Orientation: Richardson Lawyering...RICHARDSON LAWYERING Introduction to Lawyering Fundamentals....

(August 2019)

Orientation: Richardson Lawyering

RICHARDSON LAWYERING

Welcome

elcome to the University of Hawai‘i at Mānoa, William S. Richardson School of

Law. As part of Orientation, you will participate in several classes called

“Richardson Lawyering.” Designed by faculty to provide you with an introduction

to key concepts and learning methods that are widely used in U.S. law schools and to get you ready

for the first semester at Richardson, these classes will also immerse you in a unique and important

area of law: Hawaiian tradition and custom.

The legal concepts you will learn are part of the rich contribution of Chief Justice (“CJ”)

Richardson to the development of law in Hawai‘i. Whether you are from Hawai‘i, another U.S.

state, or abroad, as law students at Richardson and future members of the legal community in

Hawai‘i and beyond, you have the privilege and responsibility to learn about this fascinating area

of law and CJ’s legacy in both historic and modern context.

We have included in your 1L Richardson Lawyering (RL) Packet important preparation

information that will help you make the most of this introductory series of sessions (further

described below) as well as two short articles on CJ Richardson’s lasting impact on this area of

the law.

These issues are particularly important to the vision and mission of the William S. Richardson

School of Law and will be referred to, and we hope further studied by you, throughout your law

school education here at Richardson. We hope that you will enjoy the RL series.

W

1


Reading a Case – An Introduction. Liam Skilling, Associate Faculty Specialist and Director of

Academic Success and the Evening Part Time Program, will introduce you to the critical lawyering

skill of reading and briefing cases. He will introduce you to the two key cases

– known by their short names Kalipi and Hanapi – that will help you understand and resolve the

client’s problem. He will explain the particular way that law students and lawyers “read” cases

and how to write an effective “case brief,” skills you will need to master in order to prepare

effectively for your law school classes.

* Your role: Before Orientation starts, read the Reading a Case summary in the 1L RL Packet.

Read the Kalipi and Hanapi cases in the packet (note, we have included an

annotated version of Hanapi as a study aid). Try to become familiar with the

overall format of the cases and the key concepts. Do not expect to understand or

remember all the details or legal terms. This is just the beginning not the end of

your exploration of this area of law.

* Take Away Questions:

(1) How is reading a case different than reading a story or a news article?

(2) How can you develop your own template for briefing cases that includes traditional

case analysis factors and also reflects your personal style of lawyering?

(3) What is the role of a reported appellate “case” in the development of law?

2


Introduction to Lawyering Fundamentals. Lawyering Fundamentals is the 1L

legal analysis and writing course. For this session, Professor Dan Barnett, Director of Legal

Writing, will introduce law practice writing. He will lead you in a discussion to demonstrate how

you would apply the ideas from the other Orientation sessions to begin to analyze a client’s legal

problem.

* Your role: Come prepared to apply the ideas you have learned in the other Orientation

sessions to a client’s legal problem.


(1) Why is legal writing important to law practice?

(2) Who is the primary audience and what is the primary purpose of an objective

memorandum analyzing a client’s legal problem?

(3) How does the hierarchy of the law relate to the analysis of a client’s problem?

3


Mini-Class. For the final session of the series, you will be introduced to the setting

of a typical law school class, led by Professor Melody Kapilialoha MacKenzie. She will engage

you in a discussion of the Kalipi and Hanapi cases, asking you questions about your understanding

and interpretation of the law and the facts. Individual students will be (randomly) called on and

asked to share their responses with the class. This experience is intended to provide a relatively

risk-free preview of the expectations in your 1L classes, where you must always be prepared to

respond to your professor’s questions.

* Your role: Before class, read the Mini-Class summary in the 1L RL Packet. For fun, watch

clips of the traditional Socratic Method by viewing the classic law school movie

Paper Chase on the web! Come to class with copies of the cases and the statutes

(on your laptop or hard copies), and with your own notes for both cases and the

statutes.


(1) How do the expectations for class preparation and participation differ in a law

school class compared to undergraduate study?

(2) How can you develop your own approach to preparing for each law school class

effectively?

(3) How does the law school classroom experience help develop skills necessary for

an attorney?

4


Conclusion

We hope that the Richardson Lawyering series gets you excited about your new adventure in life

called law school! We also hope that this series of classes, and the opportunity to meet with faculty

and classmates before Law School starts, reduces the stress and anxiety that new students often

feel when they enter a new school, especially a professional school, and especially after you have

invested so many years of education and experience in getting yourselves to this point in life.

We want you to be more comfortable and more confident, as well as competent, as you enter

your first semester at Richardson. Orientation provides you the basic toolkit – an introduction to

key legal concepts, learning approaches, lawyering skills, and professionalism. Law School will

expand and refine your toolkit, on a daily basis, both through classes and through your wealth of

interactions with faculty, students, staff, friends, and alumni. Throughout your Richardson

educational experience, and when you are a member of the legal profession, we very much hope

and trust that you will constantly add to your professional toolkit. At the same time, we want you

to maintain and develop your own “personal compass” – the passion, values, personal history,

and ethic that brought you here and that will serve you so well throughout your life and career.

−— Your Richardson Lawyering Team

Denise Antolini

Associate Dean for Academic Affairs

Liam Skilling ’07

Director, Academic Success

Director, Evening Part Time Program

Daniel Barnett

Professor of Law

Director, Legal Writing

Melody Kapilialoha MacKenzie ’76

Professor of Law

* * *

5


Reading a Case – An Introduction

Case briefing is a tool that law students and lawyers use to help them understand and organize the

information found in judicial opinions. A case brief isolates the key parts of an opinion and

summarizes the most relevant information. As a new law student, briefing the cases you are

assigned will help you to prepare for class, to begin your course outlines, and to study for exams.

Briefing effectively and efficiently is an important part of the process of learning to “think like a

lawyer.”

There is no single correct way to brief a case, and the components included in a brief vary

depending on purpose and preference. That said, a brief will typically include, at a minimum, a

summary of the following components of a judicial opinion.

Case Citation: The case citation allows a legal reader to locate a case in print or online. You will

learn all about citations in your legal writing and research classes and you will become very

familiar with the citation guide for legal writing: The Bluebook, A Uniform System of Citation.

The citation also provides substantive information about the name of the case, the court that

decided the case, and the date of the decision.

Issue: The issue statement sets forth the specific legal question facing the court. Usually, the

court will explicitly state the issue somewhere in the opinion. However, it may be more helpful to

frame the issue more broadly or narrowly than did the court. When you craft your own issue

statement, try to include both the controlling legal rule and the key facts that determine the

outcome. If you think of a well-phrased issue statement as a question about the law, the holding

of the case is the answer to that question.

Procedural History: This part of a case lets the legal reader know who are the parties to the

dispute and what has already happened in the courts. Virtually all the cases you will read in Law

School are the opinions of appellate courts. That means there was at least one decision at the trial

level preceding the opinion you are reading. Sometimes the procedural history of a case is long

and convoluted including multiple parties and prior decisions, and even multiple cases.

Deciphering the procedural history not only provides the context for the specific case you are

reading, but can also illuminate the structure and procedures of the court system.

Facts: The story of the parties and their dispute is found in the facts of the case. The job of the

legal reader is to discern which facts are relevant to the outcome of the case. If you omit relevant

facts from your brief, then you risk misinterpreting the holding; if you include too many facts, then

you have wasted time and muddied the analysis. The facts of a case plus the applicable legal rule

lead to the outcome or holding of the case. Conversely, knowing the holding and the facts helps

you understand and interpret the operation of the legal rule.

Holding: The outcome of a particular case is called the holding. The holding also expresses what

the case has added to the existing law. It is crucial that you can discern the legal rule(s) exemplified

by the holding of each case you read. It is these legal rules that you must extract from your readings

and lectures and then be able to apply on your exams. Like the issue, the holding of a case can be

6


framed broadly or narrowly. Effective advocacy involves interpreting the existing law (made up

of the holdings of prior cases) in a way that is logical, convincing, and that

supports your client’s position.

Analysis: The analysis in an opinion shows how and why the court reached its decision. This

includes the court’s interpretation of the existing law and the application of that law to the facts of

the present case. Policy considerations, whether stated explicitly or not, may also influence the

analysis. As you brief cases in your first semester, and throughout Law School, attend not only to

the legal rules of individual cases, but also what these cases teach you about legal analysis

generally. Each opinion provides an example of how judges and lawyers think about issues,

interpret precedent, and structure their writing. It is this method of thinking and writing that you

need to adopt and adapt to perform well in Law School and in practice.

7


Lawyering Fundamentals

The Lawyering Fundamentals (LF) course—LFI in the fall and LFII in the spring—is the first part

of a comprehensive writing program at the Law School to teach you the legal problem solving

skills you need to reach your maximum potential as a legal thinker and writer. In all of your first

year classes, you will learn the foundational reasoning skills lawyers use to understand legal

analysis. In subject matter courses, like Contracts and Torts, you’ll refine those reasoning skills by

learning concepts of different areas of the law. In LFI and LFII you will develop the skills by

learning to prepare the basic type of documents lawyers write in practice. The writing program

continues after the first year in research and writing seminars in the second year, and clinical

workshops and externships in both the second and third years. Your LF professors will serve as

your initial guides—along with all of your first-year professors—to help you understand and adapt

to our Law School and the legal community.

8


Mini-Class

Welcome to your first law school class. You may be wondering what happens in a law school

class. Indeed, if you’ve ever seen the movie, The Paper Chase, you’re probably a little worried

about the “Socratic method” and whether you’ll undergo a grilling as students did in the movie.

That movie portrays law classes––and law professors––at their toughest and meanest!

Most classes in law school use cases––judicial decisions or excerpts from judicial decisions––as

basic reading materials for the course. Depending on the course, readings will also include statutes,

administrative decisions, regulations, and commentaries (law review or other articles) on the

materials. At first, it will be confusing and a little daunting, but most students quickly adjust to

the amount and substance of the materials. It is like learning a new language!

In classes, law professors today, if they use the “Socratic method” at all, use a modified form, not

the intense grilling depicted in The Paper Chase. There are widely varying ways and styles in

which professors teach law classes––some lecture and then ask a few pointed questions of

randomly picked students, some assign specific students to discuss the cases for each class, and

others give students a set of questions to consider as they are preparing for class. Although some

professors use power-point presentations to illustrate parts of a case, emphasize important points,

ask questions to spark class discussion, and make the material visually more interesting, that is not

standard practice in first year classes.

Generally, whatever the method, professors do ask questions and in doing so seek to:

1. Ensure that students understand the facts of a case, its procedural history, and the basic

legal principles it utilizes;

2. Ensure that students prepare for class (at some point in your law school career, you will be

called upon by a professor);

3. Help students overcome the fear of speaking in public or in large groups;

4. Teach students to think and respond quickly and answer questions that may come out of

left field (thus preparing students for the experience of arguing motions in court or arguing

before appellate courts); and,

5. Tease out some of the broader policy and legal implications resulting from a court’s

decision.

So, for your first law school class, come prepared––read and study the assigned materials, write

your case brief, and come with your own questions about the case, its facts, applicable statutes or

constitutional provisions, and the policy implications of the case!

9


Relevant Cases

&

Constitutional and Statutory Materials

10

For Educational Use Only

Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1 (1982)

656 P.2d 745

© 2013 Thomson Reuters. No claim to original U.S. Government Works. 1

66 Haw. 1 Supreme Court of Hawai’i.

William KALIPI, Plaintiff-Appellant, v.

HAWAIIAN TRUST COMPANY, LTD., Pearl M. Petro, Ruth R. Searle, Ethel F. Shaner, Lorrin A. Meyer, William C. Meyer, Edmund Wond, Samuel Pedro and State of Hawaii, Department of Land and Natural Resources and its Director and Chairman of the Board Christopher Cobb,

Defendants-Appellees.

No. 6957. | Dec. 30, 1982.

. . .

**746 Syllabus by the Court

1. *1 The court’s obligation to preserve and enforce

traditional rights of descendants of native Hawaiians is

found in Hawaii Const. art. XII, § 7.

2. *2 With respect to gathering rights, HRS § 7–1 was

included to insure that commoners would be able to

exercise the rights mentioned therein, in connection with

their tenancy in order to ensure the utilization and

development of their lands.

3. Lawful occupants of an ahupuaa may, for the purposes

of practicing native Hawaiian customs and traditions,

enter undeveloped lands within the ahupuaa to gather

those items enumerated in HRS § 7–1.

4. “Lawful occupants” means persons residing within the

ahupuaa in which they seek to exercise gathering rights,

not persons who merely own property there.

5. Gathering rights of HRS § 7–1 are limited to the items

enumerated in that statute.

6. Although the requirement that gathering rights be

exercised on undeveloped land is not found in HRS § 7–1,

to hold otherwise would be to conflict with current

understandings of property and with the traditional

Hawaiian way of life in which cooperation and

noninterference with the well being of other residents

were integral parts of the culture.

7. The requirement that gathering rights be utilized to

practice native customs is a reasonable interpretation of

HRS § 7–1 since the rights were necessary to insure the

survival of those who, in 1851, sought to live in

accordance with the ancient ways.

8. Where practices associated with the ancient Hawaiian

way of life have, without harm to anyone, been continued,

reference to Hawaiian usage in HRS § 1–1 insures their

continuance for so long as no actual harm is done thereby.

9. As the court in Oni v. Meek did not expressly preclude

the possibility that the doctrine of custom might be

utilized as a vehicle for the retention of some commoners’

rights, HRS § 31–1 may be used as a vehicle for the

continued existence of those customary rights which

continued to be practiced and which worked no actual

harm upon the recognized interests of others.

10. There is an insufficient basis to find that gathering

rights based on HRS § 1–1 would, or should, accrue to

persons who did not actually reside within the ahupuaa in

which such rights are claimed.

11. Traditional gathering rights, based on reservations in

original land awards, do not accrue to persons who do not

live within the ahupuaa in which such rights are to be

asserted.

Attorneys and Law Firms

*13 Ronald Albu, Honolulu (Sandra E. Pechter, Deputy

Corp. Counsel, Honolulu, with him on the brief), for

plaintiff-appellant.

Steven K.S. Chung, Honolulu (Frank D. Padgett,

Honolulu, of counsel), for defendants-appellees **747

Hawaiian Trust Company, Ltd., Ethel Shaner, Ruth

Searle, Lorrin Meyer, William Meyer, Pearl Petro,

Edmund Wond and Samuel Pedro.

Che Lun Huang, Deputy Atty. Gen. (Lester G.L. Wong,

Deputy Atty. Gen., on the brief), for defendants-appellees

State of Hawaii, Dept. of Land and Natural Resources and

Christopher Cobb.

Opinion

*3 RICHARDSON, Chief Justice.

11



656 P.2d 745


In this appeal, Plaintiff-Appellant Kalipi claims the right

to enter Defendants-Appellees’ undeveloped lands to

gather, without unnecessarily disturbing the surrounding

environment, natural products necessary for certain

traditional native Hawaiian practices. While we agree that

such rights have, to a limited extent, been statutorily

preserved, we conclude that Plaintiff’s failure to actually

reside within the land divisions in which he seeks to

exercise these rights requires the affirming of the trial

court’s judgment for Defendants.

I.

William Kalipi seeks to exercise traditional Hawaiian

gathering rights in the ahupuaa of Ohia and Manawai on

the island of Molokai. Manawai is owned by

Defendants-Appellees Petro, Searle, Shaner, Meyer and

Hawaiian Trust Co. The land division runs from the

mountains to the sea and comprises approximately 588

largely undeveloped acres used primarily for hunting and

raising cattle. Ohia is divided into two parts.1 East Ohia is

366 acres of largely undeveloped land owned by

Defendant-Appellee State of Hawaii. West Ohia is owned

by Defendants Wond and Pedro and consists of

approximately 326 undeveloped acres used for hunting

and cattle grazing.

Plaintiff is a resident of Molokai who owns a taro patch in

Manawai and an adjoining houselot in East Ohia. He was

raised on the lots and resided there periodically until the

latter part of 1975. At the time of trial, however, he did

not reside on the property. Rather, with his wife and five

children, he lived in the nearby ahupuaa of Keawenui.

Kalipi asserts that it has long been the practice of him and

his family to travel the lands of the Defendants in order to

gather indigenous agricultural products for use in

accordance *4 with traditional Hawaiian practices.

Among the products he gathered, and seeks the right to

gather in this action, are ti leaf, bamboo, kukui nuts,

kiawe, medicinal herbs and ferns. Defendants have

refused to grant him unfettered access to their lands for

these purposes and this action was filed to vindicate and

insure an asserted right to gather such products.

A trial was had and the jury, by special verdict,

determined that Kalipi had no such right. He now alleges

numerous errors in the trial court’s instructions to the jury

and conduct of the trial. We find, for the reasons stated

below that none of the alleged errors warrants reversal.

II.

Plaintiff-Appellant Kalipi suggests three sources for his

asserted gathering rights. The first is HRS § 7–1, a statute

of ancient origin initially passed when the concept of

private ownership of real property had first been

introduced into these islands. The second is native custom

and tradition, a source of the law which he claims to have

been fixed in 1892 by the passage of what is now HRS §

1–1. And the third is the reservation found in all relevant

documents of original title in this case, language reserving

the people’s “kuleana” in lands converted to fee simple

ownership when such conversion first occurred.

Generally, Defendants argue that regardless of their

purported sources, traditional gathering should not be

recognized or enforced as a matter of policy. They

characterize the rights asserted as dangerous

anachronisms which conflict with and potentially threaten

the concept of fee simple ownership in Hawaii.

**748 We recognize that permitting access to private

property for the purpose of gathering natural products

may indeed conflict with the exclusivity traditionally

associated with fee simple ownership of land. But any

argument for the extinguishing of traditional rights based

simply upon the possible inconsistency of purported

native rights with our modern system of land tenure must

fail. For the court’s obligation to preserve and enforce

such traditional rights is a part of our Hawaii State

Constitution:

*5 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. And it is this expression of

policy which must guide our determinations. See

Stand.Comm.Rep. No. 57, reprinted in 1 Proceedings of

the Constitutional Convention of Hawaii of 1978 at 637

(1980) (“in reaffirming these rights in the Constitution,

Your Committee feels that badly needed judicial guidance

is provided[,] and enforcement by the courts of these

rights is guaranteed”). With this in mind, we proceed to

address Kalipi’s contentions.

12



656 P.2d 745


A.

The primary basis for Plaintiff’s claim to gathering rights

is HRS § 7–1, a statute initially passed in 1851 and

continued in our law since that time without substantial

modification. The statute, in its current form, provides

that:

Where the 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, housetimber, aho cord, thatch, or ki leaf,

from the land on which they live, for their own private

use, but they shall not have a right to take such articles

to sell for profit. The people shall also have a right to

drinking water, and running water, and the right of

way. The springs of water, running water, and roads

shall be free to all, on all lands granted in fee simple;

provided, that this shall not be applicable to wells and

water-courses, which individuals have made for their

own use.

HRS § 7–1 (1976). The statute appears to contain two

types of rights: gathering rights which are specifically

limited and enumerated, and rights to access and water

which are framed in general terms. While the extent and

scope of the latter set of rights have been the subject of

discussion by this court, see, McBryde Sugar Co. v.

Robinson, 54 Haw. 174, 504 P.2d 1330, aff’d on

rehearing, 55 Haw. 260, 517 P.2d 26 (1973), appeal *6

dismissed and cert. denied, 417 U.S. 962, 94 S.Ct. 3164,

41 L.Ed.2d 1135 (1974), Palama v. Sheehan, 50 Haw.

298, 440 P.2d 95 (1968), we are unable to find any

previous interpretation of the gathering rights found in the

statute. The issue we address is thus one of first

impression.

The land division most relevant to this issue is the

ahupuaa. And it is with the traditional function of the

division that our analysis begins. In Palama v. Sheehan,

supra, 50 Haw. at 301, 440 P.2d 95, we discussed the

significance of this division as follows:

[I]n ancient Hawaii, the division of

land known as an ahupuaa

generally ran from the sea to the

mountains. Such division enabled a

chief and his people to obtain fish

and seaweed from the ocean, and

fuel, canoe timber and mountain

birds, and the right of way to obtain

those things. In Re Boundries of

Pulehunui, 4 Haw. 239.

The cited case provides more detail:

A principle very largely obtaining

in these divisions of territory was

that a land should run from the sea

to the mountains, thus affording to

the chief and his people a fishery

residence at the warm seaside,

together with the products of the

high lands, such as fuel, canoe

timber, mountain birds, and the

right of way to the same, and all the

varied products of the intermediate

land as might be suitable to the soil

and climate of the different

altitudes from sea soil to

mountainside or top.

**749 In Re Boundries of Pulehunui, 4 Haw. 239, 241

(1879). In ancient times the utilization of the ahupuaa as

the principal land division was a rational one. The native

people existed by a subsistence economy and the division

of land discussed above enabled persons within it to

obtain virtually all things necessary to survival. The

traversing of an ahupuaa to gather items naturally found

there was therefore a matter of practical necessity.

The governance and control of ahupuaa also conformed

with the exercise of this privilege. Ahupuaa were

distributed by the King to favored chiefs subject, prior to

the introduction of written laws, to dispossession at the

King’s pleasure. And commoners were permitted to

cultivate lands within the ahupuaa in exchange for

services to the King and the ruling chief (if the ahupuaa

were not reserved for the King himself). The well *7

being of ruler and ruled was thus intertwined and the use

of undeveloped lands by commoners for subsistence and

culture was to the benefit of all.

With the coming of the influence of the west, the

traditional system became increasingly less viable. A

trading economy gradually replaced the subsistence

economy and the land and its resources came to have a

value apart from the labor of those who worked it. In

1848 the ancient order was formally dissolved when, by

what has come to be known as the Great Mahele, the

lands of the Kingdom were divided between the chiefs

and King. See generally Chinen, The Great Mahele

(1958). Many ahupuaa were granted in whole to their

13



656 P.2d 745


former lords who subsequently were able to obtain fee

simple title to them upon payment of a commutation. Two

years later, by the Act of August 6, 1850, commoners

were permitted to obtain fee simple title to the lands

which they had cultivated. And it is the last section of that

Act which today survives as HRS § 7–1.

This section was included at the behest of the King and

was reported to reflect his concern that a “little bit of land

even with allodial title, if they [the people] be cut off from

all other privileges would be of very little value.” Privy

Council Minutes, July 13, 1850. It therefore appears that,

with respect to gathering rights, the section was included

to insure that commoners would be able to exercise those

rights in connection with their tenancy in order to ensure

the utilization and development of their lands.

The problem is that the gathering rights of § 7–1 represent

remnants of an economic and physical existence largely

foreign to today’s world. Our task is thus to conform

these traditional rights born of a culture which knew little

of the rigid exclusivity associated with the private

ownership of land, with a modern system of land tenure in

which the right of an owner to exclude is perceived to be

an integral part of fee simple title.

We believe that this balance is struck, consistent with our

constitutional mandate and the language and intent of the

statute, by interpreting the gathering rights of § 7–1 to

assure that lawful occupants of an ahupuaa may, for the

purposes of practicing native Hawaiian customs and

traditions, enter undeveloped lands within the ahupuaa to

gather those items *8 enumerated in the statute.2 Such

activities would, of course, be subject to further

governmental regulation.

By “lawful occupants” we mean persons residing within

the ahupuaa in which they seek to exercise gathering

rights. We thus reject Plaintiff’s contention that the mere

ownership of property within an ahupuaa should suffice.

This limitation is dictated by the language of the statute

itself. HRS § 1–14 (1976) (words of statute to be given

usual meaning). It requires that the tenants be “on” the

land before they become entitled to take products “from

the **750 land on which they live.” We see no reason to

deviate from such unambiguous language. And nothing in

our caselaw or the statute’s history can reasonably be

interpreted to require a contrary result.3 Moreover, we

believe that the extension of these rights to absentee

landlords would be contrary to the intention of the

framers in that the right would thereby be spread to those

whose only association with the ahupuaa may be by virtue

of an economic investment.

Similarly, the limiting of gatherable items to those

enumerated in the statute is a result dictated by the

language of the statute. For it simply contains no

suggestion that any other items were intended to be

covered by the law.

The requirement that these rights be exercised on

undeveloped land is not, of course, found within the

statute. However, if this limitation were not imposed,

there would be nothing to prevent residents from going

anywhere within the ahupuaa, including fully developed

property, to gather the enumerated items. In the context of

our current culture this result would so conflict with

understandings of property, and potentially lead to such

disruption, that we could not consider it anything short *9

of absurd and therefore other than that which was

intended by the statute’s framers…. Moreover, it would

conflict with our understanding of the traditional


non-interference with the well-being of other residents

were integral parts of the culture.

Similarly, the requirement that the rights be utilized to

practice native customs represents, we believe, a

reasonable interpretation of the Act as applied to our

current context. The gathering rights of § 7–1 were

necessary to insure the survival of those who, in 1851,

sought to live in accordance with the ancient ways. They

thus remain, to the extent provided in the statute,

available to those who wish to continue those ways.

Plaintiff uncontestedly did not actually reside within the

ahupuaa in which he sought to exercise these gathering

rights. Thus, as a matter of law, he was not entitled to the

privileges discussed above.

B.

The second basis for Plaintiff’s claim to gathering rights

is HRS § 1–1 which provides:

The common law of England, as

ascertained by English and

American decisions, is declared to

be the common law of the State of

Hawaii in all cases, except as

otherwise expressly provided by

the Constitution or laws of the

United States, or by the laws of the

14



656 P.2d 745


State, or fixed by Hawaiian judicial

precedent, or established by

Hawaiian usage .... (Emphasis

added.)

It is his contention that the reference to “Hawaiian usage”

established certain customary Hawaiian rights, including

his asserted gathering rights, as the law of our State.

Conversely, Defendants contend that any customary

rights which might otherwise have been retained by § 1–1

have been abrogated by judicial precedent. Specifically,

they point to language in Oni v. Meek, 2 Haw. 87, 91

(1858), to the effect that the rights found in § 7–1 were

declarative of “all the specific *10 rights of the hoaaina

(excepting fishing rights) which should be held to prevail

against the fee simple title of the konohiki....” (Emphasis

in original.) They thus conclude that no customary rights

other than those found in that statute survived the Mahele.

We perceive the Hawaiian usage exception to the

adoption of the English common law to represent an

attempt on the part of **751 the framers of the statute to

avoid results inappropriate to the isles’ inhabitants by

permitting the continuance of native understandings and

practices which did not unreasonably interfere with the

spirit of the common law…. The statutory exception to

the common law is thus akin to the English doctrine of

custom whereby practices and privileges unique to

particular districts continued to apply to the residents of

those districts even though in contravention of the

common law. See, 1 W. Blackstone, Commentaries *74;

see also, State ex rel. Thornton v. Hay, 254 Or. 584, 462

P.2d 671 (1969). This, however, is not to say that we find

that all the requisite elements of the doctrine of custom

were necessarily incorporated in § 1–1. Rather, we

believe that the retention of a Hawaiian tradition should in

each case be determined by balancing the respective

interests and harm once it is established that the

application of the custom has continued in a particular

area.

In this case, Plaintiff’s witnesses testified at trial that there

have continued in certain ahupuaa a range of practices

associated with the ancient way of life which required the

utilization of the undeveloped property of others and

which were not found in § 7–1.4 Where these practices

have, without harm to anyone, been continued, we are of

the opinion that the reference to Hawaiian usage in § 1–1

insures their continuance for so long as no actual harm is

done thereby.

*11 Oni v. Meek, supra, does not preclude this

conclusion, for in that case the application of the doctrine

of custom was argued and the doctrine itself was not

rejected. Rather, the court found the particular right

asserted, the pasturage of horses, to be “so unreasonable,

so uncertain, and so repugnant to the spirit of the present

laws, that it ought not to be sustained by judicial

authority.” Id. at 90. And the court determined that the

privilege was the product of an admitted contractual

arrangement rather than a function of custom.5 Such an

analysis is consistent with our view of the § 1–1

exception. Moreover, the language in Oni respecting the

conclusiveness of § 7–1 does not necessarily preclude the

application of the doctrine. For there the plaintiff argued

only that his asserted right to pasturage had a statutory

basis by virtue of a pre-Mahele predecessor of § 7–1

which insured, inter alia, the right to “pasture his horse

and cow and other animals” on unused land surrounding

his lot. Oni v. Meek, supra, 2 Haw. at 91. He asserted that

the resolution which contained this right had never been

repealed and that the right therefore remained in force.

The court reasoned that the subsequent enactment of

commoners’ rights, which did not include the

aforementioned right to pasturage, implied that the

legislature had not intended that it be continued so that the

plaintiff could not claim the right pursuant to the

pre-existing resolution.

We thus interpret Oni to stand for the proposition that §

7–1 expresses all commoners’ rights statutorily insured at

the time of the Mahele. However, inasmuch as the court

did not expressly preclude the possibility that the doctrine

of custom might be utilized as a vehicle for the retention

ome such rights, we find no inconsistency in finding that

the Hawaiian *12 usage exception in § 1–1 may be used

as a vehicle **752 for the continued existence of those

customary rights which continued to be practiced and

which worked no actual harm upon the recognized

interests of others.

The precise nature and scope of the rights retained by §

1–1 would, of course, depend upon the particular

circumstances of each case. We need not at this time,

however, explore in detail the scope of any gathering and

access rights which may have been demonstrated as a part

of Plaintiff’s case. For, as with the gathering rights of §

7–1, there is an insufficient basis to find that such rights

would, or should, accrue to persons who did not actually

reside within the ahupuaa in which such rights are

claimed. Plaintiff therefore would have no gathering

rights on the property in question pursuant to HRS § 1–1.

15



656 P.2d 745


C.

Plaintiff’s final argued source of gathering rights are

reservations found in the original awards of Manawai and

the eastern portion of Ohia. The reservation in the

Manawai award was “Koe nae no kuleana o na kanaka

maloko,” translated at trial to mean “the kuleanas of the

people therein are excepted.” And the reservation in the

governmental grant provided:

And we do hereby declare these

lands to be set apart as the lands of

the Hawaiian Government, subject

always to the rights of tenants.

It is the contention of the Plaintiff that these reservations

retained certain traditional rights for the people, including

his asserted gathering rights. Conversely, Defendants

argue that the question must be decided in their favor

pursuant to Territory v. Liliuokalani, 14 Haw. 88 (1902),

wherein the court determined that a similar reservation

did not incorporate any public right to the use of certain

shoreline areas included in a grant.

We do not agree that the cited case necessarily disposes of

this issue. For it dealt only with asserted public rights and

not with the retained rights of ahupuaa residents or those

who subsequently obtained title to their lands within an

ahupuaa. However, we need not in this case delineate the

precise scope of any such rights retained by the proffered

reservations. For, as with any gathering rights preserved

by § 7–1 or § 1–1, we are convinced that traditional

gathering rights do not accrue to persons, such as the

Plaintiff, who do not live within the ahupuaa in which

such rights are sought to be asserted.

III.

Because we find that Plaintiff is, as a matter of law,

without gathering rights in the ahupuaa of Manawai or

Ohia because of his failure to reside in those land

divisions, the judgment of the trial court is affirmed.

Parallel Citations

656 P.2d 745

Footnotes

1

Defendants contend that Ohia represents two, rather than a single ahupuaa. Because of our resolution of the case, we need not

address this essentially factual issue.

2

These rights are rights of access and collection. They do not include any inherent interest in the natural objects themselves until

they are reduced to the gatherer’s possession. As such those asserting the rights cannot prevent the diminution or destruction of

those things they seek. The rights therefore do not prevent owners from developing lands.

3

Analogous case law, in fact, supports the conclusion reached here. See, e.g., Oni v. Meek, 2 Haw. 87 (1858) (lawful occupant

incorporated as definition of tenant); Damon v. Tsutsui, 31 Haw. 678 (1930) (non-severance of fishing right by transferror of

property).

4

These include the gathering of items not delineated in § 7–1 and the use of defendants’ lands for spiritual and other purposes.

5

The opinion implies that all traditional rights may have been, in essence, contractual rather than customary insofar as commoners

cultivated their lands and enjoyed privileges in exchange for services to the lord of that ahupuaa. We do not, however, adopt this

conclusion. For we find it difficult to imagine any custom in any ancient culture which did not exist to in some fashion benefit

those who ruled. The relevant inquiry is therefore not whether those who once ruled continue to benefit, but rather whether the

privileges which were permissibly or contractually exercised persisted to the point where it had evolved into an accepted part of the

culture and whether these practices had continued without fundamentally violating the new system.

16


State v. Hanapi, 89 Hawai’i 177 (1998)

970 P.2d 485


89 Hawai’i 177 Supreme Court of Hawai‘i.

STATE of Hawai‘i, Plaintiff-Appellee, v.

Alapai HANAPI, Defendant-Appellant.

No. 19746 | Nov. 20, 1998. | Reconsideration Denied Feb. 8, 1999.


**486 *178 Brian K. Nakamura, on the briefs, Honolulu,

for defendant-appellant.

Moana M. Lutey, Deputy Prosecuting Attorney, on the

briefs, for plaintiff-appellee.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and

RAMIL, JJ.

Opinion

Opinion of the Court by 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).1 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.

I. BACKGROUND

Hanapi and his wife, Louise, assert that they are “native

Hawaiian artists and cultural practitioners who work, live,

and reside on the ancestral family kuleana within the

ahupua‘a of ‘Aha‘ino on the island of Moloka‘i.”

Adjoining the Hanapis’ property are twin fishponds

popularly called Kihaloko and Waihilahila. Hanapi

maintains that “for generations [his] family and ...

ancestors have practiced traditional native Hawaiian

religious, gathering, and sustenance activities in and

around the fishponds.”

Gary Galiher purchased the land next to the Hanapis’

property. Galiher subsequently fenced the property and

allegedly began to grade and fill the area near the ponds

with the apparent intention of building a boat landing.2

The Hanapis viewed Galiher’s grading as “the desecration

of [a] traditional ancestral cultural site” and allegedly

voiced their objection, first with Galiher and then to the

U.S. Army Corps of Engineers (COE).

The COE determined that a “wetlands violation” occurred

and entered into an agreement with Galiher to restore the

property.3 The COE agreed to a voluntary, unsupervised

restoration of the property, subject to the advice and

oversight of a consultant/archaeologist. Galiher hired Aki

Sinota, an archaeologist, and Vernon Demello, the on-site

supervisor, to remove the fill and restore the property.

The restoration took place on August 14-16, 1995. The

work consisted principally of removing the fill and

regrading the land with a bulldozer. For the first two days,

Hanapi4 entered the property without incident to observe

and monitor the restoration.

On the third day, Demello told Hanapi that he was not to

enter the property. Ignoring the warning, Hanapi entered

the property **487 *179 and allegedly observed demello

using a bulldozer to push the fill into a “punawai,” or

fresh water spring. Hanapi believed the destruction of the

“punawai” was not consistent with the restoration ordered

by the COE and complained to Sinota. Sinota explained to

Hanapi that the water was not a spring, but actually water

that had collected in a hole left by an uprooted tree.

During this discussion, Demello approached Hanapi and

ordered him off the property. When Hanapi refused to

leave, police were called and arrested Hanapi for criminal

trespass in the second degree, in violation of HRS §

708-814.

Trial commenced in the District Court of the Second

Circuit on November 14, 1995, with Hanapi appearing

pro se. At trial, Galiher stated that he employed Demello

as a foreman to maintain and operate equipment on his

land and “take[ ] on assignments as I give him.” Galiher

also testified that he gave Demello the authority to

17



970 P.2d 485


exclude people from his enclosed property.

Demello testified that on August 16, 1995, when Hanapi

came onto Galiher’s property he asked him to leave the

premises. Hanapi refused Demello’s request and the

police were called. Demello stated Hanapi was arrested

and removed from the premises.

As part of Hanapi’s defense, he called his wife, Louise, to

testify on his behalf. Hanapi first asked Louise if she

knew what was happening on Galiher’s premises the day

he was arrested. Louise responded that “[t]here was a

wetland [s] violation that was issued by the ... [COE] ... to

restore the wetland area [on Galiher’s property].” The

prosecutor objected on the grounds of relevance. Hanapi

advised the court that he was “trying to establish [his]

rights [as a native tenant] ... on the land regardless of

whether Mr. Galiher ... owned it or not[.]” The court

sustained the prosecution’s objection and told Hanapi,

“[y]ou’re getting into something that is a Circuit Court

matter, Mr. Hanapi. Right now we are talking about

trespass.”

Hanapi persisted in his attempt to assert his constitutional

rights as a native Hawaiian tenant and sought to elicit

further testimony from Louise concerning the native

Hawaiian right being claimed by him at the time of his

arrest….

**488 *180

….

Despite several adverse rulings, Hanapi continued to

question Louise about the moral obligation native

Hawaiian tenants have to the land.

….

Following Hanapi’s unsuccessful questioning, Hanapi

testified on his own behalf. In a narrative form, Hanapi

stated:

We are adjacent land owners. We’re native tenants of

the ahupua‘a. We are also legal land owners and we

enjoy the rights mandated by the state constitution,

[a]rticle 12 and HRS [sections] 1-1 [and] 7-1 which

allows us access for gathering reasons, for religious

purpose and also to-we have-as native tenant we also

have a moral responsibility and obligation to protect

our natural resources. This is an undeveloped ahupua‘a.

We subsist in this ahupua‘a, what I mean by subsisting

is subsist off the water, the fishpond, the ocean, the

springs[,] and also mauka side.

**489 *181 So, when this restoration was taking place

the family was of course concerned that it would be

done appropriately and done right, with respect.

...

[W]e went over to perform our religious and traditional

ceremonies of healing the land. We shared that with

Mrs. Billington, that we had to go over and start ... to

heal the land at that time. And that’s what our total

purpose was just to make sure that restoration was done

properly.

...

So we as a kama‘aina of the native peoples that lived in

that area and have been there since ancient times, we

know-we have knowledge of that area and how it was

prior to the damage that was done. So we were offering

our-we felt that it was our right to be there and to be

included to make sure it was done right.

On cross-examination, Hanapi did not contest that he was

on Galiher’s property on the date he was arrested. He did

not recall, however, Demello asking him to leave the

property. The prosecutor then asked Hanapi if he was on

Galiher’s property exercising his gathering or religious

rights. Hanapi responded affirmatively, stating that he

was “gathering for religious purposes to start the healing

of the land before the machines came in[.]”

At the close of trial, the district court convicted Hanapi of

criminal trespass in the second degree and made the

following oral findings:

[1.] There was no showing that the property is owned

by anyone other than ... Mr. Gary Galiher.

[2.] The charge of criminal trespass in the second

degree specifically indicates that the person willingly

[sic-knowingly] enters or remains unlawfully in or

upon premises which are enclosed in a manner

designed to [exclude] intruders or fenced.

[3.] The testimony [offered] was that the property on

which Mr. Hanapi entered was fenced, that he was

specifically asked to leave the premises. He did not

leave and was arrested.

[4.] The definition of enters or remains unlawfully

includes the fact that regardless of the person’s intent, a

18



970 P.2d 485


person [who] enters or remains upon premises does so

unless he defines [sic] a lawful owner [sic] not to enter

or remain personally communicated to the person by

the owner of the premises or by some other authorized

person. And the owner of the property, Mr. Galiher,

specifically indicated that Vernon Demello, his

foreman, had the right to exclude people.

[5.] Mr. Demello also testified that he asked Mr.

Hanapi to leave and he did not leave.

[6.] [T]here [was] no showing by the defendant that

whatever rights he asserts as a native tenant which has

been testified to only by his wife.

[7.] [T]here was no other showing that [Hanapi] is in

fact a native tenant of that particular property beside[s]

his own testimony and that of his wife.

[8]. [T]here is no showing also that he did enter for any

religious or gathering purposes.

Accordingly, the district court fined Hanapi $100.00.

Hanapi timely filed this appeal.

II. STANDARDS OF REVIEW

….

III. DISCUSSION

A. The District Court Did Not Commit Reversible Error

When It Excluded Evidence and Testimony Supporting

Hanapi’s Claimed Constitutional Right.

The offense of criminal trespass in the second degree with

which Hanapi was charged is defined in HRS §

708-814(1)(a) as “knowingly enter[ing] or remain [ing]

unlawfully in or upon premises which are enclosed in a

manner designed to exclude intruders or are fenced[.]”

See supra, note 1. A person “‘enters or remains

unlawfully’ in or upon premises when the person is not

licensed, invited, or otherwise privileged to do so.” HRS §

708-800 (1993) (emphasis added).

At trial, Hanapi essentially claimed he had a privilege, as

a native Hawaiian, to remain lawfully on Galiher’s

property to engage in a constitutionally protected

activity….

**491 *183 … [T]he assertion of a constitutionally

protected right presents a purely legal issue that must be

determined by the court….

As a practical matter, it would be unduly burdensome to

require the prosecution to negative any and all native

Hawaiian rights claims regardless of how implausible the

claimed right may be. “[T]o hold otherwise would be to

create a rule that all conduct is presumptively [protected

under the Constitution].” [Clark v. Community for

Creative Non-Violence, 468 U.S. 288, n.5 (1984)]. We

therefore hold that it is the obligation of the person

claiming the exercise of a native Hawaiian right to

demonstrate that the right is protected.

….

[T]he trial court begrudgingly allowed Hanapi to testify in

support of his constitutional claims. The burden was

squarely placed on Hanapi to prove that his conduct ought

to have been accorded constitutional protection.

Article XII, section 7 of the Hawai‘i Constitution

expressly provides:

The State reaffirms and shall





ahupua‘a tenants who are





This court has consistently recognized that “the

reasonable exercise of ancient Hawaiian usage is entitled

to protection under article XII, section 7.” Public Access

Shoreline Hawai‘i v. Hawai‘i County Planning Comm’n,

79 Hawai‘i 425, 442, 903 P.2d 1246, 1263 (1995)

(hereinafter “PASH ”) (emphasis in original). See also

Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d

745 (1982) (recognizing Hawaii’s constitutional mandate

to protect traditional and customary native Hawaiian

rights); Pele Defense Fund v. Paty, 73 Haw. 578, 620,

837 P.2d 1247, 1272 (1992) (upholding the “Kalipi

rights” defining the “rudiments of native Hawaiian rights

19



970 P.2d 485


protected by article XII, § 7” of the Hawai‘i Constitution).

In PASH, we further examined the legal developments of

land tenure in Hawai‘i and concluded that “the issuance

of a Hawaiian land patent confirmed a limited property

interest as compared with typical land patents governed

by western concepts of property.” Id.

Although PASH did not discuss the precise nature of

Hawaii’s “limited property interest,” one limitation would

be that constitutionally protected native Hawaiian rights,

reasonably exercised, qualify as a privilege for purposes

of enforcing criminal trespass statutes.

In the instant case, Hanapi attempted to meet his burden

of proof by requesting that **493 *185 the district court

allow him to introduce: (1) evidence and testimony

relating to the COE’s finding of a wetlands violation on

Galiher’s property; and (2) Louise Hanapi’s testimony

concerning the native Hawaiian rights asserted by Hanapi

at the time of his arrest.

….

The court permitted Hanapi to offer evidence that he was

on Galiher’s property due to a wetland’s violation. Hanapi

testified that his purpose for being on Galiher’s property

was “to participate in [the wet lands] restoration as [a]

monitor[ ] and consultant[ ].” Any further details of the

wetlands violation were of no consequence to Hanapi’s

claimed native Hawaiian right. Accordingly, the district

court correctly excluded additional evidence of a wetlands

violation as irrelevant.

Next, Hanapi contends that the district court excluded, as

irrelevant, testimonial evidence tending to support his

claim that he had a privilege, as a native Hawaiian, to be

on Galiher’s property to engage in a constitutionally

protected activity. Without this evidence, Hanapi appears

to argue that the court could not have concluded that he

was not exercising a protected constitutional right at the

time of his arrest. The record indicates that Hanapi



whether Mr. Galiher ... owned it or not[.]” Thereafter, the

district court dismissed Hanapi’s constitutional claim as a

“[c]ircuit [c]ourt matter” unrelated to his trespass charge.

Despite this initial ruling, the district court permitted

Hanapi to substantiate his claimed constitutionally

protected right by eliciting testimony that: (1) he was a

native Hawaiian ahupua‘a tenant; (2) he had “a moral

responsibility and obligation to protect our natural

resources[;]” (3) the property he was on at the time of his

arrest was undeveloped; and (4) he was on Galiher’s

property to “perform ... religious and traditional

ceremonies of healing the land[,]” and “make sure the

restoration was done properly.” This being the case, we

can discern no prejudice to Hanapi’s substantial rights as

a result of the district court’s initial rejection of his

claimed constitutional privilege to be on Galiher’s

property. We therefore hold that the court’s errors were

harmless.

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 **494 *186 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 P.2d at 1270. PASH further declined to endorse a fifty

percent blood quantum requirement as urged by the

plaintiffs. Id. at 448, 903 P.2d 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 P.2d

at 1270 (quoting Haw. Const. art. XII, § 7) (emphasis

added).8

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).9 The fact that the claimed right is not

specifically enumerated in the Constitution or statutes,

20



970 P.2d 485


does not preclude further inquiry concerning other

traditional and customary practices that have existed. Id.

at 438, 903 P.2d 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 P.2d 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


non-interference with the wellbeing of other residents

were integral parts of the culture.’ ” Id. (quoting Kalipi

66 Haw. at 9, 656 P.2d 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,, **495 *187 improvements, and

infrastructure,10 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 P.2d 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.11

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 P.2d 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 P.2d 725, 733 (1977)).

To establish the existence of a traditional or customary

native Hawaiian practice, we hold that there must be an

adequate foundation12 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


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



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 **496 *188 was

unlawfully on Galiher’s property, in violation of HRS §

708-814(1).

IV. CONCLUSION

For the above reasons, we affirm Hanapi’s conviction of

and sentence for criminal trespass in the second degree.

Parallel Citations

970 P.2d 485

21



970 P.2d 485


Footnotes

1

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.

2

This background fact was mentioned in Hanapi’s opening brief, but not reflected in the trial transcripts.

3

As near as we can tell, Galiher committed an alleged “wetlands violation” and entered into an agreement with the COE to restore

his property. No further facts were available regarding Galiher’s violation. See infra, part III.A.

4

It appears from the record that Hanapi and his wife were both present on Galiher’s property throughout the restoration process.

However, we will not address Louise’s participation in this case unless it relates to issues concerning Hanapi.

5

….

6

….

7

….

8

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 P.2d at 1270 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.

9

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.

10

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.

11

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.

12

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

22



970 P.2d 485


(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 P.2d 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 P.2d 76, 78,

reh’g denied, 50 Haw. 452, 440 P.2d 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).

End of Document

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

23



970 P.2d 485


89 Hawai’i 177 Supreme Court of Hawai‘i.

STATE of Hawai‘i, Plaintiff-Appellee, v.

Alapai HANAPI, Defendant-Appellant.

No. 19746 | Nov. 20, 1998. | Reconsideration Denied Feb. 8, 1999.


**486 *178 Brian K. Nakamura, on the briefs, Honolulu,

for defendant-appellant.

Moana M. Lutey, Deputy Prosecuting Attorney, on the

briefs, for plaintiff-appellee.

MOON, C.J., KLEIN, LEVINSON, NAKAYAMA, and

RAMIL, JJ.

Opinion

Opinion of the Court by 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).1 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


I. BACKGROUND

Hanapi and his wife, Louise, assert that they are “native

Hawaiian artists and cultural practitioners who work, live,

and reside on the ancestral family kuleana within the

ahupua‘a of ‘Aha‘ino on the island of Moloka‘i.”

Adjoining the Hanapis’ property are twin fishponds

popularly called Kihaloko and Waihilahila. Hanapi

maintains that “for generations [his] family and ...

ancestors have practiced traditional native Hawaiian

religious, gathering, and sustenance activities in and

around the fishponds.”

Gary Galiher purchased the land next to the Hanapis’

property. Galiher subsequently fenced the property and

allegedly began to grade and fill the area near the ponds

with the apparent intention of building a boat landing.2

The Hanapis viewed Galiher’s grading as “the desecration

of [a] traditional ancestral cultural site” and allegedly

voiced their objection, first with Galiher and then to the

U.S. Army Corps of Engineers (COE).

The COE determined that a “wetlands violation” occurred

and entered into an agreement with Galiher to restore the

property.3 The COE agreed to a voluntary, unsupervised

restoration of the property, subject to the advice and

oversight of a consultant/archaeologist. Galiher hired Aki

Sinota, an archaeologist, and Vernon Demello, the on-site

supervisor, to remove the fill and restore the property.

The restoration took place on August 14-16, 1995. The

work consisted principally of removing the fill and

regrading the land with a bulldozer. For the first two days,

Hanapi4 entered the property without incident to observe

and monitor the restoration.

On the third day, Demello told Hanapi that he was not to

enter the property. Ignoring the warning, Hanapi entered

the property **487 *179 and allegedly observed demello

using a bulldozer to push the fill into a “punawai,” or

fresh water spring. Hanapi believed the destruction of the

“punawai” was not consistent with the restoration ordered

by the COE and complained to Sinota. Sinota explained to

Hanapi that the water was not a spring, but actually water

that had collected in a hole left by an uprooted tree.

During this discussion, Demello approached Hanapi and

ordered him off the property. When Hanapi refused to

leave, police were called and arrested Hanapi for criminal

trespass in the second degree, in violation of HRS §

708-814.

Trial commenced in the District Court of the Second

Circuit on November 14, 1995, with Hanapi appearing

pro se. At trial, Galiher stated that he employed Demello

as a foreman to maintain and operate equipment on his

land and “take[ ] on assignments as I give him.” Galiher

also testified that he gave Demello the authority to

Comment [C1]: Information about the parties to

the dispute, the court that heard the case, and the

date of the decision all go into the case citation.

In this case the parties are Alapai Hanapi and the

state of Hawaii. The state or federal government will

always be a party to any criminal case.

Hanapi is identified as the Defendant-Appellant.

This means that he was the defendant at the trial

court level and that he is appealing that decision.

The citation also tells you in which volume and on

which page of a particular reporter you can find the

case. State v. Hanapi is published in volume 89, page

177 of Hawaii Reports.

Comment [C2]: This sentence summarizes the

procedural history of this case. Hanapi was

convicted of criminal trespass in the second degree

and he is appealing that conviction.

Some readers will also be interested in the fact that

Hanapi based his defense almost exclusively on the

argument that he was exercising Constitutionally

protected Hawaiian rights and that the court was

reluctant to allow Hanapi to introduce the evidence

he felt would prove his claim.

Does it tell you anything that Hanapi’s conviction

was accompanied by a fine of just $100? Do you

think the money is a primary motivation for the

appeal?

Comment [C3]: This is one place where the

court frames the issues.

Almost all the cases you read in Law School will be

appellate decisions, so the issue(s) will relate to

what the appellant contends are errors in the lower

court decision.

Comment [C4]: This statement by the court

summarizes the holding of the case.

24



970 P.2d 485


exclude people from his enclosed property.

Demello testified that on August 16, 1995, when Hanapi

came onto Galiher’s property he asked him to leave the

premises. Hanapi refused Demello’s request and the

police were called. Demello stated Hanapi was arrested

and removed from the premises.

As part of Hanapi’s defense, he called his wife, Louise, to

testify on his behalf. Hanapi first asked Louise if she

knew what was happening on Galiher’s premises the day

he was arrested. Louise responded that “[t]here was a

wetland [s] violation that was issued by the ... [COE] ... to

restore the wetland area [on Galiher’s property].” The

prosecutor objected on the grounds of relevance. Hanapi



whether Mr. Galiher ... owned it or not[.]” The court

sustained the prosecution’s objection and told Hanapi,

“[y]ou’re getting into something that is a Circuit Court

matter, Mr. Hanapi. Right now we are talking about

trespass.”

Hanapi persisted in his attempt to assert his constitutional

rights as a native Hawaiian tenant and sought to elicit

further testimony from Louise concerning the native

Hawaiian right being claimed by him at the time of his

arrest….

**488 *180

….

Despite several adverse rulings, Hanapi continued to

question Louise about the moral obligation native

Hawaiian tenants have to the land.

….

Following Hanapi’s unsuccessful questioning, Hanapi

testified on his own behalf. In a narrative form, Hanapi

stated:

We are adjacent land owners. We’re native tenants of

the ahupua‘a. We are also legal land owners and we

enjoy the rights mandated by the state constitution,

[a]rticle 12 and HRS [sections] 1-1 [and] 7-1 which

allows us access for gathering reasons, for religious

purpose and also to-we have-as native tenant we also

have a moral responsibility and obligation to protect

our natural resources. This is an undeveloped ahupua‘a.

We subsist in this ahupua‘a, what I mean by subsisting

is subsist off the water, the fishpond, the ocean, the

springs[,] and also mauka side.

**489 *181 So, when this restoration was taking place

the family was of course concerned that it would be

done appropriately and done right, with respect.

...

[W]e went over to perform our religious and traditional

ceremonies of healing the land. We shared that with

Mrs. Billington, that we had to go over and start ... to

heal the land at that time. And that’s what our total

purpose was just to make sure that restoration was done

properly.

...

So we as a kama‘aina of the native peoples that lived in

that area and have been there since ancient times, we

know-we have knowledge of that area and how it was

prior to the damage that was done. So we were offering

our-we felt that it was our right to be there and to be

included to make sure it was done right.

On cross-examination, Hanapi did not contest that he was

on Galiher’s property on the date he was arrested. He did

not recall, however, Demello asking him to leave the

property. The prosecutor then asked Hanapi if he was on

Galiher’s property exercising his gathering or religious

rights. Hanapi responded affirmatively, stating that he

was “gathering for religious purposes to start the healing

of the land before the machines came in[.]”

At the close of trial, the district court convicted Hanapi of

criminal trespass in the second degree and made the

following oral findings:

[1.] There was no showing that the property is owned

by anyone other than ... Mr. Gary Galiher.

[2.] The charge of criminal trespass in the second

degree specifically indicates that the person willingly

[sic-knowingly] enters or remains unlawfully in or

upon premises which are enclosed in a manner

designed to [exclude] intruders or fenced.

[3.] The testimony [offered] was that the property on

which Mr. Hanapi entered was fenced, that he was

specifically asked to leave the premises. He did not

leave and was arrested.

[4.] The definition of enters or remains unlawfully

includes the fact that regardless of the person’s intent, a

25



970 P.2d 485


person [who] enters or remains upon premises does so

unless he defines [sic] a lawful owner [sic] not to enter

or remain personally communicated to the person by

the owner of the premises or by some other authorized

person. And the owner of the property, Mr. Galiher,

specifically indicated that Vernon Demello, his

foreman, had the right to exclude people.

[5.] Mr. Demello also testified that he asked Mr.

Hanapi to leave and he did not leave.

[6.] [T]here [was] no showing by the defendant that

whatever rights he asserts as a native tenant which has

been testified to only by his wife.

[7.] [T]here was no other showing that [Hanapi] is in

fact a native tenant of that particular property beside[s]

his own testimony and that of his wife.

[8]. [T]here is no showing also that he did enter for any

religious or gathering purposes.

Accordingly, the district court fined Hanapi $100.00.

Hanapi timely filed this appeal.

II. STANDARDS OF REVIEW

….

III. DISCUSSION

A. The District Court Did Not Commit Reversible Error

When It Excluded Evidence and Testimony Supporting

Hanapi’s Claimed Constitutional Right.

The offense of criminal trespass in the second degree with

which Hanapi was charged is defined in HRS §

708-814(1)(a) as “knowingly enter[ing] or remain [ing]



See supra, note 1. A person “‘enters or remains

unlawfully’ in or upon premises when the person is not

licensed, invited, or otherwise privileged to do so.” HRS §

708-800 (1993) (emphasis added).

At trial, Hanapi essentially claimed he had a privilege, as

a native Hawaiian, to remain lawfully on Galiher’s

property to engage in a constitutionally protected

activity….

**491 *183 … [T]he assertion of a constitutionally

protected right presents a purely legal issue that must be

determined by the court….

As a practical matter, it would be unduly burdensome to

require the prosecution to negative any and all native

Hawaiian rights claims regardless of how implausible the

claimed right may be. “[T]o hold otherwise would be to

create a rule that all conduct is presumptively [protected

under the Constitution].” [Clark v. Community for

Creative Non-Violence, 468 U.S. 288, n.5 (1984)]. We

therefore hold that it is the obligation of the person

claiming the exercise of a native Hawaiian right to

demonstrate that the right is protected.

….

[T]he trial court begrudgingly allowed Hanapi to testify in

support of his constitutional claims. The burden was

squarely placed on Hanapi to prove that his conduct ought

to have been accorded constitutional protection.

Article XII, section 7 of the Hawai‘i Constitution

expressly provides:

The State reaffirms and shall





ahupua‘a tenants who are





This court has consistently recognized that “the

reasonable exercise of ancient Hawaiian usage is entitled

to protection under article XII, section 7.” Public Access

Shoreline Hawai‘i v. Hawai‘i County Planning Comm’n,

79 Hawai‘i 425, 442, 903 P.2d 1246, 1263 (1995) (hereinafter “PASH ”) (emphasis in original). See also

Kalipi v. Hawaiian Trust Co., Ltd., 66 Haw. 1, 656 P.2d

745 (1982) (recognizing Hawaii’s constitutional mandate

to protect traditional and customary native Hawaiian

rights); Pele Defense Fund v. Paty, 73 Haw. 578, 620,

837 P.2d 1247, 1272 (1992) (upholding the “Kalipi

rights” defining the “rudiments of native Hawaiian rights

Comment [C5]: This section of the opinion sets

forth the facts of the case.

Comment [C6]: The Court’s analysis is found in

this section of the opinion.

Hanapi has already been found guilty at trial. The

appellate court, in this case the Hawaii Supreme

Court is not going to hear new evidence on the

trespass conviction. The question on appeal is

whether the trial court decided correctly, or made

some error in the way the trial was conducted or in

the way the trial court interpreted the law.

On appeal, Hanapi argues that the trial court made

two errors.

•First, the court prevented Hanapi from introducing

evidence that Hanapi contends could have

supported his Native Hawaiian traditional and

customary rights claim. Hanapi argues that this

evidence should have been permitted and that it

would have changed the outcome.

•Second, Hanapi argues that the state failed to

prove that his actions did not constitute

constitutionally protected Native Hawaiian

traditional and customary rights. This is essentially a

question of who has the burden of proof on this

issue.

Comment [C7]: This statement is another way of

framing the holding of the case.

The same statement, rephrased as a question, could

serve as an issue statement.

26



970 P.2d 485


protected by article XII, § 7” of the Hawai‘i Constitution).

In PASH, we further examined the legal developments of

land tenure in Hawai‘i and concluded that “the issuance

of a Hawaiian land patent confirmed a limited property

interest as compared with typical land patents governed

by western concepts of property.” Id.

Although PASH did not discuss the precise nature of

Hawaii’s “limited property interest,” one limitation would

be that constitutionally protected native Hawaiian rights,

reasonably exercised, qualify as a privilege for purposes

of enforcing criminal trespass statutes.

In the instant case, Hanapi attempted to meet his burden

of proof by requesting that **493 *185 the district court

allow him to introduce: (1) evidence and testimony

relating to the COE’s finding of a wetlands violation on

Galiher’s property; and (2) Louise Hanapi’s testimony

concerning the native Hawaiian rights asserted by Hanapi

at the time of his arrest.

….

The court permitted Hanapi to offer evidence that he was

on Galiher’s property due to a wetland’s violation. Hanapi

testified that his purpose for being on Galiher’s property

was “to participate in [the wet lands] restoration as [a]

monitor[ ] and consultant[ ].” Any further details of the

wetlands violation were of no consequence to Hanapi’s

claimed native Hawaiian right. Accordingly, the district

court correctly excluded additional evidence of a wetlands

violation as irrelevant.

Next, Hanapi contends that the district court excluded, as

irrelevant, testimonial evidence tending to support his

claim that he had a privilege, as a native Hawaiian, to be

on Galiher’s property to engage in a constitutionally

protected activity. Without this evidence, Hanapi appears

to argue that the court could not have concluded that he

was not exercising a protected constitutional right at the

time of his arrest. The record indicates that Hanapi



whether Mr. Galiher ... owned it or not[.]” Thereafter, the

district court dismissed Hanapi’s constitutional claim as a

“[c]ircuit [c]ourt matter” unrelated to his trespass charge.

Despite this initial ruling, the district court permitted

Hanapi to substantiate his claimed constitutionally

protected right by eliciting testimony that: (1) he was a

native Hawaiian ahupua‘a tenant; (2) he had “a moral

responsibility and obligation to protect our natural

resources[;]” (3) the property he was on at the time of his

arrest was undeveloped; and (4) he was on Galiher’s

property to “perform ... religious and traditional

ceremonies of healing the land[,]” and “make sure the

restoration was done properly.” This being the case, we

can discern no prejudice to Hanapi’s substantial rights as

a result of the district court’s initial rejection of his

claimed constitutional privilege to be on Galiher’s

property. We therefore hold that the court’s errors were

harmless.

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 **494 *186 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 P.2d at 1270. PASH further declined to endorse a fifty

percent blood quantum requirement as urged by the

plaintiffs. Id. at 448, 903 P.2d 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 P.2d

at 1270 (quoting Haw. Const. art. XII, § 7) (emphasis

added).8

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).9 The fact that the claimed right is not

specifically enumerated in the Constitution or statutes,

Comment [C8]: Use the court’s organizational

clues, like the numbered list here, to guide you

through the analysis.

Comment [C9]: This statement is another way of

framing the holding of the case.

The same statement, rephrased as a question, could

serve as an issue statement. Since there are really

two issues being addressed here, it would also be

correct to address them separately.

Comment [C10]: The three-factor test discussed

here organizes the court’s analysis. Always take

note of these structural clues to help you

understand the court’s reasoning.

27



970 P.2d 485


does not preclude further inquiry concerning other

traditional and customary practices that have existed. Id.

at 438, 903 P.2d 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 P.2d 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


non-interference with the wellbeing of other residents

were integral parts of the culture.’ ” Id. (quoting Kalipi

66 Haw. at 9, 656 P.2d 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,, **495 *187 improvements, and

infrastructure,10 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 P.2d 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.11

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 P.2d 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 P.2d 725, 733 (1977)).

To establish the existence of a traditional or customary

native Hawaiian practice, we hold that there must be an

adequate foundation12 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


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



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 **496 *188 was

unlawfully on Galiher’s property, in violation of HRS §

708-814(1).

IV. CONCLUSION

For the above reasons, we affirm Hanapi’s conviction of

and sentence for criminal trespass in the second degree.

Parallel Citations

970 P.2d 485

Comment [C11]: Here the court is recapping the

analysis that the trial court used to find Hanapi

guilty. In a criminal case, the state must prove every

element of the crime. The Supreme Court runs

through this analysis quickly because the trial court

is best suited to determine these factual issues.

Comment [C12]:

Do not be alarmed if you still find the analysis hard

to follow or understand. That is perfectly natural at

this stage. Your first days and weeks and months of

law school will involve learning a new language, a

new analytical approach, and a host of substantive

rules, all at the same time.

Expect the process to be slow and uneven at times

and be patient with yourself. Throughout the

process, keep asking yourself: “What does this case

teach me about the law?”

28



970 P.2d 485


Footnotes

1

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.

2

This background fact was mentioned in Hanapi’s opening brief, but not reflected in the trial transcripts.

3

As near as we can tell, Galiher committed an alleged “wetlands violation” and entered into an agreement with the COE to restore

his property. No further facts were available regarding Galiher’s violation. See infra, part III.A.

4

It appears from the record that Hanapi and his wife were both present on Galiher’s property throughout the restoration process.

However, we will not address Louise’s participation in this case unless it relates to issues concerning Hanapi.

5

….

6

….

7

….

8

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 P.2d at 1270 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.

9

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.

10

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.

11

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.

12

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

29



970 P.2d 485


(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 P.2d 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 P.2d 76, 78,

reh’g denied, 50 Haw. 452, 440 P.2d 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).

End of Document

© 2013 Thomson Reuters. No claim to original U.S. Government Works.

30

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

TRADITIONAL AND CUSTOMARY RIGHTS

[Haw. Const., Art. XII,] Section 7. 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.

[Add Const Con 1978 and election Nov 7, 1978]

* * *

Haw. Rev. Stat. [HRS] § 1-1 Common law of the State; exceptions. The common law of England, as ascertained by English and American decisions, is declared to be the common law of the State of Hawaii in all cases, except as otherwise expressly 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 or of the State.

[L 1892, c 57, § 5; am L 1903, c 32, § 2; RL 1925, § 1; RL 1935, § 1; RL 1945, § 1; RL 1955, § 1-1; HRS § 1-1]

* * *

Haw. Rev. Stat. [HRS] § 7-1 Building materials, water, etc.; landlords' titles subject to

tenants' use. Where the 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 a right to take such articles to sell for profit. The people shall also have a right to drinking water, and running water, and the right of way. The springs of water, running water, and roads shall be free to all, on all lands granted in fee simple; provided that this shall not be applicable to wells and watercourses, which individuals have made for their own use.

[CC 1859, § 1477; RL 1925, § 576; RL 1935, § 1694; RL 1945, § 12901; RL 1955, § 14-1; HRS § 7-1]

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CJ Richardson Materials

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In considering what I could add to this discussion, I thought that I could draw upon my experience as a judge in attempting to ensure that Hawaiian cultural practices and traditions were refl ected in the Hawai‘i Supreme Court’s decisions and, thus, in the law of our state. As you know, our courts have recognizedthat Hawai‘i’s laws relating to land and natural resources are unique in that they are based, in part, upon Hawaiian tradition, custom, and usage. This means that in many cases, we can look to the practices of our ancestors as guidance in establishing present-day law. Thus, it might be useful today to review with you some of the decisions that established these principles.

One of the fi rst was the 1968 case of In re Ashford—dealing ddwith a shoreline boundary. Many original grants from the Mahele described shoreline boundaries in general terms, using phrases such as “ma ke kai,” “along the sea, shoreline, or seacoast.” The exact meaning of these phrases was not established until the Ashford case. In that case, the court determined that according dto ancient Hawaiian tradition, custom, and usage, seaward boundaries described as “ma ke kai” are located along the upper reaches of the wash of waves, as evidenced by the edge of vegetation or by the line of debris left by the wash of waves.r

This decision was followed in 1973 by County of Hawai‘i ‘v. Sotomura (1973), in which, we examined property thathad been registered in Land Court with a description of the property using azimuth and distance measurements. We determined that even with property that had been so regis-tered and described, the “upper reaches of the wash of the waves” standard should be used to determine the shoreline boundary. The Sotomura case also established that where a seaward boundary is evidenced by both a debris line and a vegetation line lying further mauka (inland), the boundary is presumed to be the vegetation line. This meant that more of the beach would be available for public use.

USE OF TRADITIONAL PRACTICES IN PRESENT-DAY LAW PUWALU ‘EKOLU (THIRD CONFERENCE): OPENING REMARKS (DAY 1)BY WILLIAM S. RICHARDSON

THIS PUWALU (CONFERENCE) BRINGS TOGETHER THOSE WHO WERE INVOLVEDin the fi rst two Puwalu gatherings—cultural practitioners and teachers—with policymakers from the state and county level. The goal of this Third Puwalu is to fi nd ways to incorporate traditional cultural practices—practices that often come from and are most closely associated with moku and ahupua a—into natural and cultural resource management laws and policies throughout our islands. This is certainly a worthy goal–and a daunting task!

Hawaiian woman catching opae (shrimp) with a dip net atNapoopoo in Hawai‘i.

Hawaiian people using a dip net to fish in tide pools in Hawai‘i (1890-1905).

GCRL-145865-Current.indd Sec1:15GCRL-145865-Current.indd Sec1:15 6/30/08 8:51:58 AM6/30/08 8:51:58 AM

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In a subsequent decision, In re Sanborn (1977), we reaf-fi rmed our earlier decisions and determined that the seaward boundary of a parcel registered by the Land Court lay at the more mauka vegetation and debris line. Moreover, we held that in construing Land Court decrees, natural monuments such as “along the high water mark” are controlling over azimuth and distance measurements.

Following this series of cases, our State Legislature then enacted laws on shoreline boundaries to refl ect the court’s decisions, and the State Department of Land and Natural Resources enacted rules and regulations to implement the laws. I was delighted to see that recently, in interpreting these rules and regulations, our Hawai‘i Supreme Court looked to the Ashford and d Sotomuradecisions to provide guidance on where the shoreline should be located (Diamond v. State, October 2006). In that case, the Supreme Court reconfi rmed public policy in Sotomura.

I believe that the shoreline boundary situation presents a good example of how traditional and customary practice and knowledge has been judicially recognized and then incor-porated into state statutory law and eventually adopted as management policy.

In other areas of law, the Supreme Court has also looked toHawaiian custom and practice:

In Palama v. Sheehan (1968), we found a right of access toa kuleana parcel based, in part, on language in early Hawai‘i deeds reserving the rights of native tenants and on the 1850 Kuleana Act reserving the “right of way” on all lands granted in fee simple.

In McBryde Sugar Co. v Robinson (1973), we examined early Hawaiian water practices and determined that private ownership of such a precious resource was at odds with traditional Hawaiian practices. With this background, we looked at the intent of the

mid-eighteenth century laws surrounding the Mahele and trans-forming the communal land system into a private fee simple system. We found that the King intended to reserve the right to use water to himself in trust for the common good of all. Thus,twe recognized that the public trust doctrine was consistent with Hawaiian practice and thought and adopted into our laws at the time of the Mahele itself.

In the 1978 case In re Kamakana, the court looked to Hawaiian practice and custom to determine that the grant of an ahupua‘a would naturally include the fi shpond attached to the ahupua‘a—since Hawaiians viewed fi shponds in the same way they viewed ‘aina.¯

In Kalipi v. Hawaiian Trust Co., Ltd. (1982), we determined that gathering rights are protected by three sources in Hawai`i law:

- fi rst, the Kuleana Act, now codifi ed as HRS § 7-1;

- second, an 1892 law, HRS § 1-1, recognizing Hawaiian usage as an important exception to the common law; and

- fi nally, in Article XII, section 7, of the State Constitution protecting the traditional and customary rights of ahupua‘a tenants.

The court held that lawful residents of an ahupua‘a may, for the purpose of practicing Native Hawaiian customs and traditions, enter undeveloped lands within the ahupua a to gather fi rewood, house-timber, aho cord, thatch, or k i leaf, all items enumerated¯in the Kuleana Act. The court also stated that pursuant to Article XII, § 7, of the Constitution, courts are obligated “to preserve and enforce such traditional rights.”

We further stated that HRS § 1-1 ensures the continuation of Native Hawaiian customs and traditions not specifi cally enumer-ated in HRS § 7-1 that may have been practiced in certain ahupua‘a “for so long as no actual harm is done thereby.” We noted that the “retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm.”

Thus, with regard to shoreline boundaries, kuleana access, water resources, ownership of fi shponds, and gathering rights, the court consistently looked to traditional and customary Native Hawaiian practice and use. These cases have also formed the basis for legislation, rules and regulations, and further judicial decisions.

One of the diffi cult questions courts have had to face in these kinds of cases is determining exactly what the Hawaiian practice or custom was and how it is expressed today. Long ago, our courts recognized that in ancient times certain people were taught the names and boundaries of each land division and that these people were repositories for this special kind of knowledge. So, the courts have allowed these kama‘aina witnesses to testify¯in land and boundary cases.

A Hawaiian canoe and fish baskets (ca. 1890). Photographed by Charles Furneaux.


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In modern times, and in the cases I just discussed, we have allowed kama‘aina witnesses to testify to the location of ¯shoreline boundaries according to ancient Hawaiian tradition, custom, and usage; to the location of trails used by kupuna; and more recently to gathering practices in specifi c areas such a Wao Kele O Puna on the Islands of Hawai‘i. The courts have looked to “experts” in Hawaiian language—to manaleo—to¯help determine the true meaning of certain phrases in Land Commission Awards and early deeds.

As all of you realize, traditional and customary practices can onlybe recognized by the courts and by policymakers if the practices remain vibrant and healthy and relevant to the lives of our people. We can only call upon manaleo to interpret the Hawaiian¯language in old deeds and laws if our language continues to live; we can only fi nd someone to testify as to the path used by hula folk who gather lehua and palapalai fern if hula continues to live, and the lehua and palapalai thrive; we will only know the right way to pick limu without killing off this resource if those who know teach those who are willing to learn.

This is why I was so encouraged to learn of the declarations and commitments made in the fi rst two Puwalu held earlier this year. This fi rst Puwalu of traditional practitioners called on the Hawaiian people “to begin the process to uphold and continue

Hawaiian traditional land and ocean practices into the gover-nance and education of the Hawaiian Archipelago.” The second Puwalu, which included both practitioners and educators, met to “deliberate on how to incorporate traditional Hawaiian practices and knowledge into the daily education of Hawai‘i’s children.” This third Puwalu tackles the diffi cult issues of how to incorporate traditional and customary practices into decisions and policies at the county and state levels.

For policymakers, I believe that you have the burden of balancing many different and apparently competing interests. You must balance the past and the future; the rights of the collective and individual; public interests and private interests; use of a resource with the risk that the use may deplete the resource; and Hawaiian customs and traditions with Western law.

You must make diffi cult decisions, but if you make those decisions with the counsel and advice from traditional prac-titioners and those who are most closely affected by and connected to a particular resource or area, your decisions will be sound. If you make your decisions based on traditional concepts of ahupua‘a resource management, while beingcognizant of the effects of your management decisions on the larger moku and on the entire archipelago, your decisions will result in a healthy and thriving resource and community. The

Spear fisherman near Hana, Maui (ca. 1890). Torch fishing with a dip net (1919). Photograph by Tai Sing Loo.


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best possible outcome for the resource, the Hawaiian people and all the people of Hawai‘i.

As all of you continue your deliberations, I know that you will remember that whatever our individual interests and goals, we are linked together and to this land. Each of us struggles, in their own way, to retain within us the learning and wisdom of our ancestors. We walk that delicate balance between two worlds—the modern and sometimes impersonal society that surrounds us, and the highly personal and ancient culture we carry within us. The times ahead present great challenges and possibilities for Hawaiians. I believe that we can meet these challenges, if we maintain our link with the past and our hope for the future.

WILLIAM S. RICHARDSON served as Chief Justiceof the Hawai‘i State Supreme Court from 1966-1982, and subsequently, as a trustee of what is now Kamehameha Schools/Bishop Estate. Prior to these services, he was Hawai‘i’s Lieutenant Governor under John A. Burns; in the private practice of law; an advocate for statehood; and chairman of the Hawai‘i Democratic Party (1956-1962). He is currently “in residence” at and involved with the continuing development of the state’s only law school, the William S. Richardson School of Law at the University of Hawai‘i, named in his honor.

PHOTO CREDIT

All photos courtesy of Bishop Museum

Weloka fishpond at Pearl Harbor, O‘ahu (ca. 1910). Photograph by Stokes.

Hawaiian people cutting up a captured turtle, Hilo, Hawai‘i (ca.1890-1905).


36

Ka Lama Kil 0 Ka No'eau:The Standing Torch of Wisdom

Melody Kapilialoha MacKenzie*

In Hawaiian tradition, admiration for a wise person is expressed using thephrase "ka lama kii o ka no'eau," literally meaning "the standing torch ofwisdom."' This is indeed a fitting description of former Hawai'i SupremeCourt Chief Justice (CJ) William S. Richardson. Here at the law school thatbears his name and especially for those of us who have benefited from hisdecisions-both in his role as ajurist and as a wise mentor and leader-the lossof CJ Richardson's physical presence is deeply felt. Nowhere is CJRichardson's wisdom expressed with more eloquence and force than in theopinions that he wrote over the course of his sixteen-year tenure on the bench.His opinions reflect his humble background, his commitment to a more opensociety with equal opportunity for Hawai'i's multi-ethnic population, and hisstrong belief in looking to Hawai'i's rich past as a source of today's law.2

Born into a working-class Hawaiian, Chinese, and Caucasian family, CJRichardson understood social, economic, and political deprivations, and hecommitted himself to social justice. A graduate of Roosevelt High School andthe University of Hawai'i, CJ Richardson left Hawai'i to attend law school atthe University of Cincinnati. After his return from service in World War II, CJRichardson aligned himself with the revitalized Democratic Party, helping in

Associate Professor of Law and Director of Ka Huli Ao Center for Excellence in NativeHawaiian Law, William S. Richardson School of Law. I am a beneficiary-three times over-of Chief Justice Richardson's vision and commitment to the people of Hawai'i. I graduated inthe law schooPs first class in 1976, clerked for CJ Richardson for four years, and now teach atthe law school that bears his name.

In celebration of Chief Justice Richardson's ninetieth birthday in December 2009, and inhonor of the significant role he played in shaping Hawai'i's current jurisprudence and legalenvironment, selected opinions authored by CJ Richardson were gathered into one volumeentitled Ka Lama Ki7 0 Ka No'eau: The Standing Torch of Wisdom: Selected Opinions ofWilliam S. Richardson, ChiefJustice, Hawai'i Supreme Court, 1966-1982. This is an expandedversion of the introduction to that volume. Dean Avi Soifer contributed to that introduction andhas graciously allowed me to expand our work in this essay. I also wish to express my gratitudeto Nathaniel T. Noda, Ka Huli Ao Post-JD Research & Scholarship Fellow. Mahalo nunui to2005 WSRSL graduate, Kahikino Noa Dettweiler, for his beautiful Oli Aloha for CJRichardson.

' MARY KAWENA PUKUI, 'OLELO NO'EAu: HAwAIIAN PROVERBS & POETICAL SAYINGS 155(1983).

2 See generally CAROL S. DODD, THE RICHARDSON YEARS: 1966-1982 (1985) for a detailedbiography of Chief Justice Richardson and the factors that influenced his judicial decisions,much of which is referenced in this article.

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particular to mobilize the Hawaiian community in support of Democraticcandidates. He subsequently served as Chief Clerk of the State Senate and asLieutenant Governor. In 1966, Governor John A. Burns appointed him ChiefJustice of the Hawai'i Supreme Court where he served for the next sixteenyears. Throughout his career, CJ Richardson encouraged Native Hawaiians andother under-represented groups to work within the legal system to bring aboutpositive change for all of Hawai'i's people.

CJ Richardson was a staunch advocate of an independent judiciary, evenauthoring an article in the University of Hawai'i Law Review discussing hisviews on judicial independence.3 Although he had many friends andcolleagues in the legislative and executive branches of government, he fiercelydefended the Supreme Court's authority to promulgate rules of practice andprocedure for the state courts and to regulate the admission of new lawyers. Hefought to ensure that judges were protected from undue political pressures,which in his mind also meant guaranteeing that judges made a decent living.During his tenure, CJ Richardson established a unified judiciary and oversawthe implementation of the 1978 amendments to the Hawai'i State Constitutionthat created both an Intermediate Court of Appeals and a new judicial selectionprocess.

In addition to his role as ajurist, CJ Richardson was an astute administrator.One of his major efforts was to oversee the funding and construction of newbuildings for the judiciary-on O'ahu, Ka'ahumanu Hale to house the circuitcourts and Kauikeaouli Hale for the district courts. He also secured funding fornew judiciary buildings on the neighbor islands. The project closest to hisheart, however, was renovating Ali'i6lani Hale, the current Supreme Courtbuilding. CJ Richardson clearly wanted to restore the building to its earlierglory and to reclaim it for Hawai'i's people. After all, Ali'ialani Hale had beenthe seat of the Hawaiian Kingdom's Legislative Assembly. Moreover, it wasfrom the steps of Ali'i6lani Hale that the provisional government had declaredthe abrogation of the Hawaiian monarchy. It was thus particularly fitting that aNative Hawaiian Chief Justice ensured that the building, and in many sensesthe judiciary itself, would once again belong to the people of Hawai'i.

CJ Richardson mentored countless young attorneys, including the forty lawclerks who worked for him during his tenure on the court. As one of his lawclerks, I had the privilege of working closely with him for almost four years,staying on past my initial one-year commitment to help with the expandingcaseload and as CJ sought to implement changes in the judiciary.

CJ Richardson gave his law clerks wide latitude to freely express theiropinions about cases, both before and after oral argument. Once the court had

See William S. Richardson, Judicial Independence: The Hawaii Experience, 2 U. HAw.L. REv. 1 (1979).

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met and decided a case, CJ would call one of us into his chambers and saysomething like, "Well, I think we're going to be in the majority on this one-maybe even a unanimous one." He would outline his thinking on the case andan exchange of ideas would follow; sometimes he would call two of his clerksin to see which one was most interested in writing the decision. And then,armed with general directions and principles, it was up to the law clerk to givethose ideas real meat in a decision. If, at any time during the drafting process, aclerk was stuck, felt that perhaps the wrong decision was being made, or foundfacts in the record that made it impossible to rule as CJ and the court wished,CJ's door was always open. A first draft was often followed by a second andthird. You could always feel CJ's calm, but persistent, guidance.

Always generous with his time, CJ Richardson sat and talked to each of usabout the more mundane aspects of our lives as well as the big decisions wehad to make. CJ also allowed us great flexibility in our schedules. Afterensuring that there would be no conflicts, he let me work in my off hours on thedefense for those charged with federal trespass on the island of Kaho'olawe andlater allowed me to take a leave of absence to work at the 1978 ConstitutionalConvention. One of my most memorable experiences was when he bundled agroup of Supreme Court clerks into his car to go to Ala Moana Park for the firsthomecoming of the Hawaiian voyaging canoe, H6kile'a.

CJ took an ongoing interest in the lives and careers of his law clerks. He wasdelighted when we succeeded and he comforted us when we did not. Whenone of the clerks became a judge (as several did), ran for office, became apartner in a law firm, or received recognition for community service, CJRichardson was there. With a wide grin and a gentle nod of his head, he let usknow how much he supported us and how proud he was of ouraccomplishments.

Nothing is more striking about CJ Richardson's achievements than hislongstanding and continuing commitment to opening educational andprofessional avenues for the islands' most disadvantaged groups. Thiscommitment led to the 1973 establishment of the law school that now bears hisname. He understood that those with the greatest stake in building a more justand equitable society were often denied the opportunity to go to law schoolbecause of the prohibitive cost and distance. Determined that all in Hawai'ishould have the chance to obtain an excellent legal education, he fought anuphill battle over many years to create and help shape Hawai'i's only lawschool.

Because of CJ Richardson's perseverance, nearly 2500 men and women-many from underrepresented, minority, and Native Hawaiian communities-arenow practicing law in the public and private sectors, holding elected office,leading community and legal services organizations, teaching law, and servingin the judiciary.

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In 1966, as he was beginning his tenure on the Supreme Court, CJRichardson reflected on his new role as a jurist:

The man who is Chief Justice must balance the rules of the past to conform withthe state of society today .... He must bring the old rules in line with modemtimes. He must remember that those rules were made under a different structure.

He must live in the past-but not only the past. He must adopt the fundamentalprinciples of the past and bring them into focus with the present. And in Hawaii,the present-like the past-is a time of migration.4

For CJ Richardson, the past included more than the principles of Anglo-American law; it also included the principles of Hawaiian custom and tradition.For him, the past, present, and future all encompassed concern for the commonperson and for the dispossessed and disadvantaged. CJ Richardson understoodand accepted, even embraced, his responsibility. He knew that he and hisfellow jurists had the opportunity to make major changes, and he grasped thatopportunity.

Working closely with the other members of the court, CJ Richardson helpedto reincorporate Native Hawaiian tradition and custom into state law andexpanded public rights. His decisions show his successful efforts to balancecompeting factors: the past and the future; Western law and Hawaiian law andtradition; the rights of the individual and the rights of the collective; and publicand private interests.

At times, this new yet old way of thinking drew criticism from governmentofficials and the legal profession, but it has become recognized as anenlightened approach for our distinctive, multi-cultural homeland. Recently,CJ Richardson reflected on his court's approach:

Hawai'i has a unique legal system, a system of laws that was originally built onan ancient and traditional culture. While that ancient culture had largely beendisplaced, nevertheless many of the underlying guiding principles remained.During the years after the illegal overthrow of the Hawaiian Kingdom in 1893and through Hawai'i's territorial period, the decisions of our highest courtreflected a primarily Western orientation and sensibility that wasn't acomfortable fit with Hawai'i's indigenous people and its immigrant population.We set about returning control of interpreting the law to those with deep roots inand profound love for Hawai'i. The result can be found in the decisions of ourSupreme Court beginning after Statehood. Thus, we made a conscious effort tolook to Hawaiian custom and tradition in deciding our cases-and consistent withHawaiian practice, our court held that the beaches were free to all, that access to

4 Gene Hunter, Democrat Richardson Has His Heart in Hawaii, HONOLULU ADVERTISER,

Feb. 26, 1966, at Al.

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the mountains and shoreline must be provided to the people, and that waterresources could not be privately owned.5

The decisions of the Richardson court relating to water are undoubtedly themost widely known and the most controversial. CJ Richardson did not writethe seminal water rights opinion, McBryde Sugar Co. v. Robinson,6 but he wasin strong agreement with the majority and defended and reaffirmed this earlierdecision in subsequent opinions. In McBryde, the court clarified Hawai'i lawand held that water flowing in natural watercourses belongs to the State. Thecourt concluded that in the Mihele-the conversion to fee simple titles in themid-i 800s-King Kamehameha III intended to reserve the right to use water tohimself as sovereign for the common good.7 No right to private ownership ofwater had been conveyed with any land title grants.8 Therefore, the State, assuccessor to the king, owned all waters flowing in natural watercourses andheld water in trust for the people.9 The McBryde decision also pointed to the1850 Kuleana Act, which allowed native tenants to obtain fee simple title toland. The Kuleana Act, the court stated, guaranteed the right to "drinkingwater and running water," thereby giving riparian water rights to land ownersadjoining natural watercourses.o

In 1982, in Robinson v. Ariyoshi," CJ Richardson responded to six questionscertified by the Ninth Circuit Court of Appeals in appeals related to theMcBryde decision. Robinson provided important clarifications regarding waterlaw in Hawai'i, including strongly reaffirming the role of the public trustdoctrine in both traditional Hawaiian and modem usage. Robinson reiteratedthat the McBryde decision clarified ambiguous aspects of Hawai'i water lawand did not depart from settled legal principles.12 It was also instrumental inaffirming the role of the riparian doctrine in Hawai'i water law.

CJ Richardson decided a second important water rights case the same year.Reppun v. Board of Water Supply' 3 involved a dispute over the water inWaihe'e Stream on O'ahu and the impact of the Board of Water Supply's wellson the rights of downstream kalo (taro) farmers. The court's opinion helped

William S. Richardson, Spirit of Excellence Award Acceptance Speech at the ABA Spiritof Excellence Awards Luncheon (Miami, Fla., February 10, 2007).

6 54 Haw. 174, 504 P.2d 1330 (Abe, J.), aff'don reh'g, 55 Haw. 260,517 P.2d 26 (1973)(per curiam).

7 Id. at 185-87, 504 P.2d at 1338-39.8 Id

9 Id.'o Id. at 191-99, 504 P.2d at 1341-45.' 65 Haw. 641, 658 P.2d 287 (1982).

12 Id. at 673-76, 658 P.2d at 309-12.'3 65 Haw. 531, 656 P.2d 57 (1982).

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explain the doctrines of appurtenant and riparian rights, including whether suchrights may be transferred or extinguished.

CJ Richardson has identified In re Ashfordl4 as the decision of which he wasmost proud and the one that he believed had the most significant impact. InAshford, the court was called upon to determine the boundary between publicbeaches and private property. At issue was an original grant from the Mheledescribing the shoreline boundary using the phrase "ma ke kai," or "along thesea."15 The meaning of this term was established in Ashford, when the courtallowed kama'dina witness testimony' 6 on the location of shoreline boundariesaccording to ancient Hawaiian tradition, custom, and usage. The court thendetermined that based on Hawaiian custom and usage, seaward boundariesdescribed as "ma ke kai" are located along the upper reaches of the wash ofwaves, as evidenced by the edge of vegetation or line of debris left by the washof waves.' 7

In two subsequent cases, County of Hawaii v. Sotomura and In reSanborn,'9 the court affirmed and refined the Ashford decision. In Sotomura,the court applied the Ashford standard to property that had been registered inLand Court and also determined that where seaward boundaries are evidencedby both a debris line and a vegetation line lying further mauka, or inland, theboundary is presumed to be at the vegetation line.20 This meant that more ofthe beach would be available for public use and the court specifically noted that"[p]ublic policy .. . favors extending to public use and ownership as much ofHawaii's shoreline as is reasonably possible." 21 In Sanborn, another caseinvolving property registered in Land Court, the Hawai'i Supreme Courtreaffirmed its earlier holdings and also ruled that in construing land courtdecrees, natural monuments such as "along the high water mark" arecontrolling over azimuth and distance measurements.2 2 Citing Sotomura, thecourt stated, "land below high water mark is held in public trust by the State,whose ownership may not be relinquished, except where relinquishment isconsistent with certain public purposes." 23

14 50 Haw. 314, 440 P.2d 76 (1968)." Id. at 314, 440 P.2d at 77.16 In a footnote, the court quoted an earlier Hawai'i case to define a kama'dina witness as "a

person familiar from childhood with any locality." Id. at 315 n.2, 440 P.2d at 77 n.2 (quotingln

re Boundaries of Pulehunui, 4 Haw. 239, 245 (1879)).17 Id. at 315, 440 P.2d at 77." 55 Haw. 176, 517 P.2d 57 (1973).'9 57 Haw. 585, 562 P.2d 771 (1977).20 Sotomura, 55 Haw. at 182, 517 P.2d at 62.21 Id. at 189, 517 P.2d at 66.22 Sanborn, 57 Haw. at 590, 562 P.2d at 774.23 Id. at 593-94, 562 P.2d at 776 (quoting Sotomura, 55 Haw. at 183-84, 517 P.2d at 63).

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In another landmark case, State ex rel. Kobayashi v. Zimring,24 the court wascalled upon to resolve a dispute over whether new lands created by a lava flowwere public or private property. After a detailed examination of the Miheleand the State Admission Act, as well as Hawaiian precedent, to determine howlava extensions were treated under Hawaiian custom and applicable law, CJRichardson held that lands created by lava extensions are owned by the State ofHawai'i. 2 5 Finding no prior Hawaiian custom or judicial precedent, hereasoned that "equity and sound public policy demand that such land inure tothe benefit of all the people of Hawaii, in whose behalf the government acts astrustee ... . Thus we hold that lava extensions vest when created in the peopleof Hawaii, held in public trust by the government for the benefit, use andenjoyment of all the people."26

Two other decisions further demonstrate the Richardson court's view thatresources should be held for the benefit of the public. In the 1966 case In reRobinson, the court held that a reservation of the government's rights to "allmineral or metallic mines, of every description," in a royal patent controlledeven where the original Land Commission Award did not contain thereservation.27 Two years later, the court decided In re Kelley, holding that aprivate road, abandoned to the government prior to an 1892 act designating alltrails, roads and highways as public, automatically became a public highway

28upon passage of the act-even without formal acceptance by the government.It would be a mistake to conclude, however, that the Richardson court always

acted to give resources to the public. In the 1978 case In re Kamakana, thejustices looked to Hawaiian practice and custom to determine that the grant ofan ahupua'a, a traditional Hawaiian land unit, would naturally include thefishpond attached to the ahupua'a.29 The court reasoned that becauseHawaiians viewed fishponds in the same way that they viewed 'dina or land,the private claimant, not the State, owned a Moloka'i fishpond.o In anothercase decided the same year, United Congregational Churches v. Kamamalu,the court established that continuous occupation of state lands by the churchesafforded them an equitable right to use the property, until abandoned, for thosepurposes.

24 58 Haw. 106, 566 P.2d 725 (1977).25 Id. at 124-25, 566 P.2d at 736-38.26 Id. at 121, 566 P.2d at 735 (citations omitted).27 49 Haw. 429, 440-41, 421 P.2d 570, 577-78 (1966).28 50 Haw. 567, 579-80, 445 P.2d 538, 546-47 (1968).29 58 Haw. 632, 640-41, 574 P.2d 1346, 1350-51 (1978).30 Id. at 638-41, 574 P.2d at 1349-5 1.31 59 Haw. 334, 341-43, 582 P.2d 208, 213-14 (1978).

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CJ Richardson also expressed concern for the loss of Hawaiian lands throughadverse possession. In Yin v. Midkiff 2 and City and County of Honolulu v.Bennett,33 his court determined that a co-tenant must show good faith inadversely possessing property. In most instances, CJ Richardson noted, therequirement of good faith in turn mandates that the tenant acting adverselymust actually notify co-tenants of the claim against them.34 The courtacknowledged that there may be exceptional circumstances where good faith issatisfied by less than actual notice, but this basic good faith requirement hasremained the standard for adverse possession claims against co-tenants inHawai' i.36

In another key decision, CJ Richardson set forth the standard by which stateactions should be judged when dealing with beneficiaries of the HawaiianHomes Commission Act,37 a law establishing homestead lands for NativeHawaiians of not less than fifty percent Hawaiian ancestry. In Ahuna v.Department ofHawaiian Home Lands, the court drew the analogy between thefederal government's relationship with Native American peoples and theState's relationship with Hawaiian home lands beneficiaries, declaring that theState must "adhere to high fiduciary duties normally owed by a trustee to itsbeneficiaries."38 CJ's opinion added that the State should thus be judged by"the most exacting fiduciary standards."39 These duties included the duty to actsolely in the interests of the beneficiaries and to exercise reasonable care andskill in dealing with trust property.4 0

The lasting value of the Ahuna court's explication of these trust duties isevident in current Hawai'i case law. The Hawai'i Supreme Court has adoptedthe Ahuna standard in two landmark caseS4' related to the public land trust, theformer Hawaiian Kingdom Government and Crown Lands ceded to the UnitedStates by the Republic of Hawai'i in 1898 and then transferred to the State ofHawai'i in the 1959 Admission Act. The court has applied these same strict

32 52 Haw. 537, 481 P.2d 109 (1971).3 57 Haw. 195, 552 P.2d 1380 (1976).34 Id. at 209-10, 552 P.2d at 1390.35 Id.36 See Wailuku Agribusiness Co. v. Ah Sam, 114 Haw. 24,34, 155 P.3d 1125, 1135 (2007);

Morinoue v. Roy, 86 Haw. 76, 82-83, 947 P.2d 944, 950-51 (1997); Hana Ranch v. Kanakaole,66 Haw. 643, 645-46, 672 P.2d 550, 551-52 (1983).

1 42 Stat. 108 (1921), reprinted in 1 HAw. REv. STAT. 261 (2009).3 64 Haw. 327, 338, 640 P.2d 1161, 1168 (1982).3 Id. at 339, 640 P.2d at 1169 (quoting Seminole Nation v. United States, 316 U.S. 286,

297 (1942)) (emphasis omitted).40 Id. at 340, 640 P.2d at 1169.41 Pele Def. Fund v. Paty, 73 Haw. 578,605 n.18,837 P.2d 1247, 1274 n.18(1992); Office

of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Haw., 117 Haw. 174, 195, 177 P.3d 884,905 (2008), rev'd sub nom. Hawaii v. Office of Hawaiian Affairs, 129 S. Ct. 1436 (2009).

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fiduciary standards to the State's dealings with public trust lands, stating that"such duty is consistent with the State's obligation to use reasonable skill andcare in managing the public lands trust" and that the State's conduct should bejudged "by the most exacting fiduciary standards."42

CJ Richardson once again looked to early Hawaiian law and custom inPalama v. Sheehan.43 In Palama, his opinion found a right of access to akuleana parcel based, in part, on language in early Hawai'i deeds reserving therights of native tenants as well as the 1850 Kuleana Act's provision reservingthe "right of way" on all lands granted in fee simple." The decision also reliedon kama'aina testimony in the trial court showing that the road was an ancientHawaiian right of way.45

Turning to Hawaiian custom and practice again, and bolstered by a 1978amendment to the Hawai'i State Constitution, CJ Richardson's 1982 decisionin Kalipi v. Hawaiian Trust Co.,46 dealing with Native Hawaiian gatheringrights, broke new ground. The court stated that pursuant to article XII, section7 of the amended constitution, courts are obligated "to preserve and enforcesuch traditional rights."47 Recognizing that gathering rights are protected bythree sources in Hawai'i law-Hawai'i Revised Statutes (H.R.S.) sections 1-1and 7-1, and article XII, section 7 of the Hawai'i State Constitution-the courtdetermined that lawful residents of an ahupua'a may, for the purpose ofpracticing Native Hawaiian customs and traditions, enter undeveloped landswithin the ahupua'a to gather the items enumerated in H.R.S. section 7-1.4The court further stated that H.R.S. section 1-1 ensures the continuation ofNative Hawaiian customs and traditions not specifically enumerated in H.R.S.section 7-1 that may have been practiced in certain ahupua'a "for so long as noactual harm is done thereby."49 It noted that the "retention of a Hawaiiantradition should in each case be determined by balancing the respectiveinterests and harm once it is established that the application of the custom hascontinued in a particular area."50

The Kalipi decision set the foundation for more recent cases affirmingtraditional and customary rights. Ten years after Kalipi, the Hawai'i SupremeCourt, in Pele Defense Fund v. Paty, recognized that "native Hawaiian rights

42 Office ofHawaiian Affairs, 117 Haw. at 195, 177 P.3d at 905 (internal quotation marksomitted).

43 50 Haw. 298, 440 P.2d 95 (1968).4 See id. at 300, 440 P.2d at 97.45 Id. at 301, 440 P.2d at 97-98.46 66 Haw. 1, 656 P.2d 745 (1982).47 Id. at 4, 656 P.2d at 748.48 Id. at 7-8, 656 P.2d at 749.49 Id. at 10, 656 P.2d at 751.50 Id.

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protected by article XII, section 7 [of the Hawai'i Constitution] may extendbeyond the ahupua'a in which a native Hawaiian resides where such rights havebeen customarily and traditionally exercised in this manner."51 The courtexplained that although Kalipi had gathering rights under H.R.S. section 7-1limited to the ahupua'a in which he lived as a native tenant, H.R.S. section 1-l's "'Hawaiian usage' clause may establish certain customary Hawaiian rightsbeyond those found in section 7-1."s2 In 1995, in Public Access ShorelineHawaii v. Hawai'i County Planning Commission (PASH), the court rejectedthe argument that gathering rights disappear when an owner develops land,holding instead that the State is obligated to protect the reasonable exercise oftraditional and customary rights to the extent feasible.53 The court based itsdecision on H.R.S. section 1-1, tracing its origins to an 1847 law authorizingthe adoption of common law principles "not in conflict with the laws andusages of this kingdom." 54 The PASH court further stressed, "the precisenature and scope of the rights retained by [H.R.S.] § 1-1 ... depend upon theparticular circumstances of each case"55 and noted that Kalipi specificallyrefused to decide the "ultimate scope" of traditional rights under that statute. 6

Two decisions of the Richardson era illustrate the court's general approach topublic education. In Spears v. Honda, a 1968 case, the court ruled that theState lacked the constitutional authority to use public funds to provide bustransportation subsidies for sectarian and private school students.57 InMedeiros v. Kiyosaki, decided in 1970, the court found that the use of a familylife and sex education film series in a non-compulsory state sex educationprogram did not contravene the right of privacy and autonomy claimed byparents.5 8

The court was frequently called upon to decide cases relating to the rights ofthe electorate. In the 1969 case Akizaki v. Fong, the court determined that thecommingling of valid and invalid absentee ballots invalidated the electionresults for a representative to the State House, necessitating another election.59

In County ofKauai v. Pacific Standard Life Insurance Co., the court resolved"a conflict between the private interest of the landowners to develop their

s" 73 Haw. 578, 620, 837 P.2d 1247, 1272 (1992).52 Id. at 618, 837 P.2d at 1275 (citing Kalipi, 66 Haw. at 9-10, 656 P.2d at 750).s3 79 Haw. 425,448-49,903 P.2d 1246, 1269-70 (1995) (holding that "common law rights

ordinarily associated with tenancy do not limit customary rights existing under the laws of thisstate") (citation and internal quotation marks omitted).

54 Id. at 437 n.21, 903 P.2d at 1258 n.21 (internal quotation marks omitted).s Id. at 438, 440, 903 P.2d at 1259, 1261 (citing Pele Def. Fund v. Paty, 73 Haw. at 619,

837 P.2d at 1271) (internal quotation marks omitted).56 Id. at 439, 903 P.2d at 1260.5 51 Haw. 1, 15-16, 449 P.2d 130, 139 (1968).58 52 Haw. 436, 438-41, 478 P.2d 314, 315-17 (1970).s9 51 Haw. 354, 360, 461 P.2d 221, 224-25 (1968).

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property and the public interest of the electorate to effectively determine ...land use policy." 0 The court held for the electorate and determined that zoningestoppel does not apply where certification of a prohibiting referendumprecedes final discretionary action by the government.

The Richardson court also opened the way for greater public access to boththe administrative process and the courts. In Life of the Land v. Land UseCommission62 and later in Akau v. Olohana,6 3 the court adopted progressivestanding requirements, allowing organizations and individuals to challenge landuse decisions and to assert environmental and other important public rights.Since their initial adoption, the Hawai'i Supreme Court has consistentlyreaffirmed these standing requirements in cases involving environmental andpublic rights.6

Consistent with CJ Richardson's concern for working people, his courtliberally interpreted the statutory presumption in favor of a causal connectionbetween employment activity and an employee's death in Akamine v. HawaiianPacking & Crating Co.65 According to CJ Richardson, it was legally irrelevantthat an employee's heart attack, which occurred at work, could just as easilyhave occurred when the employee was not working: "The only [legal]consideration should have been whether the attack in fact was aggravated oraccelerated by . .. work activity."66

Finally, in another important series of cases, the Hawai'i Supreme Courtexamined negligent infliction of emotional distress claims. In the 1970 caseRodrigues v. State, the court had to decide if the plaintiff could recover foremotional distress when his newly-built house was flooded after the State failedto clear a drainage culvert. The court determined that "the interest in freedomfrom negligent infliction of serious mental distress is entitled to independentlegal protection"68 and held that "there is a duty to refrain from the negligentinfliction of serious mental distress."6 9 The duty, however, runs "only to those

60 65 Haw. 318, 323, 653 P.2d 766, 771 (1982).6! Id. at 335-36, 653 P.2d at 778-79.62 61 Haw. 3, 594 P.2d 1079 (1979).63 65 Haw. 383, 653 P.2d 1130 (1982).64 Cases citing Life ofthe Land include E & JLounge Operating Co. v. Liquor Commission

of City & County ofHonolulu, 118 Haw. 320, 346, 189 P.3d 432, 458 (2008), and Ka Pa'akaiOKa 'Aina v. Land Use Commission, 94 Haw. 31,43, 7 P.3d 1068, 1080 (2000); cases citingAkau include Office of Hawaiian Affairs v. Housing & Community Development Corp. ofHawai'i, 121 Haw. 324, 331, 219 P.3d 1111, 1118 (2009), and Sierra Club v. Department ofTransportation (Superferry l), 115 Haw. 299, 314, 167 P.3d 292, 321 (2007).

6s 53 Haw. 406, 495 P.2d 1164 (1972).6 Id. at 413, 495 P.2d at 1169.67 52 Haw. 156, 157-61, 472 P.2d 509, 512-14 (1970).61 Id. at 174, 472 P.2d at 520 (emphasis added).69 Id.

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who are foreseeably endangered by the conduct and only with respect to thoserisks or hazards whose likelihood made the conduct unreasonably dangerous."70

Four years later, in Leong v. Takasaki, by looking to the concepts of 'ohana(extended family) and ho'okama (a form of customary adoption), CJRichardson found that a blood relationship may not be necessary in order torecover for emotional distress caused by seeing a step-grandmother hit by acar." His opinion stated: "Hawaiian and Asian families of this state have longmaintained strong ties among members of the same extended family group.The Hawaiian word ohana has been used to express this concept."7 2 In 1975,CJ Richardson dissented in Kelley v. Kokua Sales, another case involving thebounds of liability in negligent infliction of serious mental distress cases. Heargued eloquently against the majority's retreat from the precedent set byRodrigues.74

Necessarily, any review of CJ Richardson's judicial opinions can give only ahint of his enormous influence. It does not begin to touch upon theextraordinary personal qualities-his optimism, his empathy, his uniquelygenerous blend of heart and spirit and head, his warmth and humor, and his rarecommon sense-that are so securely anchored in the land and people ofHawai'i. It also cannot convey how CJ Richardson's many deeds, stretchingfar beyond his judicial opinions, have greatly influenced and improved Hawai'ias well as the world beyond our shores.

For the law school's 2005 graduation ceremony, graduate Kahikino NoaDettweiler wrote and presented an Oli Aloha, a chant honoring CJRichardson. As Noa explained, the chant compares CJ Richardson to thelehua blossom, a poetic reference for a person of profound skill and wisdom.76

The Oli Aloha alludes to Kamehameha's Law of the Splintered Paddle, thelaw that declared: "Let the old men, the old women and the children go andsleep by the wayside; let them be not molested."77 Although there are severalversions of the mo'olelo (story) about this law, they all recount that some of

70 Id. at 174, 472 P.2d at 521.7 55 Haw. 398, 410-11, 520 P.2d 758, 766 (1974).72 Id. at 410, 520 P.2d at 766.7 56 Haw. 204, 532 P.2d 673 (1975).74 See id. at 210-14, 532 P.2d at 677-79 (Richardson, C.J., dissenting).7s See Kahikino Noa Dettweiler, OliAloha No William S. Richardson, 33 U. HAW. L. REV. 1

(2010).76 Id.7 PUKui, supra note 1, at 35.78 See SAMUEL M. KAMAKAU, RULING CHIEFS OF HAWAII 125-26 (rev. ed. 1992); W.D.

WESTERVELT, HAWAIIAN HISTORICAL LEGENDS 162-175 (1923); JULIE STEWART WILLIAMS,KAMEHAMEHA THE GREAT 58-59, 86-87 (rev. ed. 1993); see also STEPHEN L. DESHA,KAMEHAMEHA AND HIS WARRIOR KEKOHAUPI'O 205-16 (Frances N. Frazier trans., 2000), for acomplete account of one version of the mo'olelo along with a summary of several other

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the common people of Puna were fishing when the young chief Kamehamehacame upon them.79 Knowing only that a stranger and a chief approached, themen feared trouble and fled; Kamehameha pursued. When Kamehameha'sankle was caught in a lava crevice, Kaleleiki, one of the fishermen, turned backand with his paddle, hit Kamehameha on the head, splitting the paddle in two.80

Years later, when Kaleleiki and his companions were brought beforeKamehameha for punishment, instead of putting them to death, Kamehameharecognized his own responsibility in causing the incident.8' He proclaimed theLaw of the Splintered Paddle, protecting even the most defenseless fromoppression by those with more power and authority.82

Thus, in Noa's tribute to CJ Richardson, I was reminded that the lawschool's graduates fulfill CJ Richardson's highest aspirations for us when weprotect those who are powerless from those who have power, when we fight forthose who lack economic security and life's basic necessities, and when weseek justice for Hawai'i's native people and, indeed, for all people in ourhomeland.

But for CJ Richardson's endeavors, so many of us would have lacked theopportunity to learn the law and to seek justice through its practice. Withoutour beloved CJ, we would have had no such compelling embodiment of a lifewell lived-and lived with exemplary grace and humble nobility.

Ka Lama Ki 0 Ka No'eau-the standing torch of wisdom. Indeed!

versions.7 DESHA, supra note 78, at 206-07; WESTERVELT, supra note 78, at 167-68; WILLIAMS,

supra note 78, at 58.80 DESHA, supra note 78, at 208-09.8' WESTERVELT, supra note 78, at 174-75; WILLIAMS, supra note 78, at 86-87.82 WILLIAMS, supra note 78, at 86-87; DESHA, supra note 78, at 216.

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Orientation: Richardson Lawyering...RICHARDSON LAWYERING Introduction to Lawyering Fundamentals....

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Transcript of Orientation: Richardson Lawyering...RICHARDSON LAWYERING Introduction to Lawyering Fundamentals....