SUMMARY: On August 7, 2007 the 9th Circuit Court of Appeals ordered Judge Susan Oki Mollway of the U.S. District Court in Honolulu to reinstate a lawsuit she previously dismissed. The 5 plaintiffs are native Hawaiians with at least 50% native blood quantum who complain that the State of Hawaii Office of Hawaiian Affairs (OHA) is improperly spending enormous amounts of money on programs for low-blood-quantum ethnic Hawaiians. Those OHA programs include lobbying for the Akaka bill, advertising for the Kau Inoa racial registry expected to be used for a membership roll for the Akaka tribe, small-business loans, etc. The plaintiffs point out that the Hawaiian Homes Commission Act of 1920 (HHCA) set aside 203,500 acres of land for Hawaiian Homelands exclusively for the benefit of native Hawaiians of 50% or higher native blood quantum. The Statehood Act of 1959, section 5(f) specified that the new State of Hawaii can use revenues from the ceded lands for any one or more of five purposes, one of which is the betterment of native Hawaiians as defined in HHCA; i.e., at least 50% native blood quantum. In 1978 a state Constitutional Convention created OHA. The Legislature subsequently provided a permanent funding source for OHA of 20% of ceded land revenues. 90% of the money OHA spends comes from current ceded land revenues, and from investment income from previously hoarded ceded land revenues (the remainder of OHA's money comes from annual appropriations of taxpayer dollars from the general fund; and plaintiffs are NOT complaining that those funds are spent to benefit low-quantum ethnic Hawaiians). Plaintiffs complain that ceded-land money should be spent for programs to benefit exclusively native Hawaiians with at least 50% blood quantum; and that the Akaka bill dilutes the moneys belonging to high-quantum native Hawaiians by creating a government that would control those assets, in which every person with a single drop of native blood has voting rights. This webpage provides the full text of the 9th Circuit Court decision, news reports and commentaries about this lawsuit, and commentary by Chief Maui Loa asserting the special rights of high-blood-quantum native Hawaiians.
On November 9, 2007 a group of 6 Hawaii citizens with no Hawaiian native blood filed a motion to intervene in this lawsuit to protect the rights of a million citizens to share in the ceded lands trust. The motion to intervene was not reported in the press until November 26. The November 26 news report is copied, followed by the full text of the November 9 motion to intervene and the accompanying opposition to State of Hawaii.
Honolulu Advertiser, Wednesday August 8, 2007
5 Hawaiians’ lawsuit against OHA back on
By Gordon Y.K. Pang
A group of five Native Hawaiians who want the Office of Hawaiian Affairs to spend most of its money on people with 50 percent Hawaiian blood or more will get another day in court.
A panel of the 9th U.S. Circuit Court of Appeals in San Francisco yesterday ordered U.S. District Judge Susan Oki Mollway to hear the case in her Honolulu court after she rejected it last year.
The five Native Hawaiians are suing OHA because they believe the agency has too many beneficiaries. They argue that most of OHA's $28 million annual budget should be spent on people with 50 percent Hawaiian blood or more.
The lawsuit was filed by Virgil Day, Mel Ho'omanawanui, Josiah Ho'ohuli, Patrick Kahawaiola'a and Samuel Kealoha, all of whom are 50 percent Hawaiian or more.
OHA officials said it would be a mistake to limit its programs to the 50 percent or more group.
"When you look at OHA's mandate ... it's a very broad mandate," said OHA administrator Clyde Namu'o. "It simply talks about bettering the conditions of Hawaiians and native Hawaiians.
"So we believe in order to satisfy our mandate, we can't simply isolate that one group and say 'Well, if we better the condition of 50 percent Hawaiians, we will have bettered the conditions of everyone else.' The reverse is actually true. If you better the condition of all Hawaiians, regardless of blood quantum, then you are in fact raising the standard of living for the 50 percent Hawaiians as well. That's our position."
Most other challenges against OHA and other Hawaiians-only programs have come from those who feel that funds should not be given to specific groups based on race. The lawsuit filed by the five men is unique in that it argues OHA has too many beneficiaries.
NO OPINION ON MERITS
The three-member panel of the 9th Circuit Court reversed Mollway's decision in August 2006 to throw out the case on the grounds that prior case law could not support it. Recent U.S. Supreme Court cases have undermined prior case law that formed the basis for the Day lawsuit, Mollway said.
In their opinion, however, the appeals panel stated, "Each Native Hawaiian plaintiff ... has an individual right to have the trust terms complied with, and therefore, can sue ... for violation of that right."
Yesterday's decision by three of the 28 members of the 9th Circuit allows the case to proceed, but does not not express an opinion on the merits of the allegations.
Walter Schoettle, attorney for the five men, said in a statement that he and his clients are elated that the court affirmed that they have a right to sue in federal court.
Schoettle blasted the state, and not OHA, for challenging the standing of his clients. "However, OHA, as trustees for the native Hawaiians, should have been defending my clients' rights to sue even though they were the ones on this particular occasion being sued."
He added that "none of the other so-called native Hawaiian advocacy agencies came to the defense of the native Hawaiian beneficiary in this case. It was my clients standing alone who have prevailed in preserving this precious right."
The five men charged that OHA "expended trust funds without regard to the blood quantum contained in the definition of native Hawaiians" as spelled out in the Hawaiian Homes Commission Act of 1920.
OHA WILL FIGHT
OHA officials, however, have said their mandate is different and that they are bound not by the blood quantum requirements found in the homestead act but rather the Hawai'i Admission Act of 1959.
OHA, in a statement yesterday, said that while the appeals court reaffirmed the right of native Hawaiians to sue, it will continue to defend against the claims brought by the group.
"OHA continues to believe that there is no merit in the plaintiff's position," OHA Board Chairwoman Haunani Apoliona said. "We believe we will ultimately prevail based on the merits of this case."
State Attorney General Mark Bennett said the appeals court is wrong in believing that individuals can sue over alleged violations of the land trust law.
"At this point, we're going to look at whether or not we have the ability to seek to intervene and, on appeal, file for a suggestion for a rehearing en banc," Bennett said. "I don't know if we're able to do that."
An en banc hearing would require a larger percentage of the 9th Circuit appeals court judges to make a decision on whether to accept the decision of its three-member panel that the case should be reinstated.
The thrust of the lawsuit is the charge that the trustees have spent trust funds lobbying Congress for passage of the Akaka bill, which seeks to create a government entity that would represent all with Hawaiian blood regardless of their quantum.
Additionally, the lawsuit alleges trustees have "expended trust funds for all-expense-paid vacations and political junkets for themselves and their staff in the guise of lobbying for passage of the Akaka bill."
OHA trustees have previously stated that they have spent at least $1 million lobbying for the Akaka bill.
The lawsuit also challenged OHA's funding of the nonprofit Native Hawaiian Legal Corp. and Na Pua No'eau Education Program, saying it goes beyond what is allowed in the Hawaiian Homes Commission Act, language that was later incorporated into the state Constitution.
Under the Hawaiian Homes Commission Act, money generated by the so-called ceded lands — former Hawaiian crown and government lands — is supposed to benefit those with 50 percent blood quantum.
Currently, about 10 percent of OHA's $28.5 million in funding comes from state taxes, with the rest from ceded lands.
OHA administrator Namu'o said that there are currently no programs designed to benefit 50 percent Hawaiians specifically. In the past, the agency had a homesteader loan program that benefited homesteaders, who need to be at least 50 percent Hawaiian.
The Department of Hawaiian Home Lands and the homestead act are targeted for 50 percent Hawaiians, he said,
"Our money is not the Hawaiian Homes Commission money," Namu'o said. "The authority for our money comes from the Admission Act that established the public land trust. Obviously the money that (DHHL) gets is specifically for 50 percent Hawaiians. We don't believe that that's true with ceded lands revenue that come off the public land trust."
Honolulu Star-Bulletin, August 11, 2007, EDITORIAL
Lawsuit by Hawaiians poses serious threat to OHA
A federal appeals panel has ruled that legal Hawaiian beneficiaries of a trust managed by the Office of Hawaiian Affairs have a right to sue OHA for breach of trust.
SIX months after staving off a lawsuit by non-Hawaiians, the Office of Hawaiian Affairs faces a serious challenge by those with 50 percent or more Hawaiian blood. Federal legislation separate from Sen. Daniel Akaka's sovereignty bill might be needed to keep Hawaiian programs intact.
A three-judge panel of the 9th U.S. Court of Appeals this week reinstated a lawsuit by Hawaiians asserting that OHA should not be lobbying for the Akaka Bill or assisting Hawaiians with less than 50 percent Hawaiian blood. District Judge Susan Oki Mollway had ruled a year ago that the lawsuit was not permitted under federal law.
The appeals court ruled two years ago that non-Hawaiian taxpayers had no right to challenge OHA's expenditure of federal funding or revenue from crown or public lands ceded to the state in accordance with the Admission Act and the state Constitution. That lawsuit's challenge of state money going to OHA was rejected after the U.S. Supreme Court ruled in an Ohio case last year that taxpayers cannot challenge state expenditures in court.
The Admission Act set aside 1.8 million acres of land to be held by the state as a "public trust" in support of five areas of concern, one of which is "the betterment of the conditions of native Hawaiians," as defined in the 1920 Hawaiian Homes Commission Act. That law defined native Hawaiians as descendants "of not less than one-half part of the blood of races inhabiting the Hawaiian islands previous to 1778," when Capt. James Cook first came ashore.
Legislators have interpreted that to mean that 20 percent of the state revenue from those lands should go to OHA, which now receives more than $15 million a year from the state in ceded land revenue. Its annual operating budget is $28.5 million.
The lawsuit brought by Hawaiians with at least 50 percent Hawaiian blood contended that OHA has misspent the revenue to lobby in favor of the Akaka Bill and support three social programs -- the Native Hawaiian Legal Corp., the Na Pua No'eau Education Program and Alu Like Inc., a social services program, helping Hawaiians regardless of blood quantum.
The appeals panel ruled that a Hawaiian beneficiary of the trust "has an individual right to have the trust terms complied with, and therefore can sue ... for violation of that right." It ruled that Mollway misunderstood from a ruling in another case "that there was no private right of action under the Admission Act."
The panel sent the case back to Mollway to determine whether benefits are being spread among Hawaiians who don't qualify because they are less than half-Hawaiian. If so and the panel's ruling stands, OHA may have to turn to legislation amending the Admission Act in order to continue its good work.
Ka Wai Ola O OHA [OHA monthly newspaper], September, 2007
Appeals panel revives blood quantum suit against OHA
By KWO staff
A federal appeals court
has reinstated a lawsuit brought by five
native Hawaiians seeking to prohibit spending by the Office of
Hawaiian Affairs on programs that
benefit Hawaiians of less than 50
percent blood quantum.
On August 7, a three-judge
panel of the U.S. 9th Circuit
Court of Appeals reversed
U.S. District Judge Susan Oki
Mollway’s earlier dismissal of the
lawsuit filed by Virgil E. Day,
Mel Ho‘omanawanui, Josiah L.
Ho‘ohuli, Patrick L. Kahawaiola‘a
and former Office of Hawaiian
Affairs Trustee Samuel L.
Kealoha, all of whom are 50 percent Hawaiian or more.
The plaintiffs claim that OHA’s
trustees violated their rights as
beneficiaries of the state’s ceded
lands trust by using revenues to
benefit Hawaiians with less than
a 50 percent blood quantum, and
their suit seeks restoration of all
the allegedly misspent funds to
the trust. The lawsuit also challenges OHA’s expenditure of trust
money on supporting the Akaka
Bill, claiming that the bill, without a blood quantum requirement,
would “erode the rights and privileges of the beneficiaries” of the
ceded lands trust.
Furthermore, the plaintiffs
claim that OHA should not be
trust funds by investing them,
because investment does not better the conditions of the 50 percent
A year ago, Mollway dismissed
their case, saying that the federal
Admission Act that made Hawai‘i
a state – and which lays out the
intended uses of the ceded lands
trust – contains no clear intent
that allows individuals to sue
over alleged violations of the land
trust law, and that recent Supreme
Court rulings had conflicted with
previous case law allowing such
The appeals court panel disagreed, however, writing that “we
cannot agree that there is a conflict sufficient to disregard well-
established precedent .... We thus
reaffirm what we have already
held and reaffirmed: that each
Native Hawaiian plaintiff, as a
beneficiary of the trust ... has an
individual right to have the trust
terms complied with, and therefore can sue ... for violation of
Attorney Walter Schoettle, who
represents the five plaintiffs in the
case and has been involved in a
number of previous blood-quantum-related suits against OHA,
said in a statement that his clients
were elated by the appeals court’s
While affirming the plaintiffs’
right to sue, the appeals panel did
not take any position on the merit
of their blood-quantum claim.
“OHA continues to believe that
there is no merit in the plaintiffs’
position,” OHA Board of Trustees
Chairperson Haunani Apoliona
said. “We believe we will ultimately prevail based on the merits
of this case.”
State Attorney General Mark
Bennett, who had filed the friend-of-the-court brief that resulted in
Mollway’s earlier dismissal of
the suit, said he was looking into
whether it would be possible to
file a further appeal of the 9th
Circuit panel’s ruling. If the case
is not further appealed, it will be
remanded to the federal District
Court in Honolulu for further
Blood quantum has long
been a divisive issue within the
Hawaiian community. While
OHA does receive the bulk of
its funds from ceded lands revenue, the agency is mandated to
benefit all Hawaiians.
In 1988 and 1990, OHA
tried to gauge its beneficiaries’ views on the issue by putting two separate referenda
before Hawaiian voters. More
than 80 percent of those who
voted said they supported a
single definition of Native
Hawaiian – one that includes
all Hawaiians, regardless of
Ka Wai Ola O OHA [OHA monthly newspaper], September, 2007
page 18 of the physical newspaper; page 17 of the pdf version
Divide and conquer
‘Ano‘ai käkou. Honolulu attorney Walter Schoettle must like
beating a dead horse. The Day v. Apoliona lawsuit against OHA is just
another chapter in his long legal battle with
OHA over the Hawaiian blood quantum
percentage of beneficiaries. This war in the
courts goes back 20 years. For example:
Price v. Akaka (1993); Price v. Hawai‘i
(1991); Price v. Akaka (1991); Price v.
Hawai‘i (1990); and Price v. Hawai‘i
(1985). (Source: http://lp.findlaw.com/).
When I was first elected to OHA 17 years
ago, Walter Schoettle was the attorney for
The Hou Hawaiians (Nui Loa Price and
Kamuela Price). They sued several federal
and state officials, including OHA trustees.
The district court denied the Hou’s motion
for summary judgment and dismissed their
complaint against all defendants. But that
didn’t stop Schoettle.
Now Schoettle has a new strategy
with Virgil Day, Mel Ho‘omanawanui,
Josiah Ho‘ohuli, Patrick Kahawaiola‘a
and Samuel Kealoha (all of whom are
50 percent Hawaiian or more), to revisit blood quantum again. Their lawsuit
argues that OHA’s $28 million annual
budget should go to those with at least 50
percent Hawaiian blood. In essence, they
don’t want to “share the wealth.”
Let us not forget that blood quantum was
never an issue with the Hawaiian Kingdom.
It was the United States Congress who created the blood quantum percentage in the 1920
Hawaiian Homes Act. It was created to limit
the number of Hawaiians who qualified for
homelands, not to preserve our race. It is sad
that even after 100 years, some Hawaiians
don’t recognize when they are being used.
They also challenge OHA’s right to
partially fund the Native Hawaiian Legal
Corporation (NHLC), which provides
Hawaiian families with affordable legal
representation. Thousands of people who
might not otherwise have been able to
obtain legal advocacy have held on to valuable lands or received fair compensation for their lands. NHLC also helped others to
obtain Hawaiian Homestead leases, water
for taro farming and access to shoreline
areas for fishing. NHLC is the only nonprofit, public interest law firm specializing in Hawaiian land and traditional rights.
Other groups that are threatened by
the lawsuit include Alu Like, a nonprofit
that funds kupuna programs and assists
Hawaiians with job training, and Nä Pua
No‘eau, a Hawaiian language and culture
program established at the University of
Hawai‘i at Hilo. It is important to point out
that all of these programs are also funded
through matching funds by the Legislature.
The lawsuit also objects to OHA’s use
of trust funds to lobby the Akaka Bill in
Congress. They seem to miss the point that
without the Akaka Bill, we may lose all of our
Hawaiian trusts and programs to lawsuits.
Walter Schoettle may be misleading his
clients by telling them that unless they stop
OHA, they will have to share their benefits,
if the Akaka bill passes, with those with
less than 50 percent Hawaiian blood. I say,
“What benefits?” The only thing people
with 50 percent or more Hawaiian blood are
entitled to now are Hawaiian Home Lands.
On the other hand, all 1.4 million acres of
ceded lands belong to all Hawaiians, regardless of their blood quantum. The Native Hawaiian Trust Fund is much bigger than the
acreage under the control of the Department
of Hawaiian Home Lands (DHHL). There is
no need to be selfish. Their self-serving attitude will only end up dividing Hawaiians.
Another reason that some homesteaders listed in the lawsuit probably don’t
want the Akaka Bill to pass is that they
only want sovereignty on DHHL lands.
How small-minded can these people be?
Do they honestly believe that hundreds of
thousands of Native Hawaiians are going
to go along with such a terrible idea?
We all need to realize that if we fight
over the entitlements we receive then we
all end up losers. The only ones who end
up winning are the Twigg-Smiths of the
world. Virgil Day and the other 50 percent
Hawaiians need to wake up and realize that
they are only being used to divide us. Who
wins if the Schoettles and the Burgesses
succeed? Certainly not the Hawaiians.
“I appeal to you... that there be no
division among you, but that you be
united in the same mind and the same
purpose.” I Corinthians 1:10
For more information on important
Hawaiian issues, check out my website at
Full text of actual court decision
The actual decision of the 9th Circuit Court in Day vs. Apoliona, published August 7, 2007, is available in pdf format directly from the 9th Circuit Court's website. Here's the decision (it makes interesting reading).
How this lawsuit is related to the Akaka bill
There are at least three basic and conflicting positions in opposition to the Hawaiian Government Reorganization bill (Akaka bill).
(1) The mainstream opposition, which has been most successful in preventing the bill from being passed for seven years, is the "Aloha For All" argument that it would be historically, legally, and morally wrong to create a racial separatist government for ethnic Hawaiians. Hawai'i should remain unified under a single sovereignty with equality for all persons regardless of race.
(2) A secessionist viewpoint is taken by supporters of re-establishing Hawai'i as an independent nation. Most supporters of this position are ethnic Hawaiians; and all supporters of this position believe that ethnic Hawaiians are entitled to racial supremacy in voting rights and property rights in a restored nation of Hawai'i under a theory of "indigenous rights." They believe Hawai'i is under a long-standing illegal military occupation by the United States.
(3) A third position is taken by some of the ethnic Hawaiians who have at least 50% native blood quantum. They point to laws enacted by both the federal government and the State of Hawai'i that already give special rights to "native Hawaiians of the blood." They say it is historically, legally, and morally wrong for the special rights established for native Hawaiians of the blood to be broadened (and diluted) to include the far larger number of "one drop" or "toenail" Hawaiians.
An open letter to President Bush by Chief Maui Loa is in this third category. Maui Loa is NOT one of the plaintiffs in the lawsuit revived by the 9th Circuit Court of Appeals. But his views are easily accessible and are essentially the same as those of the actual plaintiffs.
Chief Maui Loa's published views similar to plaintiffs
There are various groups of ethnic Hawaiians who have a native blood quantum of at least 50%. The "Hou Hawaiians" under Chief Maui Loa is one of those groups. They claim that the Hawaiian Homes Commission Act of 1921 already constitutes federal recognition of their special rights as comparable to an Indian tribe. That law set aside 203,500 acres of the "ceded lands" exclusively for ethnic Hawaiians of at least 50% blood quantum for long-term residential and agricultural leases. The Admissions Act (Statehood act) of 1959 included a provision in section 5(f) that revenues from the ceded lands can be used for any one or more of five purposes, with one of those purposes being "for the betterment of native Hawaiians" as defined in HHCA. The state Constitutional Convention of 1978 established the Office of Hawaiian Affairs, and legislation two years later specified that 20% of all ceded land revenues must be diverted to OHA for the benefit of native Hawaiians as defined in HHCA (i.e., 50% blood quantum). But the Hawaiian Homelands have always had a very long waiting list, with nowhere near enough resources to "put Hawaiians back on the land." Although nearly all of OHA's $400 Million is earmarked by law for the 50% Hawaiians of the blood, OHA has lost sight of that blood quantum restriction and focuses most of its attention on the larger group of one-drop Hawaiians (which, of course, includes the 50%ers).
Maui Loa's open letter to President Bush strongly opposes the Akaka bill on the grounds that it would be a theft of the lands and special rights of "native Hawaiians of the blood" by opening up those lands and resources to the larger group of "one-drop" or "toenail" Hawaiians. The full text of the letter is at
Essentially the same content was published in the nationally-circulated journal "Indian Country Today" on April 26, 2005, under the title "An Open Letter to the White House: native Hawaiian sovereignty" at:
The basic concepts in this document were published as a paid advertisement in the form of a two-page spread in the Honolulu Star-Bulletin (print edition) on April 26, 2005. A photo image of that ad can be seen at:
NEWS REPORTS ABOUT MOTION TO INTERVENE, AND FULL TEXT OF COURT FILINGS.
Honolulu Advertiser, Monday, November 26, 2007
Six non-Hawaiians intervene in OHA suit
By Gordon Y.K. Pang
Advertiser Staff Writer
A group of non-Hawaiians want their say in a court case against the Office of Hawaiian Affairs that asks the state agency to spend its money helping only those with 50 percent or more Native Hawaiian blood.
The irony is that the six Hawai'i residents, led by former Advertiser publisher Thurston Twigg-Smith, are on the opposite side of those bringing the lawsuit. Twigg-Smith and his associates want OHA dismantled because they feel it discriminates against non-Hawaiians such as themselves.
The case is Day v. Apoliona, which was filed in 2005 by Virgil Day, Mel Ho'omanawanui, Josiah Ho'ohuli, Patrick Kahawaiola'a and Samuel Kealoha, all of whom are at least 50 percent Hawaiian.
The suit argues that OHA has too many beneficiaries and that most of the agency's $28 million annual budget should be spent on people with at least 50 percent Hawaiian blood.
OHA officials say they have a mandate to help all Hawaiians.
In August, a panel of the 9th U.S. Circuit Court of Appeals in San Francisco ordered U.S. District Judge Susan Oki Mollway to hear the case in her Honolulu court. Mollway had rejected the case last year.
The state attorney general's office filed a petition asking that a larger group of appeals court judges rehear the decision made by the three-member panel. Twigg-Smith's group opposes that request and wants Mollway to hear the case as ordered by the three-member panel.
Recently, attorney H. William Burgess requested intervenor status to counter the attorney general's request on behalf of Twigg-Smith and five others, all of whom had been involved in court cases seeking to dismantle Hawaiians-only programs.
The other five are James Kuroiwa, Patricia A. Carroll, Toby Kravet, Garry P. Smith and Earl F. Arakaki.
"As beneficiaries of Hawai'i's Ceded Land Trust ... they are among the equitable owners of the trust corpus which is the source of the money at issue in this case, i.e., the millions of dollars in ceded-land revenues the Office of Hawaiian Affairs has spent and continues to spend to lobby for the Akaka bill," Burgess wrote in his motion.
The Akaka bill could lead to federal recognition of a Native Hawaiian entity. The bill's supporters say it is necessary to stave off challenges by Burgess and others against programs and agencies that serve only Hawaiians or primarily Hawaiians.
The state attorney general's office is opposing Burgess' petition for intervention.
OHA Administrator Clyde Namu'o said he believes agency attorneys will also oppose Burgess' request. "I don't see them having any business in this lawsuit at all," Namu'o said.
Walter Schoettle, attorney for the five Hawaiians who brought the original lawsuit, did not return calls requesting comment.
"As beneficiaries of Hawai'i's Ceded Land Trust ... they are among the equitable owners of the trust corpus which is the source of the money at issue in this case, i.e., the millions of dollars in ceded-land revenues the Office of Hawaiian Affairs has spent and continues to spend to lobby for the Akaka bill." -- H. William Burgess | attorney
KHNL TV 8, Honolulu, November 26, 2007
Six non-Hawaiians seek say in suit against OHA
HONOLULU (AP) - Six non-Hawaiians are asking the courts to dismantle the Office of Hawaiian affairs.
[** Note from Ken Conklin -- that characterization of this motion to intervene is totally false. Associated Press and KHNL TV clearly did not read the movants' documents, available below.**]
The group led by former Honolulu Advertiser publisher Thurston Twig-Smith are asking to intervene in a suit brought by some Native Hawaiians against OHA.
The Hawaiians are suing the state agency to spend more money helping people with more than 50% Native Hawaiian blood.
The non-Hawaiian group is on the opposite side. They say the agency discriminates against other racial and ethnic groups in the islands.
The federal appeals court has ordered U.S. District Judge Susan Mollway to hear the case in Honolulu. Mollway had thrown out the case last year.
Information from: The Honolulu Advertiser, http://www.honoluluadvertiser.com
The Molokai Times, December 3, 2007
Native Hawaiians benefit from Ceded Land Trust
by Samuel L. Kealoha, Jr.
The people of Hawaii are the beneficiaries of Hawaii’s Ceded Land Trust, but there are only one people who for the past 87 years are identified as ‘native Hawaiian’ as amended…
This long standing was reconfirmed in 1978, Hawaii Revised Statute 103: (the purpose of the Office of Hawaiian Affairs), “OHA trust funds must be used to benefit those native Hawaiians whose blood quantum is 50 percent or greater as defined by the Hawaiian Homes Commission Act of 1920.”
But after over 30 years it took Rice v Cayetano to reveal the sham behind the state creation of OHA.
Thus our dysfunctional nicompoops in Washington, D.C. and the idiot claiming to be ‘Commander in Chief’ are opposed to the Akaka bill for all the wrong reasons.
I stand with native Hawaiian leaders in the likes of Josihia Ho’ohuli , Mel Ho’omanawanui, Patrick Ka’hawaiola’a and Virgil Day. We are tired of our kupuna, being denied and ignored by this crooked system, while being shuffled from sham to sham, despite the fact that there are many in the community who have given up the fight and joined the unholy alliance of the ‘ala mihi’ American, who whine that Day v Apoliona is a frivolous lawsuit.
We greatly appreciate and are forever thankful for Walter R. Schoettle in counseling us against million-dollar law firm ‘water boys’ representing OHA, while being paid from the account that belongs to ‘native Hawaiians.’
Samuel L. Kealoha, Jr.
Former OHA trustee
Plaintiff, Day v. Apoliona
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
|VIRGIL E. DAY; MEL HOOMANAWANUI; JOSIAH L. HOOHULI; PATRICK L. KAHAWAIOLAA; AND SAMUEL L. KEALOHA,
HAUNANI APOLIONA, individually and in her official capacity as Chairperson and Trustee of the Office of Hawaiian Affairs; ROWENA AKANA; DANTE CARPENTER; DONALD CATALUNA; LINDA KEAWE EHU DELA CRUZ; COLLETTE Y. PIIPII MACHADO; BOYD P. MOSSMAN; OSWALD STENDER; and JOHN D. WAIHEE IV, individually and in their official capacities as Trustees of the Office of Hawaiian Affairs; and CLAYTON HEE and CHARLES OTA, individually,
|APP. NO. 06-16625
CIVIL NO. 05-00649 SOM BMK
Six Non-Hawaiians’ motion to Intervene
PROOF OF FILING AND SERVICE
H. WILLIAM BURGESS
2299C Round Top Drive
Honolulu, Hawaii 96822
Telephone: (808) 947-3234
Fax: (808) 947-5822
Attorney for Putative Intervenors
Six Non-Hawaiians’ motion to Intervene
James Kuroiwa, Patricia A. Carroll, Toby Kravet, Garry P. Smith, Earl F. Arakaki and Thurston Twigg-Smith (collectively “Six Non-Hawaiians”), on their own behalf and on behalf of the over one million Hawaii citizens similarly situated, pursuant to FRAP 27 move to intervene as Plaintiffs under Fed.R.Civ.Proc. Rule 24(a) or (b).
These Six Non-Hawaiians are individual citizens of the United States and the State of Hawaii. Included among them are persons of Japanese, English, Portuguese, Irish, Scottish, Polish, Jewish, Okinawan, Dutch, French and other ancestries; but none of them have an ancestor who inhabited the Hawaiian Islands previous to 1778. They are all registered voters and long-time residents of Hawaii. The ancestors of three of them have lived in Hawaii for generations. As beneficiaries of Hawaii’s Ceded Lands Trust, also known as the “Public Land Trust” and as the “§5(f) Trust”, they are among the equitable owners of the trust fund which is the source of the money at issue in this suit, i.e., the millions of dollars of ceded lands revenues1 the Office of Hawaiian Affairs (“OHA”) has spent and continues to spend for the Akaka bill.2
Although these non-Hawaiians do not support creation of a separate government of any shape or form for Native Hawaiians, they do wish to vote in any election in Hawaii in which important public issues are being considered or public officials are being elected. This is their right under the Fifteenth Amendment. Terry v. Adams, 345 U.S. 461, 468-469 (1953) “Clearly the [Fifteenth] Amendment includes any election in which public issues are decided or public officials selected.” To secure that right, each of these Six Non-Hawaiians has applied to register with OHA’s Kau Inoa, the registry of persons eligible to participate in the elections to create the new government contemplated by the Akaka bill3 and by “Plan B”, OHA’s alternate track at the state level “TO BUILD A NATION.”
These Six Non-Hawaiians have sought but not received from OHA assurance that they will be permitted to vote in such elections; and the Akaka bill and Kau Inoa literature specify that only Native Hawaiians will be eligible. (See Exhibit 3 to declaration attached to the Response by these Six Non-Hawaiians filed or lodged concurrently with this motion.)
The crisis now facing these Six Non-Hawaiians
The State of Hawaii has just (10/11/07) been given the unusual right to intervene, after this Court’s panel decision on appeal, to seek relief not sought until then by any party to this case. The State is now a party driving for final adjudication of this case en banc, and vows to seek certiorari if necessary, to permanently close the door of the Federal courts to beneficiaries of Hawaii’s Ceded Lands Trust. These Six no longer have the luxury of expecting a prompt remand where they can move to intervene and for preliminary relief in the trial court to stop the flow of money, mostly their money and that of others similarly situated, into the pockets of lobbyists. The House of Representatives passed the Akaka bill on October 24, 2007 by a wide margin. OHA is surely ratcheting up its lobbying. Time is running out. If the bill should become law, judicial relief will be slower and harder and even if ultimately successful, it may never be possible to put the Aloha state back together. It is almost now or never.
The criteria for intervention.
Rule 24 sets five criteria for intervention of right: A claimed interest in the property or transaction at issue; The possibility that disposition will impair or impede protection of that interest; Is the applicant’s interest adequately represented by the existing parties? Is the application timely? and, especially with respect to permissive intervention, whether it would unduly delay or prejudice adjudication of the rights of the original parties. The following discussion will show these criteria, at this stage in this case, fit these Six Non-Hawaiians perfectly.
Do these Six claim an interest in the property or transaction at issue?
Indeed they do. It is these Six Non-Hawaiians, and the million other Hawaii citizens similarly situated, who are most affected by the misapplication of the Ceded Lands Trust revenues at issue in this case; and it is they, not the present Plaintiffs, who are threatened with disenfranchisement by the Akaka bill.
As a practical matter may disposition impair or impede
their ability to protect that interest?
Yes. If the Court, either the panel or en banc, reconsiders the panel decision, the door to the Federal court may never be reopened to the beneficiaries of Hawaii’s Ceded Lands Trust. Likewise, if the Supreme Court should grant certiorari. Even if, on reconsideration, the panel’s decision is affirmed, delay would have given OHA more time to distribute public moneys, mostly money equitably owned by other people, to purchase political power. Hawaii’s melting pot is already simmering. If the bill becomes law, bad forces will be unleashed.
Is the applicant’s interest adequately represented by the existing parties?
Sadly, the answer is no. The State, as Trustee of the Ceded Lands trust, has a fiduciary duty to use the trust corpus and income for all the beneficiaries, not just for those of the favored ancestry. The panel decision, Day v. Apoliona, 496 F.3d 1027, 1034 (9th Cir. 2007) footnote 9 quotes Justice Breyer’s concurring opinion in Rice v. Cayetano that the lands ceded in the Admission Act are to benefit “all the people of Hawaii” not just native Hawaiians. Yet, since February 23, 2000 when the Rice decision was handed down, the State has distributed hundreds of millions of trust revenues exclusively to or for the “betterment of native Hawaiian” beneficiaries, but none of the trust revenues exclusively for the betterment of these Six Non-Hawaiians or any of the other trust beneficiaries of less than 50% or no Hawaiian ancestry. It has made and continues such biased distributions without court authorization and has consistently resisted efforts to obtain court guidance. See these Six Non-Hawaiians’ Response filed concurrently Opposing State of Hawaii’s Petition for Rehearing, pages 6 and 7 calculating the billions of dollars by which the State, as Trustee, has shortchanged the beneficiaries who lack the 50% or more of the favored ancestry.
Under the Uniform Trust Powers Act, HRS §554A-5, if the duty of the trustee and the trustee’s individual interest or the trustee’s interest as trustee of another trust, conflict in the exercise of a trust power, the power may be exercised only by court authorization. The State’s interest in being treated as owner of the ceded lands and the power and prestige that entails, conflicts with its fiduciary duty as Trustee. Its interest as Trustee for native Hawaiian beneficiaries conflicts with its duties as Trustee for Hawaii citizens of other ancestries. Yet it continues to avoid rather than seek instructions from the courts.
In Kapiolani Park Preservation Society v. City & County, 69 Haw. 569, 572 (1988), the Hawaii Supreme Court held that, where a governmental agency is the trustee of a charitable trust and
will not seek instructions of the court as to its duties, even though there is a genuine controversy as to its power to enter into a particular transaction and where the attorney general as parens patriae has actively joined in supporting the alleged breach of trust, the citizens of this State would be left without protection, or a remedy, unless we hold, as we do, that members of the public, as beneficiaries of the trust, have standing to bring the matter to the attention of the court.
The Hawaii Supreme Court later cited that ruling with approval in Pele Defense Fund v. Paty, 73 Haw. 578, 594, 837 P.2d 1247 (1992), a suit to enforce the State's compliance with the 5(f) trust provisions. In the decision by Justice Klein, he said, “Additionally, unless members of the public and native Hawaiians, as beneficiaries of the trust, have standing, the State would be free to dispose of the trust res without the citizens of the State having any recourse.’ It is understandable and commendable that Mr. Klein now as counsel for OHA, would decline to join in the State’s attempt to bar “members of the public and native Hawaiians” permanently from the Federal courts. The Attorney General, however, actively joins in and supports the alleged breach of trust and proudly declares that he has frequently testified in favor of the Akaka bill. These Six Non-Hawaiians can clearly expect no help from any existing parties.
Is the application for intervention timely?
Unlike the State, which was actively involved in this case from the beginning, these Six Non-Hawaiians have had no active role of any kind in this case. The State Attorney General’s office has represented the two former OHA trustees who were named parties. The State filed Amicus briefs even at the trial level and it was the State’s theory that carried the day in the trial court. Intervention by these Six as beneficiaries of the Ceded Lands Trust (sometimes referred to as the Public Land Trust and the “§ 5(f) Trust”) would have been out of the question for at least five of these six, because they were plaintiffs in Arakaki v. Lingle pursuing their own claims against State officials as Ceded Lands Trust beneficiaries and as state taxpayers. The last Court appearance in Arakaki v. Lingle was on April 16, 2007. Plaintiffs’ April 30, 2007 motion to amend the complaint to add a count as municipal stockholders and to continue to pursue the trust beneficiary claims, was denied without a hearing on May 1, 2007. A copy of the Hawaii District Court’s Order Denying Plaintiffs’ Motion For Leave to Amend Complaint, is attached as Exhibit A to this motion. The order provides in its last paragraph that,
This order does not foreclose Plaintiffs from filing a new case under a different civil number. Of course, any such case will be randomly assigned to a judge in this district. The court understands that Plaintiffs may seek to appeal the denial of their motion to amend their Complaint. Although Plaintiffs have a right to file such an appeal, Plaintiffs should consider whether they can receive a quicker determination of the merits of their proposed claims by filing a new case.
In this case, there was no reason for these Six Non-Hawaiians to even consider intervention at the appellate level since that is rare and rehearing is generally not successful. It was not until October 11, 2007, just 29 days ago, that the State of Hawaii was allowed to intervene. Embarking on a new civil rights lawsuit is no small undertaking.
Will intervention unduly delay or prejudice adjudication
of the rights of original parties?
These Six Non-Hawaiians believe their intervention will not cause any delay. The original Plaintiffs’ response to the State’s Petition for rehearing is due to be filed by mailing today. These Six, as Putative Intervenors, are mailing their response for expedited delivery today as well. As to undue prejudice, the presence of parties representing 80% of the beneficiaries of the Ceded Lands Trust, is essential to any lasting resolution of the Ceded Lands Trust issues. As the panel decision noted, the long line of cases brought by native Hawaiians has shed little light on the merits of § 5(f) claims. These Six believe that the about 200,000 acres of Hawaiian Homelands can be the key to a global settlement of all the Hawaiian issues; and a major part of that solution would be for the State to transfer the fee simple interest in their lots to the existing homesteaders at no or a discounted cost. The key to that is a court decision that firmly establishes constitutional reality in the Aloha state.
These Six Non-Hawaiians should be allowed to intervene.
DATED: Honolulu, Hawaii November 9, 2007.
H. William Burgess
Attorney for Putative Intervenors
PROOF OF FILING AND SERVICE
1. FILING: I hereby certify that the foregoing document was duly filed in accordance with Fed. R. App. 25(a) (2) (B) (ii) by dispatching the original and 6 copies to a third-party commercial carrier, Federal Express or other overnight delivery service or Express mail, addressed to the Clerk, United States Court of appeals, 95 Seventh Street, San Francisco, California 94103-1526 on November 9, 2007.
2. SERVICE: I hereby certify that two true and correct copies of the foregoing document were served upon the following parties via U.S. Mail postage prepaid on November 9, 2007:
WALTER R. SCHOETTLE, ESQ.
P.O. Box 596
Honolulu, Hawaii 96809-0596
Attorney for Plaintiffs
ROBERT G. KLEIN, ESQ.
LISA W. CATALDO, ESQ.
McCorriston Miller Mukai
Five Waterfront Plaza, 4th Floor
500 Ala Moana Boulevard
Honolulu, Hawaii 96813
Attorneys for Defendants Current Trustees of the Office of Hawaiian Affairs
MARK J. BENNETT, ESQ.
Attorney General of Hawaii
WILLIAM J. WYNHOFF, ESQ.
Deputy Attorney General,
State of Hawaii
465 King Street, Suite 300
Honolulu, Hawaii 96813
Attorneys for Amicus Curiae and Intervenor State of Hawaii
CHARLEEN M. AINA, ESQ.
Deputy Attorney General,
State of Hawaii
425 Queen Street
Honolulu, Hawaii 96813
Attorney for Defendants Former Trustees of the Office of Hawaiian Affairs Clayton Hee and Charles Ota
DATED: Honolulu, Hawaii November 9, 2007.
H. William Burgess
Attorney for Putative Intervenors
1 See Honolulu Advertiser 11/27/07, “OHA push for Akaka bill topped $2M,” by investigative reporter Jim Dooley with spreadsheet of lobbying expenditures from 2003 to2006, Exhibit 1 to declaration attached to Putative Intervenors Six Non-Hawaiians’ Response Opposing State of Hawaii’s Motion for Rehearing.
2 S. 310/ H.R. 505, Native Hawaiian Government Reorganization Act of 2007, commonly referred to as the “Akaka bill”,is now pending in Congress. On October 22, 2007 H.R. 505 passed the House of Representatives. The full text and current status of the bill is available on the Library of Congress website which may be found by Googling “Thomas.”
3 Akaka bill, S. 310/H.R. 505 calls for:
▪ Election of an Interim Governing Council. Only Native Hawaiians are eligible to be candidates and to vote. Sec. 7(c)(2);
▪ A referendum to determine the proposed elements of the organic governing documents. Only Native Hawaiians are eligible to vote. Sec. 7(c)(2)(B)(iii)(I);
▪ A referendum to ratify the organic governing documents prepared by the Interim Governing Council. Only Native Hawaiians are eligible to vote. Sec. 7(c)(2)(B)(iii)(IV);
▪ Election of the officers of the new government by the persons specified in the organic governing documents. Sec. 7(c)(5). It seems likely that only Native Hawaiians will be eligible to vote.