Ka Pa'akai: Supreme Court Decision

Traditional use of "tents" - 1860

The next trip (1860) proposed by His Majesty was to the extinct volcano of Healeala, and orders were given that we should all go in boats from Lahaina to Wailuku. It was a beautiful sight; the waters were calm, each boat was ornamented with the Hawaiian flag, the royal standard fluttered from that of the king, and as we coasted along the shores, we could see the people on the land following our course and interested in our progress; there were, I think, twelve boats in all. We arrived without accident, ascended the mountain, and passed a night on the border of the crater. We had our tents, and there was shelter in the caves and crevices for the remainder of the party. All passed off gayly. There was little sleep, however, some of us being afflicted with asthmatic attacks which the excessive rarity of the air at that altitude made very severe. Such was my portion; but as I sat up, not daring to lie down lest I might lose my breath, I could hear the merry sounds of the singing and dancing which from one tent or another was going on around me.

-From Hawaii's Story by Hawaii's Queen, Chapter 3 – Kamehameha IV

Advertiser Article: Hunters Want Warden Fired

We want to focus on all-around solutions, as the problem extends far beyond this one warden. However, it is a good article overall:
READ IT HERE.

Lauhala Mats, Sea Shelters, Cultural Implements

From time immemorial, our kupuna would set up traditional sea shelters near the shore during certain months of the year. Most of us did this with our parents, too. Although materials have changed, this practice has been continued through the present.

Today,
Our tarps and tents are our Sea Shelters.
Our cots and blankets are our Lauhala Mats.
Our motor vehicles are our Wa'a.

We do not know what materials our future generations will use to protect themselves and their 'ohana as they practice our culture. But we do know that if we teach them the right ways to live with the land and sea right now, they will be more likely to use those things for the benefit of the 'aina and all of the people who depend upon it for life.

What is PASH?

The PASH decision is what is referred to as "case law". In other words, the Hawai'i State Supreme Court ruled on laws that already existed, to clarify what those laws really mean. In this case, the court was ruling on Article 12, section 7 of the State constitution, which relates to Hawaiian rights to cultural practice, as well as HRS 1-1 and 7-1 (see links on the right).

According to a brochure from Native Hawaiian Legal Corporation,

"The decision recognized the traditional relationship Native Hawaiians have with the land and the importance of maintaining that relationship."

According to the same brochure, PASH therefore clarified the following:


• "Native Hawaiian Rights cannot be regulated out of existence by unreasonable or burdensome laws, permits or fees." In other words, the State does not have the right to make laws or departmental rules that would cause cultural practices to be extinguished if they were broadly enforced.

• "A Hawaiian tradition should be determined by balancing the reasons for continuing it and the harm it poses". In other words, traditional practices must be "reasonable" for them to be legal, and not cause harm to others. Obviously, you cannot put your neighbor's dog in the imu or exercise "gathering rights" on the lychee tree in somebody's backyard...this is common sense to most Hawaiians, and the court is relying on Hawaiians to exercise this comon sense.
However, according to this ruling you can probably legally gather salt in the places where your grandparents traditionally gathered salt, even if you must cross through undeveloped State or private lands to do so. This may not make "common sense" to some private landowners, but it is rooted in traditional land usage in Hawai'i and fully within the laws of the State of Hawai'i.


The PASH ruling also implies that the protection of Hawaiian traditional and customary rights may extend to traditional practitioners who are not of Hawaiian blood, under certain circumstances.

It should be noted that the PASH decision did not come easily. The Kohanaiki 'Ohana and many others should be credited for the many years of hard work it took to achieve this major victory in 1995.

B.B.'s Story 9-5-8: Ka'ena & Poamoho

As we have said repeatedly in this blog, we as cultural practitioners are continuing to work toward a positive, cooperative solution with DLNR. However, stories like the following (from last night) make some people seriously wonder whether DLNR is even interested in cooperation...

Last night, on September 5, 2008, B.B. went fishing with his 'ohana and close friends at Ka'ena Point. While fishing, the family was sheltered by a tarp they had erected to protect themselves from the elements. DLNR officers came on ATV's and cited them for having the tarp up. B.B. reports that the officer who cited them, H.H., was very rude to all of them, including the children, who were very upset by the event. They were forced to take down the tarp, as the officer said that he would cite them again if they did not. There was also an implied threat of possible violence in the manner of the officer. They were all "freezing" through the night with no shelter at all, including the children.

"Camping paraphernalia?"
or
Cultural Practice Necessity?

Read B.B.'s full story HERE

B.B. must go to court on October 16th at 9 a.m. for sheltering his family while fishing.

Stories like these are prompting people to ask questions such as this: "Is DOCARE a public agency of resource protection, or an independent militia?" -- Anonymous practitioner from Ka'ena

A Day with the Helenihi 'Ohana: 8/30/8

The Helenihi family has a long history at Ka'ena point. They have been caring for the land, sea and cultural sites for many generations, and have been especially focusing on trying to educate people about the sites and the care and respect that those places need. Unfortunately, they have also been harassed and cited by DLNR for overnight cultural practice.



Uncle Fred Mullins, po'o of the 'ohana who gathered in Ka'ena this weekend and founder of Kokua Ka'ena, is an awesome repository of cultural and historical knowledge, as well as overall mana'o on how to be right with the land and sacred places.


Uncle Fred's daughter, Summer, cleans the area regularly (yes it's the practitioners, not the city or state, who keep the place clean). Summer is an educator by profession who works especially well with youth.


Unfortunately, their efforts are not recognized by DLNR, who visited after the sun went down...

Note: this video is 17 minutes long. We hope to get a shorter version up soon. Still, it really shows the problem...especially in the very end, when the DLNR officers are driving away from citing the cultural practitioners -- OVER the BURIAL DUNES!!!

Also, remember that this video shows the way that cultural practitioners are treated when video cameras are present. From the stories that are now being collected, it seems that when cameras are not around, a whole new level of intimidation is common...FISHERMEN: CARRY VIDEO CAMERAS!!!

Uncle Fred was cited for sheltering his family (and for bringing his tiny 'ilio, Mahina, with him, who is definitely part of the family!). His court date is OCTOBER 9, 2008 at the WAHIAWA DISTRICT COURT. Please come to support if you can!!

The Problem with DLNR

There is a serious problem right now between the Department of Land and Natural Resources and the traditional practitioners of Hawaiian culture (specifically the lawai'a, fishermen) at Ka'ena. We would like to find real solutions to these problems...and quickly!





Recreational "four wheelers" have destroyed much of the native habitat, and disrupt the fishermen. When we have tried to complain to DLNR, rather than coming quickly to cite the real offenders, DOCARE officers typically come down much later -- and cite US! Often, these officers have used excessive force, and have not treated us respectfully. They do not know the laws that protect cultural practice. And they are not very good at protecting the resources of the area. We are not blaming anyone for this problem, but it needs to be fixed.

Furthermore, DLNR is interfering with our access in other ways. The traditional access is through the "lower road" makai of the current gate. Geologically, it is obvious that this is the way that people have traveled Ka'ena since ancient times, and there are mo'olelo that support this. Recently, the lower road has been blockaded with stones brought in by DLNR. Although DLNR does not take responsibility for this closure, their intention is to leave it closed. Meanwhile, the other access is through the main DLNR gate, which practitioners have found to be closed when we have gone to do our cultural practice. DLNR has boulders and cement pilings to line the roadway through the area. This has the effect of keeping us from some of our important places, and does not stop the "four-wheelers", who can simply move the barriers or drive over them for fun. We are also concerned that the stones may not have been moved properly, especially since some important stones have been reported to be missing from sacred sites at Ka'ena.

The planned "rodent-proof fence" is also a problem. While we fully support the protection of native birds and plants, we are concerned because native sites and practitioners have not been adequately protected in the process.

We want a solution that protects our access and gives us the power to protect our resources, because we feel that we are the only ones who are able to do so in an effective way. We would like to work with the community and DLNR in building this solution.

As cultural practitioners, it is our job to pass on our traditions to future generations. The way that our kupuna taught us was to take us to the places that they knew well, sometimes for weeks at a time, and let us experience the land first-hand while learning the correct ways to care for it. They would not tell anyone where we were going, or ask anyone's permission, because our traditions say that we are not supposed to tell anyone what we are doing. For this reason especially, a State-issued "permit" system would not work for the cultural practitioners of Ka'ena.

This is how traditional education is done, not through books or school field trips, but through living the practice as it has been done for centuries upon centuries. It is our right and responsibility to continue this educational practice. We always ask for permission on a spiritual level, and this is really the only permission that we need.

A New (and ancient) Vision for Resource Management

Native Cultural Practitioners have been continuously caring for Hawai'i's resources for generations upon generations. We have been the stewards, managers, and protectors of the 'aina and all of the resources that are a part of its continuation for longer than human memory. Our intention is to perpetuate this unbroken relationship for future generations, for the benefit of all of the people of Hawai'i.

We believe that everyone has a role in resource protection. However, it is the traditional practitioners of Hawaiian culture who have the inherent kuleana (right and duty) as the primary stewards of the 'aina, and this needs to be recognized by everyone who participates in resource management. This kuleana was handed down to us through many generations of people who were intimately connected to the land, and we could not forsake our role as the 'aina's stewards even if we wanted to.

This is not an "ethnic preference" issue. There are 'ohana of diverse ethnic backgrounds who fish and practice in ways that were handed to them by Hawaiians of old, and we know who they are. Many of them are our family -- parents, spouses, hanai children, etc., without whom we cannot realistically practice our culture, which is based in 'ohana. They respect Hawaiians and perpetuate the real culture of Hawai'i, and help us to care for the land. We respect them as well. Their rights to fish and to care for the land as they have been taught by our kupuna should be protected as well.

Our vision is to create working relationships with our communities, political leaders, and organizations and agencies involved in resource protection and cultural perpetuation, in order to ensure the best balance of natural and cultural resource protection, along with the genuine continuation of everyday cultural practice possible.