OHA CEDED LANDS Supreme Court Decision, January 31, 2008
Office of Hawaiian Affairs v. Housing and Community
Development Corporation of Hawai'i (HCDCH)
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unpublished decision in Trustees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,
(Haw. Mar. 12, 1998) (mem.), did not collaterally estop the plaintiffs'
claims in this case inasmuch as the elements of
collateral estoppel, seeKeahole Def. Coal., Inc. v.
Bd. of Land & Natural Res., 110 Hawai‘i 419, 429, 134 P.3d
(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, seeKahoohanohano v. State, 114
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'
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.
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
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.
Injunction on SB 2733 & HB 2701 until such time as the political process of the Native Hawaiian people is resolved.
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.
"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