# Petition for Writ of Certiorari — Hou Hawaiians v. Hawaii

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 474 U.S. 1055

## 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-
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3. TABLE OF CONTENTS
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4. REFERENCE TO OF-
FICIAL AND UNOFFICIAL
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IONS DELIVERED BELOW..........7

5. STATEMENT OF JUR-
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6. CONSTITUTIONAL
PROVISIONS, TREATIES,
STATUTES, ORDINANCES,
AND REGULATIONS IN-
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7. STATEMENT OF THE
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a. Basis of Fed-
eral Jurisdic-
tion in court of
first instance............8

b. Statement
of the EE a

i. Introduction......9

ii. Procedings

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a. Reasons why
certiorari
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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 : . 1973
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ors” it aan bo se Dames

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 limitations imposed
by section 73 (1) of the Hawaiian Organic Act and the land laws of Hawaii as to
the area and value of land that may be conveyed by way of exchange shall not
apply to exchanges made pursuant hereto. No such exchange shall be made
without the approval of two-thirds of the members of the board of land and
natural resources. [Am Mar. 27, 1928, c 142, §1, 45 Stat 246; Jul. 10, 1937, c 482,
50 Stat 503; Feb. 20, 1954, c 10, §1, 68 Stat 16; Jun. 18, 1954, c 319, §1, 68 Stat
262; am L 1963, c 207, §§2, 5(b); am L 1965, c 271, §i; am L 1976, c 24, §1]

Cross References

As to last two sentences, compare §§171-5 and 171-50.

Attorney General Opinions

Hawaiian home lands needed for purposes of the Act are to be used and disposed of in
accordance with the Act and are not subject to county zoning requirements. Att. Gen. Op. 72-21. _

§205. (Sale or lease, limitations on.] Available lands shall be sold or
leased only (1) in the manner and for the purposes set out in this title, or (2) as
may be necessary to complete any valid agreement of sale or lease in effect at the
time of the passage of this Act; except that such limitations shall not apply to the
unselected portions of lands from which the department has made a selection and
given notice thereof, or failed so to select and give notice within the time limit,
as provided in paragraph (3) of section 204 of this title.*

§206. [Other officers not to control Hawaiian home lands; exception.]
The powers and duties of the governor and the board of land and natural

ee Re

“The reference was to paragraph (3) of section 204 as originally enacted. which fixed a period of eight

weave afsisco the ficot enaetine af echoes a of - Wine Goet aiéetion eine Biel Ccctamehao

HAWAIIAN HOMES COMMISSION ACT Sec, 207

resources, in respect to lands of the State, shall not extend to lands having the
status of Hawaiian home lands, except as specifically provided in this title. [Am
L 1963, c 207, §5(a) (b)]

General Note

The Act of July 10, 1937, c 484, 50 Stat 508, provides in part: “That the legislature of the
Territory of Hawaii may create a public corporate authority to engage in slum clearance, or
housing undertakings, or both, within such Territory.... The legislature... may, without regard to
any federal acts restricting the disposition of public lands of the Territory, authorize the commis-
sioner of public lands, the Hawaiian homes commissioner, and any other officers of the Territory
having power to manage and dispose of iis public lands, to grant, convey, or lease to such authority
parts of the public domain, and may provide that any of the public domain or other property
acquired by such authority may be mortgaged by it as security for its bonds....""

Attorney General Opinions

Governor’s power to set aside public lands by executive order does not extend to Hawaiian
home lands. Att. Gen. Op. 75-3.

§207. [Leases to Hawaiians, licenses.] (a) The department is authorized
to lease to native Hawaiians the right to the use and occupancy of a tract or tracts
of Hawaiian home lands within the following acreage limits per each lessee: (1)
not less than one nor more than forty acres of agricultural lands; or (2) not less
than one hundred nor more than five hundred acres of first-class pastoral lands;
or (3) not Jess than two hundred and fifty nor more than one thousand acres of
second-class pastoral lands; or (4) not less than forty nor more than one hundred
acres of irrigated pastoral lands; (5) not more than one acre of any class of land
to be used as a residence lot: provided, however, that, in the case of any existing
lease of a farm lot in the Kalanianaole Settlement on Molokai, a residence lot may
exceed one acre but shall not exceed four acres ‘n area, the location of such area
to be selected by the lessee concerned: provided further, that a lease granted to
any lessee may include two detached farm lots located on the same isiand and
within a reasonable distance of each other, one of which, to be designated by the
department, shall be occupied by the lessee as his home, the gross acreage of both
lots not to exceed the maximum a: reage of an agricultural or pastoral lot, as the
case may be, as provided in this section.*

(b) The title to lands so leased shall remain in the [State]. Applications
for tracts shall be made to and granted by the department, under such regulations,
not in conflict with any provisions of this title, as the department may prescribe.

*The text of subsection (a) as amended by L 1976, ¢ 23. to be effective with the consent of the United
States. reads: (a) The department is authorized to lease to native Hawaiians the right to the use and
occupancy of a tract or tracts of Hawaiian home lands within the following acreage limits per each
lessee: (1) not less than one nor more than forty acres of agriculture lands; or (2) not less than one
hundred nor more than five hundred acres of first-class pastoral lands; or (3) not less than two
hundred and fifty nor more than one thousand acres of second-class pastoral lads; of (4) not less
than forty nor more than one hundred acres of irrigated pastoral lands; ($) not more than one acre
of any class of land to be used as a residence lot; provided. however, that. in the case of any existing
lease of a farm lot in the Kalanianaole Settlement on Molokai, a residence lot may exceed one acre
but shall not exceed four acres in area, the location of such area to be selected by the department:
provided further, that a lease granted to any lessee may include two detached farm tots located on
the same island and within a reasonable distance of each other. one of which, to be designated by
the department, shall be occupied by the lessee as his home. the gross acreage of both lots not to exceed
the maximum acreage of an agricultural or pastoral lot, as the case may be, as provided in this section:
provided further. that the department may designate the location of the homesite on residence lots
less than 10,000 square feet.

Sec, 207 HAWAIIAN HOMES COMMISSION ACT

The department shall, whenever tracts are available, enter into such a lease with
any applicant who, in the opinion of the department, is qualified to perform the
conditions of such lease.

(c) (1) The department is authorized to grant licenses for terms of not to
exceed twenty-one years in each case, to public utility companies or corporations
as easements for railroads, telephone lines, electric power and light lines, gas
mains, and the like. The department is also authorized to grant licenses for lots
within a district in which lands are leased under the provisions of this section.
to-

(A) churches, hospitals, p

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0806%3A1. Public record. Not legal advice.