Do native Hawaiians have a special claim to geothermal resources in Hawaii? : a legal analysis

Abstract

"An attempt to demonstrate that native Hawaiians have some special claim to geothermal resources might proceed on either of two theories. The first is that geothermal fluids, or the steam or heat from them, were among those natural resources access to which was guaranteed to descendants of the aboriginal population as part of the native Hawaiian rights preserved during the Great Mahele -- the division of estates which here created private ownership in land. As is well known, the government of Kamehameha III (Kauikeouli) under strong Western influence, in the mid-19th century replaced an essentially feudal land system in which outright ownership of land had no place with an allodial system generally based on the ownership concepts of Anglo-American common law. However, the declarations and statutes which brought about this radical change repeatedly acknowledged that some customary rights of access to natural resources were preserved for the native tenants of lands now held in fee by their old landlords and by their successors in title. The first theory could assert that the bundle of rights so protected includes rights to geothermal resources which remain in force today, more than a century after the Great Mahele. The second possible theory is that, irrespective of other property rights preserved to native Hawaiians, they are the beneficiaries of a trust, the corpus of which includes geothermal resources. It is the primary purpose of this paper to examine each of these theories in the light of Hawaiian history and case law to ascertain if either provides the basis for making a prima facie case asserting ownership of geothermal resources by or on behalf of native Hawaiians. The secondary purpose is to state what group within the population are "native Hawaiians" in this context."