Reclaiming Ancestral Lands
What Was At Stake: A Native Hawaiian challenged a court decision awarding title to his family lands on Molokai to another party. When this case began, notice was provided primarily by way of a newspaper ad. Those who did not respond to the newspaper ad were defaulted.
NHLC argued that this was wrong and due diligence should have been done to identify persons who had an interest in the land so they could be personally served with notice of the lawsuit.
Why It Matters Legally: NHLC obtained this Supreme Court ruling articulating the due process rights of Native Hawaiians defending against quiet title lawsuits. When a quiet title action is filed, the plaintiff must do an extensive search for those persons who might have a claim to the property. You cannot notify claimants of the lawsuit by publishing an ad in the newspaper unless you first consult various publicly available records. The court decision sets forth an detailed list of those records. This ensures that Native Hawaiians receive notice of lawsuits that will affect their ancestral lands.
How It Affects The Native Hawaiian Community: This decision promises to assure that Native Hawaiians who might have a claim to land receive notice of the lawsuit personally, e.g. through the mail, rather than by reading about it in an ad buried in the classifieds of the newspaper. Receiving notice personally gives Native Hawaiians a chance to protect their family lands.
“The consequences of quiet title actions are so severe that to have one's interest in land summarily taken away without an opportunity to respond is in violation of due process requirements and our sense of fairness and justice.”
Mending The State’s Broken Promises
What Was At Stake: The Department of Hawaiian Homelands (DHHL) has been underfunded since its inception. Without adequate funding, the DHHL is unable to fulfill its purpose: to return Native Hawaiians to the land.
Native Hawaiians sued the State of Hawaii over its failure to sufficiently fund the DHHL. They also sued the DHHL for its failure to seek funding from the State. Their lawsuit was dismissed by the trial court judge who ruled that the lawsuit presented "political questions" that could not be resolved by a court. They appealed this decision.
How It Was Resolved In Court: On May 9, 2012, Hawaii Supreme Court held that the State of Hawaii must provide general funds to DHHL for its administrative & operating expenses.
Listen to members of the Aged Hawaiians and former NHLC staff attorney Melissa Seu discuss this case
What Was At Stake: Native Hawaiians, who dreamed of establishing commercial ranching or farming operations to support their families, applied for homestead lots large enough to support these activities. They were placed on a waiting list in 1952. After waiting for decades for action on their applications, many were in or nearing their 70s when they came to NHLC for help with breaking the log-jam at the Department of Hawaiian Homelands (DHHL).
In 1989, NHLC began a long legal battle to obtain these land awards.
How It Was Resolved In Court: The Hawaii Supreme Court ordered the DHHL to consider their applications. NHLC attorneys obtained a favorable, precedent-setting ruling that Native Hawaiians have a private right to sue to enforce obligations under the Hawaiian Homes Commission Act.
How It Affects The Native Hawaiian Community: DHHL must give Native Hawaiians an opportunity to apply for a homestead lot large enough to support commercially-viable lots.
Postscript: The Aged Hawaiians received awards of homestead lots large enough to support commercial operations. The struggle, however, is not over. The successors of some awardees are still waiting for the DHHL to provide adequate infrastructure, most notably water, to empower them to make productive use of these lands. NHLC continues to represent them in their struggle.
This decision was a “miracle. Up to now, everything seemed to go against us. Now I know how justice feels.”
What Was At Stake: Non-Hawaiian farmers amassed 495 acres of Hawaiian homeland to conduct large scale agribusiness on Molokai. They subleased land, which were to be held in trust for Native Hawaiians to engage in farming, from at least 15 Hawaiian homesteaders, with the approval of the Hawaiian Homes Commission. This arrangement allowed these non-Hawaiian farmers to sharpen their competitive edge to the detriment of Hawaiian farmers.
NHLC represented Hawaiian homestead farmers from Molokai, Leiff Bush and Martin Kahae, who had pleaded with the Hawaiian Homes Commission to stop approving these subleases.
How It Was Resolved In Court: The Hawaii Supreme Court invalidated these agreements.
What Was At Stake: Adequate revenue from lands set aside for the betterment of Native Hawaiians. The State was allowing a luxury hotel to use “ceded lands,” which it was to hold in trust for the betterment of Native Hawaiian, without compensation. NHLC represented Melvin Napeahi, who argued that these lands were part of the public trust and thus, the State was obligated to charge rent, reflecting the fair market value of the land.
How It Was Resolved In Court: The NHLC obtained a Ninth Circuit Court of Appeal ruling establishing that these lands were part of the ceded lands trust and the State was required to obtain just compensation for their use.
How It Affects The Native Hawaiian Community: A portion of the revenue from ceded lands must be used to better the conditions of Native Hawaiians. When those revenues are diminished, the level of support for Native Hawaiian programs is likewise lessened. Napeahi requires the State to guarantee that this does not occur by requiring the State to be vigilant in ensuring that it obtains just compensation for the use of ceded lands.
A cultural practitioner and a Hawaiian Home Lands lessee sued the Department of Land and Natural Resources and William Aila today over their failure to protect trust lands at Pōhakuloa. Clarence Ching and Mary Kahaulelio, represented by the Native Hawaiian Legal Corporation, claim that Aila and the department have duties as trustees to prevent ceded lands from being harmed.
In 1964, the State agreed to lease three parcels of land at Pōhakuloa to the federal government for military purposes. Lease conditions, however, require that the Army “make every reasonable effort to . . . remove or deactivate all live or blank ammunition” and to “remove or bury all trash, garbage or other waste materials.” According to Ching, who has cultural ties to the land, “The State has taken no steps to investigate, or monitor whether the Army is complying with the terms of the lease. But State records show that it knows that unexploded ordnance litters the landscape.” Kahaulelio, who lives on Hawaiian Home land in Waimea, added, “The State has done nothing to make sure that the Army complies with the terms of the lease. It can’t just sit on its ōkole while trust lands are damaged. It has to mālama `āina.”
According to the complaint filed in circuit court today, Aila is “aware that military training activities have caused great damage to public land, natural resources and cultural sites in Hawai`i,” but has taken no steps to protect the lands at Pōhakuloa. Ching and Kahaulelio are asking the court to order the State to fulfill its trust duties and to block the State from negotiating an extension of lease with the Army as long as the terms of the lease are being violated. The Pōhakuloa lease expires on August 16, 2029.
Looking To The Past To Fight For The Future Of Hawaiians
What Was At Stake: Native Hawaiians are imprisoned at a higher rate than all other groups in Hawaii. They are also sent to private prisons on the mainland by the State to address overcrowding in local prisons at a higher rate than all other groups. Yet, their rights to practice Native Hawaiian religion are infringed upon by private prisons on the mainland. On their behalf, NHLC sued the corporation that owns these prisons and the State of Hawaii to guarantee these rights.
The private prisons and the State moved to transfer the lawsuit to Arizona, where most Hawaii prisoners are sent.
Why It Matters: NHLC established that Native Hawaiian religious rights are a matter of public concern that must be resolved in Hawaii.
What Was At Stake: A Native Hawaiian cultural practitioner sued the State to challenge the removal of Native Hawaiian burials, discovered at General Growth Properties' commercial development at the Ward Village Shops.
The State denied her request for a trial-type hearing to present her objections to the removal of these burials.
NHLC represented her in these proceedings.
Why It Matters Legally: NHLC established that Native Hawaiians have the right to challenge, through an administrative hearing, a developer’s plans for the treatment of Native Hawaiian burials.
How It Affects The Native Hawaiian Community: Construction activities in Hawai‘i will continue to unearth Native Hawaiian burials. Although a process exists to address the proper treatment of these burials, this process often fails to guarantee that Hawaiian burials are afforded equal protection under the law. Kaleikini ensures that individual Native Hawaiians have a voice in that process.
“The issue presented here -- the availability of judicial review of decision relating to the removal of Native Hawaiian burial sites -- is of great public importance….The public has a vital interest in the proper disposition of the bodies of its deceased persons, which is in the nature a sacred trust for the benefit of all.”
What Was At Stake: To develop light industry and small-scale tourism on Molokai, a ranch applied for a permit to extract over a million gallons of groundwater a day.
Pumping this groundwater would negatively affect the nearshore ocean environment in which limu and certain fish thrived. Native Hawaiians depend on these marine resources for subsistence purposes. Also, granting this permit would have reduced the amount of water available to homesteaders on Hawaiian homelands.
NHLC represented Native Hawaiians who intervened in the proceedings regarding the permit to raise these issues. The permit was approved over their objection.
How It Was Resolved In Court: The Hawaii Supreme Court reversed the decision granting the permit application. The agency that granted the permit, the Commission on Water Resource Management, failed to discharge its public trust duty to protect Native Hawaiian traditional and customary practices. The ranch, as the applicant, bore the burden to demonstrating that the proposed well would not affect Native Hawaiian practices.
The Hawaii Supreme Court also ruled that when the Department of Hawaiian Homelands reserves water for future homestead uses, that reservation is protected by the Constitution.
How It Affects The Native Hawaiian Community: It is not enough for an applicant for a water permit to say that there is no evidence that it will affect Native Hawaiian practices. The applicant must prove that its water uses will not affect those practices. The Commission on Water Resource Management will be reversed if it grants permits to applicants who do not so prove.
This decision also promises to ensure that Hawaiians on Hawaiian homelands will get the water to which they are entitled.
“[T]he absence of evidence that the proposed use would affect native Hawaiians' rights was insufficient to meet the burden imposed upon [the permit appliant] by the public trust doctrine, the Hawai`i Constitution, and the Code.”
--Justice Steven Levinson
Jimmy Mederios, a member of Protect Keopuka Ohana, and NHLC attorneys and staff discuss the significance of the Kelly v. Oceanside case, particularly the impact of the development on Native Hawaiian burials.
What Was At Stake: A developer of a resort and luxury-home subdivision development in Kona grossly mishandled Native Hawaiian bones uncovered during construction. The development also threatened a burial mound where Native Hawaiian royalty were interred. Construction activities also impacted a traditional trail known as the Alaloa and Native Hawaiian traditions and customs related thereto. Finally, the developer failed to prevent run-off that destroyed the nearshore ocean area and deposited mud onto reefs.
Before the lower court, NHLC represented Protect Keopuka ‘Ohana and obtained several key rulings that protected burials and the trail. They also got a court order ruling that the County and the State each had a public trust duty to protect the nearshore ocean area.
Why It Matters Legally: The Supreme Court ruled that both the County and the State of Hawaii have duties, under the public trust doctrine, to protect coastal waters.
How It Affects The Native Hawaiian Community: Counties cannot excuse themselves from the obligation to protect coastal waters. Counties, as political subdivisions of the State, have the same duty to preserve resources held in trust for the public. Imposing this duty ensures greater protection for coastal waters, which are essential to the continuance of many Native Hawaiian traditional and customary practices.
What Was At Stake: Native Hawaiians gathered shrimp from several ponds that lay within the footprint of a major resort development planned for the Kona Coast. They asked for a trial-type hearing to challenge the county permit for the project by showing that their gathering practices were threatened by the project. This request was denied by the county. If they did not go to court, they would be left with no avenue to challenge the permit.
NHLC filed an amicus brief in this Hawaii Supreme Court case which would address the rights of Native Hawaiians to put on evidence of traditional and cultural practices threatened by permitted development.
Why It Matters Legally: The Hawaii Supreme Court affirmed the rights of Native Hawaiians to gain access to privately-owned lands to exercise traditional and customary rights. Moreover, it ruled that the county was required to protect these rights by allowing Native Hawaiians to participate in a trial-type hearing to put on evidence of their traditional and customary practices.
How It Affects The Native Hawaiian Community: Before issuing permits for development, county governments or other agencies must allow Native Hawaiians an opportunity to put on evidence of traditional and customary practices affected by the proposed development.
PASH promises to lift the stigma that some have associated with Hawaiian traditional and cultural practices. Many Hawaiians face the threat of a trespassing claim for picking limu, throwing net, or gathering as their ancestors have done. By ruling that traditional and customary practices of Native Hawaiians must be considered before development is permitted, PASH says that the values and interests of Native Hawaiians are entitled to the same protections given to private property owners.
What Was At Stake: A rainforest, Wao Kele ‘O Puna, of cultural and spiritual importance was threatened by an effort to harness geothermal energy. Located on Kileauea volcano, this rainforest was traditionally used by Native Hawaiians for hunting and gathering. The proposed geothermal development would have prohibited Native Hawaiians from continuing these practices and the act of drilling to harness volcanic activity was seen as an affront to the Hawaiian goddess Pele. The land underlying this forest was “ceded land,” and thus held in trust by the State for the betterment of Hawaiians.
The State gave Wao Kele O’ Puna to a private estate for geothermal energy development, as part of a land exchange.
NHLC represented The Pele Defense Fund, a group of Native Hawaiians whose purpose was to perpetuate Native Hawaiian religion and culture, who sued the State and the estate.
How It Was Resolved In Court: Although the land exchange was permitted to stand, the Hawaii Supreme Court ruled that the Pele Defense Fund was entitled to a trial to show that they were entitled to use the forest for customary and traditional rights and that the private estate could not bar them from entering.
At the trial, PDF members prevailed, proving that they were entitled to use the forest for traditional and customary practices.
How It Affects The Native Hawaiian Community: A Native Hawaiian’s place of residence does not limit his or her right to practice customary and traditional rights. If Native Hawaiians can show that they traditionally left their place of residence (or ahupua‘a) to conduct a cultural practice, their rights expand beyond that area.
Postscript: Though some geothermal wells were built, the project was abandoned. The Pele Defense Fund worked with OHA, the Trust for Public Land, and the State to arrange for the purchase of Wao Kele O Puna. OHA now owns the rainforest, which will be managed by a partnership between the State, OHA and the community.
“We gotta keep practicing our traditions to be Hawaiian and the state has to uphold those constitutional rights.”
The Hawai`i Supreme Court put the future of Eric A. Knudsen Trust’s Village at Po`ipū subdivision in question today when it vacated a circuit court judgment and instructed the lower court to consider an eight count complaint filed by Theodore Kawahinehelelani Blake. Mr. Blake is represented by the Native Hawaiian Legal Corporation.
According to Native Hawaiian Legal Corporation staff attorney David Kimo Frankel, “The case involves Hapa Trail, the County’s approval of the Eric A. Knudsen Trust’s Village at Po`ipū subdivision, and the destruction of historic sites.”
Blake charged that: State and County agencies failed to fulfill their public trust obligations with respect to historic sites; the County failed to investigate and protect Native Hawaiian rights; the historic review process was not properly followed; the County failed to abide the coastal zone management act; the Knudsen Trust caused a public nuisance; and the Trust was negligent in failing to preserve Hapa Trail.
The circuit court on Kaua`i ruled that the case was not ripe for review because the Board of Land and Natural Resources had not yet decided whether it would allow Hapa Trail to be breached. The Hawai`i Supreme Court held that the board’s decision was not relevant as to the counts filed by Blake, and remanded the case back to the circuit court.
In 1979, Kaua`i County rezoned a portion of Knudsen’s land in Kōloa on the condition that all the significant historic sites be protected. Nevertheless, 18 historic sites on Knudsen’s land were bulldozed.
According to Blake, “In 2004, Knudsen promised to erect ‘an orange colored plastic barricade’ along the side of Hapa Trail and to bar construction within a buffer zone around the historic site. In 2006, the Trust promised to preserve the historic walls and restore them. Nevertheless, in 2008 and 2009, portions of the walls at Hapa Trail were damaged.”
Mr. Blake, a Native Hawaiian whose ancestors have lived in Kōloa for generations, has walked Hapa Trail since his childhood. His great great grandfather travelled on Hapa Trail to make deliveries in the mid to late nineteenth century.
Given Mr. Blake’s interest in the preservation of the cultural and historic resources in the Kōloa area, the opportunity to once again present his case to protect these resources is gratifying. Blake said, “Today is a good day. Culture is our foundation, and the Supreme Court’s decision represents a renewed opportunity to fulfill my cultural obligation to protect wahi pana.”
Phase I of the proposed Village at Po`ipū residential subdivision is approximately 208 acres.
NEW! Check out the Hawai'i Supreme Court's 12/13/2013 decision for Kilakila 'O Haleakala! Click here.
In a case concerning the construction of a 142' structure at the summit of Haleakalā, the Hawai'i Supreme Court ruled that the Board of Land and Natural Resources should not have voted on a conservation district use permit in December 2010 without first conducting a contested case hearing.
The high court’s decision means that a challenge to the University of Hawaii’s proposal for the advanced solar telescope project (ATST) -- a substantial complex of observatory facilities -- should have been allowed to proceed in court.
“Kilakila `O Haleakalā had repeatedly requested contested case hearings in order to highlight the impacts that the project would have on cultural resources and scenic vistas,” according to David Kimo Frankel of the Native Hawaiian Legal Corporation. “Nevertheless, the Board of Land and Natural Resources chose to ignore those requests until after approving the permit.” The Supreme Court’s decision reverses earlier decisions of the Intermediate Court of Appeals and the First Circuit Court upholding the action of the Board of Land and Natural Resources.
The appeal was filed by the Native Hawaiian Legal Corporation on behalf of Kilakila `O Haleakalā, an organization dedicated to the protection of the sacredness of the summit of Haleakalā. Two related cases challenging construction are still before the Intermediate Court of Appeals. One case challenges the University of Hawai`i’s failure to prepare an environmental impact statement on the management plan for the summit of Haleakalā. The other case challenges the Board of Land and Natural Resources’ decision in November 2012 to approve a second permit for the project.
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