All five Hawaii Supreme Court justices grilled lawyers yesterday in a case that could help clarify to what extent a native Hawaiian’s practice of traditional cultural and religious activities can trump a criminal prosecution.
The questioning reflected the importance and complexity of the case, which has already splintered a panel of the state appeals court. By a 2-1 vote last year, the panel upheld the conviction of Lloyd Pratt for residing in a restricted area of Kalalau Valley in Na Pali State Park on Kauai.
Pratt, 58, maintained he was a kahu, or Hawaiian religious practitioner, and a caretaker for the undeveloped area, which includes ancient Hawaiian burial sites.
He was found guilty in 2006 and ordered to perform 60 hours of community service.
A key issue will be whether the courts must not only consider whether a native Hawaiian is engaged in ancient Hawaiian practices, but also whether such activity must be balanced with the state’s interest protected by the law.
Kauai Deputy Prosecutor Tracy Murakami told the justices that part of the problem is that the record before the District Court wasn’t “fleshed out sufficiently” on establishing the area in which Pratt was living, the restrictions or his activities.
Associate Justice Simeon Acoba said the state has to prove its case, and if the record isn’t clear, “then you lose, don’t you?”
“Correct,” Murakami said.
But when asked whether she was conceding the case, she argued the prosecution is advocating “the right of the state to impose reasonable regulations” preserving and protecting the park.
She said she assumes the court will issue a ruling providing guidance for “the people and the future.”
The high court did not say when it will render a decision.
“I think it went well,” Pratt said after the hearing.
Pratt, who no longer lives in the valley, flew to Honolulu for the hearing. He now lives in Anahola, Kauai.
“We should have access to our churches (sacred sites),” he said. “It’s our responsibility to care for them.”
Chief Justice Mark Recktenwald and other justices also questioned Pratt’s lawyer, Daniel Hempey, who maintained that Pratt’s traditional cultural and religious activities were a defense to the charge.
A decision would follow other high court rulings on the state constitutional right of native Hawaiians to go onto lands owed by others to engage in ancient customary and traditional practices. The right was first recognized in the 1982 landmark opinion written by the late Chief Justice William Richardson.
The decision was considered part of the Richardson court’s judicial activism, which changed the legal landscape of the islands, but it also drew criticism for chiseling at the concept that owners have exclusive rights to their property.
In a 1998 decision the high court outlined the standards by which a native Hawaiian in a trespassing case could assert a defense based on cultural practices.
The court held that defendants must be native Hawaiians, must have been engaged in customary or traditional practices and that the practice was conducted on undeveloped or less than fully developed land.
The Kauai prosecutors stipulated and Kauai District Judge Frank Rothschild found that Pratt met the standard, but Rothschild also found that in balancing the rights of Pratt and the state, the state established a valid interest in protecting the area.
Pratt’s appeal resulted in each of the three judges on panel of the Intermediate Court of Appeals rendering opinions — a rarity.
Appeals Judge Katherine Leonard, former Gov. Linda Lingle’s chief justice nominee who was rejected by the state Senate, wrote the lead 66-page opinion upholding the conviction.
Despite the stipulation by the prosecutors and the judge’s finding, Leonard found Pratt did not meet the standard. She said there was no evidence to show ancient Hawaiians who lived elsewhere on Kauai “customarily and traditionally conducted such activities” without permission in the valley.
