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Editors --- "State of Hawai'i v Hanapi - Case Summary" [1999] AUIndigLawRpr 45; (1999) 4(4) Australian Indigenous Law Reporter 69

State of Hawai’i v Hanapi

Supreme Court of Hawai'i (Moon CJ, Klein, Levinson, Nakayama and Ramil JJ)

20 November 1998

Constitutional law - native Hawaiian rights - failed to show conduct constituted protected constitutional activity - criminal trespass conviction affirmed

Facts:

Alapai Hanapi, a native Hawaiian, was arrested for trespassing on the oceanfront land of his neighbour (a well-known trial lawyer in Hawaii). The land is improved with a single-family house. The neighbour was engaged in removing fill from the shore and water, illegally deposited without required permits, apparently to develop a boat landing. Hanapi entered the neighbour's property without permission to monitor the 'restoration' of the beach and wetland, claiming he was exercising native Hawaiian rights. Hanapi had made the original complaint, partly on the basis that the fill was adversely affecting native fishponds adjoining his property, at which he and his family claimed to practice traditional religious, gathering and sustenance activities. When Hanapi refused to leave, the foreman supervising the project called the police, and Hanapi was arrested for trespassing. He was convicted after trial at which he represented himself.

Held:

In sustaining Hanapi's conviction, the Court began by observing that one limitation on private property 'would be that constitutionally protected native Hawaiian rights, reasonably exercised, qualify as a privilege for purposes of enforcing criminal trespass statutes.' However, the Court held that Hanapi had failed to establish that his claimed native Hawaiian right was a customary and traditional practice as required. The Court set out three factors that Hanapi and others claiming such rights must show:

(1) qualify as a native Hawaiian within the PASH guidelines^[1] (descendants of native Hawaiians who inhabited the islands prior to 1778);

(2) establish that his or her claimed right is constitutionally protected as a customary or traditional native Hawaiian practice (need not be enumerated in statute or constitution, however);

(3) exercise of the right occurred on undeveloped or less than fully developed property (not further defined in PASH).

Applying these factors to Hanapi, the Court held that if property is zoned and used for residential purposes with existing dwellings, improvements and infrastructure, it is 'always inconsistent' to permit the practice of traditional and customary native Hawaiian rights on such property. This represents a retreat from earlier language in PASH. In a footnote, the Court noted 'there may be other examples of fully developed property as well where the existing uses of the property may be inconsistent with the exercise of protected native Hawaiian rights.'

The Court based its decision not on the above holding, however, but rather on the inadequacy of Hanapi's 'foundation in the record connecting the claimed right to a firmly rooted traditional or customary native Hawaiian practice. Here, Hanapi did not offer any explanation of the history or origin of the claimed right.' Noting that there was sufficient evidence in the record to support Hanapi's conviction for criminal trespass and in the absence of a native Hawaiian rights defense, the court affirmed the judgment below finding Hanapi guilty.^[2]

Klein J:

Defendant-appellant Alapai Hanapi appeals from his conviction of and sentence for criminal trespass in the second degree, in violation of Hawai'i Revised Statutes (HRS) § 708-814(1)(a) (1993).^[3] On appeal, Hanapi contends that his conviction should be reversed because: (1) the district court committed reversible error when it excluded relevant evidence and testimony in support of his constitutionally protected native Hawaiian rights; and (2) there was insufficient evidence to convict him because the prosecution failed to negative his native Hawaiian rights claim. Because Hanapi failed to show that his conduct constituted protected constitutional activity, we affirm his conviction of and sentence for criminal trespass in the second degree.

...

B. Hanapi Failed To Establish That His Claimed Native Hawaiian Right Was a Customary and Traditional Practice, and There Was Sufficient Evidence in the Record To Sustain His Conviction.

Hanapi's second point of error asserts that there was insufficient evidence to support a conclusion that he knowingly entered or remained unlawfully on Galiher's property in violation of HRS § 708-814(1)(a). In particular, Hanapi contends that he presented credible evidence establishing that he was exercising a constitutionally protected native Hawaiian right at the time of his arrest, and 'the trial court was compelled as a matter of law to acquit [him].'

In order for a defendant to establish that his or her conduct is constitutionally protected as a native Hawaiian right, he or she must show, at minimum, the following three factors. First, he or she must qualify as a 'native Hawaiian' within the guidelines set out in PASH. PASH acknowledged that the terms 'native,' 'Hawaiian,' or 'native Hawaiian' are not defined in our statutes, or suggested in legislative history. PASH, 79 Hawai'i at 449, 903 P2d at 1270. PASH further declined to endorse a fifty percent blood quantum requirement as urged by the plaintiffs. Id at 448, 903 P2d at 1269. Instead, PASH stated that 'those persons who are 'descendants of native Hawaiians who inhabited the islands prior to 1778,' and who assert otherwise valid customary and traditional Hawaiian rights are entitled to [constitutional] protection regardless of their blood quantum.' Id at 449, 903 P2d at 1270 (quoting Haw. Const. art. XII, § 7) (emphasis added)).^[4]

Second, once a defendant qualifies as a native Hawaiian, he or she must then establish that his or her claimed right is constitutionally protected as a customary or traditional native Hawaiian practice. Some customary and traditional native Hawaiian rights are codified either in art. XII, section 7 of the Hawai'i Constitution or in HRS §§ 1-1 and 7-1 (1993).^[5] The fact that the claimed right is not specifically enumerated in the Constitution or statutes, does not preclude further inquiry concerning other traditional and customary practices that have existed. Id at 438, 903 P2d at 1259.

Finally, a defendant claiming his or her conduct is constitutionally protected must also prove that the exercise of the right occurred on undeveloped or 'less than fully developed property.' Id at 450, 903 P2d at 1271. In PASH, we reaffirmed the Kalipi court's nonstatutory 'undeveloped land' requirement. Id We noted that 'the Kalipi court justified the imposition of ... [such a requirement] by suggesting that the exercise of traditional gathering rights on fully developed property 'would conflict with our understanding of the traditional Hawaiian way of life in which cooperation and non-interference with the wellbeing of other residents were integral parts of the culture.' ' Id (quoting Kalipi 66 Haw. at 9, 656 P2d at 750 (emphasis in original)). We also acknowledged that '[d]epending on the circumstances of each case, once land has reached the point of 'full development' it may be inconsistent to allow or enforce the practice of traditional Hawaiian gathering rights on such property.' Id (emphasis added). Our intention in PASH was to examine the degree of development of the property, including its current uses, to determine whether the exercise of constitutionally protected native Hawaiian rights on the site would be inconsistent with modern reality. To clarify PASH, we hold that if property is deemed 'fully developed,' i.e., lands zoned and used for residential purposes with existing dwellings, improvements, and infrastructure,^[6] it is always 'inconsistent' to permit the practice of traditional and customary native Hawaiian rights on such property. In accordance with PASH, however, we reserve the question as to the status of native Hawaiian rights on property that is 'less than fully developed.' Id at 450, 903 P2d 1246, 903 P2d at 1271.

In this case, it is uncontroverted that Hanapi is a 'descendant of native Hawaiians who inhabited the islands prior to 1778.' Thus, the primary issue is whether Hanapi proved that his conduct, at the time of his arrest, represented the exercise of a traditional or customary native Hawaiian right deserving of constitutional protection.^[7]

At trial, Hanapi adduced no evidence establishing 'stewardship' or 'restoration and healing of lands' as an ancient traditional or customary native Hawaiian practice. Instead, Hanapi reiterated his responsibility and sense of obligation to the land, as a native Hawaiian tenant, to justify his privileged access to Galiher's property. This evidence assumed, rather than established, the existence of a protected customary right. See PASH, 79 Hawai'i at 449, 903 P2d at 1270 (specifying that, ' "usage must be based on actual practice" and not assumptions or conjecture') (quoting State v Zimring 58 Haw. 106, 117, 566 P2d 725, 733 (1977)).

To establish the existence of a traditional or customary native Hawaiian practice, we hold that there must be an adequate foundation^[8] in the record connecting the claimed right to a firmly rooted traditional or customary native Hawaiian practice. Here, Hanapi did not offer any explanation of the history or origin of the claimed right. Nor was there a description of the 'ceremonies' involved in the healing process. Without this foundation, the district court properly rejected, albeit inartfully, Hanapi's claim of constitutional privilege.

Inasmuch as Hanapi failed to adduce sufficient evidence to support his claim of constitutional privilege, we must next decide whether substantial evidence existed in the record to support Hanapi's conviction of criminal trespass in the second degree.

As noted earlier, HRS § 708-814(1) states that 'a person commits the offense of criminal trespass in the second degree if ... [t]he person knowingly enters or remains unlawfully in or upon premises which are enclosed in a manner designed to exclude intruders or are fenced[.]' The facts in this case reveal that: (1) Galiher's property was fenced in a manner to exclude intruders; (2) Hanapi knowingly entered Galiher's property on the date of his arrest; and (3) when Galiher's foreman, Demello, ordered Hanapi off the property, he refused to leave. Based on these facts, the judge, as the trier of fact, had sufficient evidence to conclude that Hanapi was unlawfully on Galiher's property, in violation of HRS§ 708-814(1).

Counsel for the defendant-appellant: Brian K Nakamura

Counsel for the plaintiff-appellee: Moana m Lutely, Deputy Prosecuting Attorney

^[1] Public Access Shoreline Hawaii and Angel Pilagro v Hawaii County Planning Commission and Nansay 79 Hawai`i 425, 903 P2d 1246 (1995). See also (1998) 4(15) ILB 19.

^[2] The full text of the case can be found at http://www.hawaii.gov/jud/index.html.

^[3] HRS § 708-814 states in relevant part:

Criminal trespass in the second degree.

(1) A person commits the offense of criminal trespass in the second degree if:

(a) The person knowingly enters or remains unlawfully in or upon premises which are enclosed in a manner designed to exclude intruders or are fenced[.]

...

(2) Criminal trespass in the second degree is a petty misdemeanor.

^[4] In PASH, we also reserved the right to comment on the questions of (1) 'whether descendants of citizens of the Kingdom of Hawai'i who did not inhabit the islands prior to 1778 may also assert customary and traditional rights[;]' and (2) whether 'non-Hawaiian' members of an 'ohana' may legitimately claim native Hawaiian rights. Id at 449 n. 41, 903 P2d at 1207 n. 41. Here, because Hanapi represented that he was a native Hawaiian ahupua'a tenant, we do not reach the issues left open in footnote 41.

^[5] HRS § 1-1 states:

The common law of England as ascertained by English and American decisions, is declared to be the common law of the State of Hawai'i in all cases, except as otherwise provided by the Constitution or laws of the United States, or by the laws of the State, or fixed by Hawaiian judicial precedent, or established by Hawaiian usage; provided that no person shall be subject to criminal proceedings except as provided by the written laws of the United States of the State. (Emphasis added).

HRS § 7-1 states:

Where landlords have obtained, or may hereafter obtain, allodial titles to their lands, the people on each of their lands shall not be deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from the land on which they live, for their own private use, but they shall not have the right to take such articles to sell for profit. The people shall also have the right to drinking water, and roads shall be free to all on all lands granted in fee simple; provided that this shall not be applicable to well and watercourses, which individuals have made for their own use.

Together, HRS §§ 1-1 and 7-1 represents the codification of traditional and customary native Hawaiian rights which provide the basis for a claim of a constitutionally protected native Hawaiian right.

^[6] We cite property used for residential purposes as an example of 'fully developed' property. There may be other examples of 'fully developed' property as well where the existing uses of the property may be inconsistent with the exercise of protected native Hawaiian rights.

^[7] Despite Hanapi's uncontested testimony that Galiher's property was undeveloped, we need not discuss the degree of development on Galiher's property because the dispositive issue in the instant case is based on the constitutionality of Hanapi's claimed native Hawaiian right.

^[8] A defendant may lay an adequate foundation by putting forth specialized knowledge that the claimed right is a traditional or customary native Hawaiian practice. This specialized knowledge may come from expert testimony, pursuant to HRE Rule 702 (1993). HRE Rule 702 states:

Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. In determining the issue of assistance to the trier of fact, the court may consider the trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert.

In this jurisdiction, we have also accepted kama'aina witness testimony as proof of ancient Hawaiian tradition, custom, and usage. See Palama v Sheehan 50 Haw. 298, 440 P2d 95 (1968) (holding that testimony from kama'aina witnesses were sufficient to find the existence of an ancient Hawaiian right of way); Application of Ashford 50 Haw. 314, 316, 440 P2d 76, 78, reh'g denied, 50 Haw. 452, 440 P2d 76 (1968) (recognizing that Hawai'i 'allow[s] reputation evidence by kama'aina witnesses in land disputes'); In re Boundaries of Pulehunui, 4 Haw. 239 (1879) (permitting kama'aina witnesses to testify about the location of ancient Hawaiian land boundaries).