Friday, December 11, 2015

Musings: Native Rights Upheld

The Hawaii Intermediate Court of Appeals has ruled in favor of kanaka maoli in a landmark case upholding a Kauai man's use of traditional gathering rights.

In a unanimous decision, the court upheld Kauai Circuit Judge Kathleen Watanabe's ruling dismissing charges against Kui Palama, who was arrested in early 2011 for hunting pig on Gay & Robinson land.

Kui was charged with simple trespass and hunting on private property. But his attorney, Tim Tobin, successfully proved that Palama is a descendant of the indigenous peoples who occupied the Islands prior to 1778; the G&R land where he was hunting is mostly undeveloped, and pig hunting is a traditional and customary practice.

All three criteria must be fulfilled in order to meet the standard for exercising traditional rights as protected by the state Constitution and established in the Hawaii Supreme Court’s landmark decision, Nansay Hawaii vs Public Access Shoreline Hawaii (PASH).

Judge Watanabe granted the motion, and the Kauai Prosecutor's office, then under the direction of Shaylene Iseri, appealed the ruling. The appeal was continued under Prosecutor Justin Kollar, and attorney Dan Hempey represented Kui in the appeal.

The ICA found that Watanabe did not err in finding that Kui passed the three-prong test, and that pig hunting is a traditional practice.

As Hempey noted, though the Hawaiian Supreme Court granted traditional Hawaiian practices the broadest of protections, but it seems that county prosecutors are often trying to narrow that protection.

It's been a long legal road for Kui, who was confident of winning the appeal. As I reported in a previous blog post:

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.”

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?”

29 comments:

Anonymous said...

Congratulations to both Kui and Dan Hempey, good job!

Anonymous said...

And to Tim Tobin, who did the heavy lifting in the trial court.

Anonymous said...

Interesting read. The opinion is posted here:
http://www.courts.state.hi.us/docs/opin_ord/ica/2015/December/CAAP-12-0000434mop.pdf

Good to see one for the little guy for a change.

Anonymous said...

And to Judge Watanabe who upheld the law for a Kanak even against the Robinsons. Brave in this new world where billionaires usually rule.

Anonymous said...

The public can listen to the argument in the appeals court. If preservation of Kanaka culture interests you, listen to the hour long hearing here. The judges seemed skeptical of the state from the beginning and the attorney general didn't help much.

http://state.hi.us/jud/oa/15/ICAOA_041715_caap_12_434.mp3

Anonymous said...

Perhaps this is a good thing. The devil is in the details and G&R is always a target.
The flip side to all the kool-aide drinkers regarding this issue is that G&R may be the foremost environmental land holder in the State.
With the exception of the Navy at Niihau and some corn growers, G&R has left their land pretty much untouched. The are not developing.
But, Da Hoos, JoAnn, Mason and former Councilman Furfaro did their doggone best to shut G&R down with the anti-Ag law. If the anti-ag people get their way..... look out, all the big land guys will be forced to do Ag sub-divisons etc. I can just see beautiful homes at A&B's Camp Six, some marvelous Kilauea type Ag buildings at Mahaulepu, Kilohana, etc. Eh Gary, the land is ripe for plucking and all your new friends at Hawaii Life and all your old friends at your former employer Bal Hai are a frothin' at the money trough.
Kauai should thank big land for not plowing ahead with development. Err, just like when Kilauea Sugar and LP went down...now look at the Moloaa, Kilauea etc. If you want an island cut up into thousands of li'l 5 acre Ag properties, keep Da Hoos, JoAnn and Mason in office. They are the bomb. (JoAnn's hubby took mauka Kilauea Tycoon Dyer's land to Ag condos in about 5 minutes)
Big Land will make Billions, legacies will be lost. And Kauai will be LA, there will be no mo' GMO, every one will be skinny and the locals will have a lot of lawns to mow. And all of G&R's birds and plants will be trod over as the rich Hippies invade the interior.
Where are my Birkenstocks?


Anonymous said...

@6:13 Supporting Hawaiian rights is drinking Kool Aide?

Anonymous said...

I thought the Hawaiians raised their pigs. Why did they have to hunt their livestock?

Anonymous said...

What is Lisa Arin's position on this I wonder?

Anonymous said...

The State was worried about their own management of unimproved State lands. I think this case was severely mishandled by the State. The real issue wasn't about trespassing, but land and resource management. How can safety be insured if all these entitled hunters feel they can go anywhere at any time without checking in or know who else is there hunting and shooting. What about ranchers who are concerned that their livestock or even employees will be shot by bozo's who don't know the land and what's going on there. I'm sure that if the Palama's merely coordinated their use of the valley, G&R would make arrangements for their hunting and keep other hunters and cowboys out on that day. One has to wonder about just how pono these hunters are if they aren't decent enough to coordinate with the landowner. Like always, a few self-centered assholes ruin it for everyone. Kui Palama speaks bullshit trying to tug at our hearts that he's only trying to feed his family. This is sport pure and simple and flexing of one's antiquated rights in a truly dangerous manner. It'll be too bad if he gets shot by accident by another hunter. Then, of course, he or his family will sue the landowner for not protecting their sorry asses.

Anonymous said...

He was hunting with a knife, not a gun. Stick to the truth.

Anonymous said...

I personally know Kui Palama and his family.....they truly live off the land. This is a young Hawaiian who cultivates kalo has a mala (garden), fishes and hunts to feed his family. There are many hawaiians and non hawaiians who still hunt, fish, and grow our own food. Traditions that have been passed down to us by our parents and grandparents. 2:06pm You probably wouldn't know this because it sounds like you are not friends with very many people of not only hawaiian decent, but people who have spent generations growing up in Hawaii. This is a way of life that absolutely needs to be protected. There are hunters and fisherman out there who make poor decisions but it shouldn't ruin it for the rest of us. You should keep your mouth shut if you don't personally know the people you are talking about. Mahalo.

Anonymous said...

3:47 PM - A stray bullet from some other hunter doesn't care that you only have a knife.

Anonymous said...

Funny how many assume that the Robinsons or Gay & Robinson are the legal land owners in Hanapepe. if many went and looked at factual evidence in the State of Hawaii archives, Bureau of Conveyances and online at avakonohiki.org or waihona.com you can plainly see the truth...lease of 30 years for the inalienable Crown Lands in the Ahupua'a of Hanapepe from Dec. 27, 1887, lease of 20 years for the ili of Manuahi, Hanapepe from the Lunalio Estate both to Mrs. Sinclair and claims title to the ili of Koula, Hanapepe by Royal Patent 6998 and 1108 upon Land Commission Award 55 "Life Estate" issued to konohiki Paniani upon the application of Mrs. Sinclair "the current occupier of said land." All of the titles lands contained the provision "reserving the rights of native tenants-koe nae na kuleana o na kanaka ma loko." to understand what these rights are read "Kuleana: Genealogy of Native Tenant Rights" By Mark 'Umi Perkins, "ua koe ke kuleana o na kanaka" by Jocelyn B. Garovoy, and "An Introduction to the Hoa'aina and Their Rights" by Davianna Pomaika'i McGregor.
As to Konohiki Paniani's title...he was granted 1/2 ili of Koula in the 1848 Mahele, he applied to purchase the Governments 1/2 ili of Koula and Government 1/3 in his 1/2 in 1850. In 1853 his wife Waialoe Paniani requested to the Min. of Interior "Keoni Ana" that her husband had passed and the sale of 1/2 ili of Koula be cancelled and land revert back to Govt. On April 25, 1853 Privy Council passed Res. 4 "Resolved; That the request of Waialoe Paniani in her letter to the Minister of the Interior of the 16th April inst. That the sale of one half of Koula in Hanapepe, Kauai, to her late husband be declared null & void, and the land revert to government be granted." Later in May 30, 1853 Privy Council passed Res. 2 "Resolved; That the resolution of this council, of April 25, 1853 in relation to the land of Paniani in Koula, Hanapepe, Kauai, be, and the same is hereby annulled. This is how Gay & Robinson claimed to perfect their title in the ili of Koula found in "Ter. v Gay & Robinson, 25 Haw. 651."
So instead of assuming that they are the owners of private property in Hanapepe, why not look at how they consumed lands belonging to the heirs of those granted Land Commission awards. see HRS§172-11 "Land patents on land commission awards; to whom, for whose benefit. Every land patent issued upon an award of the board of commissioners to quiet land titles, shall be in the name of the person to whom the original award was made, even though the person is deceased, or the title to the real estate thereby granted has been alienated; and all land patents so issued shall inure to the benefit of the heirs and assigns of the holder of the original award." [L 1872, c 21, §1; RL 1925, §568; RL 1935, §1587; RL 1945, §4641; RL 1955, §100-11; HRS §172-11]
If Gay & Robinsons Land Titles are clear then they would have the same proprietary interest that the konohiki had...no power to alienate a single right secured by law to makaainana.
Permanent encumbrances in all lands of Hawai'i 1/3 undivided vested rights in the Dominium, native tenants rights(Proprietary interest), and hoa'aina rights(usage rights), as seen in this case.

Anonymous said...

ALL Lands ROBINSON currently claim to own in Hanapepe...

LCA 387 RP 1942 to ABCFM (Mission) - TMK180020020000
AP. 1 Liber 19 PgS. 436-438 Kam IV to Aihoi - TMK210010100000
LCA 11068:1 RP 6932 to Aimoo/Wailele - TMK180040070000
LCA 11068:1,2 to Alaiki/Makua - TMK180040070000
LCA 8077:4 RP 7703 to Hii Kumu Pope - TMK190010080000
LCA 8123:1 RP 4758 to Holeka - TMK190120030000
LCA 5309 RP 5270 to Kaenalii/Kanakamaikai - TMK180030080000
LCA 7928:1,2 RP 7046 to Kahakuhananui - TMK180030030000
LCA 7928:3 RP 7046 to Kahakuhananui - TMK180030270000
LCA 7919 to Kaiahauna - TMK190020050000
LCA 9135:1 to Kalepona - TMK180030050000
LCA 9135:2 to Kalepona - TMK180030280000
LCA MA29 RP 1151 to Kalunu/Kanunu - TMK180020030000
LCA 3654:1 RP 7776 to Kamae - TMK180080210000
LCA 19BMA to Kanehiwa - TMK180040080000
LCA 9142:1 RP 7938 to Kapekue - TMK190120400000
LCA 8020:1 RP 7925 to Kapoi - TMK190120120000
LCA 8020:2 RP 7925 to Kapoi - TMK190020100000
LCA 9185 RP 1150 to Kekaua - TMK180020030000
LCA 9283:2 to Keliinui/Namaielua - TMK190120270000
LCA 9265 RP 7947 to Kipani - TMK180040020000
LCA 9190 RP 4186 to Kupia - TMK190120010000
LCA 9190 RP 4186 to Kupia - TMK190020080000
LCA 9190 RP 4186 to Kupia - TMK190020090000
LCA 9190 RP 4186 to Kupia - TMK190120300000
LCA 10010 RP 7946 to Lopailani - TMK180030030000
LCA 8559B:41 to William Lunalilo - TMK180010010000
LCA 11011b to Makaiku - TMK190010060000
LCA 10274 RP 6933 to Manienie - TMK180040090000
LCA 10069 to Manua - TMK190030080000
LCA 10349 RP 8035 to Nakapa - TMK180030230000
LCA 10526 RP 7987 to Naloheelua - TMK180040080000
LCA 10312:1 RP 6450 to Namaielua - TMK190120120000
LCA 10457 RP 3855 to Namoki - TMK180010020000
LCA 5447:1 RP 5041 to Nuanua - TMK180030060000
LCA 5447:2 RP 5041 to Nuanua - TMK180030290000
LCA 5447:3 RP 5041 to Nuanua - TMK180030120000
LCA 6578:1 to Paele - TMK190030090000
LCA 6578:2 to Paele - TMK190030080000
LCA 7993:1 to Pala - TMK190020170000
LCA 7993:1 to Pala - TMK190020180000
LCA 55MA RP 6998,1108 to Paniani - TMK180020020000
LCA 10678 RP 7726 to Pua - TMK180030140000
LCA 3284:2 RP 7452 to Wahineaea - TMK190010120000
LCA 3284:2 RP 7452 to Wahineaea - TMK190010130000

INFO above found on Kauai County TMK maps of Hanapepe, Reg. Map No.2657, ULUKAU.ORG MAHELE DATABASE, AVAKONOHIKI.ORG, AND WAIHONA.COM and to learn about the above read "The Emperical Writes Back: Re-Examining Hawaiian Dispossession Resulting from the Mahele of 1848" by Donovan C. Preza and MUST WATCH Video Dr. Keanu Sai, lecture on "Kamehameha III and the Transformation of the Land Tenure System." Part 1 and Part 2
http://vimeo.com/10781602 and http://vimeo.com/10797711

Anonymous said...

@ 10:21 PM – If you’re going to google stuff and copy and splice it as a comment, then you should actually read and understand what you’re copying before you do it. Here, I’ll help you.
https://books.google.ca/books?id=r5g0AQAAMAAJ&pg=PA663&lpg=PA663&dq=%22Ter.+v+Gay+%26+Robinson,+25+Haw.+651%22&source=bl&ots=r6MYqTZGYi&sig=MU8FkbqWZFuvdNVFqS-_sUbEqnk&hl=en&sa=X&ved=0ahUKEwiNhNKzxtnJAhUP-mMKHbdlDMcQ6AEIHTAA#v=onepage&q=%22Ter.%20v%20Gay%20%26%20Robinson%2C%2025%20Haw.%20651%22&f=false
Supreme Court of Hawaii - Ter. v Gay & Robinson, 25 Haw. 651.
Opinion of the Court
Page 654 of the document you copied recounts 4 questions the circuit court put forth. These are answered by the Hawaii Supreme Court on page 666. It is questions 3 and 4 that are relevant and support the ownership of Manuahi and Koula by G&R. I’m sorry if all those words confuse you, but you’ve got to read (and understand) the entire opinion.
La Fin
PS – @ 11:27 - You’ve got to take whatever convicted felon David “Keanu” Sai says with a full shaker of salt as he picks and chooses bits of verbiage rather than the whole story so his conclusions are inaccurate as they are based on only partial information and can’t be trusted. That’s why he has never, ever won a lawsuit and why he has personally caused Native Hawaiians to lose their homes in his Perfect Title scams.

Anonymous said...

Mauna Kea and now this.
The courts sending a message to the law enforcement.
Smoke meat for everyone!

Anonymous said...

Or free fish for stolen county gas.

Anonymous said...

10:21 - "heirs and assigns of the holder of the original award." This includes people (anyone) whom the heirs of the original holder sold the land to.

Anonymous said...

@9:44 AM - Supreme Court of Hawaii - Ter. v Gay & Robinson, 25 Haw. 651. Through the legal history of the Kingdom of Hawaii this court lacks jurisdiction upon the case at hand and it was not intended to be looked at based on the courts opinion, but to served as a bases for further research by which one could do a simple title search by examining actual archival documents of both laws, titles, privy council minutes, and get insights from others whom earned their doctoral or master degrees on the unique land tenure system that we all live in today.
It doesn't mean anyone person is absolutely correct or truthful, but would you trust the Robinsons who claim that their Great Grandmother Eliza Sinclair purchased the "whole" Island of Niihau when in fact it was their Uncles James McHutcheson Sinclair and Francis Sinclair, that assumes to purchased the government land of Ni'ihau with the exception of two lands granted to Konohiki Koakanu LCA 20MA RP 5573 and the land of Papapa RP 1615, and the pieces of land that was set apart for church and school lots.
The Land Grant that James and Francis Sinclair received was RP 2944 on Jan 23 1864 for the purpose of raising sheep. And again by law, that is still in effect today, all lands in Hawai'i continue to have permanent encumbrances: 1/3 undivided vested rights in the Dominium, native tenants rights(Proprietary interest), and hoa'aina rights(usage rights), as seen in this case.
Have the Robinsons violated the rights of many kanaka and hawaiian nationals as they deny access to the "Forbidden Island" without permission as self-declared konohiki of Ni'ihau? Since Abrey Robinson closed Ni'ihau (Forbidden Island) during the "Territory of Hawaii" in 1915, and how about not allowing fishing near Ni'ihau and confiscating persons catch...

Anonymous said...

...According to An Act Granting to the people the rights of piscary, now belonging to the government...
"Whereas, The fish belonging to the government are productive of little revenue; and whereas, the piscary rights of the government, as managed by the fishing agents, are a source of trouble and oppression to the people..."
"Sec 2. All fishing grounds appertaining to any government land, or otherwise belonging to the government, excepting only ponds, shall be, and are, hereby, forever, granted to the people for the free and equal use of all persons.."
"Sec 4. No person, living without the kingdom, shall take any fish within the harbors, streams, reefs, or other waters of the same, for the purpose of carrying them for sale or otherwise, to any place without the kingdom..."[SLH 1851]
Followed by,
An Act to Protect the people in certain fishing grounds...
"Whereas, certain persons to whom Government lands have been sold, have assumed exclusive rights of fishing in the sea adjacent to said land, without the justification of law; and whereas the people in numerous instances, have been unjustly deprived of their rights to fish on the grounds long since made free to them by law"...
"Sec 1. That no person who has bought, or who may hereafter buy, any Government land, or obtain land by lease or other title form any party, has or shall have any greater right than any other person, resident in this kingdom over any fishing ground not included in his title although adjacent to said land. The fish in said fishing ground shall belong to all persons alike, and may be taken at anytime, subject only to the taboos of the minister of the interior." [SLH 1851]
As a family who continues to claim to preserve the native culture, wildlife, and kanaka, the Robinsons continue to do some damage by diverting waters in major watersheds, trash lands they occupy with metals and chemicals from sugar and now the GMO industry. The practice of mass eradication where wild game is brutally shot multiply times and are left in its place to rot. Not to mention, the little-publicized relationship with the US military, that has conduct special-operations, research and development on top-secret military defense systems, along with the Navy's radar-surveillance installation on Paniau Ridge on the island that said income from military contracting activities provides for steady revenue to support the maintenance and residents of the Ni'ihau.
The Robinsons may be great people to some, but not to many who are able look beyond the propaganda...there's always more to a story...it is up to you to seek the truth...with no disrespect to anyone...Aloha

Anonymous said...

If there are descendants of Native Hawaiians who did gathering and hunting on Niihau prior to the 1892 date - it looks like they would have the right hunt/gather on Niihau today, regardless of what the Robinson's say.

Anonymous said...

They do 11:43 and the Robinsons have always supported it. But what few know is that in policing the Kauai lands, the Robinsons do not attempt to exclude those with gathering rights but instead attempt to regulate entry for safety reasons. After all it is a working ranch. Read the court's recent 25 page opinion and you will see how the State totally messed up the case in the first trial so that issues of safety, amongst others, could not be brought up in the appeal.

http://www.scribd.com/doc/293178018/State-v-Palama-No-CAAP-12-0000434-Haw-App-Dec-11-2015-mem#scribd

Anonymous said...

@6:16 PM said "but would you trust the Robinsons who claim that their Great Grandmother Eliza Sinclair purchased the "whole" Island of Niihau when in fact it was their Uncles James McHutcheson Sinclair and Francis Sinclair"

The Robinson family has never stated that. It is uninformed journalists who have said that for decades. Obviously, you swallowed that up big time. There's so much bullshit on the web and too many folks like some here treat it like truth. If the shoe fits....

Anonymous said...

Thanks @2:45.
That explains some things.
I read the opinion. The State sure did mess it up end the defense took them to school.
I read the opinion as saying also that pig hunting with knife is and will stay protected.

Anonymous said...

Anonymous said... I thought the Hawaiians raised their pigs. Why did they have to hunt their livestock? December 12, 2015 at 10:34 AM

Kanaka Maoli had no way to contain any livestock. Every heavy storm would set them free from their pen's. In the wild they increased in numbers. Hawaiians were hunter/gatherers not farmers.

Anonymous said...

Hawaiians most certainly were farmers! They cultivated every square inch of all the islands in taro, sweet potatoes and banana and built massive irrigation systems to support their fields. They could easily contain livestock with stone walls and wooden pens.

Anonymous said...

@December 15, 2015 at 5:03 PM
If the Robinson family has never stated that..."their Great Grandmother Eliza Sinclair purchased the whole Island of Niihau."
Then you better let them know who ever wrote up their Niihau ranch brochure that they spreading "bullshit"...may I quote from their brochure "Our Story...Niihau ranch is located on the privately owned island of Niihau, 17 miles west of Kauai and is the westernmost ranch in the United States. The 72 square mile island was purchased by Eliza Sinclair from King Kamehameha IV in 1864. Niihau has been passed down through five generations to its present owners, Keith & Bruce Robinson.

Link to the brochure see it for yourself:
http://www.makawelimeatcompany.com/wp-content/uploads/2015/03/NR_brochure_email_v1.pdf

Vei Kuliha'apai said...

Right on Kui ✊🏽