Petition for Writ of Certiorari — Hou Hawaiians v. Hawaii

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Text

NO.

FOCI”

Supreme Court, U.S.

riLawsn

SEP 24 1985

JOSEPH F. SPANIOL, JR.

CLERK

——

IN THE UNITED STATES SUPREME COURT —

OCTOBER TERM 1984

HOU HAWAIIANS, a na-

tive Hawaiian tribe,

Petitioner,

vs.

STATE OF HAWAII,

STATE OF HAWAII DE-

PARTMENT OF TRANSPOR-

TATION, a division of

the State of Hawaii,

STATE OF HAWAII DEP-

ARTMENT OF BUDGET AND

FINANCE, a division

of the State of Ha-

waii, and GEORGE ARI-

YOSHI, in his capa-

city as Governor of

the State of Hawaii,

Defendants,

Ct. App. No.

84-2444

D.C. No.

C-83-1135 HMF

PETITION FOR WRIT OF CERTIORI TO THE U.S.

COURT OF APPEALS FOR THE NINTH CIRCUIT

PAUL McCARTHY

1

Honolulu,

101,

165 S. King St.

HI 96813

Tel.. 808-545-2195

Atty for Petitioner

HOU HAWAIIANS

(Certificate of Service Attached)

3

NO.

IN THE UNITED STATES SUPREME COURT

OCTOBER TERM 1984

HOU HAWAIIANS, a na-

tive Hawaiian tribe,

Petitioner,

vs.

STATE OF HAWAII,

STATE OF HAWAII DE-

PARTMENT OF TRANSPOR-

TATION, a division of

the State of Hawaii,

STATE OF HAWAII DEP-

ARTMENT OF BUDGET AND

FINANCE, a division

of the State of Ha-

waii, and GEORGE ARI-

YOSHI, in his capa-

city as Governor of

the State of Hawaii,

Defendants,

Ct. App. No.

84-2444

D.C. No.

C-83-1135 HMF

PETITION FOR WRIT OF CERTIORI TO THE U.S.

COURT OF APPEALS FOR THE NINTH CIRCUIT

1. QUESTIONS PRESENTED

3+ Did the United States Court of

Appeals for the Ninth Circuit err in deci-

ding that Petitioner or its governing body

is not "duly recognized by the Secretary

of Interior" when no evidentiary hearing

was held in the District Court and the

District Court, in granting a motion to

dismiss, assumed that HOU HAWAIIANS is ‘an

Indian tribe or band with a governing body

duly recognized by the Secretary of In-

terior' within the: meaning of 28 U.S.C.

§1362?

2. Did the Ninth Circuit employ

improper standards in determining the

issue of Secetarial recognition?

3. id the Ninth Circuit err in not

remanding the appeal to the District Court

for an evidentiary hearing on the issue of

whether HOU HAWAIIANS or its governing

body is "duly recognized by the Secretary

of Interior"?

2. LISTING OF PARTIES

Chief MAUI LOA (listed as DOCTOR NUI

LOA PRICE, a.k.a. MAUI LOA, Chief of the

Hou Hawaiians) and KAMUELA PRICE (a tribal

representative) were Plaintiffs in the

proceedings in the Federal District Court

for the District of Hawaii but did not

appeal the dismissal of the Amended Com-

plaint as individuals.

3. __ TABLE OF CONTENTS AND AUTHORITIES

page

1. QUESTIONS PRESEN-

Te do Oils & ehaieta sh bee ed akbeccoccscced

2. LISTING OF

PER eo bab bE eboeheSeeccececced

3. TABLE OF CONTENTS

AND AUTHORITIES: ....-.-eeeee0003

4. REFERENCE TO OF-

FICIAL AND UNOFFICIAL

REPORTS OF ANY OPIN-

IONS DELIVERED BELOW..........7

5. STATEMENT OF JUR-

DUR a SSS SESE cetenccecccced

6. CONSTITUTIONAL

PROVISIONS, TREATIES,

STATUTES, ORDINANCES,

AND REGULATIONS IN-

VOLVED... creer ccccccescccceveed

7. STATEMENT OF THE

ES a rrr

a. Basis of Fed-

eral Jurisdic-

tion in court of

first instance............8

b. Statement

of the EE a

i. Introduction......9

ii. Procedings

BOE c ccc anessseseses 11

8 ARGUMENT. e*eeeeeeeee#e#s# ee . is

a. Reasons why

certiorari

should be granted......... 18

Bb. BFrore BelOW...ccccceee 23

¢. Conclusion...... errr: | |

9. Ps 6 6G 6 6.060606 006s eee

A. Cases:

Arizona v. San Carios

Apache Tribe of Arizona,

---U.S.---, 103 S. Ct.

3201, <---L.Ed. 2d.---

(29BS) a cccccccccnncccsescssscee®D

Keaukaha-Panaewa Commu-

nity Association v. Ha-

waiian Homes Commission

("Keaukaha i"), 588 F.2d.

1216 (9th Cir. 1978),

cert. denied, 444 U.S.

BRO. ~ SOW O Piths Koes anemecen dens ce Onn, eOeee

Keaukaha-Panaewa Commu-

nity Association v. Ha-

waiian Homes Commission

("Keaukaha 2"), 739 F.2d.

1467 (9th Cir. 1984)...........15,16,21

Moe v. Confederated Sai-

ish and Kootenai Tribes

of the Flathead Reserva-

tion, 425 U.S. 463, 96 S.

Ct. 1634, 48 L.Ed. 2d. 96

(SOTERA RISE TPT. 5. 8

Navajo Tribal Utility

Authority v. Arizona

608 F.2d. 1228 (9th Cir.

ci DERE EPELELULURE LEME REET ERERESL

Price v. State of Hawaii,

764 F.2d. 623 CRBS ecrecsedeceisegasd

Scheuer -v. Rhodes, 416

23 :

Sex cawesiocsees @

B. Statutes:

regulations promulgated

CHOPS cs ow CA Weve oss eoreseevessO, as

28 u.s.c. BASEL oot vtweectVeceeee

28 v.s.C. 2. Se See Sere Fe Oe eT Oe

16,16,21

42 g.8.C. BIGSOe vv cet eeeeasesc 686

Hawaii Admission Act,

P.L. 86-3, §§ 4,5(f), 73

Stat. 4-6, 48 Prec. 8,9,10,12,13

U.S.C. §491 (1959)............14,15,19

Hawaiian Homes Commission

Act of 1920, 42 Stat. 108

(1921), former 48 U.S.C.

SHCORSTAS. crv ki ddcrSsdbeoe be

Cc. Treatises

Felix S. Cohen's Handbook

of indian Law,

1982 Edition..........e6.

D. Department of Interior

Publications:

Audit Report, "Review of

Hawaiian Homes Commission

Act Programs Operated by

Department of Hawaiian

Home Lands, State of Ha-

waii," September 8, 1982,

reproduced in Native Ha-

waiian Study Commission,

Native Hawaiians Pursuant

to Pub. b. 96-565, Title

ee, -8,9,10

ec eeeee 22,23,24

EA CEES 6 hse ceGbbn bh bence cece 20

Federal-State Task Force

on the Hawaiian Homes

Commission Act, Report to

the United States Secre-

tary of the Interior and

the Governor of the State

of Sawada. (August 15,

4. REFERENCE TO OFFICIAL AND UNOFFICIAL

~REPORTS OF ANY OPINIONS DELIVERED BELOW _

Price v. State of Hawaii, 764 F.2d.

623 (1985).

5. __STATEMENT OF JURISDICTION

Decision entered: June 25, 1985

Time of entry: 10:00 A.M.

No rehearing sought

Jurisdictional statute: 280U.S.C. 2101

6. CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES, AND REGULATIONS IN-

VOLVED

28 U.S.C. 1362, (the Indian Tribal

Jurisdiction Act) which provides:

The district courts shall

have original jurisdiction of all

civil actions, brought by any

Indian tribe or band with a

governing body duly recognized by

the Secretary of the Interior,

wherein the matter in controversy

arises under the Constitution,

laws or treaties of the United

States.

Also involved are the following

statutes and regulations, which are in-

cluded in the appendix hereto:

The Hawaii Admission Act, (especially

Section 5(f)), P.L. 86-3, 73 Stat 4, 48

Prec. U.S.C. 491 (1959);

The Hawaiian Homes Commission Act of

1920, 42 Stat. 108,921), former 48 U.S.C.

691-716;

The Indian Reorganization Act of

1934, 25 U.S.C. 461-479;

Regulations promulgated under the

Indian Reorganization Act of i934, 25

C.F.R. 83 (1978).

71.__STATEMENT OF THE CASE

a. Basis of

Federal Juris-

diction in the

court of first

instance:

28 U.S.C. §1362 and 28 U.S.C. §1331.

See Moe v. Confederated Salish and Koote-

nai Tribes of the Flathead Reservation,

425 U.S. 463 (1976), Arizona v. San Carlos

Apache Tribe of Arizona, __ U.S. ___, 103

S.Ct. 3201 (1983).

b. Statement of

the case:

i.__Introduction:

This is a case of first impression in

which a Native Hawaiian tribal body seek

to sue the State of Hawaii, its Governor

and two state agencies to compel these

defendants to spend funds from the ceded

land trust created by the United States

Congress in admitting Hawaii as the 50th

state in 1959, codified in §5(f) of the

Hawaii Admission Act, P.L. 86-3, 73 Stat.

6, 48 Prec. U.S.C. §491-et.seg. 1959), to

help finance the Hawaiian home land trust.

The home land “rust, created by the

United States Congress in the Hawaiian

Homes Commission Act of 1920 ("“HHCA"), 42

Stat. 108 et.seg., (1921), formerly codi-

fied at 48 U.S.C. §§691-716, is for the

benefit of the Native Hawaiian peple of at

least 50 percent native blood. The home

lands trust was reaffirmed and perpetuated

by Congress in Sections 4 and 5(f) of the

Hawaii Admission Act, P.L. 86-3, 73 Stat.

4-6, 48 Prec. U.S.C. §491 et seq. (1959);

its purpose is to provide lands for resi-

dence and use to Native Hawaiians, one of

two beneficiary groups of the Section 5(f)

ceded land trust.

Under §5(f), the United States re-

tained the power to sue the State of Ha-

waii to enforce the provisions of the

trust. In response to initial demands by

Petitioner ard its chief, Maui Loa, the

United States Secretary of the Interior

induced the State of Hawaii to participate

in a Joint Federal-State Task Force on the

Hawaiian Homes Commission Act, in which

10

Petitioner participated. The subsequent

Report, prepared by an Interior Department

official, detailed numerous trust

violations and failures of the homelands

program. However, the United States to

date has declined to intervene or pursue

independent litigation to enforce the

trust.

Petitioner therefore has sought to

bring this action under 28 U.S.C. §1362,

which provides Federal court access to "an

Indian tribe or band with a governing body

Guly recognized by the Secretary of the

Interior."

ii. Proceedings below:

Chief MAUI LOA and KAMUELA PRICE

originally filed a complaint against the

State of Hawaii and other State defendants

alleging 28 U.S.C. §1331 alone as a juris-

dictional basis. Defendants did not an-

swer but instead filed a motion to dismiss

11

alleging, inter alia, lack of Federal

subject matter jurisdiction.

Plaintiffs filed a motion to amend

the complaint. In the amended complaint

which accompanied their motion, plaintiffs

designated Petitioner HOU HAWAIIANS as a

Plaintiff, based jurisdiction on 28

U.S.C.§1362, and made certain other alle-

gations. Plaintiffs also amended their

request for relief to provide that the

§5(f) funds sought in the suit be spent on

the distribution of Hawaiian homestead

lands to tribal members of Petitioner and

other eligible native Hawaiians.

The amended complaint articulated

that Petitioner “a Hawaiian ohana or tribe

made up of related families of native

Hawaiians of 50% or more Hawaiian ances-

try, and... the legal equivalent of a

Federally recognized Indian tribe or band

within the meaning of applicable Federal

12

law" and their Chief, Maui Loa, were suing

to remedy Hawaii's breach of trust to its

Native Hawaiian citizens (and to the

United States). The breach of trust al-

leged was the State's failure to expend

funds from the Section 5(f) trust for the

benefit of Native Hawaiians seeking to

obtain their Hawaiian home lands; their

entitlement.

As relief, the amended complaint

requested, inter alia, an accounting of

certain §5(f) funds, a future portion of

§5(f) revenues to be expended so as to

enable the Hawaiian Homestead lands to be

siiatiaa to tribal members and other

Native Hawaiians, and damages for past

neglect in failing to properly administer

the §5(f) funds.

The district court granted plain-

tiffs' motion to amend the complaint and

continued the motion to dismiss procee-

13

dings. During these hearings, the dis-

trict court judge orally stated that there

appeared to be a disputed question of

material fact as to whether Plaintiffs

were "an Indian tribe or band" for pur-

poses of §1362, and that thus it could not

dismiss the case for that reason.

The district court subsequently

granted defendants' motion to dismiss at a

later hearing, on the basis of the 9th

Circuit's previous opinion in Keaukaha-

Panaewa Community Association v. Hawaiian

Homes Commission, 588 F.2d. 1216 (9th Cir.

1978), cert. denied 444 U.S. 826 (1979)

("Keaukaha I"), a case which did not in-

volve §1362 and which had held, inter

alia, that there was no private right of

action to enforce the provisions of §5(f).

On Plaintiffs' motion for reconsider-

ation of the district court's dismissal,

the district court issued a written opin-

14

ion which assumed that "the Hou Hawaiians

are an ‘Indian tribe or band with a

govern-ing body duly recognized by the

Secretary of Interior" and restated the

court's reliance upon Keaukaha I in dis-

missing the complaint.

Petitioner subsequently appealed to

the United States Court of Appeals for the

Ninth Circuit. } In their answering brief,

the State defendants conceded that "the

question of whether the Hou Hawaiians are

an ‘Indian tribe' is not an issue in this

1. On August 14, 1985, prior to the commencement

of the appeal, a different panel of the 9th Circuit

than the pane] that authored Keaukaha I issued its

decision in- Keaukaha-Panaewa Community Association

v. Hawaiian Homes Coma@ission, No. 83-2062, __ F.2d.

___ ("Keaukaha 2"). This opinion stated that the

§5(f) and homelands trusts were Federal in nature

and would apparently permit individual Native Ha-

waiians to bring claims respecting the §5(f) and

Hawaiian home lands trusts in federal court under

28 U.S.C. §1983, but would disallow recovery of

damages for past neglect. It should be cautioned

that the Panaewa litigation involves a challenge to

a land exchange by the State's Department of Ha-

waiian Home Lands, not the issue of funding or

distribution of homelands to Native Hawaiians.

15

case." Oral argument took place before a

three judge panel of the Ninth Circuit

composed of justices different again than

those justices who authored the opinions

in either Keaukaha I or Keaukaha 2.

On April 18, 1985, following oral

argument, but prior to the filing of its

decision, the Ninth Circuit issued an

order for supplemental memoranda addres-

sing, inter alia, the following issue:

"1) The Hou Hawaiians al-

lege in their First Amended Com-

plaint that they are ‘the legal

equivalent of a Federally recog-

nized Indian tribe within the

meaning of (28 U.S.C. §1362)."

The statute does not grant juris-

aiction to ‘legal equivalents,'

nor are the Hou Hawaiians listed

by the Bureau of Indian Affairs

as a tribe officially eligible to

received benbefits. See 50 Fed.

Reg. 6055 (1985); 48 Fed. Reg.

56, 862 (1983) Are the Hou Ha-

waiians an "Indian tribe or band

with a governing body duly recog-

nized by the Secretary of the

interior," 28 U.S.C $1362?

Petitioner responded by filing a

16

supplemental memorandum concerning the

issues of tribal status and Secretarial

recognition, which described certain

evidence which could be introduced in an

appropriate evidentiary hearing. With

respect to these issues, however, Peti-

tioner pointed out that as the appeal was

from a motion to dismiss and as the trial

court had assumed at that motion that

Petitioner was “an Indian tribe or band

with a governing body duly recognized by

the Secretary of the Interior", it would

be error for the 9th Circuit to rule on

this issue without ordering an evidentiary

hearing in the District Court, citing this

court's decision in Scheuer v. Rhodes, 416

U.S. 232 (1974).

In response to the Ninth Circuit's

request, Defendants submitted significant

documentary evidence, some of which had

not been submitted to the District Court.

17

In its opinion, the Ninth Circuit

assumed that Petitioner is an “Indian

tribe or band" but found that "neither the

Hou nor their governing body have been

‘duly recognized' by the Secretary (of the

Interior", thus disqualifying Petitioner

from obtaining jurisdiction under 28

U.S.C. §1362.

Petitioner contends that the Ninth

Circuit based its decision upon certain

factual findings which were at the very

least resolutions of disputed factual

issues.

8. ARGUMENT

A. Reasons why

Certiorar'!

should +z gran-

ted

This case directly concerns the

rights of the aboriginal population of the

50th State; i.e., Native Hawaiians.

A large body of Federal law has

18

evolved to protect the rights of American

Indians, reflecting the desire and trust

responsibility of the United States to

compensate the descendants of the aborigi-

nal population whose land was taken in the

develepnent of this country. This law has

been extended to protect all of the Native

American groups, including Eskimos,

Aleuts, and other non-ethnically Indian

Alaskan Natives -- with the exception of

the Native Hawaiians.

The problem of the Native Hawaiians

will be a recurring one. While an en-

lightened Congress in 1920 set aside Fede-

ral lands for homesteads for the remain.inog

Native Hawaiians of 50% ancestry, and

while in 1959 Congress imposed the §5(f)

trust responsibility upon the new State of

Hawaii as a condition of statehood, the

Department of the Interior has recognized

19

the homelands program has been a failure.”

Despite this fact, the United States has

yet declined to sue or intervene to

protect the rights of the Native Hawaiian

beneficiaries.

2. The failures of the Hawaiian homelands program

are too detailed to recount in this petition.

Briefly, a few of the conclusions that the U.S.

Department of the Interior has found are:

a. 26,000 acres have been dis*”ibuted to

3,034 homesteaders as of 1981, with over 7,000

applicants on the waiting list at that time;

b. 30,000 acres of land originally set aside

for the program have either been “lost” or

illegally withdrawn by the State of Hawaii by

governor's executive orders;

c. Considerable homestead acreage has been

leased by the State to itself or non-Native

Hawaiians at extremely low rentals; for example,

16,000 acres have been leased to the State's

Department of Land and Natural Resources at $5 per

acre per year;

d. Some beneficiaries have waited as long as

30 years to receive homesteads; many have died

while on the waiting list.

(Audit report, “Review of Hawaiian Homes Com-

mission Act Programs Operac:ed by Department of

Hawaiian Home Lands, State of Hawaii", Inspector

General, U.S. Dept. of Interior, (1982); Federal

State Task Force on the Hawaiian Homes Commission

Act, Report to the United States Secretary of the

ye and the Governor of the State of Hawaii

20

Despite the need for enforcement of

the trust by the Native beneficiaries

themselves, the combined effect of the

lower court's decisuns has been to lock

Petitioner out of Federal court without

having given Petitioner a reasonable

opportunity to prove its qualifications

under 28 U.S.C. §1362; here, Secretarial

recognition of its governing body.

The problem is especially acute con-

sidering the other rulings that the Ninth

Circuit did make--that the §5(f) trust

obligation was a Federal right (first set

forth in Keaukaha 2 and reaffirmed below

at page 9, Price yv. State of Hawaii,

appendix), that the §5(f) trust obligation

was an enforcable “compact with the United

States", (page 9, also reaffirming Keau-

kaha 2) and, by implication, that the

compact incorporated “the spirit of the

Hawaiian Homes Commission Act looking to

21

the continuance of the Hawaiian homes

projects" (Id, Appendix at page 10).

(That is, there are definitely substantial

Federal rights involved, but no Native

Hawaiian group has yet appeared who is

"qualified" to enforce then. )

Without enforcement of the existing

§5(f) and homelands trusts, the United

States will eventually be faced with an

unpleasant choice; either to abandon the

Native Hawaiians entirely, or to recompen-

sate them via enactment of a Native Claims

Settlement Act. 3 The latter possibility

seems somewhat of a burden to place upon

Congress, who had already set aside

considerable Federal acreage which was

3. See Cohen, Handbook of Federal Indian Law,

p.810, “Potential Claims", predicting that Native

Hawaiians would be able to assert claims for losses

based on less than “fair and honorable dealings" by

the United States and other criteria were the In-

dian Claims Commission Act extended to them. The

Handbook points out, however, that most Federal

lands were granted to the State of Hawaii by the

Admission Act,

supposed to be used for the benefit cf

Native Hawaiians.

B. Errors below:

As is pointed out in Cohen, Handbook

of Federal Indian Law, 2nd. Ed., the

concepts of "tribes" and “recognition"

have different meanings depending upon the

context of the statute or regulation

examined:

"Although there is broad federal

authority to recognize tribes,

the question may arise whether

that power has been exercised in

a particular instance. Normally

a group will be treated as a

tribe or a "recognized" tribe if

(a) Congress or the Executive has

created a reservation for the

group by treaty, agreement, stat-

ute, executive order, or valid

administrative action; and (b)

the United States has some con-

tinuing political relationship

with the group, such as providing

services through the Bureau of

Indian Affairs. Accordingly,

reservation tribes with contin-

uing federal contact are consid-

ered tribes under virtually every

statute that refers to Indian

tribes.

Not all tribes have been recog-

nized in this manner, however.

The United States has not estab-

lished reservations for some

tribes. In some cases the United

States has treated with a tribe,

but federal officials have failed

to provide services and assis-

tance to the same extent as with

other tribes. In still other

cases, Congress has terminated

part, through not necessarily

all, of the federal-tribal rela-

tionship.

In those situations where the

tribal status of an Indian group

is in doubt, it is necessary to

examine the language and intent

of the specific statute which

defines rights and responsibili-

ties in the particular situation.

A study of those statutes reveals

that tribes cannot be neatly

divided into “recognized” and

"nonrecognized”" tribes for all

purposes; rather, a tribe may

"exist" for some purposes but not

for others. (Id. at pp. 6-7)

With regard to 28 U.S.C. §1362, the

Handbook states:

"Federal district courts are ves-

ted with original jurisdiction of

civil actions ‘brought by any

Indian tribe or band with a gov-

erning body duly recognized by

the Secretary of the Interior.’

This statute does not include the

24

normal jurisdictional requirement

of a $10,000 amount in contro-

versy in federal question cases.

The requirement of secretarial

recognition relates to the gover-

ning body of the tribe, not to

tribal existence. Although.the

question has never been decided,

it appears that the statute does

not cover tribes or bands with no

recognized governing body. Also,

in cases where more than one body

asserts governing authority over

a tribe, it is only the group

recognized as the governing body

by the Secretary which can sue

under the section. Evidence of

secretarial recognition can be

found through dealings such as

contracts with the governing body

or through certification of an

election by the Secretary under

the Indian Reorganization Act.”

Id. at 17.

Case law concerning the definition of

"tribe", “band” and “recognition” under

§1362 is sparse. In Navajo Tribal Utility

Authority v. Arizona Department of

evenue, 608 F.2d. 1228 (9th Cir. 1979),

one of the few cases where the Plaintiff

was found not to be a tribe, the 9th

Circuit appeared concerned that the

25

/

action, brought by a tribal utility

authority with non-Indians on its board of

Girectors, might not reflect the true

desires of the Navajo tribe itself, which

existed and could bring a similar action

if it wished. But this is a far cry from

determining that no recognized governing

body exists to sue, as was done in the

instant case.

If, as the Handbook on Federal Law

suggests, a governing body can be

recognized through Interior's "dealings"

with the governing body as such, there is

certainly enough evidence of the

Secretary's "dealings" with the governing

body on the record to warrant a full evi-

Gentiary hearing concerning this issue.

The most significant act of

Secretarial recognition of Petitioner's

governing body was the formation of the

Federai-State Task Force on the Hawaiian

26

Homes Commission Act. In December of 1980,

Interior Secretary Cecil D. Andrus pro-

posed formation of the Task Force to Hawaii

Governor Ariyoshi, a defendant-appellee

herein:

“Because of the Keaukaha case

{Keaukaha 1] and the March 17

{1980] request (of the Hou Ha-

waiians, Chief Maui Loa, and

other Native Hawaiians] we have

undertaken a comprehensive review

of the HHCA and conclude that

serious violations of a number of

aspects of the Act have occur-

red." (Letter from Secretary An-

drus to Governor Ariyoshi, Decem-

ber 3, 1980)

This followed delivery of the March

17 letter from Petitioner, Chief Maui Loa

and other Native Hawaiians requesting that

the Secretary exercise his discretion

under the HHCA to enforce the homelands

trust, anda related action brought by

Petitioner and Maui Loa to require the

Department of Justice to enforce the

trust.

27

Following formation of the Task Force

and the meetings and deliberations of that

body (to which a representative of

Petitioner was appointed) a report issued,

written by a Department of Interior

employee, Ms. Cecil S. Hoffman, which

expressly credited Petitioner for

triggering Secretary Andrus' letter and

the creation of the Task Force and

expressly described Maui Loa as

Petitioner's Chief.

Petitioner has also received grants

in fiscal years 1984 and 1985 from the

Administration for Native Americans (a

division of the U.S. Department of Health

and Human Services) of approximately

$242,000 for development of an

agricultural training project for Native

Hawaiians. In connection with this grant,

Interior's Bureau of Indian Affairs has

provided auditing services to Petitioner

through the Administration for Native

Americans, and the Interior Department and

other Federal agencies have had continuous

contact with Petitioner and Chief Maui Loa

regarding the project and other matters.

The Ninth Circuit primarily relied

upon the stringent requirements of the

Indian Reorganization Act, (25 U.S.C. 461-

479) in deciding that Petitioner and/or

its governing body had not been properly

recognized by the Sééestary of the

Interior. Recognition under this statute,

of course, carries with it not merely

access to Federal Court but a multitude of

services from the Bureau of Indian Affairs

for the tribe so recognized. Petitioner

is aware of no authority which requires

that a tribe or band's governing body be

"recognized" Sutdtnahad te: the Indian

Reorganization Act and the Ninth Circuit's

opinion in this regard did not cite any.

In relying upon the Indian

Reorganization Act, the Ninth Circuit made

several errors; for instance, it found as

a fact that “the Hou ohana Pere founded in

1974" (Id, appendix at p.7 ) when that

date was merely the date that formal asso-

ciation papers were written and despite

Petitioner's claims that, as an ohana, it

had been in existence since the 19th cen-

tury. More seriously, the 9th Circuit

placed some credence in geographical resi-

dence requirements for recognition (Id,

appendix at p.7 ), a rather unreasonable

requirement considering that Native Ha-

waiians have been excluded from the Ha-

waiian homelands.

The Ninth Circuit concludes its

discussion of the “recognition” issue by

turning the traditional rule of court

deference to an Executive or Legislative

determination of tribal existence on its

30

head and “deferring” to a supposed

Id, appendix at p. 8. The rule, as set

forth in the Handbook on Federal Indian

Law , pp. 6-8, and the cited cases, is one

of “judicial deference to findings of

tribal existence". The converse is not

necessarily true! See, e.g., Joint Tribal

Council of the Passamaquoddy fribe v.

Morton, 528 F.2d. 370 (ist. Cir. 1975).

Of course, that portion of the

opinion is largely rhetorical, but does

indicate that the panel did not fully

appreciate the issues involved.

c. Conclusion:

To Petitioner's knowledge, the issue

of what constitutes Secretarial “recog-

nition" under 28 U.S.C. §1362 is one that

has not been addressed before. The

meaning of the term “tribe" or "band" in

31

28 U.S.C. §1362 has been very rarely ad-

dressed.

Given the fact that this question had

not been addressed before, the 9th Circuit

should not have decided the appeal upon

the inadequate factual record which was

before it, namely, an appeal from a motion

to dismiss where Petitioner's status as

“an Indian tribe or band with a governing

body duly recognized by the Secretary of

the Interior" was assumed. Such evidence

on the record before the 9th Circuit

indicated that the Secretary was dealing

with Petitioner as if its governing body

had been recognized. Petitioner should

have been granted an evidentiary hearing

at which to present whatever evidence

it had concerning these issues before the

9th Circuit adopted a rule which might

well exclude any Native Hawaiian group

zom access to Federal Court to secure its

32

rights under §5(f) and the Hawaiian Homes

Commission Act.

DATED: Honolulu, Hawaii, September

23, 1985.

PAUL McCARTHY /

Attorney for Petitioner

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APPENDIX

1. Order Granting Motion to Dismiss, in

Price v. State of Hawaii, Civil No. 83-

1135, entered April 12, 1984

2. Order Denying Motion for Reconsider-

ation of Order Granting Motion to Dismiss,

in Price v. State of Hawaii, Civil No. 83-

1135, entered August 6, 1984

3. Order by Ninth Circuit for

Supplemental Memoranda dated April 8, 1985

a Decision in Price v. State of Hawaii,

No. 84-2444, June 25, 1985 (also reported

at 764 F.2d. 623

5. Hawaii Statehood Admissions Act

6. Hawaiian Homes Commission Act

7. Indian Reorganization Act

8. Regulations promulgated under Indian

Reorganization Act

35

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

DOCTOR NUI LOA PRICE, aka

MAUI LOA, individually

and in his capacity as

ancestral chief of the

Hou Hawaiians, and KAMU-

ELA PRICE, individually

and on behalf of the Hou

Hawaiians, and the HOU

HAWAIIANS, a native Ha-

waiian tribe,

Plaintiffs,

vs.

STATE OF HAWAII, STATE OF

HAWAIT DEPARTMENT Or

TRANSPORTATION, a divi-

sion of the State of

Hawaii, STATE OF HAWAII

DEPARTMENT OF BUDGET AND

FINANCE, a division of

the State of Hawaii, and

GEORGE ARIYOSHI, in his

capacity as Governor of

the State of Hawaii,

Defendants.

CIVIL NO.

83-1135

ORDER GRAN-

TING MOTION

TO DISMISS

ORDER GRANTING MOTION

einen es

Defendant's Motion to Dismiss the

FPirst Amended Complaint, having come on

for hearing before he Honorable Harold

M.Fong on March 19, 1984, the court having

examined the memoranda filed in this case,

and having heard oral argument presented

by counsel, and being fully apprised in

the premises therein, finds as follows:

The Ninth Circuit's decision in

Keaukaha-Panaewa Community Association v.

Hawaiian Homes Commission, et.al., 588

F.2d. 1216 (9th Cir. 1978), cert. denied,

444 U.S. 826 (1979) is dispositive of the

jurisdictional issue raised in defendant's

Motion to Dismiss the First Amended

Complaint.

Accordingly, IT IS HEREBY ORDERED

that the Motion to Dismiss the First

Amended Complaint is GRANTED.

DATED: Honolulu, Hawaii, April 12,

1984.

/s/HAROLD M. FONG

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

DOCTOR NUI LOA PRICE, aka

MAUI LOA, individually

and in his capacity as

ancestral chief of the

Hou Hawaiians, and KAMU-

ELA PRICE, individually

and on behalf of the Hou

Hawaiians, and the HOU

HAWAIIANS, a native Ha-

waiian tribe,

Plaintiffs,

vs.

STATE OF HAWAII, STATE OF

HAWAII DEPARTMENT Or

TRANSPORTATION, a divi-

sion of the State of

Hawaii, STATE OF HAWAII

DEPARTMENT OF BUDGET AND

FINANCE, a division of

the State of Hawaii, and

GEORGE ARIYOSHI, in his

capacity as Governor of

the State of Hawaii,

Defendants.

CIVIL NO.

83-1135

ORDER DENYING

MOTION FOR

RECONSIDERA-

TION OF ORDER

GRANTING MO-

TION TO DIS-

MISS

ORDER GRANTING MOTION FOR

RECONSIDERATION

OF

ORDER

GRANTING MOTION TO DISMISS

Defendants having filed a Motion for

Reconsideration of this court's Order

Granting Motion to Dismiss, the court

having examined the memoranda filed in

this case, and being fully apprised of the

premises therein, finds as follows:

This court previously dismissed the

plaintiffs' claims on the authority of

Keaukaha-Panaewa Community Association v.

Hawaiian Homes Commission, et.al.,, 588

F.2d. 216 (9th Cir. 1978), cert. denied,

444 U.S. 826 (1979).

The plaintiffs admit that the issue

of this court's federal question

jurisdiction over the Commission Act

Claims was directly addressed by the Ninth

Circuit in Keaukaha-Panaewa. Thus, the

case is dispositive on their Commission

Act claims, over which this court has no

subject matter jurisdiction. However,

plaintiffs argue that Keaukaha-Panaewa is

not dispositive of their Admission Act

Claims. Plaintiffs argue that their right

to a federal cause of action under a §1362

"“co-plaintiff" theory was not addressed by

that case.

Plaintiffs assert that this case is

distinguishable from Keaukaha-Panaewa

because the plaintiffs in that case were

suing as individuals, rather than as a

"tribe or band" entitled to sue in federal

court under 28 U.S.C. §1362. The

plaintiffs argue that §1362, which was

unavailable to the plaintiffs in Keaukaha-

Panaewa, confers a federal cause of action

in this case.

Section 1362 states:

The district courts shall have

Criginal jurisdiction of all

civil action, brought by any

Indian tribe or band with a

governing body duly recognized by

the Secretary of the Interior,

wherein the matter in controversy

arises under the Constitution,

laws or treaties of the United

States.

The plaintiffs argue that this is a

suit brought by "=n entity which claims to

be an Indian tribe or band."

Assuming in arguendo, that the Hou

Hawaiians are an "Indian tribe or band

with a governing body duly recognized by

the Secretary of the Interior," and that

Doctor and Kamuela Price are

representatives of that entity, authorized

to bring suit on behalf of the tribe, the

Claim on the part of the Hou Hawaiians

must fail for the reasons discussed below.

Plaintiffs argue that §1362 confers a

federal cause of action upon Indian tribes

under the “co-plai:itiff" doctrine

recognized in Moe v. Confederated Salish

and Kootenai Tribes, etc., 425 U.S. 463

(1976). In Moe, the Supreme Court

considered the legislative history of

§1362, and stated that:

{(Wje find an indication of a

congressional purpose to open the

federal courts to the kind of

brought by the United States as

trustee, but for whatever reason

were not so brought... . While

this is hardly an unequivocal

statement of intent to allow such

litigation to proceed

irrespective of other explicity

(sic) jurisdictional limitations,

- « « 40 would appear that

Congress contemplated that a

tribe's access to federal court

to litigate a matter arising

“under the Constitution, laws or

treaties" would be at least in

some respects as broad as that of

the United States in suing as the

tribe's trustee.

ad. at 472-72 [emphasis added].

The Keaukaha-Panaewa court discussed

the existence of a federal private

Admission Act cause of action under the

"“co-plaintiff" doctrine, stating that:

Plaintiffs contend <hat, as

native Hawaiians, they should

receive the benefit of cases that

have allowed native Americans a

private federal right of actikon

where the United States, as

trustee, could sue in federal

district court to protect the

native Americans' rights with

regard to trust lands. See,

e.g., Agua Caliente Band of

Mission Indians v. County of

Riverside, 442 F.2d. 1184, 1186

(9th Cir. 1971), cert denied, 405

U.S. 933, 92 S.Ct. 930, 30 L.Ed.

2d. 1238 (1971). We developed

this “co-pliantiff"(sic) doctrine

in reliance upon Poafpitty b.-

Skelly Oil Co., 390 U.S. 365,

366-72, 88 S.Ct. 982, 19 L.Ed.2d

1238 (1968), which held that

"{ajn Indian, as the beneficial

owner of lands held by the United

action (sic) “independently of the

United States to sue to protect

his property interests." Agua

Caliente Ban? of Mission indians

v. County of Riverside, supra,

442 F.2d. at 1186 (emphasis

added) (footnote ommitted. (sic) )

The argument in favor of a

private right of action in

federal court pursuant to the

"co-plaintiff" doctrine is of

less force in the situation

before us. The factual

circumstances underlying the line

of cases establishing this

doctrine generally involve native

Americans, as plaintiffs, suing

a state or other entity to

protect their rights in trust

property, where the United States

is trustee of the lands. In this

case, however, the state is the

trustee, the native hawaiians are

attemrting to sue the state for

breach of the state's trust

obligations, and the United

States has to opportunity to sue

the state only on the basis of a

right reserved by Congress in the

state's Admission Act. The

United States has only a somewhat

tangential role under the

Admission Act, rather than the

role of trustee.

Panaewa at 1224 n. 7.

Plaintiffs argue that the Poafpitty

"co-plaintiff" doctrine, discussed in

Keaukaha-Panaewa is legally distinguish-

able from the co-plaintiff theory adopted

in Moe v. Confederated Salish & Kootenai

Tribes, etc., 425 U.S. 463 (1976) because

the Moe version of that doctrine is based

on $1362, rather than §1331 jurisdiction.

This court does not find the plaintiffs'

argument persuasive. It is clear that the

co-plaintiff doctrine recognized in Moe is

also derived from the United States' right

to sue as trustee of the lands. Thus, the

language in Keaukaha-Panaewa rejecting the

application of the co-plaintiff doctrine

is equally applicable in this case where

the plaintiffs are attempting to sue as

co-plaintiffs under §1362.

As stated in Keaukaha-Panaewa, the

state is the trustee of the trust lands

conveyed by the Admission Act. The United

States' role under the Admission Act is

not that of trustee, but a more tangential

one based on a reserved right to sue the

state for breach of its trust obligations.

Thus, under reasoning of Keaukaha-Panaewa,

the "co-plaintiff" doctrine -- under

either §1331 or §1362 -- does not operate

to confer a federal cause of action in

this case.

It must also be noted that this suit

is brought by Doctor Nui Loa Price, a.k.a.

Maui Loa, "individualiy and in his

capacity as ancestral chief of the Hou

Hawaiians," Kamuela Price, “individually,

and on behalf of the Hou Hawaiians," and

the Hou Hawaiians, a native Hawaiian

tribe. To the extent that this complaint

is brought by Maui Loa and Kamuela Price

in their individual capacities, §1362 is

controlling as to their situation.

For the foregoing reasons, IT IS

HEREBY ORDERED that the Motion for

Reconsideration of the Order Granting the

Motion to Dismiss is DENIED.

DATED: Honolulu, Hawaii, August 6,

1984.

/s/ HAROLD M. FONG

UNITED STATES DISTRICT JUDGE

TSINCEIO OELATR Bae Bee 3,

POSER CHASE: © ote ion ha :

*,

Ps

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOCTOR NUI LOA PRICE,

a.k.a. MAUT LOA,

KAMUELA PRICE, and

the HOU HAWAIIANS,

Plaintiffs-

Appellants,

vs. C.A. No. 84-2444

STATE OF HAWAII, DC# CV 83-1135

STATE OF HAWAII DE- Hawaii

PARTMENT OF TRANSPOR-

TATION, STATE OFr

HAWAII DEPARTMENT OF

BUDGET AND FINANCE,

and GEORGE ARIYOSHI,

Governor,

Defendants-

Appellees.

Before: FARRIS, PREGERSON and BEEZER,

Circuit Judges

IT IS ORDERED that within ten working

days of the date of this order, counsel

for both sides are ordered ta submit

simultaneous supplemental memoranda ad-

dressing the following issues:

1) The Hou Hawaiians allege in their

First Amended Complaint that they are "the

legal equivalent of a recognized Indian

tribe within the meaning of (28 U.S.C.

§1362)." The statute does not grant

jurisdiction to “legal equivalents," nor

are the Hou Hawaiians listed by the bureau

eof Indian Affairs as a tribe officially

eligible to received (sic) benefits. See

50 Fed. Reg. 6055 (1985); 48 Fed. Reg. 56,

862 (1983). Are the Hou Hawaiians an

"Indian tribe or band with a governing

body duly recognized by the Secretary of

the Interior,” 28 U.S.C. §13627

2) On what basis can this court

imply a private cause of action for the

Hou Hawaiians to enforce the Admission

Act, when Keaukaha-Panaewa Community

Assoc. v. Hawaiian Homes Commission, 588

F.2d. 1216 (9th Cir. 1978), cert. denied,

444 U.S. 826 (1979), holds that Congress

aid not intend individual native Hawaiians

to have a private cause of action? Note

that 28 U.S.C. §1362 is a general

jurisdiction statute, and at least

facially does not authorize a cause of

action.

FOR THE COURT:

PHILLIP B. WINBERRY,

Clerk of Court

/s/ Vivienne L. Thompson

By: Vivienne L. Thompson,

April 8, 1985 Deputy Clerk —

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Doctor Nui Loa Price, a.k.a.

Mau! Loa, individually and in his

capacity as ancestral chief of the

Hou Hawaiians, and KAMUELA

PRICE, etc.,

Plaintiffs,

and

a onagecpaaee: a Native Hawaii No. 84-2444

Plaintiffs-Appellants, | D.C. No.

y. C 83-1135 HMF

OPINION

STATE OF Hawall, STATE OF HAWAII

DEPARTMENT OF TRANSPORTATION, a

division of the State of Hawaii,

STATE OF HAWAII DEPARTMENT OF

BUDGET AND FINANCE, division of

the State of Hawaii, and GeorGceE

ARIYOSHI, in his capacity as

Governor of the State of Hawaii,

Defendants-Appellees.

Argued and Submitted

April 4, 1985—Honolulu, Hawaii

Filed June 25, 1985

Before: Jerome Farris, Harry Pregerson, and

Robert R. Beezer, Circuit Judges.

Opinion by Judge Farris

Appeal from the United States District Court

for the District of Hawaii

Harold M. Fong, District Judge, Presiding

l

2 Price, eT aL. v. STATE OF HAWAII, ETAL.

SUMMARY

Courts and Procedure/ indians

Appeal from judgment dismissing complaint for lack of federal

subject matter jurisdiction. Affirmed.

The Hou Hawaiian tribal body sought to compel the state to

apply the proceeds from a land trust created in the state by the

federal government when Hawaii was admitted into the Union in

1959, to the benefit of native Hawaiians. The land was part of the

Hawaiian Home Lands Trust created in 1920 to provide lands for

the use and benefit of Hawaiian people of at least 50% native

blood. When the land was transferred to the state it was to be

held as a public trust and ‘its proceeds used for “one or more” of

five statutory purposes, one of which is the betterment of the con-

ditions of native Hawaiians. The Hou sued in federal court alleg-

ing the state had breached its trust by failing to expend any of the

funds for that purpose. The district court granted the state's

motion to dismiss on grounds that the court lacked subject matter

jurisdiction. After the U.S. Secretary of the Interior notified the

Hou that it would not intervene, the court rejected the Hou argu-

ment that Keaukaha-Panaewa Community Association v.

Hawaiian Homes Commission, 739 F.2d 1467 (9th Cir. 1984)

(Keaukaha II) affected the jurisdictional issue and refused to

grant a motion for reconsideration.

[1] The Hou do not qualify for jurisdiction under 28 U.S.C. §

1362 as an “Indian tribe or band with a governing body duly rec-

ognized by the Secretary of the Interior” because neither the Hou

or their governing body have been so recognized. [2] The Hou fail

to achieve tribal status under statutes governing triLal recogni-

tion, [3] regulations of the Bureau of Indian Affairs, [4] or other

factors for determining tribal recognition.

[5] The Hou did properly invoke federal question jurisdiction

under 42 U.S.C. § 1983 and Keaukana I] sy raising issues con-

cerning the trust obligation which are rooted in federal law, [61

but the state did not waive its sovereign immunity, so the suit is

Price, ETAL. V. STATE OF HAWAII, ET AL. 3

barred by the Eleventh Amendment. [7] While the Eleventh

Amendment does not bar the Hou from bringing an action

against the governor of Hawaii for prospective injusctive relief,

[8] (and the Hou have standing to seek such relief) [9] the Hou do

not have a private cause of action under the Admission Act, and

therefore cannot bring an action against the governor, either.

COUNSEL

Paul McCarthy, Honolulu, Hawaii, for the plaintiffs-appellants.

Charlotte Libman, Honolulu, Hawaii, for the defendants-

appellees.

OPINION

FARRIS, Circuit Judge:

A native Hawaiian tribal body seeks to compel the State of

Hawaii to apply the proceeds from a congressionally created land

trust to finance the distribution of land for the benefit of native

Hawaiians. The Hou Hawaiian tribe appeals the judgment of the

U.S. district court for Hawaii, Fong, J., which dismissed their

complaint for lack of federal subject matter jurisdiction.

In 1920, Congress created the Hawaiian Home Lands Trust to

provide lands for the use and bene of native Hawaiian people

of at least 50 percent native blood. See Hawaiian Homes Com-

mission Act of 1920, Pub. L. No. 67-34, 42 Stat. 108 et seq.

- (1921). The Home Lands Trust was incorporated inte the Con-

stitution of the State of Hawaii when Congress admitted the

State into the Union in 1959. See Hawaii Admission Act, P.L.

No. 86-3, § 4, 73 Stat. 4, 5 (1959).

Under section 5(f) of the Admission Act, the United States

conveyed the bulk of its Hawaiian land holdings to the newly

4 Price, ETAL. V. STATE OF HAWAII, ET AL.

formed State, with the instruction that the lands and all property

subsequently conveyed by the United States to the State be held

by the State as a public trust. The lands which had already been

reserved for disposition by the Hawaiian Homes Commission

under the 1920 Act were included in the section 5(f) trust.

Proceeds from the section 5(f) trust are to be devoted to “one

or more” of five statutory purposes, one of which is “for the bet-

terment of the conditions of native Hawaiians.” 73 Stat. 6. Sec-

tion 5(f) places no other express limitations on the State’s use of

the trust fund proceeds.

The Hou Hawaiians sued in federal district court alleging that

the State of Hawaii had breached its trust obligations to the

United States and to the native Hawaiians by failing to expend

any section 5(f) funds “for the betterment of the conditions of

native Hawaiians.” The Hou also alleged that the State was

spending section 5(f) funds on “the maintenance of the State of

Hawaii governmental structure,” a purpose not authorized by the

statute. The Hou requested an. accounting of all section 5(f)

lands; “just and fair” compensation for the State’s prior neglect

and a “just and fair portion” of future revenues produced by sec-

tion 5(f) lands; and the use of the award to secure matching fed-

eral funds to implement the Hawaiian Homes Commission Act.

The district court granted the State's motion to dismiss, on the

ground that our decision in Keaukaha-Panaewa Community

Association v. Hawaiian Homes Commission, 588 F.2d 1216

(9th Cir. 1978), cert. denied, 444 U.S. 826 (1979) (“Keaukaha

I”), compelled a finding that the district court lacked subject

matter jurisdiction over the Hous’ suit.

Following the dismissal, the United States Secretary of the

Interior notified the Hou that it would not intervene in the action

at this point. The district court subsequently denied the Hous’

Motion for Reconsideration, rejecting the Hous’ argument that

Keaukaha-Panaewa Community Association v. Hawaiian

Homes Commission, 739 F.2d 1467 (9th Cir. 1984) (“Keaukaha

IT”), affected the jurisdictional issue. The Hou timely appeal: we

have jurisdiction under 28 U.S.C. § 1291.

Price, ET AL. V. STATE OF HAWAII, ET AL. 5

I. Do the Hou qualify for § 1362 jurisdiction?

[1] In both their Opening Brief and extensive supplemental

briefing submitted at our request, the Hou contend that they are

an “Indian tribe or band with a governing body duly recognized

by the Secretary of the Interior,” 28 U.S.C. § 1362, and hence

may bring this suit under § 1362. Because neither the Hou nor

their governing body have been “duly recognized” by the Secre-

tary, they do not qualify for § 1362 jurisdiction even if we assume

that they are an “Indian tribe or band.”

A. Statutes governing tribal recognition.

No statute explicitly details the procedure by which a tribe

may become “duly recognized by the Secretary” for purposes of

establishing § 1362 jurisdiction. We note, however, that the Sec-

retary must approve the organization or incorporation of a tribe.

If the Hou had been formally organized or incorporated as a

tribe, they could thus argue that they had been “duly

recognized.”

The statutes governing the formal organization and incorpora-

tion of an Indian tribe, see 25 U.S.C. §§ 476-477, explicitly do

not apply to “any of the Territories, colonies, or insular posses-

sions of the United States [except for] the Territory of Alaska.”

25 U.S.C. § 473. In 1934, when § 473 was enacted, Hawaii was

such a territory. Therefore, Congress did not originally intend the

statutes governing the organization of new Indian tribes to apply

to aboriginal groups in Hawaii.

[2] Even if we assume that $§ 476-477 do apply to Hawaii

today because it is now a State. the Hou have neither |) adopted

a constitution and bylaws ratified by majority vote of the adult

members of the tribe and approved by the Secretary of the Inte-

rior, as required by § 476. nor 2) received a charter of incorpora-

tion. pursuant to § 477. Therefore, neither provision provides

support for a claim of “recognition by the Secretary of the’

Interior.”

6 Price, ET AL. v. STATE OF HAWAII, ET AL.

B. Regulations governing tribal recognition.

[3] Nor can the Hou claim “recognition” under the regulations

by which the Interior Department’s Bureau of Indian Affairs

acknowledges tribal existence. See 25 C.F.R. Part 83 (1984).

The regulations establish tribal existence as “a prerequisite to the

protection, services, and benefits from the Federal Government

available to Indian tribes. Such acknowledgment shall also mean

that the tribe is entitled to the immunities and privileges avail-

able to other federally acknowledged Indian tribes ....” 25

C.F.R. § 83.2. However, the regulations are explicitly limited to

“only those American Indian groups indigenous to the continen-

tal United States... .” 25 C.F.R. § 83.3(a). The Hou Hawaiians

acknowledge that they have not been “recognized” under these

regulations.

C. Factors for determining tribal recognition.

Although no statute or regulation governs recognition of the

Hou for purposes of establishing § 1362 jurisdiction, we conclude

that the same factors which govern eligibility for federal benefits

and “immunities and privileges,” see 25 C.F.R. § 83.7, also pro-

vide some guidance for the jurisdictional inquiry. These factors,

however, do not demonstrate that the Hou or their “governing

body” have been “duly recognized” for § 1362 purposes.

1. Historical continuity.

We first examine whether the group petitioning for recognition

“has been identified from historical times un‘il the present on a

substantially continuous basis, as ‘American Indian,’ or ‘aborigi-

nal.” ” 25 C.F.R. § 83.7(a). The importarce of a tribe's long-

standing existence is underscored by the res,ulations’ exclusion of

“associations, Organizations, corporations ‘»r groups of any char-

acter, formed in recent times,” 25 C.F.R. { 83.3(c), from eligibil-

ity for Bureau of Indian Affairs benefits.

Although native Hawaiians in general may be able to assert a

longstanding aboriginal history, the issue before us is whether the

Price, ETAL. Vv. STATE OF HAWAli, ET AL. 7

particular subgroup seeking recognition—the Hou Hawai-

ians—can establish that they are a longstanding aboriginal sov-

ereign rather than a recently formed association. To allow any

group of persons to “bootstrap” themselves into formal “tribal”

status—thereby obtaining the federal economic and legal bene-

fits attendant upon tribal status—simply because they are all

members of a larger aboriginal ethnic body would be to ignore

the concept of “tribe” as a distinct sovereignty set apart by histor-

ical and ethnological boundaries. Cf F. Cohen, Handbook of

Federal Indian Law 5 & n.17, 229 (1982). Because the Hou

ohana was founded in 1974, it does not satisfy the historical

requirement for tribal status implicit in § 83.7(a).

2. Longstanding tribal political authority.

The BIA regulations also consider whether “the petitioner has

maintained tribal political influence or other authority over its

members as an autonomous entity throughout history until the

present.” 25 C.F.R. § 83.7(c). The Hou have alleged no facts

indicating longstanding actual political authority over its mem-

bers. To contrary effect, the Hou have submitted “Minutes of a

General Meeting of the Elder Council” that indicate that their

Chief and Elder Council were first elected on January 27, 1985.

This recent election was apparently prompted by the Department

of Health and Human Services’ request that the Hou formalize

their political trappings in order for them to obtain Health and

Human Services’ benefits.

3. Other factors considered in BIA regulations.

The Hou have not alleged that “a substantial portion of the

petitioning group inhabits a specific area or lives in a community

viewed as American Indian and distinct from other populations

in the area... .” 25 C.F.R. § 83.7(b). Nor have they alleged that

their members obey certain formal “procedures through which

the group currently governs its affairs and its members,” 25

C.F.R. § 83.7(d).

x Price, ET AL. v. STATE OF HAWAII, ET AL.

D. Non-statutory standards for determining tribal

recognition.

Apart from the BIA regulations, we are also guided by a 1974

letter from the Commissioner of Indian Affairs to the Chairman

of the Senate Committee on Interior and Insular Affairs, in

which the BIA reviewed its policies of recognizing Indian tribes

over the previous twenty years. The letter describes five factors

that the BIA used prior to the 1978 promulgation of the regula-

tions discussed above, see 25 C.F.R. Part 83, in determining eligi-

bility for BIA benefits.

[4] The Hou fail to satisfy at least four of these five factors. The

Hou 1) have not had treaty relations with the United States; 2)

have not been denominated a tribe by act of Congress or Execu-

tive order; 3) have not been treated as a tribe by other Indian

tribes; and 4) have not demonstrated that the tribe exercises

political authority over its members. It is unclear from the record

whether the Hou share collective rights in tribal lands or funds,

the fifth factor employed by the BIA.

In summary, under both the BIA’s current regulations for

determining eligibility for federal benefits and “privileges and

immunities,” see 25 C.F.R. § 83.7, and the BIA’s pre-regulation

standard for recognizing a tribe, the Hou fail to demonstrate eli-

gibility for recognition. In the absence of explicit governing stat-

utes or regulations, we will not intrude on the traditionally

executive or legislative prerogative of recognizing a tribe’s exis-

tence. See United States v. Sandoval, 231 U.S. 28, 46 (1913)

(recognition of tribe is “to be determined by Congress, and not by

the courts”); United States v. Holliday, 70 U.S. (3 Wall.) 407,

419 (1865); F. Cohen, Handbook of Federal Indian Law 4-5

(1982). We therefore hold that the Hou do not qualify for § 1362

jurisdiction.

1 although the Hou argue that they have been ireated as a tribe by “the larger.

federally recognized tribe of the Native Hawaiian people as a whole.” the Hou

have not shown that the Native Hawaiian people have themselves been “duly

recognized” as a tribe.

Price, ET AL. V. STATE OF HAWAHL, ET AL. 9

II. Federal question jurisdiction.

The Hou also assert jurisdiction under 28 U.S.C. § 1331. “For

this case to be within the purview of § 1331(a), a right or immu-

nity created by the Constitution or laws of the United States

must be an essential element of plaintiffs’ claim.” League to Save

Lake Tahoe v. Tahoe Regional Planning Agency, 507 F.2d 517,

519 (9th Cir. 1974), cert. denied, 420 U.S. 974 (1975).

[5] We have recently held that § 5(f) of the Admission Act

creates a federal “right” enforceable under 42 U.S.C. § 1983.

Keaukaha II, 739 F.2d at 1472. The Act’s trust obligation is

“rooted in federal law, and power to enforce that obligation is

contained in federal law, see Keaukaha I, 588 F.2d at 1218. Con-

gress imposed the trust obligation as a condition of statehood and

as a ‘compact with the United States.’ § 4, 73 Stat. 4.” Keaukaha

II, 739 F.2d at 1472. Under Keaukaha II, the Hou have properly

invoked federal question jurisdiction.

The Hous’ § 1331 jurisdiction alternatively rests on our hold-

ing in Keaukaha II that § 5(f) of the Admissions Act imposes a

trust obligation that constitutes a “compact with the United

States.” See 739 F.2d at 1472; but cf. Keaukaha I, 588 F.2d at

1227 n.12 (the Commission Act has not been incorporated as a

federal-state compact). Unlike typical provisions of state law,

this trust obligation is expressly protected from any amendments

by the State legislature unless the United States has consented to

those amendments. § 4, 73 Stat. 5; § 15, 73 Stat. 11. The terms

of this federal-state compact, which has been recently reaffirmed

by the Hawaii Supreme Court, see Ahuna v. Department of

Hawaiian Home Lands, 64 Hawaii 327, 640 P.2d 1161, 1168

(1982), have been set forth in the plain language of the Hawaii

State Constitution. See Hawaii Const., art. XII, § 2 (1978).

“[A] case involving the construction of an interstate compact

which requires a judicial determination of the nature and scope

of obligations set forth therein ‘arises’ under the ‘laws’ of the

United States within the meaning of § 1331(a).” League to Save

Lake Tahoe v. Tahoe Regional Planning Agency, 507 F.2d at

10 Price, ET AL. v. STATE OF HAWAII, ET AL.

$22 (emphasis added) (footnote omitted); see also Petty v. Ten-

nessee-Missouri Bridge Comm'n, 359 U.S. 275, 278 (1959);

League to Save Lake Tahoe v. B.J.K. Corporation, 547 F.2d

1072, 1073 (9th Cir. 1976); Comment, Federal Question Juris-

diction to Interpret Interstate Compacts, 64 Geo. L.J. 87 (1975).

Because a compact between two states “deriv[es]} its authority

from powers conferred upon Congress,” Jacobson v. Tahoe

Regional Planning Agency, 566 F.2d 1353, 1359 (9th Cir. 1977),

aff din part, rev'd in part on other grounds sub nom. Lake Coun-

try Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S.

391 (1979), and has been arrived at only through the consent of

Congress, see U.S. Const., art. 1, § 10 cl.3, the enforcement of an

interstate compact may properly be sought in federal court. 566

F.2d at 1358 (citing od to Save Tahoe, 507 F.2d at 523 &

n.13).

Congress’ role in the formation of a compact between the

United States and a State is at least as great as Congress’ role in

approving a compact between two States. In addition, federal law

is “an essential element” of a suit ti atcharges a violation of a

compact incorporating “the spirit of tite Hawaiian Homes Com-

mission Act looking to the continuance of the Hawaiian homes

projects.” Hawaii Const., art. XII, § 2; art. XII, § 4; art. XVI, §

7; see Keaukaha II, 739 F.2d at 1472. We therefore hold that the

enforcement of the § 5(f) compact presents a federal question

under 28 U.S.C. § 1331(a).

III. Sovereign immunity.

A. Claims against the State.

[6] The State of Hawaii argues that it has not waived its sover-

eign immunity, and hence this suit is barred by the Eleventh

Amendment. “in deciding whether a State has waived its consti-

tutional protection under the Eleventh Amendment, we will find

waiver only where stated “by the most express language or by

such overwhelming implications from the text as [will] leave no

room for any other reasonable construction.’ * Ede/man v. Jor-

dan, 415 U.S. 651, 673 (1974) (quoting Murray v. Wilson Dis- -

Price, ET AL. Vv. STATE OF HAWAII, ET AL. 11

tilling Co., 213 U.S. 151, 171 (1909)); see Pennhurst State

School & Hospital v. Halderman, —U.S.—, 104 S. Ct. 900, 907

(1984) (“Pennhurst II”). —

Although the text of the Adn:-2°s1 Act unmistakably autho-

rizes the United States to bring suit against the State, we find no

express language or legislative history proving that the State has

lost its sovereign immunity from suit by the Hou. The Hous’

claims against the State of Hawaii, its Department of Transpor-

tation, and its Department of Budget and Finance are therefore

dismissed. See Hoohuli v. Ariyoshi, 741 F.2d 1169, 1173 & n.5

(9th Cir. 1984).

B. Claims against George Ariyoshi. &

The Hou have also named George Ariyoshi, in his capacity as

governor of Hawaii, as a defendant in this suit. The Supreme

Court has recently reaffirmed that “when a plaintiff sues a state

official alleging a violation of federal law, the federal court may

award an injunction that governs the official’s future conduct,

[although] not one that awards retroactive monetary relief.”

Pennhurst II, 104 S. Ct. at 909 (citing Edelman v. Jordan, 415

U.S. at 666-67); see Hoohuli v. Ariyoshi, 741 F.2d at 1174.

Because the Hou have alleged a violation of the Admission Act

and its incorporation of the federal-state compact to preserve

“the spirit of the Hawaiian Homes Commission Act,” see Hawaii

Const., art. XII § 2, they have alleged a violation of federal law,

see discussion supra section II; Keaukaha II, 739 F.2d at 1472,

and may properly seek prospective injunctive relief in federal

court.

[7] We reject the argument that all relief, both retroactive and

prospective, will ultimately be paid by the State and hence is

barred by the Eleventh Amendment. While we agree that the

Eleventh Amendment bars a request for retroactive damages, see

Pennhurst IT, 104 S. Ct. at 911 (citing Edelman, 415 USS. at

665); Hoohuli v. Ariyoshi, 741 F.2d at 1174, we view the effect

on the Hawaii State treasury of the requested injunctive relief as

“the necessary result of compliance with decrees which by their

12 Price, ETAL. v. STATE OF HAwAll, ET AL.

terms [are] prospective in nature . . . [and] an inevitable conse-

quence of the principle announced in Ex parte Young.” Edelman,

415 U.S. at 667-68, 677 (permitting prospective injunctive relief

in a § 1983 action brought by public aid recipients), and discuss-

ing Graham v. Richardson, 403 U.S. 365 (1971) (Eleventh

Amendment does not bar federal court from enjoining state offi-

cials who were denying welfare benefits to otherwise qualified

aliens); Goldberg v. Kelly, 397 U.S. 254 (1970) (enjoining termi-

nation of welfare payments without prior hearing). We therefore

hold that the Hou may properly seek prospective injunctive relief

against George Ariyoshi in his capacity as governor. We make no

comment on the merits of such an action.

IV. Standing.

To establish standing, a plaintiff must allege personal injury

that is “fairly traceable” to the defendant's conduct and “likely

to be redressed by the requested relief.” Allen v. Wright, 104 S.

Ct. 3315, 3325 (1984) (citing Valley Forge Christian College v.

Americans United for Separation of Church and State, Inc., 454

U.S. 464, 472 (1982)).

The Hou have suffered an economic injury that can be “fairly

traced” to the State’s decision to fund other purposes than section

5(f)'s “the betterment of the conditions of native Hawaiians.”

Such an injury is analogous to competitors’ injuries in a long line

of Supreme Court cases that have upheld standing to challenge

regulatory benefits and licenses granted by the government to

competitor companies. See e.g., Investment Co. Institute v.

Camp, 401 U.S. 617 (1971); Arnold Tours. Inc. v. Camp, 400

U.S. 45 (1970) (per curiam): dmerican Trucking Ass‘ns, Inc. v.

United States, 364 U.S. 1 (1960): see generally 4K. Davis.

Administrative Law § 24:13 (2d Ed. 1983). The Hou have

“credibly allege{d]~ a realistic threat from the future administra-

tion of the section 5(f) trust. See Los Angeles v. Lyons. 461 U.S.

95, 107 n.7 (1983).

It is also clear that the Hous’ economic injury would be

“likely” to be redressed, see Allen v. Wright. 104 S. Ct. at 3325.

Price, ET AL. V. STATE OF HAWAII, ET AL. 13

(citing Simon v. Eastern Kentucky Welfare Rights Org., 426

U.S. 26, 41 (1976)), if we enjoined Governor Ariyoshi from

allowing executive agencies to continue to expend trust funds in

the manner alleged by the Hou.

Because the Admission Act broadly allows the State to expend

trust funds on “one or more” of five statutory purposes, however,

the State argues that it has acted well within its discretion in

refusing to grant any funds at all to the Hou. Therefore, the State

concludes that the Hou have no right to any trust funds, and they

cannot claim an “injury in fact” sufficient to satisfy Article III

standing requirements.

[8] The State's argument would require the Hou to establish a

formal legally protected right, rather than an economic interest

which has been arguably affected by the State, merely to get into

court. Such a “legal interest” test was replaced in the 1970's by

the more lenient “injury in fact” test. See Association of Data

Processing Service Organizations, Inc. v. Camp, 397 U.S. 150,

153 (1970).? Therefore, for purposes of determining standing, we

reject the State’s invitation to examine whether the Admission

Act gives the Hou a legally protected right to trust funds. We

hold that the Hou have standing to seek prospective injunctive

relief against Governor Ariyoshi.

V. Implied private cause of action.

We now consider whether the Hou may bring a private cause

of action under the Admission Act.

Under the “co-plaintiff” doctrine, Indian tribes may claim a

private cause of action when the United States is a trustee and is

entitled to sue to protect the tribe's rights. See e.g., Keaukaha I,

588 F.2d at 1224 0.7; Agua Caliente Band of Mission Indians v.

County of Riverside, 442 F.2d 1184, 1186 (9th Cir. 1971), cert.

See also Chayes, Foreword: Public Law Litigation and the Burger Court. 96

Harv. L. Rev. 4, 15 (1982): Note, Analyzing Taxpayer Standing in Terms of

General Standing Principles: The Road Not Taken. 63 B.U.L. Rev. 717, 742-43

(1983). |

14 Price, ETAL. ¥. STATE OF HAWAII, ET AL.

denied, 405 U.S. 933 (1972); see also Poafpybitty v. Skelly Oil

Co., 390 U.S. 365, 366-72 (1968). But because the United States

is not a formal trustee of the § 5(f) homelands trust, see

Keaukaha I, 588 F.2d at 1224 n.7, and nothing in the legislative

history or case interpretation indicates that Congress intended a

different result for the 5(f) ceded land trust at issue here, we hold

that the Hou cannot claim a private cause of action under the

“co-plaintiff” doctrine. Jd.

(9] Furthermore, our holding Keaukaha / that individual

Hawaiians do not have an implied cause of action under the

Admission Act, see 588 F.2d at 1223-24, applies with equal force

to bar the Hou Hawaiians from claiming a cause of action.

Although the Hou are members of a “class for whose especial

benefit the statute was enacted,” Cort v. Ash, 422 U.S. 66, 78

(1975) (emphasis in original), nothing in the legislative history of

the Admission Act indicates that Congress intended native

Hawaiian groups, as distinguished from individual Hawaiians

whose claims were rejected in Keaukaha I, to enjoy a private

cause of action. “Indeed, the rare references in the Committee

reports to enforcement of section 5’s trust provisions refer exclu-

sively to the public cause of action.” Keaukaha I, 588 F.2d at

1223. Because the remaining two elements of the Cort v. Ash

test—the general scheme of the Admission Act and the magni-

tude of the State’s concern in this area—have also been decided

by Keaukaha I in favor of the State, the Hou cannot claim an

implied private cause of action. See id. at 1224.

VI. Conclusion.

The Hou have not established that they are “duly recognized

by the Secretary of the Interior,” and hence cannot claim juris-

diction under 28 U.S.C. § 1362. However, both the federal

nature of the section 5(f) trust and the state-federal compact that

led to its creation support general federal question jurisdiction

under 28 U.S.C. § 1331. The Hou have also alleged an

“injury-in-fact” sufficient to confer standing.

Because the State has not waived its sovereign immunity, we

PRICE, ET AL. v. STATE OF HAWwaill, ET AL. 15

must dismiss the Hous’ claims against all parties except George

Ariyoshi in his capacity as governor. This claim against Ariyoshi,

however, must be dismissed as well because the Hou cannot

claim a private cause of action under the Admission Act.? The

district court’s judgment is AFFIRMED.

Because we lack jurisdiction to decide the case, we express no opinion on the

merits of a suit to enforce the section $(f) trust properly brought by the Depart-

ment of the Interior.

PRINTED FOR

ADMINISTRATIVE OFFICE — US. COLRTS

BY ELECTROGRAPHIC CORP. — SAN FRANCISCO

The summary. which does not constitute a part of the upinion of the court.

is copyrighted € 1985 by The United States Ninth Circuit Service. San Francisco.

THE ADMISSION ACT

An Act to Provide for the Admission of the State of Hawaii into

the Union

(Act of March 18, 1959, Pub L 86-3, 73 Stat 4)

Be it enacted by the Senate and House of Representatives of the United States

of America in Congress assembled, That, subject to the provisions of this Act, and

upon issuance of the proclamation required by section 7 (c) of this Act, the State

of Hawaii is hereby declared to be a State of the United States of America, is

declared admitted into the Union on an equal footing with the other States in all

respects whatever, and the constitution formed pursuant to the provisions of the

Act of the Territorial Legislature of Hawaii entitled “An Act to provide for a

constitutional convention, the adoption of a State constitutional convention, the

adoption of a State constitution, and the forwarding of the same to the Congress

of the United States, and appropriating money therefor”, approved May 20, 1949

(Act 334, Session Laws of Hawaii, 1949), and adopted by a vote of the people

of Hawaii in the election held on November 7, 1950, is hereby found to be

republican in form and in conformity with the Constitution of the United States

and the principles of the Declaration of Independence, and is hereby accepted,

ratified, and confirmed. :

Case Notes

“Equal footing,” referred to: 44 H. 634, 642, 361 P.2d 390.

Hawaii not denied “equal footing” by reason of C.A.B. control over interisland air transporta-

tion. 363 F.2d 120.

§2. The State of Hawaii shall consist of all the islands, together with their

appurtenant reefs and territorial waters, included in the Territory of Hawaii on

the date of enactment of this Act, except the atoll known as Palmyra Island,

together with its appurtenant reefs and territorial waters, but said State shall not

be deemed to include the Midway Islands, Johnston Island, Sand Island (off-

shore from Johnston Island), or Kingman Reef, together with their appurtenant

reefs and territorial waters.

Case Notes

See also notes to State Const. Art. XIII §1.

Question of jurisdiction over channels between islands raised but not decided. 47 H. 87, 384

P.2d 536.

Territorial waters extend only three miles from each island. 235 F. Supp. 990.

§3. The constitution of the State of Hawaii shall always be republican in

form and shall not be repugnant to the Constitution of the United States and the

principles of the Declaration of Independence.

§4. As acompact with the United States relating to the management and

disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act,

1920, as amended, shall be adopted as a provision of the Constitution of said State,

as provided in section 7, subsection (b) of this Act, subject to amendment or

78

THE ADMISSION ACT Sec. 5

repeal only with the consent of the United States, and in no other manner:

Provided, That (1) sections 202, 213, 219, 220, 222, 224, and 225 and other

provisions relating to administration, and paragraph (2) of section 204, sections

206 and 212, and other provisions relating to the powers and duties of officers

other than those charged with the administration of said Act, may be amended

in the constitution, or in the manner required for State legislation, but the Hawai-

ian home-loan fund, the Hawaiian home-operating fund, and the Hawaiian home-

development fund shail not be reduced or impaired by any such amendment,

whether made in the constitution or in the manner required for State legislation,

and the encumbrances authorized to be placed on Hawaiian home lands by

officers other than those charged with the administration of said Act, shall not

be increased, except with the consent of the United States; (2) that any amend-

ment to increase the benefits to lessees of Hawaiian home lands may be made in

the constitution, or in the manner required for State legislation, but the qualifica-

tions of lessees shall not be changed except with the consent of the United States;

and (3) that all proceeds and income from the “available lands”, as defined by

said Act, shall be used only in carrying out the provisions of said Act.

§5. (a) Except as provided in subsection (c) of this section, the State of Ha-

waii and its political subdivisions, as the case may be, shall succeed to the title

of the Territory of Hawaii and its subdivisions in those laads and other properties

in which the Territory and its subdivisions now hold title.

(b) Except as provided in subsection (c) and (d) of this section, the United

States grants to the State of Hawaii, effective upon its admission into the Union,

the United States’ title to all the public lands and other public property, and to

all lands defined as “available lands” by section 203 of the Hawaiian Homes

Commission Act, 1920, as amended, within the boundaries of the State of Hawaii,

title to which is held by the United States immediately prior to its admission into

the Union. The grant hereby made shall be in lieu of any and all grants provided

for new States by provisions of law other than this Act, and such grants shall not

extend to the State of Hawaii.

(c) Any lands and other properties that, on the date Hawaii is admitted

into the Union, are set aside pursuant to law for the use of the United States under

any (1) Act of Congress, (2) Executive order, (3) proclamation of the President,

or (4) proclamation of the Governor of Hawaii shall remain the property of the

United States subject only to the limitations, if any, imposed under (1), (2), (3),

or (4), as the case may be.

(d) Any public lands or other public property that is conveyed to the State

of Hawaii by subsection (b) of this section but that, immediately prior to the

admission of said State into the Union, is controlled by the United States pursuant

to permit, license, or permission, written or verbal, from the Territory of Hawaii

or any department thereof may, at any time during the five years following the

admission of Hawaii into the Union, be set aside by Act of Congress or by

Executive order of the President, made pursuant to law, for the use of the United

States, and the lands or property so set aside shall, subject only to valid rights

then existing, be the property of the United States, [Am July 12, 1960, Pub L

86-624, 74 Stat 422]

:- (e) Within five years from the date Hawaii is admitted into the Union,

each Federal agency having control over any land or property that is retained by

the United States pursuant to subsections (c) and (d) of this section shall report

79

sec, 5 THE ADMISSION ACT

o the President the facts regarding its continued need for such land or property,

ind if the President determines that the land or property is no longer needed by

he United States it shall be conveyed to the State of Hawaii.

(f) The lands granted to the State of Hawaii by subsection (b) of this

section and public lands retained by the United States under subsections (¢) and

(d) and later conveyed to the State under subsection (¢), together with the pro-

ceeds from the sale or other disposition of any such lands and the income

therefrom, shall be held by said State as a public trust for the support of the public

schools and other public educational institutions, for the betterment of the condi-

tions of native Hawaiians, as defined in the Hawaiian Homes Commission Act,

1920, as amended, for the development of farm and home ownership on as

widespread a basis as possible for the making of public improvements, and for

the provision of lands for public use. Such lands, proceeds, and income shall be

managed and disposed of for one or more of the foregoing purposes in such

manner as the constitution and laws of said State may provide, and their use for

any other object shall constitute a breach of trust for which suit may be brought

(g) As used in this Act, the term “lands and other properties” includes

public lands and other public property, and the term “public lands and other

public property” means, and is limited to, the lands and properties that were

to the United States by the Republic of Hawaii under the joint resolution

f annexation approved July 7, 1898 (30 Stat. 750), or that have been acquired

in exchange for lands or properties so ceded.

(h) All laws of the United States reserving to the United States the free

or enjoyment of property which vests in or is conveyed to the State of Hawaii

f its political subdivisions pursuant to subsection (a), (b), or (¢) of this section

r reserving the right to alter, amend, or repeal laws relating thereto shall cease

be effective upon the admission of the State of Hawaii into the Union.

(i) The Submerged Lands Act of 1953 (Public Law 31, Eighty-third

ongress, first session; 67 Stat. 29) and the Outer Continental Shelf Lands Act

f 1953 (Public Law 212, Eighty-third Congress, first session, 67 Stat. 462) shall

applicable to the State of Hawaii, and the said State shall have the same rights

do existing States thereunder.

Revised conveyance

© section 5 (c) or become the property of the United States pursuant to section 5 (d) of Public

aw 86-3, except the lands administered pursuant to the Act of August 25, 1916 (39 Stat. 535),

States on Sand Island, includin

THE ADMISSION ACT Sec. 7

4 this

(f) of Public Law 86-3, and shail be subject to the terms and conditions of that trust.

Attorney General Opinions

Dut simited Yo lands ceded to U.S. op annexation and does not extend to ands scqued

of is limited to lands to U.S. upon annexation and not extend to lands acquired

by U.S. thereafter. U.S. Att. Gen. Op. June 12, 1961.

Case Notes

Hawaii's suit in court, seeking to extend uired lands, dismissed on ground

that U.S. could not i oud without its consent. 30S St $7.

Under sehmecgad ineste aut, Mawail's Geumieles tinea ahs iiine inibaa. 235 F. Supp. 990.

§6. As soon as possible after the enactment of this Act, it shall be the duty

of the President of the United States to certify such fact to the Governor of the

Territory of Hawaii. Thereupon the Governor of the Territory shall, within thirty

days after receipt of the official notification of such approval, issue his proclama-

tion for the elections, as hereinafter provided, for officers of all State elective

offices provided for by the constitution of the proposed State of Hawaii, and for

two Senators and one Representative in Congress. In the first election of Senators

from said State the two senatorial offices shall be separately identified and desig-

nated, and no person may be a candidate for both offices. No identification or

designation of either of the two senatorial offices, however, shall refer to or be

taken to refer to the term of that office, nor shall any such identification or

designation in any way impair the privilege of the Senate to determine the class

to which éach of the Senators elected shall be assigned.

§7. (a) The proclamation of the Governor of Hawaii required by section

6 shall provide for the holding of a primary election and a general election and

at such elections the officers required to be elected as provided in section 6 shall

be chosen by the people. Such elections shall be held, and the qualifications of

voters thereat shall be, as prescribed by the constitution of the proposed State of

Hawaii for the election of members of the proposed State legislature. The returns

thereof shall be made and certified in such manner as the constitution of the

proposed State of Hawaii may prescribe. The Governor of Hawaii shall certify

the results of said elections, as so ascertained, to the President of the United

States.

(bo) Atan election designated by proclamation of the Governor of Hawaii,

which may be either the , mary or the gencral election held pursuant to subsec-

tion (a) of this section, or a territorial general election, or a special election, there

shall be submitted to the electors qualified to vote in said election, for adoption

or rejection, the following propositions:

“(1) Shall Hawaii immediately be admitted into the Union as a State?

“(2) The boundaries of the State of Hawaii shall be as prescribed in the Act

of Con SORUOUEES cadiilde S oen vces

aerate (Date of approval of this act)

and all claims of this State to any areas of land or sea outside the

boundaries so prescribed are hereby irrevocably relinquished to the

Tileswtand Cratac

Sec. 7 THE ADMISSION ACT

“(3) All provisions of the Act of Congress approved ..............ccsssseseseeseees

(Date of approval of this act)

reserving rights or powers to the United States, as well as those

prescribing the terms or conditions of the grants of lands or other

property therein made to the State of Hawaii are consented to fully

by said State and its people.”

In the event the foregoing propositions are adopted at said election by a

majority of the legal votes cast on said submission, the proposed constitution of

the proposed State of Hawaii, ratified by the people at the election held on

November 7, 1950, shall be deemed amended as follows: Section 1 of article XIII

of said proposed constitution shall be deemed amended so as to contain the

language of section 2 of this Act in lieu of any other language; article XI shall

be deemed to include the provisions of section 4 of this Act; and section 8 of article

XIV shall be deemed amended so as to contain the language of the third proposi-

tion above stated in lieu of any other language, and section 10 of article XVI shall

be deemed amended by inserting the words “at which officers for all state elective

offices provided for by this constitution and two Senators and one Representative

in Congress shall be nominated and elected” in lieu of the words “at which

officers for all state elective offices provided for by this constitution shall be

nominated and elected; but the officers so to be elected shall in any event include

two Senators and two Representatives to the Congress, and unless and until

otherwise required by law, said Representatives shall be elected at large”.

In the event the foregoing propositions are not adopted at said election by

a majority of the legal votes cast on said submission, the provisions of this Act

shall cease to be effective.

The Governor of Hawaii is hereby authorized and directed to take such

action as may be necessary or appropriate to insure the submission of said

propositions to the people. The return of the votes cast on said propositions shall

be made by the election officers directly to the Secretary of Hawaii, who shall

certify the results of the submission to the Governor. The Governor shall certify

the results of said submission, as so ascertained, to the President of the United

States.

(c) Ifthe President shall find that the propositions set forth in the preced-

ing subsection have been duly adopted by the people of Hawaii, the President,

upon certification of the returns of the election of the officers required to be

elected as provided in section 6 of this Act, shall thereupon issue his proclamation

announcing the results of said election as so ascertained. Upon the issuance of —

said proclamation by the President, the State of Hawaii shall be deemed admitted

into the Union as provided in section 1 of this Act.

Until the said State *= so admitted into the Union, the persons holding

legislative, executive, and judicial office in, under, or by authority of the govern-

ment of said Territory, and the Delegate in Congress thereof, shall continue to

discharge the duties of their respective offices. Upon the issuance of said procla-

mation by the President of the United States and the admission of the State of

Hawaii into the Union, the officers elected at said election, and qualified under

the provisions of the constitution and laws of said State, shall proceed to exercise

all the functions pertaining to their offices in, under, or by authority of the

government of said State, and officers not required to be elected at said initial

election shall be selected or continued in office as provided by the constitution

THE ADMISSION ACT Sec. 11

Senators and Representative in the manner required by law, and the said Senators

and Representative shall be entitled to be admitted to seats in Congress and to

all the rights and privileges of Senators and Representatives of other States in the

Congress of the United States.

§8. The State of Hawaii upon its admission into the Union shall be entitled

to one Representative until the taking effect of thenext reapportionment, and such

Representative shall be in addition to the membership of the House of Represent-

atives as now prescribed by law: Provided, That such temporary increase in the

membership shall not operate to either increase or decrease the permanent mem-

bership of the House of Representatives as prescribed in the Act of August 8, 1911

(37 Stat. 13), nor shall such temporary increase affect the basis of apportionment

established by the Act of November 15, 1941 (55 Stat. 761; 2 U.S.C., sec. 2a), for

the Eighty-third Congress and each Congress thereafter.

§9. Effective upon the admission of the State of Hawaii into the Union-

(a) the United States District Court for the District of Hawaii established

by and existing under title 28 of the United States Code shall henceforth be a court

of the United States with judicial power derived from article III, section 1, of the

Constitution of the United States; Provided, however, That the terms of office of

the district judges for the district of Hawaii then in office shall terminate upon

the effective date of this section and the President, pursuant to sections 133 and

134 of title 28, United States Code, as amended by this Act, shall appoint, by and

with the advice and consent of the Senate, two district judges for the said district

who shall hold office during good behavior;

(b) the last paragraph of section 133 of title 28, United States Code, is

repealed; and

(c) subsection (a) of section 134.of title 28, United States Code, is amend-

ed by striking out the words “Hawaii and”. The second sentence of the same

section is amended by striking out the words “Hawaii and”, “six and”, and

“respectively”.

§10. Effective upon the admission of the State of Hawaii into the Union

the second paragraph of section 451 of title 28, United States Code, is amended

by siriking out the words “including the district courts of the United States for

the districts of Hawaii and Puerto Rico,” and inserting in lieu thereof the words

“including the United States District for the District of Puerto Rico,”.

§11. Effective upon the admission of the State of Hawaii into the Union-

(a) the last paragraph of section 501 of title 28, United States Code, is

repealed;

(b) the first sentence of subsection (a) of section 504 of title 28, United

States Code, is amended by striking out at the end thereof the words “, except

in the district of Hawaii, where the term shall be six years”; ;

(c) the first sentence of subsection (c) of section 541 of title 28, United

States Code, is amended by striking out at the end thereof the words “, except

in the district of Hawaii where the term shall be six years”; and

(d) subsection (d) of section 541 of title 28, United States Code is re-

pealed.

Sec. 11 THE ADMISSION ACT

Cross References

See Public Law 89-554, 80 Stat. 378, 660.

§12. No wnit, action, indictment, cause, or proceeding pending in any

court of the Territory of Hawaii or in the United States District Court for the

District of Hawaii shall abate by reason of the admission of said State into the

Union, but the same shall be transferred to and proceeded with in such appropri-

ate State courts as shall be established under the constitution of said State, or shall

continue in the United States District Court for the District of Hawaii, as the

nature of the case may require. And no writ, action, indictment, cause or proceed-

ing shall abate by reason of any change in the courts, but shall be proceeded with

in the State or United States courts according to the laws thereof, respectively.

And the appropriate State courts shall be the successors of the courts of the

Territory as to all cases arising within the limits embraced within the jurisdiction

of such courts, respectively, with full power to proceed with the same, and award

mesne or final process therein, and all the files, records, indictments, and proceed-

ings relating to any such writ, action, indictment, cause or proceeding shall be

transferred to such appropriate State courts and the same shall be proceeded with

therein in due course of law.

All civil causes of action and all criminal offenses which shall have arisen

or been committed prior to the admission of said State, but as to which no writ,

action, indictment or proceeding shall be pending at the date of such admission,

shall be subject to prosecution in the appropriate State courts or in the United

States District Court for the District of Hawaii in like manner, to the same extent,

and with like right of appellate review, as if said State had been created and said

State courts had been established prior to the accrual of such causes of action or

the commission of such offenses. The admission of said State shall effect no

change in the substantive or criminal law governing such causes of action and

criminal offenses which shall have arisen or been committed; and such of said

criminal offenses as shall have been committed against the laws of the Territory

shall be tried and punished by the appropriate courts of said State, and such as

shall have been committed against the laws of the United States shall be tried and

punished in the United States District Court for the District of Hawaii.

Case Notes

Remand to Supreme Court of State as successor of Supreme Court of Territory. 274 F.2d 356. |

§13. Parties shall have the same rights of appeal from and appellate review

of final decisions of the United States District Court for the District of Hawaii

or the Supreme Court of the Territory of Hawaii in any case finally decided prior

to admission of said State into the Union, whether or not an appeal therefrom

Shall have been perfected prior to such admission, and the United States Court

of Appeals for the Ninth Circuit and the Supreme Court of the United States shall

have the same jurisdiction therein, as by law provided prior to admission of said

State into the Union, and any mandate issued subsequent to the admission of said

State shall be to the United States District Court for the District of Hawaii or

a court of the State, as may be appropriate. Parties shall have the same rights of

appeal from and appellate review of all orders, judgments, and decrees of the

United States District Court for the District of Hawaii and of the Supreme Court

of the State af Hawaii ac cnereccar to the Sunreme Court of the Territorv of

THE ADMISSION ACT Sec. 14

Hawaii, in any case pending at the time of admission of said State into the Union,

and the United States Court of Appeals for the Ninth Circuit and the Supreme

Court of the United States shall have the same jurisdiction therein, as by law

provided in any case arising subsequent to the admission of said State into the

Union.

Case Notes

Right of appeal from judgment of Supreme Court of Territory preserved by this section. 279

F.2d 636, 637, note 1; 283 F.2d 86; 287 F.2d 51, 52.

§14, Effective upon the admission of the State of Hawaii into the Union-

(a) title 28, United States Code, section 1252, is amended by striking out

“Hawaii and” from the clause relating to courts of record;

(b) title 28, United States Code, section 1293, is amended by striking out

the words “First and Ninth Circuits” and by inserting in lieu thereof “First

Circuit”, and by striking out the words, “supreme courts of Puerto Rico and

Hawaii, respectively” and inserting in lieu thereof, “supreme court of Puerto

Rico”;

(c) title 28, United States Code, section 1294, as amended, is further

amended by striking out paragraph (4) thereof and by renumbering paragraphs

(5) and (6) accordingly;

(d) the first paragraph of section 373 of title 28, United States Code, as

amended, is further amended by striking out the words “United States District

Courts for the districts of Hawaii or Puerto Rico,” and inserting in lieu thereof

the words “United States District Court for the District of Puerto Rico,”; and

by striking out the words “and any justice of the Supreme Court of the Territory

of Hawaii”: Provided, That the amendments made by this subsection shall not

affect the rights of any judge or justice who may have retired before the effective

date of this subsection: And provided further, That service as a judge of the

District Court for the Territory of Hawaii or as a judge of the United States

District Court for the District of Hawaii or as a justice of the Supreme Court of

the Territory of Hawaii or as a judge of the circuit courts of the Territory of

Hawaii shall be included in computing under section 371, 372, or 373 of title 28,

United States Code, the aggregate years of judicial service of any person who is

in office as a district judge for the District of Hawaii on the date of enactment

of this Act;

(e) section 92 of the Act of April 30, 1900 (ch. 339, 31 Stat. 159), as

amended, and the Act of May 29, 1928 (ch. 904, 45 Stat. 997), as amended, are

repealed;

(f) section 86 of the Act approved April 30, 1900 (ch. 339, 31 Stat. 158),

as amended, is repealed;

(g) section 3771 of title 18, United States Code, as heretofore amended,

is further amended by striking out from the first paragraph of such section the

words “Supreme Courts of Hawaii and Puerto Rico” and inserting in lieu thereof

the words “Supreme Court of Puerto Rico”;

(h) section 3772 of title 18, United States Code, as heretofore amended,

is further amended by striking out from the first paragraph of such section the

words “Supreme Courts of Hawaii and Puerto Rico” and inserting in lieu thereof

the words “Supreme Court of Puerto Rico”;

ee et eee

Sec. 14 THE ADMISSION ACT

(i) section 91 of title 28, United States Code, as heretofore amended, is

further amended by inserting after “Kure Island" and before “Baker Island” the

words “Palmyra Island,”; and

(j) the Act of June 15, 1950 (64 Stat. 217; 48 U.S.C., §644a), is amended

by inserting after “Kure Island” and before “Baker Island” the words “Palmyra

Island,”.

§15. All Territorial laws in force in the Territory of Hawaii at the time

of its admission into the Union shall continue in force in the State of Hawaii,

except as modified or changed by this Act or by the constitution of the State, and

shall be subject to repeal or amendment by the Legislature of the State of Hawaii,

except as provided in section 4 of this Act with respect to the Hawaiian Homes

Commission Act, 1920, as amended; and the laws of the United States shall have

the same force and effect within the said State as elsewhere within the United

States: Provided, That, except as herein otherwise provided, a Territorial law

enacted by the Co1...es), shall be terminated two years after the date of admission

of the State of Hawait «:.to the Union or upon the effective date of any law enacted

by the State of Hawaii which amends or repeals it, whichever may occur first.

As used in this section, the term “Territorial laws” includes (in addition to laws

enacted by the Territorial Legislature of Hawaii) all laws or parts thereof enacted

by the Congress the validity of which is dependent solely upon the authority of

the Congress to provide for the government of Hawaii prior to its admission into

the Union, and the term “laws of the United States” includes all laws or parts

thereof enacted by the Congress that (1) apply to or within Hawaii at the time

of its admission into the Union, (2) are not “Territorial laws” as defined in this

paragraph, (3) are not in conflict with any other provision of this Act.

Attorney General Opinions

seomr anys | a territorial law enacted by Congress was intended to apply

The two-year proviso

—_ — intrastate commerce and is not applicable to

specifically to the sdministration

the public land laws. Att. Gen. Op. 6

Case Notes

ernment of Hawaii prior to statehood was

derived from Art. [V, §3. cl. 2, U.S. Const. 44

H. 634, 361 P.2d 390.

A statute invalid under Sherman Act at

time of statehood would not have been con-

As to cut-off period, Congress had in view

specifically the termination of federal respon-

sibility for the administration of laws regulat-

ein dria veg 44 H. 634, 361 P.2d

By section, C.A.B. jurisdiction over car-

eels ie iceman otieeein

continued to be an ex to rate-making

authority of state public utilities commission

— transition period. 44 Hess 361 P.2d

tinued in force by this section. 283 F.2d 86,

89, note 2.

Concerning continuance of certain acts of

— for two years, see 235 I’. Supp. 705.

712.

Cited: 26 F.R.D. 384, 386.

Authority of Congress to provide fo: gov-

§16, (a) Notwithstanding the admission of the State of Hawaii into the Un-

ion, the United States shall continue to have sole and exclusive jurisdiction over

the area which may then or thereafter be included in Hawaii National Park,

saving, however, to the State of Hawaii the same rights as are reserved to the

Territory of Hawaii by section | of the Act of April 19, 1930 (46 Stat. 227), and

saving, further, to persons then or thereafter residing within such area the right

to vote at all elections held within the political subdivisions where they : <cpective-

—_——— ooo

THE ADMISSION ACT Sec. 18

ly reside. Upon the admission of said State all references to the Territory of

Hawaii in said Act or in other laws relating to Hawaii National Park shall be

deemed to refer to the State of Hawaii. Nothing contained in this Act shall be

construed to affect the ownership and control by the United States of any lands

or other property within Hawaii National Park which may now belong to, or

which may hereafter be acquired by, the United States.

(b) Notwithstanding the admission of the State of Hawaii into the Union,

authority is reserved in the United States, subject to the proviso hereinafter set

forth, for the exercise by the Congress of the United States of the power of

exclusive legislation, as provided by article I, section 8, clause 17, of the Constitu-

tion of the United States, in all cases whatsoever over such tracts or parcels of

land as, immediately prior to the admission of said State, are controlled or owned

by the United States and held for Defense or Coast Guard purposes, whether such

lands were acquired by cession and transfer to the United States by the Republic

of Hawaii and set aside by Act of Congress or by Executive order or proclamation

of the President or the Governor of Hawaii for the use of the United States, or

were acquired by the United States by purchase, condemnation, donation, ex-

change, or otherwise: Provided, (i) That the State of Hawaii shall alsa. haw: the

right to serve civil or criminal process within the said tracts or p »<* @® land

in suits or prosecutions for or on account of rights acquire”, obliga’ oi. incuzred,

or crimes committed within the said State but outside of the said tracts or parcels

of lana, (ii) that the reservation of authority in the United States for the exercise

by the Congress of the United States of the power of exclusive Icgislation over

the lands aforesaid shall not operate to prevent such lands from being a part of

the State of Hawaii, or to prevent the said State from exercising over or upon such

lands, concurrently with the United States, any jurisdiction whatsoever which it

would have in the absence of such reservation of authority and which is consistent

with the laws hereafter enacted by the Congress pursuant to such reservation of

authority; and (iii) that such power of exclusive legislation shall vest and remain

in the United States only so long as the particular tract or parcel of land involved

is controlled or owned by the United States and used for Defense or Coast Guard

purposes: Provided, however, That the United States shall continue to have sole

and exclusive jurisdiction over such military installations as have been heretofore

or hereafter determined to be critical areas as delineated by the President of the

United States and/or the Secretary of Defense.

§17. The next to last sentence of the first paragraph of section 2 of the Fed-

eral Reserve Act (38 Stat. 251) as amended by section 19 of the Act of July 7,

1958, (72 Stat. 339, 350) is amended by inserting after the word “Alaska” the

words “or Hawaii.”

§18. (a) Nothing contained in this Act shall be construed as depriving the

Federal Maritime Board of the exclusive jurisdiction heretofore conferred on it

over common carriers engaged in transportation by water between any port in

the State of Hawaii and other ports in the United States, or possessions, or as

conferring on the Interstate Commerce Commission jurisdiction over transporta-

tion by water between any such ports.

(b) Effective on the admission of the State of Hawaii into the Union-

(1) The first sentence of section 506 of the Merchant Marine Act, 1936,

as amended (46 U.S.C., §1156), is amended by inserting before the

words “an island possession or island territory,” the words “the State

of Hawaii, or”;

Sec, 18 THE ADMISSION ACT

(2) Section 605 (a) of the Merchant Marine Act, 1936, as amended (46

U.S.C., §1175), is amended by inserting before the words “an island

possession or island territory”, the words “the State of Hawaii, or’;

and

(3) The second paragraph of section 714 of the Merchant Marine Act,

1936, as amended (46 U.S.C., §1204), is amended by inserting before

the words “an island possession or island territory” the words “the

State of Hawaii, or”. [Am July 12, 1960, Pub L 86-324, 74 Stat 423]

§19. Nothing contained in this Act shall operat’ ‘0 confer United States

nationality, nor to terminate nationality heretofore le’ .ully acquired, or restore

nationality heretofore lost under any law of the Unitec States or under any treaty

to which the United States is or was a party.

§20. (a) Section 101 (a) (36) of the Immigration and Nationality Act (66

Stat. 170, 8 U.S.C., §1101 (a) (36), is amended by deleting the word “Hawaii,”.

(b) Section 212 (d) (7) of the Immigration and Nationality Act (66 Stat.

188, 8 U.S.C. 1182 (d) (7), is amended by deleting from the first sentence thereof

the word “Hawaii” and by deleting the proviso to said first sentence.

(c) The first sentence of section 310(a) of the Immigration and National-

ity Act, as amended (66 Stat. 239, 8 U.S.C. 1421(a), 72 Stat. 351) is further

amended by deleting the words “for the Territory of Hawaii, and”.

(d) Nothing contained in this Act shail be held to repeal, amend, or

modify the provisions of section 305 of the Immigration and Nationality Act (66

Stat. 237, 8 U.S.C. 1405).

§21. Effective upon the admission of the State of Hawaii into the Union,

section 3, subsection (b), of the Act of September 7, 1957 (71 Stat. 629), is

§22. If any provision of this Act, or any section, subsection, sentence,

lause, phrase, or individual word, or the application thereof in any circumstance

is heid invalid, the validity of the remainder of the Act and of the application of

ny such provision, section, subsection, sentence, clause, phrase, or individual

ord in other circumstances shall not be affected thereby.

§23. All Acts or parts of Acts ia conflict with the provisions of this Act,

hether passed by the legislature of said Territory or by Congress are hereby

epealed.

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HAWAIIAN HOMES COMMISSION ACT, 1920

(Act of July 9, 1921, ¢ 42, 42 Stat 108)

This Act is now part of the State Constitution and is subject to amendment or repeal as

prescribed in Article XI of the Constitution.

Bracketed section headings have been inserted and are not official.

TITLE 1: DEFINITIONS

§1. That this Act may be cited as the “Hawaiian Homes Commission Act,

1920.”

§2. That when used in this Act the term “Hawaiian Organic Act” means

the Act entitled “An Act to provide a government for the Territory of Hawaii,”

approved April 30, 1900, as amended.

TITLE 2: HAWAIIAN HOMES COMMISSION

§201. ([Definitions.] (a) That when used in this title:

(1) The term “commission” means the Hawaiian Homes Commission;

(2) The term “public land™ has the same meaning as defined in paragraph

4 (°) of subdivision (a) of section 73 of the Hawaiian Organic Act;

(3) The term “fund” means the Hawaiian home loan fund:

(4) The term “State” means the State of Hawaii:

i (5) The term “Hawaiian home lands” means all lands given the status of

Hawaiian home lands under the provisions of section 204 of this title;

(6) The term “tract” means any tract of Hawaiian home lands leased, as

}9 authorized by section 207 of this title, or any portion of such tract;

(7) The term “native Hawaiian” means any descendant of not less than

one-half part of the blood of the races inhabiting the Hawaiian Islands previous

to 1778;

(8) The term “irrigated pastoral land” means land not in the description

4 of the agricultural land but which, through irrigation, is capable of carrying more

livestock the year through than first-class pastoral land.

(b) Any term defined or described in section 347 or 351 of the Revised

Laws of Hawaii of 1915, except a term defined in subdivision (a) of this section,

shall, whenever used in this title, have the same meaning as given by such

definition or description. [Am Jun. 8, 1954, c 321, §2, 68 Stat 263; am L 1963,

¢ 207, §5(a)}

a Re A lei, Ape LP a ee ?

§202. Department officers, staff, commission, members, compensation.

(a) There shall be a department of Hawaiian home lands which shall be headed

by an executive board to be known asthe Hawaiian homes commission. The

members of the commission shall be nominated and appointed in accordance with

HAWAIIAN HOMES COMMISSION ACT Sec. 203

section 26-34, Hawaii Revised Statutes. The commission shall be composed of

seven members, four of whom shall be residents of the city and county of Honolu-

lu; of the remaining members, one shall be a resident of the county of Hawaii,

one a resident of the county of Maui, and one a resident of the county of Kauai.

All members shall have been residents of the State at least three years prior to

their appointment and at least four of the members shall be descendants of not

less than one-fourth part of the blood of the races inhabiting the Hawaiian islands

previous to 1778. The members of the commission shall serve without pay, but

shall receive actual expenses incurred by them in the discharge of their duties as

such members. The governor shall appoint the chairman of the commission from

among the members thereof.

The commission may delegate to the chairman such duties, powers, and

authority or so much thereof, as may be lawful or proper for the performance of

the functions vested in the commission. The chairman of the commission shall

serve in a full-time capacity. He shall, in such capacity, perform such duties, and

exercise such powers and authority, or so much thereof, as may be delegated to

him by the commission as herein provided above.

(b) The provisions of section 76-16 Hawaii Revised Statutes, shall apply

to the positions of the first deputy and private secretary to the chairman of the

commission. All other positions in the department shall be subject to the provi-

sions of chapters 76 and 77, Hawaii Revised Statutes, and employees having

tenure, according to the employment practices of the department, immediately

prior to [June 20, 1963] and occupying positions in accordance with the state’s

position classifications and compensation pians shall be given permanent appoint-

ment status under chapter 76 without a reduction in pay or the loss of seniority,

prior service credit, vacation or sick leave earned heretofore. An employee with

tenure who does not occupy a position under chapters 76 and 77 shall be appoint-

ed to the position after it has been classified and assigned to an appropriate salary

range by the director of personnel services and such employee shall not suffer a

reduction in pay or loss of seniority and other credits earned heretofore.

All vacancies and new positions which are covered by the provisions of

chapters 76 and 77, Hawaii Revised Statutes, shall be filled in accordance with

the provisions of sections 76-23 and 76-31, Hawaii Revised Statutes, provided

that the provisions of these sections shall be applicable first to qualified persons

of Hawaiian extraction. [Am Jul. 26, 1935, c 420, §1, 49 Stat 504; May 31, 1944,

c 216, §1, 58 Stat 260; Jul. 1, 1952, c 618, 66 Stat 515; am L 1963, c 207, §1; am

imp L 1965, c 223, §§5, 8]

Cross References

Acting board members, see §26-36.

Membership on other boards prohibited, see §78-4.

Public agency meetings and records, see chapter 92.

§203. [Certain public lands designated “available lands.”) All public

lands of the description and acreage, as follows, excluding (a) all lands within any

forest reservation, (b) all cultivated sugar-cane lands, and (c) all public lands held

under a certificate of occupation, homestead lease, right of purchase lease, or

special homestead agreement, are hereby designated, and hereinafter referred to,

as “available lands”:

(1) On the island of Hawaii: Kamaoa-Puueo (eleven thousand acres,

more or less), in the district of Kau; Puukapu (twelve thousand acres, more or

147

Sec. 203 HAWAIIAN HOMES COMMISSION ACT

less), Kawaihae | (ten thousand acres, more or less), and Pauahi (seven hundred

and fifty acres, more or less), in the district of South Kohala; Kamoku-Kapulena

(five thousand acres, more or less), Waimanu (two hundred acres, more or less),

Nienie (seven thousand three hundred and fifty acres, more or less), in the district

of Hamakua; fifty-three thousand acres to be selected by the department from the

lands of Humuula Mauka, in the district of North Hilo; Panaewa, Waiakea (two

thousand acres, more or less), Waiakea-kai, or Keaukaha (two thousand acres,

more or less), and two thousand acres of agricultural lands to be selected by the

department from the lands of Piihonua, in the district of South Hilo; and two

thousand acres to be selected by the department from the lands of Kaohe-Makuu,

in the district of Puna; land at Keaukaha, Hawaii, more particularly described

as follows:

PARCEL |

Now set aside as Keaukaha Beach Park by Executive Order Numbered 421,

and being a portion of the Government land at Waiakea, South Hilo, Hawaii.

Beginning at the southeast corner of this parcel of land, on the north side

of Kalanianaole Road, the coordinates of said point of beginning referred to

Government survey triangulation station “Halai” being five thousand six hun-

dred and eighty-one and twelve one-hundredths feet north and seventeen thou-

sand nine hundred and thirty-three and fifteen one-hundredths feet east, as shown

on Government Survey Registered Map Numbered 2704, and running by true

azimuths.

1. Sixty-one degrees fifty-eight minutes one thousand three hundred and

fifty-one and seventy-three one-hundredths feet along the north side of Kalania-

naole Road (fifty feet wide);

2. One hundred and fifty-one degrees fifty-eight minutes eight hundred

and forty feet along United States military reservation for river and harbor

improvements (Executive Order Numbered 176);

Thence along the seashore at high-water mark, the direct azimuths and

distances between points at seashore being:

3. Two hundred and cighty-two degrees no minutes four hundred and

sixty-eight and fifty one-hundredths feet;

4. Three hundred and thirteen degrees twenty minutes four hundred and

forty-one feet;

5. Two hundred and sixty degrees twenty minutes one hundred and forty

feet;

6. Two hundred and forty-two degrees twenty minutes two hundred and

fifty feet; '

7. One hundred and eighty-eight degrees forty minutes sixty feet;

8. Two hundred and seventy-two degrees twenty minutes one hundred

and seventy feet;

9. Two hundred and five degrees no minutes sixty feet;

10. One hundred and ten degrees twenty minutes two hundred and

twenty feet; .

11. Ninety degrees fifty minutes eighty feet;

12. One hundred and sixty-two degrees no minutes one hundred and

seventy feet; ;

er aed

a

HAWAIIAN HOMES COMMISSION ACT Sec. 203

13. Two hundred and fifty degrees thirty minutes four hundred and thirty

feet; 7

14. Three hundred and thirty-one degrees fifty-eight minutes three hun-

dred and eighty feet along parcel II of Government land to the point of beginning

and containing an area of eleven and twenty one-hundredths acres, more or less.

PARCEL Il

Being a portion of the Government land of Waiakea, South Hilo, Hawaii,

and located on the north side of Kalanianaole Road and adjoining parcel I,

hereinbefore described.

Beginning at the south corner of this parcel of land, on the north side of

Kalanianaole Road, the coordinates of said point of beginning referred to Gov-

ernment survey triangulation station “Halai,” being five thousand six hundred

and eighty-one and twelve one-hundredths feet north and seven thousand nine

hundred and thirty-three and fifteen one-hundredths feet east and running by true

azimuths:

1. One hundred and fifty-one degrees fifty-six minutes three hundred

and eighty feet along the east boundary of parcel I;

2. _Two hundred and twenty-nine degrees forty-five minutes thirty se-

conds one hundred and ninety-one and one one-hundredths feet;

3. One hundred and ninety-eight degrees no minutes two hundred and

thirty feet to a one-and-one-half inch pipe set in concrete;

4. Three hundred and seven degrees thirty-eight minutes five hundred

and sixty-two and twenty-one one-hundredths feet to a one-and-one-half inch

pipe set in concrete;

5. Twenty-eight degrees no minutes one hundred and twenty-one and

thirty-seven one-hundredths feet to the north side of Kalanianaole Road;

6. Sixty-one degrees fifty-eight minutes four hundred and eighty-three

and twenty-two one-hundredths feet along the north side of Kalanianaole Road

to the point of beginning and containing an area of five and twenty-six one-

hundredths acres. more or less.

(2) On the island of Maui:* Kahikinui (twenty-five thousand acres, more

or less) in the district of Kahikinui, and the public lands (six thousand acres, more

or less) in the district of Kula;

(3) On the island of Molokai: Palaau (eleven thousand four hundred

acres, more or less), Kapaakea (two thousand acres, more or less), Kalamaula (six

thousand acres, more or less), Hoolehua (three thousand five hundred acres, more

or less), Kamiloloa I and II (three thousand six hundred acres, more or less), and

Makakupaia (two thousand two hundred acres, more or less) and Kalaupapa (five

thousand acres, more or less);

(4) On the island of Oahu: Nanakuli (three thousand acres, more or less),

and Lualualei (two thousand acres, more or less), in the District of Waianae; and

Waimanalo (four thousand acres, more or less), in the District of Koolaupoko,

excepting therefrom the military reservation and the beach lands; and those

certain portions of the lands of Auwaiolimu, Kewalo, and Kalawahine described

by metes and bounds as follows, to-wit:

*See second to last paragraph of this section as added by Act of June 3. 194%, ¢ 384. referring

available lands at Wailuku, Maui.

Sec. 203 HAWAIIAN HOMES COMMISSION ACT

(I) Portion of the Government land at Auwaiolimu, Punchbow! Hill,

Honolulu, Oahu, described as follows:

Beginning at a pipe at the southeast corner of this tract of land, on the

boundary between the lands of Kewalo and Auwaiolimu, the coordinates of said

point of beginning referred to Government Survey triangulation station “Punch-

bowl,” being one thousand one hundred and thirty-five and nine-tenths feet north

and two thousand five hundred and fifty-seven and eight-tenths feet east as shown

on Government Survey Registered Map Numbered 2692, and running by true

‘azimuths:

1. One hundred and sixty-three degrees thirty-one minutes two hundred

and thirty-eight and eight-tenths feet along the east side of Punchbowl-Makiki

Road;

2. Ninety-four degrees eight minutes one hundred and twenty-four and

nine-tenths feet across Tantalus Drive and along the east side of Puuowaina

Drive;

3. One hundred and thirty-one degrees thirteen minutes two hundred

and thirty-two and five-tenths feet along a twenty-five foot roadway;

4. One hundred and thirty-nine degrees fifty-five minutes twenty and

five-tenths feet along same;

5. One hundred and sixty-eight degrees seventeen minutes two hundred

and fifty-seven and eight-tenths feet along Government land (old quarry lot);

6. One hundred and fifty-six degrees thirty minutes three hundred and

thirty-three feet along same to a pipe;

_ 7. Thence following the old Auwaiolimu stone wall along L.C. Award

Numbered 3145, to Laenui, grant 5147 (lot 8 to C.W. Booth), L.C. Award

Numbered 1375, to Kapule, and L.C. Award Numbered 1355, to Kekuanoni, the

direct azimuth and distance being two hundred and forty-nine degrees forty-one

minutes one thousand three hundred and three and five-tenths feet;

8. Three hundred and twenty-one degrees, twelve minutes, six hundred

and ninety-three feet along the remainder of the land of Auwaiolimu;

9. Fifty-one degrees, twelve minutes, one *housand and four hundred

feet along the land of Kewalo to the point of beginning, containing an area of

twenty-seven acres, excepting and reserving therefrom Tantalus Drive and

Auwaiolimu Street crossing this land.

(II) Portion of the land of Kewalo, Punchbow! Hill, Honolulu, Oahu,

being part of the lands set aside for the use of the Hawaii Experiment Station of

the United States Department of Agriculture by proclamation of the Acting

Governor of Hawaii, dated June 10, 1901, and described as follows:

Beginning at the northeast corner of this lot, at a place called “Puu Ea” on

the boundary between the lands of Kewalo and Auwaiolimu, the coordinates of

said point of beginning referred to Government survey triangulation station

“Punchbowl,” being three thousand two hundred and fifty-five and six-tenths feet

north and five thousand two hundred and forty-four and seven-tenths feet east,

as shown on Government Survey Registered Map Numbered 2692 of the State

¢ Hawaii, and running by true azimuths:

1. Three hundred and fifty-four degrees thirty miftutes nine hundred and

thiety feet along the remainder of the land of Kewalo, to the middle of the stream

which divides the lands of Kewalo and Kalawahine;

2. Thence down the middle of said stream along the land of Kalawahine,

the direct azimuth and distance being forty-nine degrees sixteen minutes one

thousand five hundred and twelve and five-tenths feet;

HAWAIIAN HOMES COMMISSION ACT Sec. 203

3. One hundred and forty-one degrees twelve minutes eight hundred and

sixty feet along the remainder of the land of Kewalo;

4. Two hundred and thirty-one degrees twelve minutes five hundred and

fifty-two and six-tenths feet along the land of Auwaioiimu to “PUU IOLE”;

5. Thence still along the said land of Auwaiolimu following the top of

the ridge to the point of beginning, the direct azimuth and distance being two

hundred and thirty-two degrees twenty-six minutes one thousand four hundred

and seventy feet and containing an area of thirty acres; excepting and reserving

therefrom Tantalus Drive crossing this land;

[(III) Repealed. Act of Jul. 9, 1952, c 614, §1, 66 Stat 511]

(IV) Portion of the Hawaii Experiment Station under the control of the

United States Department of Agriculture, situated on the northeast side of

Auwaiolimu Street.

KEWALO-UKA, HONOLULU, OAHU

Being a portion of the land of Kewalo-uka conveyed by the Territory of

Hawaii to the United States of America by proclamations of the Acting Governor

of Hawaii, Henry S. Cooper, dated June 10, 1901, and August 16, 1901, and a

portion of the United States Navy Hospital reservation described in Presidential

Executive Order Numbered 1181, dated March 25, 1910.

Beginning at the west corner of this parcel of land, on the Auwaiolimu-

Kewalo-uka boundary and on the northeast side of Auwaiolimu Street, the coor-

dinates of said point of beginning referred to Government survey triangulation

station “Punchbowl,” being one thousand two hundred and thirty and fifty-eight

one-hundredths feet north and two thousand six hundred and seventy-five and

six one-hundredths feet east as shown on Government Survey Registered Map

Numbered 2985 and running by azimuths measured clockwise from true south:

1. Two hundred and thirty-one degrees twelve minutes one thousand

two hundred and forty-eight and twenty-six one-hundredths feet along the land

of Auwaiolimu;

2. Three hundred and twenty-one degrees twelve minutes eight hundred

and sixty feet along Hawaiian home land as described in Presidential Executive

Order Numbered 5561;

3. Thence down along the middle of stream in all its turns and winding:

along the land of Kalawahine to the north corner of Roosevelt High School lot,

the direct azimuth and distance being thirty-three degrees forty-eight minutes

forty seconds one thousand one hundred and twelve and twenty one-hundredths

feet;

Thence still down along the middle of stream for the next seven courses

along the Roosevelt High School premises, the direct azimuth and distances

between points in middle of said stream being:

4. Twenty-three degrees forty minutes twenty-eight and ninety one-hun-

dredths feet;

Eight degrees no minutes one hundred and fifteen feet;

Three hundred and thirty-seven degrees fifty minutes forty-eight feet;

Two degrees thirty minutes sixty feet;

Forty-nine degrees forty minutes fifty-two feet;

BPartv.ciy decraeee ciy minitec ninety and ceventy ane. hinonradthc fear:

OM NIAW

Sec. 203 HAWAIIAN HOMES COMMISSION ACT

10. Ninety-two degrees forty-three minutes ninety-five and sixty one-

hundredths feet; thence

ll. Ejghty-three degrees thirty-eight minutes seventy-one and sixty-three

one-hundredths feet along state land to the northeast side of Auwaiolimu Street;

12. Thence on a curve to the left with a radius of one thousand one

hundred and seventy-six and twenty-eight one-hundredths feet along the

northeast side of Auwaiolimu Street along land described in Presidential Execu-

tive Order Numbered 1181, dated March 25, 1910, the direct azimuth and

distance being one hundred and seventy-two degrees twenty-nine minutes thirty-

five seconds one hundred and sixty-four and thirty-nine one-hundredths feet:

13. Thence continuing on a curve to the left with a radius of one thousand

one hundred and seventy-six and twenty-eight one-hundredths feet along the

northeast side of Auwaiolimu Street, the direct azimuth and distance being one

hundred and sixty degrees fifty minutes forty-eight seconds three hundred and

twelve anc’ seventy-five one-hundredths feet;

14. Two hundred and twenty-four degrees fifty-three minutes six hundred

and seventy and sixty-five one-hundredths feet along the Quarry Reservation

(State of Hawaii, owner);

15. One hundred and ten degrees six minutes two hundred and thirty-nine

and twenty one-hundredths feet along same;

16. Ninety-two degrees fix minutes two hundred and two and twenty

one-hundredths feet along same;

17. Fifty-three degrees twenty minutes three hundred and forty and

thirty-four one-hundredths feet along same;

18. One hundred and forty-two degrees thirty minutes four hundred and

twenty-four and sixty-eight one-hundredths feet along the northeast side of

Auwaiolimu Street to the point of beginning and containing an area of twenty-

seven and ninety one-hundredths acres; excepting and reserving therefrom that

certain area included in Tantalus Drive, crossing this land.

(V) Portion of Kewalo-uka Quarry Reservation. Situate on the northeast

side of Auwaiolimu Street.

KEWALO-UKA, HONOLULU, OAHU

“Being land reserved by the State of Hawaii within the Hawaii Experiment

Station under the control of the United States Department of Agriculture, as

described in proclamations of the Acting Governor of Hawaii, Henry E. Cooper,

dated June 10, 1901.

Beginning at the northwest corner of this parcel of land and on the northeast

side of Auwaiolimu Street, the coordinates of said point of beginning referred to

Government survey triangulation station “Punchbowl,” being eight hundred and

ninety-three and sixty-six one-hundredths feet north and two thousand nine

hundred and thirty-three and fifty-nine one-hundredths feet east as shown on

Government Survey Registered Map Numbered 2985 and running by azimuths

measured clockwise from true south:

1. Two hundred and thirty-three degrees twenty minutes three hundred

and forty and thirty-four one-hundredths feet along the Hawaii Experiment

Station under the control of the United States Department of Agriculture;

2. Two hundred and seventy-two degrees five minutes two hundred and

two and twenty one-hundredths feet along same;

HAWAIIAN HOMES COMMISSION ACT Sec. 203

3. Two hundred and ninety degrees six minutes two hundred and thirty-

nine and twenty one-hundredths feet along same;

4. Forty-four degrees fifty-three minutes six hundred and seventy and

sixty-five one-hundredths feet along same to the northeast side of Auwaiolimu

Street;

5. Thence on a curve to the left with a radius of one thousand one

hundred and seventy-six and twenty-eight one-hundredths feet along the

northeast side of Auwaiolimu Street, the direct azimuth and distance being one

hundred and forty-seven degrees fifty-one minutes thirteen seconds two hundred

and nineteen and fifty one-hundredths feet;

6. One hundred and forty-two degrees thirty minutes one hundred and

thirty-four and fifty-five one-hundredths feet along the northeast side of Auwai-

olimu Street;

7. Two hundred and thirty-two degrees thirty minutes twenty feet along

same,

8. One hundred and forty-two degrees thirty minutes seventy-one and

fifty-seven one-hundredths feet along same to the point of beginning and contain-

ing an area of four and six hundred and forty-six one-thousandths acres.

(VI) _ Being a portion of government land of Auwaiolimu, situated on the

northeast side of Hawaiian home land of Auwaiolimu and e4jacent to the land

of Kewalo-uka at Pauoa Valley, Honolulu, Oahu, State of Hawaii. Beginning at

a pipe in concrete at the south corner of this parcel of land, being also the east

corner of Hawaiian home land, the coordinates of said point of beginning referred

to Government Survey Triangulation Station “Punchbowl,” being two thousand

twelve and seventy-five one-hundredths feet south and three thousand six hun-

dred forty-seven and eighty-seven one-hundredths feet east, and thence running

by azimuths measured clockwise from true south:

1. One hundred and forty-one degrees twelve minutes six hundred and

ninety-three feet along Hawaiian home land;

2. Thence along middle of stone wall along L.C.Aw. 1356 to Kekuanoni,

Grant 5147, Apana | to C.W.Booth, L.C.Aw. 1351 to Kamakainau, L.C.Aw.

1602 to Kahawai, Grant 4197 to Keauloa, L.C.Aw. 5235 to Kaapuiki and Grant

2587 to Haaleiea;

3. Two hundred and ninety-five degrees thirty minutes three hundred

and twenty feet along the remainder of government land of Auwaiolimu;

4. Twenty-four degrees sixteen minutes thirty seconds one thousand five

hundred seventy-nine and thirty-six one-hundredths feet along the remainder of

government land of Auwaiolimu;

5. Thence along middle of ridge along the land of Kewalo-uka to a point

called ““Puu Iole™ (pipe in concrete monument), the direct azimuth and distance

being fifty-six degrees no minutes eight hundred and thirty feet;

6. Fifty-two degrees twelve minutes five hundred fifty-two and sixty

one-hundredths feet along the land of Kewalo-uka to the point of beginning and

containing an area of thirty-three and eighty-eight one-hundredths acres, more

or less.

(VII) Being portions of government lands of Kewalo-uka and Kalawahine

situated on the east side of Tanialus Drive at Pauoa Valley, Honolulu, Oahu,

State of Hawaii. Beginning at the west corner of this parcel of land, the true

azimuth and distance to a point called “Puu Ea” (pipe in concrete monument)

being one hundred and seventy-four degrees thirty minutes four hundred one and

HAM IR ALLIIR ERE ELE ETM LOIRE

fe A

Sec. 203 HAWAIIAN HOMES COMMISSION ACT

ninety-nine one-hundredths feet, the coordinates of said point of beginning re-

ferred to Government Survey Triangulation Station “Punchbowl” being two

thousand eight hundred fifty-five and ten one-hundredths feet north and five

thousand two hundred eighty-two and twenty-five one-hundredths feet east and

thence running by azimuths measured clockwise from true south:

1. Two hundred and forty-eight degrees nineteen minutes forty seconds

eight hundred fifty and fifty-four one-hundredths feet along the land of Kewalo-

uka;

2. Sixteen degrees thirty minutes five hundred feet along the land of

Kewalo-uka, along the land of Kalawahine;

3. Twenty-five degrees no minutes five hundred feet along the land of

Kalawahine;

4. Thirty-five degrees no minutes three hundred and twenty feet along

the land of Kalawahine;

5. Fifty degrees forty-six minutes ninety-six and seventy one-hundredths

feet along Makiki Forest Ridge lots;

6. Seventy-three degrees twenty minutes two hundred fifty-five and

ninety one-hundredths feet along Makiki Forest Ridge lots;

7. Eighty-six degrees thirty-two minutes one hundred sixty-three and

forty one-hundredths feet along Makiki Forest Ridge lots;

8. Thence along the south side of Tantalus Drive on a curve to the right

with a radius of two hundred and seventy feet, the direct azimuth and distance

being two hundred and twenty-one degrees twelve minutes nineteen seconds

ninety-eight and thirty-six one-hundredths feet;

9. Two hundred and thirty-one degrees forty-two minutes one hundred

ninety-three and thirty-five one-hundredths feet along the south side of Tantalus

Drive;

10. Still along Tantalus Drive on a curve to the left with a radius of one

hundred eighty and seventy-eight one-hundredths feet, the direct azimuth and

distance being one hundred and eighty-one degrees forty-five minutes fifty-five

seconds two hundred seventy-six and seventy-two one-hundredths feet;

11. Two hundred and forty-two degrees fifteen minutes sixty-two and

thirty-two one-hundredths feet along the land of Kewalo-uka;

12. One hundred and seventy-four degrees thirty minutes five hundred

twenty-eight and one one-hundredths feet along the land of Kewalo-uka to the

point of beginning and containing an area of five hundred and seventy-four

thousand seven hundred and thirty square feet or thirteen and one hundred

ninety-four one-thousandths acres.

(5) On the island of Kauai:* Upper land of Waimea, above the cultivated

sugar cane lands, in the district of Waimea (fifteen thousand acres, mure or less);

and Moloaa (two thousand five hundred acres, more or less), and Anahola and

Kamalomalo (five thousand acres, more or less). «

Wailuku, Maui: That parcel of government land, situate in the District of

Wailuku, Island and County of Maui, comprising twelve and four hundred and

fifty-five one-thousandths acres of the ILI OF KOU and being a portion of the

land covered by GeneraleLease Numbered 2286 to Wailuku Sugar Company,

Limited, notwithstanding the fact that said parcel is cultivated sugar cane land,

subject, however, to the terms of said lease.

*See last paragraph of this section as added by Act of June 3, 1948, c 397, 62 Stat. 303.

HAWAIIAN HOMES COMMISSION ACT Sec, 203

Cultivated Sugar Cane Lands: That parcel of Anahola, Island of Kauai,

comprising four hundred and one and four hundred and twenty-three one-thou-

sandths acres, hereinafter described and being portion of the land covered by

general lease numbered 2724 to the Lihue Plantation Company, Limited, not-

withstanding the fact that said parcel is cultivated sugar cane land, subject

however, to ihe terms of said lease, said parcel being more particularily described

as follows:

Being a portion of land described in general lease numbered 2724 to the

Lihue Plantation Company situate in the district of Anahola, Kauai, State of

Hawaii, beginning at the northwest corner of this parcel of land, the coordinates

of which referred to government triangulation station south base are three thou-

sand and forty-nine and sixty-two one-hundredths feet south, one thousand nine

hundred and thirty-two and twenty-five one-hundredths feet west, and running

thence by azimuths measured clockwise from true south two hundred and eighty-

four degrees thirty minutes two hundred and fifty feet, thence on the arc of

circular curve to the left, with a radius of eight hundred and ninety feet and a

central angle of thirty-five degrees fifteen minutes, the direct azimuth and dis-

tance being two hundred and sixty-six degrees fifty-two minutes thirty seconds

five hundred and thirty-eight and ninety-six one-hundredths feet, thence two

hundred and forty-nine degrees fifteen minutes one thousand eight hundred and

nine and tweity-five one-hundredths feet, thence two hundred and twenty-four

degrees fifteen minutes three thousand fifty-six feet, thence one hundred and

thirty-four degrees fifteen minutes two hundred and seven feet, to the seashore

at Anahola Bay, thence along the seashore around Kahala Point, the direct

azimuth and distance being two hundred and thirty-seven degrees six minutes

seven seconds one thousand and sixty and fourteen one-hundredths feet, thence

along the seashore, the direct azimuth and distance being three hundred and

thirty-two degrees no minutes one thousand eight hundred and twenty-seven feet,

thence along the seashore, the direct azimuth and distance being three hundred

and fifty-five degrees no minutes one thousand eight hundred and twenty-seven

feet, thence eighty-seven degrees twenty minutes seven hundred and forty feet,

thence fifty-nine degrees no minutes two thousand seven hundred and fifteen feet,

thence sixty-nine degrees fifteen minutes one thousand eight hundred and eighty-

seven and thirty-six one-hundredths feet, thence on the arc of a circular curve to

the right with a radius of three thousand and twelve feet, and a central angle of

thirty-five degrees fifteen minutes the direct azimuth and distance being eighty-

six degrees fifty-two minutes thirty seconds one thousand eight hundred and

twenty-three and ninety-eight one-hundredths feet, thence one hundred and four

degrees thirty minutes two hundred and fifty feet, thence one hundred and

ninety-four degrees thirty minutes one thousand and thirty-one feet, thence on

the arc of a circular curve to the left with a radius of six hundred and seven and

ninety-five one-hundredths feet and a central angle of fifty-three degrees three

minutes thirty seconds the direct azimuth and distance being seventy-seven de-

grees fifty-eight minutes fifteen seconds five hundred and forty-three and nine

one-hundredths feet to the government road, thence two hundred and thirty-one

degrees twenty-six minutes thirty seconds one hundred and thirteen and sixty-one

one-hundredths feet along the government road, thence along the government

road on the arc of a circular curve to the left with a radius of four hundred and

seventy-seven feet and a central angle of forty-four degrees twenty-six minutes

thirty seconds, the direct azimuth and distance being two hundred and nine

Sec, 203 HAWAIIAN HOMES COMMISSION ACT

degrees thirteen minutes fifteen seconds three hundred and sixty and seventy-

eight one-hundredths feet, thence one hundred and eighty-seven degrees no mi-

nutes one hundred and sixty-nine and fifty-four one-hundredths feet along the

government road, thence on the arc of a circular curve to the left with a radius

of three hundred and fifty-one and eight one-hundredths feet and a central angle

of eighty-two degrees thirty minutes the direct azimuth and distance being three

hundred and twenty-five degrees forty-five minutes four hundred and sixty-two

and ninety-seven one-hundredths feet, thence one hundred and ninety-four de-

grees thirty minutes five hundred and seventy-nine feet, thence one hundred and

four degrees thirty minutes three hundred feet, thence one hundred and ninety-

four degrees thirty minutes two hundred feet, thence two hundred eighty-four

degrees thirty minutes three hundred feet, thence one hundred and ninety-four

degrees thirty minutes two hundred and fifty-two feet to the point of beginning

containing an area of four hundred and one and four hundred and twenty-three

one-thousandths acres more or less. [Am May 16, 1934, c 290, §1, 48 Stat 777;

Aug. 29, 1935, c 810, §1, 49 Stat 966; Jul. 10, 1937, c 482, 50 Stat 497; Nov. 26,

1941, c 544, §1, 55 Stat 782; May 31, 1944, c 216, §2, 58 Stat 260; Jun. 3, 1948,

cc 384, 397, 62 Stat 295, 303; Jul. 9, 1952, c 614, §§1, 2, 66 Stat 511; am L 1963,

c 207, §§2, 5]

WITHDRAWALS OF AVAILABLE LAND

The Act of May 31, 1944, c 216, §2, 58 Stat. 260, repealed so much of the above section as

ignates the lands hereinafter described as “available lands,” and restored such lands to their

en eng under the control of the Territory of Hawaii. The lands so restored on the island

of Hawaii are:

Those portions of Keaukaha tract 1, being additions to the Hilo airplane landing field, compris-

ing several is of land as follows:

11. situated at Keaukaha, tract 1, Waiakea, South Hilo, island of Hawaii, State o.

Hawaii, prog bee wy of lots 96, 97, 182, 183, 184, 185, Desha Avenue, and twenty-five foot

alley, of the residence lots, as shown on government survey registered maps 2723 and

y y x

dredths feet, and the of said point of begi referred to Government Survey

Triangulation Station “Halai™ being two thousand five hundred and twenty and thirty-one one-

huadredths feet north and fifteen thousand five hundred and fifty-three one-hundredths feet east,

thence running by azimuths measured clockwise from true south:

1, One hundred and ei AV cy Be flew pee gh pemeeny Ber Dies lewd 57 sae

one-hundredths feet along Government land and tract A of grant deeded by Territory of Hawaii

2. Thres hendied eed ten dageies forty-two minutes four hundred and one and sixty-six

one-hundredths feet the remainders of — Avenue, lots 96, 97, twenty-five-foot alley,

ot hoe 546 te 564 inclusive, and of Kauhane, Bee aan Pees Aecaan of ton

to 564, portions , venues

Keaukaha residence lots, as shown on Government Survey Maps 2723 and 3017,

teen feet north

azimuths measured clockwise from true south:

1. Two hundred and seventy no minutes two thousand and seventeen and eighty-five

ee ee side of Kamehameha Avenue;

2. Three hundred and sixty no minutes four hundred and fifty feet along lots 448 and

HAWAIIAN HOMES COMMISSION ACT Sec. 203

3. Three hundred and sixty degrees no minutes fifty feet across Kamaka Avenue;

4. Three hundred and sixty degrees no minutes two hundred and twenty-five feet along lot

545 of the Keaukaha residence lots;

5. Ninety no minutes three hundred and ninety-two and forty-eight one- hundredths

were my 3, 582, 581, and 580 of the Keaukaha residence lots;

. degrees no = fifty feet across Pua Avenue;

a ae he hundred and one and fieen one-hundredths feet along

am 379, io 576, 3° ‘374, $73 572, of the Keaukaha residence lots;

degrees no minutes fift ‘et acrou Spencer Avenve

inety depose no min and seventy-four and twenty-two one-hundredths

et slong it $1.3 370, 569, 568, 5 $67, 68, snd 565, the Keaukaha residence lots;

no minutes fifty feet across Kauhane Avenue; and

iL One de ay and eight no minutes seven hundred and twenty-five feet along

ee addition, as shown on Government Survey Regis-

tered Maps 2723 cad 3017 on file in department of accounting and general services at

Honolulu, to the point of beginning, and containing an area of thirty-three and five hundred and

Re ees ae

3. As returned to the Commissioner of Public Lands of the Terri of Hawaii by

resolution numbered 78 of the Hawaiian Homes Commission, dated May 13, 1942. Land situated

at Keaukaha, tract 1, Waiakea, South Hilo, Island of Hawaii, State of Hawaii, being the whole of

lots 446, 447, 448, 487, 488, 489, 543, 544, 545, 584, 585, and $86 and portions of lots 581, 382,

and 583, and portion of of Kamaka A tpn Caglny TS

ment Survey R 4 Maps 2723 and

from the northwest corner of Hilo ai Seah union Gal emamrena eat clglanduetine cures

and on the south vt of Highway), vs shown on Government Survey Registered

twenty-three one-hundredths feet east, thence running by azimuths measured clockwise from true

south:

1. Three hundred and sixty degrees no minutes four hundred and fifty feet along the west side

of Baker Avenue;

2. Three hundred and sixty degrees no minutes fifty feet across Kamaka Avenue;

3. Three hundred and sixty degrees no minutes four hundred and fifty feet along the west side

of Baker Avenue;

4. Ninety degrees no minutes two hundred and ninety-four and thirty-cight one-hundredths

dredths feet along lot 583 of the Keaukaha residence lots;

6. One hundred and ten degrees fifty-five minutes three hundred and fifteen and thirteen

one-hundredths feet along the remainders of lota 583, 582, and 581 of the Keaukaha residence

lots;

7. Two hundred and seventy degrees no minutes two hundred and ninety-four and thirty-six

one-hundredths feet along lots 548, 547, and $46 of the Keaukaha residence lots;

8%. One hundred and eighty _— no minutes two hundred and twenty-five feet along lot

$46 of the Keaukaha residence

9. One hundred oa gm 0 ty +> ll no minutes as, | feet across Kamaka Avenue;

10. One hundred and eighty degrees nas minutes four hundred and fifty feet along lots 486 and

449 of the Keaukaha lots to the south side of Kamehameha Avenue; and

11. Two hundred and seventy degrees no minutes two hundred and ninety-four and thirty-eight

one-hundredths feet along the south side of Kamehameha Avenue to the point of beginning and

containing an area of six and eighty one-hundredths acres.

Parcel 4. As returned to the Commissioner of Public Lands of the Territory cf Hawaii by

resolution numbered 78 of the Hawaiian Homes Commission, dated May 13, 1942. Land situated

at Keaukaha, tract 1, Waiakea, South Hilo, Island of Hawaii, State of Hawaii, being the whole of

lots 93, 94, 95, 98, 99, 100, 101, and 102 and portions of lots 92, 96, 97. and 103 and a portion

of Desha Avenue of the Keaukaha residence lots, as shown on Government Survey Registered

Maps 2723 and 3017, more particularly described as follows:

Beginning at the northwest corner of this piece of land, being also the northwest corner of lot

94 and on the southeast side of twenty-five-foot road. the true azimuth and distance from the

northwest corner of Hilo airport addition (of twenty and fifty-four one-hundredths acres and on

the south side of Kamehameha Highway), as shown on Government Survey Registered Maps 2723

and 3017, being one hundred and eighty degrees no minutes one thousand seven hundred and

fifty-one and eighty-seven one-huadredths feet, and the coorcinates of said point of beginning

referred to Government Survey wh Bee a cmt mg ve “Halai” being three thousand eight hundred

tre and iy thre ove hundred fet undredths feet north and fifteen thousand five hundred and

three one-hundredths feet east, thence running by azimuths measured clockwise

from true south: . ckteatn A a Baie Ae .. . os ent, Cin ee jel a pen eee pod

Sec. 203 HAWAIIAN HOMES COMMISSION ACT

yg one-hundredths feet alon — southeast side of twenty-five-foot road;

Three hundred and thirty-three — fifty minutes two hundred and thirty-five and sixty

one- taiadeeaiie feet along lot 92 of the ukaha residence lots;

3. Two hundred and forty-three degrees fifty minutes one hundred feet along the remainder

of lot 92 of the Keaukaha residence lots;

4. Three hundred and ie anaae degrees fifty minutes two hundred feet along lot 91 of the

K —_ residence lots;

Three hundred and thirty-three degrees fifty minutes fifty feet across Desha Avenue;

é Two hundred and forty- eee degrees fifty minutes one hundred feet along the southeast

side of Desha Avenue;

7. Three hundred and thirty-three degrees fifty minutes two hundred and thirty-five and sixty

one-hundredths feet lot 103 of the Keaukaha residence lots;

8. Two hundred and deed degrees fifty minutes one hundred feet along the remainder

of ry 103 of the Keaukaha residence

Three hundred and thirty-three degrees fifty minutes two hundred feet along the southwest

side of Kauhane Avenue;

10. Sixty-three degrees fifty minutes six hundred and ecighty-cight and thirty-six one-hun-

dredths feet along the northwest side of twenty-five-foot road;

11. One hundred and thirty degrees forty-two minutes two hundred and eighty-six and seventy-

three one-hundredths feet the remainders of lots 97 and 96 and Desha Avenue of ihe

Keaukaha residence lots; and

12. One hundred and ty degrees no minutes seven hundred and thirty-two and sixty-one

one-hundredths feet along veammment land end tract A of great deed by the Territory of Haweii

to Hilo Railroad Company to the point of beginning and containing an area of ten and eight

hundred and forty-nine one-thousandths acres.

Te One 12, 1948, c 458, 62 Stat. 387, withdrew certain land as available land. The Act

prov:

eae ee aie St enn air se neneen one Or Sanaa aad of Xeauhede, South

Hilo, Hawaii, Territory of Hawaii, more fully described as follows, is withdrawn as ‘available land

within the meaning of the Hawaiian Homes Commission Act of 1920 (42 Stat. 108), as amended,

and is hereby restored to its previous status under the control of the Territory of Hawaii:

“Portion of Hawaiian home land of Keaukaha, tract 2, Waiakea, South H Island of Hawaii,

Territory of Hawaii, as returned to the Commissioner of Public Lands of the Territory of Hawaii

by Resolution numbered 85 of the Hawaiian Homes Commission, dated July 18, 1944, and more

particularly described as follows:

“Beginning at a spike st the northwest corner of this tract of land and on the southeast corner

of the intersection of Nene and Akepa Streets, the coordinates of said point of beginning referred

to Government Survey Tri fet north and twenty-four thousand eight hundred und eghtee

"2. Tasnen thang cauib'en'c curve se the Tuk wth routes of oiné thevsand four hundred ead

slaty Sve CoGiaee wees feet, the chord azimuth and distance two hundred and sixty-eight

degrees thirty-seven minutes one thousand and seventy-seven thirty one-hundredths feet;

3. Two Enaes and forty-seven degrees three minutes five nundred and ninety-six and

sixty-two one-hundredths feet along same; .

ait _Three hundred and sixty degrees no minutes one thousand two hundred and thirty-sevea

ty-five one-hundredths feet;

=" inety degrees no minutes two thousand one hundred and fifty-three and sixty-nine one-

hundredths feet;

“6. One hundred and eighty degrees no minutes one thousand one hundred and seventy-three

MID oo

point of beginaing, ne On) onraveaee pn.senn. 8 Shp nasen.sanee or lene.

“Section 2. Notwithstanding the area omen Ch eanagh aon ate nth oan time, in the opinion

of the Commissioner of Public Lands; the above described lands car dinenatoned ty

the Department of Commeroe, upon the sinking of sech 0 dovermiaation by the Commissioner

of Public Lands such lands shall become >>> samare Made withia the meaning of Section 203 of tithe

II of the Hawaiian Homes Commission ~ 720, as amended.”

The Act of August 29, 1935, c 819, $1, aan, 966, wer neat sg d= Bu 1944, c 216, §2,

$8 Stat. 260, repealed so much of the ection as designates the lands hereinafter described

as “available lands”, and restored such lands to their previous status eerie tae teeta af the

Territory of Hawai. The lands 20 restored on the Island of Molokai as of August 28, 1935 are:

Those portions of Hoolehua, apana 2, and Palasu, apana 2, comprising the Molokai airplane

landing field as set aside for public eed Decebe 13, 1927 Executive Order Numbered 307 of the Governor

po erritory of Hawaii, dated 15, 1927, an ee

tenths acres, more or less, and particularly

epheiag ot SOE Mia alien Inteorad ten onbt land Wem which the caleunb (mensere

clockwise from true south) and distance to United States Coast and Geodctic Survey 5 Trinagula

tion Station “Middle Hill” (Kuslapuu) is two hundred end seventy-two degrees twenty-

minutes thirty-nine seconds, t Soar anaes tose uotestananty and sine tenth Seat, Chance

freca said poles of beaianine Ue mnotte end bounds, eighty-five degrees ten minutes thirty seconds,

HAWAIIAN HOMES COMMISSION ACT Sec. 204

three thousand four hundred and twenty-seven feet; one hundred and eighty degrees fifty-six

minutes thirty seconds, two thousand six hundred thirty and two-tenths feet; two hundred and

seventy-nine degrees fifty-five minutes thirty seconds, four thousand nine hundred seven and

three-tenths feet; three hundred and forty-six degrees twenty minutes, three hundred forty-two

and three-tenths feet near west edge of Kakainapahao Gulch; three degrees twenty-six minutes,

four hundred twenty-seven and one-tenth feet; eighty-three degrees twenty-four minutes, one

thousard four hundred sixty-cight and two tenths feet; five degrees fifty-eight minutes, five

hundred seventy-one and three-tenths feet to the point of beginning.

The land so restored on the Island of Molokai as of May 31, 1944 is:

That portion of Palaau, Apana 2, being an addition to the Molokai airplane landing field, as

follows:

Parcel 1. As returned to the Commissioner of Public Lands of the Territory of Hawaii by

resolution numbered 68 of the Hawaiian Homes Commission, dated March 3, 1941, and consisting

of thirteen and five hundred and twenty-seven one-thousandths acres, more or less, more particu-

larly described as follows:

Beginning at the southeast corner of this piece of land, on the west boundary of the present

Molokai airport, the true azimuth and distance from the northwest corner of the Molokai airport

(Executive Order Numbered 809) being no degrees fifty-six minutes thirty seconds two hundred

and forty-two feet, and the coordinates of said point of beginning referred to Government Survey

Triangulation Station “Middle Hill” being one and fifteen one-hundredths feet north and sixteen

thousand one hundred and twenty-eight and one one-hundredths feet west, thence running by true

azimuths measured clockwise from south:

(1) Sixty degrees twenty-five minutes eight hundred and forty-one and seventy-four one-

hundredths feet along the remainders of fifty-foot road and lot 170 of the Hawaiian Homes land;

(2) One hundred and eighty degrees fifty-six minutes thirty seconds eight hundred and twelve

and sixty-two one-hundredths feet along the remainder of lot 170 of the Hawaiian Homes land;

(3) Two hundred and forty degrees twenty-five minutes eight hundred and forty-one and

seventy-four one-hundredths feet along the remainders of Lot 170, Pine Avenue, lot 158 and

fifty-foot road of the Hawaiian Homes land, to the west side of the Molokai airport; and

(4) No degrees fifty-six minutes thirty seconds eight hundred ard twelve and sixty-two one-

hundredths feet along the west side of the present Molokai airport to the point of beginning.

Attorney General Opinions

The term “available lands” does not include land already set apart by Presidential Executive

Order at time of enactment of this Act. Att. Gen. Op. 64-44.

§204. Control by department of “available lands”; return to board of land

and natural resources, when. Upon the passage of this Act, all available lands

shall immediately assume the status of Hawaiian home lands and be under the

control of the department to be used and disposed of in accordance with the

provisions of this title, except that:

(1) In case any available land is under lease by the Territory of Hawaii,

by virtue of section 73 of the Hawaiian Organic Act, at the time of the passage

of this Act, such land shall not assume the status of Hawaiian home lands until

the lease expires or the board of land and natural resources withdraws the lands

from the operation of the lease. If the land is covered by a lease containing a

withdrawal clause, as provided in subdivision (d) of section 73 of the Hawaiian

Organic Act, the board of land and natural resources shall withdraw such lands

from the operation of the lease whenever the department, with the approval of

the Secretary of the Interior, gives notice to it that the department is of the

opinion that the lands are required by it for the purposes of this title; and such

withdrawal shall be held to be for a public purpose within the meaning of that

term as used in subdivision (d) of section 73 of the Hawaiian Organic Act;

(2) Any available land, including lands selected by the department out of

a larger area, as provided by this Act, as may not be immediately needed for the

purposes of this Act, may be returned to the board of land and natural resources

,. + — i To . , Oey | 9.» eee ES Fe ee Tl (eon Fe ee By a ae

Sec. 204 HAWAIIAN HOMES COMMISSION ACT

Any lease by the board of land and natural resources of Hawaiian home

lands hereafter entered into shall contain a withdrawal clause, and the lands so

leased shall be withdrawn by the board of land and natural iesources, for the

purpose of this Act, upon the department giving at its option, not less than one

nor more than five years’ notice of such withdrawal; provided, that the minimum

withdrawal-notice period shall be specifically stated in such lease.

In the management of any retained available lands not required for leasing

under section 207(a), the department may dispose of such lands to the public,

including native Hawaiians, on the same terms, conditions, restrictions and uses

applicable to the disposition of public lands as provided in chapter 171; provided,

that the department may not seli or dispose of such lands in fee simple except

as authorized under section 205 of this Act.

(3) The department shall not lease, use, nor dispose of more than twenty

thousand (20,000) acres of the area of Hawaiian home lands, for settlement by

native Hawaiians, in any calendar five-year period.

(4) The department may, with the approval of the governor and the

Secretary of the Interior, in order to consolidate its holdings or to better effectuate

the purposes of this Act, exchange the title to available lands for land, publicly

owned, of an equal value. All land so acquired by the department shall assume

the status of available lands as though the same were originally designated as such

under section 203 hereof, and all lands so conveyed by the department shall

assume the status of the land for which it was exchanged. The limitati

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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