Hawaiians' Thundering Protest Shakes Private Property Debate

Right to gather palm fronds stirs unease among island state's developers

A dozen drums beat incessantly, thundering off the cobalt blue mosaic in the atrium floor of the Hawaii State Capitol, penetrating every corner of the fourth-floor legislative offices.

But this was no celebration; it was a protest. State lawmakers had recently touched a sensitive issue among native islanders. Their offense was an attempt to regulate the rights of indigenous Hawaiians to cross onto private, undeveloped land and gather plants for traditional medicine and practices like hula.

After 23 hours, the percussion protest ended. Legislators backed off. But the February clash between traditional Hawaiian rights and modern property law continues to resonate throughout the island state. Indeed, it reflects similar indigenous-rights battles elsewhere in the hemisphere, ranging from the fishing rights of New Zealand Maoris to restrictions on Sioux access to sacred sites in Wyoming.

For now, tradition seems to be winning. Some Hawaiian legislators say they were intimidated by the protest's tone. Others say they were emotionally moved; their arms had goose bumps, their eyes tears.

"It was more than chicken skin," says state Rep. Michael Kahikina. "The Hawaiians have a word for it, na'au, which means your gut. This was na'au i'o, which means to go really, really deep. I felt i'o."

But developers and investors feel anxious about the special access rights given to native Hawaiians in a 1995 Hawaii Supreme Court ruling.

The court ruling upheld gathering rights guaranteed by the state Constitution. It is unclear, however, what exactly the decision allows. The ruling expanded Hawaiian gathering rights beyond the boundaries of vast native lands where they had been traditionally practiced, and it said the state must preserve and protect native Hawaiian cultural practices to the "extent feasible." The 61-page opinion, however, did not define how this was to be achieved.

Opponents worry that bands of Hawaiians will now roam private property, picking mangoes or the palapalai fern. In fact, some Hawaiian activists argue that there are no strict private-property rights on land that can serve traditional Hawaiian use.

The court's ruling casts increasing doubt on land titles, says David Pietsch Jr. of Title Guaranty of Hawaii Inc., a Honolulu-based company. Title insurance companies have started carrying disclaimers tied to ancestral rights, he says, and banks are reluctant to lend money on development projects that aren't fully insured.

In January, funding for two developments planned for the island of Hawaii - an affordable housing project and a low-density residential project - collapsed because loans were denied in direct response to concerns about Hawaiian rights to the land, says Peter L'Orange, president of the nonprofit Hawaii Leeward Planning Conference.

"The issue is not developers against Hawaiians," Mr. L'Orange says. "This affects all the people of Hawaii with its negative impacts on investments and state economy."

In an effort to find compromise, two legislative committees passed a resolution in March that instructs the state Department of Business, Economic Development and Tourism to facilitate discussions between landowners, developers, bankers, and native Hawaiian leaders.

A solution, however, should not be rushed, warns Dan Davidson, executive director of Land Use Research Foundation of Hawaii, a 32-member coalition of landowners and developers.

"We need to be educated more about the needs of native Hawaiians to participate in customary and traditional practices," Mr. Davidson says. "Then we can talk more about what the landowners and developers need in order to conduct their business."

The March resolution, Davidson says, "is just one way for the parties to come together and talk. The problem will have to ultimately be resolved legislatively."