Ka Wai Ola - Office of Hawaiian Affairs, Volume 27, Number 11, 1 November 2010 — OHA in the courts [ARTICLE+ILLUSTRATION]

OHA in the courts

Over its lifetime, OHA has fought legal battles on behalf of Native Hawaiians rights and entitlements. While decisions take plaee in the quiet of a courtroom, their implications ean affect all of us in our daily lives. Here, we offer a highlight of some of the most important legal fights in OHA's history. 1987 - OHA v. Yamasaki OHA sought 20 percent of the ceded land revenue. The Hawai'i Supreme Court held the percentage of ceded land revenue to whieh OHA was entitledwas a nonjusticiable political question and thereforecould not be resolved without legislative action. [decided 1987]

1994 - OHA v. State State statute, as amended by act 304, provided that OHA receive 20 percent of all revenue derived from ceded lands and OHA sought payment. The Hawai'i Supreme Court held that, as applied to airport revenue, Act 304 conflicted with the provisions of the Forgiveness Act and therefore was invalid. Without Act 304, the appellate court could not determine whether OHA was entitled to the specific revenues sought. 1994 - OHA v. Housing Finance and Development Corporation (HFDC) OHA sued to stop the sale of ceded lands claiming breach of trust owed by the State to native Hawaiians. The Hawai'i Supreme Court ruled in favor of OHA, holding that the State has a fiduciary duty to preserve ceded lands until the unrelinquished claims of native Hawaiians has been resolved; the court granted OHA an injunction prohibiting the State from selling ortransferring ceded lands. In 2009, the U.S. Supreme Court reversed the judgment of the Hawai'i Supreme Court based on its interpretation of the Apology Resolution. OHA negotiated with the State and Act 176 - whieh requires a two-thirds majority of both houses before any public land may be sold - became law in July 2009. [decided 2009] 1995 - OHA v. DOE OHA filed suit against the Department of Education for failing to provide sufficient Hawaiian language in the public schools. In May 2000, the B0E and D0E agreed to increase funding for its Hawaiian Language lmmersion Program and charterschools by $200,000 with OHA matching 1:2. OHA provided $500,000 annuallyforfiveyears. [decided 1996]

1996 - Rice v. Cayetano Harold "Freddy" Rice, a non-Hawaiian plaintiff challenged the Hawaiian

requirement to vote for OHATrustees. The Hawai'i District Court upheld the voting restriction, finding that it was not based on race but upon a recognition of the unique status of Native Hawai-

ians. The court also held that limiting the electorate to people who would benefit from 0HA's programs was rationally related to the State's trust obligations. The U.S. Suoreme Court reversed the District

Court's decision and held that the restriction " amounted to a race-based voting qualification whieh violated the Fifteenth Amendment of the ^ U.S. Constitution. [decided 2000] 1997 - Wai'ola 0 Moloka'i OHA intervened in a petition for a new well at Kamiloloa in central Moloka'i. In 2004. the Hawai'i

Supreme Courtprotectedthewaterandgatheringrights of Hawaiians and said Moloka'i Ranch should not get the water permit.

1998 - Water Use Permit Application Filed by Kukui (Moloka'i) ine. (KMI) OHA intervened in the case for a water permit by KMI. The Water Commission approved lesswaterthan sought but morethan KMI had used, whieh affects water availableto state Department of Hawaiian Home Lands homesteaders in Moloka'i. 2000 - Arakaki v. State Plaintiffs challenged the requirement that 0HA Trustees be Hawaiian. In 2003, the Ninth Circuit Court of Appeals affirmed that it was unconstitutional for the State of Hawai'i to limit 0HA Trustee elections to people of Hawaiian ancestry. 2000 - Carroll v. Nakatani (consolidated with Barrett v. State) Plaintiffs challenged the constitutionality of 0HA and DHHL. In 2003, the Ninth Circuit Court of Appeals affirmed dismissal of the case based on laek of standing. 2002 - Arakaki v. Cayetano, now known as Arakaki v. Lingle Plaintiffs challenged the constitutionality of 0HA and DHHL. In 2007,

the Ninth Circuit Court of Appeals ruled in 0HA's favorfinding plaintiffs' lacked standing forthe lawsuit. 2004 - 'īao Ground Water Management Area Water Use Permit 0HA intervened in a contested caseto restore waterflowto the Nā Wai 'Ehā ("The Four Great Waters") that were dewatered by agricultural interestson Maui. Contrarytothe Hearings 0fficer's proposed decision, the Commission on Water Resource Management restored stream flow toonlytwoof the fourstreams representing lessthan halfthevolume of waterthatthe proposed decision called for(nostreamflowrestored to the 'lao and Waikapū Streams). Appeals have been filed by 0HA and others and the matter is currently pending appellate review. 2005 - Day v. Apoliona The lawsuit was filed by several individuals of at least 50 percent Hawaiian blood who challenged 0HA's use of funds derived from section 5(f) of the Admission Act to support various programs. In 2010,

the Ninth Circuit Court of Appeals rejected plaintiffs' arguments and affirmed that the 0HA Trustees have

broad discretion to use ineome and proceeds from the section 5(f) public trust lands for these DurDoses.

2006 - OHA v. Gates

In 2006, 0HAfiled a lawsuit againstthe army alleging violations of section 106 of the National Historic Preservation Act (NHPA) and the Native American Graves and Repatriation Act (NAGPRA)

relating to the Stryker Brigade Combat Team (SBCT). The matter was settled in 2008 : as a result. 0HA was sranted access

otherwise unavailableto identifyand protect culturalsitesandartifacts.

2008 - Kuroiwa v. Lingle Plaintiffsfiled suit against 0HA, alleging constitutional and breach of trust violations. In 2009, the Ninth Circuit Court of Appeals affirmed the Hawai'i District Court's ruling in favor of 0HA. 2010 - OHA v. Hawai'i State Legislature 0HA petitioned the Hawai'i Supreme Court seeking an order to eompel the State Legislature to comply with its constitutional, statutory and trust obligations to resolve the amount of past-due Public Land Trust revenue owed to 0HA. 0HA's petition was denied.

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0n Feb. 8, 1 990, 0HA reaches a partial agreement on ceded lands revenue issues with then Gov. John Waihe'e III. - Photo: KW0Archives

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Stryker Photo: Tech. Sgt. Mike Bpytas, U.S. AirForce '