The Indivisible ‘Ohana: Extending Native Hawaiian Gathering Rights to Non-Hawaiian Family Members by Ryan Kananiokahome Poiekeala Kanaka‘ole
In Hawai‘i, the right to access both government and privately owned lands for traditional and customary Native Hawaiian subsistence, cultural, and religious purposes is constitutionally protected. These constitutionally protected traditional and customary rights are essential to preserving the indigenous Native Hawaiian culture and maintaining Native Hawaiian identity. In a seminal gathering rights case, Public Access Shoreline Hawaii v. Hawaii County Planning Commission (“PASH”), the Hawai‘i Supreme Court (“Court”) used Native Hawaiian descent as a threshold factor in determining whether an individual is entitled to assert traditional and customary rights. The Court explicitly stated that Native Hawaiians were entitled to legitimately assert traditional and customary rights, yet refused to decide whether non-Hawaiian members of an ‘ohana enjoyed the same rights as their relatives. Although the Court made clear that its decision did not foreclose the extension of traditional and customary rights to non-Hawaiians, the issue of whether non-Hawaiian ‘ohana members, such as non-Hawaiian spouses or hānai children, can legitimately assert traditional and customary rights remains unresolved . . .