Kānāwai: Using Ancient Hawaiian Law to Prepare for the Future

Kānāwai: Using Ancient Hawaiian Law to Prepare for the Future


The Kingdom of Hawaiʻi and its people have been wrought with turmoil since their first contact with Western civilization.  From systematic land taking to the overthrow of the Kingdom, Kanaka Maoli[1] have encountered colonization, militarism, and imperialism at almost every turn.  However, with ea (life) and aloha (love), Kanaka Maoli have shown resilience and perseverance, as is required to exist in this world as an indigenous people.  Although the culture, politics, people, and social landscape have changed drastically since the late 1770s, one thing has remained constant: The ʻaina (land) provides for its people.  Kanaka Maoli are tied deeply to the ʻaina, as it is our creator, provider, protector, caretaker, deity, ancestor, and family.  It has been our home for millennia, ever since the great ocean voyage from Polynesia to Hawaiʻi.  However, as climate change has rapidly progressed over the last 120 years, even the ʻaina has begun to change, and may no longer be able to care for its people if climate change continues at its current rate.

Over the next one hundred years, the Hawaiian Islands will be greatly affected by climate change.  The islands and the surrounding water will be subject to rising sea levels, ocean acidification, tropical storms, loss of biodiversity, decrease in water availability, and more.[2] Rising sea levels will cause the most damage, affecting a large portion of the islands’ population.[3]  It is projected that in the next one hundred years, the sea level will rise by 3.2 feet and will consume over twenty-five thousand acres across the islands while displacing over twenty thousand residents.[4]  Kanaka Moali will suffer the greatest and most disproportionate impacts from climate change due to the projected loss of cultural and spiritual practices, sites, and resources.[5]  It is projected that of fifty-seven Hawaiian Home Land sites across the seven islands, over twenty-five percent have been marked as having the greatest potential to be displaced by tsunamis, flooding and sea level rise.[6]  Displacement of homeless people will have a disproportionate impact on Kanaka Maoli, as many Kanaka Maoli who remain on the islands are homeless.[7]  Despite our precarious situation, Hawaiians have to rely on the state or federal government for help.  Like many other indigenous tribes in the United States, the federal government has not recognized Hawaiʻi as a sovereign nation, and therefore we have no federal guarantee as to power or decision-making capacity.  Aside from the aliʻi trust land and the Hawaiian Home Commission Act trust land, all other land in the Hawaiian Islands is under U.S. jurisdiction, either in the name of the State of Hawaiʻi or the U.S. military.  The Great Māhele left the makaʻainana landless[8] and reliant on foreign governments for access to our own ancestral land.[9]  Now, with the loss of land looming overhead, it is more imperative than ever that Kanaka Maoli regain our rights to our ancestral land.  This Essay proposes a legal solution to minimize the impacts of climate change on Kanaka Maoli.  This discussion is broken down into two parts.  Part I focuses on how Kanaka Maoli fought to constitutionalize the public trust doctrine.  Part II proposes that in order for the state of Hawaii to follow its constitutional duty of protecting resources for future Kanaka Maoli, the state must work to minimize the impacts of climate change on Kanaka Maoli.

Constitutionalizing the Public Trust Doctrine: Waiāhole–Waikane Water Struggle

The 1970s ushered in a booming era of Hawaiian protest and political mobilization.  Although Kanaka Maoli had been fighting and protesting in their own ways for decades, the 1970s sparked community interest across the islands in water and land rights.[10]  Many past legal struggles can be analyzed as sites of power and protest from Kalama Valley to Kahoʻolawe to Waiāhole-Waikane.  However, Waiāhole-Waikane is an effective vehicle to understand the power dynamics between kānāwai [11] and U.S. law.  Over the course of the eighty-year struggle, the Waiāhole-Waikane movement led to the re-emergence and implementation of kānāwai among Kanaka Maoli communities.  Because of demonstration and protest at Waiāhole-Waikane, the essence of kānāwai emerged as the dominant legal framework for water rights through the formalization of the public trust doctrine in the Hawaii State Constitution.


Waiāhole and Waikane are two valleys that on the eastern side of island of Oʻahu.  The valleys lay against the Koʻolau, the longest mountain range on the islands.  The largest streams in Oʻahu flowed through these two valleys, supporting the most extensive wetland loʻi complexes on the entire island.[12]  The valleys were traditionally one of Hawaiʻi’s largest and most productive sites for resources, including taro loʻi, fisheries and estuaries.[13]

The Waiāhole-Waikane area was one of many tracts of land that was taken in the overthrow of the Hawaiian kingdom.  An American businessman, Lincoln Loy McCandless, acquired hundreds of acres of land in the area.[14]  While some Kanaka Maoli still retained limited ownership of their ancestral lands, the majority of valley residents lived on and farmed lands leased from McCandless.  The McCandless family engaged in a system of exchange similar to sharecropping and coolie labor: “[H]e would pay cash advances, provide equipment, or process farm produce in exchange for a portion of the goods produced by his tenants in lieu of full rent payments.”[15]  Another of his lasting legacies in the area was the creation of the Waiāhole Ditch.  This ditch siphoned tens of millions of gallons of water each day from the mountain springs and streams on the east side to the dry plains of Oʻahu that housed sugar plantations.[16]  Streams and springs that once flowed seamlessly through the valley, providing water for loʻi and native plant and animal species alike, dried up seemingly overnight with the implementation of the Waiāhole Ditch.[17]

Despite the drastic changes in the landscape and property ownership in the Waiāhole-Waikane valleys, Hawaiians and other racial groups in the area continued to thrive under the principles of kānāwai.[18]  Despite their full-time work on the commercial farms, most of the residents farmed and fished for subsistence, and commercial exchange as well.  Following the principles of kānāwai, the valley residents shared the water equally, ensuring everyone had enough water to grow crops.[19]  As a result of this practice, Waiāhole-Waikane still remained one of the most active taro cultivation areas on the islands.  It was the practice of these Waiāhole-Waikane valley taro farmers, along with the few others on the islands, that helped memorialized the public trust doctrine in the Hawaiʻi State Constitution.

The Hawaiʻi State Constitutional Convention of 1978

Leading up to the Hawaii State Constitutional Convention of 1978, the Native Hawaiian revitalization movement was in full swing.  Kanaka Maoli had mobilized to stop the bombing of Kahoʻolawe,[20] stop evictions in both Kalama Valley and Waiāhole-Waikane Valley,[21] restore Papa ʻŌlelo as the official state language,[22] demand the establishment of the Ethnic Studies department at University of Hawaiʻi Manoa,[23] and much more.  In the midst of the movement, the importance of politics and the democratic process came to light in every instance and arena of protest.  As a result, many Kanaka Maoli activists viewed the constitutional convention as another opportunity to enact change and protection for Hawaiian culture.[24]  It was at this convention that Kanaka Moali fought to memorialize kānāwai as the public trust doctrine in regard to water resources in Article XI of the Hawaii State Constitution.

The public trust doctrine was the best vehicle for Kanaka Maoli to advocate for our values in water and resource allocation to be adopted as the State’s resource management practices. The public trust doctrine, in simple terms, is the idea that a sovereign entity holds and protects communal land and water for the benefit and use of the general public.[25] Kānāwai similarly held this principle, as the overarching purpose of ancient Hawaiian law was to ensure that every citizen had access to the island’s water sources and the benefits that flow from it.[26] However, since the public trust doctrine already had its place in federal law, the delegates could easily point to US legal precedent as an argument for the amendment’s ratification.[27] Still, it did not go unstated that this amendment was fueled in part by kānāwai, as one delegate states in support of the amendment:

This is not a brand new idea that all of a sudden popped out of this Convention; this idea is completely consistent with Hawaiian common law, English common law that was adopted in Hawaii.[28]

One point of contention in the enactment of Article XI came during the proposition of an amendment that sought to codify the strength of obligations under the article into the constitution.  The argument boiled down to the strength of the language.  Pro-Hawaiian delegates wanted stronger obligations built into the constitution, while opponents sought to use that language that allowed more flexibility for the courts.[29]  Proponents for stronger obligations wanted the state to have complete control over water regulation and to act as a fiduciary responsible for equal water allocation.[30]  In these arguments, many delegates referenced the depletion of water sources and its effect on Kanaka Maoli as a reason to give the state complete fiduciary responsibility.  Taro was mentioned at least eight times during this debate by at least five different delegates who were proponents for stronger obligations.[31]  However, the proponent’s arguments can best be summed up by a single statement made by Delegate Jacqueline T. Chong as to why the state should have control over water resources:

A single trustee agency is necessary to ensure that we have stable and orderly development of our water, without overtaxing the resources and environment supporting the resources.  The Hawaiian word for water is wai; the word for law is kānāwai, showing us that the regulation of water has been a fundamental concept of Hawaiian law since ancient times. We should now recognize the wisdom of the ancient Hawaiian and readopt the principle that the water must be regulated for the benefit of the people.[32]

After a lengthy debate, the delegation voted in favor of an article that placed total responsibility of water to the State of Hawaiʻi, leading to an astounding victory for Kanaka Maoli.

On November 7th, 1978, the amendment as proposed was overwhelmingly approved by the electorate.[33]  Article XI, Section 1 of the Hawaii State Constitution now states:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaiʻi's natural beauty and all-natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.[34]

Article XI, Section 7 states that “the state has an obligation to protect, control and regulate the use of Hawaiʻi’s water resources for the benefit of its people.”[35]  The adoption of Article XI was a remarkable victory for Hawaiian rights activists, Kanaka Maoli and the island’s residents alike.  However, it took almost twenty-two years for the article to be used in the manner that the drafters intended.

Since the public trust doctrine became constitutionalized during the fight for water rights in Waiāhole-Waikane Valley, it was only right that the doctrine realized the height of its power at the close of the Waiāhole-Waikane water dispute.  As noted above, the Waiāhole ditch had significantly reduced water availability for everyone on the windward side of the island, and especially for those still practicing ancient Hawaiian agriculture and kānāwai.  For many years, the water levels plummeted and left the farmers in the area with little to no water.[36]  Due to poor water flow, many of the natural fauna and flora, including taro, perished and no longer could reproduce or grow.[37]  Fisheries and estuaries in the area also saw similar consequences.[38]  However, the newly enacted constitutional amendment gave Kanaka Maoli activists hope because it gave them legal standing and a remedy to

Hawaiian water right activists sprung at their first chance to rectify the water displacement created by the Waiāhole Ditch.  The last piece needed to fight the proper battle in court fell in place with the enactment of the Water Code in 1987.[39]  The Water Code essentially manages the use of fresh water in the state, by distinguishing between different water rights, designating the use of ground water versus surface water, and outlining procedures for obtaining water use permits.[40] The Water Resource Management Commission was established as a state administrative body to manage and adjudicate the implementation and administration of the Water Code and Article XI of the Hawaii State Constitution.[41]  Kanaka Maoli began administrative proceedings in 1993 to restore the diverted water back to its original streams and communities.[42]  This proceeding culminated in 1997 when the commission decided to amend the water flow standards to restore about thirty percent of the original water flow to the streams.[43]  However, neither party was satisfied by the outcome and appealed up to the Hawaiʻi state supreme court.

After years of injustice, the Waiāhole-Waikane farmers won a huge victory with the Hawaiʻi State Supreme Court’s 2000 Waiāhole decision.[44]  The court’s ruling ultimately restored twelve million gallons per day back to the Waiāhole and Waikane streams.[45]  Even more important for all Kanaka Maoli, the court adopted “the public trust doctrine as a fundamental principle of constitutional law in Hawaiʻi.”[46]  The court also held that “under the public trust, the state has both the authority and duty to preserve the rights of present and future generations in the water of the state.”[47]  This reasoning has been understood as giving the Hawaiʻi state administrative boards the affirmative duty to consider public trust purposes and to “begin with a presumption in favor of public use, access, and enjoyment” when balancing between public and private purposes.[48]  The court laid out a number of “public trust purposes” to be considered: Kanaka Maoli rights and practices, environmental protection, domestic water uses, and appurtenant rights.[49]  In order to secure the public trust doctrine, the court held that the standard for review to analyze requests by private interests to use public resources for private ventures is close scrutiny.[50]  Waiāhole signaled a new era for Native Hawaiian rights.  The case laid the groundwork for many other Kanaka Maoli to bring suit and reclaim their ancestral rights to the ‘aina’s resources.  Waiāhole has been cited in hundreds of published cases, with many of those cases focused on Native Hawaiian and environmental rights.[51]  As a result of the case, farmers, and community members across all the islands have had the opportunity to be heard and fight to reclaim their rights to the ʻaina.

Kānāwai as the Solution

The utilization of the principles of kānāwai can be the solution to combat the impacts of climate change for Native Hawaiians, specifically regarding housing.  Kānāwai should be implemented and utilized by reverting trust land and Hawaiian Home Lands back to Native Hawaiians under a land tenure system, and by managing resources in a manner more akin to kānāwai rather than by government regulation or privatization.  This Part analyzes the Hawaiian Homes Commission Act of 1920 and the public trust doctrine in tandem with Article XII, Section 7 of the Hawaiʻi State Constitution as potential legal pathways to this solution.

The first substantive issue to address is the legal theory that would give a right to Kanaka Maoli to have land and to manage resources under kānāwai.  This can be done with a slight expansion of both the purpose of the Hawaiian Homes Commission Act and the current legal theory of the public trust doctrine.  While there is no pressing need to expand these doctrines at the current moment, once the projected impact of climate change actualizes on the islands, the expansion of the doctrine will become more necessary.  However, it is worth noting that in order to actually combat climate change before its impact is fully materialized, it would be best to begin this process as soon as possible. [52]

Currently, the Hawaiian Homes Commission Act is the leading federal and state policy focused on the rehabilitation of Kanaka Maoli.  The act essentially holds Hawaiian land in trust that is to be leased at a subsidized rate of $1 dollar per year back to Kanaka Maoli.[53]  Only Kanaka Maoli with at least 50 percent indigenous Hawaiian blood are eligible for the land.[54]  Proponents of the act fought for this legislation in order to rehabilitate Kanaka Maoli by placing them back on their homelands.[55]  However, only about 10,000 leases have been awarded since the enactment.[56]  And the waitlist has sat at about 40,000 applications since 2011.[57]

Currently, the public trust doctrine’s application rests in the hands of state administrative bodies.[58]  The standard test to determine rights to public resources is a balance between public trust purposes and private uses.[59]  The courts and administrative bodies have developed an ever-growing list of public trust purposes.[60]  The purpose that historically has been given the most weight is Kanaka Maoli rights and practices.[61]  Once a court or administrative body identifies a right that falls under the purpose of protecting Kanaka Maoli rights and practices, the state has both the authority and an affirmative duty to protect those rights under Waiāhole.[62]  It is here that an argument exists that a right to live and flourish on Hawaiian land should be afforded protection under the purpose of protecting Kanaka Maoli rights and practices.  At this moment, no Hawaiian court or administrative body has found that a right to live on Hawaiian land fits within the current scope of the purpose of protecting Kanaka Maoli rights and practices.  However, once more of the severe projected impact of climate change affects the islands, the right to practice Hawaiian custom and cultural practices can only exist if Kanaka Maoli have any feasible access to land on the islands of Hawaiʻi.

A similar right has been articulated and held by the Arizona Supreme Court for federally recognized and unrecognized tribes in the case In re General Adjudication of All Rights, 35 P.3d 68 (Ariz. 2001) (en banc).  The question of the case on appeal was whether the trail court applied the correct legal standard in determining how much water each federally recognized reservation is entitled to draw.[63]  In order to determine the correct standard, the court analyzed the development of the reserved water rights law.[64]  The court started its analysis with the first adjudicated issue regarding federally reserved water rights in the case Winters v. United States, 207 U.S. 564 (1908) and ended by analyzing the most recent development of the doctrine in United States v. New Mexico, 438 U.S. 696 (1978).[65]  The court concluded that the standard derived from Unites States. v. New Mexico, the primary-secondary purposes test, was the correct standard to apply in its de novo review.[66]  In United States v. New Mexico, the U.S. Supreme Court concluded that the implied reservation of water doctrine applied only to the amount of water necessary to fulfill a reservation’s purpose.[67]  Thus, in order to determine the purpose, a court must examine both “the asserted water right and the specific purposes for which the land was reserved” to ascertain “that without the water the purposes of the reservation would be entirely defeated.”[68]

Wielding the correct legal standard, the Arizona Supreme Court set out to determine the primary purpose for which the federal government reserves land for tribes.[69]  First, the court determined that it was necessary to distinguish the purpose between federal Indian and non-Indian reservations.[70]  The court established that non-Indian reserved land rights are viewed more narrowly than Indian reservations, as Indian lands have reserved water rights for “future needs and changes in use,” which is a standard not applicable to non-Indian reserved land.[71]  As such, the court held that the government, in its role as trustee of Indian lands, may construe documents used to ascertain a lands purpose liberally in favor of Native Americans.[72]  While the court acknowledged the practice of analyzing historical documents to determine the purpose and reason behind the creation of federal reservations for non-Indian lands, the court remarked that “the utility of such an exercise with respect to Indian reservations is highly questionable.”[73]  The court reasoned that trying to ascertain the purpose behind the creation of Indian reservations would be “highly questionable”, as documents regarding the purpose did not acknowledge the truth behind the creation of Indian nations.[74]  Following this declaration, the court stated “that Indians were forced onto reservations so that white settlement of the West could occur unimpeded.”[75]  The court then held that the lower court had failed to recognize any particular purpose in the present case, and exercising its de novo power, held that Indian reservations were created to be a “‘permanent home and abiding place’ for Indian people.”[76]  The court reasoned that this construction was necessary to achieve the goals of “self-determination and economic self-sufficiency” for Native Americans.[77]

Returning to the issue at hand, Kanaka Maoli can assert a claim to land if the projected impacts to land access come to fruition.  The rising sea level is predicted to impact over twenty-five percent of Hawaiian Home Lands.[78]  If the state makes no effort to relocate the displaced residents, Kanaka Maoli can point to the Hawaiian Homes Commission Act to assert their rightful claim to occupy Hawaiian land.[79]  Currently, only a minute proportion of Hawaiians have been granted leases.[80]  However, once Kanaka Maoli will be ousted from trust lands, the ousted residents can argue that the State of Hawaii has an obligation to relocate the residents in order to comply with the federal statute.[81]  The government would likely counter that the Act only reserves land for Hawaiians in general, not for those particular Hawaiians who were ousted or any specific number of Hawaiians.  However, it is at this point that a colorable argument can be made that the state will not fulfill their fiduciary obligation under the Act if Kanaka Maoli are not relocated to new land.  The residents could argue that if over twenty-five percent of Hawaiian Home Lands residents are essentially evicted from their land, the state will have failed to uphold the purpose of the Hawaiian Homes Commission Act, as without Hawaiians “the purposes of the reservation would be entirely defeated.”[82]

The residents can argue that Kanaka Maoli will have no choice but to leave the Hawaiian Islands if the projected losses come to fruition and the state does not relocate them.  Loss of Hawaiian Home Lands will force Hawaiians to search for new housing.  Moreover, most of the residents on these lands can only afford to lease the land as Hawaiian Home Lands are significantly subsidized.[83]  In reality, a lot of Kanaka Maoli cannot afford to live in Hawaiʻi as evidenced by the high percentage of homeless that are Native Hawaiian.[84]  If Hawaiian Home Lands are lost to rising sea levels, the ousted residents will likely not be able to afford rent or leases at fair market value, especially since the fair market value is likely to rise due to shrinking land availability.  Thus, the state could see a mass exodus of Native Hawaiian citizens to other states or countries.

As for displaced homeless Kanaka Maoli or displaced Kanaka Maoli that do not occupy Hawaiian Home Lands, these people can argue for an expansion of the public trust purpose of protecting Kanaka Maoli culture and rights by including a right to occupy land.  Petitioners can point to Article XII, Section 7 of the Hawaii State Constitution to argue that a separate constitutional article outside of the public trust doctrine also affords state constitutional protections for Kanaka Maoli rights, culture and traditional practices.[85]  Similar to the argument outlined above, if there is significant reduction in the Native Hawaiian population, the state will have little to no people who are afforded the duty of protection by the Hawaiʻi State Constitution.  Therefore, the state will have failed its affirmative duty under the public trust doctrine and Article XII of protecting cultural rights and practices if there are no Kanaka Maoli to carry on these traditions.

Together, both Kanaka Maoli displaced from Hawaiian Home Lands and other areas of the islands can petition to be granted back unoccupied trust land held by the Department of Hawaiian Home Lands.  As laid out above, Native Hawaiians already have a claim to land as a trust beneficiary under the Hawaiian Homes Commission Act.[86]  Although the department has been extremely slow in granting leases, the urgent need to place thousands of displaced residents could be enough of a tipping point to disregard the stringent requirements.  Petitioners could point to the need for immediate turnover, as waiting for the state to follow through on its promises under the act has proved not to work over the past 100 years.  Considering that the act does not even promise actual living structures, Kanaka Maoli have been building their own homes on these lands for the past one hundred years and thus do not need help from the state or the federal government to erect suitable housing structures nor to care for our ʻaina or people.[87]


By allowing Hawaiians to practice kānāwai, Kanaka Maoli will have the ability to prosper on the land as we once did, even with the changes that climate change will bring.  Removing the need to own private land will enable Kanaka Maoli to live as our ancestors once did.  Even better, Kanaka Maoli will be fulfilling our duty of being environmentally conscious as practicing kānāwai is to protect and care for the ‘aina and the wai. Much will change.  It is impossible to revert back completely to life pre-European contact.  Kānāwai may become more formalized, memorialized in law and administrated by committees or boards.  Our crops may be different, and we most likely will lose much of the flora and fauna that once nourished our ancestors.  But the essence and spirit of kānāwai will remain the same. Kanaka Maoli will care for their own as they have for centuries, and together, we will provide and care for the ‘aina, and the ‘aina will provide and care for us.

[1] Kanaka Maoli is the term used to refer to all people of Native Hawaiian ancestry.

[2] The environmental impacts that are referenced above come from the most current state-mandated report on climate change, the Hawaiʻi Sea Level Rise Vulnerability and Adaptation Report.  Hawaiʻi Climate Change Mitigation and Adaptation Comm’n, Hawaiʻi State Dep’t of Land and Natural Resources, Hawaiʻi Sea Level Rise Vulnerability and Adaptation Report ii (2017).  This report is the most current comprehensive compilation of scientific data and research regarding climate change in Hawaiʻi.  The report is a product of the Hawaii Climate Change Adaptation Initiative, which was enacted by the Hawaiʻi State Legislature in 2014.  The report both assesses the impacts of sea level rise upon the islands and provides recommendations based on emerging practices and community input.

[3] Id. at ix.

[4] Id.

[5] Id. at xi.

[6] See Id. (The figure twenty-five percent derives from tallying up the total number of affected Hawaiian Home Land sites on each island discussed throughout the report.)

[7] A study found that about 2,300 Native Hawaiians are homeless in the state, representing about twenty-eight percent of the total homeless population.  Of these, about 1,300 persons are Native Hawaiians with fifty percent or more Hawaiian ancestry.  Maris Mikelsons & Karl Eschbach, Dep’t of Hous. and Urban Dev., Housing Problems and Needs of Native Hawaiians 43 (1996), https://www.huduser.gov/publications/pdf/hawaii.pdf [https://perma.cc/H3PM-W8PT].

[8] The Great Māhele was the initial shift in land ownership in Hawaiʻi from a system akin to a feudal system to private land ownership.  See generally Jon J. Chinen, The Great Mahele: Hawaii’s Land Division of 1848 (1958).  Initially, the king owned all of the land in Hawaiʻi and granted land to chiefs, who then allowed the makaʻainana (commoners) to live on the land.  Id.  In return, the makaʻainana cultivated the land and provided their chief and the king with food and supplies for trading and sustenance.  Id.  The Great Mahele essentially divided the land into three sections: the kings land, land that could be claimed by Native Hawaiians, and land to revert to private land ownership which could be purchased by foreigners.  Id.

[9] Due to economic hardship, the population of Native Hawaiians on the islands was decimated by the early 1900s.  Sara Keahaulani Goo, After 200 Years, Native Hawaiians Make A Comeback, Pew Res. Ctr. (Apr. 6, 2015), http://www.pewresearch.org/fact-tank/2015/04/06/native-hawaiian-population [https://perma.cc/UZA7-T2WT].  Prior to Captain Cooke’s arrival, the population of the islands was around six hundred thousand; however, by 1920, due to the introduction of new diseases and poverty, the population dwindled to a mere twenty-four thousand.  Id.

[10] Haunani-Kay Trask, The Birth of the Modern Hawaiian Movement: Kalama Valley, O’ahu, 21 Hawaiian J. Hist. 126, 126–27 (1987)

[11] Kānāwai is the term used for Native Hawaiian ancient law. The word literally translates to “relating to water.”  See D. Kapua’ala Sproat, From Wai to Kānāwai: Water Law in Hawaiʻi in Native Hawaiian Law: A Treatise, Kindle 16052 (Melody Kapilialoha MacKenzie ed., 2015).  Hawaiian law developed around the appropriation of water, as it was regarded as one of the most valued resource on the island.  Id.

[12] D. Kapua’ala Sproat & Isaac H. Moriwake, Ke Kalo Pa’a O Waiāhole: Use of the Public Trust as a Tool for Environmental Advocacy, in Envtl. Law Inst., Creative Common Law Strategies for Protecting the Environment 250 (Clifford Rechtschaffen & Denise Antolini eds., 2007).

[13] Id.

[14] Jacqueline Lasky, Waiāhole-Waikane, in A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty 48, 49 (Noelani Goodyear-Kaʻopua et al. eds., 2014).

[15] Id. at 54.

[16] D. Kapuaʻala Sproat, A Question of Wai: Seeking Justice Through Law for Hawaiʻi’s Streams and Communities, in A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty 199 (Noelani Goodyear-Kaʻopua et al. eds., 2014).

[17] In a letter sent to the U.S. territory to petition the drained stream, a taro farmer angrily attacked the new ditch: “I woke up this morning and had no water in my lo’i.  How am I supposed to feed my children?!”  Lasky, supra note 14, at 52.

[18] As taro was a staple crop in Hawaiʻi pre-contact, one of the tenet principles of kānāwai was ensuring equal access to water to grow taro. See D. Kapuaʻala Sproat, From Wai to Kānāwai: Water Law in Hawaiʻi, in Native Hawaiian Law: A Treatise, Kindle 16052 (Melody Kapilialoha MacKenzie ed., 2015).

[19] These resident farmers tended to share their skills and labor amongst each other, blending multiethnic experience, information and technique.  See Lasky, supra note 14, at 52–53.  Furthermore, family members that worked in urban employment tended to share cash and crops among the community.  Id.

[20] Jonathan Kamakawiwoʻole Osorio, Hawaiian Souls: The Movement to Stop The US Military Bombing of Kaho’olawe, in A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty 137 (Noelani Goodyear-Kaʻopua et al. eds., 2014).

[21] See Trask, supra note 10, at 126–27; See Lasky, supra note 14, at 48–49.

[22] Katrina-Ann R. Kapaʻanaokalaokeola Nakoa Oliveira, E Ola Mau ka ‘Olelo Hawaiʻi: The Hawaiian Language Revitalization Movement, in A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty 82 (Noelani Goodyear-Kaʻopua et al. eds., 2014).

[23] Davianna Pomaikaʻi McGregor and Ibrahim Aoude, “Our History, Our Way!” Ethnic Studies for Hawaiʻi’s People, in A Nation Rising: Hawaiian Movements for Life, Land, and Sovereignty 67 (Noelani Goodyear-Kaʻopua et al. eds., 2014).

[24] The effect of the Hawaiian revitalization movement can be seen in both the formation and discussions of the convention as well as the ultimate results.  In terms of formation, the convention delegates were made up mostly of people who had never held political office; only 7 of the 102 delegates had held office prior to the convention.  See 1 Proceedings of the Constitutional Convention of Hawaii of 1978 vii (1978), https://digitalcollections.hawaii.gov/docs/concon/1978/1978%20Con%20Con%20Journal%20Vol-1%20Journal.pdf[hereinafter 1 Proceedings].  The delegates were also relatively young with half being under the age of thirty-four.  See Id.  This can be seen as a reflection of the mobilization of Hawaiian youth during the time period.  As for the discussions, the drafting sessions for the amendments regarding Native Hawaiian rights and environmental issues make up a significant percentage of the convention’s transcript.  See 2 Proceedings of the Constitutional Convention of Hawaii of 1978 (1978), https://digitalcollections.hawaii.gov/docs/concon/1978/1978%20Con%20Con%20Journal%20Vol-2%20COW.pdf [hereinafter 2 Proceedings] (dedicating over 11 percent of a 900-page transcript solely to Native Hawaiian rights and resource allocation).

[25] Hope M. Babcock, The Public Trust Doctrine: What a Tall Tale They Tell, 61 S.C. L. Rev. 393, 396 (2009).

[26] See Sproat & Moriwake, supra note 12, at 16118.

[27] See 2 Proceedings, supra note 24, at 866.  (Delegate Hornick citing examples of US trustee relationships to explain the scope of control in those relationships).

[28] Id. at 873.

[29] Pro-Hawaiian delegates, like Delegate De Soto, wanted stronger language to create state obligations because people on the islands had felt like nothing was being done in terms of water regulation.  See 2 Proceedings, supra note 24, at 862–63.  Whereas opponents, like Delegate Crozier, wanted to flexibility in the language to give deference to the administrative bodies that would oversee the enforcement of the amendment.  Id.  It should be noted that Delegate De Soto was a prominent figure in the Waikane water battle.

[30] This intention can be summed up by Delegate Fukunaga’s statement that: “the intent of the substitution was to make it clear that the State has the duty and the responsibility to care for Hawaiʻi’s water resources, rather than simply the power to do so.”  Id. at 865.

[31] The five delegates that mention “taro” during the proceedings were: Carol A. Fukunga, Carlene R. Hoe, Paul E. Dibianco, John D. Waiheʻe, Adelaide “Frenchy” De Soto.  Id. at 858, 866, 869, 870-73.

[32] Id. at 860.

[33] 1 Proceedings, supra note 24 at X.

[34] Haw. Const. art. XI, § 1 (1978).

[35] Id. at § 7.

[36] The streams in Waiāhole fell from twenty million gallons per day to three, and the streams in Waiakane dropped from seven million gallons per day to one.  Sproat & Moriwake, supra note 12, at 205.

[37] See Sproat & Moriwake, supra note 12, at 253.

[38] Id.

[39] Haw. Rev. Stat. § 174C (2016).

[40] See Sproat & Moriwake, supra note 12, at 16400.

[41] The commission was established under Haw. Rev. Stat. § 174C-7(a) (2016).

[42] Id.

[43] Waiāhole Ditch, No. CCH-OA95-1 at 227-39 (Haw. Comm’n on Water Res. Mgmt. Dec. 24, 1997), http://files.hawaii.gov/dlnr/cwrm/cch/cchoa9501/CCHOA95-1.pdf.

[44]  In re Water Use Permit Applications, 9 P.3d 409 (Haw. 2000).

[45] See Sproat, supra note 16, at 208.

[46] See Water Use Permit Applications, 9 P.3d at 444.

[47] Id. at 450.

[48] Id. at 454.

[49] Id. at 458.

[50] The court affirmed the Commission's conclusion that it effectively prescribes a “higher level of scrutiny” for private commercial uses when balancing against public trust purposes.  Id. at 454.

[51] See In re Wai‘ola O Moloka‘i, Inc. (Wai‘ola), 83 P.3d 664, 694 (2004) (holding that Department of Hawaiian Homeland’s water reservation is afforded public trust protection like those enunciated under Waiāhole); Kauaʻi Springs Inc. v. Planning Com’n of County of Kauaʻi, 324 P.3d 951, 986 (2014) (Hawaiʻi Supreme Court holding that the Water Commission properly denied water permit to sell bottled water based on the Water Commission’s authority and duty to preserve water for public trust purposes found in Waiāhole.)

[52]A report signed on by a number of Hawaiʻi state departments suggests that the events outlined in the beginning of this paper will be fully actualized by 2100.  Hawaiʻi Climate Change Mitigation and Adaptation Comm’n, Hawaiʻi State Dep’t of Land and Natural Resources, Hawaiʻi Sea Level Rise Vulnerability and Adaptation Report v (2017).

[53] Department of Hawaiian Home Lands, http://dhhl.hawaii.gov/about/.

[54] Hawaiian Homes Commission Act § 201(a) (1997).

[55] Paul Nahoa Lucas, Alan T. Murakami, and Avis Kuuipoleialoha, Hawaiian Homes Commission Act, in Hawaiʻi, in Native Hawaiian Law: A Treatise 5774 (Melody Kapilialoha MacKenzie ed., 2015).

[56] See Hawaiian Home Lands Trust, Dep’t of Hawaiian Home Lands, Strategic Goals and Objectives 2012–2017, http://dhhl.hawaii.gov/wp-content/uploads/2014/01/HHL_Strat_Plan_2012-2017.pdf [https://perma.cc/7TWD-E6AT] (The document states that one of the goals for the 5-year period is to retain maintenance of the existing 10,000 leases.

[57] See id. (Document explains that there are 40,000 applications on the waitlist).

[58] The Water Commission has primary authority over Hawaiʻi’s water use and management and ultimately decide the policies that guide the water use priorities between private purposes and public enjoyment and benefit.  See Sproat & Moriwake, supra note 12, at 16372–85.  The water commission is an administrative body that is housed within the Department of Land and Natural Resources.  Id.

[59] See In re Water Use Permit Applications, 9 P.3d 409, 454 (Haw. 2000).

[60] The Hawaiʻi Supreme Court has declared that both the “exercise of Native Hawaiian and traditional and customary rights and the Department of Hawaiian Home Lands reservation of water are protected as public trust purposes.  See id. at 449; In re Wai‘ola O Moloka‘i, Inc. (Wai‘ola), 83 P.3d 664, 694 (2004).  Haw. Rev. Stat. § 174C-2(c) (2016) also lays out public trust purposes, such as environmental protections for fish and wildlife, protections for the ecological diversity and beauty and protections for public water uses for recreation and navigation.

[61] Traditional and customary rights codified into protection include: The cultivation or propagation of taro on one's own kuleana and the gathering of hihiwai, opae, o‘opu, limu, thatch, ti leaf, aho cord, and medicinal plants for subsistence, cultural, and religious purposes.  Haw. Rev. Stat. § 174C-101 (2016).  Hawaiian water rights have been afforded great lengths of protection via case law, solely dedicated chapter and sections in Water Code, the State Constitution, and other state, federal, and international laws.  See Elizabeth Ann Ho-oipo Kala’ena’auao Pa Martin et al., Cultures in Conflict in Hawaiʻi: Law and Politics of Native Hawaiian Water Rights, 18 U. Haw. L. Rev. 71, 147 (1964) (discussing all the places where Native Hawaiian water rights have been protected).

[62] See Waihole, 9 P.3d at 450.

[63] In re General Adjudication of All Rights, 35 P.3d 68, 71 (Ariz. 2001) (en banc).

[64] See id. at 72.

[65] Id. at 72–73.

[66] Id. at 74.

[67] United States v. New Mexico, 438 U.S. 696, 698 (1978).

[68] Id. at 700.

[69] See In re General Adjudication of All Rights, 35 P.3d at 73.

[70] Id. at 73.

[71] Id. (quoting State ex rel. Greely v. Confederated Salish & Kootenai Tribes of Flathead Reservation, 712 P.2d 754, 767 (Mont. 1985)).

[72] Id. at 74.

[73] Id.

[74] Id. at 75.

[75] Id.

[76] Id. at 76 (quoting Winters v. United States, 207 U.S. 564, 565 (1908)).

[77] Id.

[78] See supra note 6.

[79] In 1959, the Hawaiian Homes Commission Act was also adopted by the State of Hawaiʻi as a condition of statehood.  Haw. Const. art. XII, § 1-2 (1978).  The State of Hawaii therefore effectively assumed the duties of the trustee over beneficiaries of the act. 42 U.S.C. § 11701(15) (2013).

[80] As mentioned before, since the enactment of the Hawaiian Homes Commission Act, only ten thousand leases have been provided to Native Hawaiians.  See Hawaiian Home Lands Trust, Dep’t of Hawaiian Home Lands, Strategic Goals and Objectives 2012–2017, http://dhhl.hawaii.gov/wp-content/uploads/2014/01/HHL_Strat_Plan_2012-2017.pdf [https://perma.cc/7TWD-E6AT]. Furthermore, the current waiting list for leases has exceeded more than forty thousand applications.  See id.

[81] Although the trust obligation was originally adopted by the federal government, the Hawaiʻi State Supreme Court found that the state undertook the U.S. government’s trust obligation to the Hawaiian people in 1982.  See Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 338 (1982).  The court in Ahuna further declared that the federal government had set aside the land to be utilized to rehabilitate Native Hawaiians, essentially undertaking a trust obligation benefiting Native Hawaiians.  See id.  Thus, when the state undertook the trust obligation, the obligation to administer the trust in the sole interest of the beneficiary also transferred to the state.

[82] See United States v. New Mexico, 438 U.S. 696, 700 (1978).

[83] See supra note 53 and accompany text.

[84] Mikelsons & Eschbach, supra note 7, at 43.

[85] See Haw. Const. art. XII, §7 (1978) (“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.”).

[86] See supra note 81 and accompanying text.

[87] See Hawaiian Homes Commission Act § 207.5 (1978). (This section of the act gives the authority to build housing units on tracts of Hawaiian Home Lands, as the general purpose of the act was only to supply land, not dwelling units.)