Hawai'i Legal News

State v. Armitage et al. (HSC January 28, 2014) Background. Nelson Armitage, Russell Kahookele, and Henry Noa were charged by complaint of violating Haw. Admin. Regulation (HAR) § 13-261-10, the offense of entering into the Kahoolawe Island Reserve. The complaints read as follows: That on or about the 31st day of July, 2006 . . . [the defendants] did enter or attempt to enter into, or remain within the Kahoolawe Island Reserve without being specifically authorized to do so by the commission or its authorized representative, thereby committing the offense of Entrance Into the Reserve, in violation of [HAR § 13-261-10]. The Defendants pleaded not guilty and their cases were consolidated. In their motion to dismiss, they challenged the constitutionality of the regulations and the prosecution itself. The Defendants argued, inter alia , that they had a constitutional right to go onto Kahoolawe in furtherance of traditional Native Hawaiian practices, founding an indigenous nation...

State v. Kaulia (January 4, 2013) Background. Dennis Kaulia was charged with assault in the third degree. HRS § 707-712(1)(a). Kaulia demanded a jury trial, an attorney, and submitted a notice stating that Kaulia was a "foreign nation to USA and State of Hawaii as a subject of the Kingdom of Hawaii." The other document was a "Motion For Nolle Prosequi With Prejudice As to All Counts." The trial court interpreted these documents as a motion to dismiss the charge for lack of jurisdiction. A formal motion to dismiss was later filed. Kaulia argued that the motion was based on the continuing existence of the Kingdom of Hawai'i. At the hearing, Kaulia requested an evidentiary hearing and wanted to call witnesses to establish the existence of the kingdom. The request and ultimately the motion were denied. The prosecution filed a motion to amend the complaint to provide for only a petty misdemeanor of assault by mutual affray--an offense for which Kaulia had no...

Background. A group of people brought a lawsuit against the State's Director of Finance, the State, the Hawaiian Homes Commission, the Department of Hawaiian Home Lands, and other related officials. The lawsuit alleged a constitutional violation of the duty to sufficiently fund the Department of Hawaiian Home Lands. The complaint prayed for injunctive relief by ordering sufficient funds. The State filed a motion for summary judgment on the grounds that the complaint raised a political question and the issue could not be resolved by the courts. The circuit court granted the motion and the ICA affirmed . The HSC granted certiorari. The Political Question Doctrine. Hawai'i adopted the political question doctrine from Baker v. Carr , 369 U.S. 186 (1962): Prominent on the surface of any case held to involve a political question is found (1) a textually demonstrable constitutional commitment of the issue to a coordinate political department; or (2) a lack of judicially discover...

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 conc...

State v. Taylor (HSC December 15, 2011) Background. Daniel Taylor was prosecuted by the federal government for violating the Native American Grave Protection Act (NAGPRA), 18 USC § 371. Taylor pleaded guilty for conspiring to sell, use for profit, and transport for sale and profit "Native American cultural items." He was sentenced to eleven months of imprisonment and one year of supervised release. One year later, the State prosecuted Taylor for theft in the first degree. HRS § 708-830(1) and HRS § 708-830.5(1)(a). At the grand jury proceeding, the prosecution called only one witness. Abraham Kaikana was an agent for the Attorney General's Office. Agent Kaikana testified that back in the "1800s," a surveyor named Joseph Swift Emerson was shown Kanupa Cave on the Big Island. Inside the cave, Emerson removed artifacts and sold them to the Bishop Museum and the Peabody Essex Museum in Massachusetts. According to Agent Kaikana, Emerson tagged the items he ...

Corboy v. Louie (HSC April 27, 2011) Background. Real property owners and paid their taxes to the State and all the Counties under protest. The taxpayers brought a complaint in the tax court alleging that the tax exemption for Hawaiian Homeland lessees and the Hawaiian Homes Commission Act (HHCA) of 1921 were unlawful. Essentially, the taxpayers argued that the tax exemption violated the Equal Protection Clause. The governments brought a motion for summary judgment. The motion was granted. The taxpayers appealed and the ICA affirmed. The Taxpayers' Claim: tax Exemptions for Hawaiian Homes Lessees Violate the Equal Protection Clause. The HSC zeroed in on the actual claims brought by the taxpayers: that the exemptions pursuant to the HHCA and the HHCA itself violate the equal protection clause. The HSC noted that a challenge to the HHCA tax exemption is really a challenge to the requirement that only Native Hawaiians are eligible for the homestead leases and thus...

State v. Pratt (ICA November 18, 2010) OVERRULED! 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. ...

Hawaii v. OHA (SCOTUS March 31, 2009) Background.   In 1893, the Hawaiian Kingdom was replaced with the Republic of Hawaii.   Under the Newlands Resolution of 1898, Congress proclaimed that the Republic of Hawaii ceded Government and Crown Lands to the federal government in fee.   In 1900, the Territory of Hawaii was established and Congress passed the Organic Act of 1900, which "made clear that the new Territory consisted of the land that the United States acquired in 'absolute fee.'"   In 1959, Congress admitted Hawaii to the Union through the Admissions Act.   The Admissions Act stated that "the United States grant[ed] to the State of Hawaii . . . the United States' title to all the public lands and other public property within the boundaries of the State of Hawaii[.]"   Admission Act § 5(b).   Public lands were held in trust to promote public purposes like the betterment of Native Hawaiians, developing home ownership, and public education.   Admis...