scholarspace.manoa.hawaii.edu · case to utilize this honorable court's time ... native...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

EARL F. ARAKAKI, et aI,

Plaintiffs,

vs.

BENJAMIN J. CAYETANO, et aI.,

Defendants.

) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment) ) ) OFFICEOFHAWAIIANAFFAIRS ) DEFENDANTS' MEMORANDUM ) IN SUPPORT OF MOTION ) ) ) )

--------------------------- )

OFFICE OF HAWAIIAN AFFAIRS DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION

I. INTRODUCTION.

The Office of Hawaiian Affairs (OHA) seeks to bifurcate the proceedings in this

case to utilize this Honorable Court's time efficiently, and to identify, define and narrow

the issues. It is logical, appropriate, and fair to first address the issues regarding the

extent of federally delegated trust responsibilities to the State of Hawaii, the status of the

Native Hawaiian people, the Native Hawaiian interest in the ceded lands pursuant to the

Compact of Admission, and the proper level of judicial review of the programs

challenged by Plaintiffs before requiring the parties to present evidence and arguments

regarding the governmental interests that support these programs and the relationship of

these programs to those interests. This memorandum specifically addresses the issues

raised in the Order entered August 20,2002.

University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

II. STANDARDS FOR BIFURCATION

A. IT IS COMMONPLACE FOR COURTS TO BIFURCATE PROCEEDINGS WHEN THIS ACTION WILL PROMOTE JUDICIAL ECONOMY AND EFFICIENCY.

Federal courts commonly divide cases into their component parts when such

action will lead to judicial economy and efficiency.

This practice can be illustrated with reference to the bench trial in the admiralty

litigation in Exxon Company v. So/ec, Inc., 54 F.3d 570 (9th Cir. 1995), where District

Judge Harold M. Fong divided the case into a "Phase One" -- focusing on issues of

negligence and causation related to the grounding of the oil tanker Houston after the

"breakout" of a long hose -- and a "Phase Two" - focusing on the separate issue of the

causation of the "breakout" of this long hose, which threatened to foul the ship's

propeller. Judge Fong explained that he was "well aware of the possibility that the issue

of causation with respect to the breakout may still require a second phase of trial, perhaps

before a jury," ide at 575. Nonetheless, the Ninth Circuit ruled that his decision to

bifurcate, which was "reviewed for an abuse of discretion," id., was appropriate

"[b ]ecause bifurcation of the trial was expeditious and appropriate in light of the

circumstances of this case and did not result in prejudice to Exxon." Id. at 576.

Another illustrative model is provided by Zivkovic v. Southern California Edison

Co., 302 F.3d 1080 (9th Cir. 2002), where the Ninth Circuit again approved of a

bifurcation in a bench trial. In an Americans with Disabilities Act case, the trial judge

instructed the parties that a one-day trial would be held on the specific issues of "(1)

whether Zivkovic was offered and provided a reasonable accommodation; and (2)

whether Edison failed to hire Zivkovic due to his disability." The Ninth Circuit viewed

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this decision as one of trial court management, which it reviewed under the abuse-of

discretion standard. Id. at 1088. It explained that trial judges are authorized to bifurcate

litigation issues when such action will defer "costly and possibly unnecessary

proceedings pending resolution of potentially dispositive preliminary issues." Id. In this

case, the trial judge had acted properly because "[r]esolution of the two designated issues

in Edison's favor would have necessarily resolved the case." Id.

Other Ninth Circuit cases approving bifurcations include Jinro America, Inc. v.

Secure Investments, Inc., 266 F.3d 993, 998 (9th Cir. 2001)(explaining that trial judges

have "broad discretion to bifurcate a trial to permit deferral of costly and possibly

unnecessary proceedings pending resolution of potentially dispositive preliminary

issues"); Danjac LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001)(approving the

district court's decision to bifurcate laches from liability, in order to "avoid[] a difficult

question by first dealing with an easier, dispositive issue"); Hi/ao v. Estate of Marcos,

103 F.3d 767 (9th Cir. 1996)(approving the district court's decision to trifurcate the trial

into a liability phase followed by subsequent trials of exemplary and compensatory

damages, particularly because "[t]he compensatory-damage phase presented much more

complex questions"); Quintanilla v. City of Downey, 84 F.3d 353, 354 (9th Cir.

1996)( approving a bifurcation in which "the first phase of the trial would address the

excessive force claim against the individual officers, and the second phase the Monell

claim against the Chief and the city"); Triad Systems Corp. v. Southeastern Express Co.,

64 F.3d 1330 (9th Cir. 1995)(approving the trial court's bifurcation of the action to hear in

separate phases copyright infringement claims and antitrust counterclaims); Dollar

Systems, Inc. v. Avcar Leasing Systems, Inc., 890 F.2d 165 (9th Cir. 1989)(approving the

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district court's decision to bifurcate the legal and equitable claims in a franchise dispute);

and Hirst v. Gertzen, 676 F.2d 1252, 1261 (9th Cir. 1982)(approving the district court's

decision to bifurcate the trial in order to determine first the manner of the prisoner's

death, because the "complex conspiracy issue would be eliminated if the jury found that

Clayton Hirst died by self-inflicted hanging").

B. BIFURCATION IN THE PRESENT CASE WILL LEAD TO AN EFFICIENT, ECONOMICAL AND FAIR UTILIZATION OF TillS HONORABLE COURT'S TIME.

As explained above in Section A, the Ninth Circuit has upheld bifurcations

designed to promote the economical, efficient, and fair use of a district court's time by

addressing preliminary issues that may eliminate subsequent more complex issues.

OHA suggests dividing the present case into two component parts - the First

Phase focusing on the federally delegated trust responsibilities to the State of Hawai' i, the

Native Hawaiian interest in the ceded lands pursuant to the Compact of Admission, the

status of the Native Hawaiian People, and the level of judicial review that applies to

preferential and separate programs established for them and a Second Phase, if necessary,

that would determine whether the government's interest in establishing these programs

has met the appropriate standard of judicial review. A bifurcation along these lines

would promote judicial economy, efficiency, and fairness because the issues would be

addressed in a logical sequence, and decisions by this Honorable Court as the case

progresses will provide guidance to the parties as to what facts and evidence is required

for the record. Most importantly it would not be necessary to expend resources to

address the complex issues regarding whether the government has a "compelling" interest

in establishing these programs and has utilized the least onerous alternative if this

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Honorable Court determines that programs for Native Hawaiians should be evaluated

under the same "rational basis" level of judicial review that applies to programs for other

Native Americans under the decision of Morton v. Mancari, 417 U.S. 535 (1974), and its

progeny.

This Honorable Court's previous rulings have examined programs established for

the Native Hawaiian People, and has never applied the strict-scrutiny/compelling-state

interestlleast-onerous-altemative test to these programs. See, e.g., Makua v. Rumsfeld,

163 F.Supp.2d 1202, 1222 (D.Hawai'i 2001)(granting a preliminary injunction blocking

military training in Makua Valley and explaining that "[t]he public ... has a significant

interest in the protection of ... Native Hawaiian rights"); Hawaii Motor Sports Center v.

Babbitt, 125 F.Supp.2d 1041, 1047 (D.Hawai'i 2000)(rejecting a challenge to the transfer

of military lands to the Department of Hawaiian Home Lands and explaining that the

Hawaiian Home Lands Recovery Act, Title II of Pub. L. 104-42, 109 Stat. 357, "was

enacted to benefit DHHL and Native Hawaiians").

In its previous rulings in the present case, this Honorable Court has explained that

"now-Chief Judge David Ezra analogized native Hawaiians to Indian tribes," Order

Denying Plaintiffs' Motion for Temporary Restraining Order dated March 18, 2002, slip

op. at 23 (citing Naliielua v. Hawaii, 795 F.Supp. 1009, 1012-13 (D.Haw. 1990), affd,

940 F.2d 1535 (1991)), and that Plaintiffs have burden of "establishing that 'strict

scrutiny' is the applicable standard governing the alleged racial discrimination." ld. at 25.

The Court also noted that "the resolution of whether strict scrutiny or rational basis is

applied turns on whether native Hawaiians are a 'tribe, ' [which] may raise a political

rather than purely legal question." ld., n. 11. Subsequently, this Honorable Court

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explained that that the Ninth Circuit has utilized the Morton v. Mancari rational-basis

level of judicial review to scrutinize programs established for "the indigenous people of

Alaska" before they had "been recognized by the Bureau of Indian Affairs as 'Indian

tribes,''' Order Granting in Part an Denying in Part Motions to Dismiss on Standing

Grounds of May 8, 2002, slip op. at 31, and thus that "a court may decide the

applicability of the Morton analysis without deciding the alleged political question of

whether a group is an 'Indian tribe. tt1 [d. at 32. Obviously, these issues are threshold,

preliminary issues, that must be addressed and resolved before the other issues raised by

Plaintiffs are considered.

III. MOTIONS FOR SUMMARY JUDGMENT IN PHASE ONE WILL PERMIT AN ORDERLY EXAMINATION OF THE ISSUES IN THIS CASE.

OHA is describing the motions for summary judgment that it believes are

appropriate for consideration in Phase One, but is certainly not seeking a ruling on the

merits on any of these issues now. Phase One should include motions relating to the

issues regarding the extent of federally delegated trust responsibilities to the State of

Hawaii, the status of the Native Hawaiian people, the Native Hawaiian interest in the

ceded lands pursuant to the Compact of Admission, and the proper level of judicial

review of the programs challenged by Plaintiffs.

A. Motion Re Federal Trust Responsibility and Delegation to State.

It has been generally recognized that there is a federal trust responsibility to

Native Hawaiians and that responsibility has been delegated to the State of Hawaii. To

some extent, these trust issues also arise out of Hawaiian interests in land prior to a

determination of the standard of review.

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From time to time, with the consent of the affected States, the Congress has

sought to more effectively address the conditions of the indigenous people by delegating

Federal responsibilities to various States. In 1959, the State of Hawai'i assumed the

Federally-delegated responsibility of administering 203,500 acres of land that had been

set aside under Federal law for the benefit of the native people of Hawai'i. See Haw.

Const. Art. XVI, Sec. 7; Hawai'i Admission Act, Pub. L. No. 83-3, Sec. 4, 73 Stat. 4, 5

(1959) ("Hawaii Admission Act"). In addition, the State agreed to the imposition of a

public trust upon all of the lands ceded to the State upon admission. See Hawai' i

Admission Act, Sec. 5(t). The Federal authorization for this public trust clearly

anticipated that the State's constitution and laws would provide for the manner in which

the trust would be carried out. Id. Secs.4 & 5 (t).

As a condition of statehood, the Hawai' i Admission Act required the new State to

adopt the Hawaiian Homes Commission Act and imposed a public trust on the lands

ceded to the State. The 1959 Compact between the United States and the People of

Hawai'i by which Hawai'i was admitted into the Union includes explicit delegations of

Federal authority to be assumed by the new State. They were not discretionary. The

language is not permissive.

In 1959, the State of Hawai'i assumed the federally-delegated responsibility of

administering 203,500 acres of land that had been set aside under federal law in part for

the benefit of the native people of Hawai' i. The State also agreed to the imposition of a

public trust upon all of the lands ceded to the State upon admission. 1

1 Consistent with the practices of other States towards their indigenous peoples, the State ofHawai'i has established a special relationship with Native Hawaiians. Fourteen states have extended recognition to Indian tribes that are not recognized by the federal government, and 32 states have established commissions

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When Congress imposes trust responsibilities in statutes admitting territories into

the Union as states, Article IV of the U.S. Constitution ("Laws of the United States ...

shall be the supreme Law of the land; and the Judges in every State shall be bound

thereby ... ") requires the states to defer to those admission enabling acts and to comply

with the trust responsibilities. See, e.g., Gladden Farms v. State, 633 P.2d 325, 327

(Ariz. 1981); Kadish v. Arizona State Land Department, 747 P.2d 1183, 1185 (Ariz.

1987); Branson v. Romer, 958 F.Supp. 1501, 1514-16 (D. Colo. 1997); Alamo Land &

Cattle Co. v. Arizona, 424 U.S. 295, 302 (1976); Lassen v. Arizona ex rei Arizona

Highway Dept., 385 U.S. 458 (1967); Ervien v. United States, 251 U.S. 41, 47 (1919);

United States v. New Mexico, 536 F.2d 1324 (10th Cir. 1976); United States v. 11.2 Acres

of Land, More or Less, in Ferry County, Washington, 293 F. Supp. 1042 (1968); United

States v. 78.61 Acres of Land in Dawes and Sioux Counties, Nebraska, 265 F. Supp. 564

(1967); County of Skamania v. State, 685 P.2d 576 (Wash. 1984).

In 1978, the citizens of the State of Hawai'i exercised the Federally-delegated

authority by amending the State constitution in furtherance of the special relationship

with Native Hawaiians. (See Hawaii State Constitution, Article XII.)

The Solicitor General of the United States stated that: "Congress has identified

Native Hawaiians as a distinct indigenous group within the scope of its Indian affairs

powers, and has enacted dozens of statutes on their behalf pursuant to its recognized trust

responsibility" at 11. Brief for the United States as Amicus Curiae supporting

Respondent, United States Supreme Court, filed July 28, 2002. "In the Admission Act,

Congress delegated broad authority to Hawaii to act for the betterment of Native

and offices to address matters of policy affecting their indigenous citizenry. (See Native Hawaiian Entitlement to Sovereignty: An Overview by N. Kahanu and J. Van Dyke, 17 U. Haw. L. Rev. 427 (1995)

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Hawaiians." "When Congress delegates authority to a State to administer the federal

trust responsibility, state laws that are within the scope of that authority are subject to the

same constitutional analysis as legislation enacted by Congress" at 12.

In December of 1999, the Departments of Interior and Justice initiated a process

of reconciliation in response to the Apology Resolution. A report, entitled "From Mauka

to Makai: The River of Justice Must Flow Freely, ("Reconciliation Report") was issued

by two departments on October 23, 2000. The principal recommendation contained in

the Reconciliation Report is set forth below:

As a matter of justice and equity, this report recommends that the Native Hawaiian people should have self-determination over their own affairs within the framework of Federal law, as do Native American tribes. For generations, the United Stats has recognized the rights and promoted the welfare of Native Hawaiians as an indigenous people within our Nation through legislation, administrative action, and policy statements.

The Hawaii Supreme Court has stated that: "Trusts established for Native

Hawaiian should be governed by the same standards that govern trusts for other Native

Americans," Ahuna v. Department of Hawaiian Home Lands, 64 Hawai'i 327, 339

(1982)." "The State of Hawai'i holds only 'naked' title to the lands that were ceded to

the United States in 1898 and transferred to the State of Hawai'i in 1959." State v.

Zimring, 58 Hawai'i 104, 124, 737 (1977).

There have been numerous enactments by the Hawaii State Legislature

recognizing its delegated trust responsibility to Native Hawaiians and a Native Hawaiian

claim to the public lands. The Hawaii State Legislature stated that: "The people of the

State of Hawai'i and the United States of America as set forth and approved in the

Admission Act established a public trust which includes among other responsibilities,

betterment of conditions for native Hawaiians. The people of the State of Hawaii

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reaffirmed their solemn trust obligation and responsibility to native Hawaiians and

furthermore declared in the State Constitution that there be an office of Hawaiian affairs

to address the needs of the aboriginal class of people of Hawaii." (Emphasis added.)

H.R.S. 10-1, Act 196 (SLH 1979). Act 359 (1993 SLH) "recognized that the Native

Hawaiian people were "denied ... their lands," and recognized the Hawaiian sovereignty

movement. Act 329 (1997 SLH) "accepted the Apology Resolution and called for

"lasting reconciliation" and "a comprehensive, just, and lasting resolution." It established

a joint committee to determine "whether lands should be transferred to the office of

Hawaiian affairs in partial or full satisfaction of any past or future obligations under

article XII, section 6 of the Hawai'i Constitution." Act 200 (1994 SLH) established a

process designed to facilitate efforts of the Hawaiian people "to restore a nation of their

own choosing." Hawaii Revised Statutes, Sec. 6K -9 (1993), states the Island of

Kaho 'olawe and its waters shall be transferred "to the sovereign Native Hawaiian entity

upon its recognition by the United States and the State ofHawai'i."

The State of Hawai'i's trust obligations to Native Hawaiians are particularly

important because they stem from the Congressional enactment admitting Hawai' i to

statehood. When Congress imposes trust responsibilities in statutes admitting territories

into the Union as states, Article VI of the U.S. Constitution requires the states to defer to

those admission enabling acts and to comply with the trust responsibilities. In Idaho v.

United States, 121 S. Ct. 2135 (2001), the U.S. Supreme Court awarded title to disputed

submerged lands to the Coeurd' Alene Tribe, even though normally such lands would

pass from the federal government to a state at the time of statehood. The court ruled in

favor of the tribe because of the importance of protecting native property and the

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presumption that anything not explicitly transferred by a native group remains as their

property for their benefit. This case reaffirms the common canon that if statutes or

presumptions point in conflicting directions, courts must interpret that conflicting law in

favor of native claimants.

B. Motion Re Applicability of International Law

OHA intends to file a separate motion on the applicability of international law.

The United States Supreme Court has applied in international law in many circumstances.

It is important here because the Plaintiffs argue that Native Hawaiians are not indigenous

people and rely on the definition from Webster's Dictionary. The Plaintiffs argue that:

"The challenged classifications cannot be said to distinguish between 'indigenous' people

and 'non-indigenous' people unless 'indigenous' is defined to be synonymous with race."

(Plaintiffs' Opposition to OHA's Motion for Judicial Notice or in the Alternative for

Summary Judgment filed on April 11, 2002 at p. 2) In addition, Plaintiffs have a series

of arguments based on the fact that non-Hawaiians could be citizens of the Kingdom of

Hawai'i. Id. at 4-11. There are evolving norms and standards of international law

regarding indigenous people which will provide assistance to this Honorable Court on

these matters. In addition, the motion for judicial notice will also address these assertions

by the Plaintiffs.

International law is part of the supreme law of the United States and customary

international law has been directly incorporated into federal law without a statutory base

since the beginning of the United States. See, e.g., U.S. Const. arts. III, Sec. 2, VI, cl. 2;

The Paquete Habana, 175 U.S. 677, 700 (1900); Hilton v. Guyot, 159 U.S. 113, 163

(1895); The Nereide, 13 U.S. (9 Cranch) 388,422-23 (1815); Talbot v. Janson, 3 U.S. (3

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Dall.) 133, 159-60 (1795); Kadic v. Karadzic, 70 F.3d 232, 238 (2d Cir. 1995), cert.

denied, 518 U.S. 1005 (1996); Hilao v. Estate of Marcos , 25 F.3d 1467, 1474-75 (9th Cir.

1994), cert. denied, 513 U.S. 1126 (1995); Filartiga v. Pena-Irala, 630 F.2d 876, 881-82,

886-87 (2d Cir. 1980); Henfield's Case, 11 F. Cas. 1099, 1101-04 (Jay, C.J.), 1107-08,

1120 (Wilson, J.) (C.C.D. Pa. 1793)(No. 6,360); Rodriguez-Fernandez v. Wilkinson, 505

F. Supp. 787, 795-800 (D. Kan. 1980); Jordan 1. Paust, International Law as Law of the

United States 5-9,47-48 ns. 54-57, 51-64, 81-101 (1996), and numerous references cited

therein.

c. Motion Re Judicial Notice

OHA intends to file a motion seeking to have this Honorable Court take judicial

notice of key findings and conclusions of the U.S. Congress, including the trust

relationship between Native Hawaiian people and the United States, listed in two statutes

passed since the decision in Rice v. Cayetano, 120 S.Ct. 1044 (2000). Among the key

findings that Congress makes, in Sec. 7202 of the Native Hawaiian Education Act of

2002, Pub. L. 107-110 and Sec. 202 of the Hawaiian Homelands Homeownership Act of

2000, Pub. L. 106-568, are the following:

(1) Native Hawaiians are a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago, whose society was organized as a nation and internationally recognized as a nation by the United States, Britain, France, and Japan, as evidenced by treaties governing friendship, commerce, and navigation.

(2) The United States has recognized and reaffirmed that-

(A) Native Hawaiians have a cultural, historic, and land-based link to the indigenous people who exercised sovereignty over the Hawaiian Islands, and that group has never relinquished its claims to sovereignty or its sovereign lands;

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(B) Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to whom the United States has established a trust relationship;

(C) Congress has also delegated broad authority to administer a portion of the Federal trust responsibility to the State of Hawaii;

(D) the political status of Native Hawaiians is comparable to that of American Indians and Alaska Natives; and

OHA will support this motion with reference to the other 160 federal

statutes enacted for the benefit ofNanve Hawaiians.

D. Motion Re Native Hawaiian Interest in Ceded Lands Pursuant To the History of Hawai'i and Compact of Admission.

The protections of the Takings Clause in the Fifth Amendment of the U.S.

Constitution extends to property rights of natives "recognized" by Congress. Congress

has recognized in both Section 5(f) of the Admission Act and the Apology Law that

Native Hawaiian are beneficiaries of the illegally-taken ceded lands. When a valid trust

is created, the beneficiaries become the owners of the equitable or beneficial title to the

trust property. See e.g. Sioux Nation of Indians v. United States, 601 F.2d 1157 (Claims

Ct. 1979); Fort Berthold Reservation v. United States, 390 F.2d 686 (Claims Ct. 1968);

City of Mesquite v. Malouf, 553 S.W.2d 639 (Tex. Civ. App. 1977); Rheinstrom v.

Commissioner of Internal Revenue, 105 F.2d 642 (8th Cir. 1939). As the beneficiaries of

the ceded lands held by the State of Hawai'i, and given the unresolved nature of those

claims, and entitlements, it is reasonable and appropriate for the legislature to assist in the

funding of OHA.

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E. Motion Re Status of Native Hawaiians

In light of the challenge of Plaintiffs to the status of Native Hawaiians as

indigenous people, as having a political status similar to that of other Native peoples.

Native Hawaiians are just as native as other Native Americans and they have a

comparable legal status.

F. Motion Re Standard of Review

The standard of judicial review applicable to the programs challenged in

Plaintiffs Complaint should be heard as the second step in Phase One. In other words,

this final motion of Phase One should be limited to a determination whether strict-

scrutiny or rational-basis review applies to preferential or separate programs established

for the Native Hawaiian People, and may also cover whether such a determination

requires the Court to examine a "political question" rather than a purely legal question.

IV. PHASE TWO SHOULD INCLUDE MOTIONS FOR SUMMARY JUDGMENT OR, IF NECESSARY, A TRIAL THAT APPLIES THE STANDARD OF REVIEW TO THE FACTS.

Phase Two should apply the standard of review to the facts. It is premature to

decided whether the application can be decided on summary judgment. There may need

to be a trial on the merits and apply the standard of review to the facts of the case.

V. THE EFFECT OF BIFURCATION ON DISCOVERY, MOTIONS AND OTHER PRETRIAL ISSUES.

Most importantly, these issues are of great importance to our community.

Programs for Native Hawaiians are an essential part of the history of Hawaii and crucial

to Native Hawaiians for the present and future. Congress has viewed benefits to Native

Hawaiians as unconstitutional and legal and passed over 160 laws to assist them. These

issues should be taken in an orderly fashion in order to ensure a full, complete and fair

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presentation of the issues and facts, permit the deferral of costly and probably

unnecessary retention of expert witnesses on statistical issues and to allow for a

narrowing of the facts and evidence. F or instance, the issue of standing has been

thoroughly briefed, carefully analyzed and decided by the Court. The decisions on

standing have narrowed the Plaintiffs' challenge to General Fund revenues, which

provides a direction to the Defendants of exactly what revenues they must defend and to

Plaintiffs of what the scope of their challenge is. This type of direction promotes fairness

and an equitable and just litigation.

Proposed Discovery in Phase One

1) Disclosure by all parties of the facts [other than statistical facts] intended to be

utilized in that phase. This process should lead to the identification of genuine disputes

and may facilitate admissions and stipulations between the parties. F or instance,

Plaintiffs' claim Native Hawaiians are not "indigenous." There are many historical facts

that provide the underpinning of the contentions of both sides. The parties have

stipulated to some historical facts, after the Plaintiffs served requests for admissions.

(See Exhibit A attached) A similar procedure should be followed in Phase One.

Defendants should serve requests for admissions and the parties should be encouraged to

stipulate to additional historical facts. Once it is determined that the parties cannot

stipulate to certain facts, then the party seeking to utilize those facts should identify and

then provide (if requested) the supporting evidence, treatise or other materials.

2) Disclosure by all parties of any experts retained for the motions on trust

responsibility, international law, land claims of Native Hawaiians, status of Native

Hawaiians, and standard of review to be applied.

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Proposed Discovery in Phase Two

1) Discovery in Phase Two will depend on the rulings in Phase One.

VI. THE NECESSITY OF DECIDING THE ISSUES THAT ARE SOUGHT TO BE SEPARATED.

This sequencing will help minimize disputes and their potential for being a major

source of excessive costs and will promote fairness because the parties will know which

issues will be addressed.

VII. WHETHER AND HOW BIFURCATION WILL EXPEDITE OR DELAY SPECIFIC MATTERS [MOTIONS FOR SUMMARY JUDGMENT, DISCOVERY, MOTIONS AND OTHER PRETRIAL ISSUES].

Bifurcation will expedite the conduct of this case and ensure that the issues will

be decided fairly. Developing the record prior to the filing of motions for summary

judgment on the issue of the standard of review will ensure that there is adequate basis to

support summary judgment. Summary judgment motions can help to define, narrow and

resolve issues and may eliminate the need for further proceedings. Even if denied, in

whole or in part, the parties' formulations of their positions may help clarify and define

issues and the scope of further discovery.

VIII. CONCLUSION.

This bifurcation will certainly lead to judicial efficiency and economy, and will

ensure that the parties do not have to expend time and resources on issues that may not be

relevant to the outcome, and will produce an orderly resolution of the issues raised in

Plaintiffs Complaint.

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OHA seeks to make a proper record to support its position and the outline and

sequencing of motions and discovery is proposed in order to be fair to all parties and

make a complete record with factual support.

DATED: Honolulu, Hawaii, ________________ _

17

SHERRY P. BRODER JON M. VAN DYKE MELODY K. MacKENZIE

Attorneys for OFFICE OF HA W AllAN AFFAIRS Defendants




Plaintiffs,

vs.


Defendants.

) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment) ) ) CERTIFICATE OF SERVICE ) ) ) ) ) )

--------------------------- )

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing document was duly

served upon the aforementioned parties at their last known addresses this 31 st day of

October, 2002.

DATED: Honolulu, Hawaii, ________________ _

SHERRY P. BRODER JON M. VAN DYKE MELODY K. MacKENZIE

Attorneys for OFFICE OF HAWAIIAN AFFAIRS Defendants




Plaintiffs,

vs.


Defendants.

) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment) ) ) DECLARATION OF SHERRY P. ) BRODER ) ) ) ) )

-------------)

DECLARATION OF SHERRY P. BRODER

SHERRY P. BRODER, hereby declares under the penalty of perjury that:

1. I am the attorney for the OHA Defendants in this matter.

2. The Errata To Stipulation as to Certain Facts, and the Withdrawal of Certain

of Plaintiffs' First Request for Admissions Directed To State Defendants,

HHCAlDHHL Defendants, OHA Defendants, and SCHHA Defendants Dated

May 31,2002 Filed on July 8, 2002, To Include Attachments, attached as

Exhibit A is a true and correct copy.

DATED: Honolulu, Hawaii, _______________ _

SHERRY P. BRODER




Plaintiffs,

vs.


Defendants.

) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment) ) ) OFFICE OF HAWAIIAN AFFAIRS ) DEFENDANTS'MEMORANDUM ) IN SUPPORT OF MOTION ) ) ) )

------------) OFFICE OF HAWAIIAN AFFAIRS DEFENDANTS'

MEMORANDUM IN SUPPORT OF MOTION

1


TABLE OF AUTHORITIES

Constitutions, Statutes & Rules

Federal

United States Constitution, Articles III, Sec. 2, VI, cl. 2

Article VI Fifth Amendment

Hawai'i Admission Act, Pub. L. No. 83-3, Sec. 4,73 Stat. 4, 5 (1959) Sec. 4 and 5(t)

Hawaiian Homelands Homeownership Act of 2000, Pub. L. 106-568

Hawaiian Home Lands Recovery Act of 2000, Title II of Pub. L. 104-42, 109 Stat. 357

Native Hawaiian Education Act of 2002, Pub. L. 107-110

Article XVI, section 7 of the Hawai'i Constitution

Article XII, section 6 of the Hawai' i Constitution

Act 200 (1994 SLH)

Act 329 (1997 SLH)

Act 359 (1993 SLH)

H.R.S., Sec. 6K-9 (1993)

H.R.S. 10-1, Act 196 (SLH 1979)

CASE LAW

Ahuna v. Department of Hawaiian Home Lands,

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64 Hawai'i 327, 339 (1982)

Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295,302 (1976)

Branson v. Romer, 958 F.Supp. 1501, 1514-16 (D. Colo. 1997)

City of Mesquite v. Malouf, 553 S.W.2d 639 (Tex. Civ. App. 1977)

County of Skamania v. State, 685 P.2d 576 (Wash. 1984)

Danjac LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001)

Dollar Systems, Inc. v. Avcar Leasing Systems, Inc., 890 F.2d 165 (9th Cir. 1989)

Ervien v. United States, 251 U.S. 41,47 (1919)

Exxon Company v. Sofec, Inc., 54 F.3d 570 (9th Cir. 1995)

Fort Berthold Reservation v. United States, 390 F.2d 686 (Claims Ct. 1968)

Filartiga v. Pena-Irala, 630 F.2d 876,881-82, 886-87 (2d Cir. 1980)

Gladden Farms v. State, 633 P.2d 325,327 (Ariz. 1981)

Hawaii Motor Sports Center v. Babbitt, 125 F.Supp.2d 1041, 1047 (D.Hawai'i 2000)

Henfield's Case, 11 F. Cas. 1099, 1101-04 (Jay, C.J.), 1107-08, 1120 (Wilson, J.) (C.C.D. Pa. 1793)(No. 6,360)

Hi/ao v. Estate of Marcos, 25 F.3d 1467, 1474-75 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995) 12

2

9

8

8

13

8

3

3

8

2

13

12

8

5

12


Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) 3

Hilton v. Guyot, 159 U.S. 113, 163 (1895) 11

Hirst v. Gertzen, 676 F.2d 1252, 1261 (9th Cir. 1982) 4

Idaho v. United States, 21 S. Ct. 2135 (2001) 10

Jinro America, Inc. v. Secure Investments, Inc., 266 F.3d 993, 998 (9th Cir. 2001) 3

Kadic v. Karadzic, 70 F.3d 232,238 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996) 11

Kadish V. Arizona State Land Department, 747 P.2d 1183, 1185 (Ariz. 1987) 8

Lassen v. Arizona ex rei Arizona Highway Dept., 385 U.S. 458 (1967) 8

Makua v. Rumsfeld, 163 F.Supp.2d 1202, 1222 (D.Hawai'i 2001) 5

Morton V. Mancari, 417 U.S. 535 (1974) 6

Naliielua v. Hawaii, 795 F.Supp. 1009, 1012-13 (D.Haw. 1990), affd, 940 F.2d 1535 (1991) 5

The Nereide, 13 U.S. (9 Cranch) 388, 422-23 (1815) 11

The Paquete Habana, 175 U.S. 677, 700 (1900) 11

Quintanilla V. City of Downey, 84 F.3d 353, 354 (9th Cir. 1996) 3

Rheinstrom V. Commissioner of Internal Revenue, 105 F.2d 642 (8th Cir. 1939) 13

3


Rice v. Cayetano, 120 S. Ct. 1044 (2000) 12

Rodriguez-Fernandez v. Wilkinson, 505 F. Supp. 787, 795-800 (D. Kan. 1980) 12

Sioux Nation of Indians v. United States, 601 F.2d 1157 (Claims Ct. 1979) 13

State v. Zimring, 58 Hawai'i 104, 124, 737 (1977) 9

Talbot v. Janson, 3 U.S. (3 Dall.) 133, 159-60 (1795) 11

Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330 (9th Cir. 1995) 3

United States v. 11.2 Acres of Land, More or Less, in Ferry County, Washington, 293 F. Supp. 1042 (1968) 8

United States v. 78.61 Acres of Land in Dawes and Sioux Counties, Nebraska, 265 F. Supp. 564 (1967) 8

United States v. New Mexico, 536 F.2d 1324 (10th Cir. 1976) 8

Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002) 2

Other

Jordan J. Paust, International Law as Law of the United States 5-9,47-48 ns. 54-57,51-64,81-101 (1996)

Departments of Interior and Justice Department Report, entitled HFrom Mauka to Makai: The River of Justice Must Flow Freely II

Native Hawaiian Entitlement to Sovereignty: An Overview by N. Kahanu and J. Van Dyke, 17 U. Haw. L. Rev. 427 (1995)

4

12

9

8




Plaintiffs,

vs.


Defendants.

) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment) ) ) OFFICE OF HAWAIIAN AFFAIRS ) DEFENDANTS'MEMORANDUM ) IN SUPPORT OF MOTION ) ) ) )

-------------------------) OFFICE OF HAWAIIAN AFFAIRS DEFENDANTS'

MEMORANDUM IN SUPPORT OF MOTION


TABLE OF AUTHORITIES

Constitutions, Statutes & Rules

Federal

United States Constitution, Articles lIT, Sec. 2, VI, cl. 2

Article VI Fifth Amendment

Hawai'i Admission Act, Pub. L. No. 83-3, Sec. 4,73 Stat. 4, 5 (1959) Sec. 4 and 5(f)

Hawaiian Homelands Homeownership Act of 2000, Pub. L. 106-568

Hawaiian Home Lands Recovery Act of 2000, Title IT of Pub. L. 104-42, 109 Stat. 357

Native Hawaiian Education Act of 2002, Pub. L. 107-110

Article XVI, section 7 of the Hawai' i Constitution

Article XII, section 6 of the Hawai' i Constitution

Act 200 (1994 SLH)

Act 329 (1997 SLH)

Act 359 (1993 SLH)

H.R.S., Sec. 6K-9 (1993)

H.R.S. 10-1, Act 196 (SLH 1979)

CASE LAW

Ahuna v. Department o/Hawaiian Home Lands, 64 Hawai'i 327, 339 (1982)

11 8 13

7,13

12

12

12

7

8

10

10

10

10

10

9


Alamo Land & Cattle Co. v. Arizona, 424 U.S. 295, 302 (1976) 8

Branson v. Romer, 958 F.Supp. 1501, 1514-16 (D. Colo. 1997) 8

City of Mesquite v. Malouf, 553 S.W.2d 639 (Tex. Civ. App. 1977) 13

County of Skamania v. State, 685 P.2d 576 (Wash. 1984) 8

Danjac LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001) 3

Dollar Systems, Inc. v. Avcar Leasing Systems, Inc., 890 F .2d 165 (9th Cir. 1989) 3

Ervien v. United States, 251 U.S. 41, 47 (1919) 8

Exxon Company v. Sofec, Inc., 54 F.3d 570 (9th Cir. 1995) 2

Fort Berthold Reservation v. United States, 390 F.2d 686 (Claims Ct. 1968) 13

Filartiga v. Pena-Irala, 630 F.2d 876, 881-82, 886-87 (2d Cir. 1980) 12

Gladden Farms v. State, 633 P.2d 325,327 (Ariz. 1981) 8

Hawaii Motor Sports Center v. Babbitt, 125 F.Supp.2d 1041, 1047 (D.Hawai'i 2000) 5

Henfield's Case, 11 F. Cas. 1099, 1101-04 (Jay, C.J.), 1107-08, 1120 (Wilson, J.) (C.C.D. Pa. 1793)(No. 6,360) 12

Hilao v. Estate of Marcos, 25 F.3d 1467, 1474-75 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995) 12

Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) 3

2


Hilton v. Guyot, 159 U.S. 113, 163 (1895) 11

Hirst v. Gertzen, 676 F.2d 1252, 1261 (9th Cir. 1982) 4

Idaho v. United States, 21 S. Ct. 2135 (2001) 10

Jinro America, Inc. v. Secure Investments, Inc., 266 F.3d 993, 998 (9th Cir: 2001) 3

Kadic v. Karadzic, 70 F.3d 232,238 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996) 11

Kadish v. Arizona State Land Department, 747 P.2d 1183, 1185 (Ariz. 1987) 8

Lassen v. Arizona ex reI Arizona Highway Dept., 385 U.S. 458 (1967) 8

Makua v. Rumsfeld, 163 F.Supp.2d 1202, 1222 (D.Hawai'i 2001) 5

Morton v. Mancari, 417 U.S. 535 (1974) 6

Naliielua v. Hawaii, 795 F.Supp. 1009, 1012-13 (D.Haw. 1990), affd, 940 F.2d 1535 (1991) 5

The Nereide, 13 U.S. (9 Cranch) 388, 422-23 (1815) 11

The Paquete Habana, 175 U.S. 677, 700 (1900) 11

Quintanilla v. City of Downey, 84 F.3d 353, 354 (9th Cir. 1996) 3

Rheinstrom v. Commissioner of Internal Revenue, 105 F.2d 642 (8th Cir. 1939) 13

Rice v. Cayetano, 120 S. Ct. 1044 (2000) 12

3


Rodriguez-Fernandez v. Wilkinson, 505 F. Supp. 787, 795-800 (D. Kan. 1980) 12

Sioux Nation of Indians v. United States, 601 F.2d 1157 (Claims Ct. 1979) 13

State v. Zimring, 58 Hawai'i 104, 124, 737 (1977) 9

Talbot v. Janson, 3 U.S. (3 Dall.) 133, 159-60 (1795) 11

Triad Systems Corp. v. Southeastern Express Co., 64 F.3d 1330 (9th Cir. 1995) 3

United States v. 11.2 Acres of Land, More or Less, in Ferry County, Washington, 293 F. Supp. 1042 (1968) 8

United States v. 78.61 Acres of Land in Dawes and Sioux Counties, Nebraska, 265 F. Supp. 564 (1967) 8

United States v. New Mexico, 536 F.2d 1324 (10th Cir. 1976) 8

Zivkovic v. Southern California Edison Co., 302 F.3d 1080 (9th Cir. 2002) 2

Other

Jordan J. Paust, International Law as Law of the United States 5-9,47-48 ns. 54-57, 51-64, 81-101 (1996)

Departments of Interior and Justice Department Report, entitled "From Mauka to Makai: The River of Justice Must Flow Freely"

Native Hawaiian Entitlement to Sovereignty: An Overview by N. Kahanu and J. Van Dyke, 17 U. Haw. L. Rev. 427 (1995)

4

12

9

8


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