Thursday, May 7, 2009

Musings: Gathering Rights

Rain during the night left everything fresh and well-rinsed and also gave rise to some very unusual fog, which was floating up the flanks of the Giant and hovering over the pastures and road when Koko and I went walking this morning.

We ran into my neighbor Andy and as I practiced techniques learned from watching “Dog Whisperer” while eating poi and fried aholehole at a friend’s house last night — make the correction then relax the leash; be a calm and assertive pack leader; nip outbursts in the bud — the sun rose bold orange in a lavender sky and stained Waialaeale purple.

As Andy was saying that Koko was so subdued he thought I must have given her a drug — she usually whines and whimpers and pulls at the leash when his dog, Momi, is running free, especially when chickens are around — a neighbor pulled up beside us and remarked, wonderingly, on the idyllic light and pastoral scene: “Isn’t it beautiful?" she said. "I feel like I’m somewhere else.”

A man who lives on the Wainiha River, where he operates two unpermitted vacation rentals, told a young friend of mine, Kukailimoku Puulei-Chandler, to go somewhere else when Ili was trying to fish.

“You don’t belong here,” the man told Ili, a Native Hawaiian who has lived his entire life in Wainiha, and whose family name is synonymous with the North Shore.

The man, who had come down from his own house to confront Ili on the river bank, went on to say, “I’ve seen guys like you” — code for young and local — and that he’d had some things stolen from his property in the past.

“But not by me,” protested Ili, who was carrying a throw net. “I’m just trying to fish.”

“Go on the other side of the river then,” the man said.

“But this is where the fish are,” Ili protested again, having already spotted some fish under the shade of a tree. And besides, the other side of the river was thick hau, making passage impossible.

Ili tried to explain that he had a right, as a Hawaiian, to go there and fish. The man told Ili he’d lived on Kauai for 30 years and he’d never heard about any such rights.

“He was telling me about Hawaiiana and aloha,” Ili recalled. “He was telling me he knows. He don’t know.”

Now Ili is not a young man with an attitude. He’s soft-spoken and sweet, and was still visibly upset by the encounter hours after it happened.

“He was totally in my face, just yelling at me,” Ili said. “I told him, hey, I’m not gonna assault you, because I’m not like that. But I’ve got a right to fish.”

The man remained adamant and threatened to call police.

So how did it end? I asked Ili.

“I left,” Ili said. “He had no heart, nothing. He just told me to get out. I was just trying to fish and it ruined my whole day.”

When I expressed sympathy, Ili shrugged and said it wasn’t the first time.

“We run into that all the time,” he said, noting that people living by North Shore beaches and rivers frequently try to claim them as their own and prevent fishing access. He said that another Wainiha riverfront homeowner had forbidden neighborhood kids to use the swimming hole in front of his house.

Ili’s encounter underscores a troubling situation. While I am not at all well-versed in Hawaiian gathering rights, it does seem from an on-line brochure produced by Native Hawaiian Legal Corp. that he has a right to access the river for subsistence purposes. It cites the law that informed the Hawaii Supreme Court decision in the PASH case:

The Hawai'i State Constitution Article XII section 7: 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:

The law does not apply to fully developed property. When I drove to the North Shore yesterday, I cruised by the area in question and found that a road separates the houses from the riverbank in the section where Ili wanted to fish. So would the riverbank be considered developed? I don’t know if the guy’s deed extends all the way into the river — apparently, some do, such as the landowner building the monster house next to Haena Beach Park, whose property extends halfway into Manoa Stream.

Let’s just assume, for the sake of discussion, that in this particular case Ili did, indeed, have the right to walk along the riverbank to fish. How does he enforce that right?

Does he have to get arrested and go through all that trauma and drama and hope that in a trial a couple of years down the road his rights will be upheld?

Does he have to endure the unpleasantness of a verbal confrontation with a landowner as he tries to express and press his rights?

Either way, he is not going to have a pleasant day and he is not going to catch any fish.

And while the landowner may have a valid concern in trying to prevent burglaries and theft, does that give him the right to prevent someone not involved in those activities from accessing the river?

I suggested to Ili and his friends that perhaps some indigenous form of an education committee is needed, one that can approach landowners and inform them of the law and thus spare individual cultural practitioners the pain of personal confrontations. Forget the cops and DLNR, I said. The community needs to let that guy know that such behavior isn't acceptable.

A friend who serves on the Hanalei Community Association said Ili should come talk to them, as they can follow up on complaints of denied access.

I hope that something positive does come from this, and that Ili and his friends don't just hunker down with more buried resentment and landowners don't get cockier as they succeed in intimidating young Hawaiians from doing what their ancestors have done for centuries.

But one thing about all this still really troubles me, and I'm not sure how it can be resolved. How come, after living here for 30 years, that guy hasn't developed any cultural sensitivity, caught on to the concept of aloha?


Anonymous said...

ya further review of the facts, property topography, lot structure, how often the guy really has been robbed (if at all), etc would shed some light on this

disenfranchised young folks are not good, agreed

unless the old guy really has been repeatedly robbed, hes prob just kind of a jerk (or paranoid)

Andy Parx said...

My understanding is that all perennial streams- along with the land 10 feet on either side- are state property, just like beaches. Unless that’s changed I don’t think anyone can “own” a stream. Although access may be tricky, as long as the stream is accessed legally anyone (not just those with PASH rights) can be within 10 feet of a stream anywhere in the state.

Dawson said...

"How come, after living here for 30 years, that guy hasn't developed any cultural sensitivity, caught on to the concept of aloha?"

That guy was acting out classic cultural racism, a mindset that precludes sensitivity and blocks empathy. You see the same behavior in the border towns surrounding every Indian res in the country. Ugly.

Anonymous said...

This Hawaiian man probably should have called the police himself or even let the jackass make the call. Itʻs an insult to have to stop fishing but at least it would be on the record. And let the exposure begin; flush out these creeps.

Next time he tells the cops, which Iʻm sure they know, it is his right to fish and that he wants to file a harassment complaint. The guy (property ʻownerʻ) was trespassing on and impeding the Hawaiianʻs livelihood.

He canʻt own the river - Parx is right.

Dawson said...

Is there any legal advice resource on the island that could counsel him on how to deal with this situation?

Anonymous said...

The public trust doctrine recognizes that the state holds public trust lands "in trust for the people of the State" so they may use them "freed from the obstruction or interference of private parties." In Re Waiahole Ditch Combined Contested Case Hearing, 94 Haw. 97, 136 (2000) (quoting Illinois Central R.R. Co. v. Illinois, 146 U.S. 387, 452 (1892)) (emphasis in original). The trust "requires the government of the State to preserve such [land] for the use of the public." Id. (emphasis in original).

Katy said...

Whether or not the law is on the side of your friend, it's hard to argue that ethics aren't.

We all have a role to play in putting social pressure on people who engage in unethical behavior, like the guy who told your friend to get lost.

A new "social norm" is establishing itself on the North Shore (and elsewhere in Hawai'i and around the world) that threatens people's access to fishing and even just living. The same thing is happening in Montana where people have always exercised the ability to fish and hunt, until rich people started buying up huge tracts of land and throwing up "private property" signs. This is the "private property" norm, and like it or not, our legal system supports it above all else. But as Woody Guthrie pointed out, every sign that says "No trespassing" on one side has another side that doesn't say anything. As he said "that side was made for you and me."

In other words, instead of expecting some legal remedy to fix this, I hope we collectively take responsibility for pressuring people like this guy to just relax and let people fish from the stream. It doesn't hurt us to share. He was supposed to have learned that in the sandbox as a tot.

Maybe it's as simple as that.

Anonymous said...

Hunting out west has always been a matter of going to the land owner and asking permission. If you didn't you were trespassing. Nothing has changed in Montana in that regard.

Katy said...

Yes, it has changed. The new folks say "No."

Anonymous said...

"The new folks say "No.""

Ah the mythmaking of the american left. Making up facts to support fascist, state control doctrine.

Anonymous said...

oh brother. spare me.