RECENT STATE LEGISLATION AFFECTING NATIVE HAWAIIANS: A BRIEF OVERVIEW
by Carl Christensen Visiting Assistant Professor
D. Kapua Sproat Visiting Assistant Professor
Derek Kauanoe 3L

The Hawai‘i State Legislature addressed several issues of particular interest to Native Hawaiians during its 2007 Regular Session. Particularly important is the enactment of legislation creating an ‘Aha Moku council to provide community input for natural resource management issues. The Legislature also passed the Save Haven Bill, which allows parents to leave a newborn in a place of safety without fear of prosecution. While the law promotes child safety, it may create potential problems because a child may be unable to verify his or her Native Hawaiian ancestry. Finally, the Legislature also expended considerable, yet unsuccessful, efforts to amend Chapter 205, H.R.S., the statewide land use law allocating land to the Urban, Rural, Agricultural, and Conservation land use districts. Although this legislation failed to pass, we include a short note to highlight the possible effects of some of these proposals on efforts to protect Native Hawaiian traditional and customary practices.

Legislation Enacted to Create ‘Aha Moku Council to Advise on Natural Resource Management

During the 2007 session, the legislature passed Senate Bill 1853, which created the framework for establishing an ‘Aha Moku council. Signed into law as Act 212, the ‘Aha Moku council “shall serve [] in an advisory capacity on all matters regarding the management of the State’s natural resources” and is designed to help provide government agencies and other organizations with input from affected communities, especially regarding Kanaka Maoli (Native Hawaiian) methods of resource management. This effort was spearheaded by Representative Mele Carroll (Kaho‘olawe, Molokini, Lāna‘i, Moloka‘i, Keanae, Wailua, Nahiku, Hana), Senator Kalani English (Hana, East and Upcountry Maui, Moloka‘i, Lāna‘i and Kaho‘olawe) and others to facilitate the sharing of traditional knowledge with government decisionmakers and “to create a system of best practices that is based upon the indigenous resource management practices of moku (regional) boundaries, which acknowledges the natural contours of land, the specific resources located within those areas, and the methodology necessary to sustain resources and the community.”

Act 212 established an eight member ‘Aha Kiole Advisory Committee, which the governor will appoint from a list of individuals nominated by the Association of Hawaiian Civic Clubs. This committee is temporary and will help to research and facilitate the creation of a permanent ‘Aha Moku Council Commission. The advisory committee will host and participate in meetings and events throughout Hawai‘i to gain perspective and develop a consensus on establishing an ‘aha moku council system with an ‘Aha Moku Council Commission. In addition, the committee is tasked with establishing: an administrative structure for the ‘Aha Moku system, which shall consist of eight ‘Aha Kiole members (one representing each island); standard eligibility criteria and a selection process for members and an executive director; the council’s goals, objectives and benchmarks; and an operational budget necessary to support the council’s objectives and functions.

The ‘Aha Kiole Advisory Committee must submit an interim report to the legislature, as well as any proposed legislation, 20 days before the start of the 2008 regular session. Moreover, the advisory committee must submit a final report due 20 days before the start of the 2009 regular session. The advisory committee will dissolve on June 30, 2009.

Act 212 appropriated $110,000 for the coming fiscal year or as much money as is needed to cover the advisory committee’s administrative costs and to allow “each of the thirty-seven moku statewide to actively participate and engage in discussion on the creation of an ‘aha moku council system.” The Act calls for the same appropriation in 2008-2009. In addition, the State Department of Land and Natural Resources must provide support services to the ‘Aha Kiole advisory committee.

Although the concept of an ‘Aha Moku Council was supported by state agencies and organizations including the State Office of Hawaiian Affairs and the Association of Hawaiian Civic Clubs, various versions of the final bill had their critics. Concerns included the bill’s origins in puwalu sponsored by Wespac (the Western Pacific Fisheries Management Council) and the ‘Aha Moku Council’s lack of “teeth” to require the State Department of Land and Natural Resources or other government agencies to heed its advice. These and other criticisms were significant enough to raise questions about whether the bill would be vetoed. In the end, Senate Bill 1853 was signed into law as Act 212 and interested community members should keep their eyes out for meetings on this issue. For more information regarding this matter, contact Leimana DaMate at the Association of Hawaiian Civic Clubs at leimana@fastnethi.com.

The Safe Haven Bill Becomes Law

The Safe Haven Bill (HB 1830, HD2 SD2 CD1) allows parents to leave a newborn in a place of safety without fear of prosecution for child abandonment, thereby putting the safety of the infant first. The bill gives “immunity from prosecution to persons who leave an unharmed newborn at a hospital, fire station, or police station, or with emergency services personnel within 72 hours of the child’s birth.” The bill also provides immunity to the institutions and individuals who receive the child. Finally, the bill requires those receiving the newborn to make a reasonable effort to obtain certain information – including the family medical history – from the person leaving the child.

Although similar safe haven or safe surrender laws have been adopted in forty-seven other states, Governor Lingle vetoed the bill, citing concerns that the bill gave no assurance that the person leaving the child had authority to do so and did not have safeguards to protect the rights of both parents as well as extended family members, especially grandparents. In her veto message, the Governor cited another reason - infant abandonment would also make it impossible to verify Native Hawaiian ancestry. “Unlike other states,” the Governor said in her veto message, “Hawai‘i provides a number of programs that provide benefits based on one’s ancestral roots. Enactment of this bill would preclude abandoned children of Hawaiian ancestry from knowing of, or being able to prove, their blood quantum to qualify for housing, schooling, or other benefits.”

On July 10th, the State Legislature overrode Governor Lingle’s veto of the Safe Haven Bill. Now that the bill has become law as Act 7 of the 2007 Special Session of the Legislature, the Hawaiian community and legislators may want to consider ways to address the potential problems, particularly Hawaiian ancestry verification, identified by the Governor.

Land Use Issues: Proposals to Amend Chapter 205, H.R.S.

Members of the Hawai‘i State Legislature expended considerable effort seeking to amend Chapter 205, H.R.S., the State’s land use law, but in the end left the law essentially unchanged. Space doesn’t permit a detailed discussion of the controversy, including the efforts that embroiled the 2006 legislative session, but an important aspect of this year’s effort concerned the desire by some to create an expedited procedure for reclassifying land from the Agricultural District (where residential use is largely limited to “farm dwellings,” a term interpreted restrictively in the trial court’s ruling in the now-settled Hokuli‘a controversy on the Big Island) to the Rural District, where “low density residential lots of not more than one dwelling house per half-acre” are a permitted use.

Under current law, the reclassification of land in excess of 15 acres from the Agricultural District to the Rural District requires a discretionary action by the Land Use Commission (LUC). Community members seeking to protect historic properties that may be affected by such a change in land use can intervene in proceedings before the LUC to assert their interest and can obtain judicial review of an unfavorable decision. Some proposals for an expedited reclassification process could limit the ability of community groups to fully participate in the reclassification process as well as their ability to subject such actions to judicial review. Those interested in protecting historic properties, or in preserving traditional and customary Native Hawaiian rights and practices that may be impacted by proposed projects, should carefully scrutinize future legislation and actively participate during the legislative session to ensure that the public’s rights to assert and protect these interests are not diminished.