State v. Pratt
| Decision Date | 18 November 2010 |
| Docket Number | Nos. 27897, 27898, 27899.,s. 27897, 27898, 27899. |
| Citation | 243 P.3d 289,124 Hawai'i 329 |
| Parties | STATE of Hawai'i, Plaintiff-Appellee, v. Lloyd PRATT, Defendant-Appellant. |
| Court | Hawaii Court of Appeals |
Daniel G. Hempey (Elif Z. Yarnall with him on the brief), for Defendant-Appellant.
Tracy Murakami, Deputy Prosecuting Attorney (Craig A. De Costa, Prosecuting Attorney, with her on the brief), for Plaintiff-Appellee.
In this case, Defendant-Appellant Lloyd Pratt (Pratt) argues that as a native Hawaiian he has a constitutionally protected right to, inter alia, take up residence in a State wilderness park in Kalalau Valley on the Island of Kaua'i as part of and in order to facilitate his exercise of customary and traditional native Hawaiian practices and to act as a "hoa'aina" or caretaker of the land and restorer of ancient Hawaiian sites. Based on this assertion (and other arguments discussed herein), Pratt contends that this court must reverse three judgments entered on June 16, 2006 (Judgments), in the District Court of the Fifth Circuit (District Court),1 on Pratt's convictions for violating restrictions on camping in closed areas of Kalalau State Park pursuant to Hawaii Administrative Rules (HAR) § 13-146-4 (1990).
For the reasons discussed below, we reject Pratt's arguments and therefore affirm his convictions.
Pratt was charged with three violations of HAR § 13-146-4, which provides, in relevant part:
Pratt was cited on three separate occasions for "camping" in a closed area in violation of HAR § 13-146-4, when he was found residing in a closed area of Kalalau State Park.
On August 13, 2004, Pratt filed pro se a "Constructive Notice and Demand" requesting that two of the citations against him be dismissed 2 based on what appears to be assertions that: (1) Kalalau Valley is a "U.S. Military Occupied Region" within the "Country and the Islands of Hawai'i;" (2) the Ambassador of the Country of Hawai'i, L.K. Kupihea, bequeathed the title of "Resident Kahu" over Kalalau Valley to Pratt; (3) L.K. Kupihea declared Pratt to be the "Allodial land steward" under certain purported United Nations resolutions; and (4) L.K. Kupihea declared and permitted Pratt "Permanent Structural Building Rights" in Kalalau Valley.
The State filed a memorandum in opposition to Pratt's August 13, 2004 motion to dismiss, essentially arguing that the Country of Hawai'i does not exist and that the District Court had proper jurisdiction in the case. Pratt's August 13, 2004 motion to dismiss was denied, and the case was set for a consolidated trial on all three citations.
On January 19, 2005, Pratt filed pro se a second motion to dismiss,3 which asserted that the charges against him violated his rights under the "First Amendment to the United States Constitution to engage in traditional and customary practices (religion)," article XII, § 7 of the Hawai'i Constitution, and HRS §§ 7-1 and 1-1. Pratt again asserted that he was a native Hawaiian "residing" in Kalalau Valley "to clean, clear, repair, build, and plant upon the undeveloped land that is a traditional cultural property to use for ceremonial purposes that are rooted in Hawaiian tradition and custom." With the second motion, Pratt filed legal memoranda citing, inter alia, the Hawai'i Supreme Court's Kalipi, PDF v. Paty, PASH, and Hanapi decisions cited and discussed herein.
[243 P.3d 292, 124 Hawai'i 332]
Prior to the hearing on Pratt's second motion to dismiss and consolidated trial, Pratt filed a motion for appointment of new counsel, alleging that the public defender refused to present his native Hawaiian rights defense. Pratt's motion was granted and private counsel was appointed. Through counsel, Pratt filed a request to incur expenses for expert witnesses, which was granted in part, allowing Pratt to incur certain expenses related to the testimony of Davianna McGregor, Ph.D., a well-respected Professor of Ethnic and Hawaiian Studies at the University of Hawai'i, Manoa (Dr. McGregor).
After new defense counsel was appointed, on September 21, 2005, Pratt filed (through counsel) a third motion to dismiss.4 The third motion to dismiss argued that as a native Hawaiian, a kahu or religious practitioner who is licensed in the State of Hawai'i to perform marriages, and in his role as a hoa'aina or caretaker of land, as part of his traditional practice, Pratt travels to Kalalau Valley to tend the heiau there, to perform cultural ceremonies, to clear and repair the ancient terraces, and to replant native flora species. An evidentiary hearing was held and the issues were extensively briefed by both Pratt and the State, before and after the hearing, which was held on November 4, 2005. On March 10, 2006, the District Court entered a Decision & Order on Defendant's Motion to Dismiss, denying Pratt's motion to dismiss.5 On April 12, 2006, the District Court held a trial on stipulated facts (i.e., facts which were agreed to by the parties), found Pratt to be guilty of the charges, sentenced Pratt to 20 hours of community service for each offense (stayed pending appeal) and entered judgment.6 Pratt timely filed a notice of appeal from the judgment. On May 15, 2006, the District Court entered Findings of Fact & Conclusions of Law.
As noted above, in his motion to dismiss, Pratt argued that his conduct constituted the exercise of native Hawaiian rights protected under the Hawai'i Constitution. As discussed further below, whether Pratt's conduct was constitutionally protected is purely a legal issue for determination by the courts. However, as discussed more fully below, Pratt had the burden to demonstrate that his conduct fell within the scope of the constitutional protection. To meet this burden, Pratt had to bring forward sufficient evidence to satisfy, at a minimum, three legal criteria: (1) that he was a native Hawaiian; (2) that his claimed right is constitutionally protected as a customary or traditional native Hawaiian practice as codified-but not necessarily enumerated-in article XII, § 7 of the Hawai'i Constitution, HRS §§ 1-1 and/or HRS § 7-1; and (3) that the exercise of the right occurred on undeveloped or less than fully developed property. Thus, it is helpful to consider the evidence, to the extent practicable, in the framework of these criteria.
Pratt testified that he was born in Waimea town on the island of Kaua'i. His father was from Oahu and his mother was from the Big Island. The evidence before the District Court included a genealogy reviewed and certified by the Department of Hawaiian
[124 Hawai'i 333, 243 P.3d 293]
Home Lands, which identified Pratt as 75% Hawaiian.
The genealogy identified Pratt's mother, Myrtle L. Kaapana, as well as his maternal grandparents David Kaapana and Caroline Kahananui, as 100% Hawaiian. No great-grandparents or great-great grandparents were indicated on his maternal side.
The genealogy did not specify a percentage of Hawaiian blood for Pratt's father, Merlyn Pratt, but identified each of his paternal grandparents, Edward K. Pratt and Rose L. Larsen, as 50% Hawaiian. Edward K. Pratt's parents are identified as Thomas Pratt, no blood quantum specified, and what appears to be Nahili, M., 100% Hawaiian. Rose L. Larsen's parents are identified as Charles N. Larsen and what appears to be Hattie Puneamina, with no blood quantum specified for either one. No further ancestry was indicated.
Pratt was asked whether any of the people identified in the genealogy were buried in Kalalau Valley. He answered: "No, because part of my family is actually from the Big Island, from Ka'u, and my dad was fully from Oahu." Pratt maintained, however, that his "ancestors" are buried in Kalalau Valley. Pratt was asked further questions about his alleged ancestral connections to Kalalau Valley:
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