APPLICATION FOR LEAVE TO FILE AND BRIEF OF THE OFFICE … 22.pdfROD BURGESS; CLARENCE CHING; FRENCY...

•

PRICE v. AKAKA

APPLICATION FOR LEAVE TO FILE AND BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS

AS AMICUS CURIAE

APPLICATION FOR LEAVE TO FILE THIS BRIEF AMICUS CURIAE AND INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

The Office of Hawaiian Affairs argues strenuously that the

District Judge erred in his conclusions of law that "the law was

sufficiently clear in 1988 that a reasonable official would -understand that the expenditure of section 5(f) funds to benefit

non-native Hawaiians was a violation of section 5(f)" and that "if

section 5(f) funds were used to advance the single definition

referendum, defendants would not be entitled to qualified immunity

for their actions." Price v. Akaka, civ. No. 88-00773 DAE, filed

June 12, 1992, slip op. at 20. Thoughtful legal opinions issued by

the Office of Hawaii's Attorney General and explicit findings and

conclusions issued by Hawaii's Circuit Court judges indicate that

this subject was far from settled. Among the reasons why these

issues remain unsettled is that no neutral judicial standards exist

to determine when funds are spent "to benefit non-native Hawaiians"

as opposed to "native Hawaiians" and when funds are spent "to

advance the single definition referendum" rather than simply to

•

PRICE v. AKAKA

APPLICATION FOR LEAVE TO FILE AND BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS

AS AMICUS CURIAE

APPLICATION FOR LEAVE TO FILE THIS BRIEF AMICUS CURIAE AND INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

The Office of Hawaiian Affairs argues strenuously that the

District Judge erred in his conclusions of law that "the law was

sufficiently clear in 1988 that a reasonable official would -understand that the expenditure of section 5(f) funds to benefit


section 5(f) funds were used to advance the single definition


for their actions." Price v. Akaka, civ. No. 88-00773 DAE, filed

June 12, 1992, slip op. at 20. Thoughtful legal opinions issued by

the Office of Hawaii's Attorney General and explicit findings and

conclusions issued by Hawaii's Circuit Court judges indicate that

this subject was far from settled. Among the reasons why these

issues remain unsettled is that no neutral judicial standards exist

to determine when funds are spent "to benefit non-native Hawaiians"

as opposed to "native Hawaiians" and when funds are spent "to

advance the single definition referendum" rather than simply to

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C.A. No. 92-16462

NUl LOA PRICE, Dr. aka MAUl LOA, individually and in his capacity as chief of the

HOU HAWAIIANS; THE HOU HAWAIIANS, a native hawaiian Ohana; KAMUELA PRICE, individually and in his capacity

as member of elder council of the Hou Hawaiians,

Plaintiffs-Appellees,

v.

MOANlKEALA AKAKA; ROD BURGESS; CLARENCE CHING; FRENCHY DeSOTO; LOUIS HAO, MANU KAHAIALII,

THOMAS KALUKUKUI, SR.; MOSES KEALE, SR.; and KEVIN MAHOE,

Defendants-Appellant •

. "--::-~-:~.-" -.~:- -:: :.-:--=": ".-:...;-:.:~:..-;;.::;;.:-"::::.;;.:~~-""~-.;- ... -.. -:--=:.. '::-":'"6N:-ipPEAL'-"F"ROM~--THi " .. -- .... ..-. UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

CIVIL NO. 88-0772

MOTION FOR LEAVE TO FILE BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS AS AMICUS CURIAE IN SUPPORT OF APPELLANTS MOANIKEALA AKAKA;

ROD BURGESS; CLARENCE CHING; FRENCY DeSOTO; LOUIS HAO; MANU THOMAS KAULUKUKUI, SR., MOSES KEALE, SR.; and KEVIN MAHOE

BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS AS AMICUS CURIAE

SHERRY P. BRODER #1880 Attorney at Law A Law corporation Grosvenor center, suite 1800 733 Bishop Street Honolulu, Hawaii 96813 Telephone No. (808) 531-1411 Attorney for THE OFFICE OF HAWAIIAN AFFAIRS



C.A. No. 92-16462





v.

MOANlKEALA AKAKA; ROD BURGESS; CLARENCE CHING; FRENCHY DeSOTO; LOUIS HAO, MANU KAHAIALII,


Defendants-Appellant •

. "--::-~-:~.-" -.~:- -:: :.-:--=": ".-:...;-:.:~:..-;;.::;;.:-"::::.;;.:~~-""~-.;- ... -.. -:--=:.. '::-":'"6N:-ipPEAL'-"F"ROM~--THi " .. -- .... ..-. UNITED STATES DISTRICT COURT


CIVIL NO. 88-0772


ROD BURGESS; CLARENCE CHING; FRENCY DeSOTO; LOUIS HAO; MANU THOMAS KAULUKUKUI, SR., MOSES KEALE, SR.; and KEVIN MAHOE

BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS AS AMICUS CURIAE

SHERRY P. BRODER #1880 Attorney at Law A Law corporation Grosvenor center, suite 1800 733 Bishop Street Honolulu, Hawaii 96813 Telephone No. (808) 531-1411 Attorney for THE OFFICE OF HAWAIIAN AFFAIRS




C.A. No. 92-16462





v.

MOANIKEALA AKAKA; ROD BURGESS; CLARENCE CHING; FRENCHY DeSOTO; LOUIS HAO, MANU KAHAIALII,


Defendants-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


CIVIL NO. 88-0772

MOTION FOR LEAVE TO FILE BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS AS AMICUS CURIAE IN SUPPORT OF APPELLANTS MOANlKEALA AKAKA;

ROD BURGESS; CLARENCE CHING; FRENCY DeSOTO; LOUIS HAO; MANU THOMAS KAULUKUKUI, SR., MOSES REALE, SR.; and KEVIN MAHOE

The Office of Hawaiian Affairs (naHAn) hereby

respectfully moves this Honorable Court for leave to file an Amicus

Brief in the Ninth Circuit in support of in individually named

Trustees of the Office of Hawaiian Affairs, Appellants Moanikeala

Akaka; Rod Burgess; Clarence Ching; Frenchy DeSoto; Louis Hao; Manu

Kahaialii; Thomas Kaulukulukui, Sr., Moses Keale, Sr.; and Kevin



C.A. No. 92-16462





v.






CIVIL NO. 88-0772

MOTION FOR LEAVE TO FILE BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS AS AMICUS CURIAE IN SUPPORT OF APPELLANTS MOANlKEALA AKAKA;

ROD BURGESS; CLARENCE CHING; FRENCY DeSOTO; LOUIS HAO; MANU THOMAS KAULUKUKUI, SR., MOSES REALE, SR.; and KEVIN MAHOE

The Office of Hawaiian Affairs (naHAn) hereby

respectfully moves this Honorable Court for leave to file an Amicus

Brief in the Ninth Circuit in support of in individually named

Trustees of the Office of Hawaiian Affairs, Appellants Moanikeala

Akaka; Rod Burgess; Clarence Ching; Frenchy DeSoto; Louis Hao; Manu

Kahaialii; Thomas Kaulukulukui, Sr., Moses Keale, Sr.; and Kevin


Mahoe. The interests of the Amicus Curiae are set out in the brief

attached hereto. The Office of Hawaiian Affairs seeks leave to

file this brief because the issues on appeal impact on all Native

Hawaiians and have an importance beyond the interests of the

parties.

This Motion is made pursuant to Rule 29 of the Rules of

the Appellate Procedure, the memorandum attached hereto, and the

records and pleadings filed herein.

DATED: Honolulu, Hawaii, _b_a_UA-__ ~ __ ~ ____ , 1992.

Attorney for THE OFFICE OF HAWAIIAN AFFAIRS

Mahoe. The interests of the Amicus Curiae are set out in the brief

attached hereto. The Office of Hawaiian Affairs seeks leave to

file this brief because the issues on appeal impact on all Native

Hawaiians and have an importance beyond the interests of the

parties.

This Motion is made pursuant to Rule 29 of the Rules of

the Appellate Procedure, the memorandum attached hereto, and the

records and pleadings filed herein.

DATED: Honolulu, Hawaii, _b_a_UA-__ ~ __ ~ ____ , 1992.

Attorney for THE OFFICE OF HAWAIIAN AFFAIRS




C.A. No. 92-16462

NUI LOA PRICE, Dr. aka MAUl LOA, individually and in his capacity as chief of the




v.






CIVIL NO. 88-0772


ROD BURGESS; CLARENCE CHING; FRENCY DeSOTO; LOUIS HAO; MANU THOMAS KAU LUKUI<U I , SR., MOSES KEALE, SR.; and KEVIN MAHOE

I. PRELIMINARY STATEMENT

The Office of Hawaiian Affairs (hereafter referred to as

("CHA") respectfully submits this Amicus Curiae Brief in support of

Appellants position in this case. The interests of the Amicus

curiae are set out below. OHA supports qualified immunity for the



C.A. No. 92-16462

NUI LOA PRICE, Dr. aka MAUl LOA, individually and in his capacity as chief of the




v.






CIVIL NO. 88-0772


ROD BURGESS; CLARENCE CHING; FRENCY DeSOTO; LOUIS HAO; MANU THOMAS KAU LUKUI<U I , SR., MOSES KEALE, SR.; and KEVIN MAHOE

I. PRELIMINARY STATEMENT

The Office of Hawaiian Affairs (hereafter referred to as

("CHA") respectfully submits this Amicus Curiae Brief in support of

Appellants position in this case. The interests of the Amicus

curiae are set out below. OHA supports qualified immunity for the


Curiae are set out below. aHA supports qualified immunity for the

individual Trustees in the exercise of policy-making judgments

relating to the posing to their constituents the questions of blood

quantum in the efforts at nation building. As native people,

Hawaiians have the rights to make their own decisions as a people

about who they are and others should not decide their fate for

them.

II. INTEREST OF AMICUS CURIAE

Amicus curiae. is the Office of Hawaiian Affairs, the

Native Hawaiian entity designated in the Hawaii state Constitution

to represent the native people. The Trustees of the Office of

Hawaiian Affairs are the duly elected representatives of the Native

Hawaiian people and are elected statewide by qualified voters who

are Native Hawaiian. The Trustees form a nine-member board and are

elected for four-year staggered terms. (Hawaii state Constitution,

Article XII, Sec. 5-6).

The establishment of the Office of Hawaiian Affairs was

the cUlmination of several historical events. In January 1893,

Westerners, primarily Americans, used arms to overthrow the lawful

government of the Kingdom of Hawaii and its monarch, Queen

Liliuokalani. The united states Minister in Hawaii

ordered marines to be landed and recognized the new provisional

government even before Queen Liliuokalani had surrendered. The

Queen relinquished her government authority, but under formal

protest to the united States. See Liliuokalani v. united states,

45 ct. Cl. 418, 435 (1910).

2

Curiae are set out below. aHA supports qualified immunity for the

individual Trustees in the exercise of policy-making judgments

relating to the posing to their constituents the questions of blood

quantum in the efforts at nation building. As native people,

Hawaiians have the rights to make their own decisions as a people

about who they are and others should not decide their fate for

them.

II. INTEREST OF AMICUS CURIAE

Amicus curiae. is the Office of Hawaiian Affairs, the

Native Hawaiian entity designated in the Hawaii state Constitution

to represent the native people. The Trustees of the Office of

Hawaiian Affairs are the duly elected representatives of the Native

Hawaiian people and are elected statewide by qualified voters who

are Native Hawaiian. The Trustees form a nine-member board and are

elected for four-year staggered terms. (Hawaii state Constitution,

Article XII, Sec. 5-6).

The establishment of the Office of Hawaiian Affairs was

the cUlmination of several historical events. In January 1893,

Westerners, primarily Americans, used arms to overthrow the lawful

government of the Kingdom of Hawaii and its monarch, Queen

Liliuokalani. The united states Minister in Hawaii

ordered marines to be landed and recognized the new provisional

government even before Queen Liliuokalani had surrendered. The

Queen relinquished her government authority, but under formal

protest to the united States. See Liliuokalani v. united states,

45 ct. Cl. 418, 435 (1910).

2


The insurrectionists petitioned the United states for

annexation of Hawaii by the united states but President Cleveland

refused and found that " ..• (B]ut for the lawless occupation of

Hawaii under false pretexts by the United states forces . the

Queen and her government would never have yielded "

President of the united states, Message Relating to the Hawaiian

Islands, H.R. Exec. Doc. No. 47, 53d Cong., 2d Sess. XIII (1893).

The provisional government then proceeded to establish the Republic

of Hawaii; to abolish the Kingdom of Hawaii, the Legislature, and

the monarchy; and to expropriate all the Hawaii Government and

Crown Land without compensation. Hawaiian Island Constitution of

1894, art. 94 reprinted in the Fundamental Law of Hawaii 3 (L.

Thurston ed.) (Honolulu; Hawaiian Gazette Co., Ltd., 1904). (The

reigning Monarch had held title to the Crown Land and the

Government had held title to the Government Land.)

In 1898, however, the united states did proceed to annex

Hawaii. At the time of annexation, the Republic of Hawaii ceded

approximately 1,750,000 acres of formerly Government and Crown

Lands to the United states. J. Hobbs, Hawaii: A Pageant of the

Soil 118 (1935). The Joint Resolution to Provide for Annexing the

Hawaiian Islands to the United states IIcede(d] and transfer[red] to

the united states the absolute fee and ownership of all public,

Government, or Crown lands • belonging to the Government of the

Hawaiian Islands, together with every right and appurtenance

thereunto appertaining." Joint Resolution, J. Res. 55, July 5,

1898, Sec. 1, 30 Stat. 750. The Joint Resolution of Annexation

3

The insurrectionists petitioned the United states for

annexation of Hawaii by the united states but President Cleveland

refused and found that " ..• (B]ut for the lawless occupation of

Hawaii under false pretexts by the United states forces . the

Queen and her government would never have yielded "

President of the united states, Message Relating to the Hawaiian

Islands, H.R. Exec. Doc. No. 47, 53d Cong., 2d Sess. XIII (1893).

The provisional government then proceeded to establish the Republic

of Hawaii; to abolish the Kingdom of Hawaii, the Legislature, and

the monarchy; and to expropriate all the Hawaii Government and

Crown Land without compensation. Hawaiian Island Constitution of

1894, art. 94 reprinted in the Fundamental Law of Hawaii 3 (L.

Thurston ed.) (Honolulu; Hawaiian Gazette Co., Ltd., 1904). (The

reigning Monarch had held title to the Crown Land and the

Government had held title to the Government Land.)

In 1898, however, the united states did proceed to annex

Hawaii. At the time of annexation, the Republic of Hawaii ceded

approximately 1,750,000 acres of formerly Government and Crown

Lands to the United states. J. Hobbs, Hawaii: A Pageant of the

Soil 118 (1935). The Joint Resolution to Provide for Annexing the

Hawaiian Islands to the United states IIcede(d] and transfer[red] to

the united states the absolute fee and ownership of all public,

Government, or Crown lands • belonging to the Government of the

Hawaiian Islands, together with every right and appurtenance

thereunto appertaining." Joint Resolution, J. Res. 55, July 5,

1898, Sec. 1, 30 Stat. 750. The Joint Resolution of Annexation

3


stated. that existing federal laws dealing with public lands would

not be applicable to such lands in Hawaii but "Congress shall enact

special laws for their management and disposition." Id.

Another section of the Joint Resolution of Annexation

provided that:

[AlII revenues from or proceeds of the [public lands], except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United states, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes. Id.

In an 1899 opinion, the United states Attorney General interpreted

this language as subjecting the public lands in Hawaii to Ita

special trust, limiting the revenue from or proceeds of the same to

the uses of the inhabitants of the Hawaiian Islands for educational

and other purposes." 22 OPe Atty. Gen. 574 (1899).

The Joint Resolution was followed by Hawaii's organic

Act, approved April 30, 1900. Act of April 30, 1900, Ch. 339, 31

stat. 141. The organic Act established Hawaii's territorial

government, confirmed the cession of Government and Crown Lands to

the United states, and provided specific laws for the

administration of public lands.

The organic Act of 1900 provided that the Territory of

Hawaii would retain control and management of these "ceded" lands,

except for those lands "set aside" for the United states by either

the Governor's or President's Executive order. Act of April 30,

1900, Ch. 339, 31 stat. 141 (Sec. 91).

4

stated. that existing federal laws dealing with public lands would

not be applicable to such lands in Hawaii but "Congress shall enact

special laws for their management and disposition." Id.

Another section of the Joint Resolution of Annexation

provided that:

[AlII revenues from or proceeds of the [public lands], except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United states, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes. Id.

In an 1899 opinion, the United states Attorney General interpreted

this language as subjecting the public lands in Hawaii to Ita

special trust, limiting the revenue from or proceeds of the same to

the uses of the inhabitants of the Hawaiian Islands for educational

and other purposes." 22 OPe Atty. Gen. 574 (1899).

The Joint Resolution was followed by Hawaii's organic

Act, approved April 30, 1900. Act of April 30, 1900, Ch. 339, 31

stat. 141. The organic Act established Hawaii's territorial

government, confirmed the cession of Government and Crown Lands to

the United states, and provided specific laws for the

administration of public lands.

The organic Act of 1900 provided that the Territory of

Hawaii would retain control and management of these "ceded" lands,

except for those lands "set aside" for the United states by either

the Governor's or President's Executive order. Act of April 30,

1900, Ch. 339, 31 stat. 141 (Sec. 91).

4


The organic Act also provided that the proceeds from the

territory's sale, lease, or other disposition of these ceded lands

should be deposited in the territory's treasury for "such uses and

purposes for the benefit of the inhabitants of the Territory of

Hawaii as are consistent with the Joint Resolution of Annexation."

Id., Sec. 73 ( 4) (c) •

Although the Republic had ceded absolute title of the

Crown and Government Lands to the united states, both the Joint

Resolution of Annexation and the Organic Act recognized that these

lands were impressed with a special trust under the federal

government's proprietorship. Hawaii's ceded lands never became

part of the federal public domain. Because of their unique status,

the United States received legal title to the lands, while a

beneficial interest remained with the inhabitants of Hawaii.

One recognition of the unique status of ceded lands, as

well as the special relationship between the federal government and

native Hawaiians, came in 1921 with the passage of the Hawaiian

Homes Commission Act. Act of July 9, 1921, Pub. L. No. 34, Ch. 42,

42 stat. 108. The Act withdrew approximately 18S,000 acres of

ceded lands and brought them under the jurisdiction of the Hawaiian

Homes commission to be leased to native Hawaiians at a nominal fee

for 99 years. Id., Sec. 203, 207, 20S. A native Hawaiian was

defined in the Act as "any descendant of not less than one-half

part of the blood of the races inhabiting the Hawaiian Islands

previous to 177S." Id., Sec. 201(a) (7). Thus, only certain native

peoples could qualify for ceded lands designated to be under the

5

The organic Act also provided that the proceeds from the

territory's sale, lease, or other disposition of these ceded lands

should be deposited in the territory's treasury for "such uses and

purposes for the benefit of the inhabitants of the Territory of

Hawaii as are consistent with the Joint Resolution of Annexation."

Id., Sec. 73 ( 4) (c) •

Although the Republic had ceded absolute title of the

Crown and Government Lands to the united states, both the Joint

Resolution of Annexation and the Organic Act recognized that these

lands were impressed with a special trust under the federal

government's proprietorship. Hawaii's ceded lands never became

part of the federal public domain. Because of their unique status,

the United States received legal title to the lands, while a

beneficial interest remained with the inhabitants of Hawaii.

One recognition of the unique status of ceded lands, as

well as the special relationship between the federal government and

native Hawaiians, came in 1921 with the passage of the Hawaiian

Homes Commission Act. Act of July 9, 1921, Pub. L. No. 34, Ch. 42,

42 stat. 108. The Act withdrew approximately 18S,000 acres of

ceded lands and brought them under the jurisdiction of the Hawaiian

Homes commission to be leased to native Hawaiians at a nominal fee

for 99 years. Id., Sec. 203, 207, 20S. A native Hawaiian was

defined in the Act as "any descendant of not less than one-half

part of the blood of the races inhabiting the Hawaiian Islands

previous to 177S." Id., Sec. 201(a) (7). Thus, only certain native

peoples could qualify for ceded lands designated to be under the

5


jurisdiction of the Hawaii Homes Commission. Congressional Records

reflect that in 1920 Hawaii's Delegate to Congress advocated that

there be no blood quantum. He also said that if one were required

that the definitions of Native Hawaiian should be based on a

one-thirty-second blood quantum. (See Resolution Relating to

Ho'Okahi No Maua E'We, Appellants Excerpt of Records at (hereafter

"A.E.") at 96, attached hereto as Appendix A. Nevertheless, the

arbitrary requirement of a 50% blood quantum was adopted by

Congress.

When Hawaii was admitted to statehood in 1959, the

federal government returned to the State of Hawaii ownership of all

the ceded lands which were not set aside for its own use. section

5(f) of the Admission Act mandated the state to hold ceded lands

(excluding the land reserved under the Hawaiian Homes commission

Act) as a public trust for one or more of five purposes, including

betterment of the conditions of native Hawaiians (as defined in the

Hawaiian Homes Commission Act of 1920). Admission Act of March 18,

1959, Pub. L. No. 86-3, 73 Stat. 4. One portion of the special

trust of the ceded lands was thus specifically intended for native

Hawaiians. section 5 (f) further provided that the use of the ceded

lands, their proceeds and income for any purposes other than those

enumerated "shall constitute a breach of trust for which suit may

be brought by the united States." Thus I Section 5 (f) in part can

be viewed as a further safeguard to the continued existence of

native Hawaiians and a further protection of their rights in native

lands.

6

jurisdiction of the Hawaii Homes Commission. Congressional Records

reflect that in 1920 Hawaii's Delegate to Congress advocated that

there be no blood quantum. He also said that if one were required

that the definitions of Native Hawaiian should be based on a

one-thirty-second blood quantum. (See Resolution Relating to

Ho'Okahi No Maua E'We, Appellants Excerpt of Records at (hereafter

"A.E.") at 96, attached hereto as Appendix A. Nevertheless, the

arbitrary requirement of a 50% blood quantum was adopted by

Congress.

When Hawaii was admitted to statehood in 1959, the

federal government returned to the State of Hawaii ownership of all

the ceded lands which were not set aside for its own use. section

5(f) of the Admission Act mandated the state to hold ceded lands

(excluding the land reserved under the Hawaiian Homes commission

Act) as a public trust for one or more of five purposes, including

betterment of the conditions of native Hawaiians (as defined in the

Hawaiian Homes Commission Act of 1920). Admission Act of March 18,

1959, Pub. L. No. 86-3, 73 Stat. 4. One portion of the special

trust of the ceded lands was thus specifically intended for native

Hawaiians. section 5 (f) further provided that the use of the ceded

lands, their proceeds and income for any purposes other than those

enumerated "shall constitute a breach of trust for which suit may

be brought by the united States." Thus I Section 5 (f) in part can

be viewed as a further safeguard to the continued existence of

native Hawaiians and a further protection of their rights in native

lands.

6


In 1978, the state of Hawaii held a constitutional

Convention. From 1893 until that time, Native Hawaiians had been

deprived of their original sovereignty and had not had their own

government. In addition, neither the state of Hawaii nor its

predecessor the Territory of Hawaii had implemented their ceded

lands trust responsibilities, particularly with respect to the

native Hawaiians.

The Delegates to the 1978 Constitutional Convention

proposed a number of amendments to the Hawaii state Constitution to

address these issues and the proposed amendments were adopted by a

majority of the general public voters.

until 1978, little attention had been focused on the

trust language of section 5(f) of the Admission Act. At.the 1978

Constitutional convention, however, members of the Hawaiian

Affairs Committee sought to implement the Admission Act's trust

language as it relates to native Hawaiians. See, e.g.,

Constitutional Convention of 1978, Committee on Hawaiian Affairs

Standing Comm. Rept. No. 59 and Committee of the Whole Rept. No.

13. As a result, three new sections were added to what is now the

Article XII of the fundamental law of the state of Hawaii.

section 4 of Article XII now specifies that the lands

granted to the state by section 5(b) of the Admission Act (with the

exception of the Hawaiian Homes Commission Act's lands) are to be

held by the state as a public trust for native Hawaiians and the

general public. Section 5 of Article XII establishes the Office of

Hawaiian Affairs, to be governed by a nine-member elected board of

7

In 1978, the state of Hawaii held a constitutional

Convention. From 1893 until that time, Native Hawaiians had been

deprived of their original sovereignty and had not had their own

government. In addition, neither the state of Hawaii nor its

predecessor the Territory of Hawaii had implemented their ceded

lands trust responsibilities, particularly with respect to the

native Hawaiians.

The Delegates to the 1978 Constitutional Convention

proposed a number of amendments to the Hawaii state Constitution to

address these issues and the proposed amendments were adopted by a

majority of the general public voters.

until 1978, little attention had been focused on the

trust language of section 5(f) of the Admission Act. At.the 1978

Constitutional convention, however, members of the Hawaiian

Affairs Committee sought to implement the Admission Act's trust

language as it relates to native Hawaiians. See, e.g.,

Constitutional Convention of 1978, Committee on Hawaiian Affairs

Standing Comm. Rept. No. 59 and Committee of the Whole Rept. No.

13. As a result, three new sections were added to what is now the

Article XII of the fundamental law of the state of Hawaii.

section 4 of Article XII now specifies that the lands

granted to the state by section 5(b) of the Admission Act (with the

exception of the Hawaiian Homes Commission Act's lands) are to be

held by the state as a public trust for native Hawaiians and the

general public. Section 5 of Article XII establishes the Office of

Hawaiian Affairs, to be governed by a nine-member elected board of

7


trustees, which is to hold title to all real or personal property

set aside or conveyed to it as a trust for native Hawaiians and

Hawaiians. section 6 of Article XII sets forth the powers of the

board of trustees and makes clear that the Office of Hawaiian

Affairs is to hold in trust a pro rata portion of the income and

proceeds derived from lands granted to the state by section 5(b) of

the Admission Act.

The statutory purposes of the Office of Hawaiian Affairs

include promoting the betterment of conditions of native Hawaiians

and Hawaiians; serving as the principal state agency for the

performance, development, and coordination of programs and

activities relating to Hawaiians; assessing the policies and

practices of other agencies impacting on Hawaiians; conducting

advocacy efforts; receiving, and disbursing grants and donations

from all sources for Hawaiians; and, serving as a receptacle for

reparations from the federal government. See Chapter la, Hawaii

Revised statutes.

The Office of Hawaiian Affairs was established to serve

all persons of Hawaiian ancestry. Thus, although the Office of

Hawaiian Affairs I amendment names two beneficiaries of the aHA

trust - native Hawaiians (those with 50 percent or more aboriginal

blood) and Hawaiians (those with any quantum of aboriginal blood)

- the Office of Hawaiian Affairs at the present time is restricted

to using its public land trust funds solely for the benefit of its

native Hawaiian beneficiaries.

Securing a pro rata portion of the ceded land trust fund

8

trustees, which is to hold title to all real or personal property

set aside or conveyed to it as a trust for native Hawaiians and

Hawaiians. section 6 of Article XII sets forth the powers of the

board of trustees and makes clear that the Office of Hawaiian

Affairs is to hold in trust a pro rata portion of the income and

proceeds derived from lands granted to the state by section 5(b) of

the Admission Act.

The statutory purposes of the Office of Hawaiian Affairs

include promoting the betterment of conditions of native Hawaiians

and Hawaiians; serving as the principal state agency for the

performance, development, and coordination of programs and

activities relating to Hawaiians; assessing the policies and

practices of other agencies impacting on Hawaiians; conducting

advocacy efforts; receiving, and disbursing grants and donations

from all sources for Hawaiians; and, serving as a receptacle for

reparations from the federal government. See Chapter la, Hawaii

Revised statutes.

The Office of Hawaiian Affairs was established to serve

all persons of Hawaiian ancestry. Thus, although the Office of

Hawaiian Affairs I amendment names two beneficiaries of the aHA

trust - native Hawaiians (those with 50 percent or more aboriginal

blood) and Hawaiians (those with any quantum of aboriginal blood)

- the Office of Hawaiian Affairs at the present time is restricted

to using its public land trust funds solely for the benefit of its

native Hawaiian beneficiaries.

Securing a pro rata portion of the ceded land trust fund

8


for native Hawaiians was a primary motive for establishing the

Office of Hawaiian Affairs. Of equal importance, however, were the

objectives of providing all' Native Hawaiians with the right to

choose their leaders through the elective process and providing a

vehicle for self-government and self-determination.

The Office of Hawaiian Affairs is a unique entity

combining features of a public trust, government agency, and an

independent entity with its own duly elected officials. The Office

of Hawaiian Affairs is independent of the executive branch. Its

independence is assured by its primary funding mechanism (the ceded

land trust fund), its control over internal affairs, its ability to

acquire and manage property, its power

to enter into contracts and leases, and the elective process by

,which the Board of Trustees is chosen from among the Hawaiian

people.

III. ARGUMENT

A. Introduction

The Complaint in the present case alleged that the individuals

who were then aHA Trustees violated their fiduciary

responsibilities regarding the aHA share of the public trust land

revenues by allegedly failing to keep such income "separate and

apart from the other funds held" by aHA and to "reinvest the income

therefrom in a reasonably prudent manner toward the purposes and

uses enumerated by Congress." The Complaint also alleges that

these individuals violated their fiduciary duties by expending

public land trust funds "for uses and purposes other than those

9

for native Hawaiians was a primary motive for establishing the

Office of Hawaiian Affairs. Of equal importance, however, were the

objectives of providing all' Native Hawaiians with the right to

choose their leaders through the elective process and providing a

vehicle for self-government and self-determination.

The Office of Hawaiian Affairs is a unique entity

combining features of a public trust, government agency, and an

independent entity with its own duly elected officials. The Office

of Hawaiian Affairs is independent of the executive branch. Its

independence is assured by its primary funding mechanism (the ceded

land trust fund), its control over internal affairs, its ability to

acquire and manage property, its power

to enter into contracts and leases, and the elective process by

,which the Board of Trustees is chosen from among the Hawaiian

people.

III. ARGUMENT

A. Introduction


who were then aHA Trustees violated their fiduciary

responsibilities regarding the aHA share of the public trust land

revenues by allegedly failing to keep such income "separate and

apart from the other funds held" by aHA and to "reinvest the income

therefrom in a reasonably prudent manner toward the purposes and

uses enumerated by Congress." The Complaint also alleges that

these individuals violated their fiduciary duties by expending

public land trust funds "for uses and purposes other than those

9


purposes permitted by section 5 (f) of the Admission Act," in

particular by using such funds for the benefit of "persons

denominated as 'Hawaiians' who are persons of less than 50%

Hawaiian ancestry." (See A.E. at 001.)

This Honorable Court of Appeals has previously ruled that the

alleged failure of aHA (or any public agency) to separate its funds

into rigid and impermeable compartments does not violate its

statutory or constitutional responsibilities and does not present

a cause of action for any party that alleges that it is aggrieved

by these alleged procedures. Price v. state of Hawaii, 921 F.2d

950, 956 (9th eire 1990). That opinion also said, however, that

"federal courts must ultimately determine whether the property has

been diverted from section 5(f) purposes" and that such a review

would be appropriate "in the context of private litigation under

section 42 U.S.C. section 1983 which focused on some particular

diversion. II Id.

The present case has, therefore, evolved into a challenge

of a specific activity undertaken by the aHA Trustees--the "use of

section 5 (f) funds to fund a nonbinding mail-out referendum in

November of 1988." Price v. Akaka, civ. No. 88-00773 DAE (D.Haw.

June 12, 1992), slip Ope at 12, A.E. at 517. These charges against

the individual Trustees concern their activities designed to

determine the wishes of aHA's beneficiaries (persons of Hawaiian

ancestry) on one of the most fundamental questions facing the

Hawaiian people--whether they should continue to be divided into

categories based on their "blood quantum" or should be united for

10

purposes permitted by section 5 (f) of the Admission Act," in

particular by using such funds for the benefit of "persons

denominated as 'Hawaiians' who are persons of less than 50%

Hawaiian ancestry." (See A.E. at 001.)


alleged failure of aHA (or any public agency) to separate its funds





950, 956 (9th eire 1990). That opinion also said, however, that




section 42 U.S.C. section 1983 which focused on some particular

diversion. II Id.

The present case has, therefore, evolved into a challenge

of a specific activity undertaken by the aHA Trustees--the "use of

section 5 (f) funds to fund a nonbinding mail-out referendum in

November of 1988." Price v. Akaka, civ. No. 88-00773 DAE (D.Haw.

June 12, 1992), slip Ope at 12, A.E. at 517. These charges against


determine the wishes of aHA's beneficiaries (persons of Hawaiian




10


most purposes into a single community.1 According to the District

Court's opinion, the aHA Trustees "sought to use section 5(f) funds

for this referendum, as they felt that adoption of a single

definition would better the condition of native Hawaiians, in that

the blood quantum requirement had long been recognized as the

single most divisive issue in the Hawaiian community." Id. at 13,

citing Hoohili v. Ariyoshi, 631 F. Supp. 1153, 1161 (D.Haw. 1986).

It is the position of aHA that expenditures can be made on the

referendum from aHA's share of the 5(f) references. In fact, as

will be explained below, the OHA Trustees used section 5(f) funds

only incidentally, if at all, to fund this referendum.

The District Court ruled in the present case that "[t]he

critical question is therefore whether the defendants' conduct

violated clearly established law at the time that conduct

occurred." Id. at 11.

Because this referendum has taken on such a central role

in this litigation, this amicus brief will predominately address

the facts and law concerning this activity. The Office of Hawaiian

Affairs submits that the actions of the individual Trustees and the

expenditures on this project have been entirely proper and are not

an appropriate subject for judicial challenge. The Office of

Hawaiian Affairs also submits that the law on the question of the

1These activities are described in more detail below, but it should be noted at the outset that the Appellee Trustees did not seek to alter the special status of half-blood Hawaiians with regard to eligibility for leases on Hawaiian Home Lands. See, ~., Resolution Relating to Ho'okahi No Maua E'we, paras. 1, 10, A.E. at 096, Appendix A attached hereto.

11


Court's opinion, the aHA Trustees "sought to use section 5(f) funds






It is the position of aHA that expenditures can be made on the

referendum from aHA's share of the 5(f) references. In fact, as

will be explained below, the OHA Trustees used section 5(f) funds

only incidentally, if at all, to fund this referendum.




occurred." Id. at 11.


in this litigation, this amicus brief will predominately address

the facts and law concerning this activity. The Office of Hawaiian

Affairs submits that the actions of the individual Trustees and the

expenditures on this project have been entirely proper and are not

an appropriate subject for judicial challenge. The Office of

Hawaiian Affairs also submits that the law on the question of the

1These activities are described in more detail below, but it should be noted at the outset that the Appellee Trustees did not seek to alter the special status of half-blood Hawaiians with regard to eligibility for leases on Hawaiian Home Lands. See, ~., Resolution Relating to Ho'okahi No Maua E'we, paras. 1, 10, A.E. at 096, Appendix A attached hereto.

11


proper use of the public lands trust funds was "clearly

established" but contrary to the District Court's position. since

the District Court was wrong in its analysis of the law, the

District Court's ruling on that matter must be reversed.

B. The Office of Hawaiian Affairs ("OHA") Trustees could properly spend the prorata portion of the ceded land trust fund for self-determination.

The Office of Hawaiian Affairs ("OHA") argues strenuously

that the District Judge erred in his conclusions of law that "the

law was sufficiently clear in 1988 that a reasonable official would

understand that the expenditure of section 5(f) funds to benefit


section 5 (f) funds were used to advance the single definition


for their actions. 1I Price v. Akaka, civ. No. 88-00773 DAE, filed

June 12, 1992, slip Ope at 20, A.E. At 517.

The Plaintiffs' are complaining because the Trusteees of

the Office of Hawaiian Affairs posed the question by a mail-out

referendum ballot to their constituents of whether all Hawaiians

(those of 50% blood quantum and those of any blood quantum) should

enjoy the benefits of the assets of aHA and the aHA Trustees

conducted activities relating to the posing of this question. The

Trustees sought to determine and obtain input from their

constituents regarding a political issue of paramount concern to

all Hawaiians. See Affidavit of Linda Delaney, dated November 14,

1988, A.E. at 209).

In earlier proceedings in a similar case, Judge Milks of

12

proper use of the public lands trust funds was "clearly

established" but contrary to the District Court's position. since

the District Court was wrong in its analysis of the law, the

District Court's ruling on that matter must be reversed.

B. The Office of Hawaiian Affairs ("OHA") Trustees could properly spend the prorata portion of the ceded land trust fund for self-determination.

The Office of Hawaiian Affairs ("OHA") argues strenuously

that the District Judge erred in his conclusions of law that "the

law was sufficiently clear in 1988 that a reasonable official would

understand that the expenditure of section 5(f) funds to benefit


section 5 (f) funds were used to advance the single definition


for their actions. 1I Price v. Akaka, civ. No. 88-00773 DAE, filed

June 12, 1992, slip Ope at 20, A.E. At 517.

The Plaintiffs' are complaining because the Trusteees of

the Office of Hawaiian Affairs posed the question by a mail-out

referendum ballot to their constituents of whether all Hawaiians

(those of 50% blood quantum and those of any blood quantum) should

enjoy the benefits of the assets of aHA and the aHA Trustees

conducted activities relating to the posing of this question. The

Trustees sought to determine and obtain input from their

constituents regarding a political issue of paramount concern to

all Hawaiians. See Affidavit of Linda Delaney, dated November 14,

1988, A.E. at 209).

In earlier proceedings in a similar case, Judge Milks of

12


the First Circuit Court, state of Hawaii, rejected these same

complaints in the Order Denying the Motion for Preliminary

Injunction, dated December 23, 1988. (See Findings of Fact,

Conclusions of Law, and Order Denying Motion for preliminary

Injunction, Kepoo v. Burgess, Civ. No. 88-2987, First Circuit

court, state of Hawaii, (hereafter "Kepoo Order Denying Motion for

Preliminary Injunction"), A.E. at 433 and attached hereto as

Appendix B). Subsequently OHA's motion for summary judgment was

granted and the lower court decisions were affirmed by Memorandum

Opinion of the Hawaii Supreme Court, (June 25, 1991) No. 14770,

A.E. at 60. Judge Milks specifically found that the Trustees are

constitutionally directed to address this particular issue -- the

blood quantum issue.

The 1978 constitutional Convention found that OHA would undertake the responsibility of establishing a single class of beneficiaries, at the appropriate time. The Delegates found that:

"[I]n looking to the future, your committee decided that it is of utmost importance to -establish a trust entity that would be for all individuals who ancestors were natives of the area which consisted of the Hawaiian Islands prior to 1778 • . . Although your Committee was tempted to change this outmoded rule from the 1920's [i.e. the qualification of blood quantum set forth in the Hawaiian Homes Commission Act], your Committee concluded that this responsibility should be assumed by the Office of Hawaiian Affairs." (Id. at 5, par. 17)

Judge Milks made a finding of fact that the referendum

was one of many ways to achieve the betterment of conditions of

13

the First Circuit Court, state of Hawaii, rejected these same

complaints in the Order Denying the Motion for Preliminary

Injunction, dated December 23, 1988. (See Findings of Fact,


Injunction, Kepoo v. Burgess, Civ. No. 88-2987, First Circuit

court, state of Hawaii, (hereafter "Kepoo Order Denying Motion for

Preliminary Injunction"), A.E. at 433 and attached hereto as

Appendix B). Subsequently OHA's motion for summary judgment was

granted and the lower court decisions were affirmed by Memorandum

Opinion of the Hawaii Supreme Court, (June 25, 1991) No. 14770,

A.E. at 60. Judge Milks specifically found that the Trustees are

constitutionally directed to address this particular issue -- the

blood quantum issue.

The 1978 constitutional Convention found that OHA would undertake the responsibility of establishing a single class of beneficiaries, at the appropriate time. The Delegates found that:

"[I]n looking to the future, your committee decided that it is of utmost importance to -establish a trust entity that would be for all individuals who ancestors were natives of the area which consisted of the Hawaiian Islands prior to 1778 • . . Although your Committee was tempted to change this outmoded rule from the 1920's [i.e. the qualification of blood quantum set forth in the Hawaiian Homes Commission Act], your Committee concluded that this responsibility should be assumed by the Office of Hawaiian Affairs." (Id. at 5, par. 17)

Judge Milks made a finding of fact that the referendum

was one of many ways to achieve the betterment of conditions of

13


native Hawaiians.

"21. The betterment of the conditions of native Hawaiians can be achieved in many ways. Programs such as the single Definition Referendum that promote self-determination is one of many ways to achieve the betterment of the conditions of native Hawaiians even though all Hawaiians would benefit... (Id. at 6, par. 21)

The state of Hawaii Attorney General conducted a thorough

investigation into the allegations and the same matters contained

in this lawsuit and found that they were without merit and that "no

legal action presently warranted, either on a civil or criminal

basis." (See Investigative Report, Expenditure of Native Hawaiian

Public Trust Funds By The Trustees of The Office of Hawaiian

Affairs, dated November 2, 1988, (hereafter "Attorney General

Investigative Reportll), A.E. at 278.

The Trustees of the Office of Hawaiian Affairs sought the

advise of persons of Hawaiian ancestry by mail ballot in November,

1988 about whether they should use their trust resources for the

benefit of all persons of Hawaiian ancestry. The Trustees, by a

vote of 8 Trustees out of nine Trustees, decided to have a mail-out

referendum ballot. The Trustees received an overwhelming approval

of 84% of their constituents for this approach. (See Affidavit of

Brian K. Doty, Secretary for the Land & Natrual Resources

Department at the Office of Hawaiian Affairs, dated November 3,

1989, A.E. at 223.)

Subsequently, in the General Election on November 8,

1988, all the incumbent OHA Trustees were re-elected by their

14

native Hawaiians.

"21. The betterment of the conditions of native Hawaiians can be achieved in many ways. Programs such as the single Definition Referendum that promote self-determination is one of many ways to achieve the betterment of the conditions of native Hawaiians even though all Hawaiians would benefit... (Id. at 6, par. 21)

The state of Hawaii Attorney General conducted a thorough

investigation into the allegations and the same matters contained

in this lawsuit and found that they were without merit and that "no

legal action presently warranted, either on a civil or criminal

basis." (See Investigative Report, Expenditure of Native Hawaiian

Public Trust Funds By The Trustees of The Office of Hawaiian

Affairs, dated November 2, 1988, (hereafter "Attorney General

Investigative Reportll), A.E. at 278.

The Trustees of the Office of Hawaiian Affairs sought the

advise of persons of Hawaiian ancestry by mail ballot in November,

1988 about whether they should use their trust resources for the

benefit of all persons of Hawaiian ancestry. The Trustees, by a

vote of 8 Trustees out of nine Trustees, decided to have a mail-out

referendum ballot. The Trustees received an overwhelming approval

of 84% of their constituents for this approach. (See Affidavit of

Brian K. Doty, Secretary for the Land & Natrual Resources

Department at the Office of Hawaiian Affairs, dated November 3,

1989, A.E. at 223.)

Subsequently, in the General Election on November 8,

1988, all the incumbent OHA Trustees were re-elected by their

14


constituents. Three of the four who were re-elected supported the

single definition. (See Affidavit of Brian K. Doty, A. E. at 223) ·

The Trustees thus received a strong vote of approval for the single

definition, which is being challenged in this case.

The question in the January 1990 referendum was posed as

follows: liAs it defines the beneficiaries of the Office of

Hawaiian Affairs trust and entitlement, should the term 'native

Hawaiian' mean all descendants of the indigenous people inhabiting

the Hawaiian Islands prior to 1778?" 19,247 (79.33 %) voted yes

and 5,012 (20.66 %) voted no. The pattern of strong majority votes

in favor of this proposition was consistent in all areas of the

state. See Office of Hawaiian Affairs, "Operation Ka Po' e: It A

Report on the statewide Plebiscite to Determine Preference for a

Definition of 'Native Hawaiian' (Feb •. 1990).

This political response by the OHA constituents is

relevant because the elements of relief requested by the Plaintiffs

involve policy judgments and should be clearly protected by

qualified immunity.

C. The Referendum

According to the Affidavit of Monica Waid dated November

14, 1988, the only expenditures on the plebiscite were matching

funds from general funds. (A.E. at 211). 2 state Court Judge

2/ OHA maintains that it is legally entitled to spend special funds without matching general funds on the single definition. However it is not necessary for the court to decide this issue since the issue is not before this Court. It is the duty of the Trustees to determine what is "for the betterment of the conditions of native Hawaiians."

15

constituents. Three of the four who were re-elected supported the

single definition. (See Affidavit of Brian K. Doty, A. E. at 223) ·

The Trustees thus received a strong vote of approval for the single

definition, which is being challenged in this case.

The question in the January 1990 referendum was posed as

follows: liAs it defines the beneficiaries of the Office of

Hawaiian Affairs trust and entitlement, should the term 'native

Hawaiian' mean all descendants of the indigenous people inhabiting

the Hawaiian Islands prior to 1778?" 19,247 (79.33 %) voted yes

and 5,012 (20.66 %) voted no. The pattern of strong majority votes

in favor of this proposition was consistent in all areas of the

state. See Office of Hawaiian Affairs, "Operation Ka Po' e: It A

Report on the statewide Plebiscite to Determine Preference for a

Definition of 'Native Hawaiian' (Feb •. 1990).

This political response by the OHA constituents is

relevant because the elements of relief requested by the Plaintiffs

involve policy judgments and should be clearly protected by

qualified immunity.

C. The Referendum

According to the Affidavit of Monica Waid dated November

14, 1988, the only expenditures on the plebiscite were matching

funds from general funds. (A.E. at 211). 2 state Court Judge

2/ OHA maintains that it is legally entitled to spend special funds without matching general funds on the single definition. However it is not necessary for the court to decide this issue since the issue is not before this Court. It is the duty of the Trustees to determine what is "for the betterment of the conditions of native Hawaiians."

15


Milks found that these activities relating to the plebiscite were

funded from general funds: liThe evidence showed that the costs of

printing, postage, tabulation and other related costs of the

referendum are being funded with general funds. The evidence also

showed that the media costs of the referendum are being funded with

general funds." (See Kepoo Order Denying Motion for Prelimianry

Injunction, A.E. at 100, Ex. B.)

Moreover, the Attorney General Investigative Report

pointed out that, in their opinion, it was proper to expend special

fund moneys lito merely disclose (inform) to and gain the input of

OHA's native Hawaiian beneficiaries on various matters (~ the

single definition) which OHA is contemplating to assist the

Trustees to determine whether is reasonable to undertake certain

actions and to evaluate whether such actions are in the best

interest of its native Hawaiian beneficiaries." (A.E. at 278.)

If anything, thoughtful legal opinions issued by the

Office of Hawaii's Attorney General and explicit findings of fact

and conclusions issued by Hawaii's Circuit Court judges indicate

that this subject was far from settled. No neutral judicial

standards exist to determine when funds are spent "to benefit non

native Hawaiians" as opposed to I'native Hawaiians" and when funds

are spent "to advance the single definition referendum" rather than

simply to educate native Hawaiians about the issues related to the

single definition. Because these matters require difficult policy

judgments, it is necessary that the elected Trustees of the Office

of Hawaiian Affairs retain their qualified immunity regarding the

16

Milks found that these activities relating to the plebiscite were

funded from general funds: liThe evidence showed that the costs of

printing, postage, tabulation and other related costs of the

referendum are being funded with general funds. The evidence also

showed that the media costs of the referendum are being funded with

general funds." (See Kepoo Order Denying Motion for Prelimianry

Injunction, A.E. at 100, Ex. B.)

Moreover, the Attorney General Investigative Report

pointed out that, in their opinion, it was proper to expend special

fund moneys lito merely disclose (inform) to and gain the input of

OHA's native Hawaiian beneficiaries on various matters (~ the

single definition) which OHA is contemplating to assist the

Trustees to determine whether is reasonable to undertake certain

actions and to evaluate whether such actions are in the best

interest of its native Hawaiian beneficiaries." (A.E. at 278.)

If anything, thoughtful legal opinions issued by the

Office of Hawaii's Attorney General and explicit findings of fact

and conclusions issued by Hawaii's Circuit Court judges indicate

that this subject was far from settled. No neutral judicial

standards exist to determine when funds are spent "to benefit non

native Hawaiians" as opposed to I'native Hawaiians" and when funds

are spent "to advance the single definition referendum" rather than

simply to educate native Hawaiians about the issues related to the

single definition. Because these matters require difficult policy



16


choices they have made, and that the federal judiciary defer to

these legislative type judgments made by these elected Trustees,

who were duly elected by the Hawaiian people.

D. Factual Background on the single Definition and the Arbitrary Imposition of a 50% Blood Quantum by the united states

The aHA Trustees have understood since the Office of

Hawaiian Affairs was established that one of their responsibilities

was to determine the wishes of their beneficiaries on whether to

adopt a "single definition" to identify membership in the Hawaiian

community. In fact, this responsibility was articulated in one of

the early committee reports from the State of Hawaii 1978

Constitutional Convention, which set in motion the establishment of

aHA. 3 To fulfill this responsibility, the Trustees embarked on a

program designed to educate persons of Hawaiian ancestry about this

issue and determine their preferences. See, ~., Nov. 14, 1988

affidavit of Linda Kawai'ono Delaney, A.E. at 334. This program

has included educational efforts and two referenda in which OHAls

beneficiaries have expressed their views. 4 The Trustees have

3See Standing committee Report No. 59, 1 Proceedings of the constitutional Convention of Hawaii 1978 at 643-44, infra at 31-32.

4The Trustees, by an 8-1 vote, authorized that the following ballot be used in the November 1988 mail-out election:

Should every Native Hawaiian have the right to enjoy the benefits of the assets of the Office of Hawaiian Affairs, as provided by policies adopted by the aHA Board of Trustees?

The term "Native Hawaiian" means all descendants of the indigenous people inhabiting the Hawaiian Islands prior to 1778.

17

choices they have made, and that the federal judiciary defer to

these legislative type judgments made by these elected Trustees,

who were duly elected by the Hawaiian people.

D. Factual Background on the single Definition and the Arbitrary Imposition of a 50% Blood Quantum by the united states

The aHA Trustees have understood since the Office of

Hawaiian Affairs was established that one of their responsibilities

was to determine the wishes of their beneficiaries on whether to

adopt a "single definition" to identify membership in the Hawaiian


the early committee reports from the State of Hawaii 1978

Constitutional Convention, which set in motion the establishment of

aHA. 3 To fulfill this responsibility, the Trustees embarked on a

program designed to educate persons of Hawaiian ancestry about this

issue and determine their preferences. See, ~., Nov. 14, 1988

affidavit of Linda Kawai'ono Delaney, A.E. at 334. This program

has included educational efforts and two referenda in which OHAls

beneficiaries have expressed their views. 4 The Trustees have

3See Standing committee Report No. 59, 1 Proceedings of the constitutional Convention of Hawaii 1978 at 643-44, infra at 31-32.


Should every Native Hawaiian have the right to enjoy the benefits of the assets of the Office of Hawaiian Affairs, as provided by policies adopted by the aHA Board of Trustees?


17


decided that if a "single definition ll for its beneficiaries could

be developed, the Hawaiian community would obtain greater unity and

thus have more political success. The Trustees are committed to

maintaining the existing level of benefits for each person of

Hawaiian ancestry. See Resolution Relating to Ho'okahi No Maua

E'we, paras. 1,10, attached as Appendix A., A.E. 096. In fact,

Hawaii Revised statutes (H.R.S.) section 10-5(4) explicitly

requires that they maintain the level of benefits available to

persons with 50 percent or more Hawaiian blood. They have also

concluded, however, that if they could increase the overall amount

of benefits available to the Hawaiian community, each individual

Hawaiian would have additional benefits. In order to achieve this

goal, they have tried to determine whether persons of Hawaiian

ancestry wished to be united through a "single definition," which

would increase their political power. In the two referenda that

have been held (in November 1988 and January 1990), the OHA voters

have supported the single definition concept overwhelmingly. (See

Supra at 17-18 for breakdown of vote by Hawaiians.)

The Plaintiffs have challenged these policy decisions and

actions of the Trustees, and have in particular focused on the

expenditure of funds to support these efforts. OHA's funds come

4 (Continued)

Are you 50 per cent or more Hawaiian blood?

See Official Ballot and voting Instructions. A.E. 318-320

18

decided that if a "single definition ll for its beneficiaries could

be developed, the Hawaiian community would obtain greater unity and




E'we, paras. 1,10, attached as Appendix A., A.E. 096. In fact,

Hawaii Revised statutes (H.R.S.) section 10-5(4) explicitly

requires that they maintain the level of benefits available to

persons with 50 percent or more Hawaiian blood. They have also

concluded, however, that if they could increase the overall amount

of benefits available to the Hawaiian community, each individual

Hawaiian would have additional benefits. In order to achieve this

goal, they have tried to determine whether persons of Hawaiian

ancestry wished to be united through a "single definition," which

would increase their political power. In the two referenda that

have been held (in November 1988 and January 1990), the OHA voters

have supported the single definition concept overwhelmingly. (See

Supra at 17-18 for breakdown of vote by Hawaiians.)




4 (Continued)


See Official Ballot and voting Instructions. A.E. 318-320

18


from two primary sources--(l) "special" funds generated from the

public trust lands identified in Article XII, Section 4 of the

Hawaii Constitution and H.R.S. section 10-3, and (2) general funds

appropriated by the Hawaii state Legislature. For many of OHA's

projects, funds are IImatched" from these two sources on the theory

that the projects provide more or less equal benefits to "Native

Hawaiians" (defined in H.R.S. section 10-2 as persons with at least

one-half Hawaiian blood) and "Hawaiians" (defined in H.R.S. section

10-2 as all persons with any Hawaiian blood). The wages and fringe

benefits of OHA's employees are, for instance, paid according to

this formula, pursuant to the requirements of the Hawaii state

Legislature.

Hawaii 1987.

See, ~., Section 5 of Act 218, Session Laws of

It needs to be emphasizedi however, that except for

incidental expenses related to the services of some of OHA's staff

and several educational lunches at the willows Restaurant,S the

funds expended on the single definition project came exclusively

from general appropriated funds and not from the special public

5Four lunches were held with representatives of the Hawaiian community and the Trustees at the Willows to discuss a range of issues, of which the single definition proposal was one. Money from the special public trust funds were used to help pay for these luncheons. The Attorney General's Investigative Report, described below, concluded that it is "not improper to expend special fund moneys to merely disclose (inform) to and gain the input of OHA's native Hawaiian beneficiaries on various matters (~. the single definition) ..• " This Report also concluded that "the moneys spent on the luncheons would [not] have been reduced if the topics discussed at the lunches did not include the single definition issue" and that "in practical terms, it would be difficult at best to allocate portions of the sums expended solely for the single definition issue." Attorney General's Investigative Report, Nov. 2, 1988, at 11 & n.2, A.E. 278.

19


public trust lands identified in Article XII, Section 4 of the

Hawaii Constitution and H.R.S. section 10-3, and (2) general funds


projects, funds are IImatched" from these two sources on the theory







Legislature.

Hawaii 1987.

See, ~., Section 5 of Act 218, Session Laws of

It needs to be emphasizedi however, that except for

incidental expenses related to the services of some of OHA's staff

and several educational lunches at the willows Restaurant,S the

funds expended on the single definition project came exclusively

from general appropriated funds and not from the special public

5Four lunches were held with representatives of the Hawaiian community and the Trustees at the Willows to discuss a range of issues, of which the single definition proposal was one. Money from the special public trust funds were used to help pay for these luncheons. The Attorney General's Investigative Report, described below, concluded that it is "not improper to expend special fund moneys to merely disclose (inform) to and gain the input of OHA's native Hawaiian beneficiaries on various matters (~. the single definition) ..• " This Report also concluded that "the moneys spent on the luncheons would [not] have been reduced if the topics discussed at the lunches did not include the single definition issue" and that "in practical terms, it would be difficult at best to allocate portions of the sums expended solely for the single definition issue." Attorney General's Investigative Report, Nov. 2, 1988, at 11 & n.2, A.E. 278.

19


trust funds. General funds of $158,520 were, for instance,

appropriated by the Legislature from general funds for the second

referendum (January 1990), without a matching requirement. Act

303, Session Laws of Hawaii 1989, section 10. State Court Judge

Milks addressed these allegations and concluded that special public

trust funds were not used for the first referendum:

2. The evidence showed that although Special Fund revenues were approved for the proposed plebiscite, no funds are currently being spent by the Defendants on the Single Definition issue. Further, the evidence shows that Defendants do not contemplate expending" Special Fund revenues on the single Definition issue in the future.

3. with respect to wages and fringe benefits of the staff of the Office of Hawaiian Affairs .•• , OHA is statutorily required to expend matching Funds. (See section 5 of Act 218 of the 1988 Session Laws.) ..•

4. The evidence showed that the costs of pri~ting, postage, tabulation and other related costs of the referendum are being funded with general funds. The evidence also showed that the media costs of the referendum are being funded with general funds.

Kepoo Order Denying Motion for Preliminary Injunction, Dec. 23,

1988, A.V. 100, Appendix B.

On July II, 1988, Moses Keale, Chair of the OHA Board of

Trustees asked the Attorney General of Hawaii for an opinion on

whether the "special funds" generated by the public land trust

could be used "to advocate a change in existing law to create a

single definition of the term 'native Hawaiian' to include

'Hawaiians' as the term is defined in section 10-2, Hawaii Revised

Statutes, so that the beneficiary class for the native Hawaiian

public trust would be defined without regard to blood quantum."

See Attorney General's Investigative Report, Nov. 2, 1988, A.E.

20

trust funds. General funds of $158,520 were, for instance,

appropriated by the Legislature from general funds for the second

referendum (January 1990), without a matching requirement. Act

303, Session Laws of Hawaii 1989, section 10. State Court Judge

Milks addressed these allegations and concluded that special public

trust funds were not used for the first referendum:

2. The evidence showed that although Special Fund revenues were approved for the proposed plebiscite, no funds are currently being spent by the Defendants on the Single Definition issue. Further, the evidence shows that Defendants do not contemplate expending" Special Fund revenues on the single Definition issue in the future.

3. with respect to wages and fringe benefits of the staff of the Office of Hawaiian Affairs .•• , OHA is statutorily required to expend matching Funds. (See section 5 of Act 218 of the 1988 Session Laws.) ..•

4. The evidence showed that the costs of pri~ting, postage, tabulation and other related costs of the referendum are being funded with general funds. The evidence also showed that the media costs of the referendum are being funded with general funds.

Kepoo Order Denying Motion for Preliminary Injunction, Dec. 23,

1988, A.V. 100, Appendix B.

On July II, 1988, Moses Keale, Chair of the OHA Board of






Statutes, so that the beneficiary class for the native Hawaiian


See Attorney General's Investigative Report, Nov. 2, 1988, A.E.

20


278. The Attorney General concluded that "the use of native

Hawaiian public trust funds is inappropriate to conduct an advocacy

effort to change existing law to adopt a single definition of

beneficiaries," but also added that "we believe it is not improper"

to use these special funds to inform the native Hawaiian

beneficiaries of the ideas the Trustees are considering in order to

obtain their views. Id. at 9, 11 n. 2, emphasis in original.

Because of these conclusions, "any legal action against the

Trustees of OHA for 'misapplication' of funds is not warranted. 1I

Id. at 9-10. This Report recognized that the Trustees had

"discretion to act where a 'reasonable man' believes an undertaking

will 'better the condition', which mayor may not be pecuniary, of

the native Hawaiian beneficiary." Id. at 12. The opinion also

acknowledged that it was possible for the Trustees to believe that

their action in pursuing a single definition "was solely for the

betterment of the condition of native Hawaiians." Id. Because the

action of the Trustees was not wilful or undertaken for any

personal pecuniary gain, they did not violate any criminal law.

Id. at 14.

state Court Judge Milks considered all these issues and

other key paragraphs from the Kepoo Order Denying Plaintiffs Motion

for Pre1imiary Injunction and are quoted here because of their

importance to this case:

7. The evidence did not show that the actions of Defendants in posing the issue of the Single Definition would dissolve the Public Land Trust, would diminish or limit the benefits of native Hawaiians, or would not be for the betterment of conditions of native Hawaiians.

21

278. The Attorney General concluded that "the use of native






obtain their views. Id. at 9, 11 n. 2, emphasis in original.

Because of these conclusions, "any legal action against the

Trustees of OHA for 'misapplication' of funds is not warranted. 1I

Id. at 9-10. This Report recognized that the Trustees had

"discretion to act where a 'reasonable man' believes an undertaking

will 'better the condition', which mayor may not be pecuniary, of

the native Hawaiian beneficiary." Id. at 12. The opinion also



betterment of the condition of native Hawaiians." Id. Because the



Id. at 14.

state Court Judge Milks considered all these issues and

other key paragraphs from the Kepoo Order Denying Plaintiffs Motion

for Pre1imiary Injunction and are quoted here because of their

importance to this case:


21


8 . The evidence did not show that the actions of the Defendants in distributing ballots on the referendum would dissolve the Public Land Trust, would diminish or limit the benefits of native Hawaiians, or would not be for the betterment of conditions of native Hawaiians.

9. The 50% blood quantum definition was adopted by Congress in 1921, as an eligibility criterion for Hawaiian Home Lands. At that time, no Hawaiians testified in favor of the 50% blood quantum requirement. Territorial senator John Wise urged a 1/32 Hawaiian definition, if any blood quantum was to be required.

10. In the Resolution Relating to Ho'Okahi No Maua E 'we which was adopted at a meeting of the Board of Trustees in 1988, the Board of Trustees found that "the arbitrary requirement of 50% blood quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Native Hawiian blood. II

16. The Trustees of ORA are the only duly elected representatives of the native Hawaiian and Hawaiian people, and, as such, this Court should defer to their policy-making powers and duties.

17. The Trustees are constitutionally directed to address the blood quantum issue •..•

19. The Trustees have the discretion to act where a reasonable person believes an undertaking will better the conditions of native Hawaiians, which mayor may not be pecuniary benefit.

20. OHA was established in order to unite the Hawaiian people. The establishment of OHA was also intended to grant Hawaiians rights similar to those traditionally enjoyed by native peoples, in particular, "self-determination and self-government ...... .

21. The betterment of the conditions of native Hawaiians can be achieved in many ways. Programs such as the single Definition Referendum that promote selfdetermination is one of many ways to achieve the betterment of the conditions of native Hawaiians even though all Hawaiians would benefit.

22

8 . The evidence did not show that the actions of the Defendants in distributing ballots on the referendum would dissolve the Public Land Trust, would diminish or limit the benefits of native Hawaiians, or would not be for the betterment of conditions of native Hawaiians.

9. The 50% blood quantum definition was adopted by Congress in 1921, as an eligibility criterion for Hawaiian Home Lands. At that time, no Hawaiians testified in favor of the 50% blood quantum requirement. Territorial senator John Wise urged a 1/32 Hawaiian definition, if any blood quantum was to be required.

10. In the Resolution Relating to Ho'Okahi No Maua E 'we which was adopted at a meeting of the Board of Trustees in 1988, the Board of Trustees found that "the arbitrary requirement of 50% blood quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Native Hawiian blood. II

16. The Trustees of ORA are the only duly elected representatives of the native Hawaiian and Hawaiian people, and, as such, this Court should defer to their policy-making powers and duties.

17. The Trustees are constitutionally directed to address the blood quantum issue •..•



21. The betterment of the conditions of native Hawaiians can be achieved in many ways. Programs such as the single Definition Referendum that promote selfdetermination is one of many ways to achieve the betterment of the conditions of native Hawaiians even though all Hawaiians would benefit.

22


Kepoo Order Denying Motion for Preliminary Injunction, A.E. 100,

Appendix B. The Hawaii Supreme Court affirmed the decision of the

Circuit Court in Kepoo granting summary judgment in favor of OHA in

a Memorandum opinion on November 21, 1989. And the District Court

in the present case acknowledged that state court in Kepoo "found

that no section 5(f) funds were expended on the single definition

referendum. II Price v. Akaka, supra, slip Ope at 17.

To summarize, OHA submits that the actions of the

individual Trustees were appropriate and necessary policy

initiatives taken for the benefit of half-blood native Hawaiians as

well as for the benefit of all other persons of Hawaiian ancestry,

and that these actions are not the proper subject for a judicial

challenge. Judicial scrutiny should be limited to ensuring that

the Trustees have provided reasons why their actions benefit the

half-blood Hawaiians, and the Trustees have done so with their

Resolution Relating to Ho'okahi No Maua E'we. (A.E. 096, attached

hereto as Appendix A.)

The Office of Hawaiian Affairs also submits that this

Honorable Court need not even reach these issues in this case,

because the special public trust funds were not in fact used for

their single definition initiative, except in an incidental

fashion.

E. The Actions of the OHA Trustees to Determine the Views of Their Beneficiaries Regarding a "single Definition" Were Closely Linked to Their Central Mission to Serve Their Beneficiaries.

Plaintiffs in the present case appear to be arguing that

the policies of the OHA Trustees may possibly diminish the benefits

23


Appendix B. The Hawaii Supreme Court affirmed the decision of the

Circuit Court in Kepoo granting summary judgment in favor of OHA in

a Memorandum opinion on November 21, 1989. And the District Court

in the present case acknowledged that state court in Kepoo "found

that no section 5(f) funds were expended on the single definition

referendum. II Price v. Akaka, supra, slip Ope at 17.

To summarize, OHA submits that the actions of the








Resolution Relating to Ho'okahi No Maua E'we. (A.E. 096, attached

hereto as Appendix A.)

The Office of Hawaiian Affairs also submits that this

Honorable Court need not even reach these issues in this case,

because the special public trust funds were not in fact used for

their single definition initiative, except in an incidental

fashion.

E. The Actions of the OHA Trustees to Determine the Views of Their Beneficiaries Regarding a "single Definition" Were Closely Linked to Their Central Mission to Serve Their Beneficiaries.

Plaintiffs in the present case appear to be arguing that

the policies of the OHA Trustees may possibly diminish the benefits

23


of persons with 50 percent or more Hawaiian blood. These factual

allegations were also presented to the Hawaii state courts in the

Kepoo case which rejected them with the following explicit

findings:


8. The evidence did not show that the actions of the Defendants in distributing ballots on the referendum would dissolved the Public Land Trust, would diminish or limit the benefits of native Hawaiians, or would not be for the betterment of conditions of native Hawaiians.

Kepoo Order Denying Motion for Prelimi~ary Injunction, A.E. lOa,

Appendix B.

OHA argues strongly that the policies established by the

OHA Trustees will not diminish the benefits of persons with 50

percent or more Hawaiian blood and will in fact increase these

benefits significantly. Because the OHA Trustees have been elected

by the Hawaiian people to develop policies to govern the Hawaiian

people and their resources, and because the policies of the OHA

Trustees are designed to increase the benefits of all Hawaiians--

and are certainly not arbitrary and capricious--the state courts in

the Kepoo case properly deferred to the political judgments of the

duly-elected OHA Trustees and found that the Plaintiffs had not met

their burden of proving that the policies in question would

diminish the benefits available to the half-blood Hawaiians.

1. Courts should defer to the policy decisions of duly-elected legislative bodies unless those decisions have no rational basis whatsoever or are arbitrary and capricious.

24

of persons with 50 percent or more Hawaiian blood. These factual



findings:



Kepoo Order Denying Motion for Prelimi~ary Injunction, A.E. lOa,

Appendix B.

OHA argues strongly that the policies established by the

OHA Trustees will not diminish the benefits of persons with 50





Trustees are designed to increase the benefits of all Hawaiians--







24


The proper role for a court reviewing legislation on this

topic was described in Hoohuli v. Ariyoshi, 631 F.Supp. 1153

(D. Haw. 1986), a case that was similar to the present one, because

it involved a challenge to a statute of the Hawaii state

Legislature granting benefits to Hawaiians with less than one-half

blood:

This court will uphold the definition of "Hawaiian" if there is some "reasonable basis" to support it, and as long as the legislature did not achieve its purpose in a "patently arbitrary" or irrational way. Where there are plausible reasons for the legislature's classification, "the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration. II As the Supreme Court has noted, "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations. • • • .. Further, laws providing for governmental payment of monetary benefits bear a "strong presumption of consti tutionali ty . ' So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and needy, are not subject to a constitutional strai tj acket. ' It Finally, of course, the burden of proof is on the plaintiffs to show the irrationality of the legislative classification.

Id. at 1159 (footnotes omitted). Because the Board of Trustees of

the Office of Hawaiian Affairs is a legislative body with general

powers of governance over matters related to the Hawaiian community

and its resources, its legislative policy decisions should be

reviewed by this same standard of deference.

2 • The Standard of Review Should Not Be Different Because a "Trust" Is Involved in This Case; Because This Trust Is Designed to Benefit a Large Group of Beneficiaries Who Elect the Trustees, Judicial Review Should Be Limited to Determining Whether the Action of the Trustees Has a Rational Basis, or Is Arbitrary and capricious.

It is true of course that the individual OHA Trustees are

25



(D. Haw. 1986), a case that was similar to the present one, because



blood:

This court will uphold the definition of "Hawaiian" if there is some "reasonable basis" to support it, and as long as the legislature did not achieve its purpose in a "patently arbitrary" or irrational way. Where there are plausible reasons for the legislature's classification, "the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration. II As the Supreme Court has noted, "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations. • • • .. Further, laws providing for governmental payment of monetary benefits bear a "strong presumption of consti tutionali ty . ' So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and needy, are not subject to a constitutional strai tj acket. ' It Finally, of course, the burden of proof is on the plaintiffs to show the irrationality of the legislative classification.






2 • The Standard of Review Should Not Be Different Because a "Trust" Is Involved in This Case; Because This Trust Is Designed to Benefit a Large Group of Beneficiaries Who Elect the Trustees, Judicial Review Should Be Limited to Determining Whether the Action of the Trustees Has a Rational Basis, or Is Arbitrary and capricious.


25


"Trustees" and that in dealing with their beneficiaries they "must

adhere to high fiduciary duties normally owed by a trustee to its

beneficiaries. " Ahuna v. Dept. of Hawaiian Home Lands, 64 Haw.

327, 338, 640 P.2d 1161 (1982). Close judicial scrutiny would

therefore be required if this case involved charges that the

Trustees engaged in any form of personal pecuniary gain at the

expense of the beneficiaries or involved the violation of any

unambiguous statutory or constitutional command.

This case, however, involves an attack on a policy

pursued by the Trustees which in their political judgment will

increase the benefits of all Hawaiians, including those with 50

percent or more Hawaiian blood. This policy was reached through an

exercise of political judgment of just the sort the Trustees were

elected to undertake. The Trustees are accountable to their

beneficiaries who have the opportunity to vote for or against them

on a regular basis. Because the primary review of the Trustees'

actions is through the electoral process, the role of the judiciary

should be limited to ensuring that the Trustees are acting

according to minimum standards of rationality and not arbitrarily

or capriciously. As the state Court Judge Milks found in the Kepoo

case:



Appendix B. This Honorable Court of Appeals also recently examined

the public lands trust at issue here, and concluded that its trust

26



beneficiaries. " Ahuna v. Dept. of Hawaiian Home Lands, 64 Haw.






This case, however, involves an attack on a policy

pursued by the Trustees which in their political judgment will

increase the benefits of all Hawaiians, including those with 50

percent or more Hawaiian blood. This policy was reached through an

exercise of political judgment of just the sort the Trustees were

elected to undertake. The Trustees are accountable to their

beneficiaries who have the opportunity to vote for or against them

on a regular basis. Because the primary review of the Trustees'

actions is through the electoral process, the role of the judiciary

should be limited to ensuring that the Trustees are acting

according to minimum standards of rationality and not arbitrarily

or capriciously. As the state Court Judge Milks found in the Kepoo

case:



Appendix B. This Honorable Court of Appeals also recently examined

the public lands trust at issue here, and concluded that its trust

26


obligations were not designed to be narrowly confining:

[O]ur reading of section 5(f) rests on the apparent decision by the parties involved in the [Admissions] Act that the state and its officials would proceed with a certain degree of good faith and need not be held to strict trust administration standards.

Price v. state of Hawaii, 921 F.2d 950, (9th Cir·.

1990) (emphasis added).

Even in a more standard trust situation, the scrutiny of

courts grants considerable discretion to the actions of trustees.

Hawaii's Attorney General summarized this matter as follows in his

opinion on this matter:

In the area of trust law, it is a general rule that a trustee is bound to exercise ordinary care and diligence in carrying out fiduciary duties, but is not expected to be infallible in making judgments or decisions. Thus, where a trustee acts honestly and with ordinary prudence, with no wilfulness or mala fides, a trustee is not liable for errors of judgment. In determining whether a trustee has acted prudently, the particular facts, as they existed, unaided by subsequent events, must be looked at. Hartmann v. Bertelmann, 39 Haw. 619 (1952).

Attorney General's Investigative Report, Nov. 2, 1988, at 13, A.E.

278; see also Ahuna, supra, at 340.

In the present case, Plaintiffs have made no claims that

the Trustees have not acted with honesty or ordinary prudence.

They simply disagree with political decisions reached by the

Trustees. Their remedy should thus be through the electoral

process rather than through this judicial challenge.

Plaintiffs argue that the OHA Trustees did not act

"solely in the interest of the" one-half blood Hawaiians in using

funds from the public land trust for the single definition

27

obligations were not designed to be narrowly confining:

[O]ur reading of section 5(f) rests on the apparent decision by the parties involved in the [Admissions] Act that the state and its officials would proceed with a certain degree of good faith and need not be held to strict trust administration standards.

Price v. state of Hawaii, 921 F.2d 950, (9th Cir·.







Attorney General's Investigative Report, Nov. 2, 1988, at 13, A.E.

278; see also Ahuna, supra, at 340.

In the present case, Plaintiffs have made no claims that

the Trustees have not acted with honesty or ordinary prudence.

They simply disagree with political decisions reached by the

Trustees. Their remedy should thus be through the electoral

process rather than through this judicial challenge.

Plaintiffs argue that the OHA Trustees did not act

"solely in the interest of the" one-half blood Hawaiians in using

funds from the public land trust for the single definition

27


educational program. As explained in the next section, the aHA

Trustees had solid grounds for believing that their activities

regarding the single definition would be very beneficial to the

one-half blood Hawaiians and provided reasons for their actions in

their Resolution Relating to Ho'okahi No Maua E'we, A.E. 096,

attached hereto as Appendix A. As has often been stated, as

trustees they are not "expected to be infallible in their judgments

or decisions." Ahuna, supra, at 340, citing Hartmann v.

Bertelmann, 39 Haw. 619 (1952). As long as their decisions were

ones a reasonably prudent person might have made, their actions

cannot be subject to challenge.

3. The Actions of the aHA Trustees in This Case Were. In Any Event. Clearly Designed to Maintain and Increase the Benefits Available to Persons with 50 Percent or More Hawaiian Blood. as Well as All Other Hawaiians.

The OHA Trustees were without question acting within

their proper authority when they addressed the question of how

persons of Hawaiian ancestry should be categorized and sought input

from their beneficiaries on whether there should be a "single

definition" that would group together all persons of Hawaiian

ancestry for most purposes. Article XII, section 6 of Hawaii's

Constitution (which was added in 1978) states that the Trustees

should "formulate policy relating to the affairs of native

Hawaiians and Hawaiians" and exercise control of their assets. The

Hawaiian Affairs Committee at the 1978 Con explicitly stated that

the OHA Trustees should examine the question of blood quantum:

••• In looking to the future, your Committee decided that it is of utmost importance to establish a trust entity

28

educational program. As explained in the next section, the aHA

Trustees had solid grounds for believing that their activities

regarding the single definition would be very beneficial to the

one-half blood Hawaiians and provided reasons for their actions in

their Resolution Relating to Ho'okahi No Maua E'we, A.E. 096,

attached hereto as Appendix A. As has often been stated, as


or decisions." Ahuna, supra, at 340, citing Hartmann v.




3. The Actions of the aHA Trustees in This Case Were. In Any Event. Clearly Designed to Maintain and Increase the Benefits Available to Persons with 50 Percent or More Hawaiian Blood. as Well as All Other Hawaiians.

The OHA Trustees were without question acting within

their proper authority when they addressed the question of how

persons of Hawaiian ancestry should be categorized and sought input

from their beneficiaries on whether there should be a "single

definition" that would group together all persons of Hawaiian

ancestry for most purposes. Article XII, section 6 of Hawaii's

Constitution (which was added in 1978) states that the Trustees

should "formulate policy relating to the affairs of native

Hawaiians and Hawaiians" and exercise control of their assets. The

Hawaiian Affairs Committee at the 1978 Con explicitly stated that

the OHA Trustees should examine the question of blood quantum:

••• In looking to the future, your Committee decided that it is of utmost importance to establish a trust entity

28


that would be for all individuals whose ancestors were natives of the area which consisted of the Hawaiian Islands prior to 1778 ...

This new section [now Article XII, section 4 of the Hawaii Constitution] recites the trust corpus of section 5 (b) and names the two principal beneficiaries established in section 5(f) of the Admission Act--those native Hawaiians as defined by the Hawaiian Homes Commission Act, 1920, as amended, and the general public. Your committee decided to include the words "as may be amended" to follow "Hawaiian Homes Commission Act, 1920, as amended," in order to permit the Constitution in the future to reflect the change, if any, in the qualification of blood quantum set forth in that Act for native Hawaiians. Although your Committee was tempted to change this outmoded rule from the 1920s, your Committee concluded that this responsibility should be assumed by the Office of Hawaiian Affairs.

standing Comm. Rep. No. 59, 1 Proceedings of the Constitutional

Convention of Hawaii of 1978 at 643-44 (emphasis added).

The Con Con Delegates thus expected the aHA Trustees to confront

this issue and indicated their view that a change might well be

desirable. H.R.S. section 10-5(4) restates the power of the OHA

Trustees to "[f]ormulate policy" for Hawaiians and native

Hawaiians, and adds the explicit proviso that "such policy shall

not diminish or limit the benefits of" persons with 50 percent or

more Hawaiian blood. The Trustees undertook their actions within

this legislative framework.

The single definition issue is not a new problem for the

aHA Trustees. As Hawaii's Circuit Court found in the Kepoo case,

nobody of Hawaiian ancestry testified in favor of the half-blood

requirement when Congress was considering it in the context of the

Hawaiian Home Lands Act in 1920-21. See Conclusions of Law, and

Order Denying Motion for Preliminary Injunction, para. 9, A.E. 100,

Appendix B. "Territorial Senator John Wise urged a 1/32 Hawaiian

29

that would be for all individuals whose ancestors were natives of the area which consisted of the Hawaiian Islands prior to 1778 ...



Convention of Hawaii of 1978 at 643-44 (emphasis added).

The Con Con Delegates thus expected the aHA Trustees to confront








The single definition issue is not a new problem for the

aHA Trustees. As Hawaii's Circuit Court found in the Kepoo case,



Hawaiian Home Lands Act in 1920-21. See Conclusions of Law, and

Order Denying Motion for Preliminary Injunction, para. 9, A.E. 100,

Appendix B. "Territorial Senator John Wise urged a 1/32 Hawaiian

29


definition, if any blood quantum was to be required." Id. As the

body representing all Hawaiians, OHA first indicated its interest

in a "single definition" for all persons of Hawaiian ancestry by

endorsing a similar recommendation contained in the dissenting

report of the Native Hawaiians study commission in 1983. A year

later, OHA included full entitlement for all Hawaiians in its

Master Plan as one of its four primary goals. See Affidavit of

Linda Kawai'ono Delaney, dated November 14, 1988, para. 4

(referring to 2 Native Hawaiians study Commission 17 (1983», A.E.

334.

In Hoohuli V. Ariyoshi, 631 F.Supp. 1153, 1155 (D.Haw.

1986), Judge Samuel P. King found that the 1978 Constitutional

Convention Delegates were concerned not only about the state IS

failure to use the ceded lands trust for the benefit of persons

with 50 percent or more Hawaiian blood, but "they were also

concerned about the welfare of all people of Hawaiian ancestry and

about the preservation of aboriginal culture." Judge King further

found that the Hawaii state Legislature has recognized the

importance of "addressing the needs of all people of Hawaiian

ancestry." Id. at 1161. Evidence presented to the Legislature

showed that the reasons for using the 50-percent-blood criteria in

the 1920 Hawaiian Homes Commission Act "had become outmoded, and

that many more Hawaiians other than half-blood Hawaiians need

remedial legislation to address problems of crime, inadequate

housing, education, and welfare." Id. Further, the Legislature

determined that helping "all people of aboriginal blood could help

30

definition, if any blood quantum was to be required." Id. As the

body representing all Hawaiians, OHA first indicated its interest

in a "single definition" for all persons of Hawaiian ancestry by

endorsing a similar recommendation contained in the dissenting

report of the Native Hawaiians study commission in 1983. A year

later, OHA included full entitlement for all Hawaiians in its

Master Plan as one of its four primary goals. See Affidavit of

Linda Kawai'ono Delaney, dated November 14, 1988, para. 4

(referring to 2 Native Hawaiians study Commission 17 (1983», A.E.

334.

In Hoohuli V. Ariyoshi, 631 F.Supp. 1153, 1155 (D.Haw.

1986), Judge Samuel P. King found that the 1978 Constitutional

Convention Delegates were concerned not only about the state IS

failure to use the ceded lands trust for the benefit of persons

with 50 percent or more Hawaiian blood, but "they were also

concerned about the welfare of all people of Hawaiian ancestry and

about the preservation of aboriginal culture." Judge King further

found that the Hawaii state Legislature has recognized the

importance of "addressing the needs of all people of Hawaiian

ancestry." Id. at 1161. Evidence presented to the Legislature

showed that the reasons for using the 50-percent-blood criteria in

the 1920 Hawaiian Homes Commission Act "had become outmoded, and

that many more Hawaiians other than half-blood Hawaiians need

remedial legislation to address problems of crime, inadequate

housing, education, and welfare." Id. Further, the Legislature

determined that helping "all people of aboriginal blood could help

30


alleviate divisiveness in the Hawaiian community resulting from

blood quantum restrictions." Id. Judge King concluded that the

Legislature arrived at these findings through "careful

consideration and social and historical research." Id. He thus

held in Hoohuli that the action of the Hawaii state Legislature in

granting benefits to Hawaiians with less than half-blood was

rational and consistent with the Hawaii and u.s. Constitutions.

Recent actions by the U.S. Congress have also shown a

recognition that the arbitrary division between half-blood

Hawaiians and others should be reevaluated. In both the Native

Hawaiians study Commission Act, 42 U.S.C. sec. 2991a at sec. 303

(1982), and the Native American Programs Act of 1974, 42 U.S.C.

secs. 2991, 2992c(3) (1982), for instance, Congress defined "native

Hawaiian ll as lIany individual whose ancestors were natives ..• of the

Hawaiian Islands prior to 1778,11 without regard to blood quantum.

Similarly, in 1987, Congress approved an amendment to Section 209

of the Hawaiian Homes Commission Act, 1920, which permits persons

with only one-quarter Hawaiian blood to succeed to a lease on

Hawaiian Homelands. (Add reference to Native Hawaiian Health Care

Act. ]

As noted above, H.R.S. section 10-6(4) requires OHA's

Trustees to formulate policy in a manner that "shall not diminish

or limit the benefits ll of half-blood Hawaiians. As the Attorney

General's Investigative Report points out,6 the Trustees can

6Attorney General's Investigative Report, Nov. 2, 1988, at 11-12, A.E. 278 (emphasis in original):

31

alleviate divisiveness in the Hawaiian community resulting from

blood quantum restrictions." Id. Judge King concluded that the

Legislature arrived at these findings through "careful

consideration and social and historical research." Id. He thus

held in Hoohuli that the action of the Hawaii state Legislature in

granting benefits to Hawaiians with less than half-blood was

rational and consistent with the Hawaii and u.s. Constitutions.

Recent actions by the U.S. Congress have also shown a

recognition that the arbitrary division between half-blood

Hawaiians and others should be reevaluated. In both the Native


(1982), and the Native American Programs Act of 1974, 42 U.S.C.


Hawaiian ll as lIany individual whose ancestors were natives ..• of the

Hawaiian Islands prior to 1778,11 without regard to blood quantum.

Similarly, in 1987, Congress approved an amendment to Section 209



Hawaiian Homelands. (Add reference to Native Hawaiian Health Care

Act. ]

As noted above, H.R.S. section 10-6(4) requires OHA's

Trustees to formulate policy in a manner that "shall not diminish

or limit the benefits ll of half-blood Hawaiians. As the Attorney

General's Investigative Report points out,6 the Trustees can

6Attorney General's Investigative Report, Nov. 2, 1988, at 11-12, A.E. 278 (emphasis in original):

31


certainly articulate reasons to explain how their activities

regarding the single-definition issue will benefit the half-blood

Hawaiians.

In fact, the Trustees did articulate reasons in their

Resolution Relating to Ho'okahi No Maua E'we, A.E. 096, Appendix A,

adopted by the Trustees at their meetings of May 1988 and December

1989. Among the reasons presented in this Resolution are the

following:

WHEREAS, the blood quantum definition as relates to the right to entitlement and benefits (in the words of a 1980 State Legislative Report) has "proved to be a factor in dividing the Hawaiian community, mothers and fathers from their children, cousins from cousins, and friends from friends •...

WHEREAS, the Office of Hawaiian Affairs has encountered major fiscal and administrative hardships in managing income for two classes of Hawaiian people •••.

WHEREAS, the arbitrary requirement of 50% blood quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Native Hawaiian blood .••.

WHEREAS, it is recognized that the blood quantum issue is a root concern that has had a divisive effect on Native Hawaiian families and Native Hawaiian communities;

WHEREAS, it is recognized that self-determination is

Native Hawaiian beneficiaries possess no pecuniary interest in the trust res; rather aHA's charge is to hold and use this native Hawaiian public trust moneys solely as a public trust for the betterment of conditions of native Hawaiians. This standard provides the Trustees with discretion to act where a "reasonable man" believes an undertaking will IIbetter the condition", which mayor may not be pecuniary, of the native Hawaiian beneficiary. Although there is no reason indicated in Board minutes why the Trustees felt that the adoption of a single definition was solely for the betterment of the condition of native Hawaiians, it is possible for the Trustees to arguably enunciate a justification for their decision.

32

certainly articulate reasons to explain how their activities

regarding the single-definition issue will benefit the half-blood

Hawaiians.


Resolution Relating to Ho'okahi No Maua E'we, A.E. 096, Appendix A,


1989. Among the reasons presented in this Resolution are the

following:

WHEREAS, the blood quantum definition as relates to the right to entitlement and benefits (in the words of a 1980 State Legislative Report) has "proved to be a factor in dividing the Hawaiian community, mothers and fathers from their children, cousins from cousins, and friends from friends •...

WHEREAS, the Office of Hawaiian Affairs has encountered major fiscal and administrative hardships in managing income for two classes of Hawaiian people •••.

WHEREAS, the arbitrary requirement of 50% blood quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Native Hawaiian blood .••.


WHEREAS, it is recognized that self-determination is

Native Hawaiian beneficiaries possess no pecuniary interest in the trust res; rather aHA's charge is to hold and use this native Hawaiian public trust moneys solely as a public trust for the betterment of conditions of native Hawaiians. This standard provides the Trustees with discretion to act where a "reasonable man" believes an undertaking will IIbetter the condition", which mayor may not be pecuniary, of the native Hawaiian beneficiary. Although there is no reason indicated in Board minutes why the Trustees felt that the adoption of a single definition was solely for the betterment of the condition of native Hawaiians, it is possible for the Trustees to arguably enunciate a justification for their decision.

32


a desirable goal of Native Hawaiians and would be substantially achieved if the issue of the adoption. of a single class of Native Hawaiian Beneficiaries was submitted to qualified voters who are Hawaiian for ratification ••..

After examining this Resolution, the Circuit Court in

this case concluded in its Findings of Fact that:

21. The betterment of the conditions of native Hawaiians can be achieved in many ways. Programs such as the Single Definition Referendum that promote selfdetermination is one of many ways to achieve the betterment of the conditions of native Hawaiians even through all Hawaiians would benefit.


Appendix B.

A single definition can thus serve to better the

conditions of half-blood Hawaiians. Programs that promote self

determination and pride in the native culture, ~anguage,

traditions, and successes of members of the Hawaiian community are

examples of ways to better the conditions of half-blood Hawaiians,

along wi th others of Hawaiian ancestry . See, .L,g., Kila v.

Hawaiian Homes Comm'n, No. 74-12 (D. Haw. Sept. 17,

1974) (concluding that increasing lease costs to homesteaders

lessees under the Hawaiian Homes program was to their benefit).

The u.s. Supreme Court has recognized the necessity of

allowing native peoples to "determine which traditional values will

promote cultural survival and should therefore be preserved," and

has recognized that care must be taken not lito destroy cultural

identity under the guise of saving it. II santa Clara Pueblo v.

Martinez, 436 U.S. 39, 54 (1978). As mentioned above, the OHA

33

a desirable goal of Native Hawaiians and would be substantially achieved if the issue of the adoption. of a single class of Native Hawaiian Beneficiaries was submitted to qualified voters who are Hawaiian for ratification ••..

After examining this Resolution, the Circuit Court in

this case concluded in its Findings of Fact that:



Appendix B.

A single definition can thus serve to better the

conditions of half-blood Hawaiians. Programs that promote self

determination and pride in the native culture, ~anguage,

traditions, and successes of members of the Hawaiian community are

examples of ways to better the conditions of half-blood Hawaiians,

along wi th others of Hawaiian ancestry . See, .L,g., Kila v.

Hawaiian Homes Comm'n, No. 74-12 (D. Haw. Sept. 17,

1974) (concluding that increasing lease costs to homesteaders

lessees under the Hawaiian Homes program was to their benefit).

The u.s. Supreme Court has recognized the necessity of



has recognized that care must be taken not lito destroy cultural

identity under the guise of saving it. II santa Clara Pueblo v.


33


Trustees have found that "the arbitrary requirement of 50% blood

quantum is contrary to Native Hawaiian culture and tradition and

was a requirement developed and approved by those with no Native

Hawaiian blood ••. 11 Resolution Relating to Ho'okahi No Maua E'we,

R.V.l, p. 201. The posing of a question relating to this issue is

thus an appropriate and reasonable effort to re-establish

traditional cultural values and to obtain the views of the Hawaiian

beneficiaries on this issue. The strong support recorded in the

two referenda for the single definition, from all sectors of the

Hawaiian community, confirms that this initiative has been seen to

be for the benefit of all Hawaiians.

When the Committee of the Whole met at the end of the

1978 constitutional Convention to put the package of proposed

amendments into final form, they reaffirmed the proposal for an

Office of Hawaiian Affairs and focused in their committee report on

the role of OHA as a vehicle to promote unity among all persons of

Hawaiian ancestry and lead to self-governance:

Members were impressed by the concept of the Office of Hawaiian Affairs which establishes a public trust entity for the benefit of the people of Hawaiian ancestry. Meltlbers foresaw that it will provide Hawaiians the right to determine the priorities which will effectuate the betterment of their condition and welfare and promote the protection and preservation of the Hawaiian race, and that it will unite Hawaiians as a people ••.•

.•• If one looks to the precedent of other native peoples, one finds that they have traditionally enjoyed self-determination and self-government. They have power to make their own sUbstantive rules in internal matters. Although no longer possessed of the full attributes of sovereignty, they remain a separate people with the power of regulation over their internal and social problems. The establishment of the Office of Hawaiian Affairs is

34




Hawaiian blood ••. 11 Resolution Relating to Ho'okahi No Maua E'we,

R.V.l, p. 201. The posing of a question relating to this issue is







When the Committee of the Whole met at the end of the

1978 constitutional Convention to put the package of proposed

amendments into final form, they reaffirmed the proposal for an

Office of Hawaiian Affairs and focused in their committee report on

the role of OHA as a vehicle to promote unity among all persons of

Hawaiian ancestry and lead to self-governance:

Members were impressed by the concept of the Office of Hawaiian Affairs which establishes a public trust entity for the benefit of the people of Hawaiian ancestry. Meltlbers foresaw that it will provide Hawaiians the right to determine the priorities which will effectuate the betterment of their condition and welfare and promote the protection and preservation of the Hawaiian race, and that it will unite Hawaiians as a people ••.•

.•• If one looks to the precedent of other native peoples, one finds that they have traditionally enjoyed self-determination and self-government. They have power to make their own sUbstantive rules in internal matters. Although no longer possessed of the full attributes of sovereignty, they remain a separate people with the power of regulation over their internal and social problems. The establishment of the Office of Hawaiian Affairs is

34


intended to grant similar rights to Hawaiians .... 7

The courts have consistently recognized that one of a native

people's most basic powers is the authority to determine its own

membership. Thus the 1978 constitutional convention merely

reaffirmed the inherent right of the Hawaiian people to determine

their own membership. See Santa Clara Pueblo v. Martinez, 436 U.S.

49 (1977); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15

(1831) . The activities of the OHA Trustees undertaken in

connection with the single definition thus serve the goal of

furthering the efforts of all Hawaiians toward greater self

determination.

Finally, the single definition program has been designed

to increase the political success of the Hawaiian community by

enabling its members to speak with a more united voice. The

ability to increase the benefits available to persons of Hawaiian

ancestry will certainly benefit the half-blood Hawaiians. As the

OHA Trustees continue their efforts to negotiate with the state and

federal government benefits for land and other resources, the

strength of numbers will be a significant factor in determining

whether they are successful. It is clearly to the benefit of all

Hawaiians that these negotiations be conducted from a position of

strength and unity.

7committee of the Whole Report No. 13 (issued Sept. 5, 1978), 1 proceedings of the Constitutional Convention of Hawaii of 1978 at 1018-19 (emphasis added).

35

intended to grant similar rights to Hawaiians .... 7



membership. Thus the 1978 constitutional convention merely


their own membership. See Santa Clara Pueblo v. Martinez, 436 U.S.


(1831) . The activities of the OHA Trustees undertaken in


furthering the efforts of all Hawaiians toward greater self

determination.

Finally, the single definition program has been designed

to increase the political success of the Hawaiian community by




OHA Trustees continue their efforts to negotiate with the state and

federal government benefits for land and other resources, the

strength of numbers will be a significant factor in determining

whether they are successful. It is clearly to the benefit of all

Hawaiians that these negotiations be conducted from a position of

strength and unity.

7committee of the Whole Report No. 13 (issued Sept. 5, 1978), 1 proceedings of the Constitutional Convention of Hawaii of 1978 at 1018-19 (emphasis added).

35


F. The District Court Clearly Erred in Its Conclusion That the Expenditure of section 5 (f) . Funds to Benefit Hawaiians with Less than 50% Blood violated Clearly Established Law.

As indicated above, the facts related to the 1988

referendum as they have been developed by the Attorney General's

Investigative Report and by Hawaii's Circuit Court in the Kepoo

case indicate that section 5(f) funds have not been used to support

this referendum except in an incidental fashion. Nonetheless, the

conclusion reached by the District Court that such expenditures, if

they had occurred, would violated the fiduciary obligation of OHA's

Trustees is clearly in error.

The District Court relied primarily on Attorney General

Opinion No. 83-2, dated April 15, 1983, written by Hawaii's Office

of the Attorney General, which was gave a "no" answer to the

abstract question of whether aHA could use section 5(f) funds "to

better the conditions of Hawaiians as defined in Hawaii Revised

statutes, section 10-2(5)1" since 1983, as specific fact

situations have developed, the answer to this question has been

seen to be considerably less clear. And in the present case, the

real question is not whether Section 5(f) funds can be used for

less than half-blood Hawaiians but rather whether they can be used

for a program that benefits both the half-blood and the less-than-

half-blood Hawaiians and is a stop along the road to self-

determination.

The Office of Hawaiian Affairs has quoted extensively

above from the Findings of Facts and Conclusions of Law of Hawaii's

Circuit Court in the Kepoo case which concluded that the aHA

36

F. The District Court Clearly Erred in Its Conclusion That the Expenditure of section 5 (f) . Funds to Benefit Hawaiians with Less than 50% Blood violated Clearly Established Law.

As indicated above, the facts related to the 1988

referendum as they have been developed by the Attorney General's

Investigative Report and by Hawaii's Circuit Court in the Kepoo

case indicate that section 5(f) funds have not been used to support

this referendum except in an incidental fashion. Nonetheless, the

conclusion reached by the District Court that such expenditures, if

they had occurred, would violated the fiduciary obligation of OHA's

Trustees is clearly in error.

The District Court relied primarily on Attorney General

Opinion No. 83-2, dated April 15, 1983, written by Hawaii's Office

of the Attorney General, which was gave a "no" answer to the

abstract question of whether aHA could use section 5(f) funds "to

better the conditions of Hawaiians as defined in Hawaii Revised

statutes, section 10-2(5)1" since 1983, as specific fact

situations have developed, the answer to this question has been

seen to be considerably less clear. And in the present case, the

real question is not whether Section 5(f) funds can be used for

less than half-blood Hawaiians but rather whether they can be used

for a program that benefits both the half-blood and the less-than-

half-blood Hawaiians and is a stop along the road to self-

determination.

The Office of Hawaiian Affairs has quoted extensively

above from the Findings of Facts and Conclusions of Law of Hawaii's

Circuit Court in the Kepoo case which concluded that the aHA

36


Trustees had acted properly. The key Finding is Number 21, which

reads:



Appendix B.

In addition, OHA has quoted from the November 2, 1988

Investigative Report of Hawaii's Attorney General which concluded

that although the use of section 5(f) funds to conduct an

"advocacy" program on the single definition might be inappropriate,

"we believe it is not improper" to use these special funds to

inform the native Hawaiian beneficiaries of the ideas the Trustees

are considering in order to obtain their views. Id. at 9, 11 n.2,

A.E. 278.

The District Court rej ected the importance of the Kepao

rulings because they were rendered "after the conduct alleged as

wrongful in this case occurred" and because tithe record itself is

less than clear as to the basis for the unpublished ruling. tI Price

v. Akaka, supra, slip Ope at 17-18, A.E. 515. Neither of these

reasons provide a sound basis for ignoring the decisions of

Hawaii's learned state judges. The Circuit Court judges, examining

aHA's actions alleged to be in "clear violation" of the Trustees'

fiduciary duties, ruled explicitly to the contrary, establishing

rather decisively that the view suggested by Plaintiffs and adopted

by the District Court is anything but "clear." In addition, even

37

Trustees had acted properly. The key Finding is Number 21, which

reads:



Appendix B.

In addition, OHA has quoted from the November 2, 1988







A.E. 278.

The District Court rej ected the importance of the Kepao


wrongful in this case occurred" and because tithe record itself is

less than clear as to the basis for the unpublished ruling. tI Price

v. Akaka, supra, slip Ope at 17-18, A.E. 515. Neither of these

reasons provide a sound basis for ignoring the decisions of

Hawaii's learned state judges. The Circuit Court judges, examining

aHA's actions alleged to be in "clear violation" of the Trustees'




37


though the reason for the Supreme Court's affirmance remain

unstated, the fact of the affirmance indicates decisively again

that the aHA Trustees did not engage in a "clear violation" of

their duties.

The scope of appellate review on this question of law-

whether the use of Section 5 (f) funds for the benefit of all

persons of Hawaiian ancestry is a clear violation of the Trustees'

fiduciary obligations--is de novo. Because the District Court

erred in its ruling on this issue, the decision below must be

reversed.

G. The Office of Hawaiian Affairs Agrees with The Appellants opening Brief That the Issue of the Standing of the Plaintiffs or Their Ability to Invoke 42 U.S.C. §1983 as an Engine for Review of the Trustees' Action are Not Before This Honorable Court

The Office of Hawaiian Affairs has consistently advocated

for standing in Federal Court for Native Hawaiians to sue for

breaches of trsut. It is OHA's position that the legal principles

regarding standing in 28 U.S.C. 1983 cases for relief as ennuciated

in Price v. state of Hawaii, 764 F.2d 623 (9th Cir. 1985), cert

Denied. 474 U.S. 1055, (1986); Keaukaha-Panaewa Community Ass'n v.

Hawaiian Homes Comm'n, 739 F.2d 1467 (9th eire 1984) (Keaukaha II),

is correct and should continue to be law. Nevertheless, this issue

is nto before this Honorable Court now ans aHA would seek leave to

address it at the appropriate time.

IV. CONCLUSION

For the reasons stated above, Amicus curiae Office of

38



that the aHA Trustees did not engage in a "clear violation" of

their duties.

The scope of appellate review on this question of law-

whether the use of Section 5 (f) funds for the benefit of all

persons of Hawaiian ancestry is a clear violation of the Trustees'

fiduciary obligations--is de novo. Because the District Court

erred in its ruling on this issue, the decision below must be

reversed.

G. The Office of Hawaiian Affairs Agrees with The Appellants opening Brief That the Issue of the Standing of the Plaintiffs or Their Ability to Invoke 42 U.S.C. §1983 as an Engine for Review of the Trustees' Action are Not Before This Honorable Court

The Office of Hawaiian Affairs has consistently advocated

for standing in Federal Court for Native Hawaiians to sue for

breaches of trsut. It is OHA's position that the legal principles

regarding standing in 28 U.S.C. 1983 cases for relief as ennuciated

in Price v. state of Hawaii, 764 F.2d 623 (9th Cir. 1985), cert

Denied. 474 U.S. 1055, (1986); Keaukaha-Panaewa Community Ass'n v.

Hawaiian Homes Comm'n, 739 F.2d 1467 (9th eire 1984) (Keaukaha II),

is correct and should continue to be law. Nevertheless, this issue

is nto before this Honorable Court now ans aHA would seek leave to

address it at the appropriate time.

IV. CONCLUSION

For the reasons stated above, Amicus curiae Office of

38


Hawaiian Affairs urges the District Court on the grounds that the

individual Trustees had qualified immunity to pose the questions of

a single definition to their beneficiaries and that they acted

properly in doing so.

DATED: Honolulu, Hawaii,

39

D2Vt.--~ ~ ______________________ , 1992.

SHERR~P. BRODER

Attorney for The Office of Hawaiian Affairs

Hawaiian Affairs urges the District Court on the grounds that the

individual Trustees had qualified immunity to pose the questions of

a single definition to their beneficiaries and that they acted

properly in doing so.

DATED: Honolulu, Hawaii,

39

D2Vt.--~ ~ ______________________ , 1992.

SHERR~P. BRODER

Attorney for The Office of Hawaiian Affairs


( OFF:CE OF HAWAI!~N ~::~Ii

?_:x."::::C.~·:::o~r OF A. SINGLE CL\SS OF ~.l.T!·':: ~Wi\I!~'t 3::~r!:rc:~,.:~!!S

W!:'~OC;T R!:ERE!ICE TO .l. aLOOD QU~\{'rt~ l\ND DI?~C1'!~G T:~!

SU3~!SS:ON 0: THE l\DOPTION OF A SINGLE CLASS TO QUAL~!!!D VOT~~S ~nO ~~ NA.T:;~ HAW~IIAN

wn!REAS, it is a vital concern to the Native Hawaiian co~uni~y t~at a single class of Native Hawaiian Beneficiaries be adopted which encourages and enhances the dignity and values of a single, unified people, provided that the Office of Hawaiian Affairs recognizes that those who are 50% Native Hawaiian and their successors now are the only ones qualified for DHHL lands as governed by the RHeA, 1920, as amended.

~~EREAS, the Master Plan of ORA, Priority No. 4.7 (adopted January 28, 1988), is lito pursue a single definition of Native Hawaiian without reference to a blood auantum and to ?rovide a??=opriate protection to guarantee the rights and privileges of current HHC beneficiaries;"

wn!~EAS, the submission of a sinqle class of Native Hawaiian 3eneficiaries is desirable in that it enables the Native Hawaiian people to express their will on this issue;

WHEREAS, the aHA Board ot Trustees is authorized to formulate policy relatinq to the affairs ot Hawaiians and Native Hawaiians and the OHA Board of Trustees finds t.'lat t.'le submission of a sinqle class of Native Hawaiian Beneficiaries for ratification by qualified voters who are Native Hawaiian is one of the policies ot OHA, and the input of OHA's constituents is desired on this policy:

wa-~, Policy No. 3.2.a (adopted January 28, 1988) of the OHA Master Plan states that OHA shall "provide mechanisms that will be operational in tive years tor systematic beneficiary input into OHA on all manner ot Hawaiian issues;-

WHEREAS, the 0. S • Conqress has established two definitions ot a Native'Hawaiian, one settinq a blood quantum.ot 50% or more tor purposes ot the Hawaiian Homes Act ot 1920, and the other only requirinq an individual to be a descendant of those inhabitinq the Hawaiian Islands prior to 1118;

WHEREAS, the blood quantum definition as relates to the right to entitlements and benetits (in the words ot a 1980 state Leqislative Report) has "proved. to be a factor in dividinq the Hawaiian community, mothers and fathers from their children, cousins from cousins, and triends from friends;"

APPENDIX A

096

( OFF:CE OF HAWAI!~N ~::~Ii

?_:x."::::C.~·:::o~r OF A. SINGLE CL\SS OF ~.l.T!·':: ~Wi\I!~'t 3::~r!:rc:~,.:~!!S

W!:'~OC;T R!:ERE!ICE TO .l. aLOOD QU~\{'rt~ l\ND DI?~C1'!~G T:~!

SU3~!SS:ON 0: THE l\DOPTION OF A SINGLE CLASS TO QUAL~!!!D VOT~~S ~nO ~~ NA.T:;~ HAW~IIAN

wn!REAS, it is a vital concern to the Native Hawaiian co~uni~y t~at a single class of Native Hawaiian Beneficiaries be adopted which encourages and enhances the dignity and values of a single, unified people, provided that the Office of Hawaiian Affairs recognizes that those who are 50% Native Hawaiian and their successors now are the only ones qualified for DHHL lands as governed by the RHeA, 1920, as amended.

~~EREAS, the Master Plan of ORA, Priority No. 4.7 (adopted January 28, 1988), is lito pursue a single definition of Native Hawaiian without reference to a blood auantum and to ?rovide a??=opriate protection to guarantee the rights and privileges of current HHC beneficiaries;"

wn!~EAS, the submission of a sinqle class of Native Hawaiian 3eneficiaries is desirable in that it enables the Native Hawaiian people to express their will on this issue;

WHEREAS, the aHA Board ot Trustees is authorized to formulate policy relatinq to the affairs ot Hawaiians and Native Hawaiians and the OHA Board of Trustees finds t.'lat t.'le submission of a sinqle class of Native Hawaiian Beneficiaries for ratification by qualified voters who are Native Hawaiian is one of the policies ot OHA, and the input of OHA's constituents is desired on this policy:

wa-~, Policy No. 3.2.a (adopted January 28, 1988) of the OHA Master Plan states that OHA shall "provide mechanisms that will be operational in tive years tor systematic beneficiary input into OHA on all manner ot Hawaiian issues;-

WHEREAS, the 0. S • Conqress has established two definitions ot a Native'Hawaiian, one settinq a blood quantum.ot 50% or more tor purposes ot the Hawaiian Homes Act ot 1920, and the other only requirinq an individual to be a descendant of those inhabitinq the Hawaiian Islands prior to 1118;

WHEREAS, the blood quantum definition as relates to the right to entitlements and benetits (in the words ot a 1980 state Leqislative Report) has "proved. to be a factor in dividinq the Hawaiian community, mothers and fathers from their children, cousins from cousins, and triends from friends;"

APPENDIX A

096


(. ( WHE~!A5, t~e Unlted States Cong~ __ s pu~suant to t~e

Ha·..Ia i :'a:1 ~c=.es Corr~"Uiss ion Act, def ined a Nat ive Ea.~a iian to be any cesce~dan~ of root less than one-hal! of t~e blood of t~e ~aces :'~habi:i~g t~e Hawaiian Islands previous to 1773;

w~!~~AS, Congressional records reflect t~at in 1920 ~awaii's Delegate to Congress, Territorial Senator John Wise, Jonah ~uhio Kalanianaole, who is charac~erized as t~e "Father 0: the Ha·..taii'an Homes Commission Act, f' advocated that there be no blood ~~antu~ but t~at if one were required that the definitions of Native Hawaiian should be based on one-thir~y second blood quant~ ~eflective of the wide-spread inter-marriage amonq Native Hawaiians and ot~er peoples of the Hawaiian Islands:

WH!~AS, at the present time, a waiting list exists for the occupancy of Hawaiian Home Lands administered by the Depart~ent of Hawaiian Ho~e Lands and, thus, it is not appropriate yet to institute this single beneficiary class for the D:part~ent of Hawaiian Hone Lands;

HH!~:':AS, the Office of Hawaiian Affairs was created in 1978 as a tr~st for all Native Hawiians and autho~ized, pursuant to t~~ Cons~itution of the State of Hawaii Article XII Sections 5 and 6, to manaq~ that pr~ rata share of income and proceeds designated for Native Hawiians pursuant to section 4 ot said Article and section S(f) of the Admission Act:

WHEREAS, the Office of Hawaiian Affairs has encountered. major fiscal and administrative hardships in manaqinq income for t~o classes of Hawaiian people;

wnEREAS, Conqress in 1974 amended the Native American Program Act to include Native Hawaiians as Native Americans and • in so doinq enacted a second definition ot Native Hawaiians that does not require a specific blood quantum, but merely a showinq of Hawaiian ancestry to those native people inhabitinq the Hawaiian Islands prior to 1778;

WHEREAS, the arbitrary requirement ot sot blooc:l quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Hative Hawaiian blood;

WHEREAS, there are issues relatinq to Native Hawaiians who have qreater social and economic needs, priority to those Native Hawaiians may be established by policy of the Board of Trustees o~ ORA, as necessary.

WHEREAS, Native Hawaiians who do reside in the State of Hawaii may have a qreater claim to ceded lands resources and priority to Native Hawaiians residinq in the State ot Hawaii may be established by policy of the Board of Trustees of OHA, as necessary.

-2-

097

(. ( WHE~!A5, t~e Unlted States Cong~ __ s pu~suant to t~e

Ha·..Ia i :'a:1 ~c=.es Corr~"Uiss ion Act, def ined a Nat ive Ea.~a iian to be any cesce~dan~ of root less than one-hal! of t~e blood of t~e ~aces :'~habi:i~g t~e Hawaiian Islands previous to 1773;

w~!~~AS, Congressional records reflect t~at in 1920 ~awaii's Delegate to Congress, Territorial Senator John Wise, Jonah ~uhio Kalanianaole, who is charac~erized as t~e "Father 0: the Ha·..taii'an Homes Commission Act, f' advocated that there be no blood ~~antu~ but t~at if one were required that the definitions of Native Hawaiian should be based on one-thir~y second blood quant~ ~eflective of the wide-spread inter-marriage amonq Native Hawaiians and ot~er peoples of the Hawaiian Islands:

WH!~AS, at the present time, a waiting list exists for the occupancy of Hawaiian Home Lands administered by the Depart~ent of Hawaiian Ho~e Lands and, thus, it is not appropriate yet to institute this single beneficiary class for the D:part~ent of Hawaiian Hone Lands;

HH!~:':AS, the Office of Hawaiian Affairs was created in 1978 as a tr~st for all Native Hawiians and autho~ized, pursuant to t~~ Cons~itution of the State of Hawaii Article XII Sections 5 and 6, to manaq~ that pr~ rata share of income and proceeds designated for Native Hawiians pursuant to section 4 ot said Article and section S(f) of the Admission Act:

WHEREAS, the Office of Hawaiian Affairs has encountered. major fiscal and administrative hardships in manaqinq income for t~o classes of Hawaiian people;

wnEREAS, Conqress in 1974 amended the Native American Program Act to include Native Hawaiians as Native Americans and • in so doinq enacted a second definition ot Native Hawaiians that does not require a specific blood quantum, but merely a showinq of Hawaiian ancestry to those native people inhabitinq the Hawaiian Islands prior to 1778;

WHEREAS, the arbitrary requirement ot sot blooc:l quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Hative Hawaiian blood;

WHEREAS, there are issues relatinq to Native Hawaiians who have qreater social and economic needs, priority to those Native Hawaiians may be established by policy of the Board of Trustees o~ ORA, as necessary.

WHEREAS, Native Hawaiians who do reside in the State of Hawaii may have a qreater claim to ceded lands resources and priority to Native Hawaiians residinq in the State ot Hawaii may be established by policy of the Board of Trustees of OHA, as necessary.

-2-

097


~~e cour~s

one o~ a ~ati~e ?eople's dete~ine i~s own ~embe=ship;

have consis~ ~ost poyer is

.ly ~ecognize~ ~~~~ t~e au~~ori:l ~~

w~Z~!AS, i~ is rec~gnized t~at ~~e blood quan~u~ :ss~e is a root concer~ t~at has had a devisive af!ect on ~at~'le Hawaiian fa~ilies and ~ative Hawaiian co~uni~ies;

Wrl~~AS, it is recognized that self-determination is a desirable goal of Native Hawaiians and would be substantially achieved if the issue of the adoption of a single class 0: Native Hawaiian Beneficiaries vas submitted to qualified vo~ers who are Hawaiian for ratification; and

BE IT ENACTED BY THE BOARD OF TRUSTEES, OFF!e! 0: HAWAIIAN AFFAIRS that the proposed single class of Native Hawaiian Beneficiaries be submitted to qualified voters who are Hawaiian for ratification or rejection at the general election to be held on the 8th day of November, 1988. Persons possessi~q qualifications to vote for Trustees of the Office of Ha~aiian Affairs shall be entitled to vote on the ratificatior. o~ rejection of said single class of Native Hawaiia~ Beneficiaries. The ballot for such submission shall be printed and distributed, and shall be substantially in the form hereto attached;

BE IT FUl\TH!R RESOLVED that the returns of said submission shall be made by the appropriate individuals, who shall certify the results of the submission to the Board of Trustees of the Office of Hawaiian Affairs; and

BE IT FURTHZR RESOLVED that ~~e ratification and adoption shall be effective only if approved at the elect~on by a majority ot all votes cast by qualified voters who are Native Hawaiian tallied upon the question.

BE I~ FURTHER RESOLVED that upon ratification and adoption OHA shall take all necessary implementinq action.

-3-

098

~~e cour~s

one o~ a ~ati~e ?eople's dete~ine i~s own ~embe=ship;

have consis~ ~ost poyer is

.ly ~ecognize~ ~~~~ t~e au~~ori:l ~~

w~Z~!AS, i~ is rec~gnized t~at ~~e blood quan~u~ :ss~e is a root concer~ t~at has had a devisive af!ect on ~at~'le Hawaiian fa~ilies and ~ative Hawaiian co~uni~ies;

Wrl~~AS, it is recognized that self-determination is a desirable goal of Native Hawaiians and would be substantially achieved if the issue of the adoption of a single class 0: Native Hawaiian Beneficiaries vas submitted to qualified vo~ers who are Hawaiian for ratification; and

BE IT ENACTED BY THE BOARD OF TRUSTEES, OFF!e! 0: HAWAIIAN AFFAIRS that the proposed single class of Native Hawaiian Beneficiaries be submitted to qualified voters who are Hawaiian for ratification or rejection at the general election to be held on the 8th day of November, 1988. Persons possessi~q qualifications to vote for Trustees of the Office of Ha~aiian Affairs shall be entitled to vote on the ratificatior. o~ rejection of said single class of Native Hawaiia~ Beneficiaries. The ballot for such submission shall be printed and distributed, and shall be substantially in the form hereto attached;

BE IT FUl\TH!R RESOLVED that the returns of said submission shall be made by the appropriate individuals, who shall certify the results of the submission to the Board of Trustees of the Office of Hawaiian Affairs; and

BE IT FURTHZR RESOLVED that ~~e ratification and adoption shall be effective only if approved at the elect~on by a majority ot all votes cast by qualified voters who are Native Hawaiian tallied upon the question.

BE I~ FURTHER RESOLVED that upon ratification and adoption OHA shall take all necessary implementinq action.

-3-

098


OFF!C:~L BALLOT (

SINGLE C~SS OF ~~T!~~ HAWAIIAN BENEFICI~~IES PRO?OSED BY THE OFFICE OF r~W~I!~~ AFFAIRS, 1988

GENERAL ELECTION TUESDAY, NOVEMBER 8, 1988

VOTING INSTRUCTIONS:

THE VOTER SHALL MA.tUt HIS BALLOT YES OR NO BY PUNCHING IN THE APPROPRIA.TE SQUARE. THIS REFERENDUM TO R.~TIFY A SINGLE CLASS OF HAWAIIAN BENEFICIA.~IES r~S BEE~ PRQ~OSEO BY &~D FOR TEE OFFICE OF HAWAIIAN AFF~IRS.

Shall every Native Hawaiian have the right to enjoy the

benefits of the as~ets managed by the Office of Hawaiian

~ffai~s, as provided by the Office of Hawaiian Affairs. The

ter:n "Native Hawaiian" shall lIlean all descendants of the

indigenous people inhabitinq the Hawaiian Islands previous to

1778.

099

OFF!C:~L BALLOT (

SINGLE C~SS OF ~~T!~~ HAWAIIAN BENEFICI~~IES PRO?OSED BY THE OFFICE OF r~W~I!~~ AFFAIRS, 1988

GENERAL ELECTION TUESDAY, NOVEMBER 8, 1988

VOTING INSTRUCTIONS:

THE VOTER SHALL MA.tUt HIS BALLOT YES OR NO BY PUNCHING IN THE APPROPRIA.TE SQUARE. THIS REFERENDUM TO R.~TIFY A SINGLE CLASS OF HAWAIIAN BENEFICIA.~IES r~S BEE~ PRQ~OSEO BY &~D FOR TEE OFFICE OF HAWAIIAN AFF~IRS.

Shall every Native Hawaiian have the right to enjoy the

benefits of the as~ets managed by the Office of Hawaiian

~ffai~s, as provided by the Office of Hawaiian Affairs. The

ter:n "Native Hawaiian" shall lIlean all descendants of the

indigenous people inhabitinq the Hawaiian Islands previous to

1778.

099


\

(

t~"'~ "*:'" 2) 1\ '1- 5-I ~v :;~:.. 1""'\ I· ':l

! ·1'·"'·" I. ,I .' t ..

~~\. __ '~i\

IN THE CIRCTJl:T COORr or THE FIltST aRct1IT

STATE OF RAWAI:I

ARTHUR F. KEPO • 0, JOHN I. SIlwf..EONA SR., WILLIAM OILI, "and RAYMOND I. KAMAKA,

Plaintiffs,

vs.

ROO K. BURGESS, CLARENC~

F.T. CHl:NG, FRENCHY A. DESOTO, MOANJ:XEALA AXAD., HANtl' XAHAIALJ:I:, HOSES X. ltEALE, UJt:1l:S HAO, THOMAS X. XAtrLOKUKUI SR., and XEVm M. It. HAHOE, TRUSTEES, BOARD OF TRUSTEES, OFFICE OF EAWAJ:llN AFFAntS I

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL NO. 88-2987-09

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

) " Heard: )'

November lS, 1988 lO:30 a.lI.

) ) ) )

Before:

FINDINGS OF FAC':, CONCI1TSIOHS OP LAW Alm ORDElt DENYn!G MonON FOR Rf!I.TlfTl!ARY IlJJtJHcnOH

.. Plain1:iffs' Hction lor PnlJ'II1 n ary IDj1lDction filed.

herein on Nove.mbu 9, 1988 I was heard. before the Honorable HlltIE

HJ:LXS on November 21, 1988 at 9:00 a.a. Plaintiffs ~ F.

:KEPO'O, JOHN 1:. SIHEON1 SR., 1In.LDH OILX, and. RAmOHD I. DHlUQ.

(hereafter collectively referred. to as ·Plaintiffs") appeared

pro sa and attorney, SB:ERRY P. BRODER. appeared. on behalf of

Defendants ROD K. BtJRGESS, CLAREHCE F.'!. CBIlIG, nEHCliY A.

APPENDIX 8

100 \

(

t~"'~ "*:'" 2) 1\ '1- 5-I ~v :;~:.. 1""'\ I· ':l

! ·1'·"'·" I. ,I .' t ..

~~\. __ '~i\

IN THE CIRCTJl:T COORr or THE FIltST aRct1IT

STATE OF RAWAI:I

ARTHUR F. KEPO • 0, JOHN I. SIlwf..EONA SR., WILLIAM OILI, "and RAYMOND I. KAMAKA,

Plaintiffs,

vs.

ROO K. BURGESS, CLARENC~

F.T. CHl:NG, FRENCHY A. DESOTO, MOANJ:XEALA AXAD., HANtl' XAHAIALJ:I:, HOSES X. ltEALE, UJt:1l:S HAO, THOMAS X. XAtrLOKUKUI SR., and XEVm M. It. HAHOE, TRUSTEES, BOARD OF TRUSTEES, OFFICE OF EAWAJ:llN AFFAntS I

Defendants.

) ) ) ) ) ) ) ) ) ) ) ) )

CIVIL NO. 88-2987-09

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

) " Heard: )'

November lS, 1988 lO:30 a.lI.

) ) ) )

Before:

FINDINGS OF FAC':, CONCI1TSIOHS OP LAW Alm ORDElt DENYn!G MonON FOR Rf!I.TlfTl!ARY IlJJtJHcnOH

.. Plain1:iffs' Hction lor PnlJ'II1 n ary IDj1lDction filed.

herein on Nove.mbu 9, 1988 I was heard. before the Honorable HlltIE

HJ:LXS on November 21, 1988 at 9:00 a.a. Plaintiffs ~ F.

:KEPO'O, JOHN 1:. SIHEON1 SR., 1In.LDH OILX, and. RAmOHD I. DHlUQ.

(hereafter collectively referred. to as ·Plaintiffs") appeared

pro sa and attorney, SB:ERRY P. BRODER. appeared. on behalf of

Defendants ROD K. BtJRGESS, CLAREHCE F.'!. CBIlIG, nEHCliY A.

APPENDIX 8

100


\

0::50':0, MO~'lI~ \ AKAKA, ~.A.NU IQ.HAIALI:, r C:S K. K!).L.E:, LOurs

H}..O, TEO~..AS K. lG\ULtr!CtJmI Sit., and KEV!~ M. K. z-t.AHO£, Trustees,

30A.~ OF T~USTE!S, and OFFICE OF ~~W~IIA.~ Af:~IRS (herea!te~

collec-:.ively referred to as -Defendants"). The Court, having

ex~ined and considered all ~e evidence addressed and presented

at t!le Motion for Preli::inary Injunction, the Affidavits,

memoranda, and supportinq e!hibits submitted, havinq taken

judicial notice of the Court's records and files herein, beinq .-... .;,. ......

fully advised:" of- the pleadings and files herein, and having

considered the argument of counsel, hereby makes the following

Fir.c.i~gs of Fact and Conct"usions of Law:

F!~OINGS OF F'i\CT

l. Plaintiffs souqht to preliminarily enjoin

Defendants from. usinq assets from the Public Land 'rrust

(hereafter "Special Fund revenuesn ) for purposes of prolD.otinq a

Single Definition of native Hawaiian: from planninq and the

"implementing' of actions to dissolve the Public Land Trust": .

from harrassinq the native Hawaiians: and from distributinq

ballots tha.t. would alleqedly wlessen the opportunity tor native

Hawaiians to obtain benefits-. (~ Hotion tor Preliminary

Injunction at 2.)

2. 'rhe evidence shoved that: a.l. though Special FUnd

revenues wera approved for the proposed plebiscite, no funds are

currently beinq spent by the Defendants on. the Sinqle Definition

issue. Further I the evidence shows that Defendants do not

contemplate expendinq Special !'Une! revenues on the Sinqle

Definition issue in the future.

J -2-

# .

1 01 \

0::50':0, MO~'lI~ \ AKAKA, ~.A.NU IQ.HAIALI:, r C:S K. K!).L.E:, LOurs

H}..O, TEO~..AS K. lG\ULtr!CtJmI Sit., and KEV!~ M. K. z-t.AHO£, Trustees,

30A.~ OF T~USTE!S, and OFFICE OF ~~W~IIA.~ Af:~IRS (herea!te~

collec-:.ively referred to as -Defendants"). The Court, having

ex~ined and considered all ~e evidence addressed and presented

at t!le Motion for Preli::inary Injunction, the Affidavits,

memoranda, and supportinq e!hibits submitted, havinq taken

judicial notice of the Court's records and files herein, beinq .-... .;,. ......

fully advised:" of- the pleadings and files herein, and having

considered the argument of counsel, hereby makes the following

Fir.c.i~gs of Fact and Conct"usions of Law:

F!~OINGS OF F'i\CT

l. Plaintiffs souqht to preliminarily enjoin

Defendants from. usinq assets from the Public Land 'rrust

(hereafter "Special Fund revenuesn ) for purposes of prolD.otinq a

Single Definition of native Hawaiian: from planninq and the

"implementing' of actions to dissolve the Public Land Trust": .

from harrassinq the native Hawaiians: and from distributinq

ballots tha.t. would alleqedly wlessen the opportunity tor native

Hawaiians to obtain benefits-. (~ Hotion tor Preliminary

Injunction at 2.)

2. 'rhe evidence shoved that: a.l. though Special FUnd

revenues wera approved for the proposed plebiscite, no funds are

currently beinq spent by the Defendants on. the Sinqle Definition

issue. Further I the evidence shows that Defendants do not

contemplate expendinq Special !'Une! revenues on the Sinqle

Definition issue in the future.

J -2-

# .

1 01


\

j . respect to wages and f( ;e benefits of t~e

st.af! of t~e Office of Ha'-aiian Affairs (hereafter "OP~"), C?.A.

is statutorily required ~o expend ~atchinq Funds. (See Sec~ion

5 of Act 218 of the 1988 Session laWs.) Matching Funds are fo=

each one .·dollar spent of General Fund revenues, one dollar is

~pent of Special Fund revenues. .-~

Accordingly, OHA must expend . "

matchinq funds for OHA .~mployee salaries and benefits vhere ._-there was time spent on the sinqle definition.

4. The evidence showed that the costs of printing,

postage, tabulation and other related costs of the referendu~ .- ... -

are being funded with general funds. The evidence also showed

that the media costs of the referendum are beinq funded with

qeneral funds.

s. There is absolutely no evidence in the record that

t.~e Trustees, ORA staff and employees, their attorneys or anyone

actinq in concert with ORA have been harrassinq the Plaintiffs.

6. The evidence showed that all referendUlll ballots >

were either in the mail or in the hands of reqistered. OHA

voters.

7 • The evidence die! not show that the actions ot

Defendants in posinq the issue of the Sinqle Definition would.

dissolve the PUblic Land. 'rrUst, would. dilllinish or limit the

benefits of native Hawaiians, or would not be for the betterment

of conditions of native Hawaiians.

8. The evidence die! not show that the actions ot the

Defendants in distrl.J:Ntinq ballots on the referendum would

dissolve the Public Land. '!rUst, would diminish or limit the

-3-

102 \

j . respect to wages and f( ;e benefits of t~e

st.af! of t~e Office of Ha'-aiian Affairs (hereafter "OP~"), C?.A.

is statutorily required ~o expend ~atchinq Funds. (See Sec~ion

5 of Act 218 of the 1988 Session laWs.) Matching Funds are fo=

each one .·dollar spent of General Fund revenues, one dollar is

~pent of Special Fund revenues. .-~

Accordingly, OHA must expend . "

matchinq funds for OHA .~mployee salaries and benefits vhere ._-there was time spent on the sinqle definition.

4. The evidence showed that the costs of printing,

postage, tabulation and other related costs of the referendu~ .- ... -

are being funded with general funds. The evidence also showed

that the media costs of the referendum are beinq funded with

qeneral funds.

s. There is absolutely no evidence in the record that

t.~e Trustees, ORA staff and employees, their attorneys or anyone

actinq in concert with ORA have been harrassinq the Plaintiffs.

6. The evidence showed that all referendUlll ballots >

were either in the mail or in the hands of reqistered. OHA

voters.

7 • The evidence die! not show that the actions ot

Defendants in posinq the issue of the Sinqle Definition would.

dissolve the PUblic Land. 'rrUst, would. dilllinish or limit the

benefits of native Hawaiians, or would not be for the betterment

of conditions of native Hawaiians.

8. The evidence die! not show that the actions ot the

Defendants in distrl.J:Ntinq ballots on the referendum would

dissolve the Public Land. '!rUst, would diminish or limit the

-3-

102


\

benefits of native Hawaiians, or would not be for the bet~e~ent

of cor.ditions of native Hawaiians.

9. The 50% bloed quantum definition was adopted by

Congress in 1921, as an eligibility c=iterion for Hawaiian Home . .-

Lands. At ~at time, no Hawaiians testified in favor of the 50t

blood quantu.:n. requirement. Territorial Senator John Wise urged

a 1/J2 Hawaiian definition, if any blood quantum was to be

required. .

10. In the Resolution Relating to Ho'Okani No Maua

E'we ~hich was adopted at a meeting of the Board of Trustees in

1988, the Board of T=ustees found that "the arbitrary

requi=ement of 50%~blood quantum is contrary to Native Hawaiian

culture and tradition and vas a requirement developed and

approved by those with no Native Hawaiian blood."

11. There vas no showinq of irreparable harm.

12 • 'rhe balance of irreparable harm tips deeidely in'

Cefendants' favor because the issuance ot a preliminary

injunction would siqni!icantly curtail Defendants' efforts tc

deter.dne the will of their people on an important issue, ta

formulate policy for native Hawaiians and. Hawaiians, to fulfi~~

their fiduciary duties as Trustees, and otherwise enqaqe in OHA

business.

13. There is no showinq of probability of success on

the merits.

-4-

103 \

benefits of native Hawaiians, or would not be for the bet~e~ent

of cor.ditions of native Hawaiians.

9. The 50% bloed quantum definition was adopted by

Congress in 1921, as an eligibility c=iterion for Hawaiian Home . .-

Lands. At ~at time, no Hawaiians testified in favor of the 50t

blood quantu.:n. requirement. Territorial Senator John Wise urged

a 1/J2 Hawaiian definition, if any blood quantum was to be

required. .

10. In the Resolution Relating to Ho'Okani No Maua

E'we ~hich was adopted at a meeting of the Board of Trustees in

1988, the Board of T=ustees found that "the arbitrary

requi=ement of 50%~blood quantum is contrary to Native Hawaiian

culture and tradition and vas a requirement developed and

approved by those with no Native Hawaiian blood."

11. There vas no showinq of irreparable harm.

12 • 'rhe balance of irreparable harm tips deeidely in'

Cefendants' favor because the issuance ot a preliminary

injunction would siqni!icantly curtail Defendants' efforts tc

deter.dne the will of their people on an important issue, ta

formulate policy for native Hawaiians and. Hawaiians, to fulfi~~

their fiduciary duties as Trustees, and otherwise enqaqe in OHA

business.

13. There is no showinq of probability of success on

the merits.

-4-

103


\

l~. ! ?laintif!s made no s~ .nq that the public

ir.~e~est su~por~s the granting of an injunction to rest=ai~

Ceferodants f=om acti~g ~it~in t~e scope of ~~eir powers ar.d

duties as t~e duly elected representatives of ~e Hawaiian

people.

15. Althoug~ this Court believes that the Plainti!!s

may not have standing in ' .. their pro se capacity to bring t.'-:.e

instant Motion for '''P~elbinar/ Injunction under H.R.S. lO-l6 (c)

as alleged by the Plaintiffs, this court finds that it is not

necessary to rule on this issue at the present time.

16. The Trustees of o::~ ... are the only duly elected

representatives of t~e native Hawaiian and Hawaiian people, and,

as sucb., this Court should defer to their policy-makinq powers

and duties.

17. The Trustees are constitutionally directed to

address the blood quantum issue. The 1978 constitutional

convention found that OP'.A would. undertake the responsibility of

establisninq a sinqle class of beneficiaries, at the appropriate

time. The Deleqates found. that:

" C I] n lookinq to the future, your Comr.i ttee decided. that it is of utmost importance to establish a trust entity that would be for all individuals whose ancestors vera natives ot the area which consisted. of the Hawaiian Island.s prior to 1778 ••• Although your Ccllllllittee was tempted. to chanqa this outmoded ruJ.e troll the 1920' s (.L.!L. the qualification of blood quantUlll. set forth in the Hawaiian Komes commission lct], your Committee concluded. that this responsibility should be assumed. by the Office of Hawaiian Affairs.·

-5-

,

104 \

l~. ! ?laintif!s made no s~ .nq that the public

ir.~e~est su~por~s the granting of an injunction to rest=ai~

Ceferodants f=om acti~g ~it~in t~e scope of ~~eir powers ar.d

duties as t~e duly elected representatives of ~e Hawaiian

people.

15. Althoug~ this Court believes that the Plainti!!s

may not have standing in ' .. their pro se capacity to bring t.'-:.e

instant Motion for '''P~elbinar/ Injunction under H.R.S. lO-l6 (c)

as alleged by the Plaintiffs, this court finds that it is not

necessary to rule on this issue at the present time.

16. The Trustees of o::~ ... are the only duly elected

representatives of t~e native Hawaiian and Hawaiian people, and,

as sucb., this Court should defer to their policy-makinq powers

and duties.

17. The Trustees are constitutionally directed to

address the blood quantum issue. The 1978 constitutional

convention found that OP'.A would. undertake the responsibility of

establisninq a sinqle class of beneficiaries, at the appropriate

time. The Deleqates found. that:

" C I] n lookinq to the future, your Comr.i ttee decided. that it is of utmost importance to establish a trust entity that would be for all individuals whose ancestors vera natives ot the area which consisted. of the Hawaiian Island.s prior to 1778 ••• Although your Ccllllllittee was tempted. to chanqa this outmoded ruJ.e troll the 1920' s (.L.!L. the qualification of blood quantUlll. set forth in the Hawaiian Komes commission lct], your Committee concluded. that this responsibility should be assumed. by the Office of Hawaiian Affairs.·

-5-

,

104


(S "a~~;"'g '- ...... ~ .. Report. No. 59, ( ~ .. .. a ... 41l. Constituti:)~al

Conve~tion of 1978, at 8-9.)

lao The Hawaii State Legislature has dete~ined t~a~

hel;i~g "all people of aboriginal blood could help alleviate

divisiveness in the Hawaiian community resulting from blood

quantu::s. restrictions." (Conf. Com. Rep. No. 784-79, reprinted

in 1979 Haw. Senate J. at 1351-52).

19. The Trustees have the discretion to act where a

reaso~able person believes an undertakinq will better the

condit.ions of native ~awaiians, which mayor may not be

pecuniary benefit.

20.. o~ was established in order to unite the Hawaiian

people. The establishment of OHA was also intended to grant

Hawaiians rights similar to those traditionally enjoyed by

native peoples, in particular, "selt-determination and

self-qovernment;n (~ committee of the Whole Report Ro. 13 I

convention Documents, 1978 Constitutional Convention.)

21. 'rhe bette%2ent ot the conditions of native

Hawaiians can be achieved in many ways. Proqrams such as the

Sinqle Definition Referendum that promote self-determination is

one of lIlany ways to achieve the betterment of the conditions ot

native Hawaiians even thouqh all Hawaiians would benefit.

CONCLUSIONS OF LAW

1. Ho Special Fund Revenues are currently beinq spent

on the Sinqle Definition and. thus the relief sought is not

proper for injunction.

2. This Court finds that the expenditure of Hatchinq

Funds on waqes and frinqa benefits of OHA staff where the time

-6-

105

(S "a~~;"'g '- ...... ~ .. Report. No. 59, ( ~ .. .. a ... 41l. Constituti:)~al

Conve~tion of 1978, at 8-9.)

lao The Hawaii State Legislature has dete~ined t~a~

hel;i~g "all people of aboriginal blood could help alleviate

divisiveness in the Hawaiian community resulting from blood

quantu::s. restrictions." (Conf. Com. Rep. No. 784-79, reprinted

in 1979 Haw. Senate J. at 1351-52).

19. The Trustees have the discretion to act where a

reaso~able person believes an undertakinq will better the

condit.ions of native ~awaiians, which mayor may not be

pecuniary benefit.

20.. o~ was established in order to unite the Hawaiian

people. The establishment of OHA was also intended to grant

Hawaiians rights similar to those traditionally enjoyed by

native peoples, in particular, "selt-determination and

self-qovernment;n (~ committee of the Whole Report Ro. 13 I

convention Documents, 1978 Constitutional Convention.)

21. 'rhe bette%2ent ot the conditions of native

Hawaiians can be achieved in many ways. Proqrams such as the

Sinqle Definition Referendum that promote self-determination is

one of lIlany ways to achieve the betterment of the conditions ot

native Hawaiians even thouqh all Hawaiians would benefit.

CONCLUSIONS OF LAW

1. Ho Special Fund Revenues are currently beinq spent

on the Sinqle Definition and. thus the relief sought is not

proper for injunction.

2. This Court finds that the expenditure of Hatchinq

Funds on waqes and frinqa benefits of OHA staff where the time

-6-

105


spen~ is on th( ingle definition is requi£ by Sec~ion 5, Ac~

218 of 1988 Session Laws.

J. ~he Referendum ballots have al=eady been mailed ar.d

t~ere is no way to retrieve them frc~ the mail and thus this

~elief sought is not proper for injunction.

4 . This Court: finds tha t t.~ere is a substantial

likelihood ~~at ~~e Pla~n~~ffs will not prevail on the merits

and that. the Plaintiffs vill not be afforded per=anent

injunctive relief 'in the form sought by their Co~plaint and

Motion for preliminary Injunct~9n.

5. This Court finds that the balance of irreparable

damage does not favor issuance of the injunctive relief.

6. This Court finds that there is an adequate remedy

at law.

ORDER DENYING MOTION FOR PRELIMIN~~Y INJUNCTION

Based ·on the foreqoinq Findinqs at Fact and Conclusions

ot Law, the Court now makes the tollowinq tindinq:

The Court, havinq found that Plaintiffs' Motion For

Preliminary Motion is without merit and lacks supportinq

evidence,

IT IS HEUBY ORDERED that Plaintifts' Hotion For

Preliminary Injunction be denied.

DATED: Honolulu, Hawaii DEl; 2 1 1988

J'udqe of the

RE: Eeoo'o, et ale vs. Burgess. at al. 1 Civil No. 88-2987-091 Finainqs ot Fact, Conclusions of Law, and Order Denyinq Motion For Preliminary Injunction

-7-

106

spen~ is on th( ingle definition is requi£ by Sec~ion 5, Ac~

218 of 1988 Session Laws.

J. ~he Referendum ballots have al=eady been mailed ar.d

t~ere is no way to retrieve them frc~ the mail and thus this

~elief sought is not proper for injunction.

4 . This Court: finds tha t t.~ere is a substantial

likelihood ~~at ~~e Pla~n~~ffs will not prevail on the merits

and that. the Plaintiffs vill not be afforded per=anent

injunctive relief 'in the form sought by their Co~plaint and

Motion for preliminary Injunct~9n.

5. This Court finds that the balance of irreparable

damage does not favor issuance of the injunctive relief.

6. This Court finds that there is an adequate remedy

at law.

ORDER DENYING MOTION FOR PRELIMIN~~Y INJUNCTION

Based ·on the foreqoinq Findinqs at Fact and Conclusions

ot Law, the Court now makes the tollowinq tindinq:

The Court, havinq found that Plaintiffs' Motion For

Preliminary Motion is without merit and lacks supportinq

evidence,

IT IS HEUBY ORDERED that Plaintifts' Hotion For

Preliminary Injunction be denied.

DATED: Honolulu, Hawaii DEl; 2 1 1988

J'udqe of the

RE: Eeoo'o, et ale vs. Burgess. at al. 1 Civil No. 88-2987-091 Finainqs ot Fact, Conclusions of Law, and Order Denyinq Motion For Preliminary Injunction

-7-

106


I. r::: 1 :'.; ;.: .; .' : ( ' ...

1'-

()(C £j 2 02 r,~ '90

FOR PVBLIC.\ TIOt'

UNITED ST.-\TES COURT OF .-\PPE • .us FOR THE NINTH CIRCUIT

Nut LOA P"IC'E. Doctor. abo known ~

Maui Loa. indiv;dU:lUy and \1\ his upacicy as chid o( the Huu HAW~'lAl'CS: TM2 Hou HAWAIIAI4~ a native Hawatun Oh3na: and !<.AMU£t.A PR.1C~ individually. lnd in his eap:l<:ity as mc:m~t of the elder

council of the Hou HAW '" .... ~S, PldUltl;ft·AfJPtllanrs.

v.

SrATE OF H"WAII: Wrt.L~M W. PATT.

individually ~d .u Ch:irman of the

Board of Land ~nd Natur21 Resources of the S~tc o( Hawau; L,o.-tuo H. ZALo.,,..Y, MastS W. K~Lc)H.4. J. 00uG~ I!,(G. IOH .. AAJSU)CI, HDllaT

AMT.~ inclividually ~ftcl u mc:m~rs of the Board or Land and Na\unl Raources o( the Scate of H~wa.i; RsafAAO L SU~M£JtS, WII.LJAM K. H. MAU" 0. A"-'H FullJ,"o. R.OIOT ~f.

f\~JI"'o"". JtM P. P!UY. H.ROSHI

T.UlAXA. Ci £oael S. Y AMAlU. N 1'6..,0.-'

MlYAGI. ~c,)RMNt KOSMIYAM., HISAO

MtmlC'Huc~ SKUt1C'H1 N"'JtAGA •. 40. C\

aL.. Df/~Nl4nu.~~I~u.

and

O.tr1C"!O, HAW~INC An~.s, . 11f1l"'~NJr·. -4ppftl"_

APPENDIX C

No_ ag·ISS2S

D.C. !io. CV 8i·ll5·HM.F

OPINION

107

I. r::: 1 :'.; ;.: .; .' : ( ' ...

1'-

()(C £j 2 02 r,~ '90

FOR PVBLIC.\ TIOt'

UNITED ST.-\TES COURT OF .-\PPE • .us FOR THE NINTH CIRCUIT

Nut LOA P"IC'E. Doctor. abo known ~

Maui Loa. indiv;dU:lUy and \1\ his upacicy as chid o( the Huu HAW~'lAl'CS: TM2 Hou HAWAIIAI4~ a native Hawatun Oh3na: and !<.AMU£t.A PR.1C~ individually. lnd in his eap:l<:ity as mc:m~t of the elder

council of the Hou HAW '" .... ~S, PldUltl;ft·AfJPtllanrs.

v.

SrATE OF H"WAII: Wrt.L~M W. PATT.

individually ~d .u Ch:irman of the

Board of Land ~nd Natur21 Resources of the S~tc o( Hawau; L,o.-tuo H. ZALo.,,..Y, MastS W. K~Lc)H.4. J. 00uG~ I!,(G. IOH .. AAJSU)CI, HDllaT

AMT.~ inclividually ~ftcl u mc:m~rs of the Board or Land and Na\unl Raources o( the Scate of H~wa.i; RsafAAO L SU~M£JtS, WII.LJAM K. H. MAU" 0. A"-'H FullJ,"o. R.OIOT ~f.

f\~JI"'o"". JtM P. P!UY. H.ROSHI

T.UlAXA. Ci £oael S. Y AMAlU. N 1'6..,0.-'

MlYAGI. ~c,)RMNt KOSMIYAM., HISAO

MtmlC'Huc~ SKUt1C'H1 N"'JtAGA •. 40. C\

aL.. Df/~Nl4nu.~~I~u.

and

O.tr1C"!O, HAW~INC An~.s, . 11f1l"'~NJr·. -4ppftl"_

APPENDIX C

No_ ag·ISS2S

D.C. !io. CV 8i·ll5·HM.F

OPINION

107


PROOF OF SERVICE BY MAIL , .

I am employed in the City of Honolulu, state of Hawaii. I am over the age of 18 and not a party to the within action. My business address is suite 1800, 733 Bishop street, Honolulu, Hawaii 96813.

On December 3, 1992, I caused the foregoing document described as the MOTION FOR LEAVE TO FILE BRIEF OF THE OFFICE OF AS AMICUS CURIAE IN SUPPORT OF APPELLANTS MOANlKEALA AKAKA; ROD BURGESS; CLARENCE CHING; FRENCHY DeSOTO; LOUIS HAO; MANU THOMAS; THOMAS KAULUKUKUI, SR., MOSES KEALE, SR., and KEVIN MAHOE and BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS AS AMICUS CURIAE be served by U.S. mail upon the person(s) shown below, by placing an (envelopes) addressed as follows:

WALTER SCHOETTLE 1088 Bishop Street suite 1012 P.O. Box 596 Honolulu, HI 96809

KAMUELA.PRICE P.O. Box 721 Haleiwa, HI 96712

ROBERT MARX STEVEN S. MICHAELS 425 Queen Street Honolulu, HI 96813

sealing said envelope, and placing for collection and mailing on that same date, following the ordinary business practices of the Law Offices of Sherry P. Broder at its place of business located at Suite 1800, 733 Bishop Street, Honolulu, HI 96813. I am readily familiar with the collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to said practices the envelope(s) would be deposited with the united States Postal Service for First Class Mail that same day in the ordinary course of business.

Executed on December 3, 1992 at Honolulu, Hawaii. I declare under penalty of perjury under laws of the State of Hawaii and the united States of America that the above is true and correct.

Barbara J. Petro Type or Print Name

PROOF OF SERVICE BY MAIL , .

I am employed in the City of Honolulu, state of Hawaii. I am over the age of 18 and not a party to the within action. My business address is suite 1800, 733 Bishop street, Honolulu, Hawaii 96813.

On December 3, 1992, I caused the foregoing document described as the MOTION FOR LEAVE TO FILE BRIEF OF THE OFFICE OF AS AMICUS CURIAE IN SUPPORT OF APPELLANTS MOANlKEALA AKAKA; ROD BURGESS; CLARENCE CHING; FRENCHY DeSOTO; LOUIS HAO; MANU THOMAS; THOMAS KAULUKUKUI, SR., MOSES KEALE, SR., and KEVIN MAHOE and BRIEF OF THE OFFICE OF HAWAIIAN AFFAIRS AS AMICUS CURIAE be served by U.S. mail upon the person(s) shown below, by placing an (envelopes) addressed as follows:

WALTER SCHOETTLE 1088 Bishop Street suite 1012 P.O. Box 596 Honolulu, HI 96809

KAMUELA.PRICE P.O. Box 721 Haleiwa, HI 96712

ROBERT MARX STEVEN S. MICHAELS 425 Queen Street Honolulu, HI 96813

sealing said envelope, and placing for collection and mailing on that same date, following the ordinary business practices of the Law Offices of Sherry P. Broder at its place of business located at Suite 1800, 733 Bishop Street, Honolulu, HI 96813. I am readily familiar with the collection and processing of correspondence for mailing with the United States Postal Service. Pursuant to said practices the envelope(s) would be deposited with the united States Postal Service for First Class Mail that same day in the ordinary course of business.

Executed on December 3, 1992 at Honolulu, Hawaii. I declare under penalty of perjury under laws of the State of Hawaii and the united States of America that the above is true and correct.

Barbara J. Petro Type or Print Name


I. fA,o.(.. ~ ~~ t"'t. l..~ I'vo-~""v-e ,~ ? \ i-. /IAL % ~ /MOst r'~~f~ ~ ~ l-fr L41~

. ... .~ .~.

.. . . '.. - .--: .':_,

I. fA,o.(.. ~ ~~ t"'t. l..~ I'vo-~""v-e ,~ ? \ i-. /IAL % ~ /MOst r'~~f~ ~ ~ l-fr L41~

. ... .~ .~.

.. . . '.. - .--: .':_,


-2-

educate native Hawaiians about the issues related to the single

definition. Because these matters require difficult policy



choices they have made, and that the federal judiciary defer to the

legislative judgments made by these elected Trustees.

IV. ARGUMENT

1. J:ntroduction


who were then OHA Trustees violated their fiduciary

responsibilities regarding the public trust land revenues by

allegedly failing to keep such income "separate and apart from the

other funds held" by OHA and to IIreinvest the income therefrom in

a reasonably prudent manner toward the purposes and uses enumerated

by Congress. 1I The Complaint also alleges that these individuals

violated their fiduciary duties by expending public land trust

funds .. for uses and purposes other than those purposes permitted by

section 5(f) of the Admission Act," in particular by using such

funds for the benefit of "persons denominated as 'Hawaiians' who

are persons of less than 50% Hawaiian ancestry."


alleged failure of OHA (or any public agency) to separate its funds




-2-

educate native Hawaiians about the issues related to the single

definition. Because these matters require difficult policy



choices they have made, and that the federal judiciary defer to the

legislative judgments made by these elected Trustees.

IV. ARGUMENT

1. J:ntroduction


who were then OHA Trustees violated their fiduciary

responsibilities regarding the public trust land revenues by

allegedly failing to keep such income "separate and apart from the

other funds held" by OHA and to IIreinvest the income therefrom in

a reasonably prudent manner toward the purposes and uses enumerated

by Congress. 1I The Complaint also alleges that these individuals

violated their fiduciary duties by expending public land trust

funds .. for uses and purposes other than those purposes permitted by

section 5(f) of the Admission Act," in particular by using such

funds for the benefit of "persons denominated as 'Hawaiians' who

are persons of less than 50% Hawaiian ancestry."


alleged failure of OHA (or any public agency) to separate its funds





-3-


950, 956 (9th Cir. 1990). That opinion also said, however, that




section 42 U.S.C. Section 1983 which focused on some particular

diversion." Id. The present case has, therefore, evolved into a

challenge of a specific activity undertaken by the OHA Trustees-

the "use of section 5 (f) funds to fund a nonbinding mail-out

referendum in November of 1988." Price v. Akaka, Civ. No. 88-00773

DAE (D.Haw. June 12, 1992), slip Ope at 12. These charges against


determine the wishes of OHA's beneficiaries (persons of Hawaiian





Court's opinion, the OHA Trustees "sought to use section 5(f) funds




1These activities are described in more detail below, but it should be noted at the outset that the Appellee Trustees did not seek to alter the special status of half-blood Hawaiians with regard to eligibility for leases on Hawaiian Home Lands. See, ~., Resolution Relating to Ho'okahi No Maua E'we, paras. 1, 10, Record on Appeal, Volume 1 (hereinafter "R. V. "i.e., R. V .1), p. 201, attached hereto as Appendix A.

-3-


950, 956 (9th Cir. 1990). That opinion also said, however, that




section 42 U.S.C. Section 1983 which focused on some particular

diversion." Id. The present case has, therefore, evolved into a

challenge of a specific activity undertaken by the OHA Trustees-

the "use of section 5 (f) funds to fund a nonbinding mail-out

referendum in November of 1988." Price v. Akaka, Civ. No. 88-00773

DAE (D.Haw. June 12, 1992), slip Ope at 12. These charges against


determine the wishes of OHA's beneficiaries (persons of Hawaiian





Court's opinion, the OHA Trustees "sought to use section 5(f) funds




1These activities are described in more detail below, but it should be noted at the outset that the Appellee Trustees did not seek to alter the special status of half-blood Hawaiians with regard to eligibility for leases on Hawaiian Home Lands. See, ~., Resolution Relating to Ho'okahi No Maua E'we, paras. 1, 10, Record on Appeal, Volume 1 (hereinafter "R. V. "i.e., R. V .1), p. 201, attached hereto as Appendix A.


-4-



In fact, as will be explained below, the aHA Trustees used section

5(f) funds only incidentally, if at all, to fund this referendum.




occurred." Price v. Akaka, supra, slip Ope at 11.


in this litigation, the bulk of this amicus brief will address the

facts and law concerning this activity. Amicus submits that the

actions of the individual Trustees and the expenditures on this

proj ect have been entirely proper and are not an appropriate

subject for judicial challenge. Amicus also submits that the law

on the question of the proper use of the public lands trust funds

was far from "clearly established" at the time of this suit and

that the District Court's ruling on that matter must be reversed.

B. Factual Background

The OHA Trustees have understood since the Office of Hawaiian

Affairs was established that one of their responsibilites was to

determine the wishes of their beneficiaries on whether to adopt a

"single definition" to identify membership in the Hawaiian


the early committee reports from the 1978 constitutional

-4-



In fact, as will be explained below, the aHA Trustees used section

5(f) funds only incidentally, if at all, to fund this referendum.




occurred." Price v. Akaka, supra, slip Ope at 11.


in this litigation, the bulk of this amicus brief will address the

facts and law concerning this activity. Amicus submits that the

actions of the individual Trustees and the expenditures on this

proj ect have been entirely proper and are not an appropriate

subject for judicial challenge. Amicus also submits that the law

on the question of the proper use of the public lands trust funds

was far from "clearly established" at the time of this suit and

that the District Court's ruling on that matter must be reversed.

B. Factual Background

The OHA Trustees have understood since the Office of Hawaiian

Affairs was established that one of their responsibilites was to

determine the wishes of their beneficiaries on whether to adopt a

"single definition" to identify membership in the Hawaiian


the early committee reports from the 1978 constitutional


-5-

Convention, which set in motion the establishment of OHA. 2 To

fulfill this responsibility, the Trustees embarked on a program

designed to educate persons of Hawaiian ancestry about this issue

and determine their preferences. See, ~., Nov. 14, 1988

affidavit of Linda Kawai'ono Delaney, R.V.1, p. 175. This program

has included educational efforts and two referenda in which OHA's

beneficiaries have expressed their views. 3 The Trustees have felt

that if a "single definition" for its beneficiaries could be

developed, the Hawaiian community would obtain greater unity and




E'we, paras. 1,10, R.V.1, p. 201, attached hereto as Appendix A.

In fact, Hawaii Revised statutes (H.R.S.) section 10-5(4)

2See the quote from standing Commi ttee Report No. 59 in section V.B.3, infra.


Should every Native Hawaiian have the right to enjoy the benefits of the assets of the Office of Hawaiian Affairs, as provided by policies adopted by the OHA Board of Trustees?



R.V.1, p. 158; Affidavit of Sherry P. Broder, May 5, 1989, R.V.2, p. 123.

-5-

Convention, which set in motion the establishment of OHA. 2 To

fulfill this responsibility, the Trustees embarked on a program

designed to educate persons of Hawaiian ancestry about this issue

and determine their preferences. See, ~., Nov. 14, 1988

affidavit of Linda Kawai'ono Delaney, R.V.1, p. 175. This program

has included educational efforts and two referenda in which OHA's

beneficiaries have expressed their views. 3 The Trustees have felt

that if a "single definition" for its beneficiaries could be

developed, the Hawaiian community would obtain greater unity and




E'we, paras. 1,10, R.V.1, p. 201, attached hereto as Appendix A.

In fact, Hawaii Revised statutes (H.R.S.) section 10-5(4)

2See the quote from standing Commi ttee Report No. 59 in section V.B.3, infra.


Should every Native Hawaiian have the right to enjoy the benefits of the assets of the Office of Hawaiian Affairs, as provided by policies adopted by the OHA Board of Trustees?



R.V.1, p. 158; Affidavit of Sherry P. Broder, May 5, 1989, R.V.2, p. 123.


-6-

explicitly requires that they maintain the level of benefits

available to persons with 50 percent or more Hawaiian blood. They

have also concluded, however, that if they could increase the

overall amount of benefits available to the Hawaiian community,

each individual Hawaiian would have additional benefits. In order

to achieve this goal, they have tried to determine whether persons

of Hawaiian ancestry wished to be united through a "single

definition," which would increase their political power. In the

two referenda that have been held (in November 1988 and January

1990), the OHA voters have supported the single definition concept

overwhelmingly. 4




4The breakdown of the November 1988 vote was as follows:

84% voted for the single definition 15% voted against the single definition 1% spoiled ballots 16,482 voted for the single definition 2,931 voted against the single definition 10,642 identified themselves as more than 50% Hawaiian blood 8,803 identified themselves as less than 50% Hawaiian blood

Affidavit of Sherry P. Broder, May 5, 1989, R.V.2, p. 124.

The question in the January 1990 referendum was posed as follows: liAs it defines the beneficiaries of the Office of Hawaiian Affairs trust and entitlements, should the term 'native Hawaiian' mean all descendants of the indigenous people inhabiting the Hawaiian Islands prior to 17781" 19,247 (79.33 %) voted yes and 5,012 (20.66 %) voted no. The pattern of strong majority votes in favor of this proposition was consistent in all areas of the state. See Office of Hawaiian Affairs, "Operation Ka Po' e: " A Report on the statewide Plebiscite to Determine Preference for a Definition of 'Native Hawaiian' (Feb. 1990).

-6-

explicitly requires that they maintain the level of benefits

available to persons with 50 percent or more Hawaiian blood. They

have also concluded, however, that if they could increase the

overall amount of benefits available to the Hawaiian community,

each individual Hawaiian would have additional benefits. In order

to achieve this goal, they have tried to determine whether persons

of Hawaiian ancestry wished to be united through a "single

definition," which would increase their political power. In the

two referenda that have been held (in November 1988 and January

1990), the OHA voters have supported the single definition concept

overwhelmingly. 4




4The breakdown of the November 1988 vote was as follows:

84% voted for the single definition 15% voted against the single definition 1% spoiled ballots 16,482 voted for the single definition 2,931 voted against the single definition 10,642 identified themselves as more than 50% Hawaiian blood 8,803 identified themselves as less than 50% Hawaiian blood

Affidavit of Sherry P. Broder, May 5, 1989, R.V.2, p. 124.

The question in the January 1990 referendum was posed as follows: liAs it defines the beneficiaries of the Office of Hawaiian Affairs trust and entitlements, should the term 'native Hawaiian' mean all descendants of the indigenous people inhabiting the Hawaiian Islands prior to 17781" 19,247 (79.33 %) voted yes and 5,012 (20.66 %) voted no. The pattern of strong majority votes in favor of this proposition was consistent in all areas of the state. See Office of Hawaiian Affairs, "Operation Ka Po' e: " A Report on the statewide Plebiscite to Determine Preference for a Definition of 'Native Hawaiian' (Feb. 1990).


-7-


public trust lands identified in Article XII, section 4 of the

Hawaii constitution and H.R.S. section 10-3, and (2) general funds


projects, funds are "matchedfl from these two sources on the theory







Legislature. See, ~., section 5 of Act 218, Session Laws of

Hawaii 1987, R.V.1, p.192.

It needs to be emphasized, however, that except for incidental

expenses related to the services of some of OHA's staff and several

educational lunches at the willows Restaurant,S the funds expended

on the single definition project came exclusively from general

SFour lunches were held with representatives of the Hawaiian community and the Trustees at the Willows to discuss a range of issues, of which the single definition proposal was one. Money from the special public trust funds were used to help pay for these luncheons. The Attorney General's Investigative Report, described below, concluded that it is "not improper to expend special fund moneys to merely disclose (inform) to and gain the input of OHA's native Hawaiian beneficiaries on various matters (~. the single definition) ••• " This Report also concluded that "the moneys spent on the luncheons would [not] have been reduced if the topics discussed at the lunches did not include the single definition issue" and that flin practical terms, it would be difficult at best to allocate portions of the sums expended solely for the single definition issue." Attorney General's Investigative Report, Nov. 2, 1988, at 11 & n.2, R.V.l, p.185.

-7-


public trust lands identified in Article XII, section 4 of the

Hawaii constitution and H.R.S. section 10-3, and (2) general funds


projects, funds are "matchedfl from these two sources on the theory







Legislature. See, ~., section 5 of Act 218, Session Laws of

Hawaii 1987, R.V.1, p.192.

It needs to be emphasized, however, that except for incidental

expenses related to the services of some of OHA's staff and several

educational lunches at the willows Restaurant,S the funds expended

on the single definition project came exclusively from general

SFour lunches were held with representatives of the Hawaiian community and the Trustees at the Willows to discuss a range of issues, of which the single definition proposal was one. Money from the special public trust funds were used to help pay for these luncheons. The Attorney General's Investigative Report, described below, concluded that it is "not improper to expend special fund moneys to merely disclose (inform) to and gain the input of OHA's native Hawaiian beneficiaries on various matters (~. the single definition) ••• " This Report also concluded that "the moneys spent on the luncheons would [not] have been reduced if the topics discussed at the lunches did not include the single definition issue" and that flin practical terms, it would be difficult at best to allocate portions of the sums expended solely for the single definition issue." Attorney General's Investigative Report, Nov. 2, 1988, at 11 & n.2, R.V.l, p.185.


-8-

appropriated funds and not from the special public trust funds.

General funds of $158,520 were, for instance, appropriated by the

Legislature from general funds for the second referendum (January

1990), without a matching requirement. Act 303, Session Laws of

Hawaii 1989, section 10. See also Exhibit B attached to Affidavit

of William E.H. Tagupa, R.V.3, p. 355 (an OHA accounting sheet

noting that general funds and not special funds were used on the

single definition referendum). The Findings of Fact of the Circuit

Court in the state-court case of Kepoo v. Burgess, civ. No. 88-

2987-09 (Haw. 1st eire Dec. 23, 1988) addressed these allegations

and concluded that special public trust funds were not used for the

first referendum:

2. The evidence showed that although Special Fund revenues were approved for the proposed plebiscite, no funds are currently being spent by the Defendants on the Single Definition issue. Further, the evidence shows that Defendants do not contemplate expending Special Fund revenues on the Single Definition issue in the future.

3. with respect to wages and fringe benefits of the staff of the Office of Hawaiian Affairs ••• , OHA is statutorily required to expend matching Funds. (See section 5 of Act 218 of the 1988 Session Laws.) •••

4. The evidence showed that the costs of printing, postage, tabulation and other related costs of the referendum are being funded with general funds. The evidence also showed that the media costs of the referendum are being funded with general funds.

Findings of Fact, Conclusions of Law, and Order Denying Motion for Preliminary Injunction, Dec. 23, 1988, R.V.1, p. 267.

On July 11, 1988, Moses Keale, Chair of the OHA Board of



-8-

appropriated funds and not from the special public trust funds.

General funds of $158,520 were, for instance, appropriated by the

Legislature from general funds for the second referendum (January

1990), without a matching requirement. Act 303, Session Laws of

Hawaii 1989, section 10. See also Exhibit B attached to Affidavit

of William E.H. Tagupa, R.V.3, p. 355 (an OHA accounting sheet

noting that general funds and not special funds were used on the

single definition referendum). The Findings of Fact of the Circuit

Court in the state-court case of Kepoo v. Burgess, civ. No. 88-

2987-09 (Haw. 1st eire Dec. 23, 1988) addressed these allegations

and concluded that special public trust funds were not used for the

first referendum:

2. The evidence showed that although Special Fund revenues were approved for the proposed plebiscite, no funds are currently being spent by the Defendants on the Single Definition issue. Further, the evidence shows that Defendants do not contemplate expending Special Fund revenues on the Single Definition issue in the future.

3. with respect to wages and fringe benefits of the staff of the Office of Hawaiian Affairs ••• , OHA is statutorily required to expend matching Funds. (See section 5 of Act 218 of the 1988 Session Laws.) •••

4. The evidence showed that the costs of printing, postage, tabulation and other related costs of the referendum are being funded with general funds. The evidence also showed that the media costs of the referendum are being funded with general funds.

Findings of Fact, Conclusions of Law, and Order Denying Motion for Preliminary Injunction, Dec. 23, 1988, R.V.1, p. 267.

On July 11, 1988, Moses Keale, Chair of the OHA Board of




-9-




statutes, so that the beneficiary class for the native Hawaiian


See Attorney General's Investigative Report, Nov. 2, 1988, R.V.1,

p. 174. The Attorney General concluded that lithe use of native






obtain their views. Id. at 9, 11 n.2, R.V. 1, p. 183, 185 n.2

(emphasis in original). Because of these conclusions, "any legal

action against the Trustees of OHA for 'misapplication' of funds is

not warranted." Id. at 9-10, R.V.1, pp.183-84. This Report

recognized that the Trustees had "discretion to act where a

'reasonable man' believes an undertaking will 'better the

condition', which mayor may not be pecuniary, of the native

Hawaiian beneficiary." Id. at 12, R. V • 1, p. 186. The opinion also



betterment of the condition of native Hawaiians. II Id. Because the



Id. at 14, R.V.1, p. 188.

-9-




statutes, so that the beneficiary class for the native Hawaiian


See Attorney General's Investigative Report, Nov. 2, 1988, R.V.1,

p. 174. The Attorney General concluded that lithe use of native






obtain their views. Id. at 9, 11 n.2, R.V. 1, p. 183, 185 n.2

(emphasis in original). Because of these conclusions, "any legal

action against the Trustees of OHA for 'misapplication' of funds is

not warranted." Id. at 9-10, R.V.1, pp.183-84. This Report

recognized that the Trustees had "discretion to act where a

'reasonable man' believes an undertaking will 'better the

condition', which mayor may not be pecuniary, of the native

Hawaiian beneficiary." Id. at 12, R. V • 1, p. 186. The opinion also



betterment of the condition of native Hawaiians. II Id. Because the



Id. at 14, R.V.1, p. 188.


-10-

On November 9, 1988, the Plaintiffs in the Kepoo case filed a

Motion for Preliminary Injunction and on December 21, 1988, the

Honorable Marie N. Milks of the First Circuit Court of Hawaii

denied this Motion. In her written opinion, Judge Milks made

"Findings of Fact," none of which have been challenged or altered

by any of the subsequent judicial actions in this case. Paragraphs

2-4 are quoted above. Other key paragraphs are quoted here because

of their importance to this case:


8. The evidence did not show that the actions of the Defendants in distributing ballots on the referendum would dissolve the Public Land Trust, would diminish or limit the benefits of native Hawaiians, or would not be for the betterment of conditions of native Hawaiians.

9. The 50% blood quantum definition was adopted by Congress in 1921, as an eligibility criterion for Hawaiian Home Lands. At that time, no Hawaiians testified in favor of the 50% blood quantum requirement. Territorial Senator John Wise urged a 1/32 Hawaiian definition, if any blood quantum was to be required.

10. In the Resolution Relating to Ho'Okahi No Maua E'we which was adopted at a meeting of the Board of Trustees in 1988, the Board of Trustees found that "the arbitrary requirement of 50% blood quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Native Hawiian blood."

16. The Trustees of OHA are the only duly elected representatives of the native Hawaiian and Hawaiian people, and, as such, this Court should defer to their policy-making powers and duties.

-10-

On November 9, 1988, the Plaintiffs in the Kepoo case filed a

Motion for Preliminary Injunction and on December 21, 1988, the

Honorable Marie N. Milks of the First Circuit Court of Hawaii

denied this Motion. In her written opinion, Judge Milks made

"Findings of Fact," none of which have been challenged or altered

by any of the subsequent judicial actions in this case. Paragraphs

2-4 are quoted above. Other key paragraphs are quoted here because

of their importance to this case:


8. The evidence did not show that the actions of the Defendants in distributing ballots on the referendum would dissolve the Public Land Trust, would diminish or limit the benefits of native Hawaiians, or would not be for the betterment of conditions of native Hawaiians.

9. The 50% blood quantum definition was adopted by Congress in 1921, as an eligibility criterion for Hawaiian Home Lands. At that time, no Hawaiians testified in favor of the 50% blood quantum requirement. Territorial Senator John Wise urged a 1/32 Hawaiian definition, if any blood quantum was to be required.

10. In the Resolution Relating to Ho'Okahi No Maua E'we which was adopted at a meeting of the Board of Trustees in 1988, the Board of Trustees found that "the arbitrary requirement of 50% blood quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Native Hawiian blood."

16. The Trustees of OHA are the only duly elected representatives of the native Hawaiian and Hawaiian people, and, as such, this Court should defer to their policy-making powers and duties.


-11-

17. The Trustees are constitutionally directed to address the blood quantum issue ••••



21. The betterment of the conditions of native Hawaiians can be achieved in many ways. Programs such as the Single Definition Referendum that promote selfdetermination is one of many ways to achieve the betterment of the conditions of native Hawaiians even though all Hawaiians would benefit.

Findings of Fact, Conclusions of Law, and Order Denying Motion for

Preliminary Injunction, Dec. 23, 1988, R.V.1, p. 267. The Hawaii

Supreme Court affirmed the decision of the Circuit Court in Kepoo

dismissing the complaint in a Memorandum opinion on November 21,

1989. And the District Court in the present case acknowledged that

state court in Kepoo "found that no section 5(f) funds were

expended on the single definition referendum." Price v. Akaka,

supra, slip Ope at 17.

To summarize, amicus submits that the actions of the






-11-

17. The Trustees are constitutionally directed to address the blood quantum issue ••••



21. The betterment of the conditions of native Hawaiians can be achieved in many ways. Programs such as the Single Definition Referendum that promote selfdetermination is one of many ways to achieve the betterment of the conditions of native Hawaiians even though all Hawaiians would benefit.


Preliminary Injunction, Dec. 23, 1988, R.V.1, p. 267. The Hawaii

Supreme Court affirmed the decision of the Circuit Court in Kepoo

dismissing the complaint in a Memorandum opinion on November 21,

1989. And the District Court in the present case acknowledged that

state court in Kepoo "found that no section 5(f) funds were

expended on the single definition referendum." Price v. Akaka,

supra, slip Ope at 17.

To summarize, amicus submits that the actions of the







-12-



Resolution Relating to Ho' okahi No Maua E' we.

attached hereto as Exhibit A.

R.V.l, p. 201,

Amicus also submits that this Honorable Court need not even

reach these issues in this case, because the special public trust

funds were not in fact used for their single definition initiative,

except in an incidental fashion.

C. The Actions of the aHA Trustees to Determine the Views of Their Beneficiaries Regarding a "Single Definition" Were Closely Linked to Their Central Mission to Serve Their Beneficiaries.

Plaintiffs in the present case appear to be arguing that the

policies of the OHA Trustees may possibly diminish the benefits of

persons with 50 percent or more Hawaiian blood. These factual



findings:

7. The evidence did not show that the actions of Defendants in posing the issue of the single Definition would dissolve the Public Land Trust, would diminish or limit the benefits of native Hawaiians, or would not be for the betterment of conditions of native Hawaiians.



Preliminary Injunction, Dec. 23, 1988, R.V.l, pp. 269-70.

Amicus argues strongly that the policies established by the

aHA Trustees will not diminish the benefits of persons with 50

-12-



Resolution Relating to Ho' okahi No Maua E' we.

attached hereto as Exhibit A.

R.V.l, p. 201,

Amicus also submits that this Honorable Court need not even

reach these issues in this case, because the special public trust

funds were not in fact used for their single definition initiative,

except in an incidental fashion.

C. The Actions of the aHA Trustees to Determine the Views of Their Beneficiaries Regarding a "Single Definition" Were Closely Linked to Their Central Mission to Serve Their Beneficiaries.

Plaintiffs in the present case appear to be arguing that the

policies of the OHA Trustees may possibly diminish the benefits of

persons with 50 percent or more Hawaiian blood. These factual



findings:

7. The evidence did not show that the actions of Defendants in posing the issue of the single Definition would dissolve the Public Land Trust, would diminish or limit the benefits of native Hawaiians, or would not be for the betterment of conditions of native Hawaiians.



Preliminary Injunction, Dec. 23, 1988, R.V.l, pp. 269-70.

Amicus argues strongly that the policies established by the

aHA Trustees will not diminish the benefits of persons with 50


-13-





Trustees are designed to increase the benefits of all Hawaiians-









CD.Haw. 1986), a case that was similar to the present one, because



blood:

This court will uphold the definition of "Hawaiian" if there is some "reasonable basis" to support it, and as long as the legislature did not achieve its purpose in a "patently arbitrary" or irrational way. Where there are plausible reasons for the legislature's classification, "the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." As the Supreme Court has noted, "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations...... Further, laws providing for governmental payment of monetary benefits bear a "strong presumption of constitutionality. 'So long as its judgments are rational, and not invidious, the

-13-





Trustees are designed to increase the benefits of all Hawaiians-









CD.Haw. 1986), a case that was similar to the present one, because



blood:

This court will uphold the definition of "Hawaiian" if there is some "reasonable basis" to support it, and as long as the legislature did not achieve its purpose in a "patently arbitrary" or irrational way. Where there are plausible reasons for the legislature's classification, "the fact that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." As the Supreme Court has noted, "the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations...... Further, laws providing for governmental payment of monetary benefits bear a "strong presumption of constitutionality. 'So long as its judgments are rational, and not invidious, the


-14-

legislature's efforts to tackle the problems of the poor and needy, are not subject to a constitutional straitjacket. '" Finally, of course, the burden of proof is on the plaintiffs to show the irrationality of the legislative classification.






-14-

legislature's efforts to tackle the problems of the poor and needy, are not subject to a constitutional straitjacket. '" Finally, of course, the burden of proof is on the plaintiffs to show the irrationality of the legislative classification.







-15-

2. The Standard of Review Should Not Be Different Because a "Trust" Is Involved in This Case; Because This Trust Is Designed to Benefit a Large Group of Beneficiaries Who Elect the Trustees, Judicial Review Should Be Limited to Determining Whether the Action of the Trustees Has a Rational Basis, or Is Arbitrary and Capricious.




beneficiaries." Ahuna v. Dept. of Hawaiian Home Lands, 64 Haw.






This case, however, involves an attack on a policy pursued by

the Trustees which in their political judgment will increase the

benefits of all Hawaiians, including those with 50 percent or more

Hawaiian blood. This policy was reached through an exercise of

political judgment of just the sort the Trustees were elected to

undertake. The Trustees are accountable to their beneficiaries who

have the opportunity to vote for or against them on a regular

basis. Because the primary review of the Trustees' actions is

through the electoral process, the role of the judiciary should be

limited to ensuring that the Trustees are acting according to

minimum standards of rationality and not arbitrarily or

capriciously. As the Circuit Court found in the Kepoo case:

-15-

2. The Standard of Review Should Not Be Different Because a "Trust" Is Involved in This Case; Because This Trust Is Designed to Benefit a Large Group of Beneficiaries Who Elect the Trustees, Judicial Review Should Be Limited to Determining Whether the Action of the Trustees Has a Rational Basis, or Is Arbitrary and Capricious.




beneficiaries." Ahuna v. Dept. of Hawaiian Home Lands, 64 Haw.






This case, however, involves an attack on a policy pursued by

the Trustees which in their political judgment will increase the

benefits of all Hawaiians, including those with 50 percent or more

Hawaiian blood. This policy was reached through an exercise of

political judgment of just the sort the Trustees were elected to

undertake. The Trustees are accountable to their beneficiaries who

have the opportunity to vote for or against them on a regular

basis. Because the primary review of the Trustees' actions is

through the electoral process, the role of the judiciary should be

limited to ensuring that the Trustees are acting according to

minimum standards of rationality and not arbitrarily or

capriciously. As the Circuit Court found in the Kepoo case:


-16-



Preliminary Injunction, Dec. 23, 1988, R. V .1, p. 273. This

Honorable Court of Appeals also recently examined the public lands

trust at issue here, and concluded that its trust obligations were

not designed to be narrowly confining:

[O]ur reading of section 5 (f) rests on the apparent decision by the parties involved in the [Admissions] Act that the state and its officials would proceed with a certain degree of good faith and need not be held to strict trust administration standards.

Price v. state of Hawaii, 921 F.2d 950, (9th Cir.







Attorney General's Investigative Report, Nov. 2, 1988, at 13,

R.V.1, p. 186; see also Ahuna, supra. at 340.

In the present case, Plaintiffs have made no claims that the

-16-



Preliminary Injunction, Dec. 23, 1988, R. V .1, p. 273. This

Honorable Court of Appeals also recently examined the public lands

trust at issue here, and concluded that its trust obligations were

not designed to be narrowly confining:

[O]ur reading of section 5 (f) rests on the apparent decision by the parties involved in the [Admissions] Act that the state and its officials would proceed with a certain degree of good faith and need not be held to strict trust administration standards.

Price v. state of Hawaii, 921 F.2d 950, (9th Cir.







Attorney General's Investigative Report, Nov. 2, 1988, at 13,

R.V.1, p. 186; see also Ahuna, supra. at 340.

In the present case, Plaintiffs have made no claims that the


-17-

Trustees have not acted with honesty or ordinary prudence. They

simply disagree with political decisions reached by the Trustees.

Their remedy should thus be through the electoral process rather

than through this judicial challenge.

Plaintiffs argue that the OHA Trustees did not act "solely in

the interest of the" one-half blood Hawaiians in using funds from

the public land trust for the single definition educational

program. As explained in the next section, the OHA Trustees had

solid grounds for believing that their activities regarding the

single definition would be very beneficial to the one-half blood

Hawaiians and provided reasons for their actions in their

Resolution Relating to Ho'okahi No Maua E'we, R.V.l, p. 201,

attached hereto as Exhibit A. As has often been stated, as


or decisions. II Ahuna, supra, at 340, citing Hartmann v.




-17-

Trustees have not acted with honesty or ordinary prudence. They

simply disagree with political decisions reached by the Trustees.

Their remedy should thus be through the electoral process rather

than through this judicial challenge.

Plaintiffs argue that the OHA Trustees did not act "solely in

the interest of the" one-half blood Hawaiians in using funds from

the public land trust for the single definition educational

program. As explained in the next section, the OHA Trustees had

solid grounds for believing that their activities regarding the

single definition would be very beneficial to the one-half blood

Hawaiians and provided reasons for their actions in their


attached hereto as Exhibit A. As has often been stated, as


or decisions. II Ahuna, supra, at 340, citing Hartmann v.





-18-

3. The Actions of the OHA Trustees in This Case Were, In Any Event, Clearly Designed to Maintain and Increase the Benefits Available to Persons with 50 Percent or More Hawaiian Blood, as Well as All Other Hawaiians.

The OHA Trustees were without question acting within their

proper authority when they addressed the question of how persons of

Hawaiian ancestry should be categorized and sought input from their

beneficiaries on whether there should be a "single definition" that

would group together all persons of Hawaiian ancestry for most

purposes. Article XII, section 6 of Hawaii's Constitution (which

was added in 1978) states that the Trustees should "formulate

policy relating to the affairs of native Hawaiians and Hawaiians"

and exercise control of their assets. The Hawaiian Affairs

committee at the 1978 Con Con explicitly stated that the OHA

Trustees should examine the question of blood quantum:

••• In looking to the future, your committee decided that it is of utmost importance to establish a trust entity that would be for all individuals whose ancestors were natives of the area which consisted of the Hawaiian Islands prior to 1778 •••



-18-

3. The Actions of the OHA Trustees in This Case Were, In Any Event, Clearly Designed to Maintain and Increase the Benefits Available to Persons with 50 Percent or More Hawaiian Blood, as Well as All Other Hawaiians.

The OHA Trustees were without question acting within their

proper authority when they addressed the question of how persons of

Hawaiian ancestry should be categorized and sought input from their

beneficiaries on whether there should be a "single definition" that

would group together all persons of Hawaiian ancestry for most

purposes. Article XII, section 6 of Hawaii's Constitution (which

was added in 1978) states that the Trustees should "formulate

policy relating to the affairs of native Hawaiians and Hawaiians"

and exercise control of their assets. The Hawaiian Affairs

committee at the 1978 Con Con explicitly stated that the OHA

Trustees should examine the question of blood quantum:

••• In looking to the future, your committee decided that it is of utmost importance to establish a trust entity that would be for all individuals whose ancestors were natives of the area which consisted of the Hawaiian Islands prior to 1778 •••




-19-

convention of Hawaii of 1978 at 643-44 (emphasis added).

The Con Con Delegates thus expected the OHA Trustees to confront








The single definition issue is not a new problem for the OHA

Trustees. As Hawaii' s Circuit Court found in the Kepoo case,



Hawaiian Home Lands Act in 1920-21. See Findings of Fact,


Injunction, Dec. 23, 1988, para. 9, R.V. 1, p. 270. "Territorial

Senator John Wise urged a 1/32 Hawaiian definition, if any blood

quantum was to be required." Id. As the body representing all

Hawaiians, OHA first indicated its interest in a "single

definition" for all persons of Hawaiian ancestry by endorsing a

similar recommendation contained in the dissenting report of the

Native Hawaiians study Commission in 1983. A year later, OHA

included full entitlements for all Hawaiians in its Master Plan as

one of its four primary goals. See Affidavit of Linda Kawai'ono

Delaney, para. 4 (referring to 2 Native Hawaiians study Commission

17 (1983», R.V.l, p. 166.

-19-

convention of Hawaii of 1978 at 643-44 (emphasis added).

The Con Con Delegates thus expected the OHA Trustees to confront








The single definition issue is not a new problem for the OHA

Trustees. As Hawaii' s Circuit Court found in the Kepoo case,



Hawaiian Home Lands Act in 1920-21. See Findings of Fact,


Injunction, Dec. 23, 1988, para. 9, R.V. 1, p. 270. "Territorial

Senator John Wise urged a 1/32 Hawaiian definition, if any blood

quantum was to be required." Id. As the body representing all

Hawaiians, OHA first indicated its interest in a "single

definition" for all persons of Hawaiian ancestry by endorsing a

similar recommendation contained in the dissenting report of the

Native Hawaiians study Commission in 1983. A year later, OHA

included full entitlements for all Hawaiians in its Master Plan as

one of its four primary goals. See Affidavit of Linda Kawai'ono

Delaney, para. 4 (referring to 2 Native Hawaiians study Commission

17 (1983», R.V.l, p. 166.


-20-

In Hoohuli v. Ariyoshi, 631 F.Supp. 1153, 1155 CD.Haw. 1986),

Judge Samuel P. King found that the 1978 constitutional Convention

Delegates were concerned not only about the state's failure to use

the ceded lands trust for the benefit of persons with 50 percent or

more Hawaiian blood, but "they were also concerned about the

welfare of all people of Hawaiian ancestry and about the

preservation of aboriginal culture." Judge King further found that

the Hawaii state Legislature has recognized the importance of

"addressing the needs of all people of Hawaiian ancestry." Id. at

1161. Evidence presented to the Legislature showed that the

reasons for using the 50-percent-blood criteria in the 1920

Hawaiian Homes Commission Act "had become outmoded, and that many

more Hawaiians other than half-blood Hawaiians need remedial

legislation to address problems of crime, inadequate housing,

education, and welfare." Id. Further, the Legislature determined

that helping "all people of aboriginal blood could help alleviate

divisiveness in the Hawaiian community resulting from blood quantum

restrictions." Id. Judge King concluded that the Legislature

arrived at these findings through "careful consideration and social

and historical research." Id. He thus held in Hoohuli that the

action of the Hawaii state Legislature in granting benefits to

Hawaiians with less than half-blood was rational and consistent

with the Hawaii and u.s. Constitutions.

Recent actions by the U. S • Congress

recognition that the arbitrary division

Hawaiians and others should be reevaluated.

have also shown a

between half-blood

In both the Native

-20-

In Hoohuli v. Ariyoshi, 631 F.Supp. 1153, 1155 CD.Haw. 1986),

Judge Samuel P. King found that the 1978 constitutional Convention

Delegates were concerned not only about the state's failure to use

the ceded lands trust for the benefit of persons with 50 percent or

more Hawaiian blood, but "they were also concerned about the

welfare of all people of Hawaiian ancestry and about the

preservation of aboriginal culture." Judge King further found that

the Hawaii state Legislature has recognized the importance of

"addressing the needs of all people of Hawaiian ancestry." Id. at

1161. Evidence presented to the Legislature showed that the

reasons for using the 50-percent-blood criteria in the 1920

Hawaiian Homes Commission Act "had become outmoded, and that many

more Hawaiians other than half-blood Hawaiians need remedial

legislation to address problems of crime, inadequate housing,

education, and welfare." Id. Further, the Legislature determined

that helping "all people of aboriginal blood could help alleviate

divisiveness in the Hawaiian community resulting from blood quantum

restrictions." Id. Judge King concluded that the Legislature

arrived at these findings through "careful consideration and social

and historical research." Id. He thus held in Hoohuli that the

action of the Hawaii state Legislature in granting benefits to

Hawaiians with less than half-blood was rational and consistent

with the Hawaii and u.s. Constitutions.

Recent actions by the U. S • Congress

recognition that the arbitrary division

Hawaiians and others should be reevaluated.

have also shown a

between half-blood

In both the Native


-21-


(1982), and the Native American Programs Act of 1974, 42 u.s.c.


Hawaiian" as "any individual whose ancestors were natives ••• of the

Hawaiian Islands prior to 1778," without regard to blood quantum.

Similarly, in 1987, Congress approved an amendment to section 209



Hawaiian Homelands. [Add reference to Native Hawaiian Health Care

Act. ]

As noted above, H.R.S. Section 10-6(4) requires OHA's Trustees

to formulate policy in a manner that "shall not diminish or limit

the benefits" of half-blood Hawaiians. As the Attorney Generalis

Investigative Report points out, 6 the Trustees can certainly

articulate reasons to explain how their activities regarding the

single-definition issue will benefit the half-blood Hawaiians.


6Attorney General's Investigative Report, Nov. 2, 1988, at 11-12, R.V.1, pp. 184-85 (emphasis in original):

Native Hawaiian beneficiaries possess no pecuniary interest in the trust res; rather OHA's charge is to hold and use this native Hawaiian public trust moneys solely as a public trust for the betterment of conditions of native Hawaiians. This standard provides the Trustees with discretion to act where a "reasonable man" believes an undertaking will "better the condition", which mayor may not be pecuniary, of the native Hawaiian beneficiary. Although there is no reason indicated in Board minutes why the Trustees fel t that the adoption of a single definition was solely for the betterment of the condition of native Hawaiians, it is possible for the Trustees to arguably enunciate a justification for their decision.

-21-


(1982), and the Native American Programs Act of 1974, 42 u.s.c.


Hawaiian" as "any individual whose ancestors were natives ••• of the

Hawaiian Islands prior to 1778," without regard to blood quantum.

Similarly, in 1987, Congress approved an amendment to section 209



Hawaiian Homelands. [Add reference to Native Hawaiian Health Care

Act. ]

As noted above, H.R.S. Section 10-6(4) requires OHA's Trustees

to formulate policy in a manner that "shall not diminish or limit

the benefits" of half-blood Hawaiians. As the Attorney Generalis

Investigative Report points out, 6 the Trustees can certainly

articulate reasons to explain how their activities regarding the

single-definition issue will benefit the half-blood Hawaiians.


6Attorney General's Investigative Report, Nov. 2, 1988, at 11-12, R.V.1, pp. 184-85 (emphasis in original):

Native Hawaiian beneficiaries possess no pecuniary interest in the trust res; rather OHA's charge is to hold and use this native Hawaiian public trust moneys solely as a public trust for the betterment of conditions of native Hawaiians. This standard provides the Trustees with discretion to act where a "reasonable man" believes an undertaking will "better the condition", which mayor may not be pecuniary, of the native Hawaiian beneficiary. Although there is no reason indicated in Board minutes why the Trustees fel t that the adoption of a single definition was solely for the betterment of the condition of native Hawaiians, it is possible for the Trustees to arguably enunciate a justification for their decision.


-22-



1989, and attached hereto as Exhibit A.7 Among the reasons

presented in this Resolution are the following:

WHEREAS, the blood quantum definition as relates to the right to entitlements and benefits (in the words of a 1980 State Legislative Report) has "proved to be a factor in dividing the Hawaiian community, mothers and fathers from their children, cousins from cousins, and friends from friends ••••

WHEREAS, the Office of Hawaiian Affairs has encountered major fiscal and administrative hardships in managing income for two classes of Hawaiian people ••••

WHEREAS, the arbitrary requirement of 50% blood quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Native Hawaiian blood ••••


WHEREAS, it is recognized that self-determination is a desirable goal of Native Hawaiians and would be substantially achieved if the issue of the adoption of a single class of Native Hawaiian Beneficiaries was submitted to qualified voters who are Hawaiian for ratification ••••

After examining this Resolution, the Circuit Court in this

7This resolution was inadvertently omitted from the minutes of the May 1988 meeting, and Plaintiff-Appellants continue to argue that it was not properly adopted. This factual question was considered by the Circuit Court below which ruled that the Resolution "was adopted at a meeting of the Board of Trustees in 1988...... Findings of Fact, Conclusions of Law, and Order Denying Motion for Preliminary Injunction, Dec. 23, 1988, para. 10, R.V.1, p. 270. Plaintiff-Appellants did not present evidence challenging this finding below and should not be able to seek review of it now unless they can sustain their burden to show that the finding is clearly erroneous.

-22-



1989, and attached hereto as Exhibit A.7 Among the reasons

presented in this Resolution are the following:

WHEREAS, the blood quantum definition as relates to the right to entitlements and benefits (in the words of a 1980 State Legislative Report) has "proved to be a factor in dividing the Hawaiian community, mothers and fathers from their children, cousins from cousins, and friends from friends ••••

WHEREAS, the Office of Hawaiian Affairs has encountered major fiscal and administrative hardships in managing income for two classes of Hawaiian people ••••

WHEREAS, the arbitrary requirement of 50% blood quantum is contrary to Native Hawaiian culture and tradition and was a requirement developed and approved by those with no Native Hawaiian blood ••••


WHEREAS, it is recognized that self-determination is a desirable goal of Native Hawaiians and would be substantially achieved if the issue of the adoption of a single class of Native Hawaiian Beneficiaries was submitted to qualified voters who are Hawaiian for ratification ••••

After examining this Resolution, the Circuit Court in this

7This resolution was inadvertently omitted from the minutes of the May 1988 meeting, and Plaintiff-Appellants continue to argue that it was not properly adopted. This factual question was considered by the Circuit Court below which ruled that the Resolution "was adopted at a meeting of the Board of Trustees in 1988...... Findings of Fact, Conclusions of Law, and Order Denying Motion for Preliminary Injunction, Dec. 23, 1988, para. 10, R.V.1, p. 270. Plaintiff-Appellants did not present evidence challenging this finding below and should not be able to seek review of it now unless they can sustain their burden to show that the finding is clearly erroneous.


-23-

case concluded in its Findings of Fact that:



preliminary Injunction, Dec. 23, 1988, R.V.1, p. 272.

A single definition can thus serve to better the conditions of

half-blood Hawaiians. Programs that promote self-determination and

pride in the native culture, language, traditions, and successes of

members of the Hawaiian community are examples of ways to better

the conditions of half-blood Hawaiians, along with others of

Hawaiian ancestry. See, ~., Kila v. Hawaiian Homes Comm'n, No.

74-12 (D. Haw. Sept. 17, 1974) (concluding that increasing lease

costs to homesteaders-lessees under the Hawaiian Homes program was

to their benefit).

The U. S. Supreme Court has recognized the necessi ty of



has recognized that care must be taken not "to destroy cultural

identi ty under the guise of saving it." Santa Clara Pueblo v.





Hawaiian blood ••• " Resolution Relating to Ho'okahi No Maua E'we,

-23-

case concluded in its Findings of Fact that:



preliminary Injunction, Dec. 23, 1988, R.V.1, p. 272.

A single definition can thus serve to better the conditions of

half-blood Hawaiians. Programs that promote self-determination and

pride in the native culture, language, traditions, and successes of

members of the Hawaiian community are examples of ways to better

the conditions of half-blood Hawaiians, along with others of

Hawaiian ancestry. See, ~., Kila v. Hawaiian Homes Comm'n, No.

74-12 (D. Haw. Sept. 17, 1974) (concluding that increasing lease

costs to homesteaders-lessees under the Hawaiian Homes program was

to their benefit).

The U. S. Supreme Court has recognized the necessi ty of



has recognized that care must be taken not "to destroy cultural

identi ty under the guise of saving it." Santa Clara Pueblo v.





Hawaiian blood ••• " Resolution Relating to Ho'okahi No Maua E'we,


-24-

R.V.1, p. 201. The posing of a question relating to this issue is







When the committee of the Whole met at the end of the 1978

constitutional Convention to put the package of proposed amendments

into final form, they reaffirmed the proposal for an Office of

Hawaiian Affairs and focused in their committee report on the role

of OHA as a vehicle to promote unity among all persons of Hawaiian

ancestry and lead to self-governance:

Members were impressed by the concept of the Office of Hawaiian Affairs which establishes a public trust entity for the benefit of the people of Hawaiian ancestry. Members foresaw that it will provide Hawaiians the right to determine the priorities which will effectuate the betterment of their condition and welfare and promote the protection and preservation of the Hawaiian race, and that it will unite Hawaiians as a people ••••

••• If one looks to the precedent of other native peoples, one finds that they have traditionally enjoyed self-determination and self-government. They have power to make their own sUbstantive rules in internal matters. Although no longer possessed of the full attributes of sovereignty, they remain a separate people with the power of regulation over their internal and social problems. The establishment of the Office of Hawaiian Affairs is intended to grant similar rights to Hawaiians •••• 8


8Committee of the Whole Report No. 13 (issued sept. 5, 1978), 1 Proceedings of the constitutional convention of Hawaii of 1978 at 1018-19 (emphasis added).

-24-

R.V.1, p. 201. The posing of a question relating to this issue is







When the committee of the Whole met at the end of the 1978

constitutional Convention to put the package of proposed amendments

into final form, they reaffirmed the proposal for an Office of

Hawaiian Affairs and focused in their committee report on the role

of OHA as a vehicle to promote unity among all persons of Hawaiian

ancestry and lead to self-governance:

Members were impressed by the concept of the Office of Hawaiian Affairs which establishes a public trust entity for the benefit of the people of Hawaiian ancestry. Members foresaw that it will provide Hawaiians the right to determine the priorities which will effectuate the betterment of their condition and welfare and promote the protection and preservation of the Hawaiian race, and that it will unite Hawaiians as a people ••••

••• If one looks to the precedent of other native peoples, one finds that they have traditionally enjoyed self-determination and self-government. They have power to make their own sUbstantive rules in internal matters. Although no longer possessed of the full attributes of sovereignty, they remain a separate people with the power of regulation over their internal and social problems. The establishment of the Office of Hawaiian Affairs is intended to grant similar rights to Hawaiians •••• 8


8Committee of the Whole Report No. 13 (issued sept. 5, 1978), 1 Proceedings of the constitutional convention of Hawaii of 1978 at 1018-19 (emphasis added).


-25-


membership. Thus the 1978 Constitutional Convention merely


their own membership. See santa Clara Pueblo v. Martinez, 436 U.S.


(1831). The activities of the ORA Trustees undertaken in


furthering the efforts of all Hawaiians toward greater self-

determination.

Finally, the single definition program has been designed to

increase the political success of the Hawaiian community by




ORA Trustees continue their efforts to negotiate with the state and

federal benefits for land and other resources, the strength of

numbers will be a significant factor in determining whether they

are successful. It is clearly to the benefit of all Hawaiians that

these negotiations be conducted from a position of strength and

unity.

4. The District Court Erred in Its Conclusion That the Expenditure of Section 5(f) Funds to Benefit Hawaiians with Less than 50% Blood violated Clearly Established Law.

As indicated above, the facts related to the 1988 referendum

as they have been developed by the Attorney General's Investigative

Report and by Hawaii's Circuit Court in the Kepoo case indicate

-25-


membership. Thus the 1978 Constitutional Convention merely


their own membership. See santa Clara Pueblo v. Martinez, 436 U.S.


(1831). The activities of the ORA Trustees undertaken in


furthering the efforts of all Hawaiians toward greater self-

determination.

Finally, the single definition program has been designed to

increase the political success of the Hawaiian community by




ORA Trustees continue their efforts to negotiate with the state and

federal benefits for land and other resources, the strength of

numbers will be a significant factor in determining whether they

are successful. It is clearly to the benefit of all Hawaiians that

these negotiations be conducted from a position of strength and

unity.

4. The District Court Erred in Its Conclusion That the Expenditure of Section 5(f) Funds to Benefit Hawaiians with Less than 50% Blood violated Clearly Established Law.

As indicated above, the facts related to the 1988 referendum

as they have been developed by the Attorney General's Investigative

Report and by Hawaii's Circuit Court in the Kepoo case indicate


-26-

that section 5 (f) funds have not been used to support this

referendum except in an incidental fashion. Nonetheless, amicus

would like to address briefly the conclusion reached by the

District court that such expenditures, if they had occurred, would

violated the fiduciary obligation of OHA's Trustees.

The District Court relied primarily on Attorney Gneral Opinion

No. 83-2, dated April 15, 1983, written by Hawaii's Office of the

Attorney General, which was gave a "no" answer to the abstract

question of whether OHA could use section 5 (f) funds lito better the

conditions of Hawaiians as defined in Hawaii Revised statutes,

section 10-2(5)?" Since 1983, as specific fact situations have

developed, the answer to this question has been seen to be

considerably less clear. And in the present case, the real

question is not whether section 5(f) funds can be used for less

than half-blood Hawaiians but rather whether they can be used for

a program that benefits both the half-blood and the less-than-half-

blood Hawaiians.

Amicus has quoted extensively above from the Findings of Facts

and Conclusions of Law of Hawaii's Circuit Court in the Kepoo case

which concluded that the OHA Trustees had acted properly. The key

Finding is Number 21, which reads:



-26-

that section 5 (f) funds have not been used to support this

referendum except in an incidental fashion. Nonetheless, amicus

would like to address briefly the conclusion reached by the

District court that such expenditures, if they had occurred, would

violated the fiduciary obligation of OHA's Trustees.

The District Court relied primarily on Attorney Gneral Opinion

No. 83-2, dated April 15, 1983, written by Hawaii's Office of the

Attorney General, which was gave a "no" answer to the abstract

question of whether OHA could use section 5 (f) funds lito better the

conditions of Hawaiians as defined in Hawaii Revised statutes,

section 10-2(5)?" Since 1983, as specific fact situations have

developed, the answer to this question has been seen to be

considerably less clear. And in the present case, the real

question is not whether section 5(f) funds can be used for less

than half-blood Hawaiians but rather whether they can be used for

a program that benefits both the half-blood and the less-than-half-

blood Hawaiians.

Amicus has quoted extensively above from the Findings of Facts

and Conclusions of Law of Hawaii's Circuit Court in the Kepoo case

which concluded that the OHA Trustees had acted properly. The key

Finding is Number 21, which reads:




-27-

Preliminary Injunction, Dec. 23, 1988, R.V.1, p. 272.

In addition, amicus has quoted from the November 2, 1988







R.V. 1, p. 183, 185 n.2.

The District Court rejected the importance of the Kepoo


wrongful in this case occurred" and because "the record itself is

less than clear as to the basis for the unpublished ruling." Price

v. Akaka, supra, slip OPe at 17-18. Neither of these reasons

provide a sound basis for ignoring the decisions of Hawaii I s

learned state judges. The Circuit Court judges, examining OHA's

actions alleged to be in "clear violation" of the Trustees'






that the OHA Trustees did not engage in a "clear violation" of

their duties.

The scope of appellate review on this question of law--whether

the use of section 5(f) funds for the benefit of all persons of

-27-

Preliminary Injunction, Dec. 23, 1988, R.V.1, p. 272.

In addition, amicus has quoted from the November 2, 1988







R.V. 1, p. 183, 185 n.2.

The District Court rejected the importance of the Kepoo


wrongful in this case occurred" and because "the record itself is

less than clear as to the basis for the unpublished ruling." Price

v. Akaka, supra, slip OPe at 17-18. Neither of these reasons

provide a sound basis for ignoring the decisions of Hawaii I s

learned state judges. The Circuit Court judges, examining OHA's

actions alleged to be in "clear violation" of the Trustees'






that the OHA Trustees did not engage in a "clear violation" of

their duties.

The scope of appellate review on this question of law--whether

the use of section 5(f) funds for the benefit of all persons of


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Hawaiian ancestry is a clear violation of the Trustees' fiduciary

obligations--is de novo. Because the District Court erred in its

ruling on this issue, the decision below must be reversed.

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Hawaiian ancestry is a clear violation of the Trustees' fiduciary

obligations--is de novo. Because the District Court erred in its

ruling on this issue, the decision below must be reversed.


APPLICATION FOR LEAVE TO FILE AND BRIEF OF THE OFFICE … 22.pdfROD BURGESS; CLARENCE CHING; FRENCY...

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