Hawai‘i’s Public TrustLands; aka “The Ceded

Lands Trust”

A Nation Among Nations:

By 1810, Kamehameha I, unites the islandsunder one rule.

By 1840, Kamehameha’s successors haveestablished a constitutional monarchy,recognized as a fully independent andsovereign nation by the United States, GreatBritain, France, and other nations.

The Mahele:

Through the Mahele (division), theintertwining interests of king, government,chiefs, and common people in Hawai’i’s fourmillion acres are separated.

Government Lands (36%) set aside to benefitthe chiefs and people; Crown Lands (24%)provide income and support for crown

Held in trust on behalf of the gods foreveryone (trust principle)

The Māhele (con’t.)

The common people receive a total of28,658 acres, less than 1 percent of thetotal.

Due to unfamiliar concept of privateproperty, lack of education, cost ofsurveys, and improper influence

A Nation In Limbo:

On February 1, 1893, Stevens raises the Americanflag and proclaims Hawai’i a protectorate of theUnited States.

President Grover Cleveland refuses to recognize thelegitimacy of the provisional government

Republic of Hawaii is established on July 4, 1894.

The Move For Annexation:

In 1897, President William McKinley advocates for“control” of Hawai’i.

The new administration negotiates an annexationtreaty, which is ratified by the Hawaiian Republic’sSenate on September 8, 1897.

When an annexation treaty with the United Statesappears imminent, Native Hawaiians present what isnow known as the ku`e petitions to the U.S.Congress—over 21,000 signatures—protestingannexation and calling for the restoration of theHawaiian government. The annexation treaty fails.

Annexation:

The next year, pro-annexation forces introduce ajoint resolution of annexation.

With the advent of the Spanish-American War, theislands become strategically significant andannexation is claimed through a joint resolution.

1898: 1.8 million Acres ofGov’t and Crown LandsTransferred to the UnitedStatesWhile acknowledging the trust nature of

such lands, the U. S. sets asidesignificant tracts for military use.

By 1959, nearly 288,000 acres have beencommitted to federal government use.

Most of this land remains under federalcontrol today.

Statehood

Hawai`i becomes the 50th state of the Union in 1959

Trust obligation for Government and Crown Landscontinue to the State through Admissions Act

The Act omits any land previously set aside forfederal use i.e. Kaho‘olawe and Makua Valley

Other lands which no longer maintain any significantfederal use may arguably be returned for public use;i.e., Bellows Air Force Base.

State of Hawai‘i as Trustee: Section 5(f) of the Admissions Act: the

State holds lands as a public trust for:

The support of public schools and otherpublic institutions

For the betterment of conditions ofnative Hawaiians, as defined in theHHCA

The development of farm and homeownership

Public improvements

The provision of lands for public use.

1978: ConstitutionalAmendments: New sections added:

Lands granted to the State by Section(5)(b) (except HHCA’s “available lands”)held as public trust for Native Hawaiiansand the general public. Art. XII, sec. 4

The Office of Hawaiian Affairs created.Art. XII, sec. 5

OHA to receive a pro rata share ofincome and proceeds from this trust.Art. XII, sec. 6

Defining the Trust Res andIncome 1987: Hawai‘i Supreme Court dismisses

OHA’s claim of entitlement to 20% as a“political question” requiring furtherlegislative action. OHA v. Yamasaki.

1990: Act 304 defines trust corpus andtrust revenues:

Defining the Trust con’t.

1993: OHA and State enter into MOUand State pays OHA $135 million foramounts past due plus interest.

MOU does not resolve all issues; i.e.,revenues from use of trust lands forairport and state housing projects.

1997:Act 329 passed in response to trialcourt ruling in favor of OHA. $15.1million for FY 1997-98 & 1998-99.

Defining the Trust Con’t.

2001: OHA v. State: Supreme Courtfinds Act 304 invalid. State ceasespayments.

2003: State recommences payments.OHA’s suit against the State claimingcontract entered into through Act 304fails.

Defining the Trust Con’t.

2006: Act 178 is passed and providesfor $15.1 million annual payments toOHA instead of pro rata share or 20%of trust land revenue.

Subsequent efforts to resolve the issuefail.

2012: Act 15 passed: 10 parcels inKaka‘ako in exchange for all backrevenue claims (1978 through 6/30/12).

Enforcement of TrustProvisions:

Federal law allows:

Beneficiaries of the Hawaiian HomesCommission Act to sue to stopunauthorized uses of land held by Statein trust for the benefit of NativeHawaiians.

Native Hawaiians may sue to enjoinbreaches of public land trust establishedby Section 5(f) of the Admissions Act.

Enforcement in Federal Court:

1988: Ulaleo v. Paty: State exchange oftrust lands with a private party forgeothermal development challenged.

1990: Price v. Hawai‘i. Breach claimfor failure to keep trust lands andincome separate from other state assetsand funds in violation of Admissions Act

Dismissed based on sovereign immunity

Federal Court (Con’t.) 1990: Napeahi v. Paty: Plaintiff claimed

recertified shoreline included trust landseaward of prior shoreline boundaryconstituting an abandonment of trustland.

District Court ruled land was private.

Ninth Circuit reversed

Title to land vested in state whichbreached its trust obligation when itconveyed land to private party viashoreline recertification.

Who Benefits?

2008: native Hawaiians sue OHA infederal court to stop use of trust fundsfor Hawaiians with less than 50% blood(Day v. Apoliona)

Ninth circuit and District Court held thatuse of funds for all Hawaiiansreasonable

2013: The same claims brought in StateCourt (Kealoha v. Machado). Casedismissed, affirmed by Supreme Court

Enforcement in State Court 1992: In PDF v. Paty, (state court

action with same facts as Ulaleo v.Paty), found the claims res judicata.

In a footnote though, the Court notedthat the state’s trust duties with respectto the public land trust were identical toits duties over Hawaiian Home Lands;i.e., administer the trust solely in theinterest of the beneficiaries and usereasonable skill and care to make trustproperty productive.

State Court Action (Con’t.)

2008: OHA v. HCDCH. Suit to enjoinstate from selling off trust lands.

Trial court ruled claim barred by,among other jurisdictional defenses,sovereign immunity.

Supreme Court reverses: Relies on1993 Apology Resolution to hold thatclaims of Native Hawaiians to theselands must be resolved first.

OHA v. HCDCH (Con’t.)

2009: State appeals the Hawai‘iSupreme Court ruling to U. S. SupremeCourt

U. S. Supreme Court finds state court’sreliance on 1993 Apology Resolutionfaulty as it did not create anyenforceable substantive rights.

Hawai‘i Supreme Court moratorium stillsupported by state law.

OHA v. HCDCH DismissedWithout Prejudice: The State, OHA and three individual

plaintiffs reach agreement to dismisslawsuit so long as issue is addressed insubsequent legislation.

Act 176: Requires two-thirds legislativeapproval of any sale or gift of publictrust lands.

A 2011 amendment now only requires asimple majority for land exchanges.

Questions?