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Roth convenes four attorneys to assess the 1995 Hawaii Supreme Court ruling in the PASH case, which held that Native Hawaiians retain traditional and customary gathering rights on undeveloped private land. Arnold L. Lum, lead counsel on the winning side, argues the decision simply draws a line against the piecemeal extinction of cultural practices dating to before Hawaii's transition to Western land tenure. John Jubinsky, representing a title insurance company, counters that the ruling's breadth — covering every "less than fully developed" parcel statewide — has paralyzed investment and title insurance because the court offered no roadmap for who holds the rights or when they can be exercised. Richard A. Epstein, joining by phone, calls the decision a "lawyer's feast and social disaster," arguing the court invented new customary rights that would fail Blackstone's classical test. David Forman defends Justice Klein's opinion as consistent with King Kamehameha's intent to preserve Hawaiian tenants' rights at the Great Mahele. Senate Bill 8, which would have created a legislative process for determining these rights, failed in the 1997 legislature. Callers press the panel on who qualifies as Hawaiian and what trade-offs might look like.
Transcript
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Companion newspaper commentaries
Commentaries by the guests, published in The Honolulu Advertiser around the broadcast.
