Friday, October 22, 2021
Hawai'i Free Press

Current Articles | Archives

Friday, May 18, 2012
Supreme Court Continues to Grapple with Constitutionally Protected Native Hawaiian Practices
By Robert Thomas @ 12:13 AM :: 4768 Views :: Energy, Environment

HAWSCT Continues To Grapple With What Qualifies As "A Constitutionally Protected Customary Or Traditional Native Hawaiian Practice"

by Robert Thomas, InverseCondemnation.com

The Hawaii Constitution gives Native Hawaiians -- those who can trace their ancestry to inhabitants of Hawaii prior to western contact -- a privilege to engage in "customary or traditional practices" that, in some cases, immunizes them when others who lack that one drop of Hawaiian blood would be liable. See Haw. Const. art. XII, § 7. For example, in some cases where a native Hawaiian enters land he or she does not have the right to access, the constitutional privilege may excuse liability for civil or criminal trespass. The only limit on the privilege in the text of the constitution is "the right of the State to regulate such rights."

The constitution also does not define what activities might qualify as "traditional and customary practices," and the question has vexed Hawaii courts since the Supreme Court first gave teeth to the right in 1982 in Kalipi v. Hawaiian Trust Co., Ltd., 656 P.2d 745 (Haw. 1982). In State v. Hanapi, 970 P.2d 485 (Haw. 1998), the court settled on a three-part test that really didn't help much, since the second part of the test required that the claimed right must be "constitutionally protected as a customary or traditional native Hawaiian practice," a tautology that folds back on itself.

In State v. Pratt, No. 27897 (May 11, 2012), the Hawaii Supreme Court delved into the doctrine yet again. Although it did not clarify what activities qualify for the privilege, it did settle one outstanding issue, that should be of interest to landowners, both public and private. Read on.

The case involved a native Hawaiian who was convicted of illegally camping without a permit in a state park on Kauai. He admitted the elements of the crime but claimed that his presence in the park and his activities there were protected under the privilege. The prosecution conceded that his activities qualified as customary or traditional practices, but argued that the State's "right to regulate" overcame Pratt's claim of privilege. The trial court concluded that the State's interest in preserving the park outweighed Pratt's right to exercise his native rights.

The three-judge court of appeals panel produced three opinions, and affirmed the conviction 2-1. One judge concluded it was the defendant's burden to show the State's regulation was not reasonable. Another judge also concluded that a defendant bears the burden, but only of showing that his own conduct was reasonable. The third judge placed the burden on the State to prove the defendant's conduct resulted in actual harm.

The three-Justice Supreme Court majority adopted none of these approaches, but concluded the analysis must be "case by case," and a balancing test considering the "totality of the circumstances." Applying this test, the majority affirmed the conviction because the State's interest in controlling access to the park outweighed Pratt's interest in exercising his native rights.

The court may have resolved Pratt's case, but did it make the doctrine any clearer? After all, what does a "case by case" and "totality of the circumstances" rule mean for future cases, other than there is no rule? As we noted above, however, the Supreme Court's opinion did clear up one thing. The majority suggested the defendant bears the burden by stating that Pratt did not show that his activities were conducted "within the limit of state law." Slip op. at 30. Meaning what, exactly? That he should have asked the State whether he could engage in his practices? We're not sure why Pratt would do that when he claimed his conduct was exempt from even seeking a camping permit. Nonetheless, it does seem that the burden is squarely a defendant's, and the state's regulations will be reviewed on a rational basis standard.

Finally, we still do not have a real firm idea of what actions qualify as "traditional and customary practices" since here, the prosecution accepted that Pratt's activities qualified, and neither the court of appeals nor the Supreme Court delved into that issue. Maybe next time.

---30---

Update: Ben Lowenthal provides his analysis of the opinions here.

FULL TEXT: State of Hawaii v. Pratt, No. SCWC-27897 (May 11, 2012)

Links

TEXT "follow HawaiiFreePress" to 40404

Register to Vote

2aHawaii

808 Silent Majority

ACA Signups Hawaii

Alliance Defending Freedom

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

AntiPlanner

Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Back da Blue Hawaii

Ballotpedia Hawaii

Better Hawaii

Broken Trust

Build More Hawaiian Homes Working Group

ChinaTownWatch.com

Christian Homeschoolers of Hawaii

Cliff Slater's Second Opinion

DVids Hawaii

FIRE

Fix Oahu!

Frontline: The Fixers

Genetic Literacy Project

Grassroot Institute

Habele.org

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defense Foundation

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii Legal News

Hawaii Life Alliance

Hawaii March for Life

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

HIEC.Coop

HiFiCo

Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Navy League

Honolulu Traffic

House Minority Blog

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

July 4 in Hawaii

Kakaako Cares

Keep Hawaii's Heroes

Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

MentalIllnessPolicy.org

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

NAMI Hawaii

Natatorium.org

National Christian Foundation Hawaii

National Parents Org Hawaii

NFIB Hawaii News

No GMO Means No Aloha

Not Dead Yet, Hawaii

NRA-ILA Hawaii

Oahu Alternative Transport

Obookiah

OHA Lies

Opt Out Today

OurFutureHawaii.com

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons

Pro-GMO Hawaii

P.U.E.O.

RailRipoff.com

Rental by Owner Awareness Assn

ReRoute the Rail

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

Save Dillingham Airfield

School Choice in Hawaii

SenatorFong.com

Sink the Jones Act

Statehood for Guam

Tax Foundation of Hawaii

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

UCC Truths

US Tax Foundation Hawaii Info

VAREP Honolulu

Waagey.org

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii

Yes2TMT