Native Hawaiian Rights Hang in the Balancing Test
State
v. Pratt (HSC May 11, 2012)
Background. Lloyd Pratt was charged with three violations of
camping in a closed area in the Kalalau State Park on Kauai. HAR §
13-146-04(a). Pratt moved to dismiss the prosecution on the grounds that he was
a Native Hawaiian engaging in a constitutionally-protected activity. Pratt established evidence that he was 75 %
Hawaiian and that he was a kahu, or
traditional and cultural caretaker of the valley. As part of his duties as a kahu, he goes into the Kalalau Valley to
tend to a heiau and perform
ceremonial rites. At the hearing, Dr. Davianna Pomaika'i McGregor testified for
the defense. She formulated six elements that are essential to traditional and
customary Native Hawaiian practices. After interviewing, Pratt, Dr. McGregor
concluded that Pratt learned his contested practice from elders who lived in
Kalalau Valley, he took responsibility for the Valley, his purpose was not
commercial, and it was consistent with custom. Thus, she concluded that Pratt
was engaging in a traditional and customary Native Hawaiian practice.
Wayne Souza of the Department of Land and Natural
Resources testified for the prosecution. He explained that the purpose of the
camping regulations is to limit the number of people who go into the Valley.
Controlling the number of visitors, he testified, is necessary to keep the area
as pristine as possible. The Valley is the home to several indigenous plant and
wildlife and there are historically and culturally significant sites like the heiau.
At the end of the hearing, the prosecution conceded
a major point: based on Dr. McGregor's testimony, the prosecution did "not
dispute that the activities [engaged by Pratt] are traditional and customary
Native Hawaiian practices." Nonetheless, even though they are proven to be
traditional and customary practices, the State has a right to enforce its
regulations restricting visitation into the Valley. The trial court
acknowledged that Pratt had established a Native Hawaiian practice, but
concluded further analysis was needed. The district court weighed the Native
Hawaiian privilege against the State's interest in the regulation. The district
court found in favor of the State's interest in protecting the park and denied
the motion to dismiss. Pratt stipulated to all facts necessary to prove his
conviction. He was convicted and the ICA, in a badly split decision, affirmed.
The (Limited) Native
Hawaiian Privilege. The Hawai'i Constitution
imposes a duty on the State to "protect all rights, customarily and
traditionally exercised for subsistence, cultural and religious purposes and
possessed by ahapua'a tenants who are descendants of native Hawaiians . . .
subject to the right of the State to regulate such rights." Haw. Const.
Art. XIII, Sec. 7. Moreover, non-commercial gathering rights are protected by
HRS § 7-1; see also HRS § 1-1.
Establishing the
Native-Hawaiian-Practice Defense. This
Native Hawaiian practice is a defense to criminal charges when the defendant "at
a minimum" proves (1) the practitioner is a "Native Hawaiian";
(2) the claimed right is constitutionally protected as a customary or
traditional Native Hawaiian practice; and (3) the exercised right occurred on
undeveloped or less-than-fully developed land. State v. Hanapi, 89 Hawai'i
177, 185-86, 970 P.2d 485, 492-93 (1998). A "Native Hawaiian" is
someone whose "descendants [were] [N]ative Hawaiians who inhabited the
islands prior to 1778[.]"Public Access Shoreline Hawai'i v. Hawai'i County
Planning Com'n, 79 Hawai'i 425, 449, 903 P.2d 1246, 1270 (1995).
Prongs v.
Balancing: The Big Issue here. In
this case, the prosecution conceded that Pratt established the three Hanapi
prongs. However, it maintained that further balancing was required before the
defense can negate the criminal prosecution. The trial court and all three
judges on the ICA agreed with this point. However, they all seem to fracture
from that point on. Judge Leonard, who wrote the majority opinion, wrote that
despite the concession, the second Hanapi prong was not met. She added
that even if it had, the balancing test weighs in favor of the State's interest
in the regulation. Judge Fujise did not go that far. She simply agreed on Judge
Leonard's balancing test analysis. Chief Judge Nakamura dissented on the
balancing test alone and wrote that the test weighed in favor of Pratt.
Three-Prong Hanapi
Test Rejected. The HSC rejected all formulations
and emphasized the need for a flexible totality-of-the-circumstances analysis.
When it comes to Native Hawaiian rights, "the retention of a Hawaiian
tradition should in each case be determined by balancing the respective
interests and harm once it is established that the application of the custom
has continued in a particular area." Kalipi v. Hawaiian Trust Co., Ltd., 66
Haw. 1, 10, 656 P.2d 745, 751 (1982). The HSC examined the line of cases that
have examined the interplay between State regulations and Native Hawaiian
customs and held that the determining factor is the balance of interests. It
also noted that in Hanapi, it refused to adopt a bright-line rule for
permitting Native Hawaiian practices on undeveloped lands.
The
"New" Balance. In applying the
totality of the circumstances, "the balancing of interests weighs in favor
of permitting the park to regulate Pratt's activity, his argument of privilege
notwithstanding. The HSC noted that the State's need for regulating the number
of people going into the valley was necessary to protect the valley itself. On
the other hand, Pratt has a clear interest in the valley too. But what did it
for the HSC was the fact that Pratt did more than just tend to the valley. He
took up residence there and cleared entire areas to replant a new species
without consulting with DLNR. Pratt made no recent efforts to comply with the
law either. And so, Pratt's conviction was affirmed.
What Happened to
Hanapi? The HSC appears to have
rejected the three-prong analysis in establishing a constitutionally-protected,
Native Hawaiian custom. Then again, it did not write a single word about the
prosecution's concession that Pratt met the Hanapi test. Instead, it
just looked to the totality of the circumstances and balanced Pratt's interests
against the State's. Would this still be the case if the prosecution did not concede? If so, then it would be
fairly clear that Hanapi and its three factors are not the applicable
test. The only test would then be the totality of the circumstances test, as
feared by the dissent. The dissent takes a different approach. It noted that
Judge Leonard was free to re-examine the prosecution's concession, but would
have ruled that she got it wrong. This may be a minor point in the analysis,
but it preserves the three-prong approach. The majority does not address this
(at least not directly) so the specter of the Hanapi-prong test lingers.
Is this a good specter or a bad one? Depends. A
defendant who may not exactly be a Native Hawaiian may think abandoning the
rigid Hanapi approach is a good thing. That way, the not-so-Native-Hawaiian
defendant could just go straight to the balancing approach. There, the
prosecution has an opportunity to revive Hanapi by arguing that this
case did not really address the big concession.
Justice Acoba's
Dissent. Justice Acoba dissented. He
would have rejected the totality of the circumstances test and believed that
the three-prong approach in Hanapi was a good test. Justice Acoba
explained that the totality-of-the-circumstances test renders Hanapi
"imprecise and invites consideration of matters beyond the
benchmarks." According to Justice Acoba, "what matters is not whether
the test is flexible or whether it fits many scenarios, but whether it
establishes a rational criteria that allow the court to apply the law governing
the constitutional defense to the facts of a particular case."
Justice Acoba also wrote that Judge Leonard had the
right to review the concession that Pratt's conduct were traditional and
customary Native Hawaiian rights. "[A] confession of error by the prosecution
is not binding upon an appellate court." State v. Line, 121 Hawai'i
74, 79, 214 P.3d 613, 618 (2009). He wrote that "as judges we exercise our
own independent judgment on constitutional questions based on the facts of the
case." Justice McKenna joined.
There's Power in a Stipulation. In addition to the colorful defense and its new-fangled test, Justice Acoba also addressed the sufficiency of the evidence needed to convict Pratt despite the denial of his motion to dismiss. He looked beyond Pratt's stipulation to the facts and would have held that there was not enough evidence to prove his guilty beyond a reasonable doubt. And so at the outset, he would have vacated Pratt's conviction. The HSC disagreed. Pratt signed a stipulation and he was addressed personally in court about the ramifications of his stipulation.
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