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.