Musings: Affirming Native Rights

It's starting to get faintly light by 4:20 a.m., and when the dogs and I went walking an hour later the world had brightened up sufficiently to discern white from gray, mountains from sky. The fragrance of puakenikeni hung heavily in the still air as above us a thin crescent of gold shone boldly through drifting clouds stained pale pink.

It takes a certain boldness, and sometimes a good attorney, for a kanaka to exercise the traditional rights guaranteed under the state Constitution and affirmed through the PASH (Public Access Shoreline Hawaii) ruling. Though the recent Hawaii Supreme Court decision in the Ikaika Pratt Kalalau caretaker appeal clarified that the state power to regulate trumps native rights, another Kauai case is pushing the envelope.

As I reported in the Honolulu Weekly:

Kui Palama, 28, was arrested on Jan. 17, 2011, and charged with two misdemeanor counts of trespassing and hunting on private property after a security guard found him with pig meat on Hanapepe lands held by Gay & Robinson.

Circuit Court Judge Kathleen Watanabe dismissed the case on April 25 after finding that defense attorney Tim Tobin proved Kui met the three-part test for exercising native rights set forth in State v Hanapi: he's a descendant of indigenous persons here before 1778, he was engaged in a traditional practice and he was on land that is mostly undeveloped.

In his motion to dismiss, Tim argued that by charging Kui with trespassing, the state was effectively imposing a blanket prohibition on his right to engage in customary practices.

Deputy Prosecutor John Murphy presented no evidence to refute Kui's claims, and though Prosecutor Shaylene Iseri-Carvalho has pronounced herself a proponent of Native Hawaiian rights, her office is nonetheless appealing the judge's decision. 

Kui, whose family cultivates taro just downslope from Robinson land in Hanapepe, isn't worried about the appeal. “When you're right, you're right,” he said.

I was especially interested in how Kui, who had a whole binder full of court documents, instructed Tim in a PASH defense. He said Tim, his court-appointed attorney, was initially reluctant, telling him that he'd seen a lot of guys claim a sovereignty defense, but still go down.

“I told him this has nothing to do with sovereignty, well, it does have to do with sovereignty, but this is in the state Constitution,” Kui said. “If they already passed it, why are they still arresting me?”

Kui knew his family geneology and was able to bring in a witness who could confirm it. They also called Dr. Jon Osorio, a professor of Hawaiian Studies, as an expert witness. The prosecutors office argued against the designation, but if a Hawaiian Studies prof at UH isn't an expert in Hawaiian culture, who is? Anyway, he testified that hunting pig is indeed a traditional cultural practice.

Kui also was able to show that caused no disturbance. He killed the pigs with a knife, so guns weren't discharged, and he was on undeveloped land. Furthermore, he was killing pigs that were destroying his family's taro patch, and he was using the meat for food.

Though the lengthy court proceedings "were one headache and frustrating at first," Kui bears no malice.

“I'm not upset with Gay & Robinson for arresting me because it pushed me in the right direction,” Kui says. “We keep hearing, you have these rights, but what does it mean? By actually going through the process I learned a lot.”

Kui hopes his experience will encourage other Hawaiians who are hesitant to exercise their traditional cultural rights because they fear being arrested. Though he's willing to help others go through the process, he can't understand why Hawaiians have to keep proving they're entitled to rights guaranteed by the state Constitution.

“We were born here with this right,” he says. “They acknowledged we had this right. They didn't give it to us.”

Still, he says, a lot of guys are afraid to actually exercise those rights, because who wants to go through the hassle of being picked up by the cops and then going to court? And what if you get a slack attorney who wants to plead you out, or isn't interested in learning about native rights?

Kui says it has become increasingly important for Hawaiians to exercise their access rights because mauka lands used for subsistence hunting are being blocked by private landowners. Gay & Robinson maintains a strict no trespassing policy and hires guards to patrol its extensive West Kauai holdings.

“This is our life here in Hawaii,” Kui says. “How can they stop us from getting food for our table?”