Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 10, 1 October 1993 — Federal court dismisses suit on 'single definition' referendum [ARTICLE]

Federal court dismisses suit on 'single definition' referendum

A suit against trustees of the Office of Hawaiian Affairs has been dismissed by a federal appeals court in San Francisco, whieh found that the trustees did not violate any clearly established law in using 5(f) ceded land trust funds when they eonducted a referendum of Hawaiian voters in 1988 on whether the legal definition of "native Hawaiian" should be changed. The United States Court of Appeals, Ninth Circuit, also ruled in Price v. Akaka, that the trustees had "qualified immunity" and were shielded from liability for civil damages for "discretionary acts" carried out in their individual capacity as government officials. The ruling affirmed the right of the trustees to consult with their constituents through the means of the referendum ballot, and the right of the board to have used ceded land resources for this purpose. The suit was brought by the Hou Hawaiians, a "native Hawaiian 'ohana" (Kamuela Price and his son Nui Loa Price), and named trustees Moanike'ala Akaka, Rod Burgess, Clarence Ching, A. Frenchy DeSoto, Louis

Hao, Manu Kahaiali'i, Thomas Kaulukukui, Sr., Moses Keale, Sr. and Kevin Mahoe as defendants. (Editor's note: Akaka, DeSoto and Keale are the only trustees named in the suit still remaining in office.) The Hou Hawaiians charged that the board of trustees had wrongfully co-mingled, managed, administered and expended 5(f) trust funds in violation of the Hawai'i Admission Act of 1959. They claimed the trustees were using 5(f) money to "break the trust." The Office of Hawaiian Affairs was established in 1978 by a state constitutional convention. The state Legislature set aside a pro rata share of the revenues from the 5(f) public land trust to be used for the betterment of conditions of native Hawaiians, as defined by the Hawaiian Homes Commission Act of 1920 (that is, persons of 50 percent or more native blood). This restricts the use of 5(f) funds to the benefit of native Hawaiians. The Ninth Circuit ruling by Judge Thomas Tang found "there is no clearly established law prohibiting the OHA trustees from

expending 5(f) funds in support of the single definition referendum whieh questioned the 50 percent or more blood quantum requirement for native Hawaiian status. In other words, we are unaware of any law indicating that elimination of the blood quantum requirement would not be for the 'betterment of the eonditions of native Hawaiians' — one of the five stated purposes of the public land trust established by the Admission Act. "To the contrary, established law suggests that amending the blood quantum requirement would benefit native Hawaiians." The court cited previous case law to support the idea that there was no evidence that the single definition referendum would not be for the betterment of conditions of native Hawaiians, and that the referendum would be "one of many ways to achieve the betterment of the conditions of native Hawaiians even though all Hawaiians would benefit." The court also noted that in 1978 the Hawai'i Constitutional Convention standing committee report directed OHA to address •the issue of whether the blood

quantum requirement should be amended. OHA's 1988 referendum asked 63,859 registered voters, both native Hawaiian and Hawaiian (less than 50 percent quantum, as defined by law), whether they favored the creation of a single definition of "native Hawaiian." Of the 24,408 OHA

voters who mailed in their ballots, 79 percent voted in favor of the single definition. To change the definition would require a state constitutional amendment and/or Congressional approval, an action whieh the board of trustees has not pursued.