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Many property deeds nationwide include easements to guarantee ownership and access for electric, cable, water, and sewer lines. But Hawaii is unique among the 50 states in having racial entitlements which strip government and private landowners of property rights commonly recognized elsewhere and give superior rights to one racial group.

Ethnic Hawaiians are given special rights by explicit racial language in some laws, and by the way some non-racially-explicit laws are interpreted on account of traditional and customary practices. The Hawaiian racial easements are broad and pervasive, affecting all property. They are subtle and insidious, to the extent that most newcomers are unaware of them and will not find them listed in any deed.

Owners have been surprised by legislative and judicial decisions that suddenly took away long-standing property rights. Companies that built very lengthy water ditches more than a century ago to irrigate sugar cane crops now find that a suddenly robust “public trust” doctrine gives the government the right to decide how much water will be taken away from them to enhance stream flow to protect endangered species and to give water to newly resurgent taro growers.

People who bought property thinking they had a right to exclusive access suddenly found out through the PASH decision that trespassers have a right to pass through their land on the way to the shoreline, and also to harvest various materials from their land. While such decisions might normally be regarded as regulatory takings for which property owners could demand compensation through inverse condemnation, these decisions circumvent any such outcome by claiming to be based on newly rediscovered “traditional and customary” practices which have always been part of Hawaii’s common law or written law even though long forgotten.

Although water rights, shoreline access, and gathering rights have a history that makes them rightfully race-neutral, and the language of the decisions could easily be written in a race-neutral manner, the way these issues have actually been handled makes them racial entitlements. They have become racial easements on all public and private property in Hawaii.

For no good reason at all, a Hawaiian language phrase in royal patent deeds from the time of the Mahele has been translated as “reserving the rights of the native tenants” when in fact the word “native” does not belong there.

For no good reason at all, taro (beloved by ethnic Hawaiians) is elevated above rice and sugar (which ethnic Hawaiians prefer not to cultivate) in having appurtenant water rights, even though rice and sugar are traditional and customary crops which have been cultivated for 150 years in Hawaii.

For no good reason at all, the regulations for the Northwest Hawaiian Islands are written to recognize all “Native Hawaiians” as having special rights to access for religious and cultural practice even though very few ethnic Hawaiians actually engage in such things and even though Japanese, Chinese, Filipino, and Caucasian bones are there which should guarantee those racial groups the same rights of access.

For no good reason at all, legislation was proposed to give ethnic Hawaiians a majority of seats on a new commission proposed to regulate bioprospecting on all public and private lands. The commission would be empowered to collect permit fees from landowners and a portion of the royalties due to landowners for the use of the samples collected from their lands, and to allocate a large portion of the fees and royalties to the exclusive use of ethnic Hawaiians.

For no good reason at all, a 40,000 acre forest reserve Waokele O Puna that was purchased by a nonprofit land conservation group was simply turned over to OHA. Likewise, Waimea Valley on Oahu, purchased with Honolulu County tax dollars and private funds, was simply turned over to OHA. There were recently bills in the legislature (which failed) regarding at least three valleys on O’ahu (Haiku, Kahana, and Makua) that proposed to create cultural reserve commissions with explicitly guaranteed majorities of ethnic Hawaiian commissioners, place them under the authority of OHA, and then automatically turn those valleys over to the Akaka tribe once the tribe has achieved federal recognition.

During 1500 years, hundreds of thousands of native Hawaiians lived, died, and were buried in unmarked shallow graves in all parts of all the Hawaiian islands, especially in sand dunes near shorelines but also in back yards and under primitive houses and in caves. Today’s construction projects usually begin with archeological reports focused on the likelihood of disturbing ancient burials or cultural artifacts.

Then, if a burial is inadvertently encountered, all work must stop for a lengthy period of time while further studies are done and a committee of native cultural practitioners is asked to make recommendations on whether to move the bones or leave them in place. Hawaiian activists nearly always demand that the burial be left in place, which they believe will stop any further construction or force the project to move elsewhere. Architectural plans are changed, and changed again. Eventually (perhaps years later) any landowner sufficiently persistent can hope for a final decision by an agency of the state government.

No private landowner in Hawaii is safe from extreme expense, delay, public character assassination, intimidation, and extortion related to any construction or development project on his land, whether it’s a house or a shopping mall. No government executive, legislator, or judge can avoid similar problems regarding government lands or the laws related to Hawaiian burials. The fact that Hawaiian bones are being used as pawns in a cynical political power play is confirmed by two observations: very few ethnic Hawaiians today believe the spirit of a dead person continues to reside in the bones; and those activists who do assert such a belief during their high-profile protests never make any protest when Hawaiians who die are cremated and their bones are scattered, as in the high-profile public funerals of Israel Kamakawiwo’ole, Rell Sunn, and Don Ho.

The ceded lands comprise about 1.8 million acres, which is about 40% of all the land in Hawaii. About 95% of all the public land owned by the State of Hawaii is ceded lands. For 110 years ethnic Hawaiian sovereignty activists have claimed that the ceded lands were illegally ceded to the U.S., illegally ceded back to the illegal State of Hawaii, and rightfully belong to ethnic Hawaiians as their communal property. The Hawaiian activists point to the U.S. apology resolution of 1993 as proof that the U.S. has admitted the illegality of annexation and hence the illegality of ceding the lands.

This assertion of racial ownership of nearly all government land is a very serious matter. It became even more serious on January 31, 2008 when the Hawaii Supreme Court issued a unanimous ruling saying that the assertion of racial ownership has sufficiently strong probability of being true, on account of the apology resolution, that the State of Hawaii is prohibited from selling any parcel of ceded land unless ethnic Hawaiians collectively give permission or until the issue has been permanently resolved through a global settlement of land claims. Fortunately the U.S. Supreme Court unanimously overturned the state court’s ruling and affirmed that the state owns the ceded lands in fee simple absolute with no federally imposed racial encumbrance from the apology resolution.

But upon remand, the State Supreme Court final dismissal in regard to plaintiff Jonathan Osorio included very troubling language establishing the Hawaiian religious belief in the Kumulipo creation legend as the reason why Osorio has an injury in fact if any parcel of land is sold, whereas someone with no native blood would not have such injury. Thus, Osorio’s legal standing and claim to injury is based on race. It should be very worrisome to property owners and citizens of Hawaii to see the state Supreme Court imposing such a racial easement or encumbrance on their public lands. Indeed, Osorio’s alleged special relationship with the land would apply equally to private land as to public land. Private landowners might be justified in fearing that Osorio or other ethnic Hawaiians might assert personal injury and demand an injunction if they try to sell their privately owned land. According to the Kumulipo creation legend, all ethnic Hawaiians have an inherent and indissoluble spiritual and genealogical relationship with all the lands of Hawaii, whether public or private.

This essay has been a summary of a more detailed essay, documented with footnotes, which can be found at

http://tinyurl.com/24zngaf

Here are the titles of each section in that essay.

  • ORDINARY EASEMENTS ON PROPERTY DEEDS
  • THE “PUBLIC TRUST” DOCTRINE FOR WATER AVOIDS BEING ATTACKED AS A REGULATORY TAKING BECAUSE IT IS TREATED AS MERELY A RECENT CODIFICATION OF TRADITIONAL AND CUSTOMARY USAGE IN HAWAII
  • THE PUBLIC TRUST DOCTRINE FOR WATER SLIDES QUIETLY INTO A RACIAL EASEMENT ON PUBLIC AND PRIVATE PROPERTY BECAUSE DIFFERENT TRADITIONAL AND CUSTOMARY USES ARE TREATED DIFFERENTLY: TARO TAKES PRIORITY OVER SUGAR AND RICE BECAUSE OF CULTURAL PRACTICES AND RELIGIOUS BELIEFS.
  • THE HAWAIIAN RELIGION ASSERTS A GENEALOGICAL FAMILY RELATIONSHIP AMONG THE GODS, THE HAWAIIAN ISLANDS, TARO, AND THE ETHNIC HAWAIIAN PEOPLE. THIS RELIGIOUS BELIEF IS THE CORE BASIS FOR DEMANDING HAWAIIAN SOVEREIGNTY AND FOR JUSTIFYING ALL THE RACIAL EASEMENTS ON PROPERTY RIGHTS DESCRIBED IN THIS ESSAY.
  • THE PASH DECISION IS REGARDED AS A RACIAL ENTITLEMENT TO TRESPASS.
  • BONES AND BURIALS
  • THE CEDED LANDS
  • PAPAHANAUMOKUAKEA — THE NORTHWEST HAWAIIAN ISLANDS MARINE SANCTUARY AND NATIONAL MONUMENT
  • ATTEMPTED RACIAL POWER GRAB TO CONTROL AND REGULATE ALL PUBLIC AND PRIVATE LANDS THROUGH LEGISLATION ON BIOPROSPECTING, INCLUDING THE RIGHT TO COLLECT A PORTION OF ROYALTIES DUE TO A LANDOWNER, FOR THE EXCLUSIVE BENEFIT OF ETHNIC HAWAIIANS
  • SOME EXAMPLES OF RACE-BASED OWNERSHIP OF ENTIRE AREAS OF LAND
  • THE IMPOSSIBILITY OF A GLOBAL SETTLEMENT OF LAND CLAIMS IN HAWAII

This is a guest editorial. Dr. Conklin’s book “Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State” is in the Hawaii Public Library, and also at http://tinyurl.com/2a9fqa

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