Robert Thomas
Robert Thomas

BY ROBERT THOMAS  – The Hawaii Constitution gives Native Hawaiians — those who can trace their ancestry to inhabitants of Hawaii prior to western contact — a privilege to engage in “customary or traditional practices” that, in some cases, immunizes them when others who lack that one drop of Hawaiian blood would be liable. See Haw. Const. art. XII, § 7. For example, in some cases where a native Hawaiian enters land he or she does not have the right to access, the constitutional privilege may excuse liability for civil or criminal trespass. The only limit on the privilege in the text of the constitution is “the right of the State to regulate such rights.”

The constitution also does not define what activites might qualify as “traditional and customary practices,” and the question has vexed Hawaii courts since the Supreme Court first gave teeth to the right in 1982 in Kalipi v. Hawaiian Trust Co., Ltd., 656 P.2d 745 (Haw. 1982). In State v. Hanapi, 970 P.2d 485 (Haw. 1998), the court settled on a three-part test that really didn’t help much, since the second part of the test required that the claimed right must be “constitutionally protected as a customary or traditional native Hawaiian practice,” a tautology that folds back on itself.

In State v. Pratt, No. 27897 (May 11, 2012), the Hawaii Supreme Court delved into the doctrine yet again. Although it did not clarify what activities qualify for the privilege, it did settle one outstanding issue, that should be of interest to landowners, both public and private. Read on.

The case involved a native Hawaiian who was convicted of illegally camping without a permit in a state park on Kauai. He admitted the elements of the crime but claimed that his presence in the park and his activites there were protected under the privilege. The prosecution conceded that his activities qualified as customary or traditional practices, but argued that the State’s “right to regulate” overcame Pratt’s claim of privilege. The trial court concluded that the State’s interest in preserving the park outweighed Pratt’s right to exercise his native rights.

The three-judge court of appeals panel produced three opinions, and affirmed the conviction 2-1. One judge concluded it was the defendant’s burden to show the State’s regulation was not reasonable. Another judge also concluded that a defendant bears the burden, but only of showing that his own conduct was reasonable. The third judge placed the burden on the State to prove the defendant’s conduct resulted in actual harm.

The three-Justice Supreme Court majority adopted none of these approaches, but concluded the analysis must be “case by case,” and a balancing test considering the “totality of the circumstances.” Applying this test, the majority affirmed the conviction because the State’s interest in controlling access to the park outweighed Pratt’s interest in exercising his native rights.

The court may have resolved Pratt’s case, but did it make the doctrine any clearer? After all, what does a “case by case” and “totality of the circumstances” rule mean for future cases, other than there is no rule? As we noted above, however, the Supreme Court’s opinion did clear up one thing. The majority suggested the defendant bears the burden by stating that Pratt did not show that his activities were conducted “within the limit of state law.” Slip op. at 30. Meaning what, exactly? That he should have asked the State whether he could engage in his practices? We’re not sure why Pratt would do that when he claimed his conduct was exempt from even seeking a camping permit. Nonetheless, it does seem that the burden is squarely a defendant’s, and the state’s regulations will be reviewed on a rational basis standard.

Finally, we still do not have a real firm idea of what actions qualify as “traditional and customary practices” since here, the prosecution accepted that Pratt’s activities qualified, and neither the court of appeals nor the Supreme Court delved into that issue. Maybe next time.

State of Hawaii v. Pratt, No. SCWC-27897 (May 11, 2012)

 Ben Lowenthal provides his analysis of the opinions here.



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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.