State v. Pratt

• Decision Date: 11 May 2012
• Docket Number: No. SCWC–27897.,SCWC–27897.
• Citation: 277 P.3d 300,127 Hawai'i 206
• Parties: STATE of Hawai‘i, Respondent/Plaintiff–Appellee, v. Lloyd PRATT, Petitioner/Defendant–Appellant.
• Court: Hawaii Supreme Court

127 Hawai'i 206

277 P.3d 300

STATE of Hawai‘i, Respondent/Plaintiff–Appellee,

v.Lloyd PRATT, Petitioner/Defendant–Appellant.

No. SCWC–27897.

Supreme Court of Hawai‘i.

May 11, 2012.

Daniel G. Hempey, for petitioner/defendant-appellant.

Tracy Murakami and Jake Delaplane, Deputy Prosecuting Attorneys, for respondent/plaintiff-appellee.

David Kimo Frankel and Ashley K. Obrey of the Native Hawaiian Legal Corporation, for amicus curiae Native Hawaiian Legal Corporation.

RECKTENWALD, C.J., NAKAYAMA, and DUFFY, JJ., with ACOBA, J., concurring and dissenting, with whom McKENNA, J., joins.

Opinion of the Court by NAKAYAMA, J.

Article XII, § 7 of the Hawai‘i Constitution provides:

The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.

Haw. Const. art. XII, § 7. Over the course of several cases, this court has interpreted this provision, along with statutory sources of protections, in order to define the scope of the legal privilege for native Hawaiians to engage in customary or traditional native Hawaiian practices when such practices conflict with State statutes or regulations. The court has examined the privilege in the civil context, considering the right to enter private land to gather traditional plants ( Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d 745 (1982) ), the right to contest the State's sale of "ceded" lands ( Pele Defense Fund v. Paty ("PDF "), 73 Haw. 578, 837 P.2d 1247 (1992) ), and the right to participate in county-level Planning Commission hearings regarding land use ( Public Access Shoreline Hawaii v. Hawai‘i County Planning Comm'n ("PASH "), 79 Hawai‘i 425, 903 P.2d 1246 (1995) ). The court has also examined this privilege in the criminal context. In our most recent case on this topic, State v. Hanapi, 89 Hawai‘i 177, 970 P.2d 485 (1998), we held that a criminal defendant asserting this privilege as a defense to criminal charges must satisfy, "at minimum", the following three-prong test: (1) the defendant must be "native Hawaiian" according to the criteria established in PASH¹ , (2) the claimed right must be "constitutionally protected as a customary or traditional native Hawaiian practice," and (3) the conduct must occur on undeveloped property. Id. at 185–86, 970 P.2d at 493–94. In that case, we held that Hanapi had not satisfied this test, so the court's analysis stopped there. Id. at 187, 970 P.2d at 495.

Today's case picks up where Hanapi left off, and requires the court to articulate the analysis the courts must undertake when a defendant has made the "minimum" showing from Hanapi. The defendant in this case, Lloyd Pratt, received three citations² when he was found residing in a closed area of Nâ Pali State Park on the island of Kaua‘i. Pratt filed a motion to dismiss the charges, asserting as a defense that his activities were constitutionally-protected native Hawaiian practices, and citing Hanapi. The District Court of the Fifth Circuit ("trial court") denied his motion³ , held trial, and subsequently found Pratt guilty on all three charges. Pratt appealed to the Intermediate Court of Appeals ("ICA"); the ICA affirmed Pratt's conviction. State v. Pratt, 124 Hawai‘i 329, 243 P.3d 289 (App.2010). Pratt applied for a writ of certiorari, and we granted his application to clarify the law surrounding the assertion of native Hawaiian rights as a defense in criminal cases.⁴

I. BACKGROUND

Pratt was cited for violating Hawai‘i Administrative Rules ("HAR") § 13–146–4 on July 14, July 28, and September 28 of 2004, when he was found in a closed area of the Kalalau Valley in the Nâ Pali Coast State Wilderness Park on Kaua‘i. HAR § 13–146–4, Closing of Areas, states in pertinent part:

The board [of land and natural resources] or its authorized representative may establish a reasonable schedule of visiting hours for all or portions of the premises and close or restrict the public use of all or any portion thereof, when necessary for the protection of the area or the safety and welfare of persons or property, by the posting of appropriate signs indicating the extent and scope of closure. All persons shall observe and abide by the officially posted signs designating closed areas and visiting hours.

HAR § 13–146–4(a) (1999).

A. Trial Proceedings

On September 21, 2005, Pratt filed a motion to dismiss arguing that the activity for which he received his citations is constitutionally privileged as a native Hawaiian practice.⁵ At a hearing on Pratt's motion, the defense presented two witnesses: Pratt, and Dr. Davianna Pomaika‘i McGregor, a professor of Ethnic Studies at the University of Hawai‘i, Mânoa. The prosecution presented one witness: Wayne Souza, the Parks District Superintendent for Kaua‘i for the Department of Land and Natural Resources.

Pratt testified that he was born in Waimea to parents from O‘ahu and the island of Hawai‘i. He presented a family tree and testified that he is 75% native Hawaiian. Pratt named Kupihea as a family line, though that name does not appear on his family tree. The defense then presented its Exhibit 4, a book published by the State of Hawai‘i called "An Archaeological Reconnaissance Survey: Na Pali Coast State Park, Island of Kaua‘i." The book lists a land grant sold to the Kupihea family for part of the ahupua‘a for the Kalalau Valley. Pratt testified that this is his family's land, and that this is where he spends time in the Park.

Pratt learned huna, which he described as a native Hawaiian "spiritual living style" from two elders. Pratt is a kahu, which he translated as a minister, healer, or medicine man. In addition to healing people, Pratt described his practice of healing land:

It's actually putting back into order again. But it was there by my ancestors because it has mana⁶ in it. It's to clean up the rubbish that is in there, meaning it broke up the mana that is on the heiaus⁷ , and especially because my ancestors are all buried on it. They're the caretakers to it.

Pratt testified that he has practiced such healing in the Kalalau Valley approximately each month for over thirty years, and that he is responsible for the Kalalau Valley because his ancestors are buried there.

Pratt said that he takes offense when people say he "camps" in Kalalau Valley because he actually lives there. Pratt testified that he has to spend the night in the valley to fulfill his responsibilities because hiking in to the valley takes eight to ten hours, and he needs two days to recuperate from the difficult hike. The defense offered a photograph as its Exhibit 2, which shows the area where Pratt lived. Pratt explained that he cleared the area in the picture of trash, brush, and overgrown java plum trees, an invasive species that prevents native plants from growing. He planted hasu, watercress, bananas, and twelve coconut trees. Exhibit 2 shows several tarps, which Pratt said covered his living area; it also shows a green hose, which Pratt used to water his plants. Pratt said that he knew of a government program whereby a private citizen can work with the DLNR to take care of the parks; he unsuccessfully applied to work with this program in Kalalau Valley in the early 1990s.

Dr. Davianna Pomaika‘i McGregor is a tenured professor at the University of Hawai‘i where she teaches classes on Hawaiians, land tenure use in Hawai‘i, race relations, and economic change in Hawaii's people. She has taught the course on Hawaiians since 1974. Dr. McGregor testified as an expert in the area of customary and traditional native Hawaiian practices, as well as the source of protection of native Hawaiian rights.

Through her research, Dr. McGregor has developed a list of the following six elements essential to traditional and customary native Hawaiian practices: (1) the purpose is to fulfill a responsibility related to subsistence, religious, or cultural needs of the practitioner's family; (2) the practitioner learned the practice from an elder; (3) the practitioner is connected to the location of practice, either through a family tradition or because that was the location of the practitioner's education; (4) the practitioner has taken responsibility for the care of the location; (5) the practice is not for a commercial purpose; and (6) the practice is consistent with custom. In preparation for her testimony, Dr. McGregor interviewed Pratt and determined that his daytime activities in Kalalau Valley meet these requirements of a traditional and customary practice. She testified that Pratt's activities are subsistence-related because he planted food plants, that they are religious because he performs ceremonies on the heiau, and that they are cultural because he learned them from the previous generations. Based on her interview with Pratt, Dr. McGregor believed that Pratt's activities satisfied every element of her test: Pratt learned the practices from elders, his ancestors lived in Kalalau Valley, he took responsibility for the Valley, his purpose was not commercial, and his practices were consistent with custom. Dr. McGregor further opined that Pratt's residence in the valley is a traditional practice because it was necessary to fulfill his responsibilities to the land. McGregor testified that she believed these practices to be protected by Hawai‘i law.

Mr. Wayne Souza, the Parks District Superintendent for Kaua‘i for the Department of Land and Natural Resources ("DLNR"), testified for the prosecution. He stated that the purpose of the park regulations is to limit the number of people permitted in the park for health and safety reasons, and to protect vulnerable park resources. Souza testified that controlling the number of visitors is necessary because the self-composting toilets fail when too many people visit. The regulations also limit the number of p...