Native Hawaiian Rights--Once Proven--still must be Weighed Against State Interest

State v. Pratt (ICA November 18, 2010)
Background. The State charged Lloyd Pratt with three violations of camping in a closed area within the Kalalau State Park. HAR § 13-146-04(a). Pratt filed a motion to dismiss the prosecution on the grounds that he was a Native Hawaiian engaged in a constitutionally-protected traditional and cultural practice. Pratt argued that he was a kahu or religious practitioner who was a caretaker of the land and, as part of his traditional practices, goes into the Kalalau Valley to tend to the heiau there and perform cultural ceremonies.
At the hearing on the motion, Pratt presented evidence that he was 75% Hawaiian through genealogical records. He did not have any genealogical records establishing that his ancestors came from Kalalau Valley. Pratt also presented evidence that he was a kahu, a religious practitioner whose duties include cleaning and repairing ancient heiau. Other duties include planting trees and clearing debris.
Pratt also had Dr. Davianna Pomaikai McGregor testify as an expert in cultural practices. Dr. McGregor testified that she developed a legal standard for recognizing a traditional and cultural practice. Dr. McGregor identified six essential elements. Dr. McGregor ultimately concluded that Pratt was engaged in a traditional and cultural practice. Wayne Souza, Parks District Superintendent for Kauai at the DLNR, testified for the State. Souza testified that the regulations are there to protect the wilderness areas within the park. He also testified that people can volunteer on a day-to-day basis and participate in a curatorship program that addresses cultural and archaeological resources. Souza did not know how to resolve conflicts with Native Hawaiian practices.
The district court denied the motion. At the trial, the State conceded that Pratt established that his conduct was constitutionally protected, but argued that in balancing the interests, Pratt must be found guilty. The district court agreed and Pratt was found guilty as charged. Pratt appealed.
Three Sources of law for Native Hawaiian Rights. The Hawai'i Constitution recognizes and protects the cultural and traditional rights of Native Hawaiians:
The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.
Haw. Const. Art. XII, Sec. 7. In addition to the constitution, there are two old statues. HRS § 7-1 protects enumerated gathering rights. For rights that are not specifically enumerated by HRS §7-1, there are the traditional gathering rights that are protected by HRS § 1-1.
Three Factors Needed in Showing Constitutionally-Protected Native Hawaiian Rights. The Native Hawaiian practitioner--in response to a criminal prosecution--has the burden of showing that his or her conduct was a constitutionally-protected traditional or customary practice. State v. Hanapi, 89 Hawai'i 177, 970 P.2d 485 (1998). The practitioner must establish three prongs: (1) the practitioner must be a "Native Hawaiian"; (2) the claimed right is constitutionally protected as a customary or traditional Native Hawaiian practice under the three sources of law; and (3) the exercised right occurred on undeveloped or less than fully developed property. Id.
at 816-87, 970 P.2d at 494-95. Finally, the exercise of constitutionally-protected rights must be reasonable. Id. at 184-85, 970 P.2d at 492-93.
Applying Hanapi: First and Third Factors Fine . . . Judge Leonard, in a plurality opinion, wrote that Pratt presented sufficient evidence establishing that he was a Native Hawaiian, that is, a descendant of the inhabitants of the Hawaiian Islands prior to 1778. Blood quantum is not a determinant in establishing this first factor. Public Access Shoreline Hawai'i v. Hawai'i County Planning Comm'n, 79 Hawai'i 425, n. 40 and 41, 448-49, 903 P.2d 1246, n. 40 and 41, 1269-70. The third factor had been met because the Kalalau Valley is undeveloped.
. . . but not the Second Factor. The second factor--that the conduct of camping, clearing land, and planting crops within the Kalalau Valley constituted a recognized customary and traditional practice--was not established. Pratt's conduct, according to the ICA, did not fall into any of the enumerated rights listed in HRS § 7-1. Whether a practice that is not enumerated under HRS § 7-1 nonetheless is protected under the broader HRS § 1-1 depends on the particular circumstances of the case. Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 12, 656 P.2d 745, 752 (1982). Moreover, according to the ICA, there must be "a foundational connection between the claimed right and a firmly rooted traditional and customary native Hawaiian practice." See Hanapi, 89 Hawai'i at 187, 970 P.2d at 495. This can be established through expert testimony. Id.
The plurality closely examined Dr. McGregor's testimony. Of her six factors, the ICA pointed out that a few were consistent with the law. The practice must be related to extended family needs. The practice must be "associated with the ancient way of life," Kalipi, 66 Haw. at 10, 656 P.2d at 751, and it must be a "customarily and traditionally held by ancient Hawaiians," Pele Defense Fund v. Paty, 73 Haw. 578, 619, 837 P.2d 1247, 1271 (1992), but it must also be a practice that "has continued in a particular area." PASH, 79 Hawai'i at 442, 903 P.2d at 1263. Moreover, the practice must not only be handed down from an elder, it must be a tradition or custom that predates 1892--the year HRS § 1-1 was originally promulgated. There were no findings that established Pratt's conduct was a practice going back to a time prior to 1892. The practice cannot be for commercial purposes. Kalipi, 66 Haw. at 8-9, 656 P.2d at 749-50.
On top of all of that, the plurality rejected Dr. McGregor's conclusions. Although some of Pratt's activities were indeed use of the land for subsistence purposes, the issue--according to the ICA--was "whether ancient Hawaiians who resided elsewhere on . . . Kaua'i customarily and traditionally conducted such activities, without permission, on the land of others in Kalalau Valley." There was also no evidence establishing that an "ancient Hawaiian person of lesser rank could simply take such responsibilities [of rebuilding a heiau] onto himself or herself."
Balancing Interests on Top of the Three-Factor Analysis. The plurality rejected Pratt's argument that a balancing test is needed when the practitioner establishes the three Hanapi factors. According to the plurality, under Hanapi, "evidence in support of the three factors are at the minimum a defendant has to show in support of a claim that his or her conduct is constitutionally protected[.]" The plurality also noted that the protection of these rights is "subject to the right of the State to regulate such rights." Haw. Const. Art. XII, Sec. 7. This meant, according to the plurality, that on top of the three-factors, the court must also balance the practitioner's interests against the State's interests in regulating the practice.
And so, even if Pratt showed that setting up a camp, clearing the land, and planting crops in the Kalalau Valley without permission constituted a customary and traditional Native Hawaiian practice, the district court was still required to balance the interests between the practitioner and the State. The plurality noted that the State must allow Native Hawaiians reasonable access to conduct customary or traditional practices, but it is not unreasonable to require a permit to do so. Here, according to the plurality, there was evidence that the Kalalau Valley is a fragile environment and that the State has an interest in preserving this ecosystem. There was also no evidence that Pratt attempted to get a camping permit or that he tried to become a curator through the DLNR.
Judge Fujise's Concurrence. Judge Fujise agreed with the plurality opinion--written by Judge Leonard--that once the three Hanapi factors are established, the district court was required to balance Pratt's interests against the State's and that the district court did not err in ruling in favor of the State. Judge Fujise, however, wrote separately because she believed that the dispositive issue was the balancing test--and there was no need to examine whether Pratt established the three prongs at all.
Judge Nakamura's Concurrence and Dissent. Judge Nakamura agreed that once the three Hanapi factors are established by the practitioner, the practice must be weighed against the State's interest in regulating the practice. However, Judge Nakamura believed that the district court erred in balancing the interests in favor of the State. He noted that the HSC has "upheld the rights of native Hawaiians to enter undeveloped lands owned by others to practice continually exercised access and gathering rights necessary for subsistence, cultural or religious purposes so long as no actual harm was done by the practice." Pele Defense Fund v. Paty, 73 Haw. at 619, 837 P.2d at 1247. So for Judge Nakamura, that meant the district court in balancing the interests of the State to regulate conduct within the Kalalau Valley against Pratt's conduct, it had to see if there would be actual harm. For Judge Nakamura, there was none. Accordingly, Judge Nakamura believed that the district court erred and that Pratt's convictions should be reversed.
What's the Precedent? This is the 2d badly-divided ICA opinion in recent times. That leaves us with an interesting, but not unusual question: what is the precedent in this case?
All three judges believe that a balancing test applies after the practitioner establishes that his or her conduct is constitutionally protected. So that is firm. Two judges--Judges Leonard and Fujise--believe that the district court did not err in applying this balancing test with a view towards a reasonable exercise of the constitutionally-protected right. So Pratt's conviction is affirmed. Judge Nakamura wrote that the balancing test should be with a view toward the actual harm done by the practitioner.
Only one judge--Judge Leonard--characterized the State's concession that Pratt met his Hanapi burden as a stipulation on a legal point requiring further analysis. See Beclar Corp. v. Young, 7 Haw. App. 183, 750 P.2d 934 (1988); State v. Tangalin, 66 Haw. 100, 101, 657 P.2d 1025, 1026 (1983). Judge Leonard ultimately concluded that Pratt failed to establish that his conduct was constitutionally protected (and even if he did, the balancing test applied.). The other two declined to address that issue. Judge Leonard stands alone in her Hanapi analysis.
And to Further Complicate Things . . . Judge Leonard concluded first that Pratt failed to meet his Hanapi burden and, even if he did, the district court should have and correctly balanced in the interests in favor of the State. But it would seem that if Pratt had not met his burden, then there would be no need to engage in the balancing test. Shouldn't Judge Leonard's opinion have ended without moving on to the balancing test? Does that make her balancing test analysis advisory? What does that do to Judge Fujise's concurrence, where she agrees with Judge Leonard's balancing test analysis?

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