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?”