Musings: Native Rights

Way back in 2004, the state issued three citations to Lloyd “Ikaika” Pratt for camping in Kalalau for longer than is allowed, and without a permit. In defending himself against the charges in District Court, Ikaika countered that he needed to stay in the valley for extended periods to care for a heaiu there — something he had been doing for 37 years — and it was a traditional and customary Hawaiian practice protected under Article XII of the state Constitution.

Under State v. Hanapi, the Hawaii Supreme Court set forth a three-part test that defendants must meet in claiming a PASH defense: they must be Native Hawaiian; engaged in traditional Hawaiian practices, and exercising the right on undeveloped or less than developed property.

But things got squirrelly because the case was heard by Judge Frank Rothschild, whose disdain for Native Hawaiians and their rights was made clear in the shockingly biased way he handled the 2005 eviction of a Hawaiian family from their taro patch in Hanalei. Here’s a sample from those proceedings, which I wrote about in the Honolulu Weekly:

‘We have lots of folks coming to our courts and serving all kinds of rights and defenses intended to give them immunity from our laws,’ the judge [Rothschild] said. ‘People say they’re not bound by the rules of the road that the rest of us follow because they belong to the Kingdom of Hawai’i. My response is, I don’t care if you’re from the Kingdom of Tonga or any other kingdom. When you come here, to this land, you’re required to follow the rules and the laws of the state of Hawai’i.’

Ummm, Frank, hate to break the news, but you’re the one who came to this land.

Anyway, Frank found that Ikaika had, indeed, met all three parts of the PASH test. But then he imposed on Ikaika the burden of proof for meeting an additional “competing interests” prong, which allowed Frank to conclude that the state’s right to regulate the valley was superior to Ikaika’s right to engage in traditional practices.

Dan Hempey, Ikaika’s attorney, appealed to the three-judge panel in the Intermediate Court of Appeals, which issued its opinion against Ikaika last November. One judge ruled Ikaika had no constitutional right to be there. Another ruled that he had a right to be there, but failed to prove his actions were "reasonable.” And a third judge ruled that he should have been acquitted because he had a constitutional right to be there and since he did no harm at all being there, it was reasonable.

Yesterday, Dan petitioned the Hawaii Supreme Court to hear the case, writing:

Thus, how a balancing test should be applied and to whom the burden of proof should be put, assuming arguendo that a balancing test should be applied, became a significant issue on appeal. It remains the primary basis for this Petition for Writ for Certiorari.

Dan argues that the ICA “committed grave error” by requiring a defendant who has already proven that his conduct is Constitutionally protected to also bear the burden of proving his conduct was reasonable “in an inconsistently-applied balancing test.”

Furthermore, if such a balancing test is to be “the correct approach,” he writes, “Hawaii litigants would benefit from guidance as to how it should be applied and who bears the burden of proving what.”

Dan goes on to raise the very interesting question of whether state regulations, which criminalize certain actions, are so narrowly drawn as to impinge on the rights of Hawaiians to exercise their traditional and customary practices.

He then dings the lead ICA opinion, which stated Ikaika had not proven that Hawaiians of lesser rank took on such responsibilities, by writing:

From Petitioner’s perspective, the case has almost played out like a trap, with the State conceding an important point at trial, the trail court agreeing that the matter has been proven, and the Petitioner then losing the case on appeal because an ICA judge held that he failed to present evidence on the very same conceded issue.

It’s been a long road for Ikaika, and it’s not over yet. But hopefully the Supreme Court will take the case and offer some clarification on whether Hawaiians actually do have the rights guaranteed by the Constitution, or if anti-Hawaiian judges can act unilaterally to strip them away.