Native Hawaiian traditional and customary rights are constitutionally protected rights that allow descendants of the people who inhabited the Hawaiian Islands before 1778 to gather, fish, worship, and carry out other subsistence and cultural practices, including on privately owned land that is not fully developed. The state can regulate how these rights are exercised, but it cannot extinguish them. They apply across public land, undeveloped private land, and partially developed private land, and they show up most often in permitting fights, water disputes, and criminal trespass cases.
The Laws That Create These Rights
The main source is Article XII, Section 7 of the Hawaii State Constitution, adopted by voters in 1978. It commits the state to 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.”1FindLaw. Hawaii Constitution Article XII, Section 7 – Native Rights The state keeps regulatory authority, but the underlying right cannot be legislated away.
Two statutes fill in the picture. Hawaii Revised Statutes Section 1-1 makes English common law the default in Hawaii except where it conflicts with Hawaiian usage, which gives traditional customs the force of law even when they diverge from ordinary Western property rules.2Justia. Hawaii Revised Statutes 1-1 – Common Law of the State; Exceptions HRS Section 7-1 lists specific gathering rights: tenants living on the land may take firewood, house timber, aho cord, thatch, and ti leaf for personal use (not for sale), and they have rights to drinking water, running water, and rights of way.3Justia. Hawaii Revised Statutes 7-1 – Building Materials, Water, Etc.; Landlords Titles Subject to Tenants Use
The State Water Code adds a third layer specific to water and freshwater resources. HRS 174C-101 says traditional and customary rights of ahupua’a tenants “shall not be abridged or denied,” and protects taro cultivation on kuleana land along with the gathering of hihiwai, ‘opae, ‘o’opu, limu, thatch, ti leaf, aho cord, and medicinal plants. Appurtenant water rights attached to kuleana and taro lands survive even if the holder never applies for a water permit.4Justia. Hawaii Revised Statutes 174C-101 – Native Hawaiian Water Rights
Who Qualifies
To claim these rights, a person must be a descendant of the native inhabitants who lived in Hawaii before 1778, the year of first Western contact.1FindLaw. Hawaii Constitution Article XII, Section 7 – Native Rights There is no blood quantum requirement. Any descendant qualifies, regardless of the percentage of Hawaiian ancestry.
This is not the same standard used for Hawaiian Home Lands. The Hawaiian Homes Commission Act of 1920 defines “Native Hawaiian” as a person with at least 50 percent Hawaiian blood for purposes of homestead eligibility.5Department of Hawaiian Home Lands. Hawaiian Homes Commission Act, 1920 The constitutional standard for traditional and customary rights is far broader.
Proving ancestry usually runs through the Office of Hawaiian Affairs. Its Hawaiian Registry Program verifies Native Hawaiian ancestry through biological parentage, using birth certificates that trace back to an ancestor whose records reflect Hawaiian ancestry. Applicants submit a government-issued photo ID and sequential birth certificates linking them to a verified Hawaiian ancestor. For people adopted in Hawaii, the Family Court can issue a Letter of Non-Identifying Information showing the biological parents’ racial extraction, which OHA generally accepts. Adoptees from outside Hawaii can request comparable records from the court that handled the adoption. The Hawaii State Department of Health and the Hawaii State Archives can help with missing birth certificates.6Office of Hawaiian Affairs. Hawaiian Registry
Ancestry alone is not enough. A practitioner must also show a genuine connection to the specific practice being claimed. Courts require the activity to be rooted in actual traditional or customary use, and expert testimony or kama’āina witness testimony (people deeply familiar with local customs) is often what establishes that connection.7FindLaw. State v. Hanapi
What Practices Are Protected
The scope is wide. Protected land-based activities include harvesting limu (seaweed) from shorelines, collecting medicinal plants used in lā’au lapa’au (traditional healing), and taking firewood, thatching materials, and ti leaf for personal use. The Water Code adds freshwater species like hihiwai (a native snail), ‘ōpae (shrimp), and ‘o’opu (native fish).4Justia. Hawaii Revised Statutes 174C-101 – Native Hawaiian Water Rights Under HRS 7-1, statutory gathering rights are limited to personal use; selling gathered materials for profit is not protected.3Justia. Hawaii Revised Statutes 7-1 – Building Materials, Water, Etc.; Landlords Titles Subject to Tenants Use
Fishing regulations carve out room for customary practice. The ‘Ewa Limu Management Area on O’ahu permits Native Hawaiian gathering rights and traditional cultural practices as authorized by law. In the Northwestern Hawaiian Islands Marine Refuge, where most fishing is otherwise prohibited, traditional and customary practices are allowed with a permit. The statewide ban on shark feeding contains an exception for traditional Hawaiian cultural or religious practices that are not part of a commercial activity.8Hawaii Department of Land and Natural Resources. Hawai’i Fishing Regulations
The customs themselves are not frozen in time. Courts have recognized that practices may evolve so long as they remain rooted in Hawaiian cultural tradition and serve a legitimate customary purpose. Newer tools or techniques can be part of a protected practice if the underlying activity traces back to traditional use.
Where the Rights Apply
Land status is the pivot. Traditional and customary rights are guaranteed on undeveloped land, permitted on land that is less than fully developed depending on circumstances, and generally extinguished on fully developed property. Two Hawaii Supreme Court decisions set the boundaries.
In Public Access Shoreline Hawaii v. Hawaii County Planning Commission (1995), the court held that private property titles do not automatically extinguish traditional rights. The state can stop people who pursue non-traditional practices or exercise valid rights unreasonably, but it cannot regulate customary rights out of existence on land that is not yet fully developed.9Justia. Public Access Shoreline Hawaii v. Hawaii County Planning Commission The court deliberately left the gradations between “undeveloped” and “fully developed” to case-by-case analysis.
In State v. Hanapi (1998), the court defined the far end. “Fully developed” property means land zoned and used for residential purposes with existing dwellings, improvements, and infrastructure. On such property, exercising traditional and customary rights is always considered inconsistent with the owner’s interests.7FindLaw. State v. Hanapi A later state study group identified three markers of fully developed land: all discretionary permits have been issued, there is substantial investment in infrastructure or improvements, and the owner’s expectation of excluding practitioners is high while the practitioner’s expectation of access is low.10Department of Land and Natural Resources. Ho’ohana Aku, a Ho’ōla Aku: A Legal Primer for Traditional and Customary Rights in Hawai’i
The Hawaii Supreme Court has also confirmed that constitutional protections reach beyond the boundaries of a practitioner’s own ahupua’a. A person is not limited to gathering only within the land division where they reside.11State of Hawai’i Land Use Commission. Native Hawaiian Traditional and Customary Practices
Water and the Public Trust
Water rights sit inside their own protected category. HRS 174C-101 requires the Commission on Water Resource Management to protect adequate water reserves for current and future use of Hawaiian Home Lands when making allocation decisions.4Justia. Hawaii Revised Statutes 174C-101 – Native Hawaiian Water Rights In the Waiahole Ditch case (2000), the Hawaii Supreme Court held that protecting traditional and customary activities qualifies as a “public trust purpose.” The state must safeguard stream flow and native species before allocating water to private commercial users, cannot delegate that responsibility to private entities, and cannot treat existing diversions as automatically grandfathered in when they conflict with public trust uses.
What Agencies Must Do Before Approving a Permit
Government agencies in Hawaii have specific duties when their decisions could affect traditional and customary practices. Two frameworks apply.
The Ka Pa’akai Analysis
In Ka Pa’akai O Ka ‘Āina v. Land Use Commission (2000), the Hawaii Supreme Court established a three-part analytical framework agencies must follow when evaluating permits or land use changes that could affect Native Hawaiian practices:
- Identify whether valued cultural, historical, or natural resources are present and the extent to which traditional and customary rights are currently exercised in the area.
- Assess how the proposed action would affect or impair those resources and rights.
- Specify feasible actions the agency will take to reasonably protect Native Hawaiian rights if they are found to exist.
Agencies that skip the analysis or treat it as a formality can have their decisions overturned. The duty is non-delegable. An agency cannot hand the responsibility to a private developer and accept whatever the developer proposes. Conditions imposed on development permits must be roughly proportional to the impact of the project.
Cultural Impact Assessments
Hawaii’s environmental review law, HRS Chapter 343, requires environmental impact statements to disclose how a proposed action would affect the cultural practices of the community and the state. Act 50, passed in 2000, made cultural impacts an explicit part of the “significant effect” definition, so adverse effects on cultural practices can by themselves trigger a full environmental impact statement rather than an abbreviated assessment.13State of Hawai’i. Act 50 – Amends the Environmental Impact Statement Law State guidance directs agencies to actually gather information about cultural practices and features that could be affected, not treat it as a checkbox.14State of Hawai’i. Guidelines for Assessing Cultural Impacts HRS Chapter 6E adds protection by requiring rules governing Native Hawaiian access to cultural, historic, and pre-contact sites, developed in consultation with the Office of Hawaiian Affairs.15Justia. Hawaii Revised Statutes 6E-3 – Historic Preservation Program
Challenging a Permit Through a Contested Case Hearing
When an agency decision threatens traditional rights, such as a Special Management Area permit for coastal development, an affected practitioner can demand a contested case hearing. This is a formal administrative proceeding where both sides present evidence and the agency issues a binding decision. To qualify, a practitioner must show a “sufficient interest” distinguishable from the general public, and courts have found that satisfied by evidence that the land is traditionally and currently used for subsistence, cultural, or religious purposes. If a developer argues that permit conditions protecting customary access amount to a regulatory taking, that claim is premature until after the contested case hearing is complete.
Using the Rights as a Defense to Criminal Trespass
Practitioners sometimes face criminal trespass charges for accessing private property while exercising traditional rights. State v. Hanapi set the test for asserting these rights as a defense. The defendant must prove three things:
- They qualify as a Native Hawaiian descendant under the PASH guidelines.
- The claimed activity is a constitutionally protected traditional or customary practice.
- The activity took place on undeveloped or less than fully developed property.
The burden sits on the defendant, not the prosecution. The state does not have to disprove the claim once some evidence is offered; the practitioner must affirmatively demonstrate every element. Evidence has to be based on actual practice, not conjecture, and the court expects an adequate evidentiary foundation connecting the claimed right to a firmly rooted tradition. Expert or kama’āina witness testimony can establish that foundation. The Hanapi court recommended raising the defense through a motion to dismiss before trial rather than saving it for trial itself.7FindLaw. State v. Hanapi
This is where most trespass-defense claims fall apart. A general assertion of Hawaiian heritage and a vague connection to gathering traditions is not enough. Courts want specifics: which practice, which resources, what historical basis, and why this particular piece of land.
How This Differs From Hawaiian Home Lands Eligibility
Traditional and customary rights are often confused with Hawaiian Home Lands benefits. They are separate programs with separate rules. The Hawaiian Homes Commission Act of 1920 set aside roughly 200,000 acres for homesteading, and it requires at least 50 percent Hawaiian blood quantum to qualify for a homestead lease.5Department of Hawaiian Home Lands. Hawaiian Homes Commission Act, 1920 Article XII, Section 7 has no blood quantum limit and does not grant land; it protects cultural practices across the landscape. Someone who does not qualify for a homestead can still hold and exercise traditional and customary rights, and someone who does hold a homestead lease exercises those rights under Article XII, not under the HHCA.