My family hunts pig with dogs and knife on a large tract of undeveloped land ma uka from our home. We’ve hunted and gathered there for generations, passing the knowledge and practice down to the next generations. This feeds our family. We had a good relationship with the prior landowner, but the land was recently sold to new people who do not understand our relationship to the land. What should we do?
Daylin-Rose Heather, NHLC Staff Attorney
The continuation of cultural subsistence practices is crucial to the perpetuation of Hawaiian life and the preservation of Hawaiian cultural identity, especially when done with deep care for the ʻāina, its resources, and each other. We strongly encourage Hawaiian cultural practitioners, including traditional hunters, to seek advice from counsel specializing in Native Hawaiian law for these questions. It’s good to know where the law is paʻa (firm) and the areas of uncertainty. Though it’s important to get legal advice about your specific situation, we can provide general information as a frame.
Through Article XII, Section 7 of the Hawaiʻi State Constitution, ratified during the 1978 Constitutional Convention, the State of Hawaiʻi committed itself to protecting rights customarily and traditionally exercised by Native Hawaiians for subsistence, cultural, and religious purposes. See also Hawaiʻi Revised Statute (HRS) §§ 7-1 and 1-1.
The constitutional delegates contemplated that hunting, along with other subsistence gathering practices, was an integral part of ancient Hawaiian civilization. They also recognized the importance of this amendment because “large landowners – basically 10-12 corporations and estates and who own almost 90% of all private lands – have intruded upon, interfered with and refused to recognize such rights.” Because of these constitutional protections for customary Hawaiian practices, the Hawaiʻi Supreme Court has noted that “the western concept of exclusivity [in private property] is not universally applicable in Hawaiʻi.”
The law recognizes that access to resources is vital to sustaining a cultural practice and seeks to balance that with western concepts of property rights. For example, HRS § 183D-26 states that hunters need permission from landowners in order to hunt on private land. However, the Hawaiʻi Intermediate Court of Appeals in State v. Palama, a 2015 criminal case involving a practitioner hunting pig with knife and dogs, demonstrates that this requirement must still be weighed against legal protections for traditional and customary practices, based on the specific facts of a case and interests at stake. Given these considerations, it’s mutually beneficial when large landowners and practitioners have a positive relationship.
When concerns are raised, making efforts to resolve them amicably is a good idea. If mutual agreement isn’t possible, then litigation may occur. Some landowners have even sought to press criminal charges against practitioners for trespass. In those instances, it’s crucial that practitioners seek legal assistance from an attorney. Cultural practitioners may raise a traditional and customary defense with courts considering and weighing numerous factors when deciding whether it applies.
Ultimately, I hope that your family’s subsistence practices – and your neighbor’s respect for those practices – continue as they had with the previous landowner and for generations to come. If interested in further exploring this important topic and the elements a court will consider, the William S. Richardson School of Law’s Ka Huli Ao Center for Excellence in Native Hawaiian Law has published a Native Hawaiian Law Treatise and a free Legal Primer for Traditional and Customary Rights in Hawaiʻi.
E Nīnau iā NHLC provides general information about the law. E Nīnau iā NHLC is not legal advice. You can contact NHLC about your legal needs by calling NHLC’s offices at 808-521-2302. You can also learn more about NHLC at nativehawaiianlegalcorp.org.