Ka Wai Ola - Office of Hawaiian Affairs, Volume 13, Number 8, 1 August 1996 — Heely rules in favor of native Hawaiians [ARTICLE]

Heely rules in favor of native Hawaiians

by Patrick Johnston

The battle over ceded lands revenues took a turn in OHA's favor last month when Circuit Court Judge Daniel Heely said OHA was legally entitled to revenues generated by a certain operations on ceded lands. At stake is close to $200 million dollars in revenue and interest on unpaid debt.

The issue dates back to 1990 legislation that attempted to clarify what ceded lands moneys were owed to OHA. The passage of the Act 304 led to a settlement in whieh OHA received approximately $130 million in back payments for revenues generated by operations on ceded lands beginning in 1982. However, not all issues were settled by the legislation. Unresolved was whether OHA should receive certain ceded lands

revenues from specific operations. These included: • Duty Free Shop (DFS) in Waiklkī • Hilo Hospital • Hawai'i Housing Authority (HHA) and Housing Finance and Development Corporation (HFDC) projects on ceded lands The most significant of these are the rev-

enues generated by DFS. While not on ceded lands OHA attomeys argued - and Heely agreed - that the retail oudet is part of airport operations and could not operate without the airport facility, whieh is on ceded lands. According to estimates produced by the accounting firm Deloitte and Touche, a 20 percent share of revenues from Duty Free for the years 1981 to 1991 would amount to over $64 million.

Two years ago OHA sued the state in Circuit Court to resolve the matter and followed up this year with a request for a partial summary judgement. The state responded by filing a motion to dismiss the suit in Circuit Court using the doctrine of sovereign immunity. Judge Heely rejected the state's request for a dismissal and raled, as a matter of law, that OHA could sue the state and is entitled to revenues generated from the disputed ceded lands operations. Heely said that the state did not own the ceded lands but held them in trust. Because they had assumed this trast responsibility they "should be liable in damages for the breach of its fiduciary duties." The state plans to appeal the decision to the Hawai'i Supreme Court. If the court accepts Heely's judgement then the raling stands. If the Supreme Court rejects the judgement then it is sent back to circuit court for trial. Other Heely ruling highlights • The court took "judicial notice" of the U.S. Senate Joint Resolution 19 whieh aeknowledged the illegality of the overthrow and the transfer of ceded lands from the Hawaiian monarchy to the republic in 1893. • Heely also took notice of the Aloha Spirit Act of 1986 whieh says judges ean take into eonsideration the "aloha spirit," defined as the unconditional "mutual regard and affection" individuals should have for eaeh other whieh is essential in a "collective existence."