Traditional and Customary Practices | Images of Old Hawaiʻi

October 8, 2021 by Peter T Young 2 Comments

Behave Correctly

We do it every day. So, why don’t we all have the same attitude and approach when dealing with nature?

Just as you pause, then knock before entering someone’s home (seeking permission to enter) …

Exchange expressions of warm welcome …

Then remove your shoes (so as to not soil their home) …

You behave with courtesy and respect while in someone else’s home …

Courteously declining what is offered, or only taking what you need …

And repairing/replacing anything you break or take, and …

Then departing with cordial exchanges and well wishes.

So, too, is one expected to act accordingly in nature.

Hawaiians had a similar way (from Maui Group Sierra Club) …

E ui no ka ‘ae
Ask permission

E mahalo aku
Give thanks

E komo me ka hō‘ano
Enter with reverence

I ka hele aku, e hoʻomaʻamau i ka wahi
When you leave, return it as you found it

Gathering of resources from the forest and other areas was strictly controlled by three main factors:

the values and beliefs of the Hawaiian people;
the strict, often specialized, gathering protocols; and
the traditional system of land use, which limited the area from which people could collect

“The Hawaiian people followed protocols when they gathered and harvested from native ecosystems. These required that the gatherers prepare themselves spiritually before setting out and that they maintain an appropriate mental attitude before, during and after collecting the desired materials.”

“The physical process of gathering always involved going about one’s business quietly, asking permission, giving thanks, and treating the plants or animals to be collected – and everything else in their environment – with respect.”

“Every aspect of the gathering process, whether mental or physical, spiritual or practical, was reflected in a single guiding principle: ‘treat all of nature’s embodiments with respect.’ The overall effect of this attitude was to minimize the impact of gathering on native ecosystems.”

“‘Entry chants’ were offered to ask permission of the forest or other plant community for entry and to protect the collector from misfortune.”

“The chants were an expression of the gatherer’s respect for and good intentions toward all of the beings that lived there, including the akua, plants, animals, rocks, streams, etc.”

“Similarly, chants were offered before any plant was collected, out of respect for the plants themselves and for the akua to whom those plants were dedicated.”

“A quiet demeanor not only displayed the appropriate attitude of respect, but it allowed the collector to be alert to signs that were ‘bad omens.’”

“For example, some signs might indicate that a particular plant should not be picked for medicinal purposes, as it might make the medicine bad.”

“Other signs might indicate that this was not the right time for collecting anything at all, and that the collector should turn around and go home.”

“Plants and plant parts were removed carefully, and one never took more than was needed. Ferns were broken carefully at the base of the frond, taking care not to uproot the plant.”

“Besides showing appropriate respect for the plant, this conservation ensured that the plant would survive and remain healthy, so that it could produce more fronds later. Similarly, other plant parts were removed in ways that minimized the impact to the plant.”

“Gathering typically was spaced out in some way, taking a little here and a little there, as expressed just above. According to several other kupuna, the reasoning behind this practice was that it prevented the other plants of the type being collected from becoming lili (jealous) and squabbling among themselves.”

“Ecologically, of course, this practice helped to ensure that no area was completely stripped of a certain plant species and that harvesting could be sustained.”

“Most people would agree that these gathering principles embody appropriate treatment of those we love and respect. For example, when we enter the home of a friend today, we usually ask permission; we try not to impose on their hospitality or damage their home.”

“So it was that Hawaiians approached gathering from native ecosystems – good manners and plain common sense guided their behavior.” (Anderson-Fung and Maly)

Apapane in Ohia lehua

June 25, 2018 by Peter T Young Leave a Comment

John Meek

John Meek (Nov. 24, 1791 – Jan. 29, 1875) came to Hawaii from Massachusetts in 1809 along with his brother Captain Thomas Meek, who was engaged in the Northwest trade.

“A few year later he himself became captain, and continued in the same trade for many years. In 1830 or ’31, he became a resident of this port, occasionally making voyages to the Northwest Coast, China and other ports.” (Hawaiian Gazette, February 3, 1875)

“He sailed from this port in cant capacity on a number of voyages to China and the coast of Mexico, but has been a permanent resident of this Island for the past fifty years. The late John J. Astor thought so highly of Captain Meek that he built a ship specially for him.” (Pacific Commercial Advertiser, January 30, 1875)

“For more than twenty years he held a commission as pilot of this harbor, and for the past few years was also harbor master.” (Hawaiian Gazette, February 3, 1875)

“‘Vessels approaching Honolulu and desiring a Pilot, will set their national ensign and pilot signal, on which he will go on immediately.’ The great number of ships coming in from Lahaina, and intending to lie off and on, or to come to anchor without employing a pilot, renders attention to the above requirement of the Harbor Laws necessary.”

“The undersigned will give prompt attendance on all vessels that require his services, but he wishes it to be understood that he will not go off without being signalized as required in the above quoted law, a compliance with which will be necessary to justify
any future complaint against him for want of attention to duty.” (John Meek; Polynesian, July 6, 1844)

“He was the firm friend and often advisor of the chiefs and successive Kings of these Islands, from the days of the first Kamehameha to the present time”.

“He was the last surviving pioneer of the Order of Free Masons in the Pacific, having been one of the ten who were instituted as “Lodge le Progres de l’Oceanie,” No. 124, by Captain Le Tellier, in 1843.” (Pacific Commercial Advertiser, January 30, 1875)

“He engaged extensively in the grazing business, and took especial pains to introduce improved breeds of cattle and horses into the country. Combined with the plain and bluff manner of the true sailor, Capt. John Meek was noted for his probity of character, and a genial kindness of disposition.” (Pacific Commercial Advertiser, January 30, 1875)

“America is the home of the turkey …. In 1815 Queen Ka‘ahumanu went aboard a trading schooner and saw turkeys Capt. John Meek had obtained in Chile.”

“Never had she seen such large birds before. Upon going ashore she told the king. The king went to the vessel and asked for the birds. Upon refusal he seized the turkeys and went ashore.”

“The birds later escaped. On the slopes of the island’s volcanoes and even in the United States national park wild turkeys are fairly numerous, believed to be descendants of those brought to the islands by Captain Meek.” (Smithfield Times, February 25, 1937)

Meek is also credited with bringing the first documented mango into the islands in 1824. He had given some seedlings to Don Francisco de Marín, advisor to Kamehameha I; Marín is most often credited with planting the first mango tree in Hawai‘i soil, near what is now the corner of Vineyard Boulevard and River Street.

The fruit it bore became the progenitor of the “Hawaiian” mango – a strain that was dubbed “Manini” for the nickname Hawaiians gave Marín. The Manini is also known as the Common mango because, as its name suggests, it’s seen throughout the Islands. It’s a medium-size, juicy fruit with a large seed and skin that turns from light green to rosy-yellow as it ripens. (Lo; Hana Hou)

Meek was a defendant in one of the first landmark cases dealing with the rights of native tenants. (Oni v. Meek) In 1858, Oni, a tenant of the ahupua’a of Honouliuli, O’ahu, filed suit against John Meek, who had a lease over the entire ahupuaʻa. Oni brought suit when some of his horses, which had been pastured on Meek’s land, were impounded and sold.

Oni claimed that he had a right to pasture his horses on the land division as one of his traditional tenant rights (by custom and by language in the Kuleana Act.)

Oni notes, “We are hoaʻāina. We live on the land and grow our crops, and in return we work for the konohiki a few days a week. We call these labor days. The rest of the week, we have the right to use the lands for certain things, like gathering firewood, fishing, and pasturing animals. It’s our custom, our tradition.”

“I take care of the land on labor days, so I can use the land to pasture my horses. Mr. Meek uses the Chief’s land like we do. We all take care of things together, so we should share the land, just like before.” (Judiciary History Center)

On September 22, 1858 the Police Court of Honolulu rendered a judgment for Oni. Meek was ordered to pay $80.00 for two horses and $4.00 in court costs. At the request of the defendant (Meek,) the case was appealed to the Hawai‘i Supreme Court.

Oni was the first Hawaiʻi Supreme Court case to discuss “the rights common people to go to the mountains, and the seas attached to their own particular land exclusively” in the 1850 Kuleana Act.

The Supreme Court noted, “the claim of a right of pasturage, put forward by the plaintiff, is made to rest upon far broader grounds than that just mentioned, which fact renders this case one of great importance, not only to the large landed proprietors throughout the Kingdom, but to thousands of the common people.”

“It is contended on behalf of the plaintiff that he, as a hoaʻāina of Honouliuli, has a right to pasture his animals on the kula land of that ahupua‘a, upon one or both of two grounds; first, by custom; or secondly, by statute law.”

“It appears by the evidence that horses were first introduced on the ahupua‘a of Honouliuli about the year 1833; that within ten years afterwards they had become numerous ; and that the horses belonging to the hoaʻāinas were allowed to pasture upon the kula land, in common with those of the konohiki.”

The Supreme Court was concerned with the right of a private property owner to use the land as he individually wished without having to share its use. The court said “the custom contended for is so unreasonable, so uncertain, and so repugnant to the spirit of the present laws, that it ought not to be sustained by judicial authority.”

The court also said “…it is perfectly clear that, if the plaintiff (Oni) is a hoaʻāina, holding his land by virtue of a fee simple award from the Land Commission, he has no pretense for claiming a right of pasturage by custom.” (Judicial History Center)

The Supreme Court ruled in favor of Meek. For over a hundred years, the Oni v Meek case appeared to foreclose claims based on custom. (MacKenzie) The last fifty years of his life he was a resident of Honolulu and died January 29, 1875. (Kamakau)

Follow Peter T Young on Facebook

Follow Peter T Young on Google+

Follow Peter T Young on LinkedIn

Follow Peter T Young on Blogger

Captain-John_Meek-WC

Captain_John_Meek-WC

Oni v Meek-Judicial History Center

April 14, 2018 by Peter T Young Leave a Comment

Protection of Traditional & Customary Practices

Several Supreme Court Cases have reviewed and clarified Native Hawaiian rights to Traditional & Customary practices. The Court noted:

“Our proud legal tradition in this State of protecting Native Hawaiian rights is not of recent vintage, for even as far back as the days of the Hawaiian Kingdom, protections have been in place to ensure the continued exercise of traditional Hawaiian rights amidst the pressures exerted by countervailing interests of a changing society.

“[A number of legal cases have been appealed to the Hawai‘i Supreme Court. Decisions by the Court in those cases have defined, explained and clarified. The Supreme Court’s] “evolving jurisprudence concerning Native Hawaiian traditional and customary rights has conceived of a system in which the State and its agencies …”

“… bear an affirmative constitutional obligation to engage in a meaningful and heightened inquiry into the interrelationship between the area involved, the Native Hawaiian practices exercised in that area, the effect of a proposed action on those practices, and feasible measures that can be implemented to safeguard the vitality of those practices.”

“When an individual of Native Hawaiian descent asserts that a traditionally exercised cultural, religious, or gathering practice in an undeveloped or not fully developed area would be curtailed by the proposed project, the State or the applicable agency is “obligated to address” this adverse impact …”

“Consequently, if customary and traditional Native Hawaiian practices are to be meaningfully safeguarded, “findings on the extent of their exercise, their impairment, and the feasibility of their protection” are paramount. … To effectively render such findings, it is imperative for the agency to receive evidence and then make “[a] determination … supported by the evidence in the record.” (Pollack, SCAP-14-0000873 2015:3-10)

Following are some of the cases that address Native Hawaiian rights to traditional and customary practices.

Oni v Meek (1858)

In 1858, Oni, a tenant of the ahupua‘a of Hono‘uli‘uli, O‘ahu, filed suit against John Meek, who had a lease over the entire ahupuaʻa. Oni brought suit when some of his horses, which had been pastured on Meek’s land, were impounded and sold.

Oni claimed that he had a right to pasture his horses on the land division as one of his traditional tenant rights (by custom and by language in the Kuleana Act).

On September 22, 1858, the Police Court of Honolulu rendered a judgment for Oni. Meek was ordered to pay $80.00 for two horses and $4.00 in court costs. At the request of the defendant (Meek), the case was appealed to the Hawai‘i Supreme Court.

Common Law – Hawaiian Usage (1892)

In 1892, the legislature of the Hawaiian Kingdom and Queen Liliʻuokalani passed a law that recognized Hawaiian usage as part of the common law of the Kingdom, together with the common law of England. (McGregor & MacKenzie)

Act to Reorganize the Judiciary Department, ch. LVII, § 5, 1892 Laws of Her Majesty Lili‘uokalani, Queen of the Hawaiian Islands, provided for exceptions to the English common law that were “established by Hawaiian national usage.” (McGregor & MacKenzie)

This law, which is today known as Section 1-1 of the Hawaiʻi Revised Statutes (HRS), provided the basis for the rights of the makaʻāinana (common people) beyond the rights reserved under the Kuleana Act, so as to include whatever was broadly customary as Hawaiian usage prior to 1892. (McGregor & MacKenzie)

State Constitutional Amendments (1978)

In 1978, the State convened a historic constitutional convention that included recommendations that reaffirmed its commitment to Native Hawaiian interests and values.

The 1978 Constitutional Convention recognized the need to “preserve the small remaining vestiges of a quickly disappearing culture [by providing] a legal means … to recognize and reaffirm native Hawaiian rights.”

“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.” (Hawaiʻi Constitution, Section 7)

Kalipi v Hawaiian Trust Co (1982)

In 1982, plaintiff William Kalipi, a Moloka‘i taro farmer, sought access to private land in order to gather “ti leaf, bamboo, kukui nuts, kiawe, medicinal herbs and ferns.”

The Hawai‘i Supreme Court held that “lawful occupants of an ahupua‘a may, for the purposes of practicing native Hawaiian customs and traditions, enter undeveloped lands within the ahupua‘a to gather those items enumerated in HRS § 7-1.” (Belatti & Garcia)

The Hawaiʻi Supreme Court noted: “The statutory exception to the common law is thus akin to the English doctrine of custom whereby practices and privileges unique to particular districts continued to apply to residents of those districts in contravention of the common law.”

“This, however, is not to say that we find that all the requisite elements of the doctrine of custom were necessarily incorporated in § 1-1. Rather, we believe that the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area.” (Hawaiʻi Supreme Court, Kapili, 656 P.2d 745 (1982))

Public Access Shoreline Hawai‘I (PASH) v Hawai‘i Planning Commission (1995)

In PASH, developer Nansay Hawai‘i, Inc. applied to the Hawai‘i County Planning Commission for a Special Management Area permit to develop a resort community covering over 450 acres of shoreline area on the Big Island of Hawai‘i.

The Hawaiʻi Supreme Court explained in PASH case that “the State’s power to regulate the exercise of customarily and traditionally exercised Hawaiian rights … necessarily allows the State to permit development that interferes with such rights in circumstances. Nevertheless, the State is obligated to protect the reasonable exercise of customarily and traditionally exercised rights of Hawaiians.”

In PASH, the court reaffirmed the State’s affirmative duty to protect customary rights as it regulates the development of land “previously undeveloped or not yet fully developed” in Hawai‘i. The court admonished State agencies, stating that they “[do] not have the unfettered discretion to regulate the rights of ahupua‘a tenants out of existence”.

The PASH Court also clarified that “those persons who are ‘descendants of native Hawaiians who inhabited the islands prior to 1778,’ and who assert otherwise valid customary and traditional Hawaiian rights under HRS 1-1, are entitled to protection regardless of their blood quantum.”

Pele Defense Fund v Paty (1992)

Plaintiff Pele Defense Fund challenged the exchange of more than 27,000 acres of public lands, including areas designated as Natural Area Reserve lands, between the State and a private landowner.

Related to this, it was determined that, “The nature and scope of the rights reserved to hoaʻāina (tenants) by custom and usage are to be defined according to the values, traditions and customs associated with a particular area as transmitted from one generation to the next in the conduct of subsistence, cultural, and religious activities.”

That case also found that residency of a particular ahupuaʻa was not required for gathering, noting, “Unlike other areas in Hawai‘i, Hawaiians historically crossed ahupua‘a boundaries in the Puna district. …”

“…The hunting and gathering patterns in the Puna district are unique because they are influenced, to a large extent, by an active volcano, Kīlauea. It can be reasonably inferred that volcanic eruptions in the Puna area force hunters and gatherers to change areas to find plants and animals for subsistence purposes.” (Circuit Court of the Third Circuit, Civil No. 89-089 2002)

The Pele Defense Fund decision extended rights to non-Hawaiians, noting, “Accordingly, non-Hawaiians could have the same right as Hawaiians, irrespective of Article XII, § 7, if they could prove that their rights were based on custom and usage.”

Water Use Permit Applications (2000)

“The Waiāhole Ditch System collects fresh surface water and dike-impounded ground water from the Koʻolau mountain range on the windward side of the island of Oʻahu and delivers it to the island’s central plain.”

“Beginning in Kahana Valley, the collection portion of the system proceeds along the windward side of the Koʻolaus, then passes under the Koʻolau crest to the leeward side at the North Portal. … The ditch system was built in significant part from 1913 to 1916 to irrigate a sugar plantation owned and operated by Oʻahu Sugar Company, Ltd. (OSCo).”

“Diversions by the ditch system reduced the flows in several windward streams, specifically, Waiāhole, Waianu, Waikāne, and Kahana streams, affecting the natural environment and human communities dependent upon them.”

“Diminished flows impaired native stream life and may have contributed to the decline in the greater Kāneʻohe Bay ecosystem, including the offshore fisheries. The impacts of stream diversion, however, went largely unacknowledged until, in the early 1990s, the sugar industry on Oʻahu came to a close.”

In 2000, the Hawaiʻi Supreme Court noted “we continue to uphold the exercise of Native Hawaiian and traditional and customary rights as a public trust purpose. … [T]he mandate of ‘conservation’-minded use subsumed in our state’s water resources trust contemplates ‘protection’ of waters in their natural state as a beneficial use. … [T]his state bears an additional duty under Article XII, section 7 of its constitution to protect traditional and customary Native Hawaiian rights.”

Ka Pa‘akai o ka ‘Āina v Land Use Commission (2000)

In the dispute before the LUC, Native Hawaiian community organizations opposed the re-classification of over 1,000-acres from conservation to urban lands for the Ka‘ūpūlehu Resort Expansion, a luxury development project on the island of Hawai‘i.

Within the reclassified lands, the Court noted that the coastal point known as Kalaemanō and the historic 1800-1801 Ka‘ūpūlehu Lava Flow were two well-known physical features associated with native Hawaiian culture and history. The Court also noted the association of two historical figures to the petition area, Kame‘eiamoku and Kamanawa, two chiefs who served as advisers to Kamehameha I.

The Court reaffirmed special protections for Native Hawaiian cultural practices when it ruled that the State Land Use Commission (LUC) failed to satisfy its statutory and constitutional obligations to preserve and protect customary and traditional rights of Native Hawaiians.

Ultimately, the Court held that the LUC’s determinations were “insufficient to determine whether [the LUC] fulfilled its obligation to preserve and protect customary and traditional rights of native Hawaiians.”

Follow Peter T Young on Facebook

Follow Peter T Young on Google+

Follow Peter T Young on LinkedIn

Follow Peter T Young on Blogger

Hawaii Supreme Court

Oni v Meek (Hawaiʻi Judiciary)

Bill Paty signing 1978 Con Con Document (Honolulu Advertiser)

Pele Defense-Wao Kele o Puna Geothermal Well (WKOP Transfer Celebration)

PASH-Kohanaiki Beach Park (Live in Hawaiʻi)

Waterfall believed to be at Waiāhole (CWRM)

September 9, 2017 by Peter T Young 2 Comments

E Ho‘opono

“(T)he importance of this forest is that it’s so diverse. It’s been able to withstand a lot of lava flows. And so, in the destruction or covering of portions of the forest, they’ve been able to regenerate and come out with a healthier, stronger species.”

“Same with the birds that are able to survive at a lower area, despite the mosquitoes that bring the avian malaria. These birds are healthy. They’re low-lying and they’ve built up an immunity to the avian malaria disease.”

“And so wiping out this forest, they don’t go to other places. This is their home. Just like the people around here; they can’t go to other places. This is where they’ve been raised, where the generations have been raised.”

“This forest, the last low-land rain forest is intact and is very necessary to re-seed the lands that Pele has covered. So the important thing is that these lands need to be intact if we’re going to re-grow our forests a thousand years from now.” (Aluli, Kumupaʻa)