By Edwin Tanji

WAILUKU, Maui (The Maui News,) - Most of us living in Hawaii have benefited from Hawaiian tradition without thinking about it much. 

Based on a legal theory that the "traditional and customary practices" of Native Hawaiians include access to the resources of the land and ocean, the Hawaii Supreme Court established that the lands along the shorelines of the islands are public lands, assuring public access to the ocean. 

A private landowner can own land next to the shoreline. The landowner cannot own the shoreline, nor can that landowner restrict the public from use of the shoreline. 

It is an alien concept to those who grew up on the coasts of the Mainland United States, where there are private beaches from which the public is barred. Western private property rights define ownership strictly by metes and bounds, not by the comings and goings of the shoreline. 

But Hawaiian traditional and customary practices were not extinguished when the business clique overthrew the monarchy in 1893 and established a Republic of Hawaii. The republic, the federal government and the State of Hawaii all continued to recognize Hawaiian traditional rights even as new laws were overlaid on, or superseded, laws of the monarchy. 

Access and gathering rights are part of the tradition of Hawaii, as much as hula, surfing and outrigger canoes. 

It may be a tradition that will be lost if Native Hawaiians lose legal standing as a group whose traditional and customary practices are recognized by the federal government. 

That was among the points that retired Judge Boyd Mossman made last week when he declared that a failure to win federal recognition of Native Hawaiians would mean the end of Hawaiians as a recognizable people and culture. 

The current challenge of Arakaki v. Lingle is based on the 14th Amendment to the U.S. Constitution, providing that all people have equal protection by the government, meaning that the government cannot grant one group privileges that are not provided to all groups. 

But a number of programs are providing special benefits to the Native Hawaiian, from the allocation of lands under the Hawaiian Homes Commission Act to grants to the Hawaiian health program, Hui No Ke Ola Pono. 

The primary target of Arakaki v. Lingle is a provision of the Statehood Act that is incorporated in state law, providing that some of the revenues to the state from use of state lands shall be allocated to the betterment of Native Hawaiians. The argument is that the state cannot provide a benefit to Native Hawaiians that is not provided to all other people in the population, as a violation of the equal-protection standard. 

But if the argument is carried to a logical end, any provision that benefits Native Hawaiians alone is barred by the 14th Amendment. That includes grants to agencies that provide services to Native Hawaiians or laws that recognize specific benefits to Native Hawaiians, such as those recognizing traditional Hawaiian practices. 

A few laws that provide a special benefit to Native Hawaiians stand out. 

The state in accepting the return of Kahoolawe set the island aside as a cultural preserve to be administered by a Native Hawaiian entity. If there is no recognition of specific rights for Native Hawaiians, the state still could set aside the island as a cultural preserve, but it could not turn over administration to a Hawaiian group; rather the island would be administered as a state park where public access must be allowed under the provisions of the equal-protection amendment. 

Public beach access is based on traditional and customary practices of Native Hawaiians. Based on the same tradition, a Native Hawaiian has access to areas that have significance as cultural or natural resources. For example, a Hawaiian can enter Haleakala National Park stating that he or she intends to engage in a cultural practice and the park will waive the normal fee. Members of a hula halau or a practitioner of lapaau can go into forests to gather plants. 

Eliminate federal recognition of Native Hawaiian traditional rights, and free access by a Native Hawaiian to culturally important places will be eliminated as well. Eliminate Native Hawaiian traditional and customary practices, and the body of laws that is based on such practices also are at risk. 

Not everyone will be unhappy to lose those traditions. Native Hawaiian burials on private land now get special treatment, requiring review by island Burial Councils. If there is no right to special recognition, landowners should be able to treat an ancient Hawaiian burial as they would any historic burial. They would be able to bury the bones somewhere else. 

The traditional and customary practices that are Hawaii’s culture could be buried alongside. 

June 3, 2003

The Maui News: www.mauinews.com 

Edwin Tanji is city editor of The Maui News

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