DECLARATION OF PLAINTIFF SANDRA PUANANI BURGESS WITH EXHIBIT LIST
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.
UNITED
STATES DISTRICT COURT
FOR THE DISTRICT
OF HAWAII
DECLARATION
OF PLAINTIFF SANDRA PUANANI BURGESS
IN SUPPORT
OF PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF
1.
I am a citizen, resident, inhabitant, registered voter, and taxpayer
of the State of Hawai'i and of the United States and I am over the age
of 18.
2.
I am an American of 25% Hawaiian, 25% Filipino and 50% Chinese ancestry.
My Chinese Great-Grandfather came to Hawaii during the years of the
Kingdom. His son, my Grandfather, was born in Kula, Maui, Kingdom of
Hawaii June 19, 1892. I was born and raised in Hawaii and have lived
here all my life.
3.
As a citizen and inhabitant of Hawai`i, I am a beneficiary of the public
land trust, no more and no less than any other citizen and inhabitant.
4.
In this declaration, I use the term "Hawaiian" as it is defined in HRS
§10-2: any descendant of the people inhabiting the Hawaiian Islands
in 1778. I use the term "native Hawaiian" as it is defined in HRS §
10-2 and the Hawaiian Homes Commission Act: any descendant of not less
than one half part of the races inhabiting the Hawaiian Islands previous
to 1778.
5. Appropriations for OHA harm me as a taxpayer. Part of the State of Hawaii's tax
revenues (which include taxes I pay 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 I pay) were not diverted
to OHA, my taxes could be reduced or funding for racially neutral programs
that I could qualify for could be increased. Although my 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, I am denied any benefit of the portions set aside
for "native Hawaiians" solely because of my ancestry, i.e., I do not
have the required one half part of the favored racial ancestry. I am
injured in that I am denied the equal protection of the laws and I am
forced to pay taxes for unconstitutional racially discriminatory programs.
6. Appropriations for DHHL harm me as a taxpayer. Part of the State of Hawaii's tax
revenues (which include taxes I pay to the State of Hawaii) are also
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. The Hawaiian Homes Commissioners
administer DHHL's funds and decide how those funds will be spent. The
Hawaiian Homes Commissioners are legally obliged 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 I pay) were not diverted to DHHL, my taxes
could be reduced or funding for racially neutral programs that I could
qualify for could be increased. Although my 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, I am denied any benefit of those appropriations solely because
of my ancestry, i.e., I am not "native Hawaiian" since I do not have
the required one half part of the favored racial ancestry. I am injured
in that I am denied the equal protection of the laws and I am forced
to pay taxes for unconstitutional racially discriminatory programs.
7. Diversion of public land trust revenues to OHA harms me
as a trust beneficiary.
From 1990, when Act 304 was enacted, until September 12, 2001 when the
Hawaii Supreme Court held that Act 304, by its own terms, had been effectively
repealed, twenty percent of the revenue from the public land trust was
required by Hawaii law to go to OHA for the exclusive use and benefit
of "native Hawaiians". New bills are now 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.
(See Exhibit B attached hereto.) Some legislative leaders have said
that interim funding in some amount would probably be favorably considered
in the current session. (Exhibit D.) Hundreds of millions of dollars
of revenue from the public land trust have been diverted to OHA for
the exclusive benefit of "native Hawaiians". 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
(Exhibit B, pg. 17.), OHA holds investments of over $304 million and
total fund equity of over $337 million. I 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
my taxes could be reduced; or funding for racially neutral programs
that I could qualify for could be increased. As a beneficiary of the
public land trust I am 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", I and other beneficiaries of
the public land trust are denied the equal protection of the laws and
the equal right to benefit from the revenue of the trust.
8. Diversion of public land trust land and revenues to DHHL
harms me as a trust beneficiary.
Approximately 200,000 acres of land in the public land trust was diverted
to and is being administered today by the Hawaiian Homes Commissioners
for the exclusive use and benefit of native Hawaiians. Under the HHCA,
the Commissioners are required to use this land and the revenues it
generates for the benefit of native Hawaiians to the exclusion of other
beneficiaries of the public land trust. As a beneficiary of the public
land trust I am entitled to impartial treatment, equal access to all
programs funded by public land trust revenues, and equal opportunity
to use and benefit from those public lands. But as a result of the
diversion of the public land trust assets, I and other beneficiaries
of the trust are denied any use or benefit or share of the revenues
from this part of the public land trust; and I am denied access to the
DHHL programs that use this land and revenues generated by this land.
9. The exemption of Homestead lots from real property taxes
also harms me as a taxpayer.
The City and County of Honolulu exempts 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 me, in order to pay the costs
of the government are higher than they otherwise would be.
10.
If preliminary and permanent injunctive relief is not granted, I will
continue to suffer the irreparable loss of my constitutional rights
as a citizen, resident, inhabitant, taxpayer and beneficiary of the
public land trust.
11.
On February 19, 2002 the Executive Assistant of DHHL told us that as
of January 31, 2002, there were 7,281 Homestead leases outstanding (5,823
residential, 1076 agricultural and 382 pastoral.)
12. Attached
hereto are true copies, to the best of my knowledge and belief, of the
following documents:
Description of Exhibits
Exhibit
A U. S. Supreme Court decision in
Rice v. Cayetano, decided February 2, 2000.
Exhibit
B This Court's Order Granting Plaintiffs' Cross Motion for Summary
Judgment and Denying Defendants' Motion for Summary Judgment entered
September 19, 2000 in Arakaki v. State, Civil No. 00-00514 HG-BMK.
Exhibit
C Department of Hawaiian Home Lands, an Overview 1997, revised 6/30/00.
Exhibit
D The Order in the Barrett case CV. No.00-00641 & CV 00-00645
DAE KSC granting Defendant OHA's motion for judgment on the pleadings
against Plaintiff Barrett.
Exhibit
E Statement by President Ronald Reagan upon signing H.J. Res. 17
in 1986. HHCA "employs an express racial classification." "raises
serious equal protection questions."
Exhibit
F Statement by President George Bush upon signing S. 566 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."
Exhibit
G Statement by President George Bush upon signing S.J. Res. 23 October
6, 1992. HHCA "raises serious equal protection questions."
Exhibit
H Statement by President George Bush upon signing S. 2044 October
26, 1992. Native American Languages 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."
Exhibit
I Statement by President George Bush upon signing S. 566 October
28, 1992. Veterans' Home Loan Program. The race based classification
of "Native Hawaiian" cannot be supported as an exercise of the constitutional
authority granted to the Congress to benefit Native Americans as members
of tribes."
Exhibit
J This Court's Order Granting Plaintiffs' Motion for Preliminary
Injunctive Relief entered August 21, 2000 in
Arakaki v. State, Civil No. 00-00514 HG-BMK.
Exhibit
K Selected pages of Brief for the Respondent,
Rice v. Cayetano, filed July 28, 1999, flysheet and pp. 6-11,
31, 36-39.
Exhibit
L Selected pages of Amicus Curiae Brief of the Office of Hawaiian
Affairs,
Rice v. Cayetano, flysheet and pp. 9, 13, 23, 24 & 27
Exhibit
M Brief for U.S. in Rice v. Cayetano, flysheet and pp. 22
and 23.
Exhibit
N Respondent's Brief in Opposition dated December 29, 1998, to petition
for certiorari in Rice v. Cayetano, fly sheet and pp. 17, 18
& 19
Exhibit
O Jon M. Van Dyke, "The Political Status of the Native Hawaiian
People", Yale Law & Policy Review, Vol. 17 No. 1, 1998 p. 144
Exhibit
P Annexation Resolution (Newlands Resolution), 30 Stat. 750 (1898)
(As reprinted in 1 rev. L. Haw., 1955 at 13-15); Treaty of Annexation
of Hawai`i, Negotiated in 1897.
Exhibit
Q Cover page and pages 6, 14, and 17-28 from the Department of Hawaiian
Home Lands Annual Report FY 1999-00.
Exhibit
R Notice to Requester 2/13/02 from DHHL with the attached sample
Homestead lease.
Exhibit
S Selected Pages from the February 2002 issue of OHA's newspaper,
Ka Wai Ola, reporting on OHA Financial Report for November 30, 2001
showing Investments of $304 million and Total Fund Equity of $337,985,289
and future plans; including pp. 1, 4, 5, 8, 13, 15 and 17.
13. The
following exhibits are not cited in the Memorandum in Support but support
allegations of the complaint relevant to the motion for injunctive relief:
Exhibit
T article from the Honolulu Star-Bulletin of September 21, 2001.
Hee says "OHA could have settled for $251 million and 360,000 acres
of ceded land."
Exhibit
U Pages 1 and 19 of the October 2001 issue of Ka Wai Ole OHA Court
Scraps Heely Decision, ACT 304. Hee to meet with Governor.
Exhibit
V First page of the January 2002 issue of OHA's newspaper, Ka Wai
Ola. Senator Hanabusa: Interim solution "most pressing issue."
Exhibit
W Robert C. Schmitt, Demographic Statistics of Hawaii, 1778 Ð 1968
(Honolulu 1968) Tables 1.d, 1.e & 1.1.
Exhibit
X Amicus Curiae Brief by various states, including Hawaii, in support
of petition for cert. In State of Utah, Div. Of State Lands v. U.S.
6/27/86, (fly sheet and pages 10 through 13)
Exhibit
Y Attorney General Opinion July 17, 1995 Re: Authority to Alienate
Public Trust Lands.
"fn1. 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, the Congress served as trustee;
under the Organic Act, the Territory of Hawaii served as trustee."
Exhibit
Z Patrick Hanifin, "To Dwell on the Earth in Unity: Rice, Arakaki,
and the Growth of Citizenship and Voting Rights in Hawai`i" Hawai`i
Bar Journal, Volume V,
No. 13, 2002
Exhibit
AA Opinion of Attorney General of the U.S., 22 Op.Atty.Gen. 574
(1899)
Page 576. "The effect of this
clause is to subject the public lands in Hawai`i to a special trust,
limiting the revenue from or proceeds of the same to the uses of the
inhabitants of the Hawaiian Islands for educational or other public
purposes."
Exhibit
BB Ballot for the proposed constitutional amendments at the general
election Tuesday November 7, 1978 and the informational booklet which
was part of the official ballot, reprinted in
Kahale Kai v. Doi, 60 Haw. 324, 349-353 (1979).
Exhibit
CC Vol. I Proceedings of the Constitutional Convention of 1978 pages
497 Ð 499, Journal 64th day, September 21, 1978. During
debate, opinion from AG read re: ballot with votes in A & B invalid.
Convention then adopts SCR No. 99 & Res. No. 30 RD 1 requesting
not disenfranchise voters, count vote in B & disregard A.
Exhibit
DD 1978 Constitutional Convention Resolution No. 30, R.D. 1 and
Standing Comm. Report No. 99.
Exhibit
EE Statewide Summary Report from the Official Results of Vote Cast
General Election Tuesday, Nov. 7, 1978, 5 pages printed on 11/08/78.
I
declare under penalty of perjury that the foregoing is true and correct.
Executed
this 1st day of March, 2002, Honolulu, Hawaii.
______________________________________
SANDRA
PUANANI BURGESS