January 18, 2001

To the Committee:

I apologize for not being able to attend the meeting today. I have a time conflict.

Attached is the first draft of the statement for realtors and prospective buyers. I wrote the document and I am not an attorney. Therefore, prior to utilizing this document or any other version, it should be reviewed by an attorney who is familiar with real estate law.

If anyone else has more information on laws or case law or cultural practices please feel free to put that into this document. Our community is the finest resource for data.

Obviously, this is not in final version and is a humble beginning but it is something to start with and work with.

Thank you for the opportunity to learn more about Hawai'ian history and laws.

Outline

I. History of land laws and Hawaiian culture

Hawaiians did not own property. There was no basis for property rights since the Ali'I held the land in trust for the people in common. In 1848 the Great Mahele occurred when it was determined that unless Hawaii recognized property rights, it had nothing with which to trade. Subsequently, Hawaiians became land owners. There is much dispute on the fairness of the Great Mahele but through that process Hawaiian native tenants were granted land in fee simple.

Difficulty in owning land was compounded by stewardship/ownership of parcels that were divided into pie shapes from the mountain to the sea in ancient times. These parcels of land were known as ahupua'a. Throughout the islands there were also a series of trails that went horizontally and vertically through each ahupua'a. This system is known as the Alaloa. In English common law all roadways were owned by the King or Ali'i. This remained true in Hawai'i. Certain laws have reinforced the rights of people to traverse ancient trails and current roads to worship and gather according to their culture.

Hawaii's history is different from any other star in the United State's flag. January 17, 1893 American businessmen organized an armed militia and launched a coup d'etat with support ofthe U.S. military forces anchored in Honolulu Harbor. The plotters sought annexation by the U.S., but President Grover Cleveland, citing violations of treaties of friendship with the Kingdom of Hawai'i, ordered them to restore Queen Lili'uokalani to her throne. Instead, the coup leaders declared a Republic of Hawai'I in 1894 and confiscated Crown Lands and Hawaiian Government Lands, taking much of the land themselves and offering the rest of the land to the U. S. Government in exchange for annexation. The U.S. Senate never achieved the two-thirds majority vote required for annexation. In 1898 a joint Congressional resolution made Hawai'I a U.S. territory.

Much of the law related to land in Hawai'I is based on cultural practices. The definition of this is best left up to attorneys but definition through case law shows that at least it encompasses hunting, gathering, fishing and worship.

ll. Laws

A. Kuleana Act of 1850 - August 6, 1850 the legislature of Hawai'I enacted a statute, now known as the Kuleana Act, which was designed to insure and provide the tenant farmers residing within an ahupua'a the opportunity to obtain fee simple title to the lands upon which they resided and cultivated their crops. Over the years every section of the Kuleana Act was repealed with the exception of section 7, which survives today in the form of Hawai'IRevised Statutes, section7-1:

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 all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use.

The legislative history of the Kuleana Act indicates that this particular section was included at the insistence of King Kamehameha III. The privy council minutes reflect the king's concern that a "little bit of land even with allodial title, if they (the people) be cut off from all other privileges would be of very little value." The privy council thus adopted the king's suggestion:

(The) proposition of the King, which he inserted as the seventh clause of the law, as a rule for the claims of common people to go to the mountains, and the seas attached to their own particular lands exclusively, is agreed...."

Therefore, the Kuleana Act provided native tenants a statutory right of access to their kuleana, as well as unobstructed access within the ahupua'a to obtain items necessary to make the kuleana productive. Subsequent common law defines custom, implied dedication of public right-of-way, and public trust doctrine.

B. Highway Act of 1892

Hawai'I Revised Statute, chapter 264, section I, formerly known as the Highways Act of 1892, was amended in 1988 to specifically define public trails within the state. Section 264-l(b) provides:

All trails, and other nonvehicular rights-of-way in the State declared to be public rights-of-ways, by the highways act of 1892, or opened, laid out, or built by the governent or otherwise created or vested as nonvehicular public rights-of-way at any time thereafter, or in the future, are declared to be public trails. A public trail is under the jurisdiction of the state board of land and natural resources unless it was created by or dedicated to a particular county, in which case it shall be under the jurisdiction of that county.

C. 1978 Hawaii State Constitution

In November 1978, Hawai'i's State Constitution was amended by voters. Among the sections approved was Article XlI, section 7:

The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.

D. PASH Caselaw decision

The Hawai'I Supreme Court issued a decision on Public Access Shoreline Hawai'I (PASH). With this decision the right to traverse land for cultural purposes and gathering was further solidified. Further case law will have to define exactly who (Hawai'ian or non native) is allowed onto land to gather, what routes they may take and other unanswered questions.

E. Conservation District under DLNR

Under Hawai'I Admisnistrative Rules, Title 13, Department of Land and Natural Resources the conservation district has various restrictions on activity on the land within the conservation district. These involve grubbing the land, building permanent structures and developing in any manner. The definition of conservation district seems nebulous but there is a definition of high tide that gives public right of way on the shoreline. There are five subzones that have different requirements and need different permits.

F. 2000 - August Environmental Impact Statement - Cultural

In August 2000 the legislature proposed legislation that would make it mandatory to include cultural impact along with environmental impact statements. *

III. Recommendations

Environrnental Impact Statement - There are so many endangered flora and fauna in the state of Hawaii that it would always be wise to conduct an impartial environmental impact assessment on questionable land. Any land on a waterway or the ocean is suspect. With the hoary bat, birds, monk seals, sea turtles, and numerous plants being endangered it is very wise to be complete in this analysis.

Cultural analysis should be done to determine the impact any development such as roadways, landscaping, and building might have on cultural artifacts and practices There are organizations to help in determining the efflcacy of building or working the land in a non-detrimental manner. Many of these will assist prospective property buyers free of charge.

Quieting title and determining that the land is free of any problems would be conducted with an attorney. Our island has several property attorneys and there are others on Oahu. If one wishes to do part of this themselves, the Bureau of Land Conveyances might be able to help.

Be mindful that there are public rights of way that exist on many ocean parcels of land. There is also public right to the ocean and shoreline. There is also the ancient trail system which is a public access point. Qualified, impartial archeologists are capable of giving information on ancient trails and cultural artifacts. Be cautious to get an accurate analysis. If you are in doubt, contact the University of Hawaii.

Don't settle for what they want you to hear. Make certain that you have good data.