From...

THE CATBIRD’S NEST

“JOHN GOEMANS: CRUSADER FOR A COLOR-BLIND AMERICA”

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RICE vs CAYETANO

No. 98-818

IN THE SUPREME COURT OF THE UNITED STATES

HAROLD F. RICE

Petitioner

v.

BENJAMIN J. CAYETANO, GOVERNOR OF

THE STATE OF HAWAI'I

Respondent

BRIEF OF AMICI CURIAE

STATE COUNCIL OF HAWAIIAN HOMESTEAD

ASSOCIATION, HUI KAKO'O 'AINA

HO'OPULAPULA, KALAMA'ULA HOMESTEAD

ASSOCIATION AND HAWAIIAN HOMES

COMMISSION IN SUPPORT OF RESPONDENT

Filed July 28, 1999

This is a replacement cover page for the above referenced brief filed at the

U.S. Supreme Court. Original cover could not be legibly photocopied |

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES iü

I. INTEREST OF AMICI !

II. SUMMARY OF ARGUMENT 2

III. ARGUMENT 3

A. Hawaiian Society, Culture, Traditions, And

Land Tenure Thrived For More Than 1300

Years Before Western Contact In 1778 3

B. Western Influences Had Devastating Effects On

The Hawaiian Nation 5

C. Congress Recognized The Historical Plight Of

The Descendants Of Aboriginal Hawaiians In

The Hawaiian Homes Commission Act Of 1921 10

1. Congress Sought To Stop The Rapid

Decline Of The Hawaiian Population .... 10

2. Congress Sought To Redress An Histori-

cally Inequitable Distribution Of Land

That Left Three Quarters Of The Hawaiian

Population Homeless 12

D. Congress Conditioned Hawai'i's Admission As

A State Into The Union Upon The Assumption

Of Trust Duties Over HHCA And Other

Returned Public Lands In Recognition Of The

United State's Special Relationship To The

Indigenous Hawaiian People 14

E. OHA And Its Voting Requirements Are Part Of

The Panoply Of Political Measures That Fed-

eral And State Sovereigns Designed To

Address The Harms Attendant To The Loss Of

Hawaiian Nationhood 18

TABLE OF CONTENTS - Continued

Page

F. Despite The Overthrow And Annexation Of The

Hawaiian Nation, Hawaiian Culture Has Sur-

vived - The Hawaiian People Have A Unique

Culture That Continues Today 21

CONCLUSION 30

m

TABLE OF AUTHORITIES

Page

Federal Cases

Arizona v. California, 373 U.S. 546 (1963) 20

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) 17

Delaware Tribal Business Committee v. Weeks, 430

U.S. 73 (1977) 17

Morton v. Mancari, All U.S. 535 (1974) 17

United States v. Candelaria, 271 U.S. 432 (1926) 17

United States v. Johns, 437 U.S. 634 (1978) 17

United States v. Kagama, 118 U.S. 385 (1886) 17

Un

ted States v. Midwest Oil, 236 U.S. 459 (1915).

20

United States v. Mitchell, 463 U.S. 206 (1983) 18

Uni

ted States v. Sandoval, 231 U.S. 28 (1913) 17

State Cases

Ahuna v. Department of Hawaiian Home Lands, 640

P.2d 1161 (Haw. 1982) 18

Branca v. Makuakane, 13 Haw. 499 (1901) 22

Estate of Emanuel S. Cunha, AIA P.2d 925 (Haw.

1966)

23

Estate of Farrington, 42 Haw. 640 (1958) 23

Estate of Kamauoha, 26 Haw. 439 (1922) 23

In re Boundaries of Pulehunui, A Haw. 239 (1879) 4

In re Estate of Nakuapa, 3 Haw. 342 (1872) 23

Kalipi v. Hawaiian Trust Co., 656 P.2d 745 (Haw.

1982)

22

IV

TABLE OF AUTHORITIES - Continued

Page

Leong v. Takasaki, 520 P.2d 758 (Haw. 1974) 23

O'Brien v. Walker, 35 Haw. 104 (1939), aff'd, 115

F.2d 956 (9th Cir. 1940), cert, denied, 312 U.S. 707

(1941) 23

Public Access Shoreline Hawaii v. Hawai'i County

Planning Commission, 903 P.2d 1246 (Haw. 1995),

cert, denied, 517 U.S. 1163 (1996) 7

Reppun v. Board of Water Supply, 656 P.2d 57 (Haw.

1982), cert, denied, 471 U.S. 1014 (1985) 23

Constitutional Materials

1840 Constitution, reprinted in Hawaiian Laws

1841-1842 10 (1994) 6

Haw. Const, art. X, § 4 (1978) 26

Haw. Const, art. XII, § 3 (1978) 15

Haw. Const, art. XII, § 7 (1978) 7, 22

Haw. Const, art. XIV, § 7 (1950) 15

Haw. Const, art. XV, § 4 (1978) 26

Haw. Const, art. XV, § 5 (1978) 21

Haw. Const, art. XVI, § 7 (1978) 15

Codes and Statutes

42 U.S.C. § 11701(11) (1995) 9

42 U.S.C. §§ 11701(19)-(21) (1995) 20

42 U.S.C. § 11701, et seq 28

TABLE OF AUTHORITIES - Continued

Page

Fiscal Year 1994 Department of Defense Appropria-

tions Act, Pub. L. No. 103-139, 107 Stat. 1418

(1994) 21

Hawaiian Homes Commission Act, 42 Stat. 108

(1921) passim

Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4

(1959) 2, 14, 15, 16, 17, 28

Hawaii Organic Act, ch. 339, 31 Stat. 141 (1900)....9, 14

J. Res. 55, 55th Cong., 30 Stat. 750 (1898) 9

Joint Resolution to Acknowledge the 100th Anniver-

sary of the January 17, 1893 Overthrow of the

Kingdom of Hawaii and to Offer Apology to Native

Hawaiians on Behalf of the United States for the

Overthrow of the Kingdom of Hawaii, Pub. L.

103-150, 107 Stat. 1510 (1993) 8, 19, 20

Joint Resolution to Consent to Certain Amendments

Enacted by the Legislature of the State of Hawaii to

the Hawaiian Homes Commission Act [1921], Pub.

L. 105-21, 111 Stat. 235 (1997) 17

Joint Resolution to Consent to Certain Amendments

Enacted by the Legislature of the State of Hawaii to

the Hawaiian Homes Commission Act [1921], Pub.

L. 102-398; 106 Stat. 1953 (1992) 17

Joint Resolution to Consent to an Amendment

Enacted by the Legislature of the State of Hawaii to

the Hawaiian Homes Commission Act, Pub. L. No.

99-557, 100 Stat. 3143 (1986) 13

Native Hawaiian Education Act, Pub. L. No. 103-382,

108 Stat. 3518 (1994) 26

Native Hawaiian Healthcare Improvement Act of 1988,

Pub. L. No. 100-579, 102 Stat. 2916 (1988) 19, 28

VI

TABLE OF AUTHORITIES - Continued

Page

Revised Conveyances Procedures Act, Pub. L. No.

88-233, 77 Stat. 472 (1966) 16

S.Ct. R. 37.3(a) 1

S.Ct. R. 37.6 1

Haw. Rev. Stat. § 1-1 (1993) 7, 22

Haw. Rev. Stat. § 298-2(b) (1993) 26

Haw. Rev. Stat. § 6E-43.5 (1993) 24

Haw. Rev. Stat. Chap. 6K (1993) 22

Haw. Rev. Stat. § 7-1 (1993) 7, 22

1 Revised Laws of Hawaii 156 (1905) 25

Laws of Hawaii 81 (1847), reprinted in 2 Revised

Laws of Hawaii 2126-30 (1925) 7

Laws of Hawaii 107 (1847), reprinted in 2 Revised

Laws of Hawaii 2120-42 (1925) 7

Laws of Hawaii 109 (1846), reprinted in 2 Revised

Laws of Hawaii 2120-24 (1925) 6

Laws of Hawaii 202 (1850), reprinted in 2 Revised

Law of Hawaii 2141-42 (1925) 7

Act 83, Relating to Hula (to be codified at Haw. Rev.

Stat. Chap. 5) 28

Legislative Materials

H.R. Rep. No. 839, 66th Cong., 2d Sess. (1920) 10, 11, 12, 14

H.R. Rep. No. 209, 67th Cong., 1st Sess. (1921) 11

TABLE OF AUTHORITIES - Continued

Page

Administration of Native Hawaiian Home Lands:

Joint Hearings Before The Select Committee On

Indian Affairs United States Senate and The Com-

mittee On Interior And Insular Affairs House of

Representatives, U.S. House Comm. Interior and

Insular Affairs, 101st Cong., 1st Sess. (Aug. 7,

1989) 19

Hawaiian Homes Commission Act, 1920: Hearings

Before The Committee On Territories Of The

United States Senate On H.R. 13500; A Bill to

Amend An Act Entitled "An Act To Provide A Gov-

ernment For The Territory of Hawaii, " Approved

April 30, 1900, As Amended, To Establish An

Hawaiian Homes Commission, And For Other Pur-

poses, 66th Congress, 3rd Sess. (1921) 8, 10, 16

Kaho'olawe Island: Restoring a Cultural Treasure,

Final Report of the Kaho 'olawe Island Conveyance

Commission to the Congress of the United States

(March 31, 1993) 21

Proposed Amendments To The Organic Act of the

Territory of Hawaii: Hearings before the Commit-

tee on the Territories for the House of Representa-

tives, 66th Cong., 2d Sess. (1920) 13

59 Cong. Ree. 7452-53 (1920) 11, 13

Executive Materials

President's Message, Executive Department Docu-

ment No. 47, 53 Cong., 2d Sess. (December 18,

1893) 2-3, 9

22 Op. Att'y Gen. 627 (1899) 14

42 Op. Att'y Gen. 43 (1961) 16

Vili

TABLE OF AUTHORITIES - Continued

Page

James Blount, Letter to W.Q. Gresham, U.S. Secre-

tary of State, dated July 17, 1893, Report of the

Commissioner to the Hawaiian Islands (Govern-

ment Printing Office 1893) 10, 11

Federal-State Task Force on the Hawaiian Homes

Commission Act: Report to the United States Secre-

tary of Interior and the Governor of the State of

Hawaii (Aug. 15, 1983) 16

Letter from Kermit Gordon, Director, Bureau of the

Budget, to Lyndon Johnson, October 28, 1963,

S. Rep. No. 675 on Pub. L. No. 88-233, 88th Cong.,

1st. Sess., reprinted in U.S.C.C.A.N. 1362-66

(1963) 16

Davianna McGregor, et al., Contemporary Subsis-

tence Fishing Practices Around Kaho'olawe: Study

Conducted for the NOAA National Marine Sanctu-

aries Program (May 1997) 22

Native Hawaiians Study Commission Report On The

Culture Needs And Concerns Of Native Hawaiians

Pursuant To Pub. L. 96-565, Title III, Vols. I & II

(Dept. of Interior 1983) 5, 6, 9, 25

Miscellaneous

Isabella Aiona Abbott, La'au Hawai'i: Traditional

Uses of Hawaiian Plants ( 1992) 27

Adeno Addis, Individualism, Communitarianism, and

the Rights of Ethnic Minorities, 66 Notre Dame L.

Rev. 1219 (1991) 25

TABLE OF AUTHORITIES - Continued

Page

S. Haunani Apolonia, E Mau ana ka Ha'aheo (The

Pride Endures) (1991) 29

Dorothy B. Barreré, Mary Kawena Pukui & Marion

Kelly, Hula Historical Perspectives (1980) 28

Jon J. Chinen, The Great Mahele, Hawaii's Land

Division of 1848 (1858) 7, 8

T. Coffman, Nation Within (1998) 9

Felix S. Cohen's Handbook of Federal Indian Law (2d

ed. 1982) 17

Gavan Daws, Shoal of Time (1968) 6, 10

Ben Finney, Voyage of Rediscovery: A Cultural Odys-

sey through Polynesia (1995) 3, 29

6 A. Fornander, Collection of Hawaiian Antiquities

and Folklore (1920) 5

Leslie Karen Friedman, Native Hawaiians, Self-

Determination and the Inadequacy of State Land

Trusts, 14 Univ. Haw. L. Rev. 519 (1992) 10

E.S. Craighill Handy and Mary Kawena Pukui, The

Polynesian Family System in Ka'u (1952) 4, 23

E.S. Craighill Handy and E.G. Handy, Native Planters

in Old Hawaii (1972) 4

Jay Hartwell, Na Mamo: Hawaiian People Today

(1996) 21

J. Hobbs, Hawaii - A Pageant of the Soil (1935) 7-8

TABLE OF AUTHORITIES - Continued

Page

Nanette L. Kapulani Mossman Judd, La'au Lapa'au:

herbal healing among contemporary Hawaiian

healers, 5 Pacific Health Dialog Journal of Com-

munity Mental Health and Clinical Medicine for

the Pacific: The Health of Native Hawaiians 239

(1998) 27-28

Prince J.K. Kalanianaole, The Story of Hawaiians,

The Mid-Pacific Magazine, Vol. XXI, No. 2, Febru-

ary 1921 12

Lilikalä Kame'elehiwa, Native Land and Foreign

Desires: Pehea La E Pono Ai? (1992) 5

Ka'ïï: University of Hawai'i Hawaiian Studies Task

Force Report (Dec. 1986) 25

Patrick V. Kirch, Feathered Gods and Fishhooks

(1985) 3, 4

Patrick V. Kirch and Marshall Sahlins, Anahulu: Vol.

One - Historical Ethnography (1992) 3

Patrick V. Kirch and Marshall Sahlins, Anahulu: Vol.

Two - The Archeology of History (1992) 3

Ralph S. Kuykendall, The Hawaiian Kingdom Vol. I:

1778-1854 Foundation and Transformation (1938) . . .3, 4

Ralph S. Kuykendall, The Hawaiian Kingdom Vol. II:

1874-1893 The Kalakaua Dynasty (1953) 3

Ralph S. Kuykendall, The Hawaiian Kingdom Vol. Ill:

1854-1874 Twenty Cricital Years (1967) 3, 8, 27

Neil Levy, Native Hawaiian Land Rights, 63 Cal. L.

Rev. 848 (1975) 8

Edward L. Like and E.A. Nawahi, eds., [Ke Aloha

Aina], translated in 1 'Üiwi: A Native Hawaiian

Journal 81 (1998) 9

Lydia Kamaka'eha Lili'uokalani, Hawaii's Story by

Hawaii's Queen (1990) 10

TABLE OF AUTHORITIES - Continued

Page

Andrew W. Lind, Hawaii's People (1955) 5

Andrew W. Lind, An Island Community: Ecological

Succession in Hawaii (1968 ed.) 22

Melody Kapilialoha MacKenzie, Native Hawaiian

Rights Handbook (1991) 7

David Malo, Hawaiian Antiquities (1951) 5

Jon K. Matsuoka, et al., Governor's Moloka'i Subsis-

tence Task Force Report (1993) 22

Davianna McGregor-Alegado, Hawaiians: Organizing

in the 1970s, 7 Amerasia Journal 29. (1980) 18, 25

Davianna Pomaika'i McGregor, '"Aina Ho'opulapula:

Hawaiian Homesteading, 24 Hawaiian Journal of

History 1 (1990) 27

Davianna Pomaika'i McGregor, An Introduction to

Hoa'aina and Their Rights, 30 Hawaiian Journal of

History 1 (1996) 5, 24

Sally Engle Merry, Law, Culture, and Cultural Appro-

priation, 10 Yale J. L. & Humanities 575, 602

(1998) 6

Luciano Minerbi, Davianna McGregor & Jon Mat-

suoka, Native Hawaiian and Local Cultural Assess-

ment Project (1993) 20

Native Hawaiian Health Research Consortium, Men-

tal Health Task Force & Alu Like, Inc., E Ola Mau:

Native Hawaiian Health Needs Study, Mental

Health Task Force Report (1985) 19

Office of Hawaiian Affairs, Native Hawaiian Data

Book (1998) 19, 26

Xll

TABLE OF AUTHORITIES - Continued

Page

1 Mary Kawena Pukui, E.W. Haertig, & Catherine A.

Lee, Nana I Ke Kumu (6th prtg. 1983) 23

Mary Kawena Pukui and Samuel H. Elbert, Hawaiian

Dictionary ( 1986 ed.) 1, 4, 7

R.S. Schmitt, The Missionary Census of Hawaii,

Pacific Anthropology Record No. 20 (1973) 5

Albert J. Schütz, The Voices of Eden (1994) 9, 25, 26

Victoria Shook, Ho'oponopono, Contemporary Uses

of a Hawaiian Problem Solving Process (1989) 26

Karen Silva, Hawaiian Chant: Dynamic Cultural Link

or Atrophied Relic?, 98 Journal of the Polynesian

Society 85 (1989) 26

Noenoe K. Silva, Kanaka Maoli Resistence to Annex-

ation, 1 'Üiwi: A Native Hawaiian Journal 51

(1998) 9, 27

Jon M. Van Dyke, The Political Status of Native

Hawaiian People, 17 Yale L. & Policy Rev. 95

(1998) 18, 20

Eric K. Yamamoto, Interracial Justice: Conflict &

Reconciliation in Post-Civil Rights America

(1999) 20

Websites

http://www.lava.net/namam o 21

http://www.pixi.com/~huimalam 24

http://pbs.org/wayfinders 29

http://leahi.kcc.hawaii.edu/org/pvs 29

1

I. INTEREST OF AMICI1

Congress created the HAWAIIAN HOMES COMMISSION

in 1921 to hold in trust and manage over 203,000 acres of

lands for the benefit of descendants of aboriginal Hawaiians

under the terms of the Hawaiian Homes Commission Act

("HHCA").2 The STATE COUNCIL OF HAWAIIAN HOME-

STEAD ASSOCIATIONS ("SCHHA") is an umbrella organiza-

tion that represents 22 Hawaiian Homestead Associations

which, in turn, represent beneficiaries who hold over 6,800

leases. HUI KlKO'O 'ÄINA HO'OPULAPULA* ("HUI") rep-

resents Native Hawaiians who are waiting to receive HHCA

leases. There are over 30,000 pending applications and many

beneficiaries have been on the waiting list for decades.

KALAMA'ULA HOMESTEAD ASSOCIATION

("KALAMA'ULA"), the first and oldest Homestead Associa-

tion, was founded in 1922 on the island of Moloka'i. In 1926,

the Kalama'ula Homesteaders successfully demonstrated their

ability to farm the marginal lands awarded to them, thereby

winning Congressional approval to continue the homesteading

program.

The members of SCHHA, HUI and KALAMA'ULA are

intended beneficiaries of the trust created by § 5(f) of the

Hawai'i Admission Act. They have a direct and substantial

1 The parties have consented in writing to the filing of this brief in

letters that have been submitted to the Clerk. See S.Ct. R. 37.3(a). Pursuant

to Rule 37.6, the amici state that no counsel for a party authored this brief

in whole or in part, and that no person or entity other than the amici and

their counsel made any monetary contribution to the preparation or

submission of this brief.

2 Act of July 9, 1921, 42 Stat. 108 (1921). There are 29 homestead

communities on 6 islands throughout the State (O'ahu, 7; East Hawai'i, 6;

West Hawai'i, 4; Maui, 4; Moloka'i, 4; Kaua'i, 3; Llna'i, 1). Of 6,809

homestead leases, 1,043 are agricultural leases; 298 are pasture leases; and

119 are commercial general leases. The rest are residential leases.

3 Hui Kako'o 'Aina Ho'opulapula may be translated as "guardians of

the homestead lands." Mary Kawena Pukui and Samuel H. Elbert,

Hawaiian Dictionary, 86, 120 & 352-53 (1986 ed.).

legal interest in this matter. Reversal of the decision below

could repudiate both the 1921 HHCA and terms of the 1959

Hawai'i Admission Act.

II. SUMMARY OF ARGUMENT

The native people of Hawai'i lost 99% of their lands and

over 90% of their population in the 120 years between discov-

ery (1778) and annexation by the United States (1898). The

1921 HHCA was Congress's first attempt to restore some of

these lands to the native people. Crown and government lands

previously ceded to the United States at annexation (including

HHCA lands) were returend to Hawai'i in the 1959 Admissions

Act, subject to special trusts for the benefit of Hawaiians.

Responsibility for managing these federally created trusts was

delegated to the State of Hawai'i, and made a specific condi-

tion to its admission to the Union. This federal delegation to

the State of trust responsibility to the native people is unique.

It is this trust responsibility that the State sought to carry out

when it created the Office of Hawaiian Affairs.

In the land tenure system of pre-Western contact Hawai'i,

the land was communally controlled by the chiefs and the

commoners - this concept of land management most closely

resembled a trust, with the chiefs as trustees and the common

people as beneficiaries. Throughout the 19th century, Hawai-

ian leaders attempted to preserve this trust concept even as

they were pressured to adopt increasingly Western-style prop-

erty laws. In 1893, Queen Lili'uokalani was overthrown by an

annexationist group dominated by Americans, and assisted by

the United States Minister to Hawai'i and United States

military forces.4

4 President Grover Cleveland, in a message to Congress dated

December 18, 1893, said that "By an act of war, committed with the

participation of a diplomatic representative of the United States and

without authority of Congress, the Government of a feeble but friendly and

confiding people has been overthrown. A substantial wrong has thus been

done which a due regard for our national character as well as the rights of

Despite two centuries of struggle to perpetuate their

culture and traditions, Hawaiians today remain a vibrant and

culturally cohesive people, for whom the Office of Hawaiian

Affairs and the HAWAIIAN HOMES COMMISSION now serve

as trustees. These trusts comprise the bare remnants of land

and political authority left to the first people of these Islands.

In creating these trusts, Congress recognized a special rela-

tionship with Hawai'i's indigenous people.

The decision and judgment of the Ninth Circuit Court of

Appeals should be affirmed.

III. ARGUMENT

A. Hawaiian Society, Culture, Traditions, And

Land Tenure Thrived For More Than 1300

Years Before Western Contact In 1778.

Aboriginal Hawaiians are the native and indigenous peo-

ple of the Hawaiian islands. Their culture and traditions are

irrevocably intertwined with the life of those lands.5 Hawai-

ians' relationship to the islands began with the Polynesian

voyages of discovery from the Marquesas (100-400 A.D.) and

later Tahiti.6 The sophisticated culture, society, and

the injured people requires we should endeavor to repair." President's

Message, Executive Document No. 47, 53 Cong., 2d Sess., December 18,

1893 (lodged with the Court) [hereinafter President's Message].

5 See generally Patrick V. Kirch, Feathered Gods and Fishhooks

(1985) [hereinafter Kirch]; Patrick V. Kirch & Marshall Sahlins, Anahulu:

Vol. One - Historical Ethnography; Vol. Two - The Archeology of History

(1992) [hereinafter Kirch and Sahlins]; Ralph S. Kuykendall, The

Hawaiian Kingdom, Vol. I, II & III (1938, 1953, & 1967) [hereinafter

Kuykendall].

6 Ben Finney, Voyage of Rediscovery: A Cultural Odyssey through

Polynesia (1995). These origins demonstrate that "Hawaiians" are in fact

not a "race" at all, but only the subgroup of Polynesians who occupied the

Hawaiian islands, developed their own society, culture, traditions, and land

tenure system from circa 100 A.D. to the present. Kirch, supra note 5,

Chapter 4 and 58-60. The first Polynesian migration to the Hawaiian

traditions that they developed over the succeeding centuries

were undisturbed by Western contact until 1778.7

The Hawaiian land tenure system was communal and

subsistence-based, but subject to the territorial control of a

class of chiefs.8 The chiefs provided stewardship over the

land, regulating the use of scarce resources, the maintenance

of irrigation systems, and the conduct of rituals. Although

sometimes mischaracterized as feudal, the land tenure system

was unique to the islands. The commoners had no military

duty. They were free to move if a chief was too oppressive.

Chiefs who abused the people would lose their labor force or

be replaced.9 Reciprocal relationships wove a fabric of

mutual obligations between the ali'i (chiefs) and the

maka'alnana (commoners) that characterized Hawaiian soci-

ety when westerners first arrived in 1778.10

Land use developed around geographic units (ahupua'a) run-

ning from the mountain to the ocean, with boundaries that followed

mountain ridges, streams, or other natural features.11 Under the

management of the chiefs, commoners provided the labor to work

the land, creating sophisticated irrigation systems for taro12 cultiva-

tion and developing ocean-based aquaculture by constructing a

system of shoreline fishponds. Essential goods were shared and

islands between 100-400 A.D. was at least 400 years before Charlemagne's

Holy Roman Empire, 600 years before the Norman Conquest of England,

1000 years before Columbus "discovered" the Americas, and 1300 years

before the founding of our nation. See Kirch, supra note 5, at 285-308.

7 Kirch, supra note 5, at 4-7, 67-68 & 284-308.

» Id. at 293-94.

9 Id. at 4-5 & 7.

10 Kuykendall, supra note 5, vol. I, at 10-11; Kirch, supra note 5, at

284-308; E.S. Craighill Handy and Mary Kawena Pukui, The Polynesian

Family System in Ka'u (1952) [hereinafter Handy and Pukui].

11 In re Boundaries of Pulehunui, 4 Haw. 239 (1879).

12 Taro or kalo is a kind of aroid cultivated as a staple food by

Hawaiians since earliest times. Mary Kawena Pukui and Samuel H. Elbert,

Hawaiian Dictionary 123 (1986 ed.); E.S. Craighill Handy and E.G.

Handy, Native Planters in Old Hawaii 92-110 (1972) [hereinafter Handy

and Handy}.

traded among fishermen, mountain dwellers and cultivators in an

extended family network known as the 'ohana.n In this culture,

land was not a commodity to be owned or traded. Instead, it

existed as an older sibling with whom reciprocal obligations were

to be shared.14

B. Western Influences Had Devastating Effects On

The Hawaiian Nation.

Captain James Cook's 1778 "encounter" with Hawai'i

and with Hawaiians produced social consequences no less

profound than Christopher Colombus's trans-Atlantic crossing

did for the native peoples of North America. The unexpected

arrival of the Western sailors, merchants, and missionaries

with world views and practices unknown to the isolated Poly-

nesian islands was traumatic. As with the "Indians" of North

America, death rates for Hawaiians rose precipitously after

contact due to their vulnerability to common European dis-

eases and other maladies of "civilization."15

13 Davianna Pomaika'i McGregor, An Introduction to Hoa'aina and

Their Rights, 30 Hawaiian Journal of History 1, 5 (1996) [hereinafter

McGregor}.

14 Lilikalâ Kame'elehiwa, Native Land and Foreign Desires: Pehea

La E Pono Ai? 23-33 (1992) [hereinafter Kame'elehiwa}. Hawaiian legend

traces the ancestry of Hawai'i's islands and people to the sky god, Wäkea,

and the earth goddess, Papa. Their first-born child, Häloa naka, was

stillborn and his small body, when buried, became the first taro root. Their

second child Hiloa, named for the first, was the first Hawaiian. 6 A.

Fornander, Collection of Hawaiian Antiquities and Folklore 360 (1920);

David Malo, Hawaiian Antiquities 244 (1951).

15 The Hawaiian population declined 50% in the first 27 years of

western contact (from 300,000 to 152,000 between 1778-1805) and 72%

within 72 years of contact (from approximately 300,000 in 1778 to less

than 84,000 in 1850). R.S. Schmitt, The Missionary Census of Hawaii,

Pacific Anthropology Record No. 20, at 41 (1973), cited in I Native

Hawaiians Study Commission Report On The Culture, Needs and Concerns

of Native Hawaiians Pursuant to Pub. L. No. 96-565, Title III 87, 471

(Dept. Of Interior June 23, 1983) [hereinafter Native Hawaiians Study

Commission Report]. See also Andrew W. Lind, Hawaii's People 17 (1955);

Under pressure from the Western newcomers, rapid social

changes took place, including: the political unification of the

islands under Kamehameha I (1790-1810), the introduction of

whaling (1820's) and the sandlewood trade (1810), the lifting

of religious taboos (1819), the arrival of Christian missionaries

(1820), suppression of traditional cultural activities (1820),

adoption of Western legal principles (1839-40),16 and transition

to a modified system of private property (1848).

The concept of private ownership of land had no place in

Hawaiian thought or history prior to the mid-Nineteenth Cen-

tury. For the previous 1700 years, Hawaiians had a relation-

ship to the land based upon actual use, care for the land

(aloha 'alna), and reciprocal rights and obligations with the

hierarchy of ali'i or chiefs who could not dispossess Hawai-

ian commoners without cause. This concept of communal land

tenure was made a part of Hawai'i's first constitution in 1840,

which said that the people had an interest in the kingdom in

common with that of the chiefs and the King.17

This communal land tenure system, under pressure from

American business interests, ended during the reign of

Kamehameha III.18 In its Principles Adopted By The Board of

R. Kekuni Blaisdell, M.D., Health Section, in I Native Hawaiians Study

Commission Report 99-115.

16 "The Hawaiian chiefs who adopted the Anglo-American legal

system faced the periodic reappearance of European gunboats threatening

to flatten harbor towns. This pressure fueled their willingness to accept

European notions of the superiority of civilization and the rule of law."

Sally Engle Merry, Law, Culture, and Cultural Appropriation, 10 Yale J.L.

& Humanities 575, 602 (1998) (describing "resistant appropriation" as a

way to protect the Hawaiian nation from further political conquest).

17 1840 Constitution, reprinted in Hawaiian Laws 1841-1842 10

(1994) ("[The land] was not [Kamehameha I's] own private property. It

belonged to the chiefs and people in common, of whom Kamehameha I

was the head, and had the management of the landed property.").

18 Gavan Daws, Shoal of Time, 124-28 (1968). See also Commission

to Quiet Land Titles; Awards, Patents, Etc., Laws of Hawaii 109 (1846),

reprinted in 2 Revised Laws of Hawaii 2120-24 (1925); Principles

Commissioners to Quiet Land Titles in Their Adjudication of

Claims Presented to Them, the Land Commission declared

that "there are but three classes of persons having vested

rights in the land, 1st, the government (the king), 2nd, the

landlord (the chief and the konohiki), and 3rd, the tenant."19

In 1848, Kamehameha III and his chiefs approved a plan

known as the Mähele20 - which effectively ended Hawai'i's

ancient communal land tenure system, and gave Westerners a

way to acquire fee simple ownership of Hawaiian lands.21 The

commoners were permitted to file claims to obtain fee-simple

title to the land where their houselots and subsistence taro

patches were located.22 Few did so.23 Of more than 1.3

Adopted By The Board of Commissioners To Quiet Land Titles In Their

Adjudication Of Claims Presented To Them, Laws of Hawaii 81 (1847),

reprinted in 2 Revised Laws of Hawai'i 2130 (1925).

19 Principles Adopted By The Board Of Commissioners To Quiet

Land Titles In Their Adjudication Of Claims Presented To Them, Laws of

Hawaii 81 (1847), reprinted in 2 Revised Laws of Hawai'i 2126 (1925).

20 Jon J. Chinen, The Great Mahele, Hawai'i's Land Division Of

1848 20 (1958) [hereinafter Chinen]. See also Commission to Quiet Land

Titles, Laws of Hawaii 107 (1847) & Principles Adopted by Land

Commission, Laws of Hawaii 81 (1847), reprinted in 2 Revised Laws of

Hawaii 2120-2142 (1925). "Mähele" means portion, division, section, or

sharing. Mary Kawena Pukui and Samuel H. Elbert, Hawaiian Dictionary

219 (1986 ed.).

21 Commoner's rights arising out of custom and usage still survive.

See Haw. Rev. Stat. § 1-1 (1993) (custom as of 1892 codified as common

law); Id. at § 7-1 (native tenants' rights preserved); Haw. Const, art. XII,

§ 7 (1978). Public Access Shoreline Hawaii v. Hawai'i County Planning

Commission, 903 P.2d 1246 (Haw. 1995), cert, denied, 517 U.S. 1163

(1996) (discussing the survival of traditional and customary gathering

rights by Hawaiians).

22 Laws of Hawaii 202 (1850), reprinted in 2 Revised Laws of

Hawaii 2141-42 (1925).

23 Of approximately 28,000 adult male Hawaiians then living, only

about 7,500 lots - totaling 0.6% of the 4.1 million acres of land in Hawai'i

- were awarded to the commoners. Melody Kapilialoha MacKenzie, Native

Hawaiian Rights Handbook 8 n. 46 (1991) [hereinafter MacKenzie]; J.

million acres given by the King to the "people" through the

Mähele, less than 29,000 acres were awarded to native Hawai-

ian tenants,24 who had little understanding of the conse-

quences of the Mähele.25

Over the next three decades, the monarchy faced increas-

ing pressure from the Hawaiian people to address the loss of

their land and political control over their nation. By 1893,

Queen Lili'uokalani had decided to promulgate a new consti-

tution that would restore native Hawaiian voting power.26 The

Queen's attempt to change the Constitution precipitated her

overthrow and the subsequent annexation by the United

States. The loss of their Queen and their land prompted an

outpouring of grief and protest among Hawaiians throughout

the kingdom,27 but their resistance was to no avail.

Hobbs, Hawaii - A Pageant Of The Soil (1935); Neil Levy, Native

Hawaiian Land Rights, 63 Cal. L. Rev. 848, 853-57 (1975).

24 Chinen, supra note 20 at 31.

25 Hawaiian Homes Commission Act, 1920: Hearings before the

Committee on Territories of the United States Senate on H.R. 13500; A Bill

to Amend An Act Entitled "An Act To Provide A Government For The

Territory of Hawaii, " Approved April 30, 1900, As Amended, To Establish

An Hawaiian Homes Commission, And For Other Purposes, 66th

Congress, 3rd Sess. 68-69 (1921) (statement of Prince Jonah Kuhio

Kalanianaole) [hereinafter 1921 Senate Hearings] ("All they knew of the

value of the lands was in the cultivation of same for their food. . . . [Y]ou

can readily understand why the Hawaiians did not take advantage of that

which the law recognized as theirs.").

26 Kuykendall, supra note 5, vol. Ill at 582. The draft Constitution

prepared by the Queen in 1893 would have returned property qualifications

for voting to the lower level established in the Constitution of 1864. Id. at

582, 586. See also Joint Resolution to Acknowledge the 100th Anniversary

of the January 17, 1893 Overthrow of the Kingdom of Hawaii, and to Offer

Apology to Native Hawaiians on Behalf of the United States for the

Overthrow of the Kingdom of Hawaii, Pub. L. No. 103-150, 107 Stat. 1510

(1993) [hereinafter Public Law 103-150].

27 After the overthrow, the Queen's Royal Hawaiian Band was

ordered by the new government to sign a loyalty oath. Bandmembers were

"threatened with dismissal, and told that they would soon be eating rocks

In 1898, the United States annexed Hawai'i by Joint

Resolution, and 1.8 million acres of government and crown

lands were ceded by Hawai'i, without compensation, to the

United States. There was never any plebiscite of the Hawaiian

people on the question of annexation, and contemporary

observers were convinced that if there had been a popular

vote, it would have been overwhelmingly against annexa-

tion.28 Nonetheless, the United States acquired Hawai'i and in

1900 made it a Territory.29 For the Queen, who had not

militarily resisted her overthrow in hopes that the United

States government would nullify the actions of its agents,30

(since they would have no money to buy food)." Noenoe K. Silva, Kanaka

Maoli Resistance to Annexation, 1 'Oiwi: A Native Hawaiian Journal 51

(1998) [hereinafter Silva]. The Band members refused to sign the oath, and

told their story to a local songwriter who then composed a famous protest

song entitled Kaulana Nâ Pua (Famous are the Children), also known as

Mele 'Ai Pohaku (the Stone-Eating Song). Id. The lyrics repeated the Band

members' resolve that they would rather eat stones than give up their land.

Ua lawa mâkou i ka pohaku, I ka 'ai kamaha 'o o ka 'âina. The song's

sweet melody belies the bitterness of its lyrics. Id.; Albert J. Schütz, The

Voices of Eden 353-54 (1994) [hereinafter Schütz]. This song is still sung

today, in remembrance of the love that Hawaiians have for their land.

28 42 U.S.C. § 11701(11) (1995); J. Res. 55, 55th Cong., 2d. Sess., 30

Stat. 750 (1898); 2 Native Hawaiians Study Commission Report 168 n. 9;

T. Coffman, Nation Within 272-287 (1998) (More than 21,000 people

signed petitions opposing annexation. At the time, there were only 40,000

Hawaiians). See also Three editorials byEdward L. Like & E.A. Nawahi,

eds., [Ke Aloha Aina], translated in, 1 'Oiwi: A Native Hawaiian Journal

81-93, 94-100, 101-03 (1998) (originally published in 1897, these

editorials poignantly recount efforts to gather signatures for petitions

opposing annexation).

29 Hawaii Organic Act, ch. 339, 31 Stat. 141 (1900) [hereinafter

Organic Act].

30 "She knew that she could not withstand the power of the United

States, but she believed that she might safely trust to its justice." President

Message, supra note 4.

10

annexation "extinguish[ed] the nationality of my poor peo-

ple."^

C. Congress Recognized The Historical Plight Of

The Descendants Of Aboriginal Hawaiians In The

Hawaiian Homes Commission Act Of 1921.

Two decades later, Congress responded to the problems

of the Hawaiian people by adopting the Hawaiian Homes

Commission Act, 1921 ("HHCA").32 The purposes of the

HHCA were twofold: (1) to "rehabilitate" the dying Hawaiian

people by returning them to the land,33 and (2) to redress an

historically inequitable distribution of land that left the over-

whelming majority of the Hawaiian population without title to

the very land on which they lived.34

1. Congress Sought To Stop The Rapid Decline

Of The Hawaiian Population.

In 1920-21, the continued existence of the Hawaiian

culture and society was in jeopardy. The House Committee on

the Territories reported that: "[T]he number of full-blooded

Hawaiians in the Territory has decreased since the estimate of

31 Lydia Kamaka'eha Lili'uokalani, Hawaii's Story by Hawaii's

Queen 309-10 (1990) (emphasis added).

32 Hawaiian Homes Commission Act, 42 Stat. 108 (1921). See

generally, Lesley Karen Friedman, Native Hawaiians, Self-Determination

and the Inadequacy of State Land Trusts, 14 Univ. Haw. L. Rev. 519,

536-539 (1992) (a summary of background of the HHCA); Daws, supra

note 18, at 296-99 (political analysis).

33 H.R. Rep. No. 839, 66th Cong., 2d Sess. 4 (1920) (statement of

John Wise, Senator of the Territorial Legislature).

34 Id. at 2-7. See also James Blount, Letter to W.Q. Gresham, U.S.

Secretary of State, dated July 17, 1893, Report of the Commissioner to the

Hawaiian Islands (Government Printing Office, 1893) ("The landless

condition of the native population grows out of the original distribution and

not from shiftlessness. To them homesteads should be offered rather than to

strangers.")

11

1826 from 142,650 to 22,500,"35 and there would be none left

in a few years.36

Senator John H. Wise, a member of the Legislative Com-

mission of the Territory (of Hawai'i) and one of the authors of

the HHCA, testified before the United States House of Repre-

sentatives:

The idea in trying to get the lands back to some of

the Hawaiians is to rehabilitate them. I believe that

we should get them on lands and let them own their

own homes. . . . The Hawaiian people are a farming

people and fishermen, out of door people, and when

they were frozen out of their lands and driven into

the cities they had to live in the cheapest places,

tenements. That is one of the reasons why the

Hawaiian people are dying. Now, the only way to

save them, I contend, is to take them back to the

lands and give them the mode of living that their

ancestors were accustomed to and in that way reha-

bilitate them.37

Prince Jonah Kuhio Kalanianaole ("Prince Kuhio"), the Terri-

tory's sole delegate to Congress, testified before the full U.S.

House of Representatives: "The Hawaiian race is passing.

And if conditions continue to exist as they do to-day, this

splendid race of people, my people, will pass from the face of

the earth."38 Secretary of Interior Lane attributed the declin-

ing population to health problems like those faced by the

"Indian in the United States" and concluded the Nation must

provide similar remedies.39

ss Id. at 2.

36 H.R. Rep. No. 209, 67th Cong., 1st Sess. 1-2 (1921).

37 Id. at 3-4. Wise's testimony was quoted and adopted in the House

Committee on the Territories' report to the full U.S. House of

Representatives.

38 59 Cong. Ree. 7453 (1920) (statement of Prince Jonah Kuhio

Kalanianaole).

39 H.R. Rep. No. 839, 66th Cong., 2d Sess. 5 (statement of Secretary

of Interior Lane).

12

2. Congress Sought To Redress An Historically

Inequitable Distribution Of Land That Left

Three Quarters Of The Hawaiian Population

Homeless.

In support of the HHCA, the House Committee on the

Territories recognized that, prior to the Mähele, Hawaiians

had a one-third interest in the land. The Committee reported

that the HHCA was necessary to address the way Hawaiians

had been short-changed in prior land distribution schemes:

The second great factor demanding passage of this

bill lies in the ineffectiveness of all previous systems

of land distribution, . . . [H]aving been recognized

as owners of a third interest in the lands of the

kingdom, the common people, believing that in

the future means were to be adopted to place

them in full possession of these lands, assumed

that the residue was being held in trust by the

Crown for their benefit. However, the lands were

never conveyed to the common people and, after a

successful revolution, were arbitrarily seized, and by

an article in the Hawaiian constitution became the

public lands of the Republic of Hawaii.40

Prince Kuhio further testified before the U.S. House of

Representatives that Hawaiians had an equitable interest in

the unregistered lands that reverted to the Crown before being

taken by the Provisional Government and, subsequently, the

Territorial Government:

[T]hese lands, which we are now asking to be set

aside for the rehabilitation of the Hawaiian race, in

which a one-third interest of the common people

had been recognized, but ignored in the division,

40 H.R. Rep. No. 839, 66th Cong., 2d Sess. 5 (1920) (emphasis

added). See also Prince J.K. Kalanianaole, The Story of the Hawaiians, The

Mid-Pacific Magazine, Vol. XXI, No. 2, February 1921, at 126, col. 2

(lodged with the Court).

13

and which had reverted to the Crown, presuma-

bly in trust for the people, were taken over by

the Republic of Hawaii. ... By annexation these

lands became a part of the public lands of the

United States, and by the provisions of the

organic act are under the custody and control of

the Territory of Hawaii. ... We are not asking that

what you are to do be in the nature of a largesse or

as a grant, but as a matter of justice - belated

justice. . . . 41

Thus, in 1921, Congress recognized the existence of a special

relationship between the United States and Hawaiians and the

equitable interest the Hawaiian people held in public lands.

The Hawaiian Home Lands conveyed to the State of

Hawai'i were limited to over 203,000 acres of marginally

useful lands and the beneficiaries were limited by a 50%

blood requirement.42 The pressing needs for a program that

could address the needs of other Hawaiians were ignored.

Likewise, needs beyond lands for homesteading (e.g., health

care and education) were not addressed.

41 59 Cong. Ree. 7452-7453 (1920) (statement of Prince Jonah Kuhio

Kalanianaole) (emphasis added). See also Proposed Amendments To The

Organic Act of the Territory of Hawaii: Hearings before the Committee on

the Territories for the House of Representatives, 66th Cong., 2d Sess. 170

(1920) [hereinafter 1920 House Hearings] ("[T]he Hawaiians were

deprived of their lands without any say on their part, either under the

kingdom, under the republic, or under the United States Government.")

(statement of Rep. Charles F. Curry, Chairman); 1920 House Hearings at

88 ("[T]hese crown lands never really vested in the Federal Government

except in trust for the common people. . . . That they were placed in trust

for the common people when in possession of the king, and just as we have

provided land for the Indians, we may use these lands to provide for the

Hawaiian lands.") (statement of Rep. Charles F. Curry, Chairman)

(emphasis added).

42 In 1986, Congress authorized Hawaiians with at least 25% native

blood to succeed to the leases of their parents and spouses. Joint Resolution

to Consent to an Amendment Enacted by the Legislature of the State of

Hawaii to the Hawaiian Homes Commission Act, [1921], Pub. L. No.

99-557, 100 Stat. 3143 (1986).

14

D. Congress Conditioned Hawai'i's Admission As A

State Into The Union Upon The Assumption Of

Trust Duties Over HHCA And Other Returned

Public Lands In Recognition Of The United

States' Special Relationship To The Indigenous

Hawaiian People.

In the Joint Resolution (1898) annexing Hawai'i, Con-

gress expressly imposed a trust on Hawai'i's public govern-

ment and Crown lands.43 In 1900, Congress confirmed this

trust in the Organic Act, ch. 339, 31 Stat. 141, §§ 73(e) and

91 (1900). With the passage of the HHCA, Congress sought in

part to fulfill these trust duties for the Hawaiian people.

In the 1959 Hawai'i Admission Act, § 4, Congress

required that the State of Hawai'i adopt the HHCA as part of

its constitution and assume management over Hawaiian home

lands:

As a compact with the United States relating to the

management and disposition of the Hawaiian home

lands, the Hawaiian Homes Commission Act, as

amended, shall be adopted as a provision of the

Constitution of said State, . . . subject to amend-

ment or repeal only with the consent of the United

States, and in no other manner.44

43 22 U. S. Op. Att'y Gen. 627, 630 (1899) ("The effect of this clause

[in the annexation resolution] is to subject the public lands in Hawai'i to a

special trust. . . . "). The Petitioner's cursory statement that "public lands"

transferred from the Provisional Government to the United States upon

annexation were "free and clear of any encumbrances or obligations," and

his reference to then Hawai'i Attorney General Harry Irwin's statement in

the 1921 hearings before the Senate Committee on the Territories,

Petitioner's Brief, at 2-3 & 4 n.l, are not accurate. The House Committee

reporting to the full House rejected Irwin's views and found that the

"second great factor demanding passage of this bill" was the inequitable

land distribution system in the Mähele. U.R. No. 839, 66th Cong., 2d Sess.

5 (1920).

44 Act of March 18, 1959, Pub. L. No. 86-3, 73 Stat. 4, § 4 (1959).

The provision was incorporated in Hawai'i's Constitution, now codified in

15

Congress further required in § 5 of the Admission Act

that the public government and crown lands which were ceded

to the United States by the Republic of Hawaii in 1898, and

not retained by the United States, must be conveyed to the

State and held:

[tjogether with the proceeds from the sale or other

disposition of any such lands and the income there-

from, ... as a public trust ... for the betterment of

the conditions of native Hawaiians, as defined in

the Hawaiian Homes Commission Act, 1920, as

amended. . . . Such lands, proceeds and income

shall be managed and disposed of for one or more

of the foregoing purposes in such manner as the

constitution and laws of said state may provide, and

their use for any other object shall constitute a

breach of trust for which suit may be brought by the

United States. . . . 45

Congress, through the 1959 Admission Act, § 1,

accepted, ratified and confirmed the 1950 Constitution

adopted by the people of Hawai'i in the election of 195046

and further required that the State meet the conditions in § 4

(incorporating the HHCA) and § 5 (public trust on returned

ceded lands). By accepting the state constitution and enacting

§ 4 and § 5(f), Congress delegated broad authority to the State

to carry out the obligations that the United States itself had

accepted upon acquiring the Hawaiian islands. The State

consented to this delegation as a condition of statehood.

The Attorney General of the United States opined that the

ceded lands of Hawai'i were a "special trust," the "naked title

being held by the Federal Government for the benefit of the

Article XII, § 3. The people of Hawai'i adopted the provision pursuant to

the plebiscite required by § 7 of the Admission Act.

46 Included in the 1950 Constitution was a provision that stated

"[a]ny trust provisions which the Congress shall impose, upon the

admission of this State, in respect of the lands patented to the State by the

United States or the proceeds and income therefrom, shall be complied

with by appropriate legislation." Haw. Const, art. XVI, sec. 7, s. 1 (1978)

(formerly art. XIV, sec. 7 (1950)).

16

people of Hawaii.'"" In 1964, Congress passed the Revised

Conveyances Procedures Act48 and reaffirmed the special

trust status of those lands held by the United States.

The bulk of the lands involved, which were ceded at

the time of annexation, have always been treated

differently than the other public lands of the United

States. History clearly indicates that those lands

were regarded as having been held in a special

trust status by the United States for the benefit

of the Hawaiian people.49

The HHCA and the Admission Act § 5(f) trusts are both

federal law and State law.50 They are integral to the Compact

47 42 Op. Att'y Gen. 43, 46-47 (June 12, 1961).

48 Pub. L. No. 88-233, 77 Stat. 472, 88th Cong., 1st Sess., reprinted

in U.S.C.C.A.N. 1362-1366 (1963).

49 Letter from Kermit Gordon, Director, Bureau of the Budget, to

Lyndon Johnson, October 28, 1963, S. Rep. No. 675, on Pub. L. No.

88-233, 88th Cong., 1st Sess., reprinted in U.S.C.C.A.N. 1362-1366

(1963).

If [Pub L. No. 88-233] is not enacted, the [public government

and Crown] lands, which the Federal Government received by

voluntary cession and donation of the people of Hawaii and for

which it paid no compensation, would become subject to

disposal under the Federal property laws [in 40 U.S.C. § 471 et

seq.] after August 21, 1964 when they become surplus. Under

the terms of the Statehood Act, Hawaii would thus lose its long

recognized residual interest in such lands and the 60 year

practice of returning such lands to Hawaii when they are no

longer needed would be terminated. Such a result would be in

effect a reverse land grant that would be highly inequitable in

view of the history of the subject lands and the spirit and intent

of the Statehood Act.

50 Although the HHCA is not codified in the United States Code, it

was never repealed. By its own terms, the HHCA may only be amended

with the consent of Congress. During the territorial period, Congress

amended the HHCA 22 times. Federal-State Task Force on the Hawaiian

Homes Commission Act: Report to the United States Secretary of Interior

and the Governor of the State of Hawaii 213-228 (August 15, 1983). From

17

by which Hawai'i became a State in the Union. They were

both expressly ratified by Congress and the people of Hawai'i

at Statehood in Section 7 of the Admissions Act. They reaf-

firm the "special relationship" between the United States and

the indigenous Hawaiian people that has been political in its

nature from inception.51 Whether measured by the "guardian-

ward" concept applied by Congress to Indians,52 by the oblig-

ation of an acquiring nation to a people whose lands had been

taken without just cause,53 by the "domestic dependent

nation" concept articulated by this Court54 or a fiduciary

1986-90, Hawai'i's Legislature submitted 15 amendments to the U.S.

Congress for ratification. Congress consented to 10, withheld consent to 4,

and 1 was deemed not to require submission. Pub. L. 102-288, 106 Stat.

1953 (1992); Pub. L. 105-21, 111 Stat. 235 (1997). This ongoing oversight

reflects the continuing federal interest in State legislation relating to native

Hawaiians and the continuing vitality of the delegation of authority in the

Admissions Act.

si Morton v. Mancari, 417 U.S. 535, 553-555 (1974); Delaware

Tribal Business Committee v. Weeks, 430 U.S. 73 (1977); United States v.

Johns, 437 U.S. 634 (1978).

52 "Not only does the Constitution expressly authorize Congress to

regulate commerce with the Indian tribes, but long continued legislative

and executive usage and unbroken current of judicial decisions have

attributed to the United States as a superior and civilized nation the power

and the duty of exercising a fostering care and protection over all the

dependent Indian communities within its borders, whether within its

original territory or territory subsequently acquired, and whether within or

without the limits of a State ... It is for that body [Congress] and not for

the courts to determine when the true interests of the Indian require his

release from such condition of tutelage." United States v. Candelaria, 271

U.S. 432 (1926) citing United States v. Sandoval, 231 U.S. 28, 45-47

(1913)).

53 Felix S. Cohen's Handbook of Federal Indian Law 50-58 (2d ed.

1982).

54 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831) (tribes

are described as "domestic dependent nations ... in a state of pupilage.

Their relation to the United States resembles that of a ward to his

guardian."); see also United States v. Kagama, 118 U.S. 385 (1886).

standard,55 the United States undertook special respon-

sibilities to the indigenous people of Hawaii when the United

States acquired both Hawai'i and its public government and

crown lands. Congress has never extinguished these rights or

its special relationship with indigenous Hawaiian people. To

deny such a relationship would require repudiating not just

the HHCA but also the foundations of Hawai'i's Admission

Act and more than seven decades of Congressional solicitude

for the needs of Hawaiians.

E. OHA And Its Voting Requirements Are Part Of

The Panoply Of Political Measures That Federal

And State Sovereigns Designed To Address The

Harms Attendant To The Loss Of Hawaiian

Nationhood.

The years following statehood brought massive develop-

ment to the islands, and motivated Hawaiians to protect rural

communities where traditional and customary Hawaiian prac-

tices still survived.56 Greater public understanding of Hawai-

ian issues eventually resulted in the adoption of a number of

governmental programs.57

In 1978, the people of Hawai'i determined that proper

fulfillment of § 5 trust obligations required them to provide

Hawaiians with a measure of control over their own destinies.

In this context, OHA and its beneficiary-chosen leadership

are properly seen as one part of a panoply of political acts by

state and federal sovereigns that are designed to address,

55 United States v. Mitchell, 463 U.S. 206, 225-227 (1983); Ahuna v.

Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982).

56 Davianna McGregor-Alegado, Hawaiians: Organizing In The

1970s, 7 Amerasia Journal 29, 37 (1980).

57 Jon M. Van Dyke, The Political Status of the Native Hawaiian

People, 17 Yale L. & Policy Rev. 95, 106 and n.67 (1998) (listing

legislation).

19

directly and indirectly, the loss of sovereignty and nationhood

by the indigenous Hawaiian people:

Hawai'i is the homeland of ka po'e Hawai'i [the

Hawaiian people]. These islands have shaped and

sustain a unique culture that struggles to survive the

loss of sovereignty, alienation from the land, domi-

nance of their cultures, and the concomitant decline

of the general welfare of Hawaiians. The Office of

Hawaiian Affairs was established in recognition and

in response to the severe social, economic, cultural,

and spiritual problems of Hawaiians. It is therefore

the mission of OHA to: Strengthen and maintain the

Hawaiian people and their culture as powerful and

vital components in society.58

This concern for restoring a sense of sovereign autonomy

to a dispossessed and disenfranchised people is central to the

trust obligations that Congress has shared with the State of

Hawai'i. In pursuing this mission, OHA - in tandem with the

HAWAIIAN HOMES COMMISSION - is supporting Congress'

goal of rehabilitating and sustaining the well-being of the

indigenous people of Hawai'i.

Both the federal executive and legislative branches have

acknowledged that "the health and well being of the Native

Hawaiian people is intrinsically tied to their deep feelings and

attachment to the land"59 - attachments severed in part by the

58 Office of Hawaiian Affairs, Native Hawaiian Data Book iii ( 1998).

59 Public Law 103-150. See also Native Hawaiian Health Research

Consortium, Mental Health Task Force & Alu Like, Inc., E Ola Mau:

Native Hawaiian Health Needs Study, Mental Health Task Force Report,

viii (1985); Administration of Native Hawaiian Home Lands: Joint

Hearings Before The Select Committee On Indian Affairs United States

Senate And The Committee On Interior And Insular Affairs House Of

Representatives, 101st Cong., 1st Sess. 37-38 (1989) (noting that

Hawaiians' life expectancy, death rate, and disease rate were as much

126% to 588% higher than all other groups in the U.S.). As a result of

sobering statistics like these, Congress passed the Native Hawaiian Health

Care Improvement Act ("Health Care Act"), Pub. L. No. 100-579, 102 Stat.

2916 (1988) (now codified in 42 U.S.C. §§ 10101-12300 (1995)). Congress

20

loss of Hawaiian lands. As with other aboriginal people in the

United States, the effects of losing control over ancestral land

and resources can be seen in virtually every indicator of

social or economic progress. "These statistics reflect the

individual and collective pain, bitterness and trauma of a

people . . . who are dispossessed in their own homeland; and

who lack control of the resources of their ancestral lands to

provide for the welfare of their people."60

The government's acknowledgment of the profound cul-

tural destruction and spiritual suffering attendant to the loss

of nationhood, passed from generation to generation, is an

appropriate way to advance the political process of reconcilia-

tion with Native Hawaiians.61 Congress has both acquiesed62

in and ratified63 Hawai'i's constitutional amendments and

statutory laws creating OHA. OHA now provides Native

Hawaiian beneficiaries with a direct voice in the management

of their trust resources. This is entirely proper given the

United States' delegation of authority to the state, Hawai'i's

geographic isolation in the middle of the Pacific, and Hawai-

ians' unique political, cultural, and social history.

authorized these special benefits in express recognition of "the historical

and unique legal relationship" between Hawaiians and the United States

government. 42 U.S.C. §§ 11701(19)-(21) (1995).

60 Luciano Minerbi, Davianna McGregor & Jon Matsuoka, Native

Hawaiian and Local Cultural Assessment Project 15 (1993).

61 See Public Law 103-150, sees. 1(4) & (5) (expressing Congress'

"commitment to acknowledge the ramifications of the overthrow of the

Kingdom of Hawaii, in order to provide a proper foundation for

reconciliation between the United States and the Native Hawaiian people"

and urging the President to support reconciliation efforts). Cf. Eric K.

Yamamoto, Interracial Justice: Conflict & Reconciliation in Post-Civil

Rights America, 60-78, 210-35 (1999).

62 Cf. Arizona v. California, 373 U.S. 546, 597-98 (1963)

(presidential executive order reserving water on federal land upheld in light

of congressional acquiesence); U.S. v. Midwest Oil, 236 U.S. 459, 469-75

(1915) (presidential proclamation withdrawing lands from petroleum

exploration upheld in light of congressional acquiesence).

63 See supra note 57.

21

F. Despite The Overthrow And Annexation Of The

Hawaiian Nation, Hawaiian Culture Has Survived

- The Hawaiian People Have A Unique Culture

That Continues Today.

Despite all of the burdens imposed upon them over the

past two centuries, Hawaiians continue to nurture and cele-

brate the unique traditions of their ancestors.64

Aloha 'Ä~ina (Love of the Land) - Native Hawaiians

honored their bond with the land (aloha 'âina) by instituting

one of the most sophisticated environmental regulatory sys-

tems on earth, the kapu system. For Hawaiians, the life of the

land depended on the righteousness of the people.65 This

concept motivated three decades of effort by Hawaiian

leaders to regain Kaho'olawe, an island with deep spiritual

significance. Once a military bombing practice target,

Kaho'olawe is now listed in the National Historic Register,

and is the subject of a massive federal clean-up project.66

64 See generally Jay Hartwell, Na Mamo: Hawaiian People Today

(1996) (profiles of contemporary individuals who practice Hawaiians

traditions and customs, including farming, music, hula, Hawaiian

language, canoeing, surfing, kapa (bark cloth) making, la'au lapa'au

(Hawaiian healing), pono (justice), and religion). Excerpts of the book are

available at http://www.lava.net/namamo.

65 The State's motto reflects this concept: "Ua mau ke ea o ka 'una i

ka pono." (The life of the land is perpetuated in righteousness.) Haw.

Const, art. XV, § 5 (1978).

66 Kaho'olawe Island: Restoring a Cultural Treasure, Final Report of

the Kaho 'olawe Island Conveyance Commission to the Congress of the

United States 2 (March 31, 1993) ("This report calls upon the United States

government to return to the people of Hawai'i an important part of their

history and culture, the island of Kaho'olawe. The island is a special place,

a sanctuary, with a unique history and culture contained in its land,

surrounding waters, ancient burial places, fishing shrines, and religious

monuments."). Title X of the Fiscal Year 1994 Department of Defense

Appropriations Act, Pub. L. No. 103-139, 107 Stat. 1418 (1994) was

enacted on November 11, 1993. Section 10001(a) of Title X states that the

island of Kaho'olawe is among Hawai'i's historic lands and has a long,

documented history of cultural and natural significance to the people of

22

Subsistence - Ancient Hawaiians supplemented the pro-

duce of their farms and fishponds by fishing, hunting and

gathering plants. These subsistence activities became increas-

ingly more difficult to pursue as changing land ownership

patterns barred access to natural resources. Nonetheless, in

predominantly Hawaiian rural areas such as Hana, Puna, and

the island of Moloka'i, native Hawaiians continue to feed

their families as their ancestors did before them.67 Hawai'i

law has always guaranteed subsistence gathering rights to the

people so they may practice native customs and traditions.68

Kalo (Taro Cultivation) - In Hawaiian legend, the staple

crop of kalo (taro) was revered as the older brother of the

Hawaiian people.69 Taro cultivation was not only a means of

sustenance, but also a sacred duty of care to an older sibling.

Hawaii. It authorized $400,000,000 to be spent for the clean-up of military

ordnance from portions of the island. Id. See Haw. Rev. Stat. Chap. 6K

(1993). The state Kaho'olawe Island Reserve Commission holds the

resources and waters of the island of Kaho'olawe in trust until such time as

the State of Hawai'i and the federal government recognize a sovereign

Hawaiian entity. Id. at § 6K-9.

67 See Davianna McGregor, et ai, Contemporary Subsistence Fishing

Practices Around Kaho'olawe: Study Conducted for the NOAA National

Marine Sanctuaries Program (May 1997). See also Jon K. Matsuoka, et