Thursday, May 17, 2012

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?”

41 comments:

Anonymous said...

Ah, I love the smell of privatization early in the morning! Don't Hawaiians know by now that laws don't mean a thing to the 1%? Of course Hawaiians are right, and have the right, to practice their culture in their native lands, but corporate might makes "right" wins again. And again. And again. Aue.

KamaKele said...

Hawaiians need to realize that with their Native Hawaiian Rights, it's use it or lose it. Get out there, use your legal rights, get them reaffirmed so that these police are forced to apply the laws and thereby actually know them. And then, here's the key. When you get arrested using your native hawaiian rights, and then get acquitted, you have to sue the county for wrongful arrest, discrimination, and every other concievable legal theory. Only then will you solidify the native rights that CJ William S. Richardson worked so hard to put in the books.

Anonymous said...

I can understand getting mad at tresspasers who are on your land that you are using, (like you front or back yard), but why the fuss over someone on acres of undeveloped land who is not litering, destroying or misappropriating it.

Geesh!

Anonymous said...

Sorry Joan, on this topic the environment and it's protection is a greater good.

Clearly there is a proper legal permitting system in place and the individual chose not to do it the proper way.

The law is on the side of the state (ecosystem) in this case.

Anonymous said...

Commoners in ancient times were still bound by kapu of alii. No one could just go anywhere to hunt or fish. You had to get the proper approvals. In this case, the Robinson family is the alii so to speak & they have the right under ancient Hawaiian custom to allow or not allow anyone on their 'aina.

KamaKele said...

The problem with that argument is that the Robinson Family are not a'lii, konohiki, or hakuna. The Robinsons are private landowners asserting the right to exclude through american property law. Those american property laws are subject to a subsection of Hawaiian common law known as native hawaiian rights. Therefore the Robinson Family are also subject to native hawaiian rights claims. There was no opposition by John Murphy because there is no legal opposition to be made. The appeal is simply to appease a very powerful family, the Robinsons, though the appeal is also doomed.

Anonymous said...

But then, the Supreme Court completely disregarded the same principles in the case of Llyod Pratt. While affirming that he fulfilled the three-part test, they then blatantly said that the state's interest in controlling access (ie., state regulations) were a higher need than following the constitutional right of Native Hawaiians.

The court preemptively disregarded its own constitutional obligation.

Anonymous said...

Isn't life strange? The guy who legally buys land from the ali'I is subject to native hi gathering rights; but the state who stole the land from ali'I can tell them to buzz off. How bizarre. How bizarre.

KamaKele said...
This comment has been removed by the author.
Anonymous said...

Kamakele says: "There was no opposition by John Murphy because there is no legal opposition to be made. The appeal is simply to appease a very powerful family, the Robinsons, though the appeal is also doomed."

If this is true, then it is evidence of (another) ethical lapse by the prosecutor. She should not be filing "doomed" appeals where "there is no opposition to be made", and "to appease a powerful family" is about the worst justification I have ever heard. Kamakele, you seem to be in the know ----- is this true?

KamaKele said...

I'm not so much "in the know" anymore, but I have been in criminal law on both sides.

Lawyers have to operate a little differently. As a defense attorney for instance, in order to "zealously represent your client" you have to personally attack the prosecutor after just about every trial by alleging prosecutorial misconduct in your appeal, even though you know the prosecutor didn't commit misconduct. If you don't make that allegation, you may be subject to "ineffective assistance of counsel" appeals yourself.

Along those lines, prosecutor offices everywhere, not just here, must maintain the appearance of being tough on crime and doing everything they can to get a conviction, so they appeal cases when they have a 99% chance of failure. All they have to do is file the notice of appeal and then change the headings and case numbers on a pre-made appeal template, change the facts around, and submit it. Takes about an hour. The appeals court will summarily dismiss it without a hearing if there is no true appellate issue. They're just covering their okole's just like everyone else

Anonymous said...

Prosecutors everywhere do not appeal cases when they have a 99% chance of failure. Prosecutors have limited resources and have to be selective in choosing which cases to appeal. Shaylene's appellate deputy quit and being that you're in the know, you would know that she didn't file frivolous appeals. Maybe Shaylene changed that policy.

Anonymous said...

I just watched till the appellate deputy quit. Last straw. She's supporting Kollar now. OPA just wastin so much time and money on unnecessary diversions (pun intended).

Anonymous said...

It is disadvantagous to society when huge tracts of land in a natural state, is held by private landowners. Communist revolutions worldwide between 1940 - 1980 responded to this injustice by eliminating all private property--an action that proved indefensive and ruinous to economic prosperity. Of course private property is needed for homes and businesses. But transferring large tracts of natural resouces that historically were part of "the commons" for private interests? The truth about almost all of Hawaii's large landowners was that their land was acquired in the 1800s by theft and misapproriation. Capalists where masters at separating indigeous people from their land. What is somewhat humorous now is observing how these corporations get indignant when goverment places reasonable restrictions on their use of the land they stole.

KamaKele said...

K not going to argue with you. You believe what you want. I know Tracy, that appellate deputy you reference, pretty well. She quit when Shaylene tried to make her work full-time. Tracy went home every day at lunch and was part of the reason the office needed two law clerks.

Tracy supports Koller now? Huh. I wonder if she gets to get her part-time job back if he wins? Something tells me yes.

Everyone has a reason for supporting someone, and it is usually about "what can I get out of it."

Anonymous said...

I am Tracy. Kamakele - do you really want me to post why I quit OPA? Let's meet to talk about this. Name the time and place. Preferably in Lihue during the week.

Anonymous said...

Just as I suspected: Kamakele does not have the courage to meet with me. He simply wants to demean me in a blog. Pathetic. And NOT pono.
Tracy Murakami

PS For those who know who Kamakele is, please encourage him to meet with me.

KamaKele said...

I have no interest in meeting with Tracy Murakami. I've already heard both sides of the story and know which side I believe.

It's funny how people throw around the word "Pono" whenever it suits them. I seem to be the only person that comes here and even voices the other side of this one-sided blog when it comes to this island's politics. Yet I'm the one that's "NOT PONO" when i read a dozen childish "oh for SHAYME! CALL THE FBI" stupid comments and have the nerve to call these same people on their own bs.

But yea, I'm not living Pono. You wanna talk about Pono? My family was using that word before you implants ever even come here. I like know how you can tell me what is Pono.

Anonymous said...

Your aumakua must be a chicken or a sheep.

Anonymous said...

Bawk bawk bawk or baa baa baa.

Anonymous said...

It would be PONO to take 15 minutes to meet with someone you've just demeaned in a blog, when they are asking to meet with you. What are you afraid of?

Anonymous said...

Kamakele tell us Shay's side because she's not talking without a lawyer. Tell us why the prosecutor is taking the fifth.

KamaKele said...

Hrmm, i'll happily meet with her when my job doesn't depend on my anonymity, k? Till then I frankly can't meet with Tracy Murakammi or anyone else.

KamaKele said...

As for why Shay is taking the fifth...dunno you'll have to ask Shay.

My guess, she's sick of spending hours fielding stupid questions from Joann Yukimura and Tim Bynum, on shall vs may, victim witness advocates, pohaku, or anything else they can come up with.

Probably she'll gladly give both of them the finger for as long as she can. If taking the fifth means she doesn't have to spend anymore entire working days at the county building....

Anonymous said...

Shay hasn't answered questions about Pohaku, like what's the arrangement with Strategic Justice? The other question is why Mel and Kipukai so protective? What are they hiding? It's their job to look into these improprieties, not cover them up.

Anonymous said...

"As for why Shay is taking the fifth . . . dunno you'll have to as Shay."

I thought you already heard both sides of the story. Guess you missed that part. Weren't you interested in why the prosecutor needs a lawyer to answer questions? I thought that it was the criminals that lawyer up, not the prosecutor.

Anonymous said...

Tracy Murakami is self employed and does not have any employees. KamaKele how could your job be at risk by talking to her?

KamaKele said...

Haha, am I interested? no, i'm not. It's really NOT interesting. I'm more interested in mowing the grass in my back yard. In fact the only people that ARE interested are Justin Koller supporters. Everyone else, including myself, has more important things to think about.

KamaKele said...

because if Tracy knew who I was, so would alot of other people, and then my beliefs concerning the politics of Kauai would be known. Sorry, can't take that risk.

Joan Conrow said...

And this is why I allow Anonymous comments. Because a lot of people have thoughts, ideas and opinions, but very few are willing to state them publicly, with their name attached.

Anonymous said...

Now we know: bawk bawk bawk.

Anonymous said...

Shay we already know what you believe and support. You can't meet with a real person because we all know you Shaymeline. That's a slimy shaymel, in case you were wondering.

ha, ha,

Truth and true justice!!!! Thank you Tracy! You are part of our solution, thank you!!!

Anonymous said...

Kama Kele's theme song: Karma Chameleon

"I'm a man without conviction
I'm a man who doesn't know"

Anonymous said...

Kama Kele's aumakua is:

A. A sheep
B. A chicken
C. A jellyfish
or
D. An ostrich

Anonymous said...

If Kamakele is so uninterested in all of this and would rather watch his grass grow, then why is he still posting? And if he wants so badly to be anonymous why does he post with a name?

KamaKele said...

Here Tracy, look up at five perfect examples of Pono. Would you rather I come back with some creative derogatory play on your and Koller's name and speculate on your theme song? Or maybe it would be more mature and "Pono" to play multiple choice on what animal is most applicable to you or Koller? Would you rather have that type of conversation?

Cause that's what I expect when I come here. Which is fine with me, I can always use a digression into my childhood days. Good for unwinding.

Anonymous said...

KKK: I'm the one posting all the creative derogatory stuff about you, not Tracy. You could do the same with Justin and Tracy but you'd have to use your real name. And since you don't have the backbone to talk to her, all I can say is bawk bawk bawk!

Anonymous said...

Tracy and Justin are their real names. In order to be equivalent, you need to use your real name.

Anonymous said...

KamaKele said "But yea, I'm not living Pono. You wanna talk about Pono? My family was using that word before you implants ever even come here. I like know how you can tell me what is Pono."

You are a racist. Provincial and small.

Anonymous said...

KamaKele doesn't care if Shay broke the law just like Mel and Kipukai. Is he one of them?

Anonymous said...

I love the exchanges here.
Anon: Shatlene so bad even Tracy quit.
KamaKele: I know Tracy and she quit over part time/full time issue, only. She loves Shatlene.
Shay: Everyone who left me is dishonest.
Tracy: I didn't quit over PT/FT. I quit cause Shat is a nightmare.
Kama Kele: You suck Tracy - and those anons are obnoxious, and white people ("implants as I call them") suck too.
Conclusion: Kama Kele is dishonest and he falsely represented the reason Tracy left in order to give Shat some props. He then goes racist when he is busted in his lie.
KamaKele - you on the council by any chance?