Since 2002, the State of Hawaii has contracted with Corrections Corporation of America, a private, for-profit company.

The CCA accepted the responsibility of supervising individuals who have been convicted and sentenced for crimes under Hawaii law.

The Department of Public Safety is the entity in charge of managing these contracts, which govern the confinement, custody, and care of Hawaii prisoners in CCA facilities in Arizona, Oklahoma, Mississippi, and Kentucky.

For over a decade, inmates have been involuntarily transferred to these facilities for substantial payments made by Hawaii, which has delegated its constitutional and statutory responsibilities.

prison bars

Approximately 1,700 people from Hawaii’s prison system are being kept in prisons on the mainland.

Flickr: Ken_Mayer

There is a unique relationship between the state and Native Hawaiians that has existed since statehood, and several provisions in both our state constitution and Hawaii Revised Statutes afford protections for Native Hawaiians.

Most importantly, Article XII, section 7 of the Hawaii state constitution provides, “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural, and religious purposes and possessed by ahupua‘a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.”

Ironically, approximately 1,700 of Hawaii’s prisoners, most of whom are Native Hawaiian, are in out-of-state facilities. The question then becomes: Does the state’s duty to protect Native Hawaiian rights extend to the criminal justice system?

Hawaiians have a deep connection to the ‘āina (land) and believe that their akua (gods), ‘aumākua (ancestral spirits) and kūpuna (ancestors) live in nature.

The symbolism of stripping them of support systems such as family and community adds to the perpetuation of the destruction of their native identity, something all too familiar throughout the history of indigenous peoples.

Perhaps the idea of empowering prisoners threatens administrators who treat them like pieces of junk mail only to be shipped off thousands of miles away.

 

This injury gets exacerbated when they are out-of-state and imprisoned. In Davis v. Abercrombie, eight Hawaii prisoners at Saguaro Correctional Center in Arizona sued the state of Hawaii and CCA for enforcing a policy that impinges on their religious practices.

Each is of Native Hawaiian ancestry and is a practitioner of the Native Hawaiian religion, which helps to restore their native identity through cultural training while also rehabilitating them.

Specifically, they allege that CCA’s policies and procedures regarding group worship, access to sacred items, and access to a spiritual advisor violate their rights under the Religious Land Use and Institutionalized Persons Act, as well as the federal and state constitutions. That act is a federal law that prohibits the imposition of burdens on the religious exercise of prisoners.

In October 2014, plaintiffs in Davis v. Abercrombie were granted class action status to pursue their claims against the state. They will be representing 179 inmates at Saguaro who are registered as practitioners of the Native Hawaiian religion.

In the same lawsuit, the group brought a separate claim against the state and CCA in 2012 for prohibiting the possession of personal prayer objects.

In lead plaintiff Davis’s case, he was gifted a kukui nut by a well-respected kumu (teacher), John Keola Lake. It is common for kumu and kahu (priests) to gift these objects to practitioners as a representation of the mana (spiritual power) of their ‘aumākua and akua.

The kukui nut was wrapped in ‘upena (net), tied off with pūpū shell and was said to be a “symbol of enlightenment and knowledge, and . . . a manifestation of the deity Lono.”

It was to remind Davis of Kumu Lake’s valuable teachings and to provide spiritual comfort. Davis kept the object in his possession and used it in daily prayer and chants as a way to perpetuate and sustain his mana.

The state justified confiscating the kukui because it was not listed on the retention list when Davis was transferred from Diamondback Correctional Facility in Oklahoma to Saguaro.

The state also argued that the kukui nut contained flammable oils that would jeopardize the safe operation of the facility. The court denied a request for preliminary injunction, which would have prevented CCA from confiscating personal Native Hawaiian prayer objects.

The kukui nut in Davis v. Abercrombie is more than just a mere “rock” or “nut,” it is symbolic of the connection to ‘āina and ʻaumākua, a palpable yet spiritual relationship not equaled in Western religious constructs.

Native Hawaiian religion is family-centered. In Hawaiian culture, the land your family identifies with is recognized as your ancestor. The spiritual connection with the land is experienced as a living, day-to-day relationship. The land where your kūpuna are buried contains their wisdom and energy, and returning to and connecting with the land maintains the connection and energy to sustain life’s experiences.

In PDF v. Paty, the Hawaii Supreme Court declared, “It is undisputed that the rights of native Hawaiians are a matter of great public concern in Hawaii.” In the Davis case, however, the public concern weighed in favor of the state.

Perhaps the idea of empowering prisoners threatens administrators who treat them like pieces of junk mail only to be shipped off thousands of miles away.

Still, there is a duty owed to protect the religious practices of Native Hawaiians that should extend beyond the barbed wire and iron bars.

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