The Daniel K. Inouye College of Pharmacy Scripts

Traditional Medical Practice

Part 1 in the March issue provided an overview of traditional medicine, the dramatic impacts of introduced diseases, and the introduction of Western medicine with its associated pharmaceutical practice. Not surprisingly, the conflict between traditional and Western medicine are reflected in the courts and laws of the five governments of the islands (monarchy, provisional, republic, territory, and statehood). Part 2 provides the pivotal laws regarding the practice of traditional medicine in Hawai‘i.

Practitioners of traditional medicine founded on centuries of evidence-based analyses were established professionals in Hawai‘i. Increasing Western influence on such cultural practices triggered inconsistent laws for over a century. Legal violation for practicing medicine for compensation without government sanctions was first articulated in the 1865 Civil Code:

It shall not be lawful for any person to practice in this kingdom as a physician or surgeon, for compensation or reward, unless he shall have first presented to the board of health…satisfactory evidence of his professional qualifications…obtained a certificate of approval from said board, and a license from the minister of interior…. liable to a penalty of $100 for each offense.¹

While one of the purposes of this law was to protect the public from persons fraudulently claiming to be kahuna, [the different types of kahuna were covered in Part 1 of this paper) it also set up an obstacle for all legitimate practitioners, requiring them to go through a licensing process to practice. There is no record of the government issuing licenses to kahuna at this time.² Two years later a petition from J. Ka‘ai of Kanahonua, Hamakua to “practice medicine” was refused by the Board of Health. On June 1, 1868 a motion to allow traditional Hawaiian practitioners to practice passed. One legislator argued:

Hawaiians were all dying under the influence of foreign medicine. If a man died under a native doctor, the doctor would probably be taken up for murder. No one could deny that natives had died at the Queen‘s Hospital. — Mr. Keawehunahala.³

Act 139 establishing a Hawaiian Board of Health, Papa Ola Hawai‘i, was signed by Kamehameha V on June 24, 1868. This board licensed Hawaiian practitioners requiring a written record of all treatments. A native practitioner by the name of Waiwai was fined $100 after the following testimony was given, “After dousing feverish sickly patient with water inside and out, and praying for the better part of the week the patient coughed blood but died. Waiwai appeared in court in a white duster, red vest, white lace & [illegible] scarf, wide white belt with silver buckle and a cross-engraved on his breast. He also carried a large bible.”⁴

Between 1873 and 1878 fourteen Native Hawaiians passed the Board's test and became licensed to practice traditional healing. The Hawai‘i State Archives holds five record books the licensed kahuna kept including one belonging to G.W.D. Halemanu of Hamakua who held several government positions including private ways and water rights agent, road supervisor, commissioner of fences and a member of the House of Representatives.⁵

In October 1886, King Kalakaua appointed five more board members to Papa Ola Hawai‘i and established local boards to report on “the qualifications of applicants to practice native medicine; and to state if the remedies proposed are suitable cures.”⁶ It is reported during Kalakaua's reign, three hundred kahuna received licenses.⁷

Unsurprising, this licensure was condemned by Western influences. An 1891 article stated:

…All that talent, training and charity together can do is at hand, free and without price and yet the death rate of the aboriginal race is to the foreigners as to…Kahunadom must be discredited, and then it may die out. It cannot be stamped by force unless it was possible to convict a dozen or so of kahunas of manslaughter It is to be feared however that the Hawaiian race will die out …⁸

The Republic of Hawai‘i formed on July 4, 1894 eighteen months after the illegal overthrow of the Hawaiian Kingdom repealed all Kingdom laws. The Honorable Solomon Kawaihoa of Puko‘o Moloka‘i introduced a bill on March 19, 1901 authorizing the kahuna to practice medicine in the Territory.⁹ Not only did this bill fail, Act 48 in 1905 outlawed kahuna with punishment through fines or imprisonment.⁷ The 1919 session produced two significant bills recognizing traditional practices; Act 193 - Authorizing the President of the Board of Health to issue permits to any duly qualified person to administer and use medicines of Hawaiian herbs and plants grown in the Territory of Hawai‘i; and Act 195 - Purpose of Investigating the Medicinal Properties and Values of Herbs and Plants grown in the Territory of Hawai‘i. Act 193 allowed:

…which applicants shall state the name and address of the applicant, his nationality, and his experience in the use of Hawaiian herbs and plants. It also provides that the application shall be accompanied by affidavits signed by three disinterested persons who shall state that, to their best knowledge and belief, the applicant is an expert in the use and practice of Hawaiian herbs.¹⁰

Although the 1919 Territorial legislature authorized a Hawaiian Medicine Board to issue licenses to herbalists, two of the three board members were haole (Caucasian) who required the kanaka (nvs. human being, used as term for native Hawaiian) applicants to know Latin names for native plants in the certifying examination. This law evolved into Chapter 65 of the Revised Laws of Hawai‘i and remained so until 1965 when the State Legislature repealed it as an “obsolete law.”² Those who applied for recognition under this Act included:

• 1933 — Hans A. Bode, Elias Liko Jones, Alexander K. Ka‘onohi, Joseph Mokihana Scharch

• 1940 — Application by James Isaacs

• 1944 — Possibility of revoking license of E.L. Jones

• 1945 — Bode, Jones and Ka‘onohi

• 1948 — Mrs. Luka G. Kinolau

• 1951 — William K. Maniua of Hilo who failed the exam⁵

One example of a Native Hawaiian traditional healer renowned in the community for her healing abilities but unable to obtain a medical license was Luka Kinolau of Kohala, Hawai‘i. Mrs. Kinolau was born circa 1887 and was taught by her grandmother, a kauka lapa‘au, or “herbal doctor,” haha, or “diagnosis.” In 1948, Kinolau went before the Board of Examiners to become licensed as a Hawaiian healer. Kinolau spoke only Hawaiian, and a translator was present, one of the three parts of the examination required Kinolau know the Latin names of the Hawaiian plants she used for medicine. Kinolau failed her examination, having received a “0” for this part of the exam. Kinolau appealed the Board's decision and challenged the nature of the examination, but the Board upheld its decision to deny Kinolau a license.^2,5

In 1965 the Hawaiian Medical Board was abolished and kānaka herbalists were no longer recognized through Act 153. However, lomilomi practitioners were certified by the Board of Massage.¹¹ Lomilomi practitioner, attorney, and author Makana Risser Chai noted in an March 15, 2015 email to author Wong Smith, the full scope of lomilomi practice is not included in massage and many practitioners do not apply for licensing—or failed licensing—due to lack of western concepts and terms of anatomy.

The resurgence of interest in Native Hawaiian culture and rights impacted traditional healing and kahuna were again permitted to practice legally in 1973.¹² The following year the Native Hawaiian Health Improvement Act was enacted.¹³ In 1985 the results of “E Ola Mau” a federally funded study was reported at the first Native Hawaiian Needs Study Conference prompting the introduction of a Bill to the U.S. Congress which passed the Native Hawaiian Health Care Act (NHHCIA Pub. L. No. 100 579, § 5(b), 102) in 1988.¹⁴ Two years later the NHHCIA allowed for the creation of Papa Ola Lokahi establishing nine health care systems in a “culturally appropriate manner.”¹³ NHHCIA also recognized traditional Hawaiian healers played an important role in maintaining the health of Native Hawaiians: A practitioner … who … is of Hawaiian ancestry, and … has the knowledge, skills, and experience in direct personal health care of individuals, and … whose knowledge, skills and experience are based on a demonstrated learning of Native Hawaiian healing practices acquired by … Direct practical association with Native Hawaiian elders, and … oral traditions transmitted from generation to generation.”¹⁵

In 1998 following several meetings of practitioners, Act 162 referred to as the “Healer's Law,” called for the formation of a council “to decide such issues as who will be allowed to practice Native Hawaiian healing arts, how they will be licensed or approved, how they will be compensated.”¹⁶ Act 162 exempted Native Hawaiian practitioners from state licensure for practicing medicine for two years until July 1, 2002 to enable public discussion. It did not delineate the certification process, and with subsequent feedback from the community, the law was amended several times in an attempt to create a culturally appropriate structure for certification. The Healers' Law assigns certification to the traditional Hawaiian healing community with several councils across the State determining their own criteria. This is in contrast to previous attempts at credentialing, which put the government in charge of determining standards.

There remained confusion as even members of the Hawai‘i Board of Medical Examiners were under the impression that traditional Hawaiian healers could practice medicine without a license. On January 25, 2001 Papa Ola Lokahi (POL) introduced “The Kahuna Statement” to the State legislature as Senate Bill 1390 enacted as Act 304 enabling POL to form panel(s) to be convened and exempting practitioners from liability under medical licensing laws.¹⁷ However, it also persisted in requiring certification for those wanting to practice while qualifying for the exemption.² In 2004 Act 153 made each council independent of state government: “Nothing in this chapter shall limit, alter, or otherwise adversely affect any rights of practice of traditional Native Hawaiian healing pursuant to the Constitution of the State of Hawai‘i.”¹⁸ Amendments to Act 153 in 2005 allowed Native Hawaiian Health Centers formed under NHHCIA to petition Papa Ola Lokahi for recognition of their kupuna panels (later referred to as Kupuna Councils). A significant amendment eliminated the requirement that three members of the certification panel have Native Hawaiian ancestry; however this requirement was reinstated in 2009.¹⁹

Babbette Galang, Traditional Healing & Complementary Health Director for Papa Ola Lokahi stated in a March 10, 2015 email:

The [Wa‘ianae] NHTHC is not the only council to “recognize” traditional healers. (they may use the word “certify” but we do not). All of the five Native Hawaiian Health Care Systems statewide have recognized Kupuna Councils working on how to incorporate traditional healing services to the clients of their Systems while at the same time maintaining the “cultural integrity” of these practices. They, not POL make decisions for their Systems, for their islands, for their communities. The NHTHC is not part of the POL Systems. They are an independent community health center with an independent Kupuna Council recognized by POL.

In 2014, a State auditor's report titled Sunrise Analysis: Regulation of Herbal Therapists, found regulation of herbal therapists unwarranted:

We found that the proponents of herbal therapy regulation have not provided any evidence of harm or abusive practices by herbal therapists in Hawai‘i or elsewhere. Further, the proponents of SB No. 2439, a younger generation of traditional Native Hawaiian healers, are the primary beneficiaries of regulation, hoping to attain state licensing in order to practice their art without going through a kupuna council recognition process. However, placing the licensing of Native Hawaiian healers under state control is in direct contravention to the purpose and intent of Act 162, SLH 1998, which exempted Native Hawaiian healers from all requirements under the state's medical licensing law.²⁰

Currently only Aloha Care, Hawai‘i's third largest insurance provider, covers some Native Hawaiian healing services under its health and wellness program.

Based on the 2014 Sunrise Analysis it is likely licensing and recognition will remain under the purview of the Kupuna Councils of the Native Hawaiian Health Care Systems.