Many property deeds nationwide include easements to guarantee ownership and access for electric, cable, water, and sewer lines. But Hawaii is unique among the 50 states in having racial entitlements which strip government and private landowners of property rights commonly recognized elsewhere and give superior rights to one racial group.

Here are some of the racial entitlements that strip landowners of rights they would expect in other states.

The public trust doctrine for water gives superior status to taro over rice or sugar. The PASH decision allows ethnic Hawaiians to trespass on private property to gather materials and/or to get access to the shoreline, while apparently not allowing such trespass to other races. If an ancient Hawaiian burial is discovered during a construction project, no further construction can take place until a committee of ethnic Hawaiian cultural practitioners decides whether the bones can be moved or must remain in place; and a decision to remain in place is generally taken to mean that nothing can be built on top of the bones.

While such decisions might normally be regarded as regulatory takings for which property owners could demand compensation through inverse condemnation, these decisions circumvent any such outcome by claiming to be based on newly rediscovered “traditional and customary” practices which have always been part of Hawaii’s common law or written law even though long forgotten.

For no good reason at all, a Hawaiian language phrase in royal patent deeds from the time of the Mahele has been translated as “reserving the rights of the native tenants” when in fact the word “native” does not belong there.

For no good reason at all, the regulations for the Northwest Hawaiian Islands are written to recognize all “Native Hawaiians” as having special rights to access for religious and cultural practice even though very few ethnic Hawaiians actually engage in such things and even though Japanese, Chinese, Filipino, and Caucasian bones are there which should guarantee those racial groups the same rights of access.

For no good reason at all, legislation was proposed to give ethnic Hawaiians a majority of seats on a new commission proposed to regulate bioprospecting on all public and private lands. The commission would be empowered to collect permit fees from landowners and a portion of the royalties due to landowners for the use of the samples collected from their lands, and to allocate a large portion of the fees and royalties to the exclusive use of ethnic Hawaiians.

For no good reason at all, Waimea Valley on Oahu, purchased with Honolulu County tax dollars and private funds, was simply turned over to OHA. There were recently bills in the legislature (which failed) regarding at least three valleys on O’ahu (Haiku, Kahana, and Makua) that proposed to create cultural reserve commissions with explicitly guaranteed majorities of ethnic Hawaiian commissioners, place them under the authority of OHA, and then automatically turn those valleys over to the Akaka tribe once the tribe has achieved federal recognition.

For no good reason at all, the public lands ceded to the U.S. at annexation and ceded back to Hawaii at statehood are assumed to have a racial easement on them — a special right to collective ownership by ethnic Hawaiians, including a right to derive income from them and to prohibit the state from selling any parcel of them.

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