Excerpted From: Steven Hindman, Putting the Public Back in the Public Trust Doctrine: a Reinterpretation to Advance Native Hawaiian Water Rights, 98 Washington Law Review 1317 (December, 2023) (338 Footnotes) (Full Document)


SteveHindman.jpegSome Native Hawaiians consider the Mauna Kea Mountain to be an ancestor: a living parent of Wkea (Sky Father) and Papa (Earth Mother). The summit is widely known as the “Kkahau'ula (a cluster of cinder cones), ... a wahi pana (storied place) and wao akua (the place where gods reside).” The “piko (navel)” touches the sky in a way that those who visit become aware of the connections to their ancient ancestors. Numerous shrines pepper the mountain, indicating a pattern of pilgrimage or “a walk upward and backward in time to cosmological origins” to worship various deities. The Mauna Kea summit can be thought of as the “piko ho'okahi (the single navel),” which secures the “spiritual and genealogical connections, and the rights to the regenerative powers of all that is Hawai'i.” Before Europeans explored the islands of Hawai'i, Native Hawaiians considered the summit off limits to all but the highest chiefs and priests.

The Mauna Kea summit has been a point of contention for Native Hawaiian rights. The State of Hawai'i and the University of Hawai'i sought use of the summit for the gigantic Thirty-Meter-Telescope (TMT) because of its favorable conditions for space observation. This project would be the first of its kind in size and capabilities but would desecrate highly sacred land. In In re Conservation District Use Application (CDUA) HA-3568 (Mauna Kea), the Hawai'i State Supreme Court ruled in favor of the University and held that the public trust principles supported the construction of the TMT. Cases like this illustrate the need to adapt Hawai'i's public trust doctrine to meet the needs of the Native residents.

Native Hawaiians have always maintained some legal rights to use their land and water for subsistence farming practices. The State of Hawai'i has a troubled relationship with the greater Native Hawaiian population, often because the State puts the interests of the influential sugar industry above all else. The Hawai'i State Supreme Court has acknowledged in several opinions that the State owes some duty to protect the scarce and valuable resources on the islands. This acknowledgement has led to the emergence of the public trust doctrine through Hawai'i State Supreme Court precedent. This Comment harmonizes the needs of Native Hawaiians with the needs of the state to protect its resources. Additionally, this Comment argues that the public trust doctrine can go beyond simply protecting the natural resources of the state and protect the people who have historically used and conserved those resources. By looking at recent decisions from the Court stripping Native Hawaiians of their rights, this Comment demonstrates the need for reforms and provides proposed amendments to better support Native rights. It is imperative to always uphold Native rights and freedoms in any situation. How the government treats one group of people informs us of how they treat others. By ensuring our laws and judicial precedents protect Native Hawaiian rights, society as a whole benefits.

Part I of this Comment explores the complex history of Native Hawaiian water laws and explains how the legal landscape shifted when westerners encountered the islands. Concurrently, Part I establishes a framework for the public trust doctrine that led to the landmark McBryde Sugar Co. v. Robinson decision and the subsequent implementation of the doctrine into Hawai'i State statutes. This framework creates a more complete picture of the doctrine and how it relates to Native Hawaiian culture and traditions. Part II analyzes the In re Water Use Permit Applications (Waihole Ditch) and Mauna Kea opinions to demonstrate when the doctrine can be used to benefit Native Hawaiians and, alternatively, when the doctrine can be used to acquire Native land and harm Natives in the process. In Part III, this Comment explores how the public trust doctrine can be amended in state statutes to require Native input in any resource allocation decision. Finally, this Comment concludes by framing the public trust doctrine in the context of the larger battle for increased sovereignty for the Native Hawaiian people and provides proposed amendments.

To develop a more accurate conveyance of Native storytelling, this Comment will use many important Native Hawaiian terms and expressions throughout. The use of these terms reflects the need to remain true to the Native perspective and reject the common practice of westernizing Native culture and erasing Native history. Each term will be defined at its first use but, for convenience and clarity, this Comment includes an appendix following the conclusion.

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The fundamental flaw in Hawai'i's public trust doctrine is in its judicial and regulatory enforcement. The constitutional mandate and the State Water Commission's application is powerful in terms of resource inclusion and steadfast protection of Native interests. The problem for Native Hawaiian culture and traditions is that the doctrine does not always protect them. It is jarring that the state judges and justices fail to do more to protect Natives as the American colonial experiment on the islands is still fresh in people's minds. In systematically oppressive societies, the only thing between the status quo and a revolution is a spark.

Examining the effects of Mauna Kea and Waihole Ditch and the development of the public trust doctrine provides insight into the reforms for the doctrine. Hawai'i's jurisprudence has always included special protections for its Native population, but rarely has the State's actions lived up to those protections. Adapting the public trust doctrine to center around Native interests is one consequential way to further support the vision of some Native Hawaiians for increased sovereignty and self-governance.

J.D. Candidate, University of Washington School of Law, Class of 2024.