04-21-2012, 04:09 AM
Directors Column by Professor Melody Kapilialoha MacKenzie
Aloha no e n#257; hoa makamaka,
In August, I was fortunate to attend a dedication ceremony for Wao Kele o Puna, the 25,856-acre rainforest on the flanks of K#299;lauea Volcano. The ceremony was held in the forest itself, near the site of an abandoned geothermal well, a testament to the folly of trying to harness Pele. The beautiful morning was hot and humid, with clouds building up throughout the day. Wao Kele o Puna is a descriptive term that means the rain-belt of Puna – an area where clouds attracted by the forest, accumulate. Thus it was not unexpected when rain fell in the late afternoon and a rainbow appeared as a blessing to close the day. It was a sweet day indeed for the many involved in more than twenty years of protest and litigation over the fate of Wao Kele.
For Hawaiians, three important elements converged in the dispute over Wao Kele o Puna – the spiritual and religious importance of the area as the home of Pele; the traditional use of Wao Kele o Puna for subsistence, cultural, and religious purposes; and the designation of these lands in the 1848 M#257;hele – converting the Hawaiian communal land system into a Western private-property system – as Hawaiian Government lands. Following the illegal overthrow of the Hawaiian government in 1893 by U.S. military-backed American businessmen, Government Lands were “ceded” to the U.S. in the 1898 Joint Resolution annexing Hawai‘i. When Hawai‘i became a state, the Admission Act provided that the state was to hold ceded lands, with some exceptions, as a public trust for five trust purposes, including “the betterment of conditions of native Hawaiians.” See Section 5(f), Admission Act, Pub. L. No. 86-3, 73 Stat. 4.
The legal controversy over Wao Kele o Puna began in the early 1980s when a large landowner, Campbell Estate, sought to develop geothermal energy on Kahauale‘a, a 25,000-acre parcel of conservation land adjacent to Volcanoes National Park and upland from Wao Kele o Puna. When lava flows overran Kahauale‘a, making geothermal development untenable, Campbell Estate and the State proposed an exchange of Kahauale‘a lands for Wao Kele o Puna and part of the Puna Forest Reserve. See Dedman v. Board of Land and Natural Resource, 69 Haw. 255, 740 P.2d 28 (1987), cert. denied, 485 U.S. 1020 (1988). This was an astonishing proposition because Wao Kele o Puna was designated a Natural Area Reserve by state law – a designation reserved for pristine areas supporting unique natural resources, which were intended to be preserved in perpetuity. See HAW. REV. STAT. § 195-1, et. seq.
Moreover, Native Hawaiians, and in particular those who honor or are genealogically connected to Pele and her ‘ohana or extended family, believe that geothermal drilling desecrates Pele’s body and takes her energy and lifeblood. In contested case hearings on geothermal development in Wao Kele o Puna, individual Pele practitioners challenged the proposal on First Amendment free exercise of religion grounds. On appeal, the Hawai‘i Supreme Court, although acknowledging the sincerity of the religious claims, determined that there was no burden on the exercise of religion, without proof that religious ceremonies were held in the specific area of development. See id. at 261,740 P.2d at 33.
The Pele Defense Fund, including Pele practitioners and Native Hawaiians living in ahupua‘a adjacent to Wao Kele o Puna, then brought suit in federal court challenging the land exchange. PDF argued that the lands had been exchanged without any attempt to assess the impact on the trust purposes expressed in the Admission Act and that at least two of the trust purposes – the betterment of the conditions of Native Hawaiians and public use of the lands – were violated by the exchange. Ultimately, the case was dismissed, barred by the state’s immunity under the Eleventh Amendment. See Ulaleo v. Paty, 902 F. 2d 1395, 1399-1400 (9th Cir.1990).
PDF also challenged the land exchange in state court, but the Hawai‘i courts determined the federal court decision barred re-litigation of the land exchange. Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992). Nevertheless, the case was an important victory for Native Hawaiians who use Wao Kele o Puna for hunting, gathering, and religious and cultural purposes. The Hawai‘i Supreme Court recognized that customary and traditional rights, which had been limited by residency within an ahupua‘a, could be exercised for subsistence, cultural, and religious purposes, on undeveloped lands beyond the boundaries of the ahupua‘a of residence where “such rights have been customarily and traditionally exercised in this manner.” Id. at 620, 837 P.2d at 1272. On remand to the trial court, PDF members were able to validate their subsistence, cultural, and religious practices in Wao Kele o Puna – beyond the boundaries of the ahupua‘a in which they actually resided – in accordance with ancient custom and tradition. See, Pele Defense Fund v. Estate of James Campbell, Final Judgment, Civ. No. 89–089 (Haw. 3d Cir. 2002), at 2.
Efforts to stop geothermal development in Wao Kele o Puna also took the form of civil disobedience and political protest. In March 1990, more than a thousand protestors, led by the Pele Defense Fund and the Big Island Rainforest Action Network, marched to the locked gates leading to the geothermal site in Wao Kele o Puna; more than a hundred people were arrested. See, Theresa Dawson, Hawaiian, State Agencies Race to Reclaim Wao Kele O Puna from Campbell Estate, ENVIRONMENT HAWAI‘I, Oct. 2005, at 5. Ironically, even with significant federal and state support, geothermal development was an economic failure. The project was abandoned and the land lay idle. Id. In 2001, Campbell Estate announced its intent to sell Wao Kele o Puna.
Pele Defense Fund approached the Trust for Public Land (TPL), a national nonprofit land conservation organization, and TPL worked with the state Department of Land and Natural Resources (DLNR) over several years, to get substantial funding from the federal Forest Legacy Program for purchase of Wao Kele o Puna. The Office of Hawaiian Affairs, established in the Hawai‘i Constitution to receive a portion of “ceded” lands revenue and to better the conditions of the Hawaiian community, stepped forward with final crucial funding. See HAW. CONST. art. XII, §§ 5-6; HAW. REV. STAT. CH. 10.
The agreement reached by OHA, TPL, and DLNR was groundbreaking – OHA would receive title to Wao Kele o Puna. TPL negotiated the sale and purchase of the land from Campbell Estate, and then conveyed Wao Kele o Puna to OHA in July 2006. See, Wao Kele o Puna Forest Acquired by the Office of Hawaiian Affairs in Partnership with the Pele Defense Fund, the Trust for Public Land, and the Department of Land and Natural Resources, OHA Press Release, July 19, 2006. Although state law allows OHA to hold title to lands, it has never had a land base and lacks land management experience. Thus, under an agreement reached by OHA and the DLNR, they, along with the surrounding communities, will manage the forest in partnership until OHA is ready to assume total management responsibility. See id.
The reclamation of Wao Kele o Puna is the first return of ceded lands to Native Hawaiian ownership since the 1893 overthrow of the Hawaiian kingdom and holds promise as part of a land base for a future Hawaiian nation. Equally important is the role that Native Hawaiians have played in reclaiming Wao Kele o Puna as a place where indigenous customs, traditions, and religion remain intact. At the dedication ceremony, Pele Defense Fund’s Palikapu Dedman, acknowledged that, “It’s been a real emotional journey, and I feel real proud about how far we’ve come as Native Hawaiians. But we gotta grow on this; we have to stand up for ourselves and keep doing what we’re doing, and if government’s gonna have to catch up, they’re gonna have to catch up. But we still have to be there to remind them of their responsibility to indigenous people.”
The theme of the dedication ceremony was “M#257;pu ke‘ala o Puna, the fragrance of Puna permeates,” referring to the fragrance of maile, lehua, and hala that are abundant in the uplands of Puna. It was said that when the wind blew from the land, even fishermen at sea could smell the scent of these three plants, all closely associated with Pele and held dear by Hawaiians. But the phrase also has importance in another sense. For it reminds us of the spirit – the fragrance – of Puna that lives in all those who worked so hard for so many years to preserve Wao Kele o Puna, and it is a call to have that same strength and dedication permeate our own lives and work.
* Portions of this article were drawn from Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21-WTR NAT. RESOURCES & ENV’T 37 (2007).
Aloha no e n#257; hoa makamaka,
In August, I was fortunate to attend a dedication ceremony for Wao Kele o Puna, the 25,856-acre rainforest on the flanks of K#299;lauea Volcano. The ceremony was held in the forest itself, near the site of an abandoned geothermal well, a testament to the folly of trying to harness Pele. The beautiful morning was hot and humid, with clouds building up throughout the day. Wao Kele o Puna is a descriptive term that means the rain-belt of Puna – an area where clouds attracted by the forest, accumulate. Thus it was not unexpected when rain fell in the late afternoon and a rainbow appeared as a blessing to close the day. It was a sweet day indeed for the many involved in more than twenty years of protest and litigation over the fate of Wao Kele.
For Hawaiians, three important elements converged in the dispute over Wao Kele o Puna – the spiritual and religious importance of the area as the home of Pele; the traditional use of Wao Kele o Puna for subsistence, cultural, and religious purposes; and the designation of these lands in the 1848 M#257;hele – converting the Hawaiian communal land system into a Western private-property system – as Hawaiian Government lands. Following the illegal overthrow of the Hawaiian government in 1893 by U.S. military-backed American businessmen, Government Lands were “ceded” to the U.S. in the 1898 Joint Resolution annexing Hawai‘i. When Hawai‘i became a state, the Admission Act provided that the state was to hold ceded lands, with some exceptions, as a public trust for five trust purposes, including “the betterment of conditions of native Hawaiians.” See Section 5(f), Admission Act, Pub. L. No. 86-3, 73 Stat. 4.
The legal controversy over Wao Kele o Puna began in the early 1980s when a large landowner, Campbell Estate, sought to develop geothermal energy on Kahauale‘a, a 25,000-acre parcel of conservation land adjacent to Volcanoes National Park and upland from Wao Kele o Puna. When lava flows overran Kahauale‘a, making geothermal development untenable, Campbell Estate and the State proposed an exchange of Kahauale‘a lands for Wao Kele o Puna and part of the Puna Forest Reserve. See Dedman v. Board of Land and Natural Resource, 69 Haw. 255, 740 P.2d 28 (1987), cert. denied, 485 U.S. 1020 (1988). This was an astonishing proposition because Wao Kele o Puna was designated a Natural Area Reserve by state law – a designation reserved for pristine areas supporting unique natural resources, which were intended to be preserved in perpetuity. See HAW. REV. STAT. § 195-1, et. seq.
Moreover, Native Hawaiians, and in particular those who honor or are genealogically connected to Pele and her ‘ohana or extended family, believe that geothermal drilling desecrates Pele’s body and takes her energy and lifeblood. In contested case hearings on geothermal development in Wao Kele o Puna, individual Pele practitioners challenged the proposal on First Amendment free exercise of religion grounds. On appeal, the Hawai‘i Supreme Court, although acknowledging the sincerity of the religious claims, determined that there was no burden on the exercise of religion, without proof that religious ceremonies were held in the specific area of development. See id. at 261,740 P.2d at 33.
The Pele Defense Fund, including Pele practitioners and Native Hawaiians living in ahupua‘a adjacent to Wao Kele o Puna, then brought suit in federal court challenging the land exchange. PDF argued that the lands had been exchanged without any attempt to assess the impact on the trust purposes expressed in the Admission Act and that at least two of the trust purposes – the betterment of the conditions of Native Hawaiians and public use of the lands – were violated by the exchange. Ultimately, the case was dismissed, barred by the state’s immunity under the Eleventh Amendment. See Ulaleo v. Paty, 902 F. 2d 1395, 1399-1400 (9th Cir.1990).
PDF also challenged the land exchange in state court, but the Hawai‘i courts determined the federal court decision barred re-litigation of the land exchange. Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992). Nevertheless, the case was an important victory for Native Hawaiians who use Wao Kele o Puna for hunting, gathering, and religious and cultural purposes. The Hawai‘i Supreme Court recognized that customary and traditional rights, which had been limited by residency within an ahupua‘a, could be exercised for subsistence, cultural, and religious purposes, on undeveloped lands beyond the boundaries of the ahupua‘a of residence where “such rights have been customarily and traditionally exercised in this manner.” Id. at 620, 837 P.2d at 1272. On remand to the trial court, PDF members were able to validate their subsistence, cultural, and religious practices in Wao Kele o Puna – beyond the boundaries of the ahupua‘a in which they actually resided – in accordance with ancient custom and tradition. See, Pele Defense Fund v. Estate of James Campbell, Final Judgment, Civ. No. 89–089 (Haw. 3d Cir. 2002), at 2.
Efforts to stop geothermal development in Wao Kele o Puna also took the form of civil disobedience and political protest. In March 1990, more than a thousand protestors, led by the Pele Defense Fund and the Big Island Rainforest Action Network, marched to the locked gates leading to the geothermal site in Wao Kele o Puna; more than a hundred people were arrested. See, Theresa Dawson, Hawaiian, State Agencies Race to Reclaim Wao Kele O Puna from Campbell Estate, ENVIRONMENT HAWAI‘I, Oct. 2005, at 5. Ironically, even with significant federal and state support, geothermal development was an economic failure. The project was abandoned and the land lay idle. Id. In 2001, Campbell Estate announced its intent to sell Wao Kele o Puna.
Pele Defense Fund approached the Trust for Public Land (TPL), a national nonprofit land conservation organization, and TPL worked with the state Department of Land and Natural Resources (DLNR) over several years, to get substantial funding from the federal Forest Legacy Program for purchase of Wao Kele o Puna. The Office of Hawaiian Affairs, established in the Hawai‘i Constitution to receive a portion of “ceded” lands revenue and to better the conditions of the Hawaiian community, stepped forward with final crucial funding. See HAW. CONST. art. XII, §§ 5-6; HAW. REV. STAT. CH. 10.
The agreement reached by OHA, TPL, and DLNR was groundbreaking – OHA would receive title to Wao Kele o Puna. TPL negotiated the sale and purchase of the land from Campbell Estate, and then conveyed Wao Kele o Puna to OHA in July 2006. See, Wao Kele o Puna Forest Acquired by the Office of Hawaiian Affairs in Partnership with the Pele Defense Fund, the Trust for Public Land, and the Department of Land and Natural Resources, OHA Press Release, July 19, 2006. Although state law allows OHA to hold title to lands, it has never had a land base and lacks land management experience. Thus, under an agreement reached by OHA and the DLNR, they, along with the surrounding communities, will manage the forest in partnership until OHA is ready to assume total management responsibility. See id.
The reclamation of Wao Kele o Puna is the first return of ceded lands to Native Hawaiian ownership since the 1893 overthrow of the Hawaiian kingdom and holds promise as part of a land base for a future Hawaiian nation. Equally important is the role that Native Hawaiians have played in reclaiming Wao Kele o Puna as a place where indigenous customs, traditions, and religion remain intact. At the dedication ceremony, Pele Defense Fund’s Palikapu Dedman, acknowledged that, “It’s been a real emotional journey, and I feel real proud about how far we’ve come as Native Hawaiians. But we gotta grow on this; we have to stand up for ourselves and keep doing what we’re doing, and if government’s gonna have to catch up, they’re gonna have to catch up. But we still have to be there to remind them of their responsibility to indigenous people.”
The theme of the dedication ceremony was “M#257;pu ke‘ala o Puna, the fragrance of Puna permeates,” referring to the fragrance of maile, lehua, and hala that are abundant in the uplands of Puna. It was said that when the wind blew from the land, even fishermen at sea could smell the scent of these three plants, all closely associated with Pele and held dear by Hawaiians. But the phrase also has importance in another sense. For it reminds us of the spirit – the fragrance – of Puna that lives in all those who worked so hard for so many years to preserve Wao Kele o Puna, and it is a call to have that same strength and dedication permeate our own lives and work.
* Portions of this article were drawn from Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources, 21-WTR NAT. RESOURCES & ENV’T 37 (2007).