Hawai'i Fisheries Initiative - The Hawaii Institute for Public Affairs

Native Hawaiian Rights Asserted via
the Legal System
“[F]rom 1900 to 1970, the Hawai‘i Supreme
Court created a lineage of caselaw
dissolving vested rights of Native Hawaiians
in favor of opening the coastline to the
general public through state ownership.
Remnants of this philosophy favoring
public access to the coastline continue
to exist and permeate state and federal
caselaw today.” 511 In 1978, the Hawai‘i
Constitution, Article XI, Section 6, codified
the state’s policy on marine resources:
The state shall have the power to manage
and control the marine, seabed, and other
resources located within the boundaries
of the state, including the archipelagic
waters of the state, and reserves to itself all
such rights outside state boundaries not
specifically limited by federal or international
law.
All fisheries in the sea waters of the state
not included in any fish pond, artificial
enclosure, or state-licensed mariculture
operation shall be free to the public,
subject to vested rights and the right of
the state to regulate the same; provided
that mariculture operations shall be
established under guidelines enacted by
the legislature, which shall protect the
public’s use and enjoyment of the reefs.
The state may condemn such vested rights
for public use. 512
Also passed that year, Hawai‘i Constitution
Article XII, Section 7 affirmed
Native Hawaiian rights and gave basis for
their further protection via the judiciary
and the state and county agencies. “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.”
Since the adoption of this provision, the
Hawai‘i Supreme Court has taken an
expansive view on the protections offered
to Native Hawaiians in exercising their
traditional and customary rights on the land
and shoreline. 513
In the last three decades, Native Hawaiian
activists began to vigorously assert their
historical rights in the ocean and its
resources. An opinion letter written by
the Hawai‘i Attorney General in 1982
read: “Native Hawaiians state … that the
submerged lands surrounding Hawai‘i and
the water column above these submerged
lands were all part of the Crown and
Government Lands illegally acquired by
the United States in 1898 without the
consent of, or compensation to, persons of
Hawaiian ancestry. These illegally acquired
properties are now commonly referred to
as the ‘ceded lands’ because they were
ceded by the illegally constituted Republic
of Hawai‘i to the United States at the time
of annexation in 1898. A large portion of
these properties [was] then transferred to
the State of Hawai‘i at the time of
statehood in 1959. The State of Hawai‘i
has acknowledged that the submerged
lands are part of these ceded lands.” 514
102