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Custom in Hawai’i

Customary Revolutions

 

The Law of Custom and the

Conflict of Traditions in Hawai`i

 

by

Paul M. Sullivan*

 

Copyright 1999 by the Journal of Legislation; Paul M. Sullivan

Published at 20 University of Hawai'i Law Review 99 (1998)

 

The author and the University of Hawai'i Law Review have granted permission for the contents of this issue to be

copied or used for nonprofit research or nonprofit educational purposes, provided that (1) any copies be

distributed at or below cost, (2) both the author and the University of Hawai'i Law Review are conspicuously

identified on each copy, and (3) proper notice of the copyright is affixed to each copy.

 

I.  Introduction

II.  Overview

III.   The Background and Development of Custom in English and American Common Law

IV.  Hawaiian Custom in the Precontact Period

V.  Change and Development of Custom in the Kingdom of Hawai`i

               A.  New Ways of Thought - The Abolition of the Kapu System

               B.    New Ways of Governance - The Kingly Gift of A Constitution

               C.  A Paradigm of the New Order - The Great Mahele

               D.  Oni v. Meek - Judicial Confirmation of the New Order

               E.  Integrating Hawaiian Customs with the Common Law of Property

VI.  Customary Law Developments After Statehood

VII.  PASH - A New Line in the Sand

       A.  The Precursors of PASH

                      1.    Kalipi v. Hawaiian Trust Co.

                      2.    Pele Defense Fund v. Paty

               B.    Relaxing the Standards for Establishing Traditional and Customary Rights

                      1.    The Kalipi limitations

                      2.    The need for proof of "rights"

                      3.    The stubborn persistence of Oni v. Meek

                      4.    The common law of custom and usage

                      5.    The significance of "tenancy"

                      6.    Racial limitations in article XII, section 7 of the state constitution

                      7.    Application of the "Aloha Spirit" statute

                      8.    Redefinition of fee simple title

               C.  PASH and the United States Constitution

 

I.  Introduction

 

       The legal concepts of "custom" and "usage"[1], founded in the common law but historically given little or no significance in the jurisprudence of most states,[2] are currently the subjects of intense debate in the State of Hawai`i.  At the heart of the debate is a perceived conflict between, on the one hand, deeply-rooted customs and traditions of American and English law surrounding private property ownership and on the other, recent claims by persons with ancestral links to precontact[3] Hawai`i asserting "traditional and customary rights" to use private land of others for various gathering, cultural and religious activities.

       The fundamental issues echo those which Hawai`i's government faced and resolved once before, in the mid-nineteenth century, when Hawai`i was evolving almost overnight from a neolithic culture under a feudal absolute monarchy into a modern constitutional government.[4]  The controversies both then and now illuminate how tension and uncertainty result when ill-defined, unwritten "custom" is accepted or proposed as a valid source of rights in the real property of others whose traditional expectations include exclusive possessory rights and security of title.

 

II.  Overview

 

       In the nineteenth century two separate but related revolutionary changes took place in the Kingdom of Hawai`i.  The first was the abolition in 1819 of the kapu system of religious and political governance and its eventual replacement with Christianity and a constitutional monarchy.[5]  The second was the redefinition of rights in real property through the Great Mahele of 1848 and the related legislation which preceded and followed it.[6] 

       In the first of these revolutions, the religious foundation of both private and public life was officially abolished, along with the divine or quasi-divine status of the highest chiefs ("ali`i") and many of the prerogatives of the chiefly class.[7]  The religious observances and cultural practices based on the kapu system were generally abandoned,[8] a process greatly accelerated by the Christian missionaries who first arrived in the islands in 1820.[9]  In the second, the precontact feudal land tenure was replaced by a system of individual and allodial land ownership which, with few exceptions, followed the common law of England and America.[10]  These two revolutions effectually replaced the absolutist monarchy administering a feudal system based on unwritten custom with a constitutional monarchy based on written laws and Western structures of government and property.

       Some recent decisions of the Hawai`i Supreme Court reflect a profound discontent among that court's members with at least the changes in property law wrought by these two nineteenth-century social transformations, and suggest that future decisions of that court may take a decidedly counterrevolutionary posture.  In the most recent of these, Public Access Shoreline Hawai`i v. Hawai`i County Planning Commission[11] ("PASH"), the court addressed claims concerning asserted gathering and access rights based on article XII, section 7 of the State of Hawai`i Constitution[12] and in Hawai`i Revised Statutes (HRS) section 7-1,[13] as well as in state statutes dealing with specific areas of land use decision-making.[14]  These rights are usually spoken of as "Native Hawaiian traditional and customary rights", the term "Native Hawaiian" referring to persons descended from precontact inhabitants of the Hawaiian Islands.[15]  In PASH, these rights were set squarely in opposition to the "western notions of exclusivity" associated with ownership of real property—notions which, under U.S. constitutional law, have long been regarded as a fundamental element of the right of private property[16].  The PASH court, moreover, in broad dicta, sought to remove what it perceived to be constraints upon the establishment and the exercise of such rights, and thus, at least to the extent that dicta may control subsequent decisions,[17] elevated these "rights" to something hitherto unknown and even unsuspected.

       The PASH case has generated considerable argument over fundamental issues of private property rights, specifically:  (1) the degree to which an owner of real property may prevent the entry of others claiming either "traditional and customary" rights under article XII, section 7 or the gathering rights set out at HRS section 7-1; and (2) the extent to which agencies of the state must or may, in exercising their statutory responsibilities, support the exercise of such rights against the desires of a landowner seeking some sort of action or approval by such agency.  Underlying these issues is another and even more fundamental issue:  whether the PASH decision, together with or separately from its immediate precursors and article XII, section 7 of the state constitution, has so radically and unexpectedly changed the established law of the state with respect to private property rights as to have worked a taking of private property without compensation in violation of the U.S Constitution.

       This article first reviews the place of custom and usage in American law generally and in Hawai`i law specifically, with special attention to customs concerning the control and use of land, and explains how the development of Hawai`i's real property law in the nineteenth century left no room for the survival of customary access and gathering rights except as expressly preserved in what is now HRS section 7-1.  It then considers two fairly recent cases where custom and usage have been applied by the Hawai`i Supreme Court in decisions which were subsequently challenged, with some degree of success, as unconstitutional takings.  It concludes with a discussion of the PASH case, including the many issues of interpretation and application which PASH left unresolved, and explores some possible bases for a constitutional challenge to the PASH case itself or to future decisions of judicial and administrative tribunals based on PASH.

 

III.   The Background and Development of Custom in English and American Common Law

 

       The English common law, from which American common law is derived, was founded on the ancient customs of the kingdom.  In his Commentaries on the Laws of England, William Blackstone described these as customs "used time out of mind . . . whereof the memory of man runneth not to the contrary."[18]  Blackstone identified three types of custom making up the common law:

 

1.     General customs, which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification. 

2.     Particular customs, which for the most part affect only the inhabitants of particular districts. 

3.     Certain particular laws, which by custom are adopted and used by some particular courts, of pretty general and extensive jurisdiction.[19]

 

       The first of these forms of custom, the "general rules of universal applicability", concerned such issues as inheritance of property, the manner and form of acquiring and transferring property, the obligations of contracts and the remedies of civil injuries.  They were to be found in judicial precedents, binding in subsequent cases under the rule of stare decisis.[20]

       In the United States, the term "custom" as a foundation for a claimed right has come to refer to Blackstone's second category of custom, that is:  "particular customs, which for the most part affect only the inhabitants of particular districts."[21]  Blackstone identified seven requirements for the establishment of such a custom as a rule of law varying the general common law:

 

a.     It must have been used so long "that the memory of man runneth not to the contrary."

b.     It must have been continued without interruption. This does not mean that the use was constant, but that the right itself continued to exist.

c.     It must have been peaceable, and acquiesced in, not subject to contention and dispute, since customs owe their origin to "common consent."

d.     Customs must be reasonable, or if not of obvious purpose, at least not unreasonable.

e.     Customs must be certain, and their application definite and ascertainable.

f.     Customs, although established by consent, must be compulsory once they are established.

g.     Customs must be consistent with each other, and not contradictory to other customs.[22]

 

       This sort of custom as a source of law has not generally been favored in the United States, but in 1969, the Oregon Supreme Court "breathed life into what had been for practical purposes a dead doctrine in this country."[23]  In Oregon ex rel. Thornton v. Hay,[24] the court upheld a public right of recreational use of all dry-sand beaches along the coast on grounds of a custom which, it stated, "meets every one of Blackstone's requisites."[25]

       The doctrine of custom has been invoked in other states with less success.  The Maine Supreme Court in Bell v. Town of Wells[26] noted that "[v]ery few American states recognize the English doctrine of public easements by local custom",[27] and stated:

[T]here is a serious question whether application of the local custom doctrine to conditions prevailing in Maine near the end of the 20th century is necessarily consistent with the desired stability and certainty of real estate titles.[28]

In that case, however, the court expressly declined to decide whether easements by local custom could be established under Maine's common law, since it concluded that in any case, two of Blackstone's seven elements for establishing a custom as law could not be met.[29]  Similarly, in Idaho ex rel. Haman v. Fox,[30] the Idaho Supreme Court noted the limited acceptance of the doctrine of custom,[31] and while it held that the doctrine was part of Idaho's common law, it upheld the findings of the lower court that six of the seven requisite elements had not been met.  It noted that a usage in effect from at least 1912 did not constitute "use from time immemorial."[32]

 

IV.  Hawaiian Custom in the Precontact Period

 

       Our knowledge of custom in precontact Hawai`i, a preliterate society where history and traditions were passed on orally, is necessarily limited.  We do have, however, the written recollections of two remarkable nineteenth century authors, Samuel Kamakau and David Malo, whose lives spanned the period of Hawai`i's transition from the precontact social order to a constitutional Hawaiian monarchy in the Western model.[33]  These men described the traditions and customs of their times and the times of their immediate ancestors, and passed down many stories of the generations before that.  Other valuable sources are the decisions of the early jurists of the Hawaiian kingdom in the middle and late nineteenth century, who were integrating Hawaiian traditional norms, customs and social systems with the "new" Western model adopted by the Hawaiian monarchs and chiefs of the period[34].  Thus we have, if not a perfect record, at least a valuable source of contemporary observations of vital features of eighteenth and early nineteenth century Hawaiian custom.

       Both Malo and Kamakau described in detail the social and political conditions which prevailed during the period beginning before Western contact and continuing through the constitutional and governmental changes of the mid-nineteenth century.  Their works reveal a highly-developed precontact culture with an established social structure which regulated or affected nearly all aspects of life from birth[35] to burial[36] and extended to such matters as fishing,[37] various crafts,[38] the growing of crops,[39] and the distribution and use of land[40] and water.[41]  Overarching all of these was the kapu system, a tightly-integrated set of religious and social norms which placed supreme authority in the hereditary chiefly class ("ali`i") and in the ruling chiefs of each island or major island division.[42]

       While most of the customs these authors describe were positive and often admirable, there were such darker elements as human sacrifice,[43] infanticide,[44] frequent wars between chiefs with serious impacts on the population in the islands[45] and the placement of unlimited power of life and death in the hands of the chiefs—power which was sometimes used cruelly and arbitrarily, with few or no avenues of appeal for the victim.[46]  Among the chiefs and especially the chiefs of highest rank, incest was encouraged and even required, because the degree of a chief's nobility was determined by his or her bloodline, and incest was an effective means of securing offspring who best preserved the purity of the parental strain.[47]  Polygamy and polyandry were also practiced, most often among the upper or wealthy classes.[48]

       Under the kapu system, the ruling ali`i and their subordinate chiefs exercised nearly absolute authority over inferiors and commoners, and had extraordinary discretion in the use of that power.[49]  While some chiefs ruled well, others did not, and the sole remedy of the people for an oppressive chief was to rebel,[50] or perhaps to seek another chief to overcome the oppressor.[51]  It would appear, however, that only exceptionally severe oppression would provoke rebellion.  Malo notes that "[o]nly a small portion of the kings ruled with kindness; the large majority simply lorded it over the people",[52] from which it may fairly be implied that if "lording it over the people" had routinely resulted in revolt, it would not have been so common.  Even kings who ruled well ruled absolutely, and the kapu system itself prescribed draconian punishment for infringing the kapu (prohibitions) concerning chiefly prerogatives or immunities or the isolation of commoners from the chiefs.[53] 

       This is not to say that there were no commonly accepted principles of right and wrong.  In fact, there were relatively clear understandings of good and evil behavior, but there was evidently no consistent enforcement of these principles, and much depended on the strength or rank of the actor.[54]  There were also those within the system of government whose job it was to advise at least the kings or ruling chiefs in wise and righteous behavior.[55]  It would appear, however, that the constraint on misbehavior was not the rule of law, but the rule of superior force.[56]

       With specific reference to the rights of the chiefs and people in land, the same general rule applied:  There was no consistent system of enforceable rights apart from the will of the superior.  Nevertheless, there were well-established customs concerning relationships among both chiefs and common people with respect to land, customs which would be viewed as creating "rights" in the Western sense when the land revolution of the 1840's took place.  This customary relationship was essentially feudal and tenurial, with a system of mutual duties and responsibilities concerning the control and use of land.  This relationship was described in the 1847 Principles Adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them, ("Principles")[57]:

[W]hen the islands were conquered by Kamehameha I, he followed the example of his predecessors, and divided out the lands among his principal warrior chiefs, retaining however, a portion in his hands, to be cultivated or managed by his own immediate servants or attendants.  Each principal chief divided his lands anew, and gave them out to an inferior order of chiefs, or persons of rank, by whom they were subdivided again and again; after passing through the hands of four, five or six persons, from the King down to the lowest class of tenants.  All these persons were considered to have rights in the lands, or the productions of them.  The proportions of these rights were not very clearly defined, but were nevertheless universally acknowledged.

The tenures were in one sense feudal, but they were not military, for the claims of the superior on the inferior were mainly either for produce of the land or for labor, military service being rarely or never required of the lower orders.  All persons possessing landed property, whether superior landlords, tenants or subtenants, owed and paid to the King not only a land tax, which he assessed at pleasure, but also, service which was called for at discretion, on all the grades from the highest down.  They also owed and paid some portion of the productions of the land, in addition to the yearly taxes.  They owed obedience at all times.  All these were rendered not only by natives, but also by foreigners who received lands from Kamehameha I and Kamehameha II . . . and a failure to render any of these has always been considered a just cause for which to forfeit the lands.[58]

       In the mid-nineteenth century, this system set aside the customary norms and customary absolute monarchy which had been its twin foundations.  Over the course of roughly three decades it transformed itself into a Western-style constitutional monarchy based on a formal written constitution, written statutes, and the rule of law.[59]

 

      

 

V.  Change and Development of Custom in the Kingdom of Hawai`i

 

A.  New Ways of Thought - The Abolition of the Kapu System

 

       The end of the kapu system came in 1819 at the hands of the Hawaiian monarch and his closest advisors.[60]  It was apparently not a sudden change, but one which had been building for many years as the Hawaiians compared their own rules of behavior with those of visiting Westerners.[61]  The timing of the event, however, was apparently tied to the death of Kamehameha I in May of 1819, since Kamehameha I was a firm adherent and supporter of the kapu system.[62] The circumstances and events have been well described elsewhere[63] and will not be repeated here, except to note that the change was not accomplished peacefully.[64]  Kamehameha I, when he named Liholiho his heir to the kingdom after his death, made an equally significant appointment by entrusting his war god, Kuka`ilimoku, to a nephew, Kekuaokalani.  When Kekuaokalani held fast to the traditional religion in the face of Liholiho's participation in the abolition of the kapu system, the issue was resolved by war at the Battle of Kuamo`o where the forces of Kekuaokalani were defeated and Kekuaokalani was killed.[65]  A secondary rebellion in the Hamakua area of the island of Hawai`i was put down soon afterward.[66]

       This "official" abolition of the kapu system, of course, did not work an overnight change in behavior and belief,[67] but the following year saw the beginning of a Christian missionary effort that would in large measure complete the work.[68]  The missionaries taught the practical skills of reading, writing and arithmetic as well as Christianity,[69] and with patience and perseverance, they obtained first the permission and then the support of the kingdom's rulers for their activities.[70]  In a relatively short time, the customs and practices of Christianity had supplanted those of the kapu system as the religion of the Hawaiian kingdom.[71]

 

 

 

 

 

B.    New Ways of Governance - The Kingly Gift of A Constitution

 

       The second revolution replaced the rule of the chiefs with the rule of law.[72]  In 1839, in response to a variety of forces,[73] Kamehameha III promulgated first a Declaration of Rights and then, in 1840, a constitution to establish a written, public declaration of the form and nature of the kingdom's government.[74]  In these documents, the king, for the first time, set limits on his authority and granted to his subjects specific rights to security of their persons and property against unjust exactions by the chiefs.[75]  He established a formal system of sharing the decisions of government both with the chiefs and with the people; the constitution established a unicameral legislature which included not only certain chiefs, but also representatives of the people, elected by universal male suffrage.[76]

       In laws published between 1823 and 1842 and codified in the Laws of 1842, the rights and arbitrary powers of the ali`i (chiefs) and konohiki (landlords) were curtailed.[77]  The labor "tax" accruing both to the King and to the konohiki was regularized and in some cases commuted to a money payment.[78]  In other sweeping social changes, new forms of marriage were prescribed,[79] marriages within specified degrees of consanguinity were prohibited to all, and certain marriages to foreigners were restricted.[80]  Adultery and "lewdness" were prohibited.[81]  Traditional and customary fishing "rights" were withdrawn by the king, then redefined and reissued through statute.[82]  The traditional subjection of the common people to multiple layers of superior landlords, all with claims to their labor and the products of their land, was abolished.[83]  Compared with the customary and traditional practices they replaced, these enactments constituted broad and dramatic changes in fundamental social structures.

       This was still, however, a transitional stage.  Notwithstanding the many changes, the old customs were not wholly abandoned; for example, in the first paragraph of the Laws of 1842 appears the following:

The subjection of the people to the chiefs, from former ages down, is a subject well understood, as is also a portion of the ancient laws.  That subjection and those laws are not now as a matter of course discontinued, but there are at the present time many new laws, with which it is well that all the people should become acquainted.[84]

       Among the "ancient laws" not entirely disposed of in these statutes were those supporting the feudal, tenurial relationship between landlord and land occupier.  The land[85] and the labor[86] taxes were still obligations of the land occupier, and if he defaulted in the land tax he could be dispossessed.[87]  A tenant was not permitted to abandon his farm without cause,[88] and land could be readily reassigned from one tenant to another, or even from one landlord to another, if it were not put to productive use.[89]

       But further changes were imminent. 

      

C.  A Paradigm of the New Order - The Great Mahele

 

       The final stage in this land revolution concerned the abolition of the feudal relationship.  While it was generally recognized and acknowledged by the early 1840's that both chiefs and commoners had rights in land, there was no precise definition of those rights.[90]  To resolve this uncertainty the kingdom established a commission[91] to "settle land titles".[92]  Through this commission the previously undivided rights of the people of the kingdom to the lands of the kingdom were to be separated out and precisely defined, first generally, for the various classes of society, and then specifically, to settle the individual rights of members of those classes with respect to specific parcels of land.[93]  The board recognized three classes of persons having vested rights in the land: the King or government, the landlords, and the tenants.[94]  To determine the respective rights of these classes, it looked to ancient custom and tradition.[95] 

       To allocate these undivided rights to individuals, a series of partitions or mahele were made, all known collectively as the Great Mahele.[96]  In 1848, the first phase of the divisions took place between the King and the chiefs or konohiki.[97]  This resulted in 245 separate mahele with individual chiefs or konohiki, following which the King retained a major part of the lands of the kingdom as his personal and individual property, subject only to the rights of tenants.[98]  A chief receiving land would have to pay a "commutation" to the government, in land or other property, to discharge the government's claim,[99] and the grants to the chiefs were also made subject to the rights of tenants,[100] whose rights to their farms and homes were to be protected.[101] 

       The King's lands reserved in the Mahele were divided once again, to effectuate a division between his privately-held lands and those which would be allocated to the Government.[102]  The King accordingly executed two documents, one conveying to the government the lands to be reserved for government use, the other retaining explicitly to himself, in fee simple, certain specified lands.[103]  The lands conveyed to the government became known as government lands; the lands retained by the King became known as Crown lands.[104]

       The separation of rights between king and chiefs was soon extended to the tenants.[105]  In 1850, tenants or occupants of land ("hoa`aina") were given the right to obtain fee simple titles to those parts of the lands of the government, the King or the chief or konohiki which they actually occupied and improved, subject to Land Commission approval.[106]  The tenants, however, were not required to pay a commutation.  Other government lands were made available for purchase by those who did not already have sufficient land.[107] 

       Thus, the overall effect of the Mahele was to terminate the shared-ownership, feudal relationship described in the Constitution of 1840.  Through the Mahele, these diffuse and poorly-defined rights were specified and allocated to the King, to the government and to individuals.  Following the Mahele, the king, the government, the chiefs and the common people each had no property rights in the lands of the others, and no rights to use or control those lands of others, except as the law might otherwise provide.[108]  There could no longer be any broadly-shared rights in the Crown or government lands, or in the lands allocated to chiefs and commoners.[109]

 

D.  Oni v. Meek[110] - Judicial Confirmation of the New Order

 

       Unquestionably, transition from a feudal tenure to individual fee simple ownership in the Western mode was the express intent of those—native and immigrant alike—who fostered and carried forward this revolution; this was stated in the Principles,[111] and confirmed in the case of Oni v. Meek.

       Oni was a hoa`aina or tenant in the ahupua`a[112] of Honouliuli on Oahu.[113]  Most of the kula (dry or pasture) land in the ahupua`a was under lease to Meek.[114] Horses had first been introduced to the area in 1833 and had become numerous, and it had become common practice for the hoa`aina to pasture their horses on the kula land of the ahupua`a together with the horses of the konohiki (landlord).[115]  The court described the origin of the controversy as follows:

It appears further that, about the year 1851, after the enactment of the new laws, relating to the tenure of land, a large number of the hoaainas of Honouliuli, including . . . some who had obtained awards for their kuleanas and others who had not, came to Mr. Haalelea, the konohiki, and expressing their understanding and belief that under the new order of things they would be cut off from the enjoyment of some of their accustomed rights and privileges, including the right or privilege of pasturage they offered to continue to labor for him, as formerly, upon the konohiki's labor days, in consideration of his allowing them to enjoy all their accustomed rights and privileges, to which proposition he agreed; and since that time all the hoaainas who have duly performed their labor on the konohiki's days, have been permitted to pasture their horses on the kula land as formerly; and that the plaintiff is one of those who have continued to labor according to that agreement.  It appears, also, that within the three years last past the defendant has repeatedly notified the hoaainas to remove their horses from the kula lands leased by him.[116]

       Oni argued that he held a right of pasturage by custom and by statute.[117]  The court noted the possible difficulty of showing that a custom that must have originated after 1833 had existed "time out of mind", but declined to rule on that issue.[118]  Instead, the court addressed directly the conflict of the claimed custom with the statutes then governing land tenure, and found that the alleged custom was "so unreasonable, so uncertain, and so repugnant to the spirit of the present laws, that it ought not to be sustained by judicial authority."[119]  The court observed that the asserted custom, if it existed at all, was an incident of Oni's tenure under the "old law" of the land tax and the labor tax.[120]  The court pointed out that if Oni had secured a kuleana award and held his land in fee simple, he would be freed from the land and labor taxes and the landlord would be freed from the claims Oni would otherwise have had upon him.[121]  The court also noted that even if Oni had not obtained an award of his kuleana, he could not claim to have a continuing tenancy under the "old law" because he had acknowledged to his landlord that the "old law" was no longer in effect and that under the new law, an exchange of services for land use and other privileges could only be achieved by contract.[122]

       Having thus disposed of Oni's claim under a theory of custom, the court proceeded to deal with Oni's claim of rights by statute.[123]  That claim was based on an 1846 law enumerating the rights of the hoa`aina, among which was the right to "pasture his horse and cow and other animals on the land, but not in such numbers as to prevent the konohiki from pasturing his."[124]  The court noted that the statute in question had been passed

at a time when the old system as to the tenure of lands was still in existence, and before the passage of new laws upon the subject of land titles, the operation of the Land Commission, and the great division of 1848 had brought about and perfected that entire revolution in the law affecting rights in land, and land titles, which has taken place since the year 1846.[125]

It concluded that while this earlier law had never been expressly repealed, it had been "impliedly annulled and superseded" by later law on the same subject.[126]  Specifically, the court held that as to the earlier statute:

[T]he enumeration therein contained, of certain specific rights of the hoaaina, apart from his right to the land he cultivated, has been superseded by the specification of the same rights, contained in the seventh section of the Act of August, 1850, which specification reads as follows, viz:  "When the landlords have taken 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 ti leaf, from the land on which they live, for their own private use, should they need them, but they shall not have a right to take such articles to sell for profit."[127]

       The court then drove the point home:

That it was the intention of the Legislature to declare, in this enactment, all the specific rights of the hoaaina (excepting fishing rights) which should be held to prevail against the fee simple title of the konohiki, we have no doubt.[128]

The word "all" appears in italics in the court's opinion, evidently as a studied and resolute affirmation of the end of the feudal order for both tenants and landlords.       The court went on to hold that the legislature had intended, by the 1850 statute, to put an end to the right claimed by the plaintiff because it was "inconsistent with the new system, and therefore was not reserved on the change of the law."[129]  The court noted that in “several subsequent sessions of the Legislature, petitions were presented for the enactment of a law granting to the common people the right of pasturage on the lands of the konohikis, but without success, on the ground that it would interfere with vested rights."[130]  To prevent any misunderstanding, the court concluded:

We understand the latest enumeration, by the Legislature, of the specific rights of the hoaaina, to be restrictive as against the rights of the konohiki and the Government, and we think, therefore, that the maxim expressio unius est exclusio alterius . . . must be held to apply in this case, with conclusive force; and that, too, without any distinction as to whether the plaintiff is a kuleana holder or otherwise; our understanding of the term people, as used in the seventh section of the Act of 1850, being that it is synonymous with the term tenants, as used in the law relating to private fisheries, of which we expressed our view in the recent case of Haalelea vs. Montgomery.[131]

       Thus, with Oni v. Meek, the issue of "traditional and customary rights" of hoa`aina—understood at that time to mean ahupua`a tenants or other lawful occupants of land in an ahupua`a[132]—was firmly and conclusively settled.  Only those rights which were enumerated in what is now HRS section 7-1 survived the Mahele and the Act of 1850.[133]  The inescapable corollary was that all other traditional and customary entitlements of native tenants were terminated.  Oni v. Meek was an important case, and the court was fully aware that its decision would be of broad and lasting significance.[134]  It remained unquestioned law for almost 125 years, and survives today in far better health than its detractors might desire.

      

E.  Integrating Hawaiian Customs with the Common Law of Property

 

       In resolving questions concerning the kingdom's new order, the kingdom's courts tended to look, with respectful independence, to English and American common law.  The jurists of the Hawaiian kingdom had not felt fettered by the English or American common law in all its detail; for example, in Thurston v. Allen,[135] the court stated:

We do not regard the common law of England as being in force here eo nomine and as a whole.  Its principles and provisions are in force so far as they have been expressly or by necessary implication incorporated into our laws by enactment of the Legislature, or have been adopted by the rulings of the courts of record, or have become a part of the common law of this kingdom by universal usage, but no further.[136]

       Consistent with this, early judicial decisions of the kingdom on adoptions and the devolution of property at death[137] and particularly on matters of water rights[138] reflected a studied concern for protecting the reasonable expectations of Hawaii's populace based on custom.

       Nevertheless, the law of the kingdom was in most respects the common law of England and America.  In Thurston v. Allen, the court noted:

We were much impressed with the statement made at the argument by Mr. Peterson, of counsel for the plaintiffs, that of the nine hundred reported cases of this Court, in only about nine cases, or one per cent., has this Court departed from the common law on the point under consideration.[139]

       Specifically in the matter of real property rights, the courts departed from the English and American common law on a number of occasions.  These departures, however, were not to accommodate pre-Mahele customs and traditions, but to avoid common law rules which were "based on conditions that no longer exist, and when [the common law] had come to be generally recognized as merely technical and subversive of justice or the intentions of the parties to instruments and when it had in consequence been generally altered or abrogated by statute elsewhere."[140]  Indeed, in the case of Kahinu v. Aea[141] the common law of America and England was applied and affirmed as the law of the kingdom with respect to defining real and personal property, and a claim based on traditional practice was rejected.  The case involved a dispute between natives over title to a lot and a house thereon.[142]  The defendant claimed title to all personalty of the former owner of the lot.[143]  He asserted that the personal property included the house on the lot, since it had been customary in earlier times for house frames to be moved from one location to another.[144]  The court stated:

The building here in question is a two-story wooden building, erected during the lifetime of the said Nahinu, and is no more to be regarded as personalty because it was occupied by natives than if occupied by foreigners.  To declare that a permanent structure of this kind is personal property because natives in former times frequently removed their house frame to another locality, would be to define real and personal property, not by its inherent nature, but by the views of those who held it.  Such an adjudication would involve us in a changeable and contradictory system of law.  The only safe way is to regard real and personal property as defined by our statutes, Sections 483 and 484 of the Civil Code, to intend and mean the same kind of property so designated in American, English, and Continental law.[145]

       In 1892, this long process of integrating Hawaiian customary law with American and English common law was completed when the kingdom accepted the common law of England as its own "except as otherwise expressly provided by the Hawaiian Constitution or laws, or fixed by Hawaiian judicial precedent, or established by Hawaiian national usage."[146]  At the time of this enactment, of course, "Hawaiian judicial precedent" in the form of Oni v. Meek and Kahinu v. Aea had already established that (subject to what is now HRS section 7-1) Hawai`i's definitions of real and personal property were those of English and American common law.  In fact, Oni v. Meek was reaffirmed in 1895, only a few years after the passage of the 1892 law, in the case of Dowsett v. Maukeala.[147]

       Thus we find that in moving from the absolute monarchy of Kamehameha I to a constitutional monarchy, there was an enduring commitment on the part of the King, the chiefs and their Western advisors to preserve many positive elements of Hawaiian custom as the law of the kingdom.  At the same time, however, there was a counterbalancing commitment on the part of these same officials and the kingdom's judiciary to restructure traditional and customary rights and to administer them in accordance with Western legal concepts.[148]  As rights in land which were formerly regulated by custom and chiefly prerogative became subjects of written law in the Western fashion, the officials of the kingdom looked to Western judicial tradition rather than to Hawaiian custom when interpreting, protecting and enforcing those rights.[149]

 

VI.  Customary Law Developments After Statehood

 

       Throughout much of Hawai`i's later judicial history, and particularly in its modern history, custom and usage have continued to play an important role.  These terms have usually been used together ("custom and usage") and interchangeably, either as a single term or as synonyms,[150] without strict regard for their technical distinctions.[151]  Whether used together or separately, they denote unwritten traditions with a dignity akin to, and sometimes rising to, the force of law.  As so used, they fall more precisely within the concept of "custom" than within the somewhat less obligatory concept of "usage" in its more technical sense.[152]

       The most general statement of the significance of usage in current Hawai`i law is found in HRS section 1-1 as follows:

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 the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage;[153] 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.[154]

       As an element within the structure of HRS section 1-1, "usage" (treating that term, consistently with its general use in Hawai`i case law, as roughly synonymous with "custom") appears to have, at best, a co-equal dignity with other sources of common law, that is:  HRS section 1-1 on its face gives "Hawaiian usage" no primacy over the general common law of the state as developed through case law or modified by statute.  It must, of course, yield to conflicting provisions of state statutory law,[155] as well as federal law and the United States Constitution.[156]

       Beginning in the late 1960s, the Hawai`i Supreme Court, aided by a constitutional convention in 1978,[157] focused new attention and debate on the place of Hawaiian custom and usage in the state's law, particularly in the areas of land and water rights.  While the precise point of origin of this new focus is somewhat difficult to define, the 1968 case of Application of Ashford, is a convenient starting place for discussion. [158]  Ashford held that the term "ma ke kai" in a deed of shorefront land, referring to the line dividing private land from adjoining public submerged land, meant the "upper reaches of the waves as represented by the edge of vegetation or the line of debris" rather than the intersection of the shore and the plane of mean high water as determined by the U.S. Coast and Geodetic Survey.[159]  In reaching this decision, the court, citing HRS section 1-1, relied upon the statements of "kama`aina witnesses"[160] (placed on the record at trial but excluded as evidence upon objection) concerning "ancient tradition, custom and usage."[161]   Justice Marumoto dissented, and in a lengthy and scholarly opinion argued that "[a]ncient tradition, custom, practice and usage have nothing to do in resolving this question."[162]  He disagreed that the proffered testimony constituted "kama`aina testimony" since it came not from true kama`aina but from persons who testified only to what they had once heard from kama`aina now deceased.[163]  Justice Marumoto concluded that "[t]he historical materials referred to in this dissent show that there was nothing in ancient tradition, custom, practice or usage which dictated the use of the vegetation line"[164] as the meaning of the term "ma ke kai" and pointed out that "[f]or well nigh 50 years, all three branches of the Hawaiian government, legislative, executive and judicial, have recognized mean high water line as the location of the high water mark in situations involving private rights and not an internal problem in the administration of government lands."[165]

       Justice Marumoto stopped short of claiming that the change in legal principle effected by the Ashford decision was unconstitutional, but in a subsequent case, Sotomura v. County of Hawaii,[166] the plaintiff made precisely that allegation.  The Sotomuras owned shorefront property on the island of Hawai`i which the County of Hawai`i sought to acquire in a condemnation action.[167]  The land had previously been registered in the state Land Court, and in that proceeding, in accordance with then established practice, the location of the high water mark was fixed along the seaweed line, that is:  the line of growth of seaweed along the seashore.[168]  A question arose concerning whether there had been a loss of land by erosion, and in deciding the issue, the trial judge adopted the Ashford "debris line" test for locating the seaward boundary of the Sotomuras' uneroded land, rather than the seaweed line.[169]  He then divided the land taken by the State into two parcels, that below the erosion line and that above it, for valuation purposes, and valued the seaward parcel at $1.00.[170]  The difference between the former and current seaweed lines was about three feet, while the difference between the old seaweed line and the current debris line was about 43 feet.[171]  The Sotomuras claimed that use of the current and former seaweed lines to measure erosion would have reduced the loss to erosion and thus increased their award by $37,920.[172]

       On appeal to the Hawai`i Supreme Court, the Sotomuras argued (among other points) that the Ashford case had no application to registered land.[173]  The Hawai`i Supreme Court held that the Ashford test did apply, in preference to the original monument (the seaweed line) that governed the location of the seaward boundary in the judgment registering their title.[174]  The court then went further and held, on a point not raised or argued by either party, that the Sotomuras had lost title to a portion of their lot by erosion, that the seaward boundary should be established at the vegetation line (rather than at the debris line), and that the Sotomuras were not entitled to compensation for the land seaward of that line because the State, and not the Sotomuras, actually owned it.[175]  The Sotomuras petitioned for a rehearing, claiming that the court's redefinition of the high water mark had effected a taking of their property without compensation, but the petition was denied without argument.[176]

       The Sotomuras then filed suit in federal district court asserting on various grounds that the decision of the Hawai`i Supreme Court had worked an unconstitutional taking of their property.[177]  The district court held that the Sotomuras had been denied procedural due process by not being afforded an opportunity to present their constitutional claims to the state supreme court.[178]  More importantly for the law of custom, it decided that the Sotomuras had been denied substantive due process, because the Hawai`i Supreme Court's decision "was so radical a departure from prior state law as to constitute a taking of the Owners' property by the State of Hawai`i without just compensation. . . ."[179]  It observed:

This Court fails to find any legal, historical, factual or other precedent or basis for the conclusions of the Hawaii Supreme Court that, following erosion, the monument by which the seaward boundary of seashore land in Hawaii is to be fixed is the upper reaches of the wash of the waves.  To the contrary, the evidence introduced in this case firmly establishes that the common law, followed by both legal precedent and historical practice, fixes the high water mark and seaward boundaries with reference to the tides, as opposed to the run or reach of the waves on the shore.[180]

       The district court declared the decision in Ashford to have been dictum, pointing out that it was based on testimony which was excluded from that case in the trial court, and stated:

As noted above, the reputation evidence offered in Ashford related to unregistered land on an island different from the one herein involved and was not admitted against the adverse party.  Here, no evidence of reputation or of the common practice involved in relocating seaward boundaries after erosion was offered at the eminent domain trial.  Notwithstanding the lack of any foundation in Ashford or the trial record, the Court nevertheless announced that Ashford constituted "judicial recognition of long-standing public use of Hawaii's beaches to an easily recognizable boundary that has ripened into a customary right."  This was based on the Court's reliance upon an Oregon case [State ex rel. Thornton v. Hay, 462 P.2d 671 (Or. 1969)] and its own interpretation of the doctrine of custom as authority.  However, unlike the situation in the Oregon case, no evidence was offered here in either the State trial court or this Court that Lot 3 was ever publicly used.  Even had there been, the Owners were entitled to protection against adverse or prescriptive use by the express provisions of ' 501-87, Hawaii Revised Statutes.  Nor was any evidence offered to establish customary right.  To the contrary, evidence introduced in this Court with respect to Waikiki Beach, Hawaii's most widely-known and heavily-used beach, belies the existence of any such right.[181]

       The Sotomura case was not appealed by the State of Hawai`i.  It therefore stands today to cast continuing doubt not only on the constitutional validity of the Hawai`i Supreme Court's decisions in both Sotomura and its predecessor, Ashford, but on the manner in which the Hawai`i Supreme Court applied "tradition, custom and usage" as a source of law.

       A similar cloud of doubt lies over Hawai`i's water law and also involves the application of ancient Hawaiian custom and usage.  Before Western contact, the inhabitants of the Hawaiian islands had developed a "sophisticated system of water regulation" overseen by the konohiki of each ahupua`a in the interests of both agricultural and domestic use.[182]  Wells Hutchins, in The Hawaiian System of Water Rights,[183] explains:

The system . . . is not based upon the common law, or the civil law or the doctrine of prior appropriation; it is the crystallization into legal form of customs that were developed among the natives before the coming of the white man.  These customs, therefore, are truly of ancient origin and they necessarily antedated any written legislation on the subject of water.[184]

This system was further developed during the kingdom and afterward into a system of private property rights well suited to Hawai`i's agricultural economy, but rooted firmly in Hawai`i's ancient past.[185] 

       In 1973 the Hawai`i Supreme Court rendered its decision in McBryde Sugar Co. v. Robinson[186] on an appeal of a trial court decision adjudicating rights of various water users in the Hanapepe Valley on the island of Kauai.[187]  That litigation had begun in 1959 and had been developed under the water law as it had existed until that point.[188]  The Hawai`i Supreme Court, however, while basing its ruling on traditional Hawai`i water law principles on some of the points raised, rendered a decision on other issues, not briefed or argued by the parties, which dramatically altered the prevailing law.[189]  In petitions for rehearing, the parties argued, among other issues, that the changes wrought by the court's decision constituted an unconstitutional taking of their private property rights.[190]  The court rendered a per curiam decision on rehearing in which it ignored the constitutional issues and made no change in its original decision.[191] 

       A number of the parties involved in the state court proceedings then filed suit in the federal district court asserting the unconstitutionality of the Hawai`i Supreme Court's decision.[192]  In a blistering and derisive opinion, the district court held that the Hawai`i Supreme Court had indeed overstepped constitutional limits.[193]  It held that by deciding the case on issues never raised or argued and by failing to consider the constitutional objections raised on request for rehearing, the court had denied those parties procedural due process.[194]  It also determined that the Hawai`i Supreme Court, by electing to "completely restructure what was universally thought to be the well settled law of waters of Hawai`i", denied the complainants substantive due process.[195]  The court stated:

As indicated above, the decision made an unsolicited and unexpected gift to the state of all of the waters of the streams and to the complete surprise of all parties, said that the State had always owned the waters.  There was no precedent for this determination.  The court had to toss aside as dicta all the mass of prior decisions to the contrary, turn its then blind eyes toward the rule of stare decisis, tear apart the doctrine of res judicata, and discover completely new meanings in ambiguous Hawaiian words and phrases used a century before in order to change the law of water rights and gift wrap the waters for the state.[196]

The court quoted from Hughes v. Washington,[197] as follows: "[A] State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all,"[198] and accordingly declared unconstitutional those parts of the state court decision which effected the dramatic and unanticipated changes in state law.[199]  On appeal, the Ninth Circuit affirmed.[200]

       The decision subsequently had a complex and tortuous history of appeals culminating in a decision that the case was not ripe for adjudication because the State of Hawai`i had taken no steps to enforce the rights of ownership assertedly conferred on it by the McBryde decision.[201]  Nevertheless, none of the appellate decisions challenged the fundamental constitutional analysis of the district court, and until the day, if ever, that the constitutionality of the McBryde decision becomes "ripe" for decision, the state's surface water law remains uncertain.[202]

       The federal court decisions in Sotomura and Robinson v. Ariyoshi sounded a note of caution with respect to the Hawai`i Supreme Court's apparent willingness to make sudden and substantial changes to prior law.[203]  Both of the federal decisions in these cases identified major constitutional obstacles in the path of what they seem to have considered unseemly and intemperate haste by the Hawai`i Supreme Court to implement a revolutionary political agenda through judicial activism.[204]  Both involved searches into Hawai`i's judicial history and considerations of the role and effect of custom and usage on Hawai`i law.  Both federal decisions cast the gravest aspersions on the historical research and analysis of the state court’s majority and made clear that casual appeals to "custom and usage" to support revolutionary changes in prior case law cannot count on avoiding cold and thorough scrutiny.  Nevertheless, in a recent series of cases concerning claims of access and gathering rights, the Hawai`i Supreme Court has shown a willingness to make changes in settled law at least as dramatic as those  criticized in Robinson v. Ariyoshi and Sotomura.

 

VII.  PASH - A New Line in the Sand

 

       The PASH case,[205] which accords a most favored position in the law to Hawaiian custom and usage, raises constitutional questions similar to those raised in Sotomura and McBryde.  In PASH, Nansay Hawai`i, Inc. had applied to the Hawai`i County Planning Commission ("HPC") for a Special Management Area ("SMA") use permit under the state's Coastal Zone Management Act[206] ("CZMA") for development of a resort complex on the island of Hawai`i.[207]  Public Access Shoreline Hawai`i ("PASH") and others opposed the permit and sought a contested case hearing.[208]  HPC denied the request and  thereafter issued the permit requested by Nansay, and PASH thereupon filed suit.[209]  The circuit court essentially vacated the permit, and the Intermediate Court of Appeals ("ICA") upheld the circuit court, finding that HPC "disregarded the rules regarding the gathering rights of native Hawaiians and its obligation to preserve and protect those rights."[210]  PASH had asserted that some of its members possessed traditional native Hawaiian gathering rights at Kohanaiki, the site of the development, including food gathering and fishing for opae (prawns) in the anchialline ponds on the proposed development site.[211]  Nansay and HPC argued that HPC had no obligation to consider or require protection of traditional and customary Hawaiian rights,[212] and HPC also argued that it had satisfied any putative obligation by requiring preservation of the anchialline ponds.[213]  Nansay and HPC further argued that PASH had failed to establish a prima facie claim of native Hawaiian gathering rights, because the claimed gathering practices had been conducted only since the late 1920's.[214]

       The Hawai`i Supreme Court affirmed the decision of the ICA.[215]  The specific ground of its decision was that the State CZMA permitted issuance of an SMA permit only upon a finding that the proposed project will "not have any significant adverse effects", which may include "an irrevocable commitment to loss or destruction of any natural or cultural resource, including but not limited to, historic sites and view planes"[216] as well as effects upon "the economic or social welfare and activities of the community, County or state".[217]  The court then suggested that HPC could impose permit conditions to effectuate these obligations and keep faith with article XII, section 7 of the state constitution, without causing an unconstitutional taking of (presumably Nansay's) private property rights, by requiring a "dedication" by Nansay to "ensure continued access to the subject property for the legitimate and reasonable practice of customary and traditional rights."[218]  It returned the case to HPC with directions to "consider PASH's alleged customary rights"[219] and noted that "if such rights are established, HPC will be obligated to protect them to the extent possible."[220]

       This order could have concluded the court's opinion, but instead it served merely as a starting point.  The court used the PASH appeal as an opportunity for a far-ranging review of the various tests and constraints which Hawai`i courts had applied at various times since 1858 in adjudicating claims of traditional and customary rights.  In doing so, the court threw into turmoil the historical rules and standards of state law concerning the legal status of custom, usage and tradition.

       The remainder of this article examines the principal elements of the court's discourse on the establishment of traditional and customary gathering and access rights.  It suggests that the court's effort to ignite, if not to accomplish, counterrevolutionary changes in the state's law of custom and real property is undermined by uncertainty, ambiguity and constitutional infirmity, and that the attempted counterrevolution may well not survive disciplined, determined challenge on behalf of the established order.

 

A.  The Precursors of PASH

 

       PASH derives from and expands upon the court's earlier decisions in Kalipi v. Hawaiian Trust Co.[221] and Pele Defense Fund v. Paty.[222]  Understanding PASH requires a brief review of those earlier cases.

 

1.    Kalipi v. Hawaiian Trust Co.

 

       In Kalipi, the plaintiff had sought the court's confirmation of asserted gathering rights in defendants' real property.[223]  Kalipi claimed that "it [had] long been the practice of him and his family to travel the lands of the Defendants in order to gather indigenous agricultural products for use in accordance with traditional Hawaiian practices"[224] and that defendants had unlawfully denied him continued access to their lands for these purposes.[225]  He asserted three legal bases for his claim:  (1) HRS section 7-1, (2) "native custom and tradition" as preserved by the "Hawaiian usage" provision of HRS section 1-1, and (3) the language in grants of land to ali`i and konohiki at the time of the Mahele preserving the rights of native tenants.[226]  The court rejected Kalipi's claim under HRS section 7-1 because Kalipi did not reside in the ahupua`a where the lands in question were located,[227] a limitation which the court found to be "dictated by the language of the statute itself."[228]  The court also rejected Kalipi's claim based on "Hawaiian usage" under HRS section 1-1, stating that "as with the gathering rights of § 7-1, there is 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."[229]  Finally, the court rejected Kalipi's claim based on the so-called "kuleana reservation" in the original awards of the two ahupua`a in question.  Here, too, the court applied the residence requirement to defeat Kalipi's claim.[230]

       Thus the only issue material to the court's decision on Kalipi's claim was Kalipi's residence in the ahupua`a within which he wished to exercise those rights.  En route to its rejection of all Kalipi's claims for failure of the residency requirement, however, the court, in what appears to be wholly gratuitous dicta, discussed in some detail what rights might be protected by HRS section 7-1, section 1-1 and the kuleana reservation.  With respect to HRS section 7-1, it stated that, provided "no actual harm is done thereby,"[231]

. . . lawful occupants of an ahupua`a may, for the purposes of practicing native Hawaiian customs and traditions, enter undeveloped lands within the ahupua`a to gather those items enumerated in the statute.[232]

       In addressing HRS section 7-1, Kalipi was fairly conservative.  It held closely to the language of the statute, and indeed imposed restrictions beyond those expressed in the statute by limiting the exercise of gathering rights to undeveloped land[233] and establishing a "purpose" constraint ("for the purpose of practicing native Hawaiian customs and traditions").[234]  It also confirmed that "those asserting the rights cannot prevent the diminution or destruction of those things they seek.  The rights therefore do not prevent owners from developing their land".[235] 

       In addressing Kalipi's claims under HRS section 1-1, however, the court announced a dramatic if hypothetical break with the past.  Citing Blackstone, it asserted:

We perceive the Hawaiian usage exception to the adoption of the English common law to represent an attempt on the part of the framers of the statute 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.  Cf., O'Brian v. Walker, 35 Haw. 104 (1939), aff'd 115 F.2d 956 (9th Cir. 1940) (Hawaiian custom and usage regarding adoption applied pursuant to statute).  The statutory exception to the common law is thus akin to the English doctrine of custom.[236]

       These observations, read in isolation, are consistent with Hawaiian judicial tradition since its origin.  The court applied them, however, both to attack the past and to obscure the future.  It stated:

This, however, is not to say that we find that all the requisite elements of the doctrine of custom were necessarily incorporated in § 1-1.  Rather, we believe that the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area.

In this case, Plaintiff's witnesses testified at trial that there have continued in certain ahupua`a a range of practices associated with the ancient way of life which required the utilization of the undeveloped property of others and which were not found in ' 7-1.[237]

       As to these practices, the court concluded:  "Where these practices have, without harm to anyone, been continued, 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."[238]

       Here was the break.  This opinion is squarely contrary to Oni v. Meek.[239]  The court, however, did not overrule Oni, but instead attempted to distinguish it away.  It began with a confused and confusing misdescription of the Oni court's analysis of the issues before it,[240] and then announced:

We thus interpret Oni to stand for the proposition that ' 7-1 expresses all commoners' rights statutorily insured at the time of the Mahele.  However, inasmuch as the court did not expressly preclude the possibility that the doctrine of custom might be utilized as a vehicle for the retention of some such rights, we find no inconsistency in finding that the Hawaiian usage exception in ' 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.[241]

       This result, of course, is precisely what Oni was intended to prevent, at least with respect to claims that "customary rights" existing under pre-Mahele feudal tenure persisted under the post-Mahele fee simple regime.  Of course, section 1-1 as originally enacted could have operated to preserve Hawaiian national usages which had ripened into common-law custom, if the common law requirements for the establishment of such "customs" were met, as had been the case with adoption.[242]  As of 1892, however, the statutory and decisional law of the kingdom, as manifested in Oni and in Kahinu v. Aea[243] and reaffirmed a few years later in Dowsett v. Maukeala[244], was clear that pre-Mahele access and gathering "usages" which were not expressly continued by HRS section 7-1 were simply not among the "usages" or "customs" of the kingdom recognized by the law.  Absolutely nothing in HRS section 1-1 states or implies that such usages or customs were revived by that statute; indeed, HRS section 1-1 would appear to have diminished  rather than enhanced the vitality of Hawaiian custom as a source of law, since before the enactment of that law, the courts of Hawaii had taken a rather independent view of their obligations to adhere to the English and American common law, and the statute would have operated to restrict that freedom.[245]  The Kalipi court's awkward effort to distinguish Oni is intellectually unsuccessful, but it set an unfortunate example to which later Hawai`i decisions have all too closely adhered.[246]

 

2.    Pele Defense Fund v. Paty

 

       Pele Defense Fund v. Paty[247] ("PDF") involved a challenge to a State of Hawaii plan to exchange certain public lands for private lands.  Plaintiff Pele Defense Fund ("PDF") alleged on behalf of its members that the transfer violated article XII, section 7 of the state constitution by interfering with plaintiffs' exercise of "customarily and traditionally exercised subsistence, cultural and religious practices."[248]  The circuit court dismissed the action, and the state supreme court affirmed in part and reversed in part,[249] concluding that "there are genuine issues of material fact with respect to PDF's claim under article XII, section 7."[250]  The court reached this conclusion by extending the holding in Kalipi to protect claims to gathering and access rights in an ahupua`a other than that in which the claimants reside.[251]  It noted that Kalipi's claims had not been sustained because they had been based on ownership of land in the ahupua`a where he sought to exercise his claimed rights, rather than on residence as required by HRS section 7‑1,[252] whereas PDF members claimed their rights "based on the traditional access and gathering patterns of native Hawaiians in the Puna region."[253]  The court examined the legislative history of article XII, section 7 and concluded that "[i]f, as argued by PDF, the customary and traditional rights associated with tenancy in an ahupua`a extended beyond the boundaries of the ahupua`a, then article XII, section 7 protects those rights as well."[254]  In so holding, the court essentially removed the residency requirement in Kalipi and implied that article XII, section 7 of the state constitution protected rights other than those encompassed by HRS section 7-1.[255]  It did not affirm the specific rights claimed, however, but returned the case for a trial on the merits.[256]

 

B.    Relaxing the Standards for Establishing Traditional and Customary Rights

 

       If Kalipi and PDF could be said to have opened a path to the assertion of access and gathering rights, it could as well be said that PASH built superhighways, or at least threatened to do so.  The court's opinion ranged at will through the various restrictions which earlier cases had placed on the establishment of such rights, and declared its readiness to abandon some or all of these restrictions in future cases.  Unfortunately for the stability of titles, however, the court dealt almost exclusively in hypotheticals; it neither upheld the rights claimed by the plaintiffs before it (which would have established a precedent, if not necessarily a rule), nor delineated what rules of law would govern the adjudication of such rights in the future.  The following sections address specific points addressed by the court.

 

1.    The Kalipi limitations

 

       The PASH court stated that contrary to any appearance that the decisions in Kalipi v. Hawaiian Trust Co.[257] and Pele Defense Fund v. Paty[258] may have placed limits on the sort of rights which article XII, section 7 might protect, those cases should not be read to preclude "further inquiry concerning the extent that traditional practices have endured under the laws of this state."[259]  The PASH court undertook no such inquiry, but did undertake to broaden extensively (if hypothetically) the so-called "Kalipi rights"[260] addressed and extended in Pele Defense Fund v. Paty.[261]

       Undeterred by the express and unambiguous language of Kalipi, the PASH court announced that even though access to "fully developed" land may perhaps be "inconsistent[262]", legitimate customary and traditional rights must be protected "to the extent feasible."[263]  The State, according to the PASH court, does not have the right to "regulate the rights of ahupua`a tenants out of existence"[264] (presumably by permitting a landowner to do what Kalipi expressly allowed). The PASH court thus backed away from the Kalipi court's refusal to extend gathering rights to fully developed land,[265] although it avoided any firm position as to where any new line might be drawn.[266]

 

2.    The need for proof of "rights"

      

       In declining to exclude "fully developed" land from the possible reach of such claims, the court stated that "such an approach would reflect an unjustifiable lack of respect for gathering activities as an acceptable cultural usage in pre-modern Hawai`i, see HRS section 5-7.5 (Supp. 1992), which can also be successfully incorporated in the context of our current culture."[267]   Here the court appears to focus not on "rights" under traditional principles, but on whether a "practice" ever existed at some undefined "pre-modern" time in the past, and whether it could be practiced today.  Such an approach is vastly broader than an inquiry as to whether a "usage" in the legal sense existed and continues to exist, and whether it meets the common law tests for "custom", as incorporated into Hawaii's law in 1892, which would give it the force of law today.          Ultimately, however, the PASH court leaves the significance of this remark unexplained.  The term "pre-modern" is not defined in the opinion, and the court does not state whether it means pre-Mahele, precontact, pre-1892 or something else.  The court also does not explain how a "respect for gathering activities" might evolve into an affirmation of a "right". 

       This distinction between rights and practices is crucial.  A "right", in its common legal meaning, is a legally enforceable claim of one person against another.[268]  Nothing in PASH suggests that the court had any other meaning in mind when it used the term.  "Practices" are not necessarily a matter of "right"; under long-established Hawai`i law, for example, a "practice" of using the land of another to travel to and fro does not ripen into a "right" of way by prescription unless all the requirements of a prescriptive right are established[269], and a permissive use will never create a right of way, however long continued.[270]  Article XII, section 7 of the state constitution refers expressly to the reaffirmation and protection of rights "customarily and traditionally exercised".  The absence of any indication in this provision itself of what these "rights" are and how they are established necessarily implies that these "rights" must have their source and definition somewhere other than this clause of the state constitution.[271]  It is worthy of note that during the deliberations of the 1978 Constitutional Convention which proposed this section for adoption, the question arose as to its scope and meaning, and the issue was left unresolved for future resolution in the courts, or in the legislature.[272]

       Of itself, article XII, section 7 of the state constitution concerning the protection of Native Hawaiian traditional and customary rights does not appear either to enlarge the list of rights in HRS section 7-1 or to provide an independent source of rights; indeed, it may more accurately be read to limit both the purposes for which existing rights may be exercised ("subsistence, cultural and religious purposes"[273]) and the persons who may exercise them ("descendants of native Hawaiians who inhabited the islands prior to 1778").

       Thus PASH adds nothing substantive to the content or effect of article XII, section 7, but it does suggest that the rights referred to in that article may extend beyond the panoply of rights which one person or entity may have, under traditional principles of state law, in the real property of another.  Until those extended rights are defined, however, and are found to meet constitutional requirements, the only "rights" which could be protected by PASH or article XII, section 7 are, necessarily, those already established by Hawaii's statutory or decisional law.

 

3.    The stubborn persistence of Oni v. Meek

 

       The PASH court, like the Kalipi court, strove heroically to distinguish Oni v. Meek,[274] correctly identifying it as a most daunting obstacle to the PASH court's conclusions.  It said of Oni:

Oni does not stand for the proposition that customary rights, which had not yet been formally established through judicial proceedings, were extinguished sub silentio by the Mahele or its associated legal developments.  Oni merely rejected one particular claim based upon an apparently non-traditional practice that had not achieved customary status in the area where the right was asserted.[275]

       As the discussion of Oni earlier in this article[276] makes clear, however, the PASH court is simply wrong in its characterization of that case.  Oni stands squarely and consciously for the proposition which the PASH court rejects; that is, Oni held that all former feudal access and gathering rights not specifically listed in the 1850 statute were extinguished.[277]  Further, contrary to the PASH court's statement, Oni did not reject "one particular claim based upon an apparently non-traditional practice that had not achieved customary status".[278]  The court in Oni explicitly declined to base its decision on grounds that the claimed pasturage right had not achieved customary status (i.e., that it was "not shown to have obtained from time immemorial").[279]  Instead, Oni spoke most broadly and in terms of national policy.  It explicitly confirmed the rejection by the king and the legislature of the universe of hoa`aina rights rooted in the pre-Mahele society, except for the specific rights enumerated in what is now HRS section 7-1.  The Oni court's use of, and emphasis on, the word "all" in stating that "it was the intention of the Legislature to declare, in this enactment, all the specific rights of the hoaaina (excepting fishing rights)[280] which should be held to prevail against the fee simple title of the konohiki"[281] could hardly make the point more emphatically.  Finally, the Oni court did not "merely" decide anything; the court and the parties before it knew how important and far-reaching the decision would be, the defendant therein agreeing "that judgment should be entered against him in the Court below, reserving by consent his right to appeal, in order that the case, which involves some questions of great importance, and will determine the rights of many other persons besides the present plaintiff and defendant, might be heard and decided by this Court."[282]  To this end it emphasized the "traditional and customary" context of the old traditions in the feudal system which the Mahele had brought to an end—and under which the privileges of access and gathering were tied to reciprocal obligations of subordination, labor and the payment of taxes.[283]

       Thus, Oni v. Meek is wholly and fundamentally inconsistent with PASH, yet astonishingly, the PASH court leaves Oni intact.  Its attempt to "distinguish" Oni is unsuccessful.  It neither overrules Oni nor explains how it now reaches a diametrically opposite conclusion concerning the effect of what is now HRS section 7-1.  Possibly the PASH court felt that expressly overruling Oni v. Meek would illuminate too brightly its refusal to abide by that unequivocal and venerable precedent.  Whatever the court's motivation, Oni remains a legal Gibraltar for traditional real property principles in Hawai`i, an enduring bastion of the traditional order and a continuing reproach to revolutionary reinterpretations of "traditional and customary" private property rights.

 

4.    The common law of custom and usage

 

       The PASH court cited approvingly from Kalipi to the effect that the "Hawaiian usage" exception in HRS section 1-1 to the adoption of the common law in Hawai`i did not incorporate "all the requisite elements of the doctrine of custom".[284]  The court did not provide a list of the elements of the traditional law of custom which do not (or will not) apply in Hawai`i, but offered as examples (1) that the "usage" have existed "time out of mind", since in Hawaii, a valid usage must have existed before the adoption of the predecessor of the present HRS section 1-1 in 1892; and (2) Blackstone's comment that "a custom for every inhabitant of an ancient messuage . . . to take a profit a prendre in the land of an individual is bad".[285]  As to the latter limitation, the PASH court noted that "[s]trict application of the English common law, therefore, would apparently have precluded the exercise of traditional Hawaiian gathering rights.  As such, this element of the doctrine of custom could not apply in Hawai`i."[286]  It asserted further that "[t]he Kalipi court properly recognized that 'all the requisite elements of the doctrine of custom were [not] necessarily incorporated in section 1-1'"[287] and that "[a]ccordingly, HRS ' 1-1 represents the codification of the doctrine of custom as it applies in our State".[288]

       The first of these limitations, which fixes the "time out of mind" date for Hawaiian custom as 1892, is perhaps reasonable, particularly in light of the long tradition of Hawaiian courts to adopt realistic compromises on such temporal requirements.[289] 

       The second and broader statement, however, with its reference to profits a prendre and Kalipi, is more troubling.  The courts of the kingdom were thoroughly familiar with the doctrine of custom as it had developed within the English and American common law; Oni v. Meek, of course, is a conspicuous example in which the doctrine was discussed and used consistently with Blackstone.  Another example is the early case of Coady v. Ship "Lewis",[290] which discussed the doctrine in its more usual context of the law merchant and demonstrated the court's full and precise understanding of its traditional common law nuances.  As noted earlier in this article, early jurists of the Hawaiian kingdom did not slavishly follow English or American common law in all respects, but their departures from the common law were carefully considered[291] and were extremely few in number, more in the nature of polishing and pruning the common law than rejecting major parts of it.[292]  The decisions of the kingdom courts gave no hint of a willingness to abandon or alter the doctrine of custom as it had been handed down from England and America.

       Even as recently as 1977, the Hawai`i Supreme Court showed something less than enthusiasm for reliance on pre-Mahele custom for guidance on modern property issues.  In the 1977 case of State v. Zimring (hereinafter Zimring II),[293] the Hawai`i Supreme Court had considered whether the new fast land formed when lava flowed over private land into the ocean belonged to the private land owner or to the state.  The trial court had applied what it could find of ancient Hawaiian custom and usage to conclude that the lava extension belonged to the private land owner.  On appeal, the Hawai`i Supreme Court disagreed, finding the evidence insufficient to establish the asserted usage either before or after the Mahele.  It went on to say that even if a traditional pre-Mahele usage had been established, it "would be of little weight" because "the interests a landowner may have enjoyed under the traditional system, within which there was no private land title and all land was held in trust for the people by the King, are of little relevance in determining private rights to title under a private property regime."[294] 

       The PASH court, in at least two specific rejections of past law, implies a different course for the future.  First, with respect to Zimring II, the PASH court specifically disavowed the Zimring II court's caution with respect to custom, as well as a possible limitation based on discontinuation of a practice, stating:

Contrary to the dictum in Zimring II, supra, the ancient usage of lands practiced by Hawaiians did, in fact, carry over into the new system of property rights established through the Land Commission. . . . [T]he right of each ahupua`a tenant to exercise traditional and customary practices remains intact, notwithstanding arguable abandonment of a particular site, although this right is potentially subject to regulation in the public interest.[295]

The second rejection of prior law—the dismissal of Blackstone's comment concerning establishment of a profit a prendre on grounds that "[s]trict application of the English common law . . . would apparently have precluded the exercise of traditional Hawaiian gathering rights"[296]—is of much greater significance.  Blackstone's comment reflected an essential and fundamental element of the law of custom, which permitted the creation of easements by custom, but not such "extractive" rights as profits.[297] 

       While there were some cases to the contrary, "the easements-profits distinction continued to be recognized in English land law until this century."[298]  Those few states of the United States which recognized the doctrine of custom in the eighteenth and nineteenth centuries appear, for the most part, to have preserved the easements-profits distinction, and to have rejected claims of profits based on custom.[299]  PASH, by rejecting this principle, rejects a fundamental element of both English and American common law on the subject.  Nothing in Hawaii's pre-1892 jurisprudence indicates that the courts of the kingdom had ever contemplated such a departure from the common law.

       Thus PASH declares, at least by implication and perhaps expressly, that as issues of traditional and customary "rights" arise, the court is prepared to redefine "custom" or "usage" to whatever extent might be necessary if the common law definition fails to take the court where the court wants to go.  This declaration of independence from the traditional analysis of custom, which lacks either compelling analytical argument or some reference to supporting precedent in Hawai`i or elsewhere, foreshadows a serious constitutional question insofar as that declaration presages a sweeping and unjustified change of unpredictable scope and character in the state's law of custom as applied to real property.[300]

 

5.    The significance of "tenancy"

 

       Oni v. Meek,[301] Dowsett v. Maukeala,[302] Kalipi v. Hawaiian Trust Co.[303] and (by analogy) Haalelea v. Montgomery[304] had all tied the rights preserved by what is now HRS section 7-1 to "tenancy" in the ahupua`a, meaning lawful occupancy.[305]  The PASH court stated, however, that "it is not clear that customary rights should be limited by the term 'tenant',"[306] and stated further that "common law rights ordinarily associated with tenancy do not limit customary rights existing under the laws of this state".[307]  The court did not explain these comments, and thus the decision leaves it uncertain whether "customary" rights are (a) purely personal (and if so, whether the claimant must still show some familial, associational or other traceable link to a person or persons who engaged in the practice in question before 1892), or (b) appurtenant or otherwise related to land currently owned or occupied by the claimant, or (c) dependent in some way on a connection between the claimant and the land sought to be invaded, or (d) none of these.[308]  Given the ambiguity of its remarks, one could envision the court sustaining a claim based solely on evidence that the practice in question was engaged in somewhere in Hawaii before 1892, that a given parcel selected at the will of the claimant could physically support the practice, and that the claimant has a genealogical link to an ancestor who lived in precontact Hawaii.  As noted in the following section, it is not even certain that such a genealogical link to precontact Hawaiians is required.

 

6.    Racial limitations in article XII, section 7 of the state constitution

 

       The PASH court affirmed that it is the traditional and customary rights of "descendants of native Hawaiians"[309] which are protected by article XII, section 7 of the state constitution, but it asserted that these protections are not based on race, but "flow from native Hawaiians' pre-existing sovereignty."[310]  The court left open the question whether descendants of subjects of the Kingdom of Hawai`i who had no ancestors among precontact occupants of the Hawaiian Islands could assert traditional and customary rights.[311]

       This attempt to avoid the issue of race[312], like the court's dilution of the requirements for establishing a custom, is devoid of either logical analysis or citation to authority which might support it, and is difficult to reconcile with ordinary concepts of sovereignty as that term is used in international law.[313]  "Sovereignty" is a fairly well-established concept; Black's Law Dictionary assembles a lengthy list of meanings,[314] all essentially of the same import, i.e., that "sovereignty" is the power to govern independent of some higher authority.[315]  There is no obvious connection between any of these definitions and gathering rights, and if there is a subtle or obscure connection, the PASH court provided no guide to it. 

       The PASH court does not suggest that any citizens of the state of Hawaii who are of Hawaiian ancestry have any independent sovereignty today, apart from the sovereignty they share with all other citizens of the state and the nation as members of the body politic.  Nor did persons of Hawaiian ancestry, as such, have rights under the Kingdom of Hawai`i which could be termed "pre-existing sovereignty"; the courts of the kingdom made it clear beyond misunderstanding that the "native subjects" of the kingdom had no inherent sovereignty.  In the 1863 criminal case of Rex v. Booth[316] the defendants had been charged with violating a statute prohibiting the sale of intoxicating liquor to "native subjects" of the kingdom.  Defendants argued that the law was unconstitutional under the 1852 Constitution as discriminatory class or special legislation.  One element of their argument was that in constitutional governments the Government emanates from the people, and that the legislature acts as agent of the people, and that "it is against all reason and justice to suppose . . . that the native subjects of this Kingdom ever entrusted the Legislature with the power to enact such a law as that under discussion."  The court responded:

Here is a grave mistake—a fundamental error—which is no doubt the source of such misconception. . . . The Hawaiian Government was not established by the people; the Constitution did not emanate from them; they were not consulted in their aggregate capacity or in convention, and they had no direct voice in founding either the Government or the Constitution.  King Kamehameha III originally possessed, in his own person, all the attributes of sovereignty.[317]

The court then explained how and why Kamehameha III had promulgated the 1840 Constitution and its 1852 successor, under which the King's absolute power was shared with the Nobles and the House of Representatives.  It then continued:

Not a particle of power was derived from the people.  Originally the attribute of the King alone, it is now the attribute of the King and of those whom, in granting the Constitution, he has voluntarily associated with himself in its exercise.  No law can be enacted in the name, or by the authority of the people. The only share in the sovereignty possessed by the people, is the power to elect the members of the House of Representatives; and the members of that House are not mere delegates.[318]

Consistent with this philosophy, it was apparently the view of Kamehameha V and Queen Lili`uokalani, at least, that among the prerogatives of the monarch was the unfettered right to amend or revoke the sharing of sovereignty reflected in the constitution, as might be appropriate in the discharge of the monarch's duties.[319]

       Thus the PASH court's appeal to "native Hawaiians' pre-existing sovereignty" to evade the issue of racial preference is both historically inaccurate and legally irrelevant.  "Native Hawaiians" as a group or class do not and did not have "pre-existing sovereignty".  This leaves the restriction in article XII, section 7 subject to challenge as a racial limitation[320] which must satisfy a test of "strict scrutiny"[321] unless the analogy to American Indians applies.[322]  The PASH court does not address whether the test of strict scrutiny can be met, and the few courts which have considered the matter of the Indian analogy have come to inconsistent conclusions.[323]

 

7.    Application of the "Aloha Spirit" statute

 

       In what might be described as the Zen of PASH, the court referred without extensive comment to HRS section 5-7.5 in support of its statement that placing "undue emphasis on non-Hawaiian principles of land ownership in the context of evaluating deliberations on development permit applications"[324] would "reflect an unjustifiable lack of respect for gathering activities"[325] in the past and present.  In an accompanying footnote, the court stated:

In accordance with HRS ' 5-7.5(b), we are authorized to "give consideration to the 'Aloha Spirit'."  The Aloha Spirit "was the working philosophy of native Hawaiians[;] . . . 'Aloha' is the essence of relationships in which each person is important to every other person for collective existence."  HRS ' 5-7.5(a).[326]

       The court's invocation of HRS section 5-7.5 as a legitimate "consideration" in judicial decisions concerning real property rights portends no good for stability of titles in Hawai`i.  That statute authorizes courts of the state, as well as the executive and legislative branches of state government, to "contemplate and reside with the life force and give consideration to the 'Aloha Spirit'" in exercising their responsibilities.  The statute provides a number of definitions of "aloha", noting that "'Aloha' means to hear what is not said, to see what cannot be seen and to know the unknowable."[327]   The application of this statute in future cases concerning real property rights will undoubtedly be watched with gleeful anticipation by legal scholars both in Hawaii and in other common law jurisdictions,[328] but must surely be a source of anxiety to developers, other property owners in Hawai`i and investors.

 

8.    Redefinition of fee simple title

 

       Of all the departures from prior law suggested in PASH, this is perhaps the most far-reaching.  Following a somewhat rambling and disjointed review of the development of Hawai`i property law through the time of the Great Mahele,[329] the PASH court announced that "[o]ur examination of the relevant legal developments in Hawaiian history leads us to the conclusion that the western concept of exclusivity [as an element of private property rights in land] is not universally applicable in Hawai`i"[330] and that "the issuance of a Hawaiian land patent[331] confirmed a limited property interest as compared with typical land patents governed by western concepts of property."[332]  By these statements the court appears to imply (but does not state explicitly) that the fee simple rights created during the Great Mahele never included the right to prohibit access for such gathering activities as might have been previously exercised.[333]

       This fundamental element of the PASH court's decision—that land grants from the Kingdom conveyed something less than full fee simple absolute title[334]—is not related by strict logic to the court's preceding discussion of history.  That discussion of history dealt with the king's reservation of sovereign prerogatives at the time of the Great Mahele[335] and the importance of custom in Hawaiian jurisprudence[336], neither of which, independently or in combination, supports the court's conclusion concerning the meaning of fee simple title in Hawai`i.  The court's conclusion is impossible to reconcile with the long-established principle of Hawai`i law that a Land Commission Award is "conclusive as to title against all the world"[337] except for reserved rights of native tenants,[338] existing rights of way,[339] statutory fishing rights,[340] and the government's commutation[341] and reserved mineral rights.[342]       The court's conclusion is also impossible to reconcile with either Oni v. Meek[343] or with Kahinu v. Aea.[344]  Kahinu particularly is pertinent, since in that case the court rejected an argument that an earlier practice of natives to remove house frames when moving from one parcel of land to another persisted as an implied right in real property transactions involving natives.  The court in Kahinu observed that such an interpretation of fee simple title would be in derogation of rights of a landowner under traditional English and American common law, and refused to accept it.[345]

       It goes almost without stating that the PASH court's rejection of the "exclusivity" ordinarily inherent in fee simple title contravenes both traditional and modern law developed on the subject by the United States Supreme Court.[346]  It also appears to conflict directly with the state's own land registration statute,[347] which assures a title which is "conclusive upon and against all persons, including the State"[348] and which is also proof against adverse possession and prescription[349] to those who follow its procedures.  The land registration statute provides seven specified classes of encumbrances which are not affected by the land registration process[350], none of which would include a claim of gathering or access rights.  Hawaii Revised Statutes section 501‑81, however, provides that "[r]egistered land, and ownership therein, shall in all respects be subject to the same burdens and incidents which attach by law to unregistered land," including such burdens as "rights incident to the relation of husband and wife" and "levy on execution", and specifically provides that "[n]othing in this chapter shall in any way be construed to . . . change or affect in any way any other rights or liabilities created by law and applicable to unregistered land."[351]  PASH does not state whether "traditional and customary rights" are "created by law" in this sense, but the court in Damon v. Tsutsui[352] held that fishing rights established as an incident of "tenancy" in an ahupua`a by the statute of 1839 derived from the statute[353] rather than from the conveyance creating the tenancy, so at least in the case of an ahupua`a tenant claiming rights under HRS section 7-1, a similar argument might be made to overcome a defense based on the land registration statute.  Claims of rights not specifically created by statute, however, would appear to be foreclosed by the land registration law for lands with registered title.

 

C.  PASH and the United States Constitution

 

       Is the PASH case subject to constitutional challenge?  Setting aside the issue of ripeness for the moment, the most likely challenge would be based on the same grounds raised in Sotomura v. County of Hawai`i[354] and Robinson v. Ariyoshi:[355]  that the decision is so radical a departure from prior state law as to constitute a taking of property owners' property without just compensation.  Such a challenge would logically focus on the effect of that decision in affording to persons with no interest of record in, or visible connection with, a parcel of land owned by another an opportunity to claim rights, vastly broader than had been generally believed to exist, to physically invade and make use of some or all of that parcel and take things from it, at times and places and for purposes only vaguely hinted at in PASH, at some time or times in the unlimited or indefinite future.  A challenge might also be raised to the apparently racial limitation on who may hold and exercise these rights.

       Contrary to the PASH court's characterization, the issue is not one of "Hawaiian" principles of law or property versus "Western" ones.  As discussed earlier in this article[356], "Hawaiian" property law, at least from the time of the Mahele and perhaps well before, was symbiotically intertwined with "Western" concepts.  The PASH court's artificial opposition of "Hawaiian" to "western", as if both had persisted with equal vitality and in actual conflict from the past to the modern day, is unfortunate, because it injects a racial or ethnic character into a debate where such considerations can only impede rational solutions. 

       What PASH did was to propose to abandon, without substantial logical or authoritative support, over a century of prior law, both under the Kingdom and afterward, which defined and applied the concept of fee simple title in careful parallel to English and American common law; which established HRS section 7‑1's narrow list of gathering rights as the sole catalog of "traditional" gathering rights surviving the creation of fee simple estates during the Great Mahele; and which restricted those rights to ahupua`a tenants (not "native Hawaiians" or any other racially-defined group). 

       In fact, what the court refers to as "customary and traditional Hawaiian rights" could, consistent with PASH, turn out to be none of these things.  In specific cases, they may not be "customary", because they could possibly be upheld even though they fail to meet the common law tests for custom. They may likewise not be "traditional," either because in a modern incarnation they would be severed from their pre-Mahele feudal context or because they have not been widely practiced (or practiced at all) for generations.  They may not be limited to persons of Hawaiian ancestry, either because they were not so limited in the past or because the U.S Constitution forbids it. Finally, they may not be "rights," at least in the sense that they have a basis in state law under such independent and well-established concepts as prescriptive use or implied dedication.

       Thus what PASH proposes is revolutionary, and it is new.  The favored legal status which the court appears ready to accord to gathering and access claims has never before been known.  It certainly did not exist before 1839 when the concept of "rights" in the modern sense was unknown and native tenants and other commoners were subject to the often arbitrary rule and unrestrained exactions of the king and ali`i.  It did not exist between 1839 and the Mahele, when the "rights" of tenants existed only within a feudal polity which imposed on those tenants corresponding obligations to the king and landlords of subordination, obedience, labor, and the payment of taxes.  Nor did it exist after the Mahele when Oni v. Meek[357] was settled law and gathering rights were limited to those listed in HRS section 7-1, and to "tenants".  It can hardly be said to have existed even after the decision in Kalipi[358], which in spite of its dicta did little to change the law handed down from the kingdom.  Thus, the PASH decision is not a reaffirmation or revitalization of a prior rule of law which had fallen into desuetude.  If the "traditional and customary rights" which the PASH court proposes to protect are anything other than the rights enumerated in HRS section 7-1, augmented by rights proved in specific cases under such doctrines as  prescriptive use, easement by necessity, implied dedication, custom (as historically understood) and similar well-established legal theories, then what the PASH decision promises is a brand new legal regime of radical import.

       While such a dramatic change in the law might logically be subject to challenge under cases such as Sotomura and Robinson v. Ariyoshi, some courts have expressed reservations concerning such cases, the suggestion being that these cases limit too strictly the necessary freedom of a court to depart from res judicata and stare decisis when circumstances so require.[359]  It has been proposed instead that only an "arbitrary" refusal to apply prior law would permit constitutional challenge.[360]  PASH, however, may well be subject to challenge even under such a more demanding standard because of (1) the absence of logical analysis requiring or supporting the proposed expansion of access and gathering rights, (2) the absence of (or at least the absence of citations to) supporting legal authority from Hawai`i or other jurisdictions for such a change, (3) the court's abandonment of a typical and fundamental element of the "bundle of rights" which in other jurisdictions constitute fee simple title, and (4) the court's contorted evasion of the conflict with traditional Hawai`i law beginning with Oni v. Meek.

       As if the foregoing were not exposure enough, PASH, if otherwise ripe for appeal, would appear to be subject to constitutional challenge on an entirely different ground.  In PASH, the court suggested that HPC might properly impose conditions on its SMA permit to protect the plaintiffs' claimed gathering rights.[361] In general, permit conditions which diminish the value of a landowner's property will survive constitutional challenge as "takings" if they substantially further governmental purposes that would justify denial of the permit.[362] The U.S Supreme Court, however, has identified:

at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint.  The first encompasses regulations that compel the property owner to suffer a physical "invasion" of his property.  In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation. . . . The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of the land.[363]

       It should be noted that a "permanent" invasion can be found "where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises".[364]  Whether a specific claimed right of access would, if upheld, constitute such a "permanent and continuous right to pass" would of course depend on the rights claimed, but even a right to enter infrequently might qualify if the right could be exercised in the unrestricted discretion of the claimant.  Gathering rights, of course, by definition, involve not just access, but the right to permanently deprive the landowner of the objects gathered. 

       But a challenge to the changes in law discussed in PASH may have to be raised not with respect to that case itself, but to subsequent actions of courts and administrative agencies applying the PASH dicta.  The likelihood of a successful challenge to the PASH case itself on any of the grounds discussed above is diminished by the U.S Supreme Court's requirement for ripeness.  Until there is some specific permit condition imposed or some denial of a permit based on PASH, or until some specific claimant's individual demand for access is adjudicated, there will likely be reluctance on the part of the United States Supreme Court to become involved.[365]  Although the PASH court affirmed the possible existence of other rights and (at least on a hypothetical basis) removed previously settled limits on the assertion of claims to such rights, no specific claim of "other" gathering or access rights was actually adjudicated.  It may thus fairly be stated that so far, there are no "PASH rights".  For all of its bold language, PASH neither created nor confirmed a single specific Native Hawaiian traditional and customary "right" except perhaps the rights protected since 1850 by HRS section 7-1.[366]

       Thus PASH itself is more appropriately viewed as a revolutionary manifesto, rather than a revolutionary overthrow of an institution of established real property law.  This does not mean that it can be taken lightly.  Manifestos can have far-reaching consequences, as such disparate documents as the Declaration of Independence and the Communist Manifesto well demonstrate.  Manifestos, however, are not generally appealable to the United States Supreme Court.  In the absence of a ripe claim, those who find PASH troubling must fall back on such alternatives as far-sighted, responsible and comprehensive education of the legislature and the people, perhaps with a view toward legislative reaffirmation of the traditional order.

       Should a claim ripe for adjudication arise, however, both Hughes and Lucas appear to offer appropriate avenues of challenge on grounds of an unconstitutional taking.  The state's response to such a claim will almost certainly be that the landowner has been deprived of nothing because the landowner's title was always subject to the asserted right of access.  The court in Lucas indicated that such a limitation on title "cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership".[367]  The issue of "background law" will be central, because unless the asserted access right is in fact within the "background law" of a state and is not a "radical departure" from that law, a taking might be found.  As stated in Hughes v. Washington, "[A] State cannot be permitted to defeat the constitutional prohibition against taking property without due process of law by the simple device of asserting retroactively that the property it has taken never existed at all."[368]  PASH, of course, establishes no such "background law", but at most expresses an openness to consider whether such "background law" might exist.  An interesting aspect of any federal court review will be the reconciliation, if such is possible, between PASH's statement that "the western concept of exclusivity is not universally applicable in Hawai`i"[369] and the United States Supreme Court's "repeated" holdings that at least as to property reserved by its owner for private use, "the right to exclude [others is] 'one of the most essential sticks in the bundle of rights that are commonly characterized as property.'"[370]  Unfortunately, however, until the issue is resolved, the PASH decision, in the words of Justice Scalia in a similar case, "casts a shifting shadow upon federal constitutional rights the length of the State."[371]


                                                           



       * Counsel, Pacific Division, Naval Facilities Engineering Command, Pearl Harbor, Hawaii, B.A., Holy Cross College, 1965, J.D., Harvard Law School, 1968, Member, Massachusetts, California and Hawai`i Bars.  The views set forth in this paper are those of Mr. Sullivan, and do not necessarily reflect the positions of the U.S. Government, the Department of Defense or the Department of the Navy.

       Substantial parts of this article were originally published as part of the course materials for a May 10, 1997 seminar on Hawai`i water law sponsored by the Hawai`i Institute for Continuing Legal Education.

   [1] For excellent general reviews of the history and use (ancient and modern) of the term "custom" see Lew E. Delo, The English Doctrine of Custom in Oregon Property Law:  State ex rel. Thornton v. Hay, 4 Envtl. L. 383 (1974) and David J. Bederman, The Curious Resurrection of Custom:  Beach Access and Judicial Takings, 96 Colum. L. Rev. 1375 (1996)(hereinafter "Bederman").

       Technically, "usage" has a meaning in the law separate from "custom;" Black's Law Dictionary 385 (6th ed. 1990) defines the two terms as follows:

Custom and usage.  A usage or practice of the people, which, by common adoption and acquiescence, and by long and unvarying habit, has become compulsory, and has acquired the force of a law with respect to the place or subject-matter to which it relates.  It results from a long series of actions, constantly repeated, which have, by such repetition and by uninterrupted acquiescence, acquired the force of a tacit and common consent. 

       . . . .

Usage distinguished.  "Usage" is a repetition of acts, and differs from "custom" in that the latter is the law or general rule which arises from such repetition; while there may be usage without custom, there cannot be custom without a usage accompanying or preceding it. 

Id. (citations omitted).  While these definitions give an introductory framework for the discussion which follows, they do not reflect the contention which the application and, in some cases, the redefinition of these terms have recently created.  See generally Bederman, supra.

       [2] See Steve A. McKeon, Note, Public Access to Beaches, 22 Stanford L. Rev. 564, 583 (1970) [hereinafter "McKeon"]; Bederman, supra note 1.

       [3] This term refers to the time before 1778, the year when the British explorer Captain James Cook discovered the islands and made their existence generally known to the Western world.

       [4] Perhaps the single most valuable resource on the subject is R. S. Kuykendall, The Hawaiian Kingdom (3 vols., 1938)[hereinafter "Kuykendall"].  Shorter histories include Ralph S. Kuykendall & A. Grove Day, Hawaii:  A History (1961), and Gavan Daws, Shoal of Time: A History of the Hawaiian Islands (1968).

       [5] See infra notes 60 through 71 and accompanying text.

       [6] See infra notes 90 through 149 and accompanying text.

   [7] See supra note 5

   [8] See 1 Kuykendall, supra note 4 at 65-70.

       [9] See id. at 101-116.

   [10] Infra notes 90-149 and accompanying text.

   [11] 79 Haw. 425, 903 P.2d 1246 (1995), cert. denied sub. nom. Nansay Hawai'i, Inc. v. Public Access Shoreline Hawai'i, 116 S.Ct. 1559 (1996) [hereinafter PASH].

   [12] Article XII, ' 7 of the Hawai`i Constitution, provides as follows:

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.  Haw. Const., art. XII, '77.

       [13] Haw. Rev. Stat. Ann.  ' 7-1 provides as follows:

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

Haw. Rev. Stat. Ann. ' 7-1 (Michie 1995).

       [14] See, e.g., Hawai`i State Water Code, Haw. Rev. Stat. ' 174C-101(c):

Traditional and customary rights of ahupua`a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778 shall not be abridged or denied by this chapter.  Such traditional and customary rights shall include, but not be limited to, the cultivation or propagation of taro on one's own kuleana and the gathering of hihiwai, opae, o'opu, limu, thatch, ti-leaf, aho cord, and medicinal plants for subsistence, cultural and religious purposes.

       [15] "Native Hawaiian" is a term which must be approached with care.  In 1920, Congress passed the Hawaiian Homes Commission Act (HHCA), set out at Haw. Rev. Stat. Ann. Volume 15, p. 331 (Michie 1995), which set aside certain of the public lands of the Territory of Hawai`i for homesteading by "native Hawaiians."  A "native Hawaiian" was defined in that statute (HHCA ' 201(7)) as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778."  Id.  Hawaii Revised Statutes, chapter 10, which establishes the Office of Hawaiian Affairs, defines "native Hawaiian" in much the same way as:

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.

Haw. Rev. Stat. Ann. ' 10-2 (1995). 

"Hawaiian" is defined in Haw. Rev. Stat. ' 10-2 as:

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.

 Id.

       The term "Native Hawaiian" (upper case "N") is used principally in Federal statutes providing benefits to persons of Hawaiian ancestry, and is usually defined much the same as "Hawaiian" in Haw. Rev. Stat. ' 10-2.  See, e.g., Native American Graves Protection and Repatriation Act, 25 U.S.C.A. ' 3001 (West 1997).  It is also used in common parlance to refer to anyone with Hawaiian ancestry.

       Whichever term is involved, the operative test is purely race or ancestry.  Ancestry has been treated, at least in recent Supreme Court jurisprudence, as a functional equivalent of race.  See Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995).

       [16] See Nollan v. California Coastal Commission, 483 U.S. 825, 831 (1987).

       [17] In this connection see Robinson v. Ariyoshi, 65 Haw. 641, 655, 658 P.2d 287, 298 (1982) (proposing that a statement of a superior court be considered binding on inferior tribunals, "even though technically dictum, where it was 'passed upon by the court with as great care and deliberation as if it had been necessary to decide it, was closely connected with the question upon which the case was decided, and the opinion was expressed with a view to settling a question that would in all probability have to be decided before the litigation was ended.’") (citing Nobrega v. Nobrega, 14 Haw. 152, 155 (1902)).

       [18] 1 W. Blackstone, Commentaries on the Laws of England 67 (U. Chicago facsimile ed., 1979) [hereinafter "Blackstone"].

       [19] Id.

   [20] On the subject of stare decisis, see id. at 69:

[f]or it is an established rule to abide by former precedents, where the same points come again in litigation; as well as to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; as also because the law in that case being solemnly declared and determined, what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiments:  he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land, not delegated to pronounce a new law, but to maintain and expound the old one.

Id.

       [21] Id. at 67. 

   [22] See id. at 76-78.

       [23] McKeon, supra note 2, at 583.

   [24] 462 P.2d 671 (Or. 1969).

   [25] Id. at 677; But see McDonald v. Halvorson, 780 P.2d 714 (Or. 1989); Stevens v. City of Cannon Beach, 854 P.2d 449 (Or. 1993), cert. denied 114 S.Ct. 1332 (1994) (Scalia, J., dissenting).

   [26] 557 A.2d 168 (Me. 1989).

       [27] Id. at 179.

       [28] Id.

       [29] See id.

   [30] 594 P.2d 1093 (Idaho, 1979).

   [31] See id. at 1101.  The court stated:

Virtually all commentators agree that, until recently, the law of custom was a dead letter in the United States.  Aside from two New Hampshire cases decided in the 1850's no state had applied the doctrine.  As recently as 1935 New York refused to accept customary usage as a means of claiming an easement in a private beach for bathing and boating.  Gillies v. Orienta Beach Club, 159 Misc. 675, 289 N.Y.S. 733 (1935).  The doctrine was exhumed, however, by the Supreme Court of Oregon in State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671 (1969), where it was held that the public had acquired customary rights to a privately owned dry sand stretch of beach on the Oregon coast.

Id.

       [32] See id.; see also Dept. of Natural Resources v. Mayor and Council of Ocean City, 332 A.2d 630 (Md. 1975).  For a review of the application of custom in various U.S. jurisdictions see Bederman, supra note 1.

       [33] Lilikala Kame`eleihiwa, Introduction to Samuel Kamakau, Ruling Chiefs of Hawaii iv-v (Rev. ed. 1992).  Samuel Kamakau lived from 1815 to 1876.  Id.  Malcolm Chun, Introduction to Davida Malo, Ka Mo`olelo Hawai`i x, xvii (Malcolm Chun trans., 1996).  David Malo lived from 1795 to 1853.  Id.

       [34] See, e.g., Keelikolani v. Robinson, 2 Haw. 522 (1862) (adoption); Peck v. Bailey, 8 Haw. 658 (water rights).

       [35] See David Malo, Hawaiian Antiquities, 87-95 (Nathaniel Emerson, trans., 1951)[hereinafter "Malo"].  This is by far the most widely available translation and is used throughout this article.  A new translation of this work by Malcolm Naea Chun has recently been published (Davida Malo, Ka Mo'olelo Hawai'i (Malcolm Chun, trans., 1996).

       [36] Id. at 96-107; S. M. Kamakau, Ka Po`e Kahiko - The People of Old 33-44 (Mary Kawena Pukui, trans., Dorothy B. Barrere, ed., 1964)[hereinafter Kamakau, The People of Old]

       [37] See Malo, supra note 35, at 208-213; S. M. Kamakau, The Works of the People of Old 59-91 (Mary Kawena Pukui, trans., Dorothy B. Barrere, ed., 1976)[hereinafter Kamakau, Works].

       [38] Kamakau, Works, supra note 37, at 91-125.

       [39] Malo, supra note 35, at 208-214; Kamakau, Works, supra note 37, 23-55.

       [40] See e.g., Principles Adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them. Laws 1848, p. 81, reprinted in 2 Revised Laws of Hawaii 2124 (1925)[hereinafter Principles].

       [41] Wells A. Hutchins, The Hawaiian System of Water Rights 41-143 (1946) [hereinafter Hutchins].

       [42] See generally 1 Kuykendall, supra note 4, at 1-10.

       [43] Kamakau, Works, supra note 37, at 130-31; Malo, supra note 35, at 159-87.

       [44] Samuel Kamakau, Ruling Chiefs of Hawaii 234 (Rev. ed. 1992) [hereinafter Kamakau, Ruling Chiefs].

       [45] See id. at 232-33.

   [46] See, e.g., Kamakau, Ruling Chiefs, supra note 44, at 231-32; Malo, supra note 35, at 58.

       [47] Malo, supra note 35, at 54-57.

       [48] Malo, supra note 35, at 74; Kamakau, The People of Old, supra note 36, at 25.

       [49] David Malo writes:

The king, however, had no laws regulating property, or land, regarding the payment or collection of debts, regulating affairs and transactions among the common people, not to mention a great many other things.  Every thing [sic] went according to the will or whim of the king, whether it concerned land, or people, or anything else—not according to law.  All the chiefs under the king, including the konohiki who managed their lands for them, regulated land matters and everything else according to their own notions. There was no judge, nor any court of justice, to sit in judgment on wrong-doers of any sort.  Retaliation with violence or murder was the rule in ancient times.  To run away and hide one's self was the only recourse for an offender in those days, not a trial in a court of justice as at the present time.  If a man's wife was abducted from him he would go to the king with a dog as a gift, appealing to him to cause the return of the wife—or the woman for the return of the husband—but the return of the wife, or of the husband, if brought about, was caused by the gift of the dog, not in pursuance of any law.  If any one had suffered from a great robbery, or had a large debt owing him, it was only by the good will of the debtor, not by the operation of any law regulating such matters that he could recover or obtain justice.  Men and chiefs acted strangely in those days.

Malo, supra note 35, at 57-58.  To like effect is Kamakau:

If a chief became angry with a commoner he would dispossess him and leave him landless, but the commoners submitted to the chiefs and consented afterwards to endure hard labor and work like slaves under the chiefs.  It was not for a commoner to do as he liked as if what he had was his own.  If a chief saw that a man was becoming affluent, was a man of importance in the back country, had built him a good house, and had several men under him, the chief would take everything away from him and seize the land, leaving the man with only the clothes on his back.  Men feared in the old days being driven away and having to take to the highway, or even to have suspicion fasten upon them and be killed, as often happened in the old days.

Kamakau, Ruling Chiefs, supra note 44, at 229.

       [50] See Malo, supra note 35, at 58:

There was a great difference between chiefs.  Some were given to robbery, spoliation, murder, extortion, ravishing. There were few kings who conducted themselves properly as Kamehameha I did.  He looked well after the peace of the land.  On account of the rascality of some of the chiefs to the common people, warlike contests frequently broke out between certain chiefs and the people, and many of the former were killed in battle by the commoners.  The people made war against bad kings in old times.

Id.

       See also Kamakau, Ruling Chiefs, supra note 44, at 230.  ("The chiefs did not rule alike on all the islands.  It is said that on Oahu and Kauai the chiefs did not oppress the common people.  They did not tax them heavily and they gave the people land where they could live at peace and in a settled fashion.") 

       Kamakau also reports that one district, Ka`u on the island of Hawaii, was quite direct about removing unsatisfactory chiefs:

The Ka`u clan to which Kupake`e belonged were called Ka`u Makaha.  They were a group who protected their own chief as long as he was kind to them and treated them well, but unhesitatingly slew him if he caused them unnecessary suffering.  To alien chiefs they paid no attention whatever.

Id. at 205.

       [51] See, e.g., the story of `Umi-a-Liloa in Kamakau, Ruling Chiefs, supra note 44, at 11-14.

       [52] See Malo, supra note 35, at 61.

       [53] See id. at 56-57.  For example, Malo states:

The great chiefs were entirely exclusive, being hedged about with many tabus, and a large number of people were slain for breaking, or infringing upon, these tabus.  The tabus that hedged about an alii were exceedingly strict and severe. 

. . . If the shadow of a man fell upon the house of a tabu chief, that man must be put to death, and so with any one whose shadow fell upon the back of the chief, or upon his robe or malo, or upon anything that belonged to the chief.  If any one passed through the private doorway of a tabu chief, or climbed over the stockade about his residence, he was put to death.

Id.

   [54] See id. at 52-68; See also Kamakau, Ruling Chiefs, supra note 44, at 229.

       [55] See Malo, supra note 35, at 187-88:

There were two strong forces, or parties, in the government. One, the kahuna who attended to the idol worship; the other the kalaimoku, or king's chief councillor.  These two were the ones who controlled the government and led its head, the king, as they thought best.  If the head of the government declined to follow their advice, the government went to another, on account of the fault of its head, that is the king.  The high priest, kahuna o na ki`i, controlled the king in matters of religion, haipule, (he was the keeper of the king's conscience).  The kalaimoku, chief councillor or prime minister, guided him in regulating the affairs of administration and in all that related to the common people.

Id.

       [56] See e.g., Kamakau, Ruling Chiefs, supra note 44, at 133-41. Kamakau describes how Kahahana, ruling chief of O`ahu, ordered the death of his kahuna Ka`opulupulu and was neither rebelled against nor shunned by his people.  Kahahana was overthrown soon after the event, but by Kahekili, a rival chief from Maui, and not because he was a lawbreaker.  Far from being rejected by his former subjects, many of these continued to provide him with food and shelter even after he had become a fugitive. 

       [57] Laws 1848, p. 81, reprinted in Revised Laws of Hawaii 1925, Vol. II, p. 2124.

       [58] Id. at 2125.

       [59] See supra note 4.  For an excellent start on the full story of the development of the Hawaiian kingdom, from Western contact in 1778 through the dramatic governmental and societal changes of the middle and late nineteenth century, see supra note 4. 

       [60] See generally 1 Kuykendall, supra note 4, at 65-70.

       [61] See id. at 67.

The example of the foreigners, their disregard for kapu, and their occasional efforts to convince the Hawaiians by argument that their system was wrong, were the most potent forces undermining the beliefs of the people.  There were incidents related by visitors to the island showing that some of the people were willing to disregard the kapus if they could do this without being seen by the priests and chiefs.  Some of the people evidently sensed the fact that the gods would not punish them if the priests knew nothing about their violations of the kapu.  Kaahumanu had eaten bananas [a food prohibited to women] secretly without any ill consequences.  Her brother Keeaumoku is known to have spoken contemptuously of the whole system even before the death of Kamehameha I.  The Hawaiians had heard of the overthrow of the kapu and religious system in the Society Islands by King Pomare and this no doubt had influence in Hawaii. 

Id.

       [62] See Kamakau, Ruling Chiefs, supra note 44, at 179-80. 

       [63] See 1 Kuykendall, supra note 4, at 65-70, and works cited therein; Kamakau, Ruling Chiefs, supra note 44, at 219-28.

       [64] See id.

       [65] See id. at 69; Kamakau, Ruling Chiefs, supra note 44, at 227-28.

       [66] See 1 Kuykendall, supra note 4, at 69.

       [67] See id. at 69-70. 

The appeal to arms had confirmed the decree of the king, and the old religion as an organized system was abandoned; the old kapus were no longer enforced.  Believers in the old order were confounded by the apparent inability of its gods to stem the tide of infidelity; but as mentioned before, the old beliefs lived on in the consciousness of many of the people; and many an idol secretly preserved was secretly worshipped.  Discontinuance of the formal religious services in the heiaus [temples] and of the makahiki celebration left a kind of vacuum in the social life of the nation.  Finally, it may be remarked that while the revolution did certainly weaken very greatly the power of the priests, it did not altogether destroy their power; and the power of the chiefs was scarcely touched.

Id.

       [68] See generally 1 Kuykendall, supra note 4, at 101-16.

       [69] See id. at 101-13.

       [70] Id.

       [71] Id. at 116.  Kuykendall summarizes it thus:

Did the new religion take hold of the Hawaiian people?  No doubt on this point will be entertained by one who makes a candid study of the subject.  Unquestionably there was much superficiality, particularly in many of the conversions during the great revival [of 1831-1840]; the Hawaiian churches had their full quota of "backsliders"; and there were innumerable instances of the survival of "idolatrous" and "heathenish" beliefs and practices.  On the other hand, the record is full of examples of sincere and consistent Christian piety and good conduct, and the Hawaiian churches can point with just pride to such characters as Puaaiki ("Blind Bartimeus"), Kamakau of Kaawaloa, the heroic Kapiolani, immortalized in verse by the poet Tennyson, the "new" Kaahumanu, and those Hawaiians, like Kekela, Kauwealoha, and Kanoa, who carried the gospel to the other islands in the Pacific.  By 1840 Hawaii was officially a Christian nation.  King Kamehameha III never became a member of the church, but in the constitution which he gave to his people in 1840 it was decreed "that no law shall be enacted which is at variance with the word of the Lord Jehovah, or at variance with the general spirit of His word.  All laws of the Islands shall be in consistence with the general spirit of God's law."

Id.

       [72] The initial stages of this process are succinctly described by the kingdom's own court in Estate of Kamehameha IV, 2 Haw. 715, 720 (1864):

In the year 1839 began that peaceful but complete revolution in the entire polity of the Kingdom which was finally consummated by the adoption of the present constitution in the year 1852.  His Majesty Kamehameha III began by declaring protection for the persons and private rights of all his people from the highest to the lowest.  In 1840 he granted the first constitution by which he declared and established the equality before the law of all his subjects, chiefs and people alike.  By that Constitution, he voluntarily divested himself of some of his powers and attributes as an absolute ruler, and conferred certain political rights upon his subjects, admitting them to a share with himself in legislation and government.  This was the beginning of a government as contradistinguished from the person of the King, who was thenceforth to be regarded rather as the executive chief and political head of the nation than its absolute governor.  Certain kinds of public property began to be recognized as Government property, and not as the King's.  Taxes which were previously applied to the King's own use were collected and set apart as a public revenue for government purposes, and in 1841 His Majesty appointed a Treasury Board to manage and control the property and income of the Government.  But the political changes introduced at that period did not affect in the least the King's rights as a great feudal Chief or Suzerain of the Kingdom.  He had not as yet yielded any of those rights.

Id.

       [73] See 1 Kuykendall, supra note 4, at 157-59.

       [74] For the text of the 1840 Constitution, see, The Fundamental Law of Hawaii 1-10 (Lorrin A. Thurston ed. 1904)[hereinafter Fundamental Law]; for the Laws of 1842, see id. at 11-136. It is noteworthy that the translator's Preface to the Laws of 1842 includes the following:

At these Islands, as well as in more civilized countries, there is something like a system of common law, independent of special statutes.  It consists partly in their ancient taboos, and partly in the practices of the celebrated chiefs as the history of them has been handed down by tradition, and at the present period the principles of the Bible are fully adopted.  The established customs of civilized nations have also in most cases the force of law in these Islands provided that custom is known.

Id. at vii.

       [75] The 1840 Constitution declared, for example:

Protection is hereby secured to the persons of all the people, together with their lands, their building lots, and all their property, while they conform to the laws of the kingdom, and nothing whatever shall be taken from any individual except by express provision of the laws.  Whatever chief shall act perseveringly in violation of this constitution, shall no longer remain a chief of the Hawaiian Islands, and the same shall be true of the Governors, officers, and all land agents.

Fundamental Law, supra note 74, at 1.

       [76] See id. at 5-6.

       [77] See, e.g., id. at 27-30.

       [78] See id. at 11-17, 111-14.

       [79] See id. at 45-48.

       [80] See id. at 46-48.

       [81] See id. at 91-101.

       [82] See id. at 21-23.

       [83] See id. at 23.

       [84] Id. at 10.

       [85] See id. at 11-14.

       [86] See id. at 11-17.

       [87] See id. at 13.

       [88] See id. at 6.

       [89] See id. at 14; 17-20.  See also id. at 11-15 concerning descent of land to heirs.

       [90] See Louis Cannelora, The Origin of Hawaii Land Titles and of the Rights of Native Tenants 6 (1974)[hereinafter Cannelora].

The Constitution of 1840 recited that although all of the land belonged to Kamehameha I, "it was not his own private property.  It belonged to chiefs and people in common, of whom Kamehameha I was the head, and had management of the landed property."  This was the first acknowledgment by a Hawaii sovereign that his subjects had some proprietary interest in the land.  But the Constitution provided no means by which the undivided interests of the King, the chiefs and the common people in the same land could be separated, nor did it establish any procedure under which the people could acquire fee title to land.

Id.

   [91] To oversee the division of lands among the three broad classes of persons recognized as having rights in the land (the King or government, the landlords or konohiki, and the tenants), a Board of Commissioners to Quiet Land Titles was established.  Fundamental Law, supra note 74, at 137.  It announced its guiding philosophy in the Principles, supra note 40.

       [92] See Thurston v. Bishop, 7 Haw. 421 (1888).

Claims of one character and another to the possession of land had grown up, but there was no certainty about them, and all was confusion; and finally, after years of discussion had between the King, the chiefs and their foreign councillors, the plan of a Board of Commissioners to Quiet Land Titles was evolved, and finally established by law, for the purpose of settling these claims and affording an opportunity to all persons to procure valid paper titles emanating from the Government representing the sovereignty, the source of all title to land in this Kingdom, to the land which they claimed.

Id. at 428.

       [93] Principles, supra note 40, at 2126.  See also generally U.S. Pacific Command, Final Environmental Impact Statement:  Land Use and Development Plan, Bellows Air Force station, Waimanalo, Hawaii (1995), § 6.6, at 6-8 to 6-12, and Appendix D-8 (letter from Melvin N. Kaku, Director Environmental Planning Division, Pacific Division, Naval Facilities Engineering Command to Stephen Kubota (October 26, 1995)).

       [94] Id.

       [95] In describing the testimony given in the course of its proceedings, the commission noted:

The testimony elicited is of the best and highest kind.  It has been given immediately by a large number of persons, of a great variety of character, many of them old men, perfectly acquainted with the ancient usages of the country; some were landlords, and some were tenants.  There has been no contradictory testimony, and all have agreed on all essential points.

Id. at 2126.

       [96] See Jon J. Chinen, The Great Mahele, Hawaii's Land Division of 1848 15-20 (1958) [hereinafter Chinen].

       [97] Id.

       [98] See generally Cannelora, supra note 90, at 11-13.

       [99] The Mahele, of itself, did not award lands to any individual; it simply removed any claims of the king to the land in question, and authorized the individual to seek an award of the land from the Land Commission.  See Cannelora, supra note 90, at 15.  The decree of the Land Commission was termed a Land Commission Award, which gave "complete title" except for the government's right to commutation; once this was paid (in cash or in land) the claimant received a Royal Patent to the land.  See Chinen, supra note 96, at 11-14.

       [100] Principles, supra note 40, at 2136.

       [101] See Territory v. Liliuokalani, 14 Haw. 88, 95 (1902); Pai 'Ohana v. U.S., 8785 F.Supp. 680 (D. Haw. 1995), aff'd 76 F.3d 280 (9th Cir. 1996).

       [102] Concerning the King's motives, Cannelora provides the following:

"The records of the discussion in Council show plainly his Majesty's anxious desire to free his lands from the burden of being considered public domain, and as such, subjected to the danger of confiscation in the event of his islands being seized by any foreign power, and also his wish to enjoy complete control over his property."  (Estate of Kamehameha IV, 2 Haw. 715 (1864))  "It appeared to the King that the land thus released to him might be subjected to commutation in like manner with the lands of the chiefs.  .  .  . Moved by these considerations . . . he proceeded . . . to set apart for the use of the government the larger portion of his royal domain, reserving to himself what he deemed a reasonable amount of land as his own estate."  (Harris v. Carter 6 Haw. 195 (1876)).

Cannelora, supra note 90, at 14.

       [103] Estate of Kamehameha IV, 2 Haw. 715 (1864).

       [104] See Chinen, supra note 96, at 26.

       [105] See Cannelora, supra note 90, at 11-19.

       [106] See id. at 17;  See Chinen, supra note 96, at 29.

       [107] See 1 Kuykendall, supra note 4, at 291.

       [108] Among the rights otherwise provided for were the sovereign prerogatives of the king (See Principles, supra note 40, at 2128), statutorily enumerated gathering rights of tenants (See Oni v. Meek, 2 Haw. 87 (1858)), and rights of access to kuleana lots (See Cannelora, supra note 90, at 18).

       [109] This point was made in Territory v. Liliuokalani, 14 Haw. 88 (1902), in which the Territorial Attorney General attempted unsuccessfully to construe the reservation of the "rights of native tenants" as a sort of generalized public servitude or trust reservation of beach access for the "people".  He sought thereby to prevent the removal of sand and gravel by a licensee of the former Queen Liliuokalani from the shoreline area fronting her property between high and low water.  See id. at 89.  He pointed out that the royal patent and award of the land, which expressly included land to low water, also contained the words "koe nae ke kuleana o na kanaka" which was a standard clause reserving the rights of native tenants. See id. at 95.  He argued that these words reserved "to the people all the rights below high water mark not expressly recognized as private rights", including "all rights excepting the rights to fish and the rights to remove coral rock".  See id.  He concluded that "[t]he people's kuleana was the land between high water mark and low water mark."  Id.  The court disagreed, holding that "the words quoted have a well understood meaning as used in conveyances within this Territory and . . . they, as well as the English equivalent 'reserving however the people's kuleana therein,' mean the reservations of the house lots and taro patches or gardens of natives lying within the boundaries of the tract granted."  Id. See also Pai 'Ohana v. U.S., 875 F.Supp. 680 (D. Haw. 1995), aff'd 76 F.3d 280 (9th Cir. 1996).

       [110] 2 Haw. 87 (1858).

       [111] Principles, supra note 40, states in part:

The following benefits will result from these investigations and awards:

1st.  They will separate the rights of the King and Government, hitherto blended, and leave the owner, whether in fee, or for life, or for years, to the free agency and independent proprietorship of his lands as confirmed. . . . To separate these rights, and disembarass the owner or temporary possessor from this clog upon his free agency, is beneficial to that proprietor in the highest degree, and also to the body politic; for it not only sets apart definitely what belongs to the claimant, but untying his hands, enables him to use his property more freely, by mortgaging it for commercial objects, and by building upon it, with the definite prospect that it will descend to his heirs.  This will tend more rapidly to an export, and to a permanency of commercial relations, without which, there can never be such a revenue as to enable the government to foster its internal improvements.

2nd.  . . . The patents and leases are recorded in duplicate, in the Department of the Interior.  This will enable the foundation of every one's right to be known to the Government, and inquiring parties.  No pretended ownerships can exist without the means of undeceiving the public in regard to them.  Subsequent purchasers and mortgagees need not be in ignorance of prior defects in the title, or of prior incumbrances. 

Id. at 2184.  (Emphasis added throughout)

       [112] An ahupua`a is a “land division usually extending from the uplands to the sea[.]"  Mary Kawena Pukui and Samuel H. Elbert, Hawaiian Dictionary 9 (1986).  "The ideal ahupuaa extended from the sea to the mountains, enabling the chief of the ahupuaa and his followers to obtain fish and seaweeds at the seashore, taro, bananas, and sweet potatoes from the lowlands, and forest products from the mountains." Chinen, supra note 96, at 3.

       [113] Id.

       [113] See Oni, 2 Haw. at 87, 89.

       [114] See id. at 87.  

       [115] Id. at 89.

       [116] Id. at 89-90.

       [117] See id. at 89.

       [118] See id. at 90.  The Kingdom courts tended to be liberal, at least for several years following the Mahele, in applying such temporal standards.  See, e.g., Rooke v. Nicholson, 1 Haw. 508 (1856), holding that a continuous and unmolested use of a way since 1841 was sufficient to create a right of way by prescription, even though under traditional common law standards, twenty years' use would be required.  The court stated that "to require twenty years' continuous use, to create a prescriptive right of way in this country, would be unreasonable, because that length of time has not yet elapsed since landed property was divided, and the titles to it clearly defined."  Id.  The cases of Kanaina v. Long, 3 Haw. 332 (1872), and Swan v. Colburn 5 Haw. 394 (1885), however, reflect a return to the common law standard in later years.

       [119] Oni, 2 Haw. at 90.

       [120] See id.

       [121] See id.

       [122] See id.  The court stated:

[I]t is perfectly clear  that, if the plaintiff is a hoaaina, holding his land by virtue of a fee simple award from the Land Commission, he has no pretense for claiming a right of pasturage by custom, for so far as that right ever was customary, it was annexed to the holding of land by a far different tenure from that by which he now holds—a tenure by which the hoaaina was bound to labor a certain number of days in each month, for the immediate lord of the land, and a like number of days for the King or Government, as payment or rent, both for the use of the land and for the enjoyment of the other rights and privileges appurtenant thereto, whereas the very fact that the plaintiff holds his land by virtue of a fee simple title, frees him forever from the labor formerly due to the Government and to the konohiki; he no longer owes, nor can he be called upon to perform such labor, by law, as payment for the use of his land, or for the enjoyment of any right or privilege, and if he performs such labor it is neither by force of law or custom, but in fulfillment of a private contract.  Again, if the plaintiff claims to be a hoaaina of Honouliuli, holding his land, not independently, upon an award from the Land Commission, but according to ancient tenure, in dependence upon the konohiki, and that, therefore he is entitled to the right of pasturage, by custom, he is met by the testimony of the principal witnesses introduced by himself, to the effect that, in the year 1851, he, in common with the other hoaainas of Honouliuli, admitted that his former right or privilege of pasturage was determined, by the operation of the new laws affecting the tenure of land, and that he has since been permitted to enjoy the right of pasturage for his horses, not by force of law or custom, but in consideration of certain labor which he has performed, in accordance with a special contract with the konohiki to that effect, made at a time when the right of pasturage could not have been said, with any show of reason, to have become established by ancient custom.  And whatever private agreement as to pasturage may have existed between the plaintiff and the konohiki, that, of course, cannot affect the defendant's rights under his leases, unless he had special notice of such agreement, and bound himself to respect its terms.

Id.

       [123] See id. at 91.

       [124] Oni, 2 Haw. at 91.  The section of the statute in question read as follows:

The rights of the hoaaina in the land consist of his own taro patches, and all other places which he himself cultivates for his own use; and if he wish to extend his cultivation on unoccupied parts, he has the right to do so. He has, also, rights in the grass land, if there be any under his care, and he may take grass for his own use or for sale, and may also take fuel and timber from the mountains for himself.  He 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 pasturage of their animals without the consent of his konohiki, and the Minister of the Interior.

Id. (quoting the language of the Joint Resolution of 1846).

   [125] Oni, 2 Haw. at 92.

   [126] See id.

       [127] Id. at 94-95.  The "Act of August 1850" refers to the act of August 6, 1850 (L. 1850 at 202), the predecessor of the current Haw. Rev. Stat. Ann. § 7-1.

       [128] Id. at 95 (emphasis in original).

   [129] Id.

       [130] Id.  This may have been because the title of the konohiki was subject only to the hoa`aina rights specifically enumerated in the 1850 statute, and the imposition of additional limitations on konohiki titles would enlarge the rights of the hoa`aina by diminishing those of the konohiki.

       [131] Oni, 2 Haw. at 95-96.

       [132] Concerning the 1858 court's understanding of the term "hoa`aina", see Haalelea v. Montgomery, 2 Haw. 62 (1858) in which the court stated:

We understand the word tenant, as used in this connection [the definition of rights of piscary or fishing declared in an 1839 statute establishing rights, among others, of "the landlords, and . . . the tenants of their several lands"] to have lost its ancient restricted meaning, and to be almost synonymous, at the present time, with the word occupant, or occupier, and that every person occupying lawfully, any part of "Honouliuli" is a tenant within the meaning of the law.

Id. at 71.

       [133] For additional authority on this point, see Dowsett v. Maukeala, 10 Haw. 166 (1895).  Authors David M. Forman and Stephen M. Knight propose a restrictive interpretation of Oni which would essentially limit it to its facts.  See David M. Forman & Stephen M. Knight, Native Hawaiian Cultural Practices Under Threat, 1 Hawaii Bar Journal (No. 13) 1, 8-13 (1974)[hereinafter Forman & Knight].  This thesis, however, is most difficult to reconcile with the Oni court's broad and unqualified language and its manifest awareness of the sweeping consequences of its decision.

       [134] Indeed, all parties appear to have been aware that the case was of special significance.  The court noted in the introductory paragraph of its decision that "defendant agreed that judgment should be entered against him in the Court below, reserving by consent his right to appeal, in order that the case, which involves some questions of great importance, and will determine the rights of many other persons besides the present plaintiff and defendant, might be heard and decided by this Court".  Oni, 2 Haw. at 87.

       [135] 8 Haw. 392 (1892).

       [136] Id. at 398.  See also De Freitas v. Coke, 46 Haw. 425, 429, 380 P.2d 762, 765 (1963) ("Prior to 1892, the courts of Hawaii rejected the common law rules in certain aspects, thus establishing Hawaii's own judicial precedent").

       [137] See, e.g., Kiaiaina v. Kahanu, 3 Haw. 368 (1871) (a child adopted "according to Hawaiian custom and usage, made prior to the written law" entitled to inherit); Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864) ("It is conceded that the Court, in order to enable it to give a just construction to the act of the 7th of June, 1848, is at liberty to refer not only to the two instruments executed by his Majesty Kamehameha III on the 8th of March, 1848 [separating Crown from government lands], which were unquestionably the foundation of the Legislative enactment, but also to Hawaiian history, custom, legislation and polity, as well as to the records of the Privy Council, and the acts of the parties immediately interested subsequent to the great division." (emphasis added)).

       [138] See Hutchins, supra note 41, at 41-143.  With respect to rights to surface water in streams, see generally Robinson v. Ariyoshi, 441 F. Supp. 559 ("Robinson I"), aff'd in part, vacated in part and remanded, 753 F.2d 1468 (1985) ("Robinson III"), vacated and remanded, 477 U.S. 902 (1986) and 796 F.2d 339, aff'd on reconsideration, 676 F. Supp. 1002 (1987), reversed and remanded, 887 F.2d 215 (1989); see also Justice Levinson's dissent in the decision following rehearing in McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973), aff'd on rehearing, 55 Haw. 260, 517 P.2d 26 (1973), appeal dismissed and certs. denied, 417 U.S. 962, and 417 U.S. 976 (1974).

       [139] Thurston v. Allen, 8 Haw. 392, 398-99 (1892).

   [140] Branca v. Makuakane, 13 Haw. 499, 505 (1901).  The court provided examples as follows:

Among the cases in which the court has declined to follow the common law as to real property the following may be mentioned:  Wood v. Ladd, 1 [Haw.] 17, seal not essential to a mortgage; Campbell v. Manu, 4 [Haw.] 459, seal not essential to a deed; (see also In re Congdon, 6 [Haw.] 633, seal not essential to a bond); In the matter of Vida, 1 [Haw.] 63, dower in leasehold estate of long duration; Kuuku v. Kawainui, 4 [Haw.] 515, Puukaiakea v. Hiaa, 5 [Haw.] 484, and Kuuku v. Kawainui, 4 [Haw.] 515 (sic), conveyance of freehold in futuro; (see also Judd v. Hooper, 1 [Haw.] 13, livery of seisin; Awa v. Horner, 5 [Haw.] 543, deed to two or more creates tenancy in common; Thurston v. Allen, 8 [Haw.] 392, same as to tenancy in common, also Rule in Shelley's Case not law here; In re Keliiahonui, 9 [Haw.] 6, Mossman v. Government, 10 [Haw.] 421 and Ninia v. Wilder, 12 [Haw.] 104, conveyance by disseissee valid; Rooke v. Queen's Hospital, 12 [Haw.] 374, estates tail and fees simple conditional cannot exist here.

Id. at 505-06. 

       [141] 6 Haw. 68 (1872).

       [142] Id.

       [143] Id.

       [144] Id.

       [145] Id. at 69.  The cited sections of the 1859 Civil Code pertain to property taxes.  Section 484 imposed a tax on "all real property within the kingdom, not specially exempted from taxation" and provides that "[t]he term 'real property,' with respect to the assessment and collection of revenue, shall be deemed to include all lands and town lots, with the buildings, structures, and other things erected on, or affixed to the same."  Section 483 concerns personal property taxes and states that "[t]he term 'personal property' shall be construed to include all household furniture, goods and chattels, wares and merchandise, all ships and vessels whether at home or abroad, all moneys in hand and moneys loaned, all mortgages, public stocks, stocks in corporations, and every species of property not included in real estate."  That the court did not consider the definitions limited to tax cases is indicated not only by the unqualified language of the court's decision, but by the fact that Kahinu was not itself a tax case.  Id.

       [146] See Laws of 1892, Chapter 57, Section 5.

   [147] 10 Haw. 166 (1895).  In Dowsett, the court noted:  "In Oni v. Meek, 2 Haw. 87, this court held that the Act [of August 6, 1850, now Haw. Rev. Stat. ' 7-1] repealed the former legislation and the ancient tenure, but in the 7th section preserved to the people, whether hoaainas by ancient custom or kuleana holders, certain specific rights, as to take firewood, house timber, thatch, etc. for their own use."  Id. at 170. 

       [148]  See generally 1 Kuykendall, supra note 4, at 157-61, 241-45.

       [149] See, e.g., Haalelea v. Montgomery, 2 Haw. 62, 71 (1858) (citing Kent's Commentaries and other common law scholars in developing the law pertaining to creation and transfer of fishing rights); Estate of Nakuapa, 3 Haw. 342, 345-46 (1872) (referring to the law of Massachusetts and to Roman law in upholding traditional Hawaiian custom of adoption as entitling adopted child to inherit parent's estate); Peck v. Bailey, 8 Haw. 658, 664 (1867) (applying both Hawaiian custom and American common law cases in upholding rights of a water user with rights established "by immemorial usage" under Hawaiian custom to change the use of water).

       [150] See, e.g., In re Application of Ashford, 50 Haw. 314, 440 P.2d 76 (1968), where the court speaks generally of "ancient tradition, custom and usage" (without distinguishing between these terms) as pertinent to location of the seaward boundary of property, and Palama v. Sheehan, 50 Haw. 298, 300, 440 P.2d 95, 97 (1968), where the court stated that it was "necessary to examine ancient Hawaiian tradition, custom and usage" and proceeded to a historical discussion without making any distinction between tradition, custom and usage as different terms.  But see Coady v. Ship "Lewis", 1 Haw. 303 (1856), discussing and applying "custom" and "usage" with specific attention to the distinction between them in a mercantile context.

       [151] Early cases tended to hold most closely to the traditional meanings of these terms and to respect the differences between them.  See, e.g., Coady v. Ship "Lewis", 1 Haw. 303 (1856); cf. Oni v. Meek, 2 Haw. 89 (1858).

       [152] See Blackstone, supra note 18 at 76-78; see generally supra note 1.

       [153] The statute as enacted in 1892, and as carried forward into the law of the Republic of Hawaii, referred to "Hawaiian national usage".  See Mossman v. The Hawaiian Government, 10 Haw. 421, 434 (1896).

       [154] It might be noted that as used in HRS ' 1-1, the term "usage" can in fact be read as consistent with the distinctions described supra at note 1; that is, not as a change in the common law in and of itself, but as a precursor to such change.  So interpreted, ' 1-1 does not accord to "usage" the role and the significance of "law", but treats it instead, consistently with its precise definition, as a pattern of behavior among citizens which can acquire the stature of "custom" and the force of law when the character of the usage meets the tests of antiquity, repetition, acquiescence and common consent.  This has traditionally been the means by which usage "establishes" a specific rule within the state's general common law.  See Thurston v. Allen, 8 Haw. 392 (1892).

       [155] Blackstone refers to this as a corollary of the requirement of antiquity where he says:  "For which reason no custom can prevail against an express act of parliament; since the statute itself is a proof of a time when such a custom did not exist."  1 Blackstone, supra note 18, at 76-77.  See also Bederman, supra note 1, at 1386 n.46; 21A Am. Jur. 2d, Customs and Usages, ' 16, "Conflict with statutory or constitutional provisions" (1981).

       [156] 21A Am. Jur. 2d, Customs and Usages, ' 16, "Conflict with statutory or constitutional provisions" (1981).  See also, U.S. Const. art. VI, cl. 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Cf. U.S. v. Kaneholani, 773 F. Supp. 1393 (D. Haw. 1990) and U.S. v. Nuesca, 773 F. Supp. 1388 (D. Haw. 1990), both aff'd, 945 F.2d 254 (1991).

       [157] See Proceedings of the Constitutional Convention of Hawaii of 1978, (2 vols., 1978).

       [158] 50 Haw. 314, 440 P.2d 76 (1968).

       [159] Id. at 315, 440 P.2d at 77.

       [160] See In the Matter of the Boundaries of Pulehulani, 4 Haw. 239, 245 (1879) (defining kama`aina witnesses as "persons familiar from childhood with any locality").

       [161] See In re Application of Ashford, 50 Haw. 314, 316, 440 P.2d 76, 78 (1968).

       [162] Id. at 330; 440 P.2d at 86.

       [163] Id. at 329, 440 P.2d at 85.

       [164] Id. at 344, 440 P.2d at 93.

       [165] Id. at 345, 440 P.2d at 94.

       [166] 460 F. Supp. 473 (D. Haw., 1978).

       [167] Id. at 474.

       [168] Id. at 475.

       [169] Id.  The district court observed that in the state trial court, the issue was not ownership, but value; there was no claim by any party that the Sotomuras did not own the land in question.  Id.

       [170] Id. at 476.

       [171] Id.

       [172] Id.

       [173] County of Hawaii v. Sotomura, 55 Haw. 176, 178; 517 P.2d 57, 59 (1973).

       [174] Id. at 180, 517 P.2d at 61.

       [175] Id. at 184, 517 P.2d at 63.

       [176] Sotomura v. County of Hawaii, 460 F. Supp. 473, 477 (D. Haw., 1978).

       [177] Id.

       [178] Id.

       [179] Id. at 483.

       [180] Id. at 480.

       [181] Id. at 479-80. 

       [182] McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330, aff'd on rehearing, 55 Haw. 260, 517 P.2d 26 (1973), (Levinson, J., dissenting from opinion on rehearing, 55 Haw. at 292, 517 P.2d at 44).

       [183] Hutchins, supra note 41, at 47.

       [184] Id.

       [185] See generally Hutchins, supra note 41, at 41-143.

       [186] See generally McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330, aff'd on rehearing, 55 Haw. 260, 517 P.2d 26 (1973).

       [187] McBryde, 54 Haw. at 176, 504 P.2d at 1333.

       [188] Robinson v. Ariyoshi, 441 F. Supp. 559, aff'd in part, vacated in part and remanded, 753 F.2d 1468 (1985), vacated and remanded, 477 U.S. 902, (1986) and 796 F.2d 339, aff'd on reconsideration, 676 F. Supp. 1002 (1987), reversed and remanded, 887 F.2d 215 (1989).

       [189] Robinson, 441 F. Supp. at 563.  The principal changes were that rights long accepted as belonging to private parties in fact belonged, and had always belonged, to the state; and that diversions of surface water out of its watershed, traditionally engaged in freely, were not and had never been lawful.

       [190] Id. at 564.

       [191] McBryde, 55 Haw. at 261, 517 P.2d at 27.

       [192] Robinson, 441 F. Supp. at 562.

       [193] Id. at 580-87.

       [194] Id. at 580.

       [195] Id. at 583-86.

       [196] Id. at 585.

       [197] 389 U.S. 290 (1967).

       [198] Id. at 296-97.

       [199] Robinson, 441 F. Supp. 559, 584-86.

       [200] 753 F.2d 1468 (9th Cir. 1985).

       [201] See Robinson v. Ariyoshi, 887 F.2d 215, 219 (9th Cir. 1989).

       [202] In Reppun v. Board of Water Supply, 65 Haw. 531, 656 P.2d 57 (1982), the Hawaii Supreme Court, relying heavily on McBryde, overturned traditional principles which had previously governed surface water rights in an environment where surface and ground water sources were interrelated.  This case was not directly associated with the Federal court proceedings involving the McBryde and Robinson v. Ariyoshi cases, but the dependence of Reppun on McBryde taints it with McBryde's constitutional uncertainty, and the issues of those cases may yet be raised in future cases involving Hawaii's surface and ground waters.

       In 1987 the State of Hawai`i enacted a State Water Code (Haw. Rev. Stat. ch. 174C) establishing a regulatory program for both surface and ground waters.  This statute, however, carefully left ambiguous the issue of actual ownership of water rights.  See the United States District Court's discussion of the Water Code in Robinson v. Ariyoshi, 676 F. Supp. 1002, 1021-24 (D. Haw. 1987).

       [203]  See Bederman, supra note 1 at 1438-41.

       [204] Of note is the court's astonishingly blunt observation in Robinson v. Ariyoshi, 441 F. Supp. 559:  "The entire rationale of the [McBryde] majority is one of the grossest examples of unfettered judicial construction used to achieve the result desired—regardless of its effect upon the parties, or the state of the prior law on the subject."  Id. at 568.

       [205] Public Access Shoreline Hawai`i v. Hawai`i County Planning Commission, 79 Haw. 425, 903 P.2d 1246 (1995), cert. denied sub. nom. Nansay Hawai'i, Inc. v. Public Access Shoreline Hawai'i, 116 S.Ct. 1559 (1996).

       [206] Haw. Rev. Stat. Chapter 205A (1993 Replacement).

       [207] See PASH at 429, 903 P.2d at 1250.

       [208] See id.

       [209] See id. at 430, 903 P.2d at 1251.

       [210] Id.

       [211] See id.

       [212] See id. at 435, 903 P.2d at 1256.

       [213] See id.

       [214] See id.

       [215] See id. at 452, 906 P.2d at 1273.

       [216] Id. at 436, 903 P.2d at 1257.

       [217] Id. (emphasis in original).

       [218] Id. at 437, 903 P.2d at 1258.

       [219] Id. at 452, 903 P.2d at 1273.

       [220] Id.

       [221] 66 Haw. 1, 656 P.2d 745 (1982).

       [222] 73 Haw. 578, 837 P.2d 1247 (1992), cert. denied, 507 U.S. 918 (1993).

       [223] See Kalipi, 66 Haw. at 3, 656 P.2d at 747.

       [224] Id.

       [225] See id. at 4, 656 P.2d at 747.

       [226] See id.

       [227] See id. at 8, 656 P.2d at 750.

       [228] Id. at 8, 656 P.2d at 749.  Kalipi owned a taro patch in the ahupua`a of Manawai and a houselot in the ahupua`a of Ohia, but was not residing on either property at the time of trial.  Id. at 3, 656 P.2d at 747. 

       [229] Id. at 12, 656 P.2d at 752.  The court did not elaborate on the reasons why the ahupua`a-residence limitation "dictated by the language of the statute" should be applied to claims based on an entirely different statute which included no similar limiting language.

       [230] See id. at 13, 656 P.2d at 752, “as with any gathering rights preserved by ' 7-1 or ' 1-1, we are convinced that traditional gathering rights do not accrue to persons, such as the Plaintiff, who do not live within the ahupua`a in which such rights are sought to be asserted."  Id. 

       [231] Id. at 10, 656 P.2d at 751.  The court offered no suggestion as to what might constitute "actual harm".

       [232] Id. at 7, 656 P.2d at 749.

       [233] See id. at 8, 656 P.2d at 749, 750.

       [234] Id.

       [235] Id. at n.2.

       [236] Id. at 10, 656 P.2d at 750-51.

       [237] Id. at 751. 

       [238] Id.

       [239] 2 Haw. 87 (1858).

       [240] Kalipi, 66 Haw. at 11, 656 P.2d at 751.

       [241] Id.

       [242] See O'Brian v. Walker, 35 Haw. 104 (1939), aff'd, 115 F.2d 956 (9th Cir. 1940).

       [243] 3 Haw. 68 (1872).

       [244] 10 Haw. 166 (1895).

       [245] See supra note 135 and accompanying text.

       [246] See, e.g., Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992), cert. denied, 507 U.S. 918 (1993); Public Access Shoreline Hawai`i v. Hawai`i County Planning Commission, 79 Haw. 425, 903 P.2d 1246 (1995), cert. denied sub nom Nansay Hawai'i, Inc. v. Public Access Shoreline Hawai'i, 116 S.Ct. 1559 (1996).

       [247] 73 Haw. 578, 837 P.2d 1247 (1992), cert. denied, 507 U.S. 918 (1993).

       [248] Id. at 589-90, 837 P.2d at 1256.

       [249] Id. at 585, 837 P.2d at 1253-54.

       [250] Id. at 621, 837 P.2d at 1272.

       [251] See id. at 620, 837 P.2d at 1272.

       [252] See id. at 618, 837 P.2d at 1270.

       [253] Id. at 618, 837 P.2d at 1271.  The court also noted that "[t]he practice of accessing the 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 Acts."  Id. at 621, 837 P.2d at 1272.  This would indicate that the practice was not part of the feudal system of "rights" in the precontact or preMahele period.

       [254] Id. at 620, 837 P.2d at 1272.  The court made no mention of the possibility that the "traditional and customary" use of the land claimed by plaintiff's members was and had been permissive.

       [255] For a thorough examination of Pele Defense Fund v. Paty, see Gina Watumull, Pele Defense Fund v. Paty:  Exacerbating the Inherent Conflict Between Native Hawaiian Tenant Access and Gathering Rights and Western Property Rights, 16 U. Haw. Law Rev. 207 (1994).

       [256] See Pele Defense Fund v. Paty, 73 Haw. at 621, 837 P.2d 1272.

       [257] 66 Haw. 1, 656 P.2d 745 (1982).

       [258] 73 Haw. 578, 837 P.2d 1247 (1992).

       [259] PASH, 79 Haw. at 438, 903 P.2d at 1259.

       [260] The term "Kalipi rights" was used in Pele Defense Fund v. Paty, 73 Haw. at 611-17, 837 P.2d at 1270, to refer to "rights protected by article XII, ' 7" of the state constitution.  This term is a bit misleading, however, since Kalipi established no specific rights; the Kalipi court denied Kalipi's claim, and while it suggested that other rights might exist as "Hawaiian usage" under Haw. Rev. Stat. ' 1-1, there was no discussion of specific rights which might be covered.  See Kalipi, 66 Haw. at 11-12, 656 P.2d 750-752.

       [261] 73 Haw. 578, 613-21, 837 P.2d 1247, 1268-72 (1992).  See Gina M. Watumull, Pele Defense Fund v. Paty:  Exacerbating the Inherent Conflict Between Hawaiian Native Tenant Rights and Western Property Rights, 16 U. Haw. L. Rev. 207, 243-261 (1994).

       [262] It is not entirely clear what the court believes is "inconsistent" with what.  It is likely that the court's meaning is that rights of access for gathering are inconsistent with full development of property.

       [263] PASH, 79 Haw. 425, 450, 903 P.2d 1246, 1271, n.43.  It should be noted that much of the court's discussion of traditional and customary rights, and particularly its discussion of possible departures from Kalipi's limitations, is in a portion of the opinion (see id. at 448-451, 903 P.2d at 1261-1272) introduced by the following statement:  "In light of the confusion surrounding the nature and scope of customary Hawaiian rights under HRS ' 1-1, the following subsections of this opinion discuss applicable requirements for establishing such rights in the instant case".  Id. at 448, 903 P.2d at 1269.  The significance of this limitation to "the instant case" is not clear because many of the court's statements in the subsections referred to are stated quite broadly and appear to be of general applicability.  For purposes of this article, these statements are analyzed as though they were intended to apply generally in the future.

       [264] Id.

       [265] See Kalipi, 66 Haw. at 8, 656 P.2d at 749, and footnote 2 of that opinion ("These rights are rights of access and collection.  They do not include any inherent interest in the natural objects themselves until they are reduced to the gatherer's possession.  As such those asserting the rights cannot prevent the diminution or destruction of those things they seek. The rights therefore do not prevent owners from developing lands.") (emphasis added).  Id.

       [266] See PASH, 79 Haw. at 450-51, 903 P.2d at 1271, 1272:

For the purposes of this opinion, we choose not to scrutinize the various gradations in property use that fall between the terms "undeveloped" and "fully developed."  Nevertheless, we refuse the temptation to place undue emphasis on non-Hawaiian principles of land ownership in the context of evaluating deliberations on development permit applications. . . . Depending on the circumstances of each case, once land has reached the point of "full development", it may be inconsistent to allow or enforce the practice of traditional Hawaiian gathering rights on such property.  However, legitimate customary and traditional practices must be protected to the extent feasible in accordance with article XII, section 7. . . . Although access is only guaranteed in connection with undeveloped land, and article XII, section 7 does not require the preservation of such lands, the State does not have the unfettered discretion to regulate the rights of ahupua`a tenants out of existence.

Id.

       [267] Id. at 450, 902 P.2d at 1271.

       [268] Restatement  of Property ' 1 (1936).  See Martin v. Brunzelle, 699 F. Supp. 167, 170 (N.D. Ill. 1988); Dennis v. Higgins, 498 U.S. 439, 447 (1991); PVM Redwood Co., Inc. v. U.S., 686 F.2d 1327 (9th Cir. 1973).

       [269] See Tagami v. Meyer, 41 Haw. 484 (1956).

       [270] See Jarrett's Heirs v. Kapena, 4 Haw. 417 (1881).

       [271] Somewhat surprisingly, the court offers no suggestions as to what independent sources of rights to use the land of another might be.  A wide variety of options exist, some of them well-founded in traditional law, which have been used in the Hawai`i courts; in Akau v. Olomana Corp, 65 Haw. 383, 652 P.2d 1130 (1982), for example, plaintiffs sought to enforce rights-of-way along once-public trails to the beach on grounds of: HRS ' 7-1; ancient Hawaiian custom, tradition, practice and usage; common law custom; easement by implied dedication; easement by prescription; easement by necessity; easement by implied reservation; and easement through public trust.  Some of these were established early in Hawaiian jurisprudence; see, for example, Rooke v. Nicholson, 1 Haw. 508 (1856) (easement by prescription); Kalaukoa v. Keawe, 9 Haw. 191 (1893) (easement by necessity); The King v. Cornwell, 3 Haw. 154 (1869) (easement by implied dedication).  While not all of these may be efficacious under Hawai`i law (see, for example, Application of Banning, 73 Haw. 297, 832 P.2d 724 (1992) limiting the doctrine of implied dedication in Hawai`i as compared to California) the listing alone shows that some thought has been given to old as well as new theories for the protection of traditional practices.

     [272] See, Committee on Hawaiian Affairs Standing Committee Report No. 56, Convention Documents p. 628ff.; Committee of the Whole Report No. 12, Convention Documents p. 1016; Convention Journal, 51st day, pp. 274-278.  For a discussion of this subject see Gina M. Watumull, Pele Defense Fund v. Paty:  Exacerbating the Inherent Conflict Between Hawaiian Native Tenant Rights and Western Property Rights, 16 U. Haw. L. Rev. 207, 243-61 (1994).

       [273] The terms "cultural" and "religious" enhance the complexities of applying PASH to specific claims.  "Culture" is a vague enough term itself; Webster's Third New International Dictionary 582 (1981) provides the following pertinent definitions:

5 a: the total pattern of human behavior and its products embodied in thought, speech, action, and artifacts and dependent upon man's capacity for learning and transmitting knowledge to succeeding generations through the use of tools, language, and systems of abstract thought;  b: the body of customary beliefs, social forms, and material traits constituting a distinct complex of tradition of a racial, religious, or social group;  c: a complex of typical behavior or standardized social characteristics peculiar to a specific group, occupation or profession, sex, age grade, or social class.

Id.

       As noted earlier in this article (supra notes 35 through 149 and accompanying text), and as a review of the works of Malo and Kamakau make abundantly clear, Hawaiian "culture" was vastly different in 1778 from what it was in 1851, and is dramatically different today from either of those times.  The following observation by George S. Kanahele, a Hawaiian scholar and author, highlights the difficulty of identifying what is and is not "Hawaiian culture" today:

These are the modern Hawaiians, a vastly different people from their ancient progenitors.  Two centuries of enormous, almost cataclysmic change imposed from within and without have altered their conditions, outlooks, attitudes, and values.  Although some traditional practices and beliefs have been retained, even these have been modified.  In general, today's Hawaiians have little familiarity with the ancient culture. 

Not only are present-day Hawaiians a different people, they are also a very heterogeneous and amorphous group.  While their ancestors once may have been unified politically, religiously, socially, and culturally, contemporary Hawaiians are highly differentiated in religion, education, occupation, politics, and even their claims to Hawaiian identity.  Few commonalities bind them, although there is a continuous quest to find and develop stronger ties.

George S. Kanahele, The New Hawaiians, 29 Social Process in Hawaii 21 (1982).

It was explained above that in the transition from old to new in Hawaiian culture, the kings and senior chiefs maintained a remarkable degree of control.  It was the Hawaiian monarch and his most powerful chiefs and advisors who discarded the kapu system (supra notes 60 through 66).  Christianity became the predominant religion soon afterwards with the enthusiastic and sometimes forceful support of the king and the chiefs (supra notes 67 through 71; see also Kamakau, Ruling Chiefs, supra note 44, at 261-62; 2 Kuykendall, supra note 4, at 86-99).  Given the active and comprehensive participation of the native Hawaiian leadership in these changes, it may be difficult for a claimant to show that as of 1892, the date before which traditional usages must have existed to have protection under PASH, the "culture" and "religion" defined by "national Hawaiian usage" were anything other than the essentially Western social and economic practices and the Christian religion then prevalent in the Kingdom and defined and protected by its written and common law.  Certainly the pre-Christian polytheism of the kapu system, and the oppressive practices of the chiefs and konohiki described by Malo and Kamakau (supra notes 33 through 56 and accompanying text), were no longer "national Hawaiian usage" during the latter years of the monarchy or afterward.

       [274] 2 Haw. 87 (1858).

       [275] PASH, 79 Haw. at 441, 902 P.2d at 1262.  A more scholarly attempt to narrow Oni and limit its effect appears in Forman & Knight, supra note 133.  Ultimately, however, this effort, like that of the PASH court, founders on the plain and comprehensive words of the Oni decision itself.

       [276] See discussion at supra notes 111-134 and accompanying text.

       [277] Id.

       [278] Id.

       [279] Oni v. Meek, 2 Haw. 87, 90 (1858).

       [280] Fishing rights were addressed in Haalelea v. Montgomery, 2 Haw. 62 (1858), where the court discussed the 1839 statute by which the king terminated previous customary privileges and reallocated fishing rights among himself, the konohiki and the common people. The court observed:  "This is the point at which the existing piscatory regulations of the Kingdom had their commencement, and since which, ancient custom ceased to govern the subject."  Id. at 65 (emphasis added).

       [281] Oni, 2 Haw. at 95 (emphasis in original).

       [282] Id. at 87.

       [283] Id. at 90.  Of interest on this point is Kekiekie v. Dennis, 1 Haw. 69 (1851), in which Kekiekie alleged that Dennis had trespassed on his land.  Dennis claimed, among other grounds of defense, that Kekiekie, as a tenant on the land, had failed to provide the three days' labor each month required of tenants.  On that point, the court ruled that Dennis had no right to demand the three days monthly labor.  Id.

       [284] PASH, 79 Haw. 425, 447, 902 P.2d 1246, 1268 (1995).

       [285] Id. at 447-48, 902 P.2d at 1268-69.

       [286] 79 Haw. at 448, 902 P.2d at 1269.  The court offers no reason for this conclusion other than its inconsistency with the result the court desires to reach, leaving the implication that any element of custom under English and American common law which frustrates the court's recognition of "traditional" rights would likewise be found not to apply in Hawai`i.  The court nowhere discusses the alternative view that if the claimed "rights" do not meet the tests of the common law, including the English and American common law of "custom and usage" as understood and consistently applied in Hawai`i before and long after 1892, the claimed "rights" are not rights, and are therefore not protected.

       [287] Id. at 447, 902 P.2d at 1268.

       [288] Id.

       [289] See supra note 118 and accompanying text.

       [290] 1 Haw. 303 (1856).

       [291] See Estate of Hakau, 1 Haw. 471 (1856) (adoption); Estate of His Majesty Kamehameha IV, 2 Haw. 715 (1864) (adoption); Thurston v. Allen, 8 Haw. 392 (1892) (rejecting Rule in Shelley's Case); Kake v. Horton, 2 Haw. 209 (1860) (permitting wrongful death action); Wood v. Ladd, 1 Haw. 23 (1847) (rejecting requirement for a seal in execution of mortgage documents).

       [292] The court in Thurston v. Allen, 8 Haw. 392, 398-99 (1892) referred with approval to a compilation by counsel in that case showing that the court had departed from the common law in only about one percent of its 900 reported cases.

       [293] 58 Haw. 106, 566 P.2d 725 (1977).  The state prosecuted its first appeal in State v. Zimring, 52 Haw. 472, 479 P.2d 202 (1970).

       [294] The Zimring II court discussed this point in some detail:

Even assuming that competent evidence had established a traditional usage by which a landholder acquired the right to use lava extensions, such evidence would be of little weight in this case.  Under the traditional and more communal economic system in pre-Mahele Hawaii, the ahupua'a were designed to be self-sufficient economic units.  Thus, had a practice existed which allowed the landowners the use of lava extensions, such practice would have made good economic sense since the denial of access to the ocean and fishing grounds would have rendered the ahupua'a something less than self-sufficient. The economic necessity for such a practice would not have carried over into a private property regime within the framework of a private enterprise economic system.  Moreover, the interests a landholder may have enjoyed under the traditional system, within which there was no private land title and all land was held in trust for the people by the King, are of little relevance in determining private rights to title under a private property regime.

Id. at 111-17, 566 P.2d at 732-33 (emphasis added).

       [295] PASH, 79 Haw. 425, 449, 902 P.2d 1246, 1270 (1995).

       [296] Id. at 448, 902 P.2d at 1269.

       [297] Bederman, supra note 1 at 1395-98.  Bederman states:

       A profit is something taken from the soil of another, an extractive use of the property (what was known in Latin as alieno solo).  This is distinct from an easement upon the land, as in the right to walk across a property or to use it in some nonconsumptive fashion. The rule in England, from the time of Lord Coke's decision in Gateward's Case in 1607, was that a right to a profit could be secured by prescription, but not by custom.               

       This meant that the public-at-large in a district could have the right to cross a manor land "either to the church or market, . . . for it is but an easement and no profit."  If the villagers wished to enter the lord's manor for the purpose of digging sod, collecting firewood, or grazing sheep, this would be considered a profit.  It would thus be considered a bad custom, inasmuch as the indefinite class of right-holders (the villagers) was insufficiently certain as to satisfy that legal element of the doctrine.  Only a copyholder of the manor—a legal tenant—could claim a prescriptive right to a profit under the decision in Gateward.

       [298] Id. at 1397.

       [299] See id. at 1402-07.  See also John Chipman Gray, The Rule Against Perpetuities 563 (Roland Gray ed., 1942) ("In America the decisions that no profit a prendre can be created by custom have been often and uniformly followed").

       [300] See infra notes 354 through Error! Bookmark not defined. and accompanying text.

       [301] 2 Haw. 87 (1858).

       [302] 10 Haw. 168 (1895).

       [303] 66 Haw. 1, 656 P.2d 745 (1982).

       [304] 2 Haw. 62 (1858).

       [305] See Louis Cannelora, The Origin of Hawaii Land Titles and the Rights of Native Tenants 41-44 (1974).  The term "tenant" was discussed in the 1858 case of Haalelea v. Montgomery, where the court stated:

We understand the word "tenant", as used in this connection [referring to rights of "tenants" of an ahupua`a to fish in certain offshore areas] to have lost its ancient restricted meaning, and to be almost synonymous, at the present time, with the word occupant, or occupier, and that every person occupying lawfully, any part of [the ahupua`a] is a tenant within the meaning of the law.

2 Haw. at 71.  The court in Oni v. Meek, 2 Haw. 87 (1858) applied this definition as well to the term "people" as used in what is now Haw. Rev. Stat. Ann. ' 7-1 (1995); see also Dowsett v. Maukeala, 10 Haw. 166 (1895).

       [306] PASH, 79 Haw. at 448, 902 P.2d at 1269.

       [307] Id. at 448, 902 P.2d at 1269. 

       [308] For an interesting and detailed examination of a claim of traditional and customary right, decided several months before the decision in PASH, see the district court opinion in Pai `Ohana v. U.S., 875 F. Supp. 680 (D. Haw. 1995), aff'd, 76 F.3d 280 (9th Cir. 1996).  The Ninth Circuit's brief opinion, rendered shortly after the PASH decision was handed down, quoted (without critical analysis) some of the pronouncements of PASH concerning customary and traditional rights in Hawai`i, but held that PASH was inapplicable because PASH, unlike Pai `Ohana, did not involve any claim for exclusive use and possession of land. 

       [309] PASH, 79 Haw. at 449, 902 P.2d at 1270.  The court held that such descendants would be entitled to assert claims regardless of blood quantum and declined to draw any contrary inference from remarks in Pele Defense Fund v. Paty, 73 Haw. 578, 615, n.28, 837 P.2d 1247, 1269 n.28 (1992).

       [310] PASH, 79 Haw. at 449, 902 P.2d at 1270.

       [311] Id.

       [312] Id.  If traditional and customary rights are somehow racially limited, their protection or enforcement by governmental entities may be restricted or prevented under the principles enunciated in Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995).  In Adarand, the United States Supreme Court held that:

all racial classifications, imposed by whatever federal, state, or local government actor, must be analyzed by a reviewing court under strict scrutiny.  In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.

Id. at 227, 115 S.Ct. at 2113.  It may well be that any court, board or governmental official taking action to enforce or protect racially defined or limited rights of "descendants of native Hawaiians" would have to show, in order to shield its decision against an Adarand challenge, that the rights in question actually exist and have been or will be abridged or denied on grounds of race, see, e.g., Hopwood v. State of Texas, 78 F.3d 932 (5th Cir. 1996), or that some other sort of “compelling interest” exists to justify such action, and that the protective or enforcement action is “narrowly tailored” to meet that interest.  See Adarand, 515 U.S. at 235.

       The case of Haalelea v. Montgomery, 2 Haw. 62 (1858) indicates that the rights of "ahupua`a tenants" pass with title to land in the ahupua`a, without regard to the race of the occupier of the land, since Daniel Montgomery, whose rights of piscary deriving from his status as a tenant were confirmed by the court, was an immigrant from England.  See Montgomery v. Montgomery, 2 Haw. 553 (1862).  See also Damon v. Tsutsui, 31 Haw. 678 (1930).  In light of this, if Haw. Const. art. XII, ' 7 is read (as seems intended) to require protection of such rights only if they are held by persons of a specific race, the provision may constitute an unconstitutional denial of equal protection to persons of other races holding similar rights.  From a different point of view, if traditional and customary rights are in fact racially limited, their enforcement may be prohibited by Shelley v. Kramer, 334 U.S. 1 (1948).    

       It has sometimes been suggested that persons of Hawaiian ancestry are analogous to American Indians (Native Americans) and that differential treatment for persons of Hawaiian ancestry can accordingly be justified on the same basis as differential treatment for members of Indian tribes, which the Supreme Court upheld in Morton v. Mancari, 417 U.S. 535 (1976) as not "racial" and therefore not subject to strict scrutiny.  With respect to preferences for persons of Hawaiian ancestry, the issue is still a matter of debate.  Compare Hoohuli v. Ariyoshi, 631 F. Supp. 1153 (D. Haw., 1986) (suggesting that strict scrutiny might be the appropriate standard) with Naliielua v. State of Hawaii, 795 F. Supp 1009 (D. Haw., 1990), affirmed on grounds of standing in Naliielua v. State of Hawaii, 940 F.2d 1535 (9th Cir. 1991); the district court applied Morton and concluded that a rational basis test was appropriate.  See also Rice v. Cayetano, 941 F. Supp. 1529 (D. Haw. 1996), aff'd 146 F.3d 1075 (9th Cir. 1998), following Naliielua.  For an exhaustive treatment of the question see Stuart Minor Benjamin, Equal Protection and the Special Relationship:  The Case of Native Hawaiians, 106 Yale L.J. 537 (1996) (concluding that Native Hawaiians are not comparable to Native Americans with respect to qualifying for the "special relationship" that exists between Congress and American Indian tribes, and that Morton does not apply to exempt preferences for persons of Hawaiian ancestry from strict scrutiny analysis).

       [313] See generally, 45 Am. Jur. 2d International Law § 84 (1969).

       [314] Black's Law Dictionary 1396 (6th ed. 1990), offers the following among many similar phrases defining "sovereignty":

The supreme, absolute, and uncontrollable power by which any independent state is governed; supreme political authority; the supreme will; paramount control of the constitution and frame of government and its administration; the self-sufficient source of political power, from which all specific political powers are derived; the international independence of a state, combined with the right and power of regulating the internal affairs without foreign dictation.

       [315] Since sovereignty is defined in terms of actual power, it is hard to imagine how present-day access and gathering rights could "flow" from "pre-existing sovereignty" if that term means "sovereignty which no longer exists" as seems to be the case here.

       [316] 2 Haw. 616 (1863).

       [317] Id. at 630.

       [318] Id. at 630-31.

       [319] Concerning Kamehameha V, see 2 Kuykendall, supra note 4, at 132.  Queen Lili`uokalani expressed her own opinion in Lili`uokalani, Hawaii's Story by Hawaii's Queen 21 (Mutual Publishing 1990)(1898).  “Let it be repeated:  the promulgation of a new constitution, adapted to the needs of the times and the demands of the people, has been an indisputable prerogative of the Hawaiian monarchy.”

       [320] An interesting point of speculation is the constitutionality of such a classification not as a racial distinction, but as a "title of nobility" which is prohibited to the Federal government under U.S. Const. art. I, ' 9, cl. 8 and to state governments under U.S. Const. art. I, ' 10, cl. 1.  See Richard Delgado, Inequality “From the Top”:  Applying an Ancient Prohibition to An Emerging Problem of Distributive Justice, 32 U.C.L.A. L. Rev. 100 (1984); Zobel v. Williams, 457 U.S. 55 (1982) (Brennan, J., concurring).

       [321]  See Adarand Constructors v. Federico Pena, 515 U.S. 200 (1995); Shelley v. Kramer, 334 U.S. 1 (1948).

       [322] See discussion supra at note 312.

       [323] Id.

       [324] PASH, 79 Haw. 425, 450, 903 P.2d 1246, 1271 (1995).

       [325] Id.

       [326] Id. at 451 n.44, 902 P.2d at 1272 n.44.

       [327] Haw. Rev. Stat. ' 5-7.5.  The statute reads in full:

"Aloha Spirit"  (a)  "Aloha Spirit" is the coordination of mind and heart within each person.  It brings each person to the self.  Each person must think and emote good feelings to others.  In the contemplation and presence of the life force, "aloha", the following unuhi laula loa may be used:

       "Akahai", meaning kindness to be expressed with tenderness;

       "Lokahi", meaning unity, to be expressed with harmony;

       "Oluolu", meaning agreeable, to be expressed with pleasantness;

       "Haahaa", meaning humility, to be expressed with modesty;

       "Ahonui", meaning patience, to be expressed with perseverance.

These are traits of character that express the charm, warmth and sincerity of Hawaii's people.  It was the working philosophy of native Hawaiians and was presented as a gift to the people of Hawaii.  "Aloha" is more than a word of greeting or farewell or a salutation.  "Aloha" means mutual regard and affection and extends warmth in caring with no obligation in return.  "Aloha" is the essence of relationships in which each person is important to every other person for collective existence.  "Aloha" means to hear what is not said, to see what cannot be seen and to know the unknowable.

(b)   In exercising their power on behalf of the people and in fulfillment of their responsibilities, obligations and service to the people, the legislature, governor, lieutenant governor, executive officers of each department, the chief justice, associate justices, and judges of the appellate, circuit and district courts may contemplate and reside with the life force and give consideration to the "Aloha Spirit".

       [328] Scholars may speculate, for example, whether developing instructions for service of process on a public official "residing with the life force" might involve difficulties similar to those discussed in U.S. ex rel. Mayo v. Satan and his Staff, 54 F.R.D. 282 (W.D. Pa., 1971).

       [329] See PASH, 79 Haw. at 442-47, 903 P.2d at 1261-68.

       [330] Id. at 447, 903 P.2d at 1268.

       [331] Concerning this term see supra note 99.  Strictly speaking, for patents issued upon Land Commission Awards, it was not the land patent which "confirmed" the landowner's property interest; it was the Land Commission Award which confirmed the applicant's title, and the patent simply released the government's right to commutation.  See Chinen, supra note 96, at 11-14.  Land patents were also issued, however, to convey government lands to private purchasers, and these did transfer title.  Chinen, Original Land Titles in Hawai`i 33-46 (1961).  It may be inferred from the context of the PASH court's reference to "land patents" that it was using the term not in its technical sense but as a general term for documents of original title; but given the potential significance and controversial nature of the court's pronouncements in this part of its decision, technical precision would have been desirable.

       [332] See PASH, 79 Haw. at 447, 903 P.2d at 1268.

       [333] It is not clear how such a "limited interest", even if that were all that was granted at the Great Mahele, would be relevant in the cases of claimants whose practices commenced after that event.  The administrative record in PASH shows only that the claimed gathering rights were exercised as long ago as the 1920's, long after the Great Mahele of 1848 and long after the "cutoff date" of 1892 for establishing "Hawaiian usage".  PASH, 79 Haw. at 447 n.39, 903 P.2d at 1268 n.39.  The PASH court did not explain either how this claimed practice could avoid the problem of post-1892 establishment or how the right to engage in the practice could have been reserved out of the patent to a konohiki at the time of the Great Mahele.

       [334] The court is apparently speaking of limitations of title other than the express exception of the rights of native tenants included generally in all conveyances to the ali`i and konohiki.  That express exception ("koe nae ke kuleana o na kanaka", translated as "reserving however the people's kuleana therein") was addressed in Territory v. Liliuokalani, 14 Haw. 88 (1902), and held to refer only to the reservation, out of a grant of a larger parcel of land, of "the house lots and taro patches or gardens of natives lying within the boundaries of the tract granted."  Id. at 95.  See also supra note 109.

       [335] See PASH, 79 Haw. at 445, 903 P.2d at 1266.  The reservations in question derive from the Principles Adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them, Laws 1848, p. 81, reprinted in Revised Laws of Hawaii 1925, Vol. II, p. 2124, 2128.  These reservations include such land-related prerogatives as the right of eminent domain, taxation of real property, construction of roads and bridges and forfeiture of lands as punishment for treason. 

       The PASH court quoted extensively from Reppun v. Board of Water Supply, 65 Haw. 531, 656 P.2d 57 (1982), a case concerning water rights, in which the court held that the monarch's reservation, as a sovereign prerogative, of the power to "encourage and even to enforce the usufruct of lands for the common good" constituted a reservation "to the sovereign [of] the right to regulate and allocate water resources in accord with the needs of the people of the Kingdom."  Id. at 543-44, 656 P.2d at 66.  In quoting from Reppun, the PASH court replaced the phrase "water resources" with "[undeveloped land]", apparently intending to extend the holding in Reppun to land by means of the bracketed replacement.  Reppun, however, is based squarely on the constitutionally doubtful case of McBryde Sugar v. Robinson, 54 Haw. 174, 504 P.2d 1330, aff'd on rehearing, 55 Haw. 260, 517 P.2d 26 (1973), appeal dismissed and certs. denied, 417 U.S. 962 and 417 U.S. 976 (1974), and itself announces radical departures from prior law which are themselves questionable from a constitutional standpoint (see Robinson v. Ariyoshi, 676 F. Supp. 1002, 1015 (D. Haw. 1987), vacated and remanded with direction to dismiss on grounds of ripeness, 887 F.2d 315 (9th Cir. 1989), and discussion supra note 202).  The reservation concerning the "usufruct of lands for the common good", moreover, was given an entirely different interpretation in Territory v. Liliuokalani, 14 Haw. 88 (1902), as follows:

“To encourage and even enforce the usufruct of the land for the common good", was undoubtedly intended to cover the right of private persons and corporations to condemn land for quasi public purposes, and also the inalienable right, not only to conduct commerce over navigable waters, but to provide wharves and landing places for its accommodation.

Id. at 98 (Fitch, J., concurring).  Reppun thus affords at best an uncertain foundation for the PASH court's position.

       The PASH court's conclusion is also difficult to reconcile with the statute of August 6, 1850 (Laws 1850, p. 202, reprinted in Revised Laws of Hawaii 1925, Vol. II, p. 2141-42, now HRS § 7-1) discussed in Oni v. Meek, 2 Haw. 87 (1858), which followed the enactment of the Principles by three years.  Even assuming that the reservation in question did, in some undefined fashion, perpetuate pre-Mahele customs, the statute of August 6, 1850, as interpreted in Oni, ended all but the gathering rights specifically listed therein.

       [336] See 79 Haw. at 446, 902 P.2d at 1267.

       [337] Jones v. Meek, 2 Haw. 9, 11 (1857).  See also Keelikolani v. Robinson, 2 Haw. 522, 546 (1862) ("The titles awarded by the Board [of Commissioners to Quiet Land Titles] were free of all burdens except that affecting certain classes of them, which were subject to the payment of a commutation to the government, to render them allodial."); Cannelora, supra note 90, at 24; Chinen, supra note 96, at 13 ("Except for the government's right to commutation, a Land Commission Award gave complete title to the lands confirmed"). 

       [338] Kekiekie v. Dennis, 1 Haw. 69 (1851).  The rights reserved were defined in Territory v. Liliuokalani, 14 Haw. 88, 95 (1902) to be the "reservations of the house lots and taro patches or gardens of natives lying within the boundaries of the tract granted."

       [339] Jones v. Meek, 2 Haw. 9 (1857).

       [340] Bishop v. Mahiko, 35 Haw. 608 (1940) ("No judicial or administrative procedure existed prior to annexation for officially establishing the boundaries of private fisheries.

. . . The commissioners to quiet titles were without jurisdiction to award fisheries, except as the same, in the exercise of their jurisdiction to settle titles to 'lands,' might incidentally come in question"); see also Chinen, supra note 96, at 13 n.10.

       [341] Chinen, supra note 96, at 11-14.

       [342] Application of Robinson, 49 Haw. 429, 421 P.2d 570 (1966).

       [343] See 2 Haw. 87 (1958)

       [344] See 6 Haw. 68 (1872), discussed supra at note 141 and accompanying text.

       [345] See id. at 69.

       [346] See, e.g., Dolan v. City of Tigard, 512 U.S. 374 (1994)("As we have noted, this right to exclude others is 'one of the most essential sticks in the bundle of rights that are commonly characterized as property'”); see also Kaiser Aetna et al. v. U.S., 444 U.S. 164, 176 (1979) ("In this case we hold that the 'right to exclude,' so universally held to be a fundamental element of the property right, falls within this category of interests that the Government cannnot take without compensation").

       [347] See Haw. Rev. Stat. ' 501 (1993).

       [348] Id. ' 501‑71.

       [349] See id. ' 501‑87.

       [350] See id. ' 501‑82.

       [351] Id. ' 501‑81.

       [352] See 31 Haw. 678 (1930).

       [353] See id. at 688.

       [354] See 460 F. Supp. 473 (D. Haw. 1978).

       [355] See Robinson v. Ariyoshi, 441 F. Supp. 559 (D. Haw. 1977), aff'd in part, vacated in part and remanded, 753 F.2d 1468 (1985), vacated and remanded, 477 U.S. 902 (1986) and 796 F.2d 339, aff'd on reconsideration, 676 F.Supp. 1002 (1987), reversed and remanded, 887 F.2d 215 (1989).

       [356] See supra notes 90 through 149 and accompanying text.

       [357] See 2 Haw. 87 (1858).

       [358] See 66 Haw. 1, 656 P.2d 745 (1982).

       [359] See, e.g., Gutierrez v. Bowen, 702 F. Supp. 1050 (S.D.N.Y., 1989).

       [360] See id. at 1060.

       [361] 902 P.2d at 1257 (citing Nollan v. California Coastal Commission, 483 U.S. 825 (1987)).

       [362] Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

       [363] Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).

       [364] Nollan, 483 U.S. at 832.

       [365] See Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985).

       [366] Most of PASH is quite unashamedly dictum.  An interesting question is whether it rises to the quality of dictum which an inferior court should, under Hawai`i law, consider binding.  The Hawai`i Supreme Court, in Robinson v. Ariyoshi, 65 Haw. 641, 655,  658 P.2d 287, 298 (1982), stated that the appropriate course for a lower court "would be to consider a statement of a superior court binding on inferior tribunals, even though technically dictum, where it 'was passed upon by the court with as great care and deliberation as if it had been necessary to decide it, was closely connected with the question upon which the case was decided, and the opinion was expressed with a view to settling a question that would in all probability have to be decided before the litigation was ended.'"

       The manifold ambiguities of the PASH case, the pervasive reservation of specific issues for future cases to decide, and the threats of sweeping, unsupported rejections of fundamental, long-settled precedent may justify a lower court or tribunal in concluding that the standard of "great care and deliberation" is not met.  Lower courts and tribunals may also conclude that the issues actually decided in PASH were not "closely connected" with the court's discourses on the potential scope of gathering and access rights, since the claims by the PASH plaintiffs were rather specific (see PASH, 79 Haw. at 430 n.6, 902 P.2d at 1251 n.6), and the actual decision of the court on the application of the CZMA was quite narrow.  See also id. at 436, 902 P.2d at 1257.

       [367] 505 U.S. at 1029.

       [368] 389 U.S. 290, 296-97 (1967) (Stewart, J. concurring), cited in Stevens v. City of Cannon Beach, 510 U.S. 1207, 1212, 114 S. Ct. 1332, 1334 (1994) (Scalia, J., dissenting from denial of petition for writ of certiorari).

       [369] 79 Haw. at 447, 903 P.2d at 1268.

       [370] Nollan v. California Coastal Commission, 483 U.S. 825, 831 (1987) (citing Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433 (1982), quoting Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979)).

       [371] Stevens v. City of Cannon Beach, 510 U.S. 1207, 1214 (1994) (Scalia, J., dissenting from denial of petition for writ of certiorari).  The PASH decision, of course, is not without its supporters.  See, e.g., Forman & Knight, supra note 133.