Yesterday Kauai attorney Dan Hempey (for the defendant-appellant) and prosecuting attorney Tracy Murakami (for the state-appellee) argued before the Intermediate Court of Appeals the case of State v. Pratt, involving a native Hawaiian convicted in the District Court of the Fifth Circuit for violating restrictions on camping in closed areas of Kalalau State Park. Pratt had unsuccessfully argued in a motion to dismiss charges in the trial court that his actions had been constitutionally protected traditional native Hawaiian practices.
Pratt’s motion to dismiss asserted that he met the three factors that one claiming a constitutionally protected native Hawaiian rights privilege must show under State v. Hanapi, 89 Hawai`i 177, 970 P.2d 485 (1998) - (1) that he qualifies as a native Hawaiian within the PASH guidelines (descendants of native Hawaiians who inhabited the islands prior to 1778); (2) that his claimed right is constitutionally protected as a customary or traditional native Hawaiian practice, and; (3) that his exercise of the right occurred on undeveloped or less than fully developed property.
Interestingly, the trial court agreed, finding that Pratt had in fact made the required showings to satisfy each of the Hanapi factors. Nevertheless, the court denied the motion after applying a balancing test of the competing interests – the state’s interest in regulating the number of people in the park balanced against Pratt’s interest in exercising native Hawaiian rights.
On appeal, Pratt argues that there is no such fourth prong in the three-factor Hanapi test and that the court violated the doctrine of stare decisis when it imposed one. The state argues that while Hanapi does not explicitly impose a balancing of the interests requirement, other cases have stated that the right should be balanced against harm. (The state cites specifically to PASH (Public Access Shoreline Hawai`i v. Hawai`i County Planning Comm'n, 79 Hawai`i 425, 903 P.2d 1246 (1995)) and Kalipi v. Hawaiian Trust Co., 66 Haw. 1, 656 P.2d 745 (1982).
It raises for me an interesting question (assuming a balancing test is appropriate) about whether the harm to be balanced is the actual harm caused by the individual applying for the right, or the theoretical harm of a whole lot of people exercising the right. If the court were to apply a theoretical “what-if-everybody-did-it?” analysis, then just about any native Hawaiian right could be extinguished on the grounds that, if all the Hawaiians did it, chaos would ensue.
The court’s decision and the state’s argument that its interest in regulating the park outweighs Pratt’s interest in exercising native Hawaiian rights there would seem to rely on the theoretical view. In this case, though, the appellant asserted a highly particularized and individual history of ongoing practice in the area. It seems unlikely that many native Hawaiians could establish the history of ongoing practice in the area that Pratt claims. If the court views the issue as the actual harm caused by the actual person actually practicing the right (which, truth be told, seems to be the spirit of the balancing test discussed in PASH and Kalipi and cited by the state) things could conceivably break in Pratt’s favor.
2 comments:
It seems to me the court erred, as far as I can tell, in accepting that "camping" is a cultural or traditional right. If that's the case, then it would appear that "camping", actually takes on the definition of "residing" since that is what Pratt was doing. If that is so, then Native Hawaiians could enter and reside on any "less than fully developed" land they wish...such as one's sizable back 40. It would appear that this residence could also overshadow State and County building and zoning regulations. I'm not sure that Kapili, Pele or PASH intended that.
The Court did not hold that "camping" was a traditional practice. It held that what Pratt was doing, specifically - malamaing aina, where the DLNR failed to do so, using the old ways, saying the old prayers, and having a direct familial descendency from that particular valley predating Cptn Cook, and having been raised in the Huna tradition from that very area and trained in exactly what he was doing by numerous Hawaiian elders. And a highly respected, and very conservative expert from U.H confirmed the defendant's legitimate constitutional rights to do what he was doing in the valley. Furthermore she testified that the traditional and customary use of that valley by Hawaiians was seasonal, and not limited to three days as permitted by a camping permit. So I dont think the court erred as you speculate. And I doubt that in the real worls letting this guy do his thing will result in hoards taking over the park, as no one has ever been able to prove the legitimate exercise of such a right before. Which begs the question, why do we have a constitutional amendment that protects Hawaiian rights and culture if it does not get implemented by the Courts?
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