Ka Wai Ola - Office of Hawaiian Affairs, Volume 30, Number 5, 1 May 2013 — HAWAIʻI SUPREME COURT HEARS OHA BLOOD-QUANTUM CASE [ARTICLE+ILLUSTRATION]

HAWAIʻI SUPREME COURT HEARS OHA BLOOD-QUANTUM CASE

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The state Supreme Court is preparing to weigh in on the sticky territory that deals with blood-quantum issues in the Hawaiian community. In April, the state's high court heard arguments in a blood-quantum case challenging OHA's expenditures of tmst funds. It is not known when a mling will be made. Plaintiffs in the Kealoha v. Machado case say

OHA tmstees ean only expend funds from the Public Land Tmst "in the sole interest" of native Hawaiians - referring to those with 50 percent or more Hawaiian blood. The 50-percenters-or-more are denoted by a lower-case "n," as in "native Hawaiian," as spelled out in the federal Hawaiian Homes Commission Act. For the puiposes of this ailiele, all others of Hawaiian blood are denoted by the teim "Hawaiian."

Plaintiffs Samuel Kealoha Jr., Virgil Day, Josiah Hoohuli and Patriek Kahawaiolaa say OHA trustees' funding for the Akaka bill, Nā Pua No'eau edueation program, Native Hawaiian Legal Corp. and Alu Like Ine. soeial-serviees program are improper expenditures under state law and the state Constitution beeause they were given without regard to blood quantum. But Offiee of Hawaiian Affairs attorney Robert Klein, who argued before the state's high eourt, said OHA trustees have diseretion under trust law to decide how to benefit native Hawaiians. "OHA's argument is that when it

considers expenditures such as the four that were challenged, it decides that it may use trust funds for the betterment I of the conditions of native Hawaiians, I even though Hawaiians may receive a benefit also," Klein said later in an interview. During arguments, he raised the ' question: Can OHA trustees use trust funds to support prenatal services for a Hawaiian woman who is carrying I a native Hawaiian baby even though benefits would be given to the mother - who, unlike her unborn child, is less I

than 50 percent Hawaiian? "Now is that a misuse of trust funds for whieh OHA could be sued?" he asked the court, adding other examples and noting that the state Legislature

last year required OHA to fund the newly created Native Hawaiian Roll Commission "even though people enrolling will be Hawaiians as well as native Hawaiians."

That's "what the Legislature means by valid use of trust funds," he said, referring to Chapter 10 in state law that describes OHA's purposes, including the betterment of conditions of native Hawaiians and Hawaiians. "So it's almost impossible to exercise your discretion as a trustee to use trust funds solely for native Hawaiians." 'BREACH OF TRUST' Answering a question by Associate Justice Simeon Aeoha Jr., plaintiffs attorney Walter Schoettle said giving money to Alu Like without restricting its use to benefit native Hawaiians is a breach of trust. "They (OHA trustees) can't say we're going to give this trust money to an agency that does some work for native Hawaiians and not even look into what they're going to do with it," Schoettle said, adding, "That's what our objection is, you can't do that. You have to look at what they're going to do with the money. Are you going to give it to Salvation Army to run their program for (addiction treatment) in the community or are you going to say, 'Here's the money, you use this for native Hawaiians.' That's what we're complaining about." Aeoha further asked: "Does the term 'betterment' mean that the funds have to be directly given to a native Hawaiian?" Schoettle: "No, certainly not." Aeoha: "So that a native Hawaiian's conditions could be made

better if the funds might be given to Hawaiians also?"

Schoettle: "No. Giving money to a nonbeneficiary does not better the conditions of a beneficiary. That's a breach of trust. Not under federal law, but under state law. ..." Judge Paula Nakayama then asks: "Mr. Schoettle, what about Mr. Klein's example of a woman who's pregnant, who's Hawaiian and who's carrying a native Hawaiian child? Wouldn't the betterment of a Hawaiian then benefit a native Hawaiian? Schoettle: "I think under trust law, I think a beneficiary has to be a human being, and I don't think (a fetus is) a beneficiary. So I would sadly say no. But giving money to a native Hawaiian who is pregnant with a Hawaiian baby would certainly be." Asked a follow-up question, he clarifies: "Giving money to a Hawaiian woman for the purpose of taking care of her native Hawaiian child would be a proper use, yes, because . . . the beneficiary would be the child." KŌKUA FOR ALL In an interview, Moses Haia, executive director of the Native Hawaiian Legal Corp., whieh specializes in Native Hawaiian rights and is one of the programs challenged in Kealoha v. Machado, said in his experience, favorable rulings for one Hawaiian benefits everyone with Hawaiian blood, regardless of blood quantum. "If (a ruling is) helping one Hawaiian as it relates to Hawaiian

culture and being able to engage in Hawaiian culture, it helps every Hawaiian," said Haia, adding: "If it's helping a Hawaiian of less than 50 percent, I believe that benefit ultimately goes to the 50-percenters too, because it provides them with some assurance that if they want to engage in the same type of practices . . . that is protected. So it doesn't matter what quantum of blood you are. You've been benefited by the work we do." He cited recent NHLC cases, such as Nelson v. State of Hawai'i, in whieh the state Supreme Court found that the state was breaching its responsibility by not providing sufficient funding to the state Department of Hawaiian Home Lands, whieh under the Hawaiian Homes Commission Act benefits native Hawaiians. He also cited the Honolulu rail case, in whieh the state Supreme Court found that an archaeological inventory survey, whieh helps to identify Hawaiian burials that are protected by law, had to be completed for the entire route

before construction could begin. "The benefit of that decision goes to every Hawaiian," Haia said, adding that Hawaiians and native Hawaiians have a shared interest in knowing "that their ancestors are entitled to dignity and respect provided by a complete AIS." Schoettle declined to be interviewed for this article. DAY V. APOLIONA The OHA blood-quantum lawsuit had earlier been heard in federal court, where it was known as Day v. Apoliona. Referring to earlier decisions in favor of the OHA trustees by the U.S. District Court and the Ninth Circuit Court of Appeals, Klein said in an interview: "When the federal . . . courts examined the same (four) programs, they eame to those conclusions that the benefits of the programs flowed to the native Hawaiians as well as Hawaiians and at least that didn't violate federal law, so what you have is plaintiffs saying state law is more restrictive . . . and limited and therefore you must benefit native Hawaiians solely, you can't have tangential benefits that 11 ow to Hawaiians. Speaking of the current Kealoha v. Machado case, Klein said, "Our challenge was to show the court that it's almost impossible for the trustees to have discretion on trust fund use, to walk that fine line." ■

Terminology native Hawaiian - those with 50 percent or more Hawaiian blood, denoted with a lower-case "n"

Hawaiian - all others with Hawaiian blood Qral arguments To hearthe arguments atthe Hawai'i Supreme Court online, visit http:// bit.ly/l lq 16X4.

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Attorney Robert Klein, left, argued on behalf of OHA, while Walter Schoettle, right, argued for the plaintiffs.

I Associate Justice Simeon Acoba Jr., I second from right, asked plaintiffs j attorney Walter Schoettle about the I Ninth Circuit Court of Appeals deci- | sion in Day v. Apoliona, whieh said ; that the betterment of native Hawai- ] ians was giving a broad meaning, so • benefit to Hawaiians, in turn, would I benefit native Hawaiians. Schoettle | replied: "Well, that's the whole point I of this case, and that's whether or \ not OHA has that discretion. Under ' federal law, that's what the Ninth CirI cuit said, and in this case we're sayI ing that under state law, they do not \ have that discretion."

A court employee watched the proceedings from a monitor in the courtroom. OHATrustees, from rightforeground, Haunani Apoliona, Dan Ahuna and Oswald Stender, hidden, listened to the courtroom arguments as plaintiffs, left foreground, also listened in.