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.