Kalipi v. Hawaiian Trust Co., Ltd.
Decision Date | 30 December 1982 |
Docket Number | No. 6957,6957 |
Parties | William KALIPI, Plaintiff-Appellant, v. HAWAIIAN TRUST COMPANY, LTD., Pearl M. Petro, Ruth R. Searle, Ethel F. Shaner, Lorrin A. Meyer, William C. Meyer, Edmund Wond, Samuel Pedro and State of Hawaii, Department of Land and Natural Resources and its Director and Chairman of the Board Christopher Cobb, Defendants-Appellees. |
Court | Hawaii Supreme Court |
Syllabus by the Court
1. The court's obligation to preserve and enforce traditional rights of descendants of native Hawaiians is found in Hawaii Const. art. XII, § 7.
2. With respect to gathering rights, HRS § 7-1 was included to insure that commoners would be able to exercise the rights mentioned therein, in connection with their tenancy in order to ensure the utilization and development of their lands.
3. Lawful occupants of an ahupuaa may, for the purposes of practicing native Hawaiian customs and traditions, enter undeveloped lands within the ahupuaa to gather those items enumerated in HRS § 7-1.
4. "Lawful occupants" means persons residing within the ahupuaa in which they seek to exercise gathering rights, not persons who merely own property there.
5. Gathering rights of HRS § 7-1 are limited to the items enumerated in that statute.
6. Although the requirement that gathering rights be exercised on undeveloped land is not found in HRS § 7-1, to hold otherwise would be to conflict with current understandings of property and with the traditional Hawaiian way of life in which cooperation and noninterference with the well being of other residents were integral parts of the culture.
7. The requirement that gathering rights be utilized to practice native customs is a reasonable interpretation of HRS § 7-1 since the rights were necessary to insure the survival of those who, in 1851, sought to live in accordance with the ancient ways.
8. Where practices associated with the ancient Hawaiian way of life have, without harm to anyone, been continued, reference to Hawaiian usage in HRS § 1-1 insures their continuance for so long as no actual harm is done thereby.
9. As the court in Oni v. Meek did not expressly preclude the possibility that the doctrine of custom might be utilized as a vehicle for the retention of some commoners' rights, HRS § 31-1 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.
10. There is an insufficient basis to find that gathering rights based on HRS § 1-1 would, or should, accrue to persons who did not actually reside within the ahupuaa in which such rights are claimed.
11. Traditional gathering rights, based on reservations in original land awards, do not accrue to persons who do not live within the ahupuaa in which such rights are to be asserted.
Ronald Albu, Honolulu (Sandra E. Pechter, Deputy Corp. Counsel, Honolulu, with him on the brief), for plaintiff-appellant.
Steven K.S. Chung, Honolulu (Frank D. Padgett, Honolulu, of counsel), for defendants-appellees Hawaiian Trust Company, Ltd., Ethel Shaner, Ruth Searle, Lorrin Meyer, William Meyer, Pearl Petro, Edmund Wond and Samuel Pedro.
Che Lun Huang, Deputy Atty. Gen. (Lester G.L. Wong, Deputy Atty. Gen., on the brief), for defendants-appellees State of Hawaii, Dept. of Land and Natural Resources and Christopher Cobb.
In this appeal, Plaintiff-Appellant Kalipi claims the right to enter Defendants-Appellees' undeveloped lands to gather, without unnecessarily disturbing the surrounding environment, natural products necessary for certain traditional native Hawaiian practices. While we agree that such rights have, to a limited extent, been statutorily preserved, we conclude that Plaintiff's failure to actually reside within the land divisions in which he seeks to exercise these rights requires the affirming of the trial court's judgment for Defendants.
William Kalipi seeks to exercise traditional Hawaiian gathering rights in the ahupuaa of Ohia and Manawai on the island of Molokai. Manawai is owned by Defendants-Appellees Petro, Searle, Shaner, Meyer and Hawaiian Trust Co. The land division runs from the mountains to the sea and comprises approximately 588 largely undeveloped acres used primarily for hunting and raising cattle. Ohia is divided into two parts. 1 East Ohia is 366 acres of largely undeveloped land owned by Defendant-Appellee State of Hawaii. West Ohia is owned by Defendants Wond and Pedro and consists of approximately 326 undeveloped acres used for hunting and cattle grazing.
Plaintiff is a resident of Molokai who owns a taro patch in Manawai and an adjoining houselot in East Ohia. He was raised on the lots and resided there periodically until the latter part of 1975. At the time of trial, however, he did not reside on the property. Rather, with his wife and five children, he lived in the nearby ahupuaa of Keawenui.
Kalipi asserts that it has 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. Among the products he gathered, and seeks the right to gather in this action, are ti leaf, bamboo, kukui nuts, kiawe, medicinal herbs and ferns. Defendants have refused to grant him unfettered access to their lands for these purposes and this action was filed to vindicate and insure an asserted right to gather such products.
A trial was had and the jury, by special verdict, determined that Kalipi had no such right. He now alleges numerous errors in the trial court's instructions to the jury and conduct of the trial. We find, for the reasons stated below that none of the alleged errors warrants reversal.
Plaintiff-Appellant Kalipi suggests three sources for his asserted gathering rights. The first is HRS § 7-1, a statute of ancient origin initially passed when the concept of private ownership of real property had first been introduced into these islands. The second is native custom and tradition, a source of the law which he claims to have been fixed in 1892 by the passage of what is now HRS § 1-1. And the third is the reservation found in all relevant documents of original title in this case, language reserving the people's "kuleana" in lands converted to fee simple ownership when such conversion first occurred.
Generally, Defendants argue that regardless of their purported sources, traditional gathering should not be recognized or enforced as a matter of policy. They characterize the rights asserted as dangerous anachronisms which conflict with and potentially threaten the concept of fee simple ownership in Hawaii.
We recognize that permitting access to private property for the purpose of gathering natural products may indeed conflict with the exclusivity traditionally associated with fee simple ownership of land. But any argument for the extinguishing of traditional rights based simply upon the possible inconsistency of purported native rights with our modern system of land tenure must fail. For the court's obligation to preserve and enforce such traditional rights is a part of our Hawaii State Constitution:
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, § 7. And it is this expression of policy which must guide our determinations. See Stand.Comm.Rep. No. 57, reprinted in 1 Proceedings of the Constitutional Convention of Hawaii of 1978 at 637 (1980) (). With this in mind, we proceed to address Kalipi's contentions.
The primary basis for Plaintiff's claim to gathering rights is HRS § 7-1, a statute initially passed in 1851 and continued in our law since that time without substantial modification. The statute, in its current form, provides that:
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, housetimber, 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 water-courses, which individuals have made for their own use.
HRS § 7-1 (1976). The statute appears to contain two types of rights: gathering rights which are specifically limited and enumerated, and rights to access and water which are framed in general terms. While the extent and scope of the latter set of rights have been the subject of discussion by this court, see, McBryde Sugar Co. v. Robinson, 54 Haw. 174, 504 P.2d 1330, aff'd on rehearing, 55 Haw. 260, 517 P.2d 26 (1973), appeal dismissed and cert. denied, 417 U.S. 962, 94 S.Ct. 3164, 41 L.Ed.2d 1135 (1974), Palama v. Sheehan, 50 Haw. 298, 440 P.2d 95 (1968), we are unable to find any previous interpretation of the gathering rights found in the statute. The issue we address is thus one of first impression.
The land division most relevant to this issue is the ahupuaa. And it is with the traditional function of the division that our analysis begins. In Palama v. Sheehan, supra, 50 Haw. at 301, 440 P.2d 95, we discussed the significance of this division as follows:
[I]n ancient Hawaii, the division of land known as an...
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