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OHA CEDED LANDS
Supreme Court Decision, January 31, 2008

Office of Hawaiian Affairs v. Housing and Community
Development Corporation of Hawai'i (HCDCH)


CONCLUSION

Based on the foregoing, we hold that: (1) the Apology Resolution and related state legislation, give rise to the State's fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians have been resolved; (2) the trial court correctly determined that this court's unpublished decision in Trustees of the Office of Hawaiian Affairs v. Board of Land and Natural Resources, No. 19774 (Haw. Mar. 12, 1998) (mem.), did not collaterally estop the plaintiffs' claims in this case inasmuch as the elements of collateral estoppel, see Keahole Def. Coal., Inc. v. Bd. of Land & Natural Res., 110 Hawai‘i 419, 429, 134 P.3d 585, 595 (2006), are not present; (3) the plaintiffs' claim for injunctive relief with regard to the Leiali‘i parcel is not barred by sovereign immunity based on our conclusion that the $31 million expenditure on infrastructure for the Leiali‘i parcel had only an ancillary effect -- albeit a substantial one -- on the state treasury, see Kahoohanohano v. State, 114 Hawai‘i 302, 337, 162 P.3d 696, 731 (2007); (4) inasmuch as the Apology Resolution and related state legislation give rise to a fiduciary duty by the State, as trustee, to preserve the corpus of the public lands trust until such time as the unrelinquished claims of the native Hawaiians have been resolved, the trial court's conclusion that OHA's actions between 1987 and 1994 constituted a waiver of the plaintiffs' claims was clearly erroneous and, therefore, the plaintiffs did not waive their claim for injunctive relief with regard to the Leiali‘i parcel; (5) the plaintiffs were not estopped from challenging the transfer of the Leiali‘i parcel based on their pre-1993 actions because it was not until the Apology Resolution was signed into law on November 23, 1993 that the plaintiffs' claim regarding the State's explicit fiduciary duty to preserve the corpus of the public lands trust arose; (6) inasmuch as the plaintiffs' requested relief is clearly prospective in nature, the plaintiffs' claims with regard to the sale or transfer of the ceded lands in general are not barred by sovereign immunity; (7) the question whether an injunction is appropriate to allow resolution of the plaintiffs' unrelinquished claims without further diminishment of the trust res is ripe for adjudication; (8) the question whether an injunction should issue presents a type of dispute that is traditionally resolved by the courts and, therefore, does not present a non-justiciable political question; (9) the appropriate test in this jurisdiction for determining whether a permanent injunction is proper is: (a) whether the plaintiff has prevailed on the merits; (b) whether the balance of irreparable damage favors the issuance of a permanent injunction; and (c) whether the public interest supports granting such an injunction; and (10) the plaintiffs have established that injunctive relief is proper pending final resolution of native Hawaiian claims through the political process.

Accordingly, we vacate the trial court's January 31, 2003 judgment and remand this case to the circuit court with instructions to issue an order granting the plaintiffs' request for an injunction against the defendants from selling or otherwise transferring to third parties (1) the Leiali‘i parcel and (2) any other ceded lands from the public lands trust until the claims of the native Hawaiians to the ceded lands have been resolved.

[SEE FULL TRANSCRIPT OF THE SUPREME COURT DECISION]


Bumpy Kanahele Nation of Hawaii Response & Objection
to the Hawaii Supreme Court OHA Ceded Lands Decision








February 08, 2008

OBJECTION to OHA Ceded Lands Settlement Regarding SB 2733 & HB 2701

NOTICE TO ALL LEGISLATORS TO IMMEDIATELY CEASE AND DESIST
Any and all legislation past, present and future regarding the political, economic, social and cultural status of native Hawaiians.

EXCERPTS FROM THE SUPREME COURT DECISION, JANUARY 31, 2008
The Hawaii Supreme Court has concluded that "injunctive relief" is proper pending final resolution of native Hawaiian claims through the political process.

Furthermore, the Hawaii Supreme Court holds that: The Apology Resolution and related state legislation, give rise to the state's fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians have been resolved.

SOLUTION
Injunction on SB 2733 & HB 2701 until such time as the political process of the Native Hawaiian people is resolved.

ELECTORAL PROCESS
Native Hawaiian People need a substantial period of time in which they can engage freely and without fear of threat or intimidation in the processes of educating and publicly debating among themselves, with meaningful access to the mainstream news media in Hawaii, regarding the various options available to them including but not limited to: Integration - Free Association - Independence - Restoration of Independence

In order to guarantee a free, fair, impartial, and objective electoral process in accordance with historically recognized international standards and procedures, such a process must be supervised by the United Nations Organization, i.e., UN observers.

It must be guaranteed, before the process begins, that the will of the Native Hawaiian people is determinative (has the power to determine) and will be honored and respected whatever the results might be, including restoration and independence.





Pu'uhonua D. K. Kanahele
Head of State

Attachments:
          Apology Law
          St. Thomas Law Review including the Proclamation of Restoration 1995



P.O. Box 312, Waimanalo, Hawaii 96795 - Tel/Fax 808.259.6309 - E-Mail: pu.uhonua@hawaiiantel.net





 
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"I have dedicated my life to addressing the long-standing issues and concerns of our people. I do this for, 'The Love of Country' and to secure the foundation of our Future."
-- Pu'uhonua D. K. Kanahele


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