WEBSITE EDITOR’S NOTE: The content in this internet document is nearly identical to the content of the corresponding paper document filed with the U.S. District Court in Honolulu on March 4, 2002. The format of this document is not the same as what was submitted to the court, and occasional quote marks or special characters might be slightly different. Such differences are due to incompatibilities between different computers, different word-processing programs, and different e-mail systems. The editor of this website, Ken Conklin, apologizes for errors and is solely responsible for them.
TABLE OF CONTENTS OF COMPLAINT (page numbers deleted because pages on this website have no page numbers)
Complaint for Declaratory Judgment
(Re: constitutionality of Office of Hawaiian Affairs,
Hawaiian Homes Commission and related laws)
and for an Injunction
INTRODUCTION
The Office of Hawaiian Affairs
The Hawaiian Homes Commission
Note: Equitable accommodation between the public need and the needs
of existing Homesteaders
The Admission Act, §5(f)
JURISDICTION AND VENUE
PARTIES
Plaintiffs
State Defendants
OHA Defendants
HHC/DHHL Defendants
Other Defendants
LEGAL HISTORY
1898 – The public land trust established for inhabitants of the Hawaiian
Islands
1921 – The Hawaiian Homes Commission Act
1959 – The Admission Act
1978 – Hawaii Constitution purportedly amended, creates OHA, further
breach of public land trust and violation of U.S. Constitution
Note: 1978 votes not tallied legally. 18,833 voters disenfranchised.
Doubtful that majority ratified OHA Amendments.
1990 – Legislature defines “revenues” retroactively, mandates
Budget & Finance and OHA to negotiate
1994 – OHA sues for more for same period, 1980 – 1991
1999 – Some of Plaintiffs here file amicus brief in OHA v. State
February 23, 2000 – Rice v. Cayetano decided by high court
March 2000 – Some of Plaintiffs here sought to intervene in
OHA v. State
September 2001 – Hawaii Supreme Court dismisses OHA v. State
STATEMENT OF CLAIMS
Exhaustion of administrative remedies; Need for equitable relief;
Harm to Plaintiffs and others similarly situated ;
Diversions of public land trust lands and revenues to DHHL harm
Plaintiffs as trust beneficiaries;
Existing Homestead leases require the HHC/DHHL Defendants to
continue to enforce and administer racially
discriminatory provisions for over 100 more years;
They inflict ongoing and continuing harm on Plaintiffs;
DHHL has the right to withdraw the whole or any part of the lands demised
by the Homestead leases as may be required for a public use and purpose.
Compliance with the 14th Amendment and the state’s fiduciary duty as
trustee of the public land trust are public uses and purposes;
Appropriations for DHHL harm Plaintiffs as taxpayers;
Diversions of public land trust revenues to OHA harm Plaintiffs as
beneficiaries of the public land trust;
Appropriations for OHA harm Plaintiffs as taxpayers;
The exemption of Homestead lots from real property taxes also harms
Plaintiffs as taxpayers
CLAIMS FOR RELIEF
First Claim for Relief. Equal Protection Clauses of Fourteenth and
Fifth Amendments
Second Claim for Relief. Violation of the Civil rights Act,
421 U.S.C. §1983
Third Claim for Relief. Breach of Public Land Trust
PRAYER
--------------------------------------------
COMPLAINT FOR DECLARATORY JUDGMENT INTRODUCTION 1. The
Office of Hawaiian Affairs. This suit challenges the validity under the
Constitution of the United States
of:
a. Article XII, §4 of the Hawaii State
Constitution, which, among other things, requires that the lands granted to the
State of Hawaii by the Admission Act shall be held as a public trust for native
Hawaiians and the general public. (This provision is challenged only to the
extent that it gives or is construed or implemented to give native Hawaiians any
protection, entitlements, rights, privileges or immunities not given equally to
other beneficiaries of the public land
trust.).
2. The Hawaiian Homes
Commission. This suit also challenges the validity under the Constitution
of the United States of:
a. Article XII, § 1, 2 and 3 of the Hawaii State
Constitution, which adopt the Hawaiian Homes Commission Act, 1920 (“HHCA”)
enacted by Congress, accept the compact imposed by the United States as a
condition of admission, prohibit the amendment or repeal of HHCA without the
consent of the United States, and mandate that the Hawaii legislature fund the
programs, administration and operation of the Department of Hawaiian Home
Lands.
3.
Note: Equitable accommodation between the public need and the needs of
existing Homesteaders. Plaintiffs recognize the practical reality that the
HHCA laws have been in effect for 81 years; many persons of native Hawaiian
ancestry have reasonably relied on them and have become Homesteaders (7,281
Homestead leases were outstanding as of 1/31/02); in reliance on the HHCA laws,
many of the Homesteaders have built homes and improvements and made other
commitments with respect to their Homestead lots; and invalidating the Hawaiian
homes program may have serious financial consequences for those existing
Homesteaders. Plaintiffs therefore seek an equitable decree to accommodate
both the public need (to end this racial discrimination by the State government)
and the private needs of the existing Homesteaders (to avoid inequitable
financial consequences to them merely because they acted on the basis of laws
they thought were valid). Lemon v. Kurtzman 411 U.S.192 (1973). (An
unconstitutional statute is not absolutely void, but is a practical reality upon
which people rely. Courts recognize that reality. Pp. 197-199.
A trial court has wide latitude in shaping an equitable decree and reaching an
accommodation between public and private needs. Pp. 200-201. A State
and those with whom it deals are not to be subjected to harsh, retrospective
relief merely because they act on the basis of presumptively valid legislation,
in the absence of contrary judicial direction. Pp.
208-209.) Specifically Plaintiffs
ask the Court, as part of its judgment invalidating the HHCA laws to order the
State Defendants and HHC/DHHL Defendants to negotiate with the existing
Homesteaders for the State's exercise of its right to withdraw the lands demised
in a way that is fair to the Homesteaders but does not further violate the
rights of Plaintiffs and others similarly situated. Such negotiations
could result in a global settlement under which the fee simple interest is
conveyed to the Homesteader in exchange for no or a reduced payment and a
complete release of all claims by the Homesteader and his or her heirs and
assigns against all parties, including all claims against the State of Hawaii
and the United States arising out of or related to the Homestead leases, the
HHCA laws, the OHA laws and any other claims for Hawaiian
entitlements.
Plaintiffs seek no retroactive application of the Court's declaratory judgment
or retrospective relief of any kind.
4. The
Admission Act, §5(f). This suit also challenges the validity under the
Constitution of the United States
of:
a. §5(f) of the Admission Act, which requires that
the lands granted to the State of Hawaii shall be held as a public trust for one
or more of five purposes, including “for the betterment of the conditions of
native Hawaiians as defined in the Hawaiian Homes Commission Act”. (This
provision, §5(f), is challenged only to the extent that it gives or is construed
or implemented to require or authorize the State of Hawaii to give native
Hawaiians any right, title or interest in the “ceded lands” or public lands of
Hawaii, or the proceeds or income therefrom, not given equally to other
beneficiaries of the public land
trust.)
JURISDICTION AND
VENUE
5. Jurisdiction is invoked pursuant to 28
U.S.C. '§ 1331 (federal question), 1343(3) and 1343(4) (civil rights) and 2201
and 2202 (declaratory judgment).
6. Venue is in
this judicial district pursuant to 28 U.S.C. §1391(b) because the acts giving
rise to this action occurred in this district and the property that is the
subject of this action is situated in this
district.
PARTIES Plaintiffs
7.
All 16 Plaintiffs are residents and citizens of the State of Hawaii and of the
United States.
8. Included among Plaintiffs are
persons of Japanese, English, Filipino, Portuguese, Hawaiian, Irish, Chinese,
Scottish, Polish, Jewish, German, Spanish, Okinawan, Dutch, French and other
ancestries.
9. Each and every Plaintiff has a
material financial interest in the subject matter of this action as a taxpaying
citizen of the State of Hawaii and the United States and as a beneficiary of the
public land trust created in 1898 when the public lands of the government of
Hawaii were ceded to the United States with the requirement that all revenues or
proceeds, with certain exceptions, “shall be used solely for the benefit of the
inhabitants of the Hawaiian Islands for educational and other public
purposes”.
State Defendants
10. Defendant Benjamin
J. Cayetano is a resident and Governor of the State of
Hawaii.
11. Defendant Neal Miyahira is a
resident of the State of Hawaii and the Director of the State of Hawaii
Department of Budget and Finance. In that capacity, he is charged with the
responsibility of allocating, remitting and/or transferring revenue to the
Trustees of OHA to be used by OHA as provided in Art. XII, §5 and 6 and HRS
Chapter 10, including the racially discriminatory provisions of HRS §10-2; and
allocating, remitting and/or transferring revenues to the Defendant Hawaiian
Homes Commissioners.
12. Defendant Glenn Okimoto is a
resident of the State of Hawaii and the State Comptroller, and the Director of
the Department of Accounting and General Services. In those capacities he
is charged with the responsibility of allocating, remitting and/or transferring
revenue to the Trustees of OHA to be used by OHA as provided in Art. XII, §5
and 6 and HRS Chapter 10, including the racially discriminatory provisions of
HRS §10-2; and allocating, remitting and/or transferring revenues to the
Defendant Hawaiian Homes Commissioners.
13. Defendant
Gilbert Coloma-Agaran is a resident of the State of Hawaii and the Chair of the
Board of Land and Natural Resources and the Director of the State of Hawaii
Department of Land and Natural Resources. In that capacity, he is charged
with the responsibility of allocating, remitting and or transferring revenue to
the Trustees of OHA to be used by OHA as provided in Art. XII, §5 and 6 and
HRS Chapter 10, including the racially discriminatory provisions of HRS §
10-2.
14. Defendant James J. Nakatani is a resident
of the State of Hawaii and the Director of the State of Hawaii Department of
Agriculture. In that capacity, he is charged with the responsibility of
allocating, remitting and or transferring revenue to the Trustees of OHA to be
used by OHA as provided in Art. XII, §5 and 6 and HRS Chapter 10, including
the racially discriminatory provisions of HRS §
10-2.
15. Defendant Seiji Naya is a resident of the
State of Hawaii and the Director of the State of Hawaii Department of Business,
Economic Development and Tourism. In that capacity, he is charged with the
responsibility of allocating, remitting and or transferring revenue to the
Trustees of OHA to be used by OHA as provided in Art. XII, § 5 and 6 and HRS
Chapter 10, including the racially discriminatory provisions of HRS §
10-2.
16. Defendant Brian Minaai is a resident of the
State of Hawaii and the Director of the State of Hawaii Department of
Transportation. In that capacity, he is charged with the responsibility of
allocating, remitting and or transferring revenue to the Trustees of OHA to be
used by OHA as provided in Art. XII, §5 and 6 and HRS Chapter 10, including
the racially discriminatory provisions of HRS §10-2
OHA
Defendants
17. Defendants Huanani Apoliona,
Chairperson and Rowena Akana, Donald B. Cataluna, Linda Dela Cruz, Clayton Hee,
Collette Y.P. Machado, Charles Ota, Oswald Stender, and John D. Waihe`e IV are
residents of the State of Hawaii and are the Trustees of the Office of Hawaiian
Affairs (“OHA”), an agency of the State of Hawaii, and are officials of the
State of Hawaii.
HHC/DHHL Defendants
18.
Defendants Raynard C. Soon, Chairman, and Wonda Mae Agpalsa, Henry Cho, Thomas
Contrades, Rockne Freitas, Herring Kalua, Milton Pa, and John Tomoso are
residents of the State of Hawaii and are the commissioners of the Hawaiian Homes
Commission, an agency of the State of Hawaii, and are officials of the State of
Hawaii.
Other Defendants The United States of America is named as a
party because the constitutionality of two acts of Congress affecting the public
interest (The HHCA and §4 and 5(f) of the Admission Act) are drawn in
question. 28 U.S.C. §2403. HHCA was originally a federal statute but
is now a State law incorporated into the State Constitution by reference, Art.
XII, §1, 2 & 3. See also page 12 of this Court’s order of July 12,
2001 in Barrett v. State of Hawaii, CV. No. 00-00645 DAE KSC. (Plaintiff
challenged HHCA but did not name United States as party. Court granted
summary judgment against Plaintiff. "In the absence of the United States
as a party to this action, this court is unable to redress Plaintiff's injury in
any meaningful way.") Plaintiffs do not believe that their claims are
adverse to the interests of the United States in upholding the Constitution of
the United States. Two presidents have expressed doubts as to the
constitutionality of the express racial classification of “native Hawaiian” as
used by HHCA and certain other bills. (Statement by President Ronald
Reagan upon signing H.J. Res 17 in 1986 (HHCA "employs an express racial
classification"."raises serious equal protection questions"; and Statement by
President George H.W. Bush upon signing S. 566 on November 28, 1990 (Affordable
Housing Act defines "native Hawaiian" in a "race-based fashion". "cannot be
derived from the constitutional authority granted to the Congress and the
executive branch to benefit native Americans as members of tribes."; then
President Bush expressed similar convictions in S.J. Res. 23 on October 6, 1992;
S. 2044 on October 26, 1992; and H.R. 939 on October 28, 1992).
Plaintiffs therefore believe it is possible that the U.S. may chose not to
defend or support the constitutionality of the HHCA laws or the OHA laws or the
challenged interpretation of a portion of §5(f) of the Admission
Act.
19. The “Doe Defendants” are persons whose
identities are unknown to Plaintiffs but who are believed to be residents of the
State of Hawaii and to be agents, employees or officials of the State of Hawaii
and are and will be engaged in the performance of their duties as agents,
employees or officials of the State of Hawaii and further will be acting
pursuant to directives, instructions, or orders from or with the permission of
the Defendants, or those acting in concert with them or at their direction or
under their control.
20. Each individual
Defendant is sued only in his or her official capacity. Relief is sought
against each Defendant as well as his or her or its agents, assistants,
successors, employees, attorneys, and all persons acting in concert or
cooperation with them or at their direction or under their control.
LEGAL
HISTORY
1898 - The public land trust established for inhabitants of the
Hawaiian Islands
21. In 1898, the Republic of
Hawaii ceded its public lands (about 1.8 million acres formerly called the Crown
lands and Government lands) to the United States with the requirement that all
revenue from or proceeds of these lands except for those 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).
22. The Newlands Resolution established
the public land trust. Such a special trust was recognized by the Attorney
General of the United States in Op. Atty. Gen. 574 (1899); State v. Zimring 58
Haw. 106, 124, 566 P.2d 725 (1977) and Yamasaki 69 Haw. 154. 159, 737 P.2d 446,
449 (1987); see also Hawaii Attorney General Opinion July 7, 1995 (A.G. Op.
95-03) to Governor Benjamin J. Cayetano from Margery S. Bronster, Attorney
General, “Section 5 [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.”
23. In 1898, about 31% of the inhabitants
of Hawaii were of Hawaiian ancestry and the remaining 69% were of other
ancestry. Robert C. Schmitt, Demographic Statistics of Hawaii, 1778-1965
(Honolulu, 1968).
24. 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.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.)
25. Note: The public land trust,
from its inception in 1898, required the ceded lands and proceeds and revenues
derived from them, to be held “solely for the benefit of the inhabitants of the
Hawaiian Islands”, not just for those of Hawaiian ancestry. (Emphasis
added.)
26. Note: Nor did persons of Hawaiian
ancestry, merely by virtue of their ancestry, have any special entitlement to
the use, income or proceeds of the public lands of the Kingdom of Hawaii.
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
of naturalized, was entitled to vote. Id, Section 78. Everyone born
in the Kingdom (except children of foreign diplomats) was a native-born subject
of the Kingdom. In the last half of the 19th century, the government of
the Kingdom actively encouraged immigration and offered immigrants easy
naturalization and full political rights. For example, the Civil Code of
1858 provided that “[e]very foreigner so naturalized shall be deemed to all
intents and purposes a native of the Hawaiian Islands ... and ... shall be
entitled to all the rights, privileges and immunities of an Hawaiian
subject.”
1921 - The Hawaiian Homes Commission
Act
27. In 1921, Congress enacted the Hawaiian
Homes Commission Act, 42 Stat. 108 (1921) ("HHCA") which 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."
28.
Congress, by enacting the HHCA and limiting its benefits to a group
selected on the basis of race or ancestry, caused the United States to violate
the equal protection requirement implicit in the Fifth Amendment to the U.S.
Constitution and also to violate its fiduciary duty as trustee of the public
land trust to all the citizens of Hawaii who had none or less than “one-half
part of the blood of the races inhabiting the Hawaiian Islands previous to
1778.”
1959 - The Admission Act
29. 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 §4 that the State adopt the HHCA and in §5(f) that the State hold
the ceded lands "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."
30. Congress, by requiring as a condition of
statehood, that the HHCA be adopted and that a race-based component, (“for the
betterment of the conditions” of “native Hawaiians” as defined in the HHCA, i.e.,
"any descendant of not less than one-half part of the blood of the races
inhabiting the Hawaiian Islands previous to 1778.") be added to the purposes of
the public land trust:
a. violated the equal protection implicit in the
Fifth Amendment to the U.S.
Constitution;
31. In
1978, Hawaii's Constitution was purportedly amended to establish an Office of
Hawaiian Affairs ("OHA"). Amended Article XII, Section 6 provides that the
board of trustees of OHA "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 does not specify any pro
rata portion.
32. Note: 1978 votes not tallied
legally. 18,833 voters disenfranchised. Doubtful that majority
ratified OHA Amendments. The ballots for the 1978 ratification election
were not tallied as requested by the Constitutional Convention or in compliance
with the common law rule that a ballot must be counted if the voter's intent can
be reasonably ascertained from the ballot. As a result of the illegal
manner of tallying, 18,833 voters who attempted to vote on the proposed
amendments were disenfranchised. These rejected, uncounted 18,833 ballots
(6.4% of the total votes cast) were more than enough to change the outcome on
the amendments that established OHA and DHHL, the two least popular of all the
thirty-four proposed amendments. Furthermore, only about 18% of the voters
specifically marked their ballots "Yes." A plurality of about 45% was
recorded in favor of the OHA and DHHL amendments by counting ballots that did
not mark "Yes" or "No" regarding the amendments as affirmative votes. The
Hawaii Constitution in effect at the time of the Nov. 7, 1978 general election
provided in the relevant part that proposed constitutional "amendments shall be
effective only if approved at a general election by a majority of all the votes
tallied upon the question." Hawaii Constitution January 1969 Article XV, Section
2. Since 18,833 ballots, enough to change the outcome, were wrongfully
rejected from the tally, it was impossible to accurately determine that the
amendments were approved by the necessary
majority.
33. 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."
34. By changing the terms of the public
land trust so as to permanently give 20% of the funds generated by the trust to
a group selected only on the basis of their race or ancestry and who make up
less than 5% of the trust beneficiaries, the Hawaii Legislature in
1980:
a. Required the State to violate the equal
protection clause of the Fourteenth Amendment to the U.S. Constitution;
and
1990 -- Legislature defines "revenues"
retroactively, mandates Budget & Finance and OHA to
negotiate.
35. In 1990 the Hawaii Legislature in Act
304 defined "revenue" from which OHA is to share, retroactive to 1980, 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".
36. Act 304, which
was interpreted to calculate OHA's "pro rata share" on the gross revenues,
(rather than on “income” as provided in the Hawaii Constitution or on net income
after expenses as required under trust law), further compounded the breach of
the State's fiduciary duty to 95% of Hawaii's citizens, including
Plaintiffs.
37. 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.
38.
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 then 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.
39. In April
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."
40. In June 1993 the
approximately §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
41. In January 1994, OHA commenced a
lawsuit, OHA v. State of Hawaii, 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."
42. 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 until 1999 deferred ruling while the State
and OHA discussed settlement.
43. Media
accounts estimated that, if Judge Heely's decision was affirmed, between §300
million and §1.2 billion may be payable to OHA for the period 1980 through 1991
in addition to the §130 million already paid to settle OHA's claims for that
period.
1999 - Some of Plaintiffs here file amicus brief in OHA v.
State
44. On May 29, 1999, some of Plaintiffs here
filed in the Hawaii Supreme Court an amicus curiae brief in OHA v. State arguing
on behalf of the Defendant State of Hawaii that the OHA laws are based on racial
classifications and therefore presumptively invalid and subject to strict
scrutiny. Also, Hawaiians have no “special” or “political” relationship,
comparable to that of Indian tribes, which would exempt the OHA laws from strict
scrutiny analysis.
February 23, 2000 - Rice v. Cayetano decided by high
court
45. On February 23, 2000, the Supreme Court of
the United States in
46. Those definitions, which
the highest court in the land has now determined to be racial classifications,
are the foundation and the only reason for the existence of OHA and
HHCA.
March 2000 -- Some of Plaintiffs here sought to intervene in OHA v.
State
47. On March 28, 2000, a diverse, multi-ethnic
group of 23 Hawaii men and women, some of whom are Plaintiffs in this case,
moved to intervene in the Hawaii Supreme Court in OHA v. State arguing, among
other things, that the Rice decision together with the Supreme Court’s other
decisions holding all racial classifications presumptively invalid, if applied
in a case challenging OHA itself, will require that OHA be invalidated and its
claims be dismissed.
48. On May 8, 2000, the Hawaii
Supreme Court denied the motion to intervene in OHA v. State. No reason
was stated.
September 2001 - Hawaii Supreme Court dismisses OHA v.
State
49. On September 12, 2001, the Hawaii Supreme
Court in OHA v. State, reversed the 1996 Heely decision and dismissed the case
for lack of justiciability. The Court said that, because it conflicts with
federal legislation, “Act 304, by its own terms, is effectively
repealed.”
50. The Hawaii Supreme Court did not rule
on or mention the federal constitutional question raised in the amicus brief and
in the motion to intervene. It nevertheless did say, “the State’s
obligation to native Hawaiians is firmly established in our constitution” and
“it is incumbent upon the legislature to enact legislation that gives effect to
the right of native Hawaiians to benefit from the ceded lands trust.” OHA
v. State, Appeal Nos. 20281 & 20216 Decision, September 12,
2001.
51. Following the Hawaii Supreme Court’s
decision, OHA trustee Clayton Hee was quoted in the media that OHA had cut its
own throat by walking away from a settlement offer by the State of §251 million
and 360 acres of ceded lands.
52. New bills are
presently pending before the current Legislature of the State of Hawaii that
would "reinstate Act 304-style funding" or, as an interim measure, appropriate
§17 million to OHA. Some legislative leaders have said that interim
funding in some amount would probably be favorably considered in the current
session.
STATEMENT OF CLAIMS
Exhaustion of administrative
remedies
53. Plaintiffs have no administrative remedy
for challenging the constitutionality of the OHA laws or the HHCA laws or for
enforcing their rights as beneficiaries of the public land trust.
Need for
equitable relief
54. Plaintiffs have no adequate
remedy at law and will continue to have their rights as beneficiaries of the
public land trust and as taxpayers and their constitutional and civil rights
violated as a result of the OHA laws and the HHCA laws and the ongoing acts of
Defendants in implementing and enforcing them unless immediate and permanent
injunctive relief is rendered.
Harm to Plaintiffs and others
similarly situated
55. From July 7, 1898, when the
public lands of Hawaii were ceded to the United States until enactment of the
Hawaiian Homes Commission Act in 1921 the United States held title and the
Territory of Hawaii remained in the possession, use and control of the public
lands of Hawaii (except for those used for civil, military or naval purposes of
the U.S.), hereinafter called the “ceded lands”, and their revenues and
proceeds, for the benefit of the inhabitants of Hawaii. This was in
compliance with the public land trust and the Constitution of the United
States.
56. From 1921, when Congress enacted the
Hawaiian Homes Commission Act (“HHCA”) and set aside about 200,000 acres of the
public lands of Hawaii for the exclusive benefit of “native Hawaiians,” to the
present, some of Plaintiffs’ ancestors and, ultimately, all of Plaintiffs have
been deprived of the equal opportunity to use and benefit from those about
200,000 acres as well as thirty percent of the state receipts derived from the
leasing of cultivated sugarcane lands and from water licenses and from the
proceeds from other dispositions of those sugarcane lands, solely because they
(Plaintiffs) are not of the favored race, i.e., because they are not
“descendants of not less that one-half part of the blood of the races inhabiting
the Hawaiian Islands previous to 1778.”
57. In
1995, based on a memorandum of understanding signed by the previous governor and
enacted in the Special Session of 1995, Governor Cayetano signed Act 14 which
established the "Hawaiian home lands trust fund" (now provided for in HCCA
§213.6.) to be used for capital improvements and other purposes in furtherance
of HHCA and provided for the State to make twenty annual deposits of §30 million
each into that fund. As of June 30, 2000, the State had paid DHHL §158
million and had appropriated another §15 million for these
deposits.
58. As a result of the HHCA
laws, and the issuance of Homestead leases pursuant to the racial classification
in the HHCA laws and the ongoing acts of Defendants in implementing and
enforcing the HHCA laws, Plaintiffs and over one million of Hawaii’s other
citizens similarly situated, have been and continue to be harmed as
follows:
a. Diversions of public land trust
lands and revenues to DHHL harm Plaintiffs as trust beneficiaries. As
beneficiaries of the public land trust Plaintiffs, and others similarly
situated, are entitled to impartial treatment, equal access to all programs
funded by public land trust revenues, and equal opportunity to use or benefit
from the public lands. But as a result of the diversion of the about
200,000 acres of public lands and thirty percent of the State receipts from the
sugarcane lands and water licenses and other diversions of public lands and
revenues to DHHL and the issuance of Homestead leases pursuant to the racial
classification in the HHCA laws, each Plaintiff has been and continues to be
deprived of the equal protection of the laws and his or her full and equal share
of the use or benefits of the public land
trust;
59. From 1959 to 1978 the
practice of the State of Hawaii was to channel the income of the ceded lands,
except for the parts set aside under the HHCA, by and large to the Department of
Education. Final Report of the Public Land Trust, Legislative Auditor,
Dec. 1985.
60. This use of the income from the ceded
lands, except for the parts set aside under the HHCA, complied with the public
land trust because the primary purpose of the public land trust from the
inception has been public education. It also complied with the Admission
Act because the support of the public schools was one of the five permitted
purposes. It also complied with the Constitution of the United States
because it benefited all 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 student body, shared fully in that
benefit.
61. In 1978, through the Constitutional
Convention and subsequent legislation, the State of Hawaii shifted this
priority. It purportedly ordered the diversion of a “pro rata share” of
ceded lands revenues and proceeds “to the betterment of native Hawaiians”
through a newly created agency, the Office of Hawaiian Affairs (“OHA”).
One consequence of these events was to take substantially all of the net income
from the ceded lands and divert it from public education to OHA. Another
consequence was to convert what had been (except for the HHCA) a race-neutral
public land trust and convert it to one which treated beneficiaries differently
based on their ancestry.
62. As a result of the OHA
laws and the ongoing acts of Defendants in implementing and enforcing them,
Plaintiffs and about one million of Hawaii’s other citizens similarly situated
have been and continue to be harmed as
follows:
a. Diversions of public land trust
revenues to OHA harm Plaintiffs as beneficiaries of the public land trust.
At least §250 million in ceded lands revenues, or appropriations "equivalent to"
such revenues, have been diverted to OHA for the exclusive benefit of the racial
class defined as "native Hawaiian". OHA is legally obliged to segregate
and earmark funds from the public land trust for "native Hawaiians".
According to OHA's financial report of November 30, 2002, OHA holds investments
of over §304 million and total fund equity of over §337 million.
Plaintiffs believe that most of those investments and funds are derived from
public land trust revenues diverted to OHA. If the public land trust
revenues were not diverted to OHA, funding for the racially neutral purposes of
the public land trust, such as public education, could be increased; or that
revenue could be spent on racially neutral programs now funded by tax revenues
and Plaintiffs' taxes could be reduced; or funding for racially neutral programs
that each Plaintiff could qualify for could be increased. As a beneficiary
of the public land trust each Plaintiff is entitled to impartial treatment and
equal access to or benefit of all programs funded by public land trust
revenues. But as a result of the diversion of the public land trust assets
to OHA exclusively for "native Hawaiians", each Plaintiff is and continues to be
denied the equal protection of the laws and continues to be deprived of his or
her full and equal share of the benefits of the public land
trust;
CLAIMS FOR RELIEF
First Claim for Relief
Equal Protection Clauses of
Fourteenth and Fifth Amendments
63.
Plaintiffs reallege paragraphs 1 through 62 as if set forth
fully.
64. The Fourteenth Amendment of the
Constitution of the United States provides:
No State shall make or enforce
any law which shall abridge the privileges or immunities of citizens of the
United States; nor shall and State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the
laws.
65. The Supreme Court of the United
States held, in Rice v. Cayetano, 528 U.S. 495, 514 (2000) that the definitions
of “Hawaiian” and “native Hawaiian” in the OHA laws, which specifically
incorporate the HHCA definition, are racial classifications. “Ancestry can
be a proxy for race. It is that proxy here.” “The State, in enacting
the legislation before us, has used ancestry as a racial definition and for a
racial purpose.” Id at 515. “The State’s electoral restriction
enacts a race-based voting qualification.” Id at
517.
66. Giving status, entitlements, privileges,
preferences and benefits exclusively to people who meet those definitions are
the foundation and the only reason for the existence of OHA, HHCA and
DHHL.
67. The Supreme Court held in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 222 (1995) that “equal protection
analysis in the Fifth Amendment area is the same as that under the Fourteenth
Amendment” and at 226, “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.”
68. The OHA laws and the HHCA
laws cannot pass strict scrutiny because: (a) neither the State of Hawaii nor
the United States has a compelling interest in dividing its citizens into two
classes based on race and discriminating against those citizens in one class and
favoring those in the other; and (b) even if some compelling interest existed,
neither the OHA laws nor the HHCA laws are narrowly
tailored.
69. To the extent that the
Admission Act requires the State of Hawaii to adopt the HHCA and to the extent
that it is construed as requiring or compelling the State to give native
Hawaiians rights to the ceded lands, or revenues or proceeds thereof, not shared
equally by other citizens, those parts of the Admission Act are invalid under
the Fifth and Fourteenth Amendments and the Equal Footing
doctrine.
70. The OHA laws, the HHCA laws, the
Homestead leases issued pursuant to the racial classification in the HHCA laws,
and the ongoing acts, customs and usages of the State Defendants, the HHC/DHHL
Defendants and the OHA Defendants in implementing and enforcing the OHA laws and
the HHCA laws deny and continue to deny to Plaintiffs the equal protection of
the laws and are ongoing violations of the Fourteenth
Amendment.
71. If and to the extent that the
OHA laws or the HHCA laws are defended, implemented or authorized by any acts,
customs or usages of the United States or its officials, they deny and continue
to deny to Plaintiffs the equal protection of the laws and are ongoing
violations of the Fifth Amendment.
Second Claim for Relief
72.
Plaintiffs reallege paragraphs 1 through 71 as if set forth
fully.
73. The Civil Rights Act, 42 U.S.C.
'1983, provides,
74. The OHA laws,
the HHCA laws, the Homestead leases issued pursuant to the racial classification
in the HHCA laws and the ongoing acts, customs and usages of the State
Defendants, the HHC/DHHL Defendants and the OHA Defendants under color thereof
deny and continue to deny to Plaintiffs the equal protection of the laws and
rights, privileges and immunities secured to them by the Constitution and laws
of the United States and are ongoing violations of the Civil Rights Act, 42
U.S.C. '1983.
Third Claim for Relief
75. Plaintiffs reallege paragraphs 1 through 74
as if set forth fully.
76. The public land trust was
created by federal law: The Newlands Resolution in 1898 expressly
accepting the terms offered by the Republic of Hawaii (including the requirement
that, with the exceptions noted, proceeds and revenues of the ceded lands "shall
be used solely for the benefit of the Inhabitants of the Hawaiian Islands for
educational and other public purposes.") and the Organic Act in 1900
(reiterating that "All funds arising from the sale or lease or other disposal of
public land shall be 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.")
77. Having accepted the duties of a
trustee of the public land trust for the benefit of the people of Hawaii, the
United States is (or at least through the time it returned the ceded lands to
Hawaii in 1959, was) obliged to treat all of the inhabitants of Hawaii,
including the Plaintiffs, with the strict equality that is required of a trustee
who is obliged to protect the interests of multiple
beneficiaries.
78. The scope of the U.S.
fiduciary duty in administering trust property is a question of federal
law. U.S. v. Mason, 412 U.S. 391, 397 (1973). Congress's power to
change the public land trust is limited by the Fifth Amendment, the equal
footing doctrine and the fiduciary duty under federal law of the United States
as trustee of the public land trust, at least through the time it returned most
of the ceded lands to Hawaii in 1959. The power of the United States to
act as trustee of the public land trust is, like all of its powers, limited by
the Fifth Amendment. The equal protection component of the Fifth Amendment
and the obligations of a public trustee require that the United States in all
its actions related to the public lands trust treat all beneficiaries equally,
without regard to race.
79. The
United States neither had nor has any constitutional power to authorize, permit
or require the State as trustee of the public land trust to discriminate for or
against beneficiaries on grounds of race or
ancestry.
80. The State's role and the scope of
its duties as trustee is likewise limited by federal law, including the Newlands
Resolution, the Admission Act, the United States Constitution, the Fourteenth
Amendment and other federal laws. The State has accepted the duties of a
trustee of the public lands trust and has recognized that its fiduciary
obligations to the beneficiaries are governed by the same strict standards
applicable to private trustees. "The State owes this same high standard to
the beneficiaries of the ceded lands trust and, as stated in the text, the
beneficiaries of this trust should not be left powerless to prevent the State
from allegedly neglecting its obligations." Pele Defense Fund v. Paty, 73
Haw. 578, 604, 837 P.2d 1247,
81. As beneficiaries of
the public land trust, Plaintiffs have federally created rights under the
Newlands Resolution and the Admission Act and have standing to invoke 42 U.S.C.
§1983 to sue state officials who violate the terms of the federally created
trust (as limited by the requirements of the United States Constitution) or who
violate other federal laws in their administration of that
trust.
82. The OHA laws, the HHCA laws and the
ongoing acts of the State Defendants, the HHC/DHHL Defendants and the OHA
Defendants in implementing and enforcing them and the Homestead leases issued
only to people who satisfy the racial classification in the HHCA laws, breach
the fiduciary duty those Defendants, as State officials, owe to Plaintiffs as
beneficiaries of the public land trust and are ongoing violations of federal
laws.
83. If and to the extent that the OHA laws or
the HHCA laws are defended, supported, implemented or authorized by any acts,
customs or usages of the United States or its officials, they breach the
fiduciary duty the United States owes to Plaintiffs as beneficiaries of the
public land trust and are ongoing violations of federal
laws.
Prayer
Wherefore,
Plaintiffs pray that this Court:
A.
Declare:
B. Order the HHC/DHHL Defendants and/or
the State Defendants to negotiate with the existing Homesteaders for
the State's exercise of its right to withdraw the lands demised in a
way that is fair to the Homesteaders but does not further violate the rights of
Plaintiffs and others similarly
situated.
C. Permanently enjoin the
HHC/DHHL Defendants from issuing any further Homestead leases, making any
further grants, loans, guarantees, transfers, contracts or expenditures or doing
any further developments relating to the HHCA laws, or from otherwise further
implementing, enforcing or carrying out the HHCA
laws;
D. Permanently enjoin the OHA Defendants
from making any further grants, loans, guarantees, transfers, contracts or
expenditures relating to the OHA laws or from otherwise further implementing,
enforcing or carrying out the OHA laws;
E. Permanently enjoin the State Defendants from making or agreeing to make any
further transfers of public moneys, investments, lands or property of any kind
to or for OHA or to or for HHCA or DHHL and from otherwise carrying out,
implementing or enforcing the OHA laws or the HHCA
laws;
F. Order the OHA Defendants to transfer to the
State Defendants all moneys, investments, lands and property of any kind, and
all earnings thereon and growth thereof, held by or for
OHA;
G. Order the HHCA/DHHL Defendants to transfer to
the State Defendants all moneys, investments, lands and property of any kind,
and all earnings thereon and growth thereof, held by or for HHC and
DHHL;
H. Retain jurisdiction to exercise
its equitable powers and issue such further orders in aid of execution of its
judgment, to resolve disputes as to settlements between the State Defendants and
the individual Homesteaders and to accomplish, to the greatest extent possible,
either a global settlement or final adjudication of all related
claims.
I. Allow Plaintiffs their costs
herein, including reasonable attorney’s fees, and such other and further relief
as is just.
Dated: Honolulu,
Hawaii this _____ day of March,
2002.
=====================================================
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(RE: CONSTITUTIONALITY OF
OFFICE OF HAWAIIAN AFFAIRS,
HAWAIIAN HOMES COMMISSION AND RELATED
LAWS)
AND FOR AN
INJUNCTION
b. Article XII, §5 of the Hawaii State
Constitution, which, among other things, establishes the Office of Hawaiian
Affairs (“OHA”), and requires that OHA hold property in trust for native
Hawaiians and Hawaiians.
c. Article XII, §6 of the Hawaii State
Constitution, which, among other things, requires the OHA board to manage,
administer and control income and proceeds from a pro rata share of the public
land trust for native Hawaiians and other property for
Hawaiians.
d. Chapter 10 of the Hawaii Revised Statutes
(“H.R.S.”) entitled “Office of Hawaiian Affairs” which governs OHA and, among
other provisions, defines “Hawaiian” by ancestry and “native Hawaiian”
explicitly by race, i.e., “descendants of not less than one-half part of the
races inhabiting the Hawaiian Islands previous to 1778” (§10-2), requires that
OHA act for the betterment of Hawaiians and native Hawaiians ('§ 10-3 through
10-6) and requires, or may require, that 20% of revenues from the public land
trust be expended for the betterment of native Hawaiians
(§10-13.5)
e. Chapter 13D H.R.S. entitled “Board of Trustees,
Office of Hawaiian Affairs” which governs the OHA
board.
f. §11-1, 15 and 17 H.R.S. to the extent that
they define "Hawaiian" and govern OHA
elections.
g. §171-18 H.R.S. which requires that the lands
ceded to the United States by the Republic of Hawaii under the joint resolution
of annexation in 1898 and returned to the State of Hawaii by the Admission Act
in 1959 shall be held as a public trust for the support of public schools and
other public educational institutions and for other purposes including “the
betterment of native Hawaiians”. (This provision is challenged only to the
extent that it gives or is construed or implemented to give native Hawaiians any
protection, entitlements, rights, privileges or immunities not given equally to
other beneficiaries of the public land
trust.)
h. All other provisions of the constitutional law,
statutes, regulations, case law and all actions, customs and usages of the state
of Hawaii which create, establish, authorize, implement, fund, give public lands
or public moneys to, or otherwise aid, assist or benefit OHA. (The
foregoing constitutional provisions, statutes and other laws and actions,
customs and usages are sometimes hereinafter referred to collectively as “the
OHA laws”.)
b. §4 of the Admission Act of March 18, 1959, Pub
L 86-3, 73 Stat 4 (the “Admission Act”) which requires, as a compact with the
United States, that the HHCA shall be adopted as a provision of the Constitution
of the State of Hawaii and, among other things, prohibits the amendment or
repeal of the HHCA without the consent of the United
States;
c. The Hawaiian Homes Commission Act, 1920, Act of
July 9, 1921, c 42, 42 Stat 108, as amended, (HHCA) which, among other things,
sets aside approximately 200,000 acres of the public lands of Hawaii for the
benefit of persons defined explicitly by race, i.e., “descendants of not less
than one-half part of the blood of the races inhabiting the Hawaiian Islands
previous to 1778.”
d. Act 14 of the Special Session Laws of Hawaii
1995 which, among other things, established the Hawaiian home lands trust fund
and required that the State make twenty annual deposits of §30 million or their
discounted value equivalent, into the trust fund. Also HHCA §213.6 which
is the codification of Section 7 of said Act
14.
e. Continuation of existing Homestead leases under
terms that require or permit future governmental action based on the racial
classification in the HHCA or deny to Plaintiffs in the future the equal
protection of the laws and the benefit of the lands covered by the
leases.
f. All other provisions of the constitutional law,
statutes, regulations, case law and all actions, customs and usages of the State
of Hawaii which create, establish, authorize, implement, fund, or otherwise
carry out the HHCA or give public lands or public moneys to or otherwise aid,
assist or benefit the Hawaiian Homes Commission or the department of Hawaiian
home lands. (The foregoing constitutional provisions, statutes and other
laws and actions, customs and usages are sometimes hereinafter referred to
collectively as “the HHCA laws”.)
b. All other provisions of the statutes,
regulations, case law and all actions, customs and usages of the United States
which enforce, implement or carry out §5(f) of the Admission Act so as to
require or authorize the State of Hawaii to give native Hawaiians any
protection, right, title or interest in the “ceded lands” or public lands of
Hawaii, or the proceeds or income therefrom, not given equally to other
beneficiaries of the public land
trust.
(With notations showing applicability to Plaintiffs’ claims in this
action.)
b. also violated the “equal footing doctrine”
which prohibits Congress from imposing, as a condition of statehood, any
restriction on a state=s constitutional powers not required of other
states;
c. also caused the United States to violate its
fiduciary duty as trustee of the public land trust to all the citizens of Hawaii
who had none or less than “one-half part of the blood of the races inhabiting
the Hawaiian Islands previous to 1778.”
1978 - Hawaii Constitution
purportedly amended, creates OHA, further breach of
public land trust and
violation of U.S. Constitution
b. Required the State, as trustee of the public
land trust, to violate its fiduciary duty to Plaintiffs and to over 95% of the
beneficiaries, i.e., the about 1.1 million citizens of Hawaii who have less than
50% or no Hawaiian blood;
Rice v, Cayetano, 528 U.S. 495,
struck down OHA’s
Hawaiians-only voting restriction. In applying the Fifteenth Amendment,
the Court rejected the arguments to the contrary by OHA and the State and held
that the definitions of “Hawaiian” and “native Hawaiian” are racial
classifications.
b. Existing Homestead leases require the
HHC/DHHL Defendants to continue to enforce and administer racially
discriminatory provisions for over 100 more years. They inflict ongoing
and continuing harm on Plaintiffs. As of January 31, 2002 there were 7,281
Homestead leases outstanding (including 5,823 residential, 1076 agricultural and
382 pastoral) covering some 42,000 or more acres from the public land
trust. Each of these Homestead leases is required to have an initial term
of 99 years "unless sooner terminated as hereinafter provided", extendable by
DHHL for an additional term of 100 years, at rent of §1 per year. The
original lessee is required to swear under oath that the lessee is a native
Hawaiian. Upon the death of a lessee the lessee's interest may vest in
certain relatives who are at least one-quarter Hawaiian. The lessee is not
permitted to transfer or hold the premises for any other person except a native
Hawaiian or Hawaiians, and then only upon the approval of DHHL. The
lessee's interest is not subject to attachment, levy or sale upon court process,
except pursuant to agreement with a native Hawaiian or Hawaiians or for any
indebtedness due to or assured by DHHL. The lessee may mortgage or pledge
his or her interest only with the consent and approval of the HHC. In the
case of residential Homestead leases, the lessee is required to occupy the lot
as the lessee's home and to continue to occupy and use the lands on lessee's own
behalf. The agricultural Homestead leases require the lessee to practice
"good husbandry" and, should DHHL deem advisable and so require, the lessee
shall adopt a farm or ranch plan prepared by the U.S. Soil Conservation
Service. Also, "The primary purpose of the Act being the successful
rehabilitation of native Hawaiians under the guidance and tutelage of the Lessor
[DHHL], it is deemed necessary and in furtherance of said Act and the purpose
thereof that the Lessor retain, and it does hereby so retain, the right to
approve in advance any proposed agreement between the Lessee and another
relating in any way to the use of the agricultural lot." Pastoral
Homestead leases have similar provisions for good husbandry and the
rehabilitation of native Hawaiians under DHHL's guidance and tutelage. The
result of each of those Homestead leases is to deprive Plaintiffs of the benefit
of some part of the public lands. A prudent trustee would and could obtain
fair market lease rents substantially higher than §1 per year. The
HHC/DHHL Defendants, by complying with the Homestead leases and performing the
duties and exercising the rights of Lessor under those leases, deprive and
continue to deprive Plaintiffs, and others similarly situated, of the benefit of
over 42,000 acres of lands in the public land trust, and the equal protection of
the laws, solely because Plaintiffs are not of the favored
race.
c. DHHL has the right to withdraw
the whole or any part of the lands demised by the Homestead leases as may be
required for a public use and purpose. Compliance with the 14th Amendment
and the State's fiduciary duty as trustee of the public land trust are public
uses and purposes. Under the Homestead leases, the DHHL reserves "The
right to withdraw from the operation of this lease the whole or any part or
portion of the lands demised hereby, and any interest therein as in the
exclusive judgment of the Lessor [DHHL] may be required for a public use and
purpose ." The HHC/DHHL Defendants and the State Defendants are all required to
take an oath of office to support and defend the Constitution of the United
States. (Hawaii State Constitution, Art.XVI §4; §202
HHCA; §26-34 HRS). Under the Constitution of the United States,
state officials, including the HHC/DHHL Defendants and the State Defendants, are
forbidden from denying to any person the equal protection of the laws on account
of race. Their duty to support and defend the Constitution of the United
States is a public purpose which overrides any inconsistent duties arising under
state law or federal statutes. Also, both federal and state trust laws
require the HHC/DHHL Defendants and the State Defendants to comply with the
State's fiduciary duty and public purpose to act impartially in administering
the public land trust.
d. Appropriations for
DHHL harm Plaintiffs as taxpayers. Part of the State of Hawaii's tax
revenues (which include taxes Plaintiffs pay to the State of Hawaii) are
appropriated to the Department of Hawaiian Home Lands (DHHL) and part also may
go to pay principal and interest on bonds that generated funds that have been
appropriated to DHHL. For instance, for Fiscal Year 2001 at least
§7,154,969 was appropriated to DHHL in general and special funds paid by the
Plaintiffs and other taxpayers of Hawai`i. 2000 Sess. L. Act 281.
The Legislature also approved §25,000,000 in revenue bonds. The Hawaiian
Homes Commissioners administer DHHL's funds and decide how those funds will be
spent. The HHCA laws require the Hawaiian Homes Commissioners to work
solely for the benefit of the racial class of native Hawaiians and to promote
the interests of people in that class, particularly the people who have
qualified for Homesteads based on their racial ancestry. If the state tax
revenues (including taxes Plaintiffs pay) were not diverted to DHHL, Plaintiffs'
taxes could be reduced or funding for racially neutral programs that Plaintiffs
could qualify for could be increased. Although each Plaintiff's tax burden
is increased by the appropriations to DHHL, and by any appropriations to pay
principal and interest on bonds that generated funds that have been appropriated
to DHHL, every Plaintiff is denied any benefit of those appropriations solely
because of his or her ancestry, i.e., he or she is not "native Hawaiian" since
none of Plaintiffs have the required one half part of the favored racial
ancestry. Every Plaintiff is injured in that he or she is denied the equal
protection of the laws and is forced to pay taxes for unconstitutional racially
discriminatory programs.
b. Appropriations for OHA harm
Plaintiffs as taxpayers. Part of the State of Hawaii's tax revenues (which
include taxes each Plaintiff pays to the State of Hawaii) are appropriated to
the Office of Hawaiian Affairs (OHA) and part also go to pay principal and
interest on bonds that generated funds that have been appropriated to OHA.
The trustees of the OHA administer OHA's funds and decide how those funds will
be spent. The OHA laws require the OHA trustees to work solely for the
benefit of the racial classes of Hawaiians and native Hawaiians and to promote
the interests of people in those racial classes. If the state tax revenues
(including taxes each Plaintiff pays) were not diverted to OHA, each Plaintiff's
taxes could be reduced or funding for racially neutral programs that each
Plaintiff could qualify for could be increased. Although each Plaintiff's
tax burden is increased by the appropriations to OHA, and the appropriations to
pay principal and interest on bonds that generated funds that have been
appropriated to OHA, each Plaintiff is denied any benefit of the portions set
aside for "native Hawaiians" solely because of his or her ancestry, i.e., none
of the Plaintiffs have the required one half part of the favored racial
ancestry. All except three of the Plaintiffs are also denied any benefit
of the portions set aside for "Hawaiians" because they have none of the favored
ancestry. Every Plaintiff is harmed in that he or she is denied the equal
protection of the laws and is forced to pay taxes for unconstitutional racially
discriminatory programs.
c. The exemption of
Homestead lots from real property taxes also harms Plaintiffs as
taxpayers. The City and County of Honolulu and the County of Maui both
exempt Hawaiian Homesteads from paying real property taxes. To be awarded
a Hawaiian Homestead one must be native Hawaiian or the child of a native
Hawaiian Homesteader. As a result of this racially discriminatory tax
exemption, taxes imposed on the owners of other property, including every
Plaintiff, in order to pay the costs of the government are higher than they
otherwise would
be.
Violation of
the Civil Rights Act, 421 U.S.C. '1983
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress.
Breach of Public Land
Trust
1264 (1992). The trustee must deal
impartially when there is more than one beneficiary. Ahuna v. Dept.
Hawaiian Home Lands, 64 Haw. 327, 340 (1982) citing federal authorities
including Mason, supra.
1. The OHA laws and the HHCA laws are invalid
under the Constitution of the United States, effective as of the date of the
Court's Judgment;
2. All
moneys, investments, lands and property of any kind, and all earnings thereon
and growth thereof, held by or for OHA, HHC or DHHL, are general funds and
property of the State of Hawaii;
a. All
such property is free of any trust or other encumbrance which restricts its use
to the benefit of any racial classification or prevents it from being used for
the benefit of all of the people of Hawaii;
and
b. All
such property is within the care and control of the Defendant Governor to be
used for such constitutional and non-discriminatory purposes as the State deems
appropriate and in compliance with the public land trust for the inhabitants of
the State of Hawaii; and
3.
Continued management, administration and enforcement of the existing Homestead
leases by HHC/DHHL Defendants would be an ongoing and continuing violation of
federal law (the equal protection clause of the Fourteenth Amendment and the
Civil Rights Act) and a continuing breach of the State's fiduciary duty, under
federal law, as trustee of the public land
trust;
__________________________________
H. WILLIAM
BURGESS
PATRICK W. HANIFIN
Attorneys for Plaintiffs