Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 11, 1 November 2003 — Ceded lands and Arakaki v. Lingle suits call for Hawaiians to show resolve, courage [ARTICLE+ILLUSTRATION]

Ceded lands and Arakaki v. Lingle suits call for Hawaiians to show resolve, courage

Aloha nui kākou, e nā 'ōiwi 'ōlino. By the time this eolumn is published, the Office of Hawaiian Affairs' Oct. 22, 2003 hearing in the Court of the lst Circuit, on Civil No. 03-1-1505-07, a complaint filed by OHA on July 21, 2003 for declaratory and injunctive relief and damages against the State of Hawai'i will have occurred. The issue relates to the 20 percent pro-rata portion of ceded land revenues due the Office of Hawaiian Affairs Native Hawaiian Trust from the airports, as yet unpaid. The complaint cites specifie actions and inactions by the Cayetano administration beginning around the Fall of 1996. The complaint charges that the State of Hawai'i breached its fiduciary duties as trustee of the native Hawaiian puhlie trust, breached the Act 304 settlement, violated H.R.S. Chapter 10, violated Article XII, Sections 4-6 of the Constitution of the State of Hawai'i, violated the Contract Clause of the United States Constitution, Article I, Section 10, Clause 1, and is liahle

for misrepresentation and non-dis-closure by the acts and omissions set forth (in more detail in the eomplaint). It further contends that the State is liahle to OHA for damages. Also, that OHA is entitled to a declaratory judgment that (1) orders the State to reinstate Act 304; (2) orders the State to pay airport-related revenues to OHA from sources other than the airport revenues; (3) appoints an independent trustee to temporarily replace the State as trustee of the native Hawaiian puhlie trust with respect to matters relating to reinstatement of Act 304 and the payment of airport-related revenues due to OHA from sources other than airport revenues. And finally, that OHA is entitled to injunctive relief that bars the State and its agents, employees and officials from opposing steps to reinstate Act 304 and to pay airport related revenues to OHA from sources other than airport revenues. Unfortunately, the present State administration is left to defend the actions of former Gov. Cayetano

and his administration. Motions to dismiss the complaint based on sovereign immunity, statute of limitations, non-justiciability, violation of separation of powers doctrine and Res Judicata/Collateral Attack have been answered in opposition by OHA attorneys. The outcome of this case factors into the base of revenue and assets that will accrue to the Hawaiian nation, or Hawaiian governing entity, to be established. On Nov. 17 at 9 a.m., Arakaki v. Lingle will be heard in the Federal District Court of Judge OkiMollway. The 16 plaintiffs in this case want the courts to declare OHA and the Department of Hawaiian Home Lands (HHCA) unconstitutional and begin the dismantling of these two puhlie Hawaiian trusts. At 9:30 a.m. the same day, in the Federal District Court of Judge Alan Kay, will be heard the eomplaint against the Hawaiian preferenee admission policy of the Kamehameha Schools. The out-

eome of both these cases factor into the building of the Hawaiian nation and the empowerment of Hawaiians pursuing self-determination and Hawaiian governance. The path to Hawaiian self-deter-mination and Hawaiian governance requires us to step up, now, to first be counted as Hawaiians — an enrollment, then to choose our representatives and delegates who will convene our 'aha (our convention) to formulate governing documents or constitution acceptable to the majority of Hawaiians and then to elect leaders for the Hawaiian governing entity from those enrolled. These elected leaders will take on the kuleana of implementing the governance design previously accepted by the majority of Hawaiians. As Kēhaulani Lum stated in my October eolumn, "for tomorrow's nation we must take the battlefield today. Shall we be heroes or cower away?" This is no time to cower. 36/48 ■

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Haunani Apoliona, MSW Trustee , At-large