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

By
Robert Thomas
-
13
3912
article top
Robert Thomas

BY ROBERT THOMAS  – 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 activites 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 activites 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.

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


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


Comments

comments

Previous articleUpdate on Līhu’e sewage spill
Next articleHAWAI‘I’S APRIL UNEMPLOYMENT RATE DROPS TO 6.3 PERCENT
Robert Thomas
Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.

13 COMMENTS

  1. Fraud, Scheming by U.S. District Court Honolulu Federal Jurisdiction Judge Shirley Kawamura and Kidnaped
    from Shirley. On 12/27, Wellington Yee Yun Pang, wife Andrea Janet Pang Plaintiffs Pro se Complaint, filed
    U.S. District Court of Hawaii and denied Case No. 00785 BMK, Motion for Temporary Restraining order and
    Subpoena denied. On 2/16/12 Plaintiffs Subpoena filed right after the Court go to the car and sudden and
    unexpectedly fall down and he went to Emergency Pang is Kidnaped very next day by polictics
    I reported many and Polic, Police commertional, prosecutor, Mayor, Gov.office, F.B.I and no one return to Pang's home
    How could teach law school student Constitutional law and turning wroing way to lving in society criminal crime.
    In my goal helpping people and correction wrongthings. Volunteer for help Society
    Return Pang's home we do help the people, l our assets will give away to U.S. GOV., for Publishare

  2. From: Wellington Y Y Pang, wife Andrea Janet Pang HAWAII'S BENEFICIARY. Fraud, Kidnapted by_U.S. District Court of Hawaii Federal Jurisdiction Judge Shirley M. Kawamura Kidnapping, Hostage , defrauding assets by Shirley M Kawamura. Fraud Scheming_by Kwang Sok Yi Mahalo Realty, Hawaii State Realtor, Judge, Lawyer and she is profashionall defrauding peoples' assets. Unlawfully folowup legal way, wrongdoing activities. It will be correction wrongdoing activities that is reason for uppear. Until Judge: Shirley M Kawamura arrested. If OIG caching her Shirley will be EXECUTION. She birbery control our children to breaking loving family. She is Terrorist World-Wide SPY. Please checking Shirley background and Wellington Address: 1821 Keeamoku Street #501 Please return Pang's home immediately and all investors _helpping us return Pang's home I'll give away Beneficiary's Assets to Publishare

  3. From Wellington Yee Yun Pang, wife Andrea Janet Pang 2540 Waolani Ave. Honolulu, HI. 96817
    The State of Hawaii freeze Beneficiary Wellington and Andrea J Pang's Trust Account, Assets illegally by
    State of Hawaii and Pang is Abducted. The Beneficiary's assets Relase
    10/30/12

  4. From: Wellington, Andrea J Pang. I understand that you writing for me to read? "why continue to grapple
    Assets? I'm very conservative to get back all Assets which is blocked, freeze Beneficiary Wellington Yee Yun Pang,
    Andrea J Pang's, Trust Fund, Real Properties, Stocks & Bonds, Probate No. 15430 and Original title No. 44200
    Hawaiian Trust, Bishop Trust, Damond M Trust Estate, Capenter Union Trust, Tropical Estate,
    Bernice Pauahi Bishop Trust, Robert Hind, Ltd., and W H SHIPMAN LTD and more.
    Filed App. No. 1074, 1053, 1000, 1069, 1009, 1695, 1095, 1804, 1100, 1320, 1020, 1819, 1508,
    966, 979, 950, 929, 917, 869, 880, 279, 242, 211, 323, 198, 495, 563, 656, 677, 766, 492, and more continue next

  5. FRAUD BY U.S. DISTRICT COURT OF HAWAII JURISDICTION JUDGE SHIRLEY M KAWAMURA aka
    KWANG SOK YI MAHALO REALTY, KWANG S TABBAL, STATE OF HAWAII SECRETARY & REALTOR,
    ATTORNEY AT LAW OFFICE, ATTORNEY.COM, AND SUPPRTER OR SPONSORSHIP HONOLULU
    NO ONE CHECKING HER BACKGROUND, AND WRONDOING ACTIVITIES UNLAWFULLY USING POWER,
    DEFRAUDING PEOPLES' ASSETS, KILLING AND BREAKING LOVING FAMILY.
    SHIRLEY IS TERRORIST CONNECTION AND BREAKING AMERICA ECONOMY DOWN.

  6. HAWAII'S BENEFICIARY WELLINGTON YEE YUN PANG KIDNAPED FROM HONOLULU
    KUAKINI EMERGENCY ON 2/19/12 AND HOSTAGE BY DISTRICT COURT JUDGE
    SHIRLEY M KAWAMURA AND SHE USING THOUSANDS OF DIFFERENT NAMES TO DEFRAUDING
    PANG'S ASSETS BUT OVER 30 YEARS SHE WORKING HARD FOR MADE FAKE DOCUMENTS,
    KWANG S SHOULD BE INVEST FOR THE PANG'S FAMILY BUT FRAUDULENTLY TRANSFERRED
    PANG'S ORIGINAL LAND COURT DOCUMENTS WELLINGTON PANG CHANGE TO WELLINGTON WONG,
    WIFE ANDREA JANET PANG TO CHOI YUCK WOONG

  7. PANG'S DECEASED PARENTS FATHER LOY PANG aka TIN LOY PANG, YEE CHUN PANG,
    MOTHER DAI MOI PANG CHANGE TO DASY L PANG aka TAI MOI PANG TAI MOI P HUNG
    LAU SHEE PANG, PANG LAU SHEE AND LAU SHEE AND FRAUDULENTLY TRANSFERRED
    PANG'S TRUST ACCOUNT BLOCKING PANG'S ASSETS BY STATE OF HAWAII SECRETARY
    SHIRLEY M KAWAMURA , ACTING HER OWN BUT I'M SPOUSE ANDREA J PANG, I'LL CONTINUE TO
    CHASE HER UNTIL ARREST AND EXECUTION KWANG SHIRLEY. STEALING ALL
    BENEFICIARY'S BENEFITS, SOCIAL SECURITY, ANNUITY, UTILITIES, AND THREATENING
    CHILDREND AND CONTROL

  8. I'LL DISCLOSURE WORLD-WIDE THREATENING HUMAN RIGHT, RECOMPOSE HUMAN DEATH BODY
    HISTORICAL DOCUMENTARIES FROM UNITED STATES OF HONOLULU, HAWAII
    HAWAII'S BENEFICIARY KIDNAPPING, HOSTAGE BY JUDGE SHIRLEY M KAWAMURA,
    HIDING MY HUSBAND, HOSPITAL, NUUANU MORTURARY SAID PANG IS DEATH, I ASK FOR
    DEATH CERTIFICATE, FROM 2/19/12 UNTIL I DID NOT GET DEATH CERTIFICATE AND
    I RECEIVED STATEMENT OF PANG DOCTOR VIST. THEY THING I HUNTING FOR THE GOLD?
    WITHOUT LEGAL DOCUMENT AND BURN SOMONE'S DEATH BODY. THIS WAS SCHEMING FROM 1982

  9. U.S. DISTRICT COURT OF HAWAII JURISDICTION JUDGE SHIRLEY M KAWAMURA
    CONTROL UNITED STATES, ACTER, ACTREES SPECIALLY "PSY GANGNAM STYLE AND
    SHIRLEY AGINST US AMERICA, CONNECTION, MAKING TROUBLE TO US GENERAL DAVID HOWELL.
    SATAN ATTACKS SHIRLEY M KAWAMURA MIND

  10. FROM HAWAII BENEFICIARY WELLINGTON YEE YUN / ANDREA JANET PANG & WE REPORTED
    FRAUD DEFRAUDED, KIDNAPPING, BUT NOBODY HELP
    NO ATTEN. WE ARE CONSISTENTLY REPORTED, THE HONOLULU POLICE FALSE REPORT RECORDED.
    ON 2/19/12 WELLINGTON PANG KIDNAPPED FROM HONOLULU KUAKINI EMERGENCY, HOSTAGE BY
    THE US DISTRICT COURT OF HAWAII JUDICIAL JUDGE SHIRLEY M KAWAMURA, KWANG S TABBAL.
    WE WANT FAMLY AND FREEDOM. WHAT IS MONEY FOR? IMPORT THEN HUMAN LIFE?
    I'M ANDREA JANET PANG AS OF BENEFICIARY WELLINGTON/ANDREA JANET PANG, WE ARE NOT TRY TO
    GRAPPLE FOR MONEY. I am appear for the my own fish if owner not appear then fighting eachother. I'll help
    the people by the people for publishare. Don't try accepting brebery, wrongdoing activites.

Newer Comments »

Comments are closed.