Proposed brief filed with Motion to Intervene

NO. 20281

IN THE SUPREME COURT OF THE STATE OF HAWAII

(PROPOSED) INTERVENING PARTIES' OPENING BRIEF

ADDENDA 1 - 12

H. WILLIAM BURGESS #833

2299-C Round Top Drive

Honolulu, Hawaii 96822

Telephone (808) 947-3234

Facsimile (808) 947-5822

Attorney for Intervening

Parties

INTERVENING PARTIES' OPENING BRIEF

1. INTRODUCTION

Governments that award benefits or impose detriments based on race or ancestry have produced some of the darkest chapters in history: the Holocaust, slavery in America, tribal slaughter in Rwanda, the rape of Nanking, human sacrifice,slavery and oppression of commoners in ancient Hawaii and, right now in eastern Europe, ethnic cleansing. Rice v. Cayetano, ___ U.S. ___, 120 S.Ct. 1044 (Feb. 23, 2000) offers this court the way to save us from the shadow of government-sponsored racial discrimination and to make Hawaii again what President John F. Kennedy once said the rest of the world wants to become.

The persons presenting this brief are long-time residents and taxpaying citizens of the State of Hawaii and of the United States and are beneficiaries of the public land trust established in 1898 "solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." Among these intervening Hawaii citizens are persons of Caucasian (which includes Portuguese), Japanese, Filipino, Hawaiian, Korean, Chinese and Okinawan ancestry.

Although these Hawaii citizens' past, present and future tax burden has already been increased because of previous ceded lands payments to OHA (such as the $130 million general obligation bond to pay OHA, Act. 35, S.L.H 1993) and will be further increased if additional payments are awarded in this case, the laws supporting OHA's claims deny to these Hawaii citizens, solely because of their race, any part of or benefit from those payments.

This brief will show that those laws are invalid because they violate the Constitution of the United States.

2. STATEMENT OF THE CASE

Historical Background 1898 - Hawaii "cedes" public lands to U.S.

to be held in trust for Hawaii's inhabitants

for educational and other public purposes

The "ceded lands" are the approximately 1.75 million acres of public lands (formerly called "Crown lands" and "Government lands") owned by the government of Hawaii that, upon annexation in 1898, were "ceded" to and accepted by the United States with the requirement that "all revenue from or proceeds of" these lands except for such parts as may be used for civil, military or naval purposes of the U.S. or assigned for the use of local government "shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes". Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, Resolution No. 55, known as the "Newlands Resolution", approved July 7, 1898; Annexation Act, 30 Stat. 750 (1898) (reprinted in 1 Rev. L. Haw. 1955 at 13-15) Addendum 1.

The Newlands Resolution established the public land trust. Such a special trust was recognized in 1899 by the Attorney General of the United States in 22 Op. Atty. Gen. 574 (1899); State v. Zimring, 58 Haw. 106, 124 (1977); Attorney General Opinion July 17, 1995 fn. 5 to Governor Benjamin J. Cayetano from Margery S. Bronster, Attorney General, "Section 5 [of the Admission Act] essentially continues the trust which was first established by the Newlands Resolution in 1898, and continued by the Organic Act in 1900. Under the Newlands Resolution, Congress served as trustee; under the Organic Act, the Territory of Hawaii served as Trustee."

In 1898 about 30% of the inhabitants of Hawaii were of Hawaiian ancestry and the remaining 70% were of other ancestry. Source: Robert C. Schmitt. Demographic Statistics of Hawaii: 1778-1965. (Honolulu, 1968). See Native Hawaiian Data Book: Tables 1.1 and 1.d.

In 1900 the Organic Act, 31 Stat. 141 (1900), §73(e) reiterated that "All funds arising from the sale or lease or other disposal of public land shall be appropriated by the laws of the government of the Territory of Hawaii and applied to such uses and purposes for the benefit of the inhabitants of the Territory of Hawaii as are consistent with the Joint Resolution of Annexation approved July 7, 1898." (Emphasis added.)

Nothing in the Newlands Resolution or in the Organic Act gave persons of Hawaiian ancestry or any other racial group any special interest in the ceded lands or any special right to the income or proceeds beyond that which was given to all other inhabitants of Hawaii as beneficiaries of the public land trust.

Historically, the Hawaiian people, as a group,

never owned any part of or had any right to

the income from or proceeds of the ceded lands

Prior to the Great Mahele of 1848 and the subsequent distribution of kuleana lands, all land in Hawaii was vested in the king, with the chiefs, subchiefs, and commoners occupying and using the land only at the (sometimes fickle) pleasure of the alii nui. Hitch, Islands in Transition, 1992, page 54. For the ruling-cum-owning chief, the land together with the people attached to it were the spoils of conquest and means of grandeur. Kirch & Sahlins, Anahulu, Vol 1 page 31.

From the time of the Great Mahele (which started in 1848 and continued until about 1854 when the Board of Land Commissioners completed its work), the lands , later referred to as the ceded lands, were the lands of the King (the "Crown lands") and government (the "Government lands"). The chiefs and common people had no right to control those lands except as citizens of the Kingdom acting through the structures of government, that is, the ballot box and the political process. See Patrick W. Hanifin, Hawaiian Reparations: Nothing Lost, Nothing Owed, 17 Hawaii Bar Journal 107 (1982)

Under the constitutional Monarchy, the King conducted his government for the common good and not for the private interest of any one man, family or class of men among his subjects. (Constitution of 1852, Article 14.) Every adult male subject "whether native or naturalized" was entitled to vote. (Id., Article 78.) Both naturalized foreigners and foreigners who were issued letters patent of denization were "entitled to all the rights, privileges and immunities of an Hawaiian subject." (Civil Code of 1858 §§ 432 and 433.) Once citizenship was extended to persons not of Hawaiian ancestry, it could no longer be said, in any sense, that persons of Hawaiian descent, by virtue of that descent alone, had any rights to the lands of the King or the government. Such rights as existed in the citizens of the Kingdom to control these lands were attributes of citizenship, not race.

1921 - The beginning of government-sponsored

preferences for those of Hawaiian ancestry

Special preferences for persons of Hawaiian ancestry started in 1921 with the Hawaiian Homes Commission Act, 42 Stat. 108 (1921) ("HHCA") under which Congress set aside about 200,000 acres of the ceded lands and provided for long term leases of homestead lots (at one dollar per year) to "native Hawaiian" persons, defined in §201(7) as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778."

1959 - Statehood - U.S. returns ceded lands to Hawaii,

but requires State to add preference for "native Hawaiians"

as one of the purposes of the public land trust

In 1959, when Hawaii became a State, the United States transferred title to the ceded lands (less those parts retained by the U.S. for national parks, military bases and other public purposes) back to Hawaii with the requirement in the Admission Act §5(f) that the new State hold them "as a public trust" for "one or more" of five purposes ("for the support of public schools and other public educational institutions", "for the betterment of the conditions of "native Hawaiians" as defined in the Hawaiian Homes Commission Act" (i.e., "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778."), "for the development of farm and home ownership", "for the making of public improvements" and "for the provision of lands for public use".)

1959 to 1978 - State channels income from ceded lands

to Department of Education

From 1959 to 1978 the practice of the State of Hawaii was to channel the income of the ceded lands by and large to the Department of Education. Final Report of the Public Land Trust, Legislative Auditor, Dec. 1985;

That use of the income from the ceded lands complied with the Admission Act because the support of the public schools was one of the five permitted purposes. It also complied with the U.S. Constitution and the Hawaii Bill of Rights because it benefitted all of the children of Hawaii who attended public schools without regard to their race or ancestry. Children of Hawaiian ancestry, who make up about 25% of the public school enrollment, shared fully in that benefit.

1978 - ConCon creates OHA to, among other things, manage "pro rata share" of ceded lands proceeds and income for native Hawaiians

In 1978 Hawaii's Constitution was amended to establish an Office of Hawaiian Affairs ("OHA"). Amended Article XII, Section 6 provides that the OHA board of trustees "shall exercise power as provided by law; to manage and administer the proceeds from the sale ... and income ... including all income and proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians." Section 4 requires that the lands returned to the State be held "as a public trust for native Hawaiians and the general public" but does not specify any pro rata portion.

1980 - Legislature sets share at 20%. Result: 20% from public land trust goes to agency for the benefit of less than 5% of public.

In 1980, the Hawaii Legislature enacted Section 10-13.5 H.R.S. "Twenty per cent of all funds derived from the public land trust, described in Section 10-3, shall be expended by the office [OHA], as defined in section 10-2, for the purposes of this chapter."

The rationale for 20% was apparently that the 1959 Admission Act had specified five permissible purposes, one of which was for the betterment of the condition of native Hawaiians, and therefore OHA should receive one fifth or 20% of the income. OHA is required to use this income solely for the betterment of "native Hawaiians" ("any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778.") who make up less than 5% of Hawaii's population.

1990 - Legislature defines "revenues", mandates

B&F and OHA to negotiate.

In 1990 the Hawaii Legislature by Act 304 defined "revenue" from which OHA is to share as "all proceeds, fees, charges, rents or other income *** derived from any ***use or activity, that is situated upon and results from the actual use of lands comprising the public land trust". (As will be noted in argument, this act has apparently been interpreted to calculate OHA's "pro rata share" on gross revenues, (rather than on "income" as provided in the Hawaii Constitution or on net income after expenses as required under trust law.)

Act 304 also mandated that OHA and the State Department of Budget and Finance ("B&F") negotiate the amounts payable to OHA for the years 1980 through 1991.

1993 - Settlement of $130 million for 1980 - 1991,

supported by B&F & OHA, approved and paid to OHA

In 1993, after extensive discussions, a proposal for payment of about $130 million, including interest, for the years 1980 through 1991, supported by both OHA and the State, was submitted to the Legislature. State officials, including the Director of the Department of Budget and Finance, testified that such amount would "settle" or constitute "paying the full amount" of OHA's claims to revenues from the ceded lands for 1980-1991. OHA did nothing to dispel this understanding but rather confirmed it. The Legislature, by Act 35, then authorized and appropriated the amount in general obligation bond funds to be paid to OHA for this purpose. (Appellant's [State's] Amended Opening Brief filed May 6, 1997)

On April 28, 1993, after Act 35 was enacted, OHA and an official from the Office of State Planning ("OSP") signed a Memorandum which stated in part "OSP and OHA recognize and agree that the amount specified in Section 1 hereof does not include several matters regarding revenues which OHA has asserted is due to OHA and which OSP has not accepted and agreed to." (4 R 91)

The official from the Office of State Planning who signed the memorandum had no apparent authority to change the terms of the settlement which had been agreed to by the Department of Budget and Finance and OHA and submitted to and acted upon by the Legislature.

In June 1993 the $130 million was paid to OHA for its share of the ceded lands revenues for 1980 through 1991.

1994 - OHA sues for more for same period, 1980 - 1991

In January 1994 OHA commenced this lawsuit, OHA v. State of Hawaii, Civ. No. 94-0205-01 in the First Circuit Court, seeking payment of additional amounts going back to 1980 arising from receipts of the Waikiki duty-free shop, public housing, the Hilo Hospital and investment earnings on unpaid "revenue".

In October 1996, Circuit Court Judge Daniel G. Heely granted OHA's motion for partial summary judgment, ruling that OHA is entitled to a 20% share of each of the items in question. The State appealed and the Hawaii Supreme Court deferred ruling while the State and OHA tried to settle.

Media accounts estimate that, if Judge Heely's decision is affirmed, between $300 million and $1.2 billion may be payable to OHA for the period 1980 through 1991 apparently in addition to the $130 million already paid to settle OHA's claims for that period. Addenda 9 and 11.

Earl Anzai, then State of Hawaii Director of Finance, signed an affidavit in OHA v. State on October 24, 1996 about the effect of Judge Heely's rulings on the State's fiscal condition. He said, among other things, questions and requests for additional information about the rulings have come from two nationally recognized securities agencies, Moody's and Standard & Poor's. In paragraph 5 of his affidavit, Mr. Anzai said,

All of this gives me reason to believe that ratings presently assigned to outstanding general obligation and revenue bonds could be reviewed and downgraded. Ratings for pending and future offerings could also be lower, and pending and future offerings may need to be sold at higher rates of interest, irrespective of market conditions.

In 1998 Moody's downgraded Hawaii's general obligation debt rating from Aa3 to A1, a rating that placed Hawaii near the bottom of Moody's state ratings nationwide. See Honolulu Advertiser, front page Sunday January 3, 1999. (Addendum 12)

State reportedly offers $251 million, seeks global settlement. OHA demands $304 million, thousands of acres, partial settlement.

In April 1999 OHA broke off settlement talks with the State. According to media reports, OHA had demanded, as a partial settlement, $304 million plus full ownership of thousands of acres of revenue-producing lands. The State had reportedly offered $251 million and sought a "global" settlement. Addenda 10 and 11.

3. STATEMENT OF POINTS

OHA and its claims are based on laws which are invalid

because they violate the Constitution of the United States

a. The Admission Act. Congress, by requiring in §5(f) of the Admission Act, as a condition of granting statehood to Hawaii, that a race-based component, "for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended," as well as § 4 of the Admission Act which required that Hawaii enter into a "compact" adopting the Hawaiian Homes Commission Act, including its definition of native Hawaiians, violated:

I. the equal protection clause of the Fifth Amendment to the U.S. Constitution;

ii. the "equal footing doctrine" which prohibits Congress from imposing, as a condition of statehood, any condition not required of other states;

iii. the "no titles of nobility" clause and the "no bills of attainder - corruption of blood" clause of the U.S. Constitution; and

iv. Congresses' fiduciary duty as trustee of the public land trust.

b. The 1978 Amendments to the Hawaii Constitution.

Article XII of the Constitution of the State of Hawaii violates:

I. the equal protection clause of the Fourteenth Amendment to the U.S. Constitution;

ii. the Fifteenth Amendment to the United States Constitution;

iii. the "no titles of nobility" clause and the "no bills of attainder - corruption of blood" clauses of the U.S. Constitution; and

iv. the State of Hawaii's fiduciary duty as successor trustee of the public land trust by requiring or permitting that the trust beneficiaries who are "native Hawaiians" be provided some benefits beyond the benefits provided to the other beneficiaries.

c. The laws implementing OHA.

Chapter 10, H.R.S. and all other provisions of the Hawaii Revised Statutes which enable, fund or support OHA or which single out native Hawaiian for special entitlements and those which adopt the Hawaiian Homes Commission Act, including its definition of native Hawaiians, violate:

I. the equal protection clause of the Fourteenth Amendment to the U.S. Constitution;

ii. the "no titles of nobility" clause and "no bills of attainder - corruption of blood" clauses of the U.S. Constitution; and

iii. the State of Hawaii's fiduciary duty as successor trustee of the public land trust by requiring that the trust beneficiaries who are "native Hawaiians" be provided benefits beyond those provided to the other beneficiaries.

d. Civil Rights

Plaintiff-Appellees under color of law of the State of Hawaii have caused intervening parties to be subjected to the deprivation of rights, privileges and immunities secured to them by the Constitution of the United States.

4. STANDARD OF REVIEW

Orders granting summary judgment are reviewed de novo, under the same standard applied by the Circuit Court." Bush v. Watson, 81 Haw. 474, 478, 918 P.2d 1130, 1134 (1996)

5. QUESTION PRESENTED

Whether the laws which created OHA and on which Plaintiffs-Appellees rely for their claims in this case are valid under the Constitution of the United States?

6. SUMMARY OF ARGUMENT

Rice v. Cayetano, supra, held that the definitions of "native Hawaiian" (50% or more Hawaiian blood) and "Hawaiian" (any degree of Hawaiian blood)in Hawaii's state law are "racial". All government-sponsored racial classifications are presumptively invalid and can be upheld only upon extraordinary justification. The OHA laws are therefore invalid unless they pass the test of strict scrutiny. To do so, the State must show they are narrowly tailored to the attainment of a compelling governmental interest. The State cannot show that (except for the laws whose constitutional validity is in question) it is in any way compelled to give preference to "native Hawaiians" in administering the public land trust. Even if some compelling State interest were found, the State could not show that the OHA laws are narrowly tailored.

Nor do native Hawaiians, as a group, have any "special" or "political" relationship, comparable to that of Indian tribes, which would exempt them from strict scrutiny analysis.

7. ARGUMENT

Rice v. Cayetano holds that definitions of "native Hawaiian"and "Hawaiian" are "racial"

The U.S. Supreme Court in referring to the definitions of "Hawaiian" and "native Hawaiian" in §10-2 H.R.S., said in Rice v. Cayetano, supra,

The very object of the statutory definition in question and of its earlier congressional counterpart in the Hawaiian Homes Commission Act is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose.

The history of the State's definition demonstrates the point. As we have noted, the statute defines "Hawaiian" as "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii." Haw. Rev. Stat. §10-2.

***

The next definition in Hawaii's compilation of statutes incorporates the new definition of "Hawaiian" and preserves the explicit tie to race:

"'Native Hawaiian' means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii." Haw. Rev. Stat. §10-2.

This provision makes it clear: "[T]he descendants . . . of [the] aboriginal peoples" means "the descendant[s] . . . of the races." Ibid.

***

The ancestral inquiry mandated by the State implicates the same grave concerns as a classification specifying a particular race by name. One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens.

All racial classifications, imposed by whatever federal, state or local governmental actor, are presumptively invalid

and subject to strict scrutiny.

In Shaw v. Reno, 509 U.S. 630, 641 (1993) the Supreme Court summarized the equal protection clause of the Fourteenth Amendment as follows:

The Equal Protection Clause provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., Amdt. 14, 1. Its central purpose is to prevent the States from purposefully discriminating between individuals on the basis of race.

Washington v. Davis, 426 U.S. 229, 239 (1976). Laws that explicitly distinguish between individuals on racial grounds fall within the core of that prohibition. No inquiry into legislative purpose is necessary when the racial classification appears on the face of the statute. See Personnel Administrator of Mass. v. Feeney, 442 U.S. 256, 272 (1979). Accord, Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 485 (1982). Express racial classifications are immediately suspect because, "[a]bsent searching judicial inquiry . . ., there is simply no way of determining what classifications are "benign" or "remedial" and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics." [509 U.S. 630, 11] Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion); id., at 520 (SCALIA, J., concurring in judgment); see also UJO, 430 U.S., at 172 (Brennan, J., concurring in part) ("[A] purportedly preferential race assignment may in fact disguise a policy that perpetuates disadvantageous treatment of the plan's supposed beneficiaries").

Classifications of citizens solely on the basis of race "are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States, 320 U.S. 81 (1943). Accord, Loving v. Virginia, 388 U.S. 1, 11 (1967). They threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility. Croson, supra, at 493 (plurality opinion); UJO, supra, at 173 (Brennan, J., concurring in part) ("[E]ven in the pursuit of remedial objectives, an explicit policy of assignment by race may serve to stimulate our society's latent race consciousness, suggesting the utility and propriety of basing decisions on a factor that ideally bear no relationship to an individual's worth or needs"). Accordingly, we have held that the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental interest. See, e.g., Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 277-278 (1986) (plurality opinion); id., at 285 (O'CONNOR, J., concurring in part and concurring in judgment).

These principles apply not only to legislation that contains explicit racial distinctions, but also to those "rare" statutes that, although race neutral, are, on their face, "unexplainable on grounds other than race." Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266 (1977).

As we explained in Feeney, "A racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification. Brown v. Board of Education, 347 U.S. 483; McLaughlin v. Florida, [509 U.S. 630, 12] 379 U.S. 184. This rule applies as well to a classification that is ostensibly neutral but is an obvious pretext for racial discrimination. Yick Wo v. Hopkins, 118 U.S. 356; Guinn v. United States, 238 U.S. 347; cf. Lane v. Wilson, 307 U.S. 268; Gomillion v. Lightfoot, 364 U.S. 339." 442 U.S., at 272.

In Adarand at 515 U.S. 222 the Court reaffirms that equal protection under the Fifth Amendment is the same as under the Fourteenth . It refers to this principle as "congruence" which means that:

"[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment," Buckley v. Valeo, 424 U.S., at 93; see also Weinberger v. Wiesenfeld, 420 U.S., at 638, n. 2; Bolling v. Sharpe, 347 U.S., at 500. Taken together, these three propositions [skepticism, consistency and congruence] lead to the conclusion that any person, of whatever race, has the right to demand that any governmental actor subject to the Constitution justify any racial classification subjecting that person to unequal treatment under the strictest judicial scrutiny.

To pass strict scrutiny and justify OHA's race-based preferences, the State must show the OHA laws are narrowly tailored to attain a compelling State interest.

In Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226 (1995) the Court said,

Accordingly, we hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.

The State has not shown, because it cannot show, it has a compelling interest in adopting the race-based OHA laws as part of its constitutional and statutory law

The only compelling interest the U.S. Supreme Court has found sufficient to justify race-based laws is the need to remedy present discrimination or the present effects of past discrimination. Adarand, 515 U.S. at 227; Croson, 488 U.S. at 496-97.

Nothing in the record in this case or in the related case of Rice v. Cayetano, demonstrates the existence of past or present discrimination so as to justify race-conscious remedies here. Nor did the local U.S. District, 963 F.Supp. 1547 or the Ninth Circuit Court, 146 F.3d 1075, in Rice v. Cayetano purport to rest their decisions on that ground. This glaring absence is sufficient in itself to demonstrate that the OHA laws cannot survive strict scrutiny.

The political and economic power of Hawaiians increased dramatically once Hawaii became a Territory. University of Hawaii Political Science Professor Robert Stauffer writes:

It was a marvelous time to be Hawaiian. They flexed their muscle in the first territorial elections in 1900, electing their own third-party candidates over the haole Democrats and Republicans...The governor-controlled bureaucracy also opened up to Hawaiians once they began to vote Republican.

By the '20s and '30s, Hawaiians had gained a position of political power, office and influence never before - nor since - held by a native people in the United States. Hawaiians were local judges, attorneys, board and commission members, and nearly all of the civil service. With 70 percent of the electorate--but denied the vote under federal law--the Japanese found themselves utterly shut out. Even by the late 1930s, they comprised only just over 1 percent of the civil service.

This was "democracy" in a classic sense: the spoils going to the electoral victors.

***

Higher-paying professions were often barred to the disenfranchised Asian Americans. Haoles or Hawaiians got these. The lower ethnic classes (Chinese, Japanese and later the Filipinos) dominated the lower-paying professions. But even here an ethnic-wage system prevailed. Doing the same work, a Hawaiian got paid more per hour than a Portuguese, a Chinese, a Japanese or a Filipino--and each of them, in turn, got paid more than the ethnic group below them.

Robert Stauffer, "Real Politics", Honolulu Weekly, October 19, 1994 at page 4.

There is still another reason the State cannot have a compelling interest in preferring native Hawaiians over other citizens in the distribution of ceded lands income. The State holds the ceded lands as trustee of the public land trust established in 1898 "solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." Atty. Gen. Op. 7/17/95, fn. 1, Addendum 6.

"[T]he conduct of the government as trustee is measured by the same strict standards applicable to private trustees" and "a trustee must deal impartially when there is more than one beneficiary." Pele Defense Fund v. Paty, 73 Haw. 578, 603, 837 P.2d 1247, 1263 (1992) citing Restatement of Trusts, Second §183.

"In other words, it is the duty of the trustee to treat all beneficiaries equally." 76 AmJur2d, Trusts §389 Loyalty to plural beneficiaries and plural trusts.

Establishing racial distinctions is not "impartial" or "equal" treatment. Thus, the State's fiduciary duty as trustee prohibits it from permanently giving to a small group of beneficiaries (perhaps 20,000 to 50,000 people who make up less than 5% of the population) 20% of the revenues (particularly when the OHA laws, as worded, interpreted and applied by the State and the lower court, apparently give OHA an amount that exceeds the entire net income of the trust, in addition to the benefits reserved exclusively for "native Hawaiians" in the 200,000 acres under the HHCA.) See the website http://aloha4all.org

By adopting and enforcing the OHA laws, the State violates its fiduciary duty, owed to over 1 million of its citizens. The compelling interest is therefore the other way.

§5(f) and other "strings" Congress attached to Hawaii's admission to the Union cannot provide a compelling interest. They violate the equal footing doctrine and are themselves unconstitutional

All states, old and new, stand on an equal footing, that is they have equality of constitutional right and power, each competent to exercise the sovereignty not delegated to the United States by the Constitution itself. Escanaba Co. v. Chicago, 107 U.S. 678, 689 (1883); Utah Div. of State Lands v. United States, 482 U.S. 193 (1987), accord Amici Curiae Brief by attorneys general including Corinne K.A. Watanabe, then A.G. of Hawaii. Addendum 4.

A State's equality of constitutional right and power may not be hampered by any Congressional enactment even if accepted upon admission. Pollard's Lessee v. Hagen, 44 U.S. (3 How.) 212 (1845). In Coyle v. Smith, 221 U.S. 559 (1911) the court invalidated a restriction on the change of location of the State capital, which Congress had imposed as a condition for the admission of Oklahoma.

"As to matters strictly of State cognizance the legislative power of the State is complete, unhampered by any congressional enactments even if accepted upon the admission of the State, for each State is admitted on an "equal footing" with the others." In re Island Airlines, 44 Haw. 634, 642, 361 P.2d 390 (1961).

The first sentence of the Admission Act includes the statement that "the State of Hawaii is declared admitted into the Union on an equal footing with the other States in all respects whatever". Addendum 2. Nevertheless Congress attached strings. §4 of the Admission Act required that,

As a compact with the United States ... the Hawaiian Homes Commission Act, 1920, as amended, ("HHCA") shall be adopted as a provision of the Constitution of said State... subject to amendment or repeal only with the consent of the United States, and in no other manner ... and that all proceeds and income from the "available lands", as defined by said Act, shall be used only in carrying out the provisions of said Act.

(The "available lands" are the approximately 200,000 acres of the ceded lands which Congress, by the HHCA in 1921, set aside for long term leases of homestead lots at $1 per year to "native Hawaiians".)

§5(f) of the Admission Act also required that "for the betterment of the conditions of native Hawaiians, as defined in the [HHCA]" be added to the purposes of the public lands trust.

§5(f) was cited at the 1978 Constitutional Convention as the justification for adding to the State Constitution the new Article XII Section 4. See SCR 59, I Proceedings of Con. Con. 1978 642 & 643, Addendum 2.

This new section recites the trust corpus of Section 5(b) and names the two principal beneficiaries established in Section 5 (f) of the Admission Act - those native Hawaiians as defined by the Hawaiian Homes Commission Act, 1920, as amended, and the general public .... Section 5(f) of the Admission Act created a trust of these public lands separate and apart from the lands defined as "available lands," by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended.

This change to Hawaii's Constitution caused a radical change in the public land trust. Prior to 1978 the income from the public land trust had gone by and large to the Department of Education where it benefitted public school children of all races, including the approximately 25% of the students who are of some Hawaiian ancestry. Now, it appears that none goes to public education and, instead, an amount exceeding all of the net income of the public land trust goes to OHA.

These "strings" restrict the State's power to determine for itself, like other states do, the best use of its own public lands and the best allocation of their income and proceeds. The Constitution does not delegate that power to the federal government. These are matters strictly of State cognizance so that Hawaii is "unhampered by any congressional enactments even if accepted upon the admission of the State." In re: Island Airlines, supra.

Furthermore, the United States was also a trustee under the public land trust. Att'y Gen. Op. July 17, 1995, fn 1, Add. 6. Nothing "compelled" the federal government, in transferring those lands back to Hawaii in 1959, to require the State to give preference to native Hawaiians. The opposite is true. The United States' fiduciary duty compelled it to administer the trust impartially and forbade it from permanently favoring one small racial group among the beneficiaries. Restatement of Trusts, Second §183; Pele Defense Fund v. Paty, 837 P.2d at 1263 (1992). Thus, the "strings" attached by Congress to Hawaii's admission fail both "equal footing" and "strict scrutiny" and give no justification for Hawaii's discriminatory laws.

Nor, even if some compelling State interest existed, could the State show that the OHA laws are narrowly tailored.

Racial classifications are not narrowly tailored unless the government has previously "carefully examined and rejected race-neutral alternatives" to attain the same end, Croson, 488 U.S. at 507 and the program is "appropriately limited such that" it "will not last longer than the discriminatory effects it is designed to eliminate". Adarand, 515 U.S. at 236.

Nothing in the record here or, apparently in Rice v. Cayetano, indicates that race-neutral alternatives or limitations on the duration of or method of calculating payments to OHA were considered.

To the contrary, for OHA the sky apparently is the limit. The preferential treatment of native Hawaiians is not limited in duration and could continue in perpetuity, long after the discriminatory effects, if there were any, had ceased to exist. The preference is not limited in proportion to population, and thus native Hawaiians, who make up less than 5% of the State population, are entitled to 20% of the revenues. It is not limited based on need, and thus middle class or wealthy native Hawaiians benefit while needy persons of other ethnic groups do not. The payments to OHA are not limited to a share of net income, and thus the State can, and apparently does, pay OHA 20% of gross revenues, leaving the share of the rest of the beneficiaries responsible for all the expenses. They are not limited so as to exclude income from improvements paid for by taxpayers generally, and thus OHA receives 20% of income that did not flow from the unimproved ceded lands but was created only because of major capital expenditures. Nor do the calculations of OHA's share exclude income from governmental grants of exclusive rights, and thus OHA takes 20% of the amount DFS pays to the State in return for having the exclusive right to deliver duty free goods to the airport, which amount is far in excess of the rental value of the small part of the ceded lands at the airport occupied by DFS.

As a result of this broad, not narrow, tailoring, OHA now, on behalf of less than 5% of the population, apparently receives 20% of the gross revenues which far exceeds the entire net income -- and none is left for the other beneficiaries who are saddled with extra taxes years into the future to repay State bonds issued to finance capital improvements to the ceded lands and to fund payments directly to OHA.

Nor do native Hawaiians have any "special" or "political" relationship, comparable to that of Indian tribes, which would exempt the OHA laws from strict scrutiny analysis.

In Rice v. Cayetano,supra, the State, OHA and the Solicitor General each made what the Supreme Court called the "Mancari argument", i.e., that under Morton v. Mancari and other decisions of the Supreme Court, Indians and any "indigenous people" may be singled out whether or not they are members of organized tribes. The State's brief, for example, argued at page 32,

"That unique legal or political status - not recognition of "tribal" status, under the latest executive transmutation of what that means - is the touchstone for application of Mancari when, as here, Congress is constitutionally empowered to treat an indigenous group as such." (Addendum 6).

OHA's amicus curiae brief likewise said at page 23,

The Applicability of Mancari Does Not Turn On Whether Native Hawaiians Are Organized Into Tribes. (Addendum 7)

The Solicitor General's amicus curiae brief joined the chorus at page 23,

This Court's decisions subsequent to Mancari confirm that a federally recognized tribal government is not a predicate for legislation on behalf of indigenous people. (Addendum 8)

The U.S. Supreme Court rejected these arguments saying, at 120 S.Ct. 1057 and 1058,

If Hawaii's restriction were to be sustained under Mancari we would be required to ... conclude that Congress ... has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does Indian tribes.

The Court then, at 120 S.Ct. 1058, reviewed Mancari and a series of cases, many of which rely on Mancari, in which Congress "singles out for special treatment a constituency of tribal Indians" and noted that "Hawaii would extend the limited exception of Mancari to a new and larger dimension."

At 120 S.Ct. 1059, the Court concluded Part IV A of its decision by saying,The validity of the voting restriction is the only question before us. As the court of appeals did, we assume the validity of the underlying administrative structure and trusts, without intimating any opinion on that point. Nonetheless, the elections for OHA trustee are elections of the State, not of a separate quasi-sovereign, and they are elections to which the Fifteenth Amendment applies. To extend Mancari to this context would be to permit a State, by racial classification, to fence out whole classes of its citizens from decisionmaking in critical state affairs. The Fifteenth Amendment forbids this result.

Thus, whether Congress has or may treat native Hawaiians as it does Indian tribes and whether Congress may or has delegated that authority to the State are "questions of considerable moment and difficulty" which the Court leaves for another day. Any advocate for OHA who can take a hint would not find these unanswered questions comforting however. Would it be realistic to expect this Court "to extend Mancari" to the 14^th Amendment context and "permit a State, by racial classification, to fence out whole classes of its citizens from" holding public office or receiving the benefit of State lands?

In any event, the decision provides powerful medicine to dispel the purported analogy to Indians: It has rejected the State's, OHA's and the Solicitor General's interpretation of Mancari. Boiled down to essentials, the Supreme Court of the United States has clarified and restated that only members of federally recognized Indian tribes may be singled out for differential treatment. "If Hawaii's restriction were to be sustained under Mancari we would be required to ... conclude that Congress ... has determined that native Hawaiians have a status like that of Indians in organized tribes,"

These words signal the end of OHA because there is no tribe of Hawaiians or native Hawaiians. "The tribal concept simply has no place in the context of Hawaiian history." (State's Brief in opposition to certiorari in Rice v. Cayetano, Addendum 7). "Native Hawaiians have never organized themselves into tribal units ..." Jon Van Dyke, The Political Status of the Native Hawaiian People, 17 Yale Law & Policy Review 95 (1998). In 1920 at the hearings before the House Committee on the Territories, 66^th Cong. 129-30 (1920), it was noted that Native Hawaiians differed from other groups of Indians because "we have no government or tribe or organization to deal with".

In Price v. Hawaii, 764 F.2d 623 (9^th Cir. 1985) the Hou Hawaiians, a self-proclaimed Native Hawaiian tribe, had asserted certain rights as a tribe against the State of Hawaii. The Ninth Circuit rejected the Hou's position because it did not demonstrate that it exercised political authority over its members and could not establish derivation from a longstanding historical tribe. The court said,

Although native Hawaiians in general may be able to assert a longstanding aboriginal history, the issue before us is whether the particular subgroup seeking recognition---the Hou Hawaiians---can establish that they are a longstanding aboriginal sovereign rather than a recently formed association. To allow any group of persons to "bootstrap" themselves into formal "tribal" status---thereby obtaining the federal economic and legal benefits attendant upon tribal status---simply because they are all members of a larger aboriginal ethnic body would be to ignore the concept of "tribe" as a distinct sovereignty set apart by historical and ethnological boundaries.

In any event, as Professor Stuart Minor Benjamin points out in Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale Law Journal, No. 3, p. 537, 581 the question whether there are any native Hawaiian tribes is largely academic, because it seems clear that many native Hawaiians who are eligible to receive benefits from OHA are not members of any organization that could plausibly call itself a tribe.

As a result, even if there are native Hawaiian tribes that could be subject to the special relationship with the federal government, the existing programs such as OHA that benefit native Hawaiians would nonetheless exceed the scope of that relationship because they apply to all native Hawaiians, not merely to those who are members of tribes. In this way, the programs for native Hawaiians would be analogous to programs (like that at issue in Adarand) benefitting all American Indians, defined racially, which would not be within the special relationship and would be subject to strict scrutiny.

CONCLUSION

The judgment should be reversed and, instead, judgment should be entered in favor of the State, OHA should be dissolved and, except for reasonable expenses of orderly dissolution, OHA should be ordered to repay to the State all cash and investments it now holds. Intervening parties should be awarded their costs and reasonable attorney's fees pursuant to 42 U.S.C. §1988 and other laws.

DATED: Honolulu, Hawaii, March 28, 2000

H. WILLIAM BURGESS

Attorney for Intervening Parties

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There are several documents on this website all related to the ceded lands case OHA vs. State of Hawai'i. You have just finished reading one of them. There was an amicus brief filed May 27, 1999.

Amicus Brief filed May 27, 1999 in Hawaii Supreme Court in OHA vs. State (OHA lawsuit seeking 20% of revenues from Hilo Hospital, Waikiki Duty Free Shoppers, public housing and other revenues). Amicus brief points out that OHA laws violate Constitution of United States.

Also, on March 28, 2000 a multi-racial group of 23 citizens of Hawaii MOVED TO INTERVENE in OHA v. State in the Hawaii Supreme Court. Their MEMO IN SUPPORT charges the State Attorney General has a conflict of interest because he represents the interests of OHA in the Rice case. Their PROPOSED BRIEF challenges the validity of OHA itself based on the RICE DECISION.

If you are finished with the materials related to the ceded lands case OHA v State of Hawai'i, then you may

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(c) Copyright 2000 Kenneth R. Conklin, Ph.D. All rights reserved