHA. Apparently the members of the Constitutional Convention decided that "betterment of native Hawaiians" was one of five purposes for ceded land revenues specified in the Admission Act, and therefore 1/5 of ceded land revenues should be given to OHA.
But of course there was a major problem with that. The Admissions Act had required 50% native blood quantum in defining "native Hawaiian" whereas OHA was created to benefit all "Native Hawaiians" with even just one drop of native blood. Years later a lawsuit (Day vs. Apoliona) was filed by native Hawaiians with 50% blood quantum claiming that OHA was improperly spending money on low-quantum ethnic Hawaiians that rightfully belonged only to the 50%ers; but the court ruled that everything was OK because spending money on the large group of one-droppers clearly includes spending money on the 50%ers who are a subgroup among them. For details about the Day vs. Apoliona lawsuit, see
https://www.angelfire.com/planet/big60/HighQuantumvOHA.html
Perhaps the most important difficulty with allocating ceded land revenues to OHA is that it violates the 14th Amendment of the U.S. Constitution to set aside government money for a racial group to the exclusion of other people. In 1999, while the Hawaii Supreme Court had already been sitting for more than two years on a ceded lands lawsuit by OHA against the state, a group of civil rights activists filed a motion to intervene on the grounds that the state Attorney General had failed to put forward that argument. The motion to intervene was denied, but might have influenced the Court's eventual decision to dismiss the case (described in the paragraph below). The motion to intervene, memo in support, and related documents can be seen at
https://www.angelfire.com/hi2/hawaiiansovereignty/burgessamicusbrief.html
Two more major problems with allocating 20% of ceded land revenue to OHA are: (1) There was no inventory of the ceded lands and therefore no way of knowing how much money to give OHA; and (2) It was unclear whether OHA should get 20% of gross revenue before expenses, or 20% of net income after expenses (which would turn out to be less than nothing). A lawsuit that had been filed by OHA demanding more money for its share of ceded land revenue was finally decided by the Hawaii Supreme Court on September 11, 2001 (the infamous 9-11 date) after that court held the case under consideration for five years! The Court ruled against OHA on the grounds that there was no way for any court to determine exactly how much money OHA is owed. See
https://www.angelfire.com/hi2/hawaiiansovereignty/cededlandsdecision091201.html
The creation of OHA as an agency of the state government, and the setting aside of ceded land revenue for OHA, made it appear that OHA had a racial entitlement to revenue generated from government lands. Thus there was a racial encumbrance, or easement, on Hawaii's public lands themselves.
If OHA has a right to revenues from the ceded lands, then OHA has a right to be consulted before the state sells any ceded lands. The sale of any parcel of ceded lands would permanently reduce OHA's future income. Therefore, a case could be made that the state would need approval from OHA before it could sell any parcel of ceded lands.
That was the basis of a lawsuit filed against the State of Hawaii by OHA and a group of individual ethnic Hawaiians, seeking to prohibit the state from selling a particular parcel of ceded lands to a developer who wanted to build low-income housing (which would actually benefit ethnic Hawaiians!). Among other things, OHA and the individual Hawaiians claimed that the U.S. apology resolution put the U.S. on record as taking the blame for the revolution of 1893 that overthrew the Hawaiian monarchy. Therefore the transfer of the ceded lands at the time of annexation in 1898 and subsequent transfer to the new State of Hawaii in 1959 were not valid.
On December 5, 2002 Hawaii circuit court Judge Sabrina McKenna issued a decision of 149 pages dismissing OHA's lawsuit against the State of Hawaii, ruling that the State has the right to sell ceded lands. But OHA appealed. On January 31, 2008 the Supreme Court of the State of Hawaii reversed Judge McKenna's decision, by a 5-0 vote, and agreed with OHA in a 93-page ruling that the state does not have the right to sell any ceded lands.
http://www.state.hi.us/jud/opinions/sct/2008/25570.pdf
The first reason given by the Hawaii Supreme Court was that "the Apology Resolution and related state legislation, give rise to the State's fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians have been resolved."
Let's put that a different way. Ethnic Hawaiians have a collective claim to ownership of the ceded lands. The U.S. apology resolution of 1993 puts the U.S. on record as acknowledging the legitimacy of that claim. Therefore the State of Hawaii is prohibited from selling any parcel of ceded lands without the permission of ethnic Hawaiians as a collective group, until such time as a final settlement of all such claims has been reached.
Fortunately Hawaii's Governor Lingle had the courage to appeal to the U.S. Supreme Court. She was supported by amicus briefs from the attorneys general of 29 states asking the Court to agree to hear the case. Several of them later filed longer amicus briefs on the substantive issues, to defend the fact that when the federal government granted lands to the states upon admission of each state to the union, those grants of land were final and irrevocable and could not later be encumbered by limitations or resolutions passed by Congress.
On March 31, 2009 the U.S. Supreme Court unanimously overruled the unanimous decision of the Hawaii Supreme Court, and affirmed that the State of Hawaii owns the ceded lands in fee simple absolute, and the apology resolution does not in any way interfere with that.
http://www.supremecourtus.gov/opinions/08pdf/07-1372.pdf
The U.S. Supreme Court remanded the case back to the Hawaii Supreme Court for further proceedings to determine whether state law alone, without regard to federal law, might impose any restriction on whether the state can sell ceded lands. In the meantime the state legislature passed a law saying that the Governor cannot sell any parcel of ceded lands without approval from 2/3 of both chambers of the legislature. The Hawaii Supreme Court then accepted a settlement of the case agreed to by the state Attorney General and OHA and all but one of the individual ethnic Hawaiians whereby the case was dismissed without prejudice (meaning it can be reopened by either side in the future in case anything goes wrong).
The one individual ethnic Hawaiian who refused to accept the settlement was Professor Jonathan Osorio, formerly chair of the Center for Hawaiian Studies at the University of Hawaii, who is a sovereignty independence activist. The Hawaii Supreme Court issued a very troubling ruling dismissing Osorio . The Court said Osorio has standing as a plaintiff but that the case is not yet ripe for further court action. The 33-page ruling dismissing Osorio can be seen at
http://www.state.hi.us/jud/opinions/sct/2009/25570.pdf
The most troubling part of the Court's ruling on Osorio is its conclusion that Osorio has shown the sale of ceded lands would be an injury in fact to him, on account of his special cultural and religious connection to the land which others do not have who lack Hawaiian native blood. In other words, the Hawaii Supreme Court is accepting the Kumulipo creation legend as a religious belief available to ethnic Hawaiians but not available to others. Osorio would be injured by a sale of a parcel of ceded lands -- even a parcel he has never visited or even heard about -- on account of the family relationship among the gods, the land, and the ethnic Hawaiians; whereas someone with no Hawaiian blood would not suffer any injury from such a sale because the person with no native blood does not in fact have any such inherent connection with the land. Thus, Osorio's legal standing is based on race.
It certainly appears that in making such a ruling the Hawaii Supreme Court has committed an "establishment of religion" in violation of the First Amendment to the U.S. Constitution. In any case it should be very worrisome to property owners and citizens of Hawaii to see the state Supreme Court imposing such a racial easement or encumbrance on their public lands. Indeed, Osorio's alleged special relationship with the land would apply equally to private land as to public land, so private landowners might be justified in fearing that Osorio might assert personal injury and demand an injunction if they try to sell their privately owned land.
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PAPAHANAUMOKUAKEA -- THE NORTHWEST HAWAIIAN ISLANDS MARINE SANCTUARY AND NATIONAL MONUMENT
Many people do not realize that the Hawaiian archipelago contains about 130 islands stretching a length of about 1400 miles and width of about 100 miles from Hawaii Island in the east to Kure atoll in the west. A description by University of Hawaii scientists is at
http://www.soest.hawaii.edu/GG/HCV/haw_volc.html
As early as the 1990s there was a Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve administered by NOAA (National Oceanic and Atmospheric Administration) for the 800 miles west of Ni'ihau known as the Northwest Hawaiian Islands (NWHI). For several years a political and cultural effort was made to upgrade NWHI to the status of a marine sanctuary. In Hawaii the propaganda machine produced newspaper articles, TV shows, and slick brochures handed out at public meetings that were allegedly for the purpose of taking public testimony but actually for the purpose of arousing public enthusiasm. The meetings were organized and run by "facilitators" who usually work for the Office of Hawaiian Affairs, Kamehameha Schools, and other ethnic Hawaiian institutions. A National Geographic documentary featuring Jean-Michel Cousteau was broadcast nationally on PBS, showcasing the beautiful reef, fish, birds, and scenery. The premiere Hawaiian voyaging canoe Hokule'a made a highly publicized tour through the NWHI. Nobody has lived there in recent times except for scientists and government caretakers, who were mostly on Midway Island. But numerous fishing boats made millions of dollars in profit from the NWHI.
When the sanctuary was declared by President Bush in 2006, the fishing businesses were bought out or given licenses for a limited number of years to phase out their operations. Finally, at the end of his 8 years in office, President Bush declared the NWHI a national monument in 2008, giving it the highest level of protection and conservation. Stringent regulations were adopted to limit the number and purpose of visitors to the area, including rules for the cleaning of boat bottoms before they can visit.
Consultations with ethnic Hawaiian elders, language experts, cultural practitioners and political activists resulted in the NWHI national monument being given the name Papahanaumokuakea. The primary purpose of using that name is to identify the NWHI with the Kumulipo creation legend that is the core of Hawaiian religion, as discussed earlier. Sky father Wakea mated with earth mother Papa, who then gave birth to the Hawaiian islands as living beings. Thus the word Papa as part of the name for the NWHI. "Hanau" refers to giving birth. "Moku" refers to an island or a series of islands. "Akea" means wide, broad, sweeping. Thus Papa-hanau-moku-akea is the name of the goddess Papa who gave birth to the broad expanse of all the Hawaiian islands.
The name is not merely a tip of the hat to honor an ancient legend -- it is clearly an attempt to seize race-based political control of a huge area of the Pacific by asserting that this entire area is in fact the living goddess Papa, the mother of these islands, the mother of the goddess Hoohokukalani who in turn was the mother of the taro plant and mother of Haloa, the primordial ancestor of all ethnic Hawaiians.
The regulations governing access and usage of NWHI are also a clear establishment of religion in support of racial supremacy for ethnic Hawaiians. The regulations give every ethnic Hawaiian access to visit any or all of the islands and waters for religious and cultural purposes, but do not give such access to any other ethnic group. It does not matter whether an individual ethnic Hawaiian, or his parents or grandparents, has any individual background as a cultural or religious practitioner -- the fact that he has Hawaiian native blood is all it takes to guarantee him the entitlement of access.
It doesn't matter that Asian, European and American explorers, whalers, merchants, and warriors and passed through those waters beginning in the early 1500s and continuing up through World War 2, and the bones of some of them are still there -- Asians and Caucasians do not have the right to visit NHWI for religious or cultural purposes on the same basis that ethnic Hawaiians have that right.
If my Caucasian American father or uncle died on a ship or plane during the Battle of Midway and his bones remain there, the regulations for Papahanumokuakea say that I do not have the right to assert religious or cultural preference to visit. But the fact that a native Hawaiian whose name is no longer known performed religious ceremonies on Mokumanamana Island (Necker Island, 46 acres) a thousand years ago gives an automatic right to any ethnic Hawaiian today to go anywhere in the vast NWHI allegedly to conduct religious ceremonies, even though he might not be descended from that ancient Hawaiian kahuna and even though he does not normally practice the Hawaiian religion. Race is all that matters.
In April, 2002 a series of public hearings were held to "inform the public" and solicit comments on a Draft Reserve Operations Plan (DROP) for the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve. Although the approval of the slick DROP was a foregone conclusion, the public meetings were preceded by massive TV, radio, and newspaper advertisements encouraging participation. Testimony written by Kenneth R. Conklin, Ph.D., in April 2002, on behalf of himself and the Aloha For All organization, raised the issues described above. Links to the DROP document, and text of Conklin's testimony, are available as item #8 on a webpage at
https://www.angelfire.com/hi2/hawaiiansovereignty/a4a2002legisltest.html
It is a foregone conclusion that if the Akaka bill passes, the entire Papahanaumokuakea national monument will be given away to the Akaka tribe. This would include not only about 120 islands and a roughly rectangular swath of ocean perhaps 800 miles long and 100 miles wide, but also the internationally recognized economic zone which spans an additional 200 miles wide around the entire circumference of that swath. Thus the Akaka tribe would acquire about 1200 x 500 = 600,000 square miles of the Pacific Ocean including about 120 islands and all the seabed minerals, fish, etc. for the exclusive benefit of ethnic Hawaiians. And that does not count the racial entitlements and easements described elsewhere in this essay that apply to the 8 main Hawaiian islands.
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ATTEMPTED RACIAL POWER GRAB TO CONTROL AND REGULATE ALL PUBLIC AND PRIVATE LANDS THROUGH LEGISLATION ON BIOPROSPECTING, INCLUDING THE RIGHT TO COLLECT A PORTION OF ROYALTIES DUE TO A LANDOWNER, FOR THE EXCLUSIVE BENEFIT OF ETHNIC HAWAIIANS
From 2003 to 2008 there was a concerted effort in the Hawaii legislature to pass a bill on bioprospecting. What is bioprospecting? A researcher goes into the environment to gather a small sample of plant or animal life. The sample is taken to a laboratory and analyzed. Hopefully there are discoveries of bacteria, enzymes, chemicals, etc. which turn out to be useful in curing disease or creating useful new products.
What does the researcher owe to the owner of the land from which the sample was taken? If the laboratory study of the sample eventually results in production of medicines or commercial products which generate enormous income, should hefty royalties be paid to the landowner? Does it matter if the only contribution made by the landowner was permission to collect the single original sample, and no further harvesting is done from the land? Could the same material have been collected from a neighbor's land, or from a foreign country? Does it matter whether the landowner is a private individual or a government? Does it matter whether the techniques used for commercial manufacturing of a medicine are derived from the way a group of primitive indigenous people have traditionally and customarily gathered, mixed, and applied the sap or excrement from a plant or animal endemic to (found only in) their local area? Should that primitive tribe receive royalties for discoveries made in a laboratory using samples gathered from the tribe's swamp?
In the late 1990s and early 2000s ethnic Hawaiian activists began exploring the concept of intellectual property rights. At first they were concerned with copyright to protect the authenticity of cultural performances like music and hula. They wanted trademarks to protect and and make a profit from cultural products like carved fishhooks, wooden or painted images of the gods, movies about historic heroes like Kamehameha. They wondered about patents to protect the commercial application of their "indigenous knowledge." They noticed that many commercially valuable medicines are being developed from plants taken from areas of the Amazon river basin where indigenous tribes have lived in the jungle for centuries. And so the Hawaiians said among themselves "We too are an indigenous people, we too have plants and animals which are endemic to our ancestral homeland, we too have indigenous knowledge which greedy outsiders are stealing from us. We want to control what is done with our natural resources and our indigenous knowledge, and we want to make lots of money instead of letting the greedy outsiders make all the money."
A sense of urgency was pushed by supporters of the bioprospecting legislation. It was said that a crisis was at hand because outsiders were coming in to Hawaii to do bioprospecting in Hawaii's unique ecosystem. Without legislation there would be untold megabucks lost in royalties never collected. Without legislation there would be no way to control what outsiders might do with the biota they collect. They might even do dangerous genetic engineering on the taro plant or the native Hawaiian genome. As time went by and it became clear the legislation was not likely to pass, the activists tried to get passage of a moratorium on bioprospecting in Hawaii, to "stop further damage", until such time as regulations could be written and a bill could be passed. (But of course if the topic was truly urgent then the activists should have been inspired to hurry up and produce a proposed set of regulations rather than proposing a moratorium). In the several years since the bioprospecting issue was raised and since the bill died, there have been no reports of any biological samples being taken out of Hawaii resulting in discoveries worth megabucks, and no reports of ancient Hawaiian knowledge being stolen. The activists seem to have lost interest in bioprospecting.
From beginning to end, the legislature's work on bioprospecting was a blatant political ploy to push for Hawaiian sovereignty rather than a sincere effort to protect natural resources and to generate wealth for all Hawaii's people from the bounty of our lands. The actual legislation proposed that all public and private lands and waters in Hawaii would be regulated by a government commission where ethnic Hawaiians would be explicitly guaranteed a racial majority. The commission would be housed under the Office of Hawaiian Affairs. Why should ethnic Hawaiians have guaranteed racial control of bioprospecting? Because they are the indigenous people of Hawaii. They are the children of the gods and the brothers of these islands in a way nobody can be who lacks a drop of the magic blood. Native Hawaiians care about the land in a way nobody else does who is merely a guest in the Hawaiian ancestral homeland.
The regulators would require a permit before any person could take any sample of plant or animal life out of the land or water, and would require the signing of contracts guaranteeing the payment of royalties at each stage of sample collection, product creation, patenting, manufacture, and sale. A portion of the proceeds would go to the state government for the benefit of all Hawaii's people (including ethnic Hawaiians), but a large portion would also be turned over to OHA for the exclusive benefit of ethnic Hawaiians. All this was spelled out in the bioprospecting bill in the legislature. It was never explained how an anonymous visitor to Hawaii could be identified as a scientist and followed by detectives to get the evidence that he was visiting a pond on Moloka'i, scooping up a vial of pond scum, and taking it home to a university in Germany where he then used it to discover the cure for cancer, patented the drug and made a bazillion euros as profit.
Along the way the legislature created a Temporary Advisory Committee on Bioprospecting to hold hearings on all major islands to explain (propagandize) the legislation, answer questions, and receive testimony. That committee was headed by none other than Walter Heen, who is a retired judge, former chair of the Democrat Party, and sitting OHA trustee. Walter Heen's brother also attended the public hearings where he was paid by OHA to collect names and contact information of attendees when they signed in, and Heen's wife was paid by OHA to provide refreshments. Jobie Yamaguchi, a former official of the Department of Hawaiian Homelands, was paid to be a facilitator, writing short summaries of audience comments in magic marker on a huge clipboard where the audience could see that their comments were being heard and noted.
Here are some webpages for further exploration of the proposed bioprospecting legislation to establish racial control through regulation of all public and private land in Hawaii
"Are kanaka maoli indigenous to Hawai'i? Would the status of being indigenous give them special rights?" (webpage started in 2000)
https://www.angelfire.com/hi2/hawaiiansovereignty/indigenous.html
"Indigenous Intellectual Property Rights -- The General Theory, and Why It Does Not Apply in Hawaii" (A moral and legal analysis written 2004).
"Confusion arises when people living a modern lifestyle but claiming to be indigenous try to assert the special protections that might have been appropriate to the indigenous status of their ancestors. Knowledge created in ancient times, belonging to an indigenous group as a whole, is held today by individuals who are fully civilized and assimilated. Property rights belong to the people who own the property, not to the property itself. Therefore the decision whether to recognize indigenous property rights depends on whether today's property owners are indigenous today, not on whether the knowledge itself was created by long-ago indigenous ancestors."
https://www.angelfire.com/hi2/hawaiiansovereignty/indigenousintellproprts.html
"Hawaii Bioprospecting Bill -- The Good, The Bad, and The Ugly (a bill to regulate biological research on public lands is a trojan horse for racial supremacy in land use policy)" (written in 2004)
https://www.angelfire.com/hi2/hawaiiansovereignty/bioprospecting.html
"Bioprospecting: Issues and Policy Considerations" by Peter G. Pan. Research report written for the Hawaii Legislative Reference Bureau in January 2006 in time for the opening of the 2006 legislative session.
"This report was undertaken in response to House Concurrent Resolution No. 146, H.D. 1, 2005. The Bureau has been requested to "conduct a study on the fair and equitable sharing of benefits arising from research, indigenous knowledge, intellectual property, or application of biological resources that are public natural resources held in trust by the State for the benefit of the people."
https://www.angelfire.com/planet/big60/BioprospectingCommitsionReport.pdf
Hawaii Bioprospecting -- Hearings by the Temporary Advisory Committee on Bioprospecting (late 2007), and testimony by Ken Conklin
https://www.angelfire.com/planet/big60/bioprospecting2007.html
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SOME EXAMPLES OF RACE-BASED OWNERSHIP OF ENTIRE AREAS OF LAND
During World War 2 the U.S. Navy took control of the island of Kaho'olawe, one of the eight major Hawaiian islands, located near Maui. Nobody was living there. The entire island became a bombing target for ships and planes to use for training purposes. After the war the island continued to be used as a bombing target, not only by U.S. forces but also by the military forces of other nations who were invited to participate in joint exercises. In the 1970s some Hawaiian sovereignty activists began protesting the military use of Kaho'olawe. They used the ancient Hawaiian religion as a basis for demanding racial control of the island, citing the fact that in ancient times it was known as Kanaloa (an embodiment of one of the four main Hawaiian gods). A more formal name for it is Kohe malamalama o Kanaloa, which means: the bright shining vagina (that gave birth to) of Kanaloa. In 1990 the military stopped using the island as a bombing target, and in 1994 it was transferred to the State of Hawaii. A few years later Congress appropriated $400 Million to clean up shell fragments and unexploded ordnance, but the money was not sufficient to finish the job. Today the State of Hawaii has a race-based agency called the Kaho'olawe Island Reserve Commission, which controls access to the island, and allows such access only for cleanup, revegetation, and cultural/religious activities. A law passed by the legislature when the island was returned to Hawaii says that the island is held in trust by the state until such time as a Native Hawaiian governing entity has been recognized by the federal and state governments, at which time the island will be given to that entity. Why should ethnic Hawaiians communally and exclusively control Kaho'olawe? There is no good reason.
The largest private landowner in Hawaii is Kamehameha Schools, formerly known as Bishop Estate. The charitable trust owns about nine per cent of all the land in Hawaii. Its land holdings, and assets in the stock and bond markets, are worth perhaps $9-15 Billion. Theoretically the entire purpose of the trust is to support the schools in perpetuity. For many decades the trustees have followed the policy of allowing only ethnic Hawaiians to attend the school. There is no doubt that if the Akaka bill passes, the trust will transfer itself into the Akaka tribe. Thus its land holdings should be regarded as racially controlled.
The Hawaiian Homes Commission Act, passed by Congress in 1921, set aside 203,500 acres of land in the Territory of Hawaii where a government agency would award 99-year leases to ethnic Hawaiians with at least 50% native blood quantum, for the purpose of housing or farming. Today there are about 70 Hawaiian homelands scattered throughout the islands, each with its own homeowner association, and all administered by the State of Hawaii Department of Hawaiian Homelands. Thousands of new leases have been issued during the Lingle administration as roads and power lines have been built by DHHL. The Sandwich Isles Communications company, run by powerful, wealthy ethnic Hawaiians, obtained about $500 Million in a no-bid sole source contract to link all the homelands together with each other with high speed fiberoptic cable, with the money coming from the U.S. Department of Agriculture's program originally intended to provide telephone service to remote rural areas. The 200,000 acres of the Hawaiian Homelands will clearly belong to the Akaka tribe if that legislation passes.
The state Office of Hawaiian Affairs was established by the state Constitutional Convention of 1978. It has become a major landowner. It owns the 40,000 acre Waokele O Puna forest reserve on Hawaii Island, and the entire Waimea Valley on the north shore of O'ahu. OHA has been the primary pusher of the Akaka bill, and has repeatedly said that all its assets will be transferred to the Akaka tribe when that bill passes. The forest reserve was given to OHA by a non-profit land conservancy which had purchased it. Waimea had originally been owned by the same for-profit company that owned Sea Life Park. When the company put Waimea on the market for sale, a consortium of non-profit and government agencies jointly purchased the valley in 2006. About 15% of the purchase cost was contributed from OHA. The largest portion of the purchase price was $5 Million taxpayer dollars paid by Honolulu county. As soon as the purchase was closed, the deed was handed over to OHA, from where everyone understood it will be transferred to the future Akaka tribe. For details see item #2 at
https://www.angelfire.com/planet/big60/EvilEmpireOHA2005thru2007.html
There were recently bills in the legislature (which failed) regarding at least three valleys on O'ahu (Haiku, Kahana, and Makua) that proposed to create cultural reserve commissions with explicitly guaranteed majorities of ethnic Hawaiian commissioners, place them under the authority of OHA, and then automatically turn those valleys over to the Akaka tribe once the tribe has achieved federal recognition. The bill regarding Haiku Valley, HB2704, was actually passed by the 2008 legislature but vetoed by Governor Lingle. The text of the bill can be seen at
http://www.capitol.hawaii.gov/session2008/Bills/HB2704_.htm
and Ken Conklin's testimony is at
http://208.106.154.79/story.aspx?12b2886b-2a4f-450e-849a-f03837a642b1
The Native Hawaiian caucus in the legislature is very strong, and seems to be constantly pushing for transfer of land and money to OHA. Ethnic Hawaiian government officials have a severe conflict of interest regarding the Akaka bill. If the Akaka bill passes then no ethnic Hawaiian should represent the state or counties in deciding how to divide land and jurisdiction between the state and the tribe. Therefore no ethnic Hawaiian should be elected or appointed to high office this year or in any future year until the bill is abandoned, for fear the bill will pass.
https://www.angelfire.com/big09a/AkakaHawnConflictRecuse.html
Another sort of racial ownership of land is the collection of ancient trails and paths on each island. Hawaiian activists have recently been pursuing a revitalization of them. What makes them worrisome is that these ancient trails were established by the natives before there was private land ownership, and the trails cut across public and private lands without regard to boundaries or ownership. Some of the paths go from the mountains to the ocean within a particular ahupua'a. Some of the paths are circumferential, traveling completely around an entire island roughly following the shoreline, lying near or under modern government roads such as Kamehameha and Kalaniana'ole highways on O'ahu. Considering how ethnic Hawaiians have asserted racial ownership of the ceded lands, and race-based gathering and shoreline access rights, it's easy to see how there will be claims to a race-based right to travel along these ancient paths without regard to property lines. Here are some trail names that can be put into the Google search engine for more information: Na Ala Hele, Ala Kahakai, Hoapili, King's Trail. Some of the Hawaiian civic clubs are also working on projects to identify the precise boundaries of the ancient ahupua'a land divisions and will spend money to erect marker signs with the ahupua'a names. While such projects are of historical interest and add to our appreciation of Hawaiian culture, these projects should also be seen as ploys related to a reassertion of Hawaiian sovereignty. The Bible says God gave man dominion over all the animals as evidenced by man's right to name the animals. Cats and dogs mark their territory to assert ownership of it. So do humans.
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THE IMPOSSIBILITY OF A GLOBAL SETTLEMENT OF LAND CLAIMS IN HAWAII
Some people seem to think that passage of the Akaka bill will begin a process of creating a final, global settlement to divide the lands between the Akaka tribe and the State of Hawaii. Some people think a global settlement can be reached even if there is no Akaka tribe. But this essay shows clearly that there can never be a final settlement to divide Hawaii's lands. The reason is the racial entitlements or easements which ethnic Hawaiians have on all the lands in Hawaii. Surely no global settlement could strip them of those easements.
Suppose OHA or the Akaka tribe agrees to take land group A in return for permanently abandoning all claims to the remaining State of Hawaii land group S. For example there will be no more 20% ceded land revenues from S lands for OHA. Now, run through the list of racial easements identified in this essay.
Will there no longer be claims to appurtenant water rights for taro on Lands S? Perhaps the division of lands could be done along ahupua'a boundary lines so that each entire ahupua'a, with all its streams and reefs, will belong to either A or S. If an ahupua'a is in S, then there will no longer be appurtenant water rights for any taro in that ahupua'a. Water diversion from S or A to A or S would be prohibited. Will ethnic Hawaiians no longer have a right to shoreline access or gathering on lands S? Can ethnic Hawaiians be excluded from wahi pana (well-known or sacred places) on lands S, or prohibited from performing religious ceremonies there, in the same way as non-ethnic Hawaiians will undoubtedly be prohibited from sacred places in A lands? PASH rights would pertain only to A lands.
But what about bones and burials? If ancient bones are found during construction projects on lands S, will it be permissible to bulldoze, destroy, or move those bones without regard to the wishes of any burial council? Will NAGPRA apply only to A lands? Congress would be unlikely to amend NAGPRA in such a manner, and ethnic Hawaiian activists or "cultural practitioners" are not likely to give up their claims that native bones are sacred even if those bones are in S lands.
Will ethnic Hawaiians be prohibited from voting or holding government office in what is left of the State of Hawaii? After all, non-ethnic Hawaiians will be prohibited from voting or holding office in the governing entity for A lands. If ethnic Hawaiians remain a 20% voting bloc in the reduced State of Hawaii, they will undoubtedly use their political power to press for more concessions despite the so-called final global settlement.
Instead of a final global settlement, there will always be what there is now -- a constant ratcheting up of demands. The so-called settlement will simply be an extra-large ratcheting step, perhaps accompanied by an extra-long pause before the next ratcheting. People with no native blood are not demanding special rights for themselves that would exclude ethnic Hawaiians. And they should not be expected to give and give until there is total racial supremacy for ethnic Hawaiians. Most ethnic Hawaiians are not demanding racial separatism either.
The only final global settlement that will be truly final is to crush demands for racial separatism so thoroughly that the activists completely abandon any credible attempt at achieving it. There must be an end to making demands and concessions. Let's support unity, equality, and aloha for all.
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