university of hawaii school of law library - jon van dyke ... · 107 stat. 1510 (1993) ... case law...

SHERRYP. BRODER #1880

Attorney at Law A Law Corporation Davies Pacific Center, Suite 800

841 Bishop Street Honolulu, Hawai"i 96813

Telephone No.: (808) 531-1411

Fax No. (808) 531-8411

Email: [email protected]

JONM. VANDYKE #1896

2515 Dole Street Honolulu, Hawai" i 96822

Telephone No.: (808) 956-8509

Fax No.: (808) 956-5569


1v1ELODY K. MacKENZIE # 1799

579 Kaneapu Place Kailua, Hawai'i 96734 Telephone No.: (808) 262-6301


Attorneys for OFFICE OF HA W AlIAN AFFAIRS Defendants

__ ffA'WrliliviiURT ~flj'~V ltP "lAWAi'

'1. Oft Q': 003

at_ o'cIaok an In. _ M WALTEAA. Y.H.O NN. CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAW All

EARL F. ARAKAKI, et aI, ) CIVIL NO. 02-00139 SO~-KSC

) (Declaratory Judgment)

Plaintiffs, ) . ) NOTICE OF MOTION; OFFICE OF ) HA W AlIAN AFFAIRS DEFENDANTS'

vs. ) MOTION TO DISIvllSS ON THE GROUND

) THATPLAlNTIFFS' ACTION PRESENTS

LINDA LINGLE, et aI., ) A NONJUSTICIABLE POLITICAL ) QUESTION; MEMORANDUM IN

Defendants. ) SUPPORT OF MOTION; CERTIFICATE

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

) OF COMPLIANCE; CERTIFICATE OF ) SERVICE ) ) DATE: January 12, 2004 ) TIME: 9:00 a.m.

__________ -J) JUDGE: Susan Old Mollway

NOTICE OF MOTION

TO: H. WILLIAM BURGESS 2299-C Round Top Drive Honolulu, Hawaii 96822

DAVID BRADLEY ROSEN ASB Tower, Suite 3050 1001 Bishop Street Honolulu, Hawaii 96813

MARK. J. BENNETT, Attorney General GIRARD LAU, Deputy Attorney General CHARLEEN M. AINA, Deputy Attorney General Department of Attorney General 425 Queen Street Honolulu, Hawaii 96813

PLEASE TAKE NOTICE that the Motion To Dismiss of OFFICE OF

HA W AllAN AFFAIRS Defendants ROWENA AKANA, HAUNANI APOLIONA,

DANTE CARPENTER, DONALD CATALUNA, LINDADELA CRUZ, COLETIE

Y. MACHADO, BOYD P. MOSSMAN, OSWALD K. STENDER, and JOf.[N" D.

W AIHE'E, IV, in their official capacity as Trustees of the Office of Hawaiian Affairs,

pursuant to Local Rule 7 of the Rules of the United States District Court for the

2


District of Hawaii and Rules 7 and 12(b)(6) of the Federal Rules of Civil Procedure,

shall come on for hearing before the Honorable SUSAN OKI MOLL WAY, Judge of

the above-entitled Court, in her courtroom in the Prince Kuhio Federal Building, 300

A.la Moana Boulevard, Honolulu, Hawaii, at 9:00 a.m. o'clock a.m. on January 12,

2004, or as soon thereafter as counsel may be heard.

DATED: Honolulu, Hawaii, December 3,2003.

3

S~P.BRODER JON M. VAN DYKE MELODY K. MacKENZIE Attorneys for OFFICE OF HAWAIIAN AFFAIRS Defendants


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

EARL F. ARAKAKI, et ai, ) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment)

Plaintiffs, ) ) OFFICE OF HA W AllAN AFFAIRS

vs. ) DEFENDANTS'MOTIONTO ) DISMISS ON THE GROUND THAT ) PLAINTIFFS' ACTION PRESENTS A ) NONJUSTICIABLE POLITICAL

LINDA LINGLE, et aI., ) QUESTION )

Defendants. ) )

OFFICE OF HAW AllAN AFFAIRS DEFENDANTS' MOTION TO DISMISS ON THE GROUND THAT PLAINTIFFS' ACTION PRESENTS A

NONJUSTICIABLE POLITICAL QUESTION

OFFICE OF HAW AlIAN AFFAIRS Defendants ROWENA AKANA,

HAUNANI APOLIONA, DANTE CARPENTER, DONALD CATALUNA, LINDA

DELA CRUZ, COLETTE Y. MACHADO, BOYD P. MOSSMAN, OSWALD K.

STENDER, and JOHND. WAIHE'E, IV, in their official capacity as Trustees of the

Office of Hawaiian Affairs, by and through their attorney, SHERRY P. BRODER,

hereby respectfully move this Honorable Court for an order granting dismissal.

This motion is brought pursuant to Local Rule 7 of the Rules of the

United States District Court for the District of Hawaii and Rules 7 and 12(b )(6) of the

Federal Rules of Civil Procedure, the memorandum attached hereto, and the records


and pleadings filed herein.

DATED: Honolulu, Hawaii, December 3, 2003.

Attorneys for OFFICE OF HAWAIIAN AFFAIRS Defendants


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAW All

EARL F. ARAKAKI, et aI, ) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory JUdgment)

Plaintiffs, ) ) MEMORANDUM IN SUPPORT

vs. ) OF MOTION ) ) )

LINDA LINGLE, et ai., ) )

Defendants. ) )


TABLE OF CONTENTS

I. INTRODUCTION ........................................................................... 1

II. THE RECORD IN THE PRESENT CASE IS NOW DEVELOPED ADEQUATELY TO ADDRESS THE POLITICAL QUESTION MOTION PRESENTED BY THE OBA DEFENDANTS ..................................................... 3

III. THE UNITED STATES HAS RECOGNIZED AND ACKNOWLEDGED REPEATEDLY THAT NATIVE HA W AIIANS ARE A NATIVE PEOPLE AND/OR INDIGENOUS GROUP ................................................................. 5

IV. THE UNITED STATES HAS DELEGATED ITS TRUST RESPONSmILITY TOWARD THE NATIVE HAW AllAN PEOPLE, IN PART, TO THE STATE OFHAWAll, THEREBY AUTHORIZING THE STATE TO ADDRESS THE NEEDS OF NATIVE HAWAllANS WITH LEGISLATIVE APPROPRIATIONS ......................................... 12

v. THE HAW All LEGISLATURE'S GENERAL FUND APPROPRIATIONS TO THE OFFICE OF HAW AllAN AFFAIRS HA VE BEEN UNDERTAKEN PURSUANT TO THE STATE'S UNDERSTANDING OF ITS RESPONSmILITIES UNDER GOVERNING FEDERAL LA WS •........................................................................ 15

VI. COURTS HAVE RULED REPEATEDLY THAT THE POLITICAL QUESTION DOCTRINE BARS JUDICIAL SCRUTINY OF THE RELATIONSHIP BETWEEN NATIVE HAW AllANS AND THE UNITED STATES •........................................................................ 19


VII. THE POLITICAL BRANCHES OF THE GOVERNMENT HAVE THE RESPONSmILITY TO DETERMINE RELATIONSHIPS BETWEEN THE UNITED STATES AND THE NATIVE PEOPLES LIVING IN THE UNITED STATES, AND JUDICIAL REVIEW OF SUCH DETERMINATIONS IS PRECLUDED BY THE POLITICAL QUESTION DOCTRINE •.................................................................................. 28

VIII. CONCLUSION ............................................................................. 32


TABLE OF AUTHORITIES

Constitutions. Statutes. Rules. Legislative Materials

Act 329 (1997) .......................................................................................... ;18-19

Act of Mar. 3, 1891, ch. 561, sec. 15, 26 Stat. 1101 (codified at 25 U.S.C. sec. 495) ..................................................................... 31

Admission Act, Pub. L. 86-3, 73 Stat. 4 (1959) ...................................................... 3,4,13,15,17

25 C.F.R. sec. 83.3(a)(nProcedures for Establishing that an American Indian Group Exists as an Indian Tribe") ...................................................... 24

Conference Committee Report No. 107, 1989 Legislative Sess., House J oumal 806-07 ......................... .; .......................................................... 18

Defense Appropriations Act Fiscal Year 2002 , Section 8014(3), Pub. L. No. 107-117, 115 Stat. 2230, 2272 (2002) ............................................................................. 7

Defense Appropriations Act Fiscal Year 2001 , Pub. L. No. 106-259, 114 Stat. 656, 677 (2000) .............................................. 7

Hawaiian Homelands Homeownership Act of2000, Pub. L. No. 106-568 (2000) (Title II of the Omnibus Indian Advancement Act), 114 Stat. 2868 (2000)) ............................................................. 2,4,5-6,12,32-33

Hawaiian Homes Commission Act, 1920, 42 Stat. 108 (1921) ............................................................................ 7,13,15,23


Hearings Before the House Committee on the Territories on the Rehabilitation and Colonization of Hawaiians and Other Proposed Amendments to the Organic Act of the Territory of Hawaii, 66th Congo 129-3 0 (1920) ............................................................................ 7-8

H.B. No. 1469 ................................................................................................. 17

House Report No. 839, 66th Cong., 2nd Sess. at 4 (1920) ..................................................................... 8

House Standing Comm. Rpt. No. 204, Comm. on Water, Land Use, Development and Hawaiian Affairs, 1981 Legislative Sess., House Journal 1026 ................................................ 18

J oint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii (Apology Resolution), Pub. L. 103-150, 107 Stat. 1510 (1993) ..................................................................... 2,5,9,18,33

Native American Graves Protection and Repatriation Act, 25 U.S.C. secs. 3001-13 ............................................................................. 7,23

Native Hawaiian Education Act, Pub. L. 107-110, 115 Stat. 1425 (2002), codified at 20 U.S.C. sec. 7512 et seq .............................................. 2,5,6,7,9,12-13,32-33

Native American Graves Protection and Repatriation Act, 25 U.S.C. sec. 3001-13 .............................................................................. 7,23

2 PROCEEDINGS OF THE CONSTITUTIONAL

CONVENTION OF 1978 at 460 (1979) ......................................................... 16-17

Public Law 1 00-579 ......................................................................................... 18

Senate Report No. 101-473 at 6 ......................................................................... 7


Senate Report No. 107 -66 ................................................................................ 22

Standing Committee Rpt. No. 59, Committee on Hawaiian Affairs, 1 PROCEEDINGS OF THE CONSTITUTIONAL CONVENTION OF 1978 at 647 (1979) ........................................................ .16,17

25 U.S.C. 450b( e ) .............................................................................................. 7

15 U.S.C. 637(a)(15) .......................................................................................... 7

United States Constitution, Article I, Sec. 8, Clause 3 .............................................................................. 22 Article YI ....................................................................................................... 13 Equal Protection Clause ............................................................................... 1,4

Case Law

Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982) ........................................................... 7,12

Alaska Chapter, Assoc. Gen. Contractors of Amer., Inc. v. Pierce, 694 F.2d 1162 (9th Cir. 1982) ................................................................... 19-20

Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998) ...................................................................................... 29

Arakaki v. Cayetano, 198 F.Supp.2d 1165 CD.Hawaii 2002) .................................................. 9,19,22

Baker v. Carr, 369 U.S. 186 (1962) ................................................................................. 24,27

Bonnichsen v. United States, No. 02-35994, Ninth Circuit, Reply Brief of Federal Appellants (July 2, 2003), 2003 WL 22593 882 ...................................................................................... 23


Doe v. Kamehameha Schools, Civ. No. 03-00316 (D.Hawaii Nov. 17,2003) ............................................ 10

Duro v. Reina, 860 F.2d 1463 (9th Cir. 1~88) ..................................................................... .11

Ex Parte Charley Webb, 225 U.S. 663 (1912) .................................................................................... 14

Idaho v. United States, 533 U.S. 262 (2001) .................................................................................... 14

Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1 st Cir. 1975) ........................................................... ; ............ 20

Kahawaiolaa v. Norton, 222 F.Supp.2d 1213 {D.Hawaii 2002) .................................... 10,11,26,27-29

Kahawaiolaa v. Norton, No. 02-17239, Ninth Circuit, Brief for the Appellee (May 15, 2003), 2003 WL 22670058 .................................................................................... 27

The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867) ............................................................ 13,21,31

Ka Pa 'akai 0 Ka "Aina v. Land Use Commission, 94 Haw. 31, 7 P.3d 1 068 (2000) ................................................................ 12

MaZama Makua v. Rumsfeld, 163 F.Supp.2d 1202 (D.Hawai'i 2001) .................................................... .11

Miami Nation of Indians of Indiana, Inc. v. u.s. Dept. of Interior, 255 F.3d 342 (7th Cir. 2001) ........................................................ 27,29,31,~2

Morton v. Mancari, . 417 U.S. 535 (1974) .............................................................................. 11,20

Naliielua v. Hawaii, 795 F.Supp. 1009 (D.Haw. 1990), affd, 940 F.2d 1535 (1991) ............. 9,10


Napeahi v. Paty, 921 F .2d 897 (9th Cir. 1990) ....................................................................... 11

Office of Hawaiian Affairs V. Housing and Community Development Corporation of Hawaii, Civil No. 94-4207 (SSM)(lst Cir.Ct. Hawaii, Dec. 5, 2002), appeal pending, No. 25570 Hawaii Supreme Court ................................. 26

Office of Hawaiian Affairs v. State, 96 Hawaii 388, 31 P.3d 901 (2001) ..................................................... 12,26

Pai 'Ohana v. United States, 875 F. Supp. 680 (D. Haw. 1995), aff'd, 76 F.3d 280 (9th Cir. 1996) ............................................................... 9-10,11

Peyote Way Church of God V. Thornburgh, 922 F.2d 1210 (5th eire 1991) .................................................................... 14

Price v. State of Hawai'i, 764 F.2d 623 (9th Cir. 1985), cert. denied, 474 U.S. 1055 (1986) ....................................................... 25,30

Public Access Shoreline Hawaii V. Hawaii County Planning Comm 'n., 79 Haw. 425, 903 P.2d 1246 (1995) .......................................................... 12

Rice v. Cayetano (1), 941 F. Supp. 1529 (D. Haw. 1996) ............................................................ 10

Rice v. Cayetano, 146 F.3d 1075 (9th Cir. 1999), rev'd on other grounds, 528 U.S. 495 (2000) ................................. .10,15,32

Sisseton & Wahpeton Bands of Sioux Indians v. United States, 277 U.S. 424 (1928) ................................................................................... 29

. South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998) ................................................................................... 30


Squaxin Island Tribe v. Washington, 731 F.2d 715 (9th Cir. 1986) ....................................................................... 14

Territory v. Kapiolani Estate, 18 Hawaii 640 (1908) ................................................................................. 25

Territory v. Pauahi, 18 Hawaii 649 (1908) ................................................................................ 25

Tiger v. Western Inv. Co., 221 U.S. 286 (1911)

Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Hawaii 154, 737 P.2d 446 (1987) ........................................................ 26

United States v. Holliday, 70 U.S. (3 Wall.) 407 (1865) .......................................................... 29,30-31

United States v. Nuesca, 945 F .2d 254 (9 th Cir. 1991 ) ...................................................................... 11

United States v. Sandoval, 231 U.S. 28 (1913) .................................................................... 21,22,29,30

United States v. Wright, 53 F.2d 300 (4th Cir. 1931) ....................................................................... 29

Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979) ................................................................................. 14

Western Mining Council v. Watt, 643 F.2d 618 (9th Cir. 1981) ....................................................................... 4

Western Shoshone Business Council v. Babbitt, . 1 F.3d 1052 (10th Cir. 1993) ................................................................ 27,31


Other

WILLIAM C. CANBY, JR., AMERICAN INDIAN LAW

IN A NUTSHELL 5 (3d ed. 1998) .................................................................... 29

FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW

(Rennard Strickland et al. eds. 2nd ed. 1982) ................ 10,20,21,27,30,31,32

Colonel C. Field, Britain's Sea Soldiers (Liverpool: Lyceum Press, 1924) ............................................................... 22

From Mauka to Makai: The River of Justice Must Flow Freely (Joint Report of the U.S. Departments of Justice and Interior on the Reconciliation Process Between the Federal Government and Native Hawaiians, Oct. 23, 2000) ......................................................................... 8-9

Jared Sparks, Memoirs of the Life and Travels of John Ledyard (London 1828) ............................................................................................. 22


IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

EARL F. ARAKAKI, et aI, ) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment)

Plaintiffs, ) ) MEMORANDUM IN SUPPORT

vs. ) OF MOTION ) ) )

LINDA LINGLE, et al., ) )

Defendants. ) )

OHA DEFENDANTS' MEMORANDUM IN SUPPORT OF MOTION

I. INTRODUCTION.

This memorandum supports the Motion of the Office of Hawaiian Affairs

(OHA) Defendants to dismiss Plaintiffs' Complaint on the ground that the claim filed

by Plaintiffs raises an issue that is a nonjusticiable political question. As this

Honorable Court has previously explained, the If gist of the claims in the Complaint

is that the benefits provided by OHA and HHCIDHHL are race-based, that those

benefits should therefore be analyzed under the Equal Protection Clause to see

whether they pass 'strict scrutiny,' and that the benefits should be stopped because

they are not 'narrowly tailored to further a compelling governmental interest. 'If Order

of May 8, 2~02, slip Ope at 30. The OHA Defendants argue, in contrast, that the


general-fund expenditures allocated to OHA by Hawai" i' s Legislature have been

authorized by the U.S. Congress based on the determination by the Congress that

Native Hawaiians l have a "political" status similar to that of other Native Americans,

and hence that these expenditures should be reviewed under the "rational basis" level

of judicial review and are certainly constitutional because they are rationally related

to legitimate governmental goals.

The central question that must be addressed and resolved by Plaintiffs'

Complaint is thus whether Congress has determined that separate qr preferential

1 Unless indicated otherwise, the term "Native Hawaiian" as used in this memorandum refers to any individual descended from the aboriginal people who dwelled in the Hawaiian Islands prior to 1778 when Captain James Cook "discovered" the islands for the western world, which is the definition used in federal statutes enacted since 1974. See, e.g., the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii [hereafter referred to as the Apology Resolution], sec. 2, Pub. L. 103-150, 107 Stat. 1510 (1993)("As used in this Joint Resolution, the term 'Native Hawaiian II means any individual who is a descendent of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii "), Native Hawaiian Education Act, Sec. 7202(12)(0), Pub. L. 107-110, 115 Stat. 1425 (2002), codified at 20 U.S.C. sec. 7512 et seq. (defming "Native Hawaiian" as "any individual who is (A.) a citizen of the United States; and (B) a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now comprises the State of Hawaii, as evidenced by - (i) genealogical records; (ii) Kupuna (elders) or Kama' aina (long-term community residents) verification; or (iii) certified birth "records"); Hawaiian Homelands Homeownership Act of2000, sec. 202(13), Pub. L. No. 106-568 (2000)(Title II of the Omnibus Indian Advancement Act), 114 Stat. 2868 (2000), sec. 801(a) (same).

2


programs established for Native Hawaiians are proper because of the "political"

relationship between Native Hawaiians and the United States, and similarly whether

Congress has delegated to the State ofHawai' i, in part, the responsibility to meet the

trust obligations owed to Native Hawaiians. The OHA Defendants submit that the

answers to these questions must be yes, based on repeated statutory enactments of the

Congress, but also submit that it would be improper for a court to question

Congress's conclusions on these issues and hence that Plaintiffs' Complaint should

be dismissed because it raises a nonjusticiable political question.

II. THE RECORD IN THE PRESENT CASE IS NOW DEVELOPED ADEOUATELY TO ADDRESS THE POLITICAL OUESTION MOTION PRESENTED BY THE OHA DEFENDANTS.

In its November 21, 2003 Order, this Honorable Court clarified the status of

the record and claims of the Plaintiffs, in light of the limitations presented by their

status as state taxpayers. The Court explained that state taxpayers have standing

solely to challenge the expenditure of state taxes, and that they do not have standing

"to challenge spending by DHHLIHHC and/or OHA that involves rental income or

other money not derived from state tax revenue." Slip op. at 5. The Court then

dislnissed Plaintiffs' challenge to the Hawaiian Home Lands lease program "based

on lack of standing," because it "necessarily involves a challenge to the Admission

Act, which is a federal law. " Id The Court explained that "[a]ny challenge to the use

3


of state taxes for programs that allegedly violate the Equal Protection Clause requires

this court to examine the laws underlying the expenditure of those taxes," but also

that Plaintiffs' status as state taxpayers did not authorize such examination because

"state taxpayer standing does not, by itself, permit a challenge to a federal law." Id.

at 25 (citing Western Mining Council v. Watt, 643 F.2d 618, 631-32 (9th Cir. 1981)).

The Court declined to dismiss Plaintiffs' challenge to the general fund expenditures

that help support OHA's programs because "[o]n this record, the court does not find

persuasive OHA' s contention that appropriations of state tax revenues for OHA are

somehow required by the Admission Act," slip Ope at 6-7, and also rejected "as moot

OHA's argument that the United States is a necessary party to Plaintiffs' challenge

to the use by OHA of ceded land revenue." Slip Ope at 6. The Court went on to

explain that" [n ]oth~g in the Admission Act requires the creation ofOHA or governs

OHA's actions. Indeed, OHA was not created until many years after Hawaii became

a state, and even then it took a state constitutional amendment to create OHA. II Slip

Ope at 29. The contention of the OHA Defendants is, however, not that

appropriations of state tax revenue to help support OHA' s programs are "required'

by the Admission Act, but rather that they are "authorized" by this federal enactment

and by numerous other federal statutes, including most explicitly by the Hawaiian

Homelands Homeownership Act of 2000, sec. 202(13), Pub. L. No. 106-568

4


(2000)(Title II of the Omnibus Indian Advancement Act), and by the 2002 Native

Hawaiian Education Act, Sec. 7202( 12)(0), Pub. L. 107-110 (Feb. 8, 2002), both of

which say that" Congress has also delegated broad authority to administer a portion

of the Federal trust responsibility to the State of Hawaii. " (Emphasis added.) The

OHA Defendants continue to posit that the Hawai'i State Legislature's general-fund

expenditures to support OHA's programs cannot be declared to be unconstitutional

without also declaring that the federal statutes delegating responsibility to the State

of Hawaii to assist in fulfilling the federal trust obligations owed to Native Hawaiians

are also unconstitutional. But the OHA Defendants also submit that the appropriate

role of a federal court is to recognize that decisions affecting Native Hawaiians are

properly made by the political branches of government and thus that Plaintiffs'

challenge to the legislatively-enacted programs for Native Hawaiians must. be

dismissed because it raises a nonjusticiable political question.

III. THE UNITED STATES HAS RECOGNIZED AND ACKNOWLEDGED REPEATEDLY THAT NATIVE HAWAIIANS ARE A NATIVE PEOPLE AND/OR INDIGENOUS GROUP.

The United States Congress has explicitly found on numerous occasions that

Native Hawaiians are an indigenous people and that their political status under U.S.

law is comparable to that of American Indians. See, e.g., 1993 Apology Resolution

(referring to Native Hawaiians as an "indigenous ... people"); Hawaiian Homelands

5


Homeownership Act of 2000, Pub. L. 106-568, 114 Stat. 2868 (2000), sec.

202( 13 )(" 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"); 2002

Native Hawaiian Education Act, sec. 7202, Pub. L. 107-110, 115 Stat. 1425, 20

U.S.C. sec. 7512(12)(same). The Congress has affrrmed this status repeatedly by

treating Native Hawaiians as Native Americans and by including Native Hawaiians

in legislation and programs designed to assist Native Americans, as listed, for

instance, in Section 202(14)-(15) of the Hawaiian Homelands Homeownership Act

of2000 and in the 2002 Native Hawaiian Education Act, 20 U.S.C. sec. 7512(13).2

2 One of the most explicit recent example of Congress's recognition that Native Hawaiian communities have a comparable status to Indian tribes can be . found in the preferential program established in Section 8014(3) of the Fiscal Year 2002 Defense Appropriations Act, Pub. L. No. 107-117, 115 Stat. 2230, 2272 (2002), and Fiscal Year 2001 Defense Appropriations Act, Pub. L. No. 106-259, 114 Stat. 656, 677 (2000), which defmed those Native American organizations eligible for the preference as "an Indian tribe, as defmed in 25 U.S.C. 450b(e), or a Native Hawaiian organization, as defmed under 15 U.S.C. 637(a)(15)." In other words, Congress has explicitly referred to a "Native Hawaiian organization" as the equivalent to an "Indian tribe," thus confirming once again the political status of the Native Hawaiians and the "special relationship" that exists between the United States and them. See also Native American Graves Protection and Repatriation Act, 25 U.S.C. sec. 3001-13, which designates "Native Hawaiian organizations," as defined in 25 U.S.C. sec. 3001(11), as having the same rights as Indian tribes to claim culturally-important remains and items. Senate Report No. 101-473 at 6

. explained that "there are over 200 tribes and 200 Alaskan Native villages and Native Hawaiian communities, each with distinct cultures and traditional and religious practices that are unique to each community. II

6


The executive branch of the federal government has also consistently related

to Native Hawaiians as indigenous people. U.S. executive-branch officials and

members of Congress explicitly recognized that Native Hawaiians have the same

rights as other Native Americans in the hearings that led to the passage of the

Hawaiian Homes Commission Act in 1921. See, e.g., Ahuna v. Dept. of Hawaiian

Honte Lands, 640 P.2d 1161, 1167 (Hawaii 1982) (quoting Secretary of the Interior

Franklin K. Lane as referring to native Hawaiians as "our wards ... for whom in a

sense we are trustees"). See also Hearings Before the House Committee on the

Territories on the Rehabilitation and Colonization of Hawaiians and Other Proposed

Amendments to the Organic Act of the Territory of Hawaii, 66th Congo 129-30

(1920)( quoting Secretary of the Interior Franklin D. Lane as saying that the basis for

granting special programs for native Hawaiians is "an extension of the same idea" that

justifies granting such programs for Indians); id at 169 (quoting Representative

Curry, the Chair of the Conunittee, as saying: "And the Indians received lands to the

exclusion of other citizens. That is certainly in line with this legislation, in hannony

with this legislation. "); id. at 170 (quoting Chair Curry, in response to a question from

Representative Dowell about whether native Hawaiians might be different because

"we have no government or tribe or organization to deal with," as explaining that "We

7


have the law of the land of Hawaii from ancient times right down to the present where

the preferences were given to certain classes of people"). "In the opinion of your

committee there is no constitutional difficulty whatever involved in setting aside and

developing lands of the Territory for Native Hawaiians only." House Rpt. No. 839,

66th Cong., 2nd Sess. at 4 (192~).

The executive and legislative branches of the federal government have also

concluded that Native Hawaiians continue today to be a distinct native group with

their own cultural identity. See, e.g., From Mauka to Makai: The River of Justice

Must Flow Freely at ii (Joint Report of the U.S. Departments of Justice and Interior

on the Reconciliation Process Between the Federal Government and Native

Hawaiians, Oct. 23, 2000), concluding that: "It is evident from the documentation,

statements, and views received during the reconciliation process undertaken by

Interior and Justice pursuant to Public Law 103-150 (1993), that the Native Hawaiian

people continue to maintain a distinct community and certain governmental structures

and they desire to increase their control over their own affairs and institutions."

(Emphasis added.) Even more recently, the U.S. Congress has found that: "Despite

the consequences of over 1 00 years of nonindigenous influence, the Native Hawaiian

people are determined to preserve, develop, and transmit to future generations their

ancestral territory and their cultural identity in accordance with their own spiritual

8


and traditional beliefs, customs, practices, language, and social institutions." 2002

Native Hawaiian Education Act, 20 U.S.C. sec. 7512(20).

These conclusions have been acknowledged and confirmed on numerous

occasions by the courts that have examined Native Hawaiian issues. This Honorable

Court has explained that: '''More than a decade ago, now-Chief Judge David Ezra

analogized native Hawaiians to American Indian tribes." Arakaki v. Cayetano, 198

F.Supp.2d 1165, 1178(D.Hawaii2002)(citingNaliieluav. Hawaii, 795F.Supp.l009,

1012-13 (D.Haw. 1990), affd, 940 F.2d 1535 (1991)). Judge Ezra has reaffirmed this

conclusion on numerous occasions. In Pai 'Ohana v. United States, 875 F. Supp.

680 (D. Haw. 1995), ajJ'd, 76 F.3d 280 (9th Cir. 1996), for instance, Judge Ezra

quoted from his conclusion in Naliielua that "[a]lthough Hawaiians are not identical

to the American Indians whose lands are protected by the Bureau of Indian Affairs,

the court finds that for purposes of equal protection analysis, the distinction ... is

meritless. Native Hawaiians are people indigenous to the State of Hawai' i, just as

American Indians are indigenous to the mainland United States ... " Id. at 697 n.35.

He later characterized the Naliielua holding by saying that II [t]he court was convinced

that the relationship between the Native Hawaiians and the aboriginal people of the

Hawaiian Islands and the State of Hawaii was sufficiently similar to that of American

Indians and the United States to bypass the strict scrutiny requirement." Rice v.

9


Cayetano (1), 941 F. Supp. 1529, 1541 (D. Haw. 1996).

Judge Alan C. Kay has similarly recognized that Native Hawaiians are a

"people indigenous to the United States." Kahawaiolaa v. Norton, 222 F.Supp.2d

1213, 1220 n.9 (D.Hawaii 2002)(quoting from FELIX S. COHEN'S HANDBOOK OF

FEDERAL INDIAN LAW 797-98 (Rennard Strickland et ale eds. 2nd edt 1982)). More

recently, in his oral ruling in Doe v. Kamehameha Schools, Civ. No. 03-00316, issued

Nov. 17, 2003, transcript at 2, he characterized "Native Hawaiians" as "the

indigenous people of Hawaii. ,,3 This Honorable Court has also recognized the

importance of and need to protect Native Hawaiian rights and practices. Malama

Makua v. Rumsfeld, 163 F.Supp.2d 1202, 1219-22 (D.Hawai'i 2001).

The U.S. Court of Appeals for the Ninth Circuit has also been consistent in

recognizing that Native Hawaiians are the indigenous people of Hawai'i and has

upheld and enforced the separate programs that have been established for them. See,

e.g., Pai 'Ohana v. United States, 76 F.3d 280 (9th Cir. 1996)(recognizing the

existence and legitimacy of Native Hawaiian tenant rights created under the Hawaii

3 Judge Kay has also concluded (two years after the Supreme Court's opinion in Rice v. Cayetano, 528 U.S. 495 (2000)) that It[t]he appropriate standard of review" for a It constitutional challenge" to governmental decisions regarding programs for Native Hawaiians "if justiciable, would be the rational basis -standard." Kahawaiolaa v. Norton, 222 F .Supp at 1223 n. 14 (citing Morton v. Mancari, 417 U.S. 535, 555 (1974); United States v. Nuesca, 945 F.2d 254,257 (9th Cir. 1991); and Duro v. Reina, 860 F.2d 1463, 1467 (9th Cir. 1988)).

10


State Constitution and state statutes); United States v. Nuesca, 945 F.2d 254,257-58

(9th eire 1991)(recognizing Native Hawaiians as "indigenous to regions now part of

the United States" and thereby applying rational-basis scrutiny to a Congressional

classification that differentiated between the rights of Native Hawaiians and Native

Alaskans); Napeahi v. Paty, 921 F .2d 897 (9th Cir. 1990)( concluding that submerged

lands surrounding the Hawaiian Islands were included in the public land trust, the

proceeds of which should be used for the benefit of Native Hawaiians pursuant to the

1959 Admission Act).

The Hawaii Supreme Court has similarly recognized that Hawaiians have the

same legal status as other Native Americans and have separate and distinct legal

rights under state law. Ahuna v. Department of Hawaiian Home Lands, 64 Haw.

327,339,640 P.2d 1161, 1169 (1982)("Essentiallywe are dealing with relationships

between the government and aboriginal people. Reason thus dictates that we draw

the analogy between native Hawaiian homesteaders and other native Americans. II);

Public Access Shoreline Hawaii v. Hawaii County Planning Comm 'n., 79 Haw. 425,

903 P.2d 1246 (1995)(recognizingandexplainingthetraditionalandcustomaryrights

of Native Hawaiians); KaPa 'akai 0 Ka 'Ainav. Land Use Commission, 94 Haw. -31,

46, 7 P.3d 1068, 1083 (2000)(confirming that "to the extent feasible when granting

a petition for reclassification of district boundaries,1I the Land Use Commission must

11


"protect the reasonable exercise of customarily and traditionally exercised rights of

native Hawaiians"); OHA v. State, 96 Haw. 388, 401, 31 P.3d 901, 914

(2001)(reiterating that "the State's obligation to native Hawaiians is firmly

established in our constitution").

IV. THE UNITED STATES HAS DELEGATED ITS TRUST RESPONSffiILITY TOWARD THE NATIVE HA WAllANPEOPLE, IN PART, TOTHESTATEOFHAWAII,THEREBY AUTHORIZING THE STATE TO ADDRESS THE NEEDS OF NATIVE HAW AllANS WITH LEGISLATIVE APPROPRIATIONS.

The U.S. Congress recently explained in both the Hawaiian Homelands

Homeownership Act of 2000, sec. 202(13), and in the 2002 Native Hawaiian

Education Act, 20 U.S.C. sec. 7512(12)(B), that IICongress has also delegated broad

authority to administer a portion of the Federal 1nl:st responsibility to the State of

Hawaii. " This delegation constituted an explicit condition of statehood which the

State was required to accept. Congress required the new State ofHawai'i to adopt the

Hawaiian Homes Commission Act as a "compact" between the United States and the

State and required the State to manage the ceded lands as a public trust for, among

other things, "the betterment of the conditions of native Hawaiians. ,,4 1959

4 Although the specific language in the Admission Act refers to "native Hawaiians," defined as those with 50% or more Hawaiian blood, Congress -subsequently approved an amendment allowing persons with only 25% Hawaiian blood to hold Hawaiian Homestead leases as successors, HHCA sec. 209, and all its enactments since 1974 have defined "Native Hawaiian" as a person with any

12


Admission Act, secs. 4, 5(f). 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.5 Congress's recent confirmation of the

responsibilities of the State of Hawaii to administer federal trust responsibilities,

especially when linked to the numerous federal statutes enacted during the past three

decades confirming that all persons of Hawaiian ancestry are "Native Hawaiians"

Hawaiian ancestry. See supra footnote 1. It has thus been perfectly logical for the State of Hawaii to interpret its current responsibility as delegatee, in part, of the federal government's trust responsibility toward Native flawaiians as requiring it to give OHA the responsibility to serve persons with less than 50% Hawaiian blood, as well as those with more than 50% Hawaiian blood, and to provide legislative appropriations in order to enable OHA to provide programs for all those who are of Hawaiian ancestry.

5 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. See, e.g., The Kansas Indians, 72 U.S. (5 Wall.) 737 (1867)( explaining that Kansas had accepted admission into the United States on the condition, articulated in the admitting statute, that the rights of Indians in Kansas remain unimpaired and that Congress would continue to have power to regulate Indian affairs); Ex Parte Charley Webb, 225 U.S. 663 (1912)(accord, with regard to the admission of Oklahoma into the Union). In Idaho v. United States, 533 U.S. 262 (2001), the U.S. Supreme Court awarded title to disputed submerged lands to the Coeur d'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 presumption that anything not explicitly transferred by a native group remains as their property for their benefit. The Idaho 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.

13


who suffered wrongs and deserve redress, certainly provides ample authority for the

State to allocate its tax revenues to OHA to use for all persons of Hawaiian ancestry,

and any challenge to this distribution should not be considered by this or any other

court because it raises a non justiciable political question. 6

v. THE HAWAII LEGISLATURE'S GENERAL FUND APPROPRIATIONS TO THE OFFICE OF HA WAllAN AFFAmS HAVE BEEN UNDERTAKEN PURSUANT TO THE STATE'S UNDERSTANDING OF ITS RESPONSIBILITIES UNDER GOVERNING FEDERAL LAWS.

The delegates to Hawaii's 1978 Constitutional Convention were concerned that

none of the ceded land revenues were going directly to persons of Hawaiian ancestry,

despite the language in Section 5(f) of the 1959 Admission Act, Pub. L. 86-3, 73 Stat.

4, stating that one of the five purposes that these revenues should be used for was "the

betterment of the conditions of native Hawaiians. 1I See, e.g., Rice v. Cayetano, 146

6 Federal courts have traditionally upheld state programs designed to provide benefits for native communities within the state, utilizing the rationalbasis level of judicial review, so long as the state programs are compatible with the approach taken by the federal government. See, e.g., Washington v. Washington State Commercial Passenger Fishing Vessel Association, 443 U.S. 658 (1979)(utilizing rational basis review to reject arguments that state fishing regulations protecting Indian treaty rights violated equal protection laws); Peyote Way Church ofGodv. Thornburgh, 922 F.2d 1210 (5 th Cir. 1991)(utilizing rational basis review to uphold exempting Indian members of the Native American

. Church from Texas's peyote laws); Squaxin Island Tribe v. Washington, 731 F.2d 715 (9th Cir. 1986)(utilizing rational basis review to uphold agreements that gave Indian vendors of alcohol more favorable treatment than non-Indians).

14


F.3d 1075, 1077 (9th Cir. 1999), rev 'd on other grounds, 528 U.S. 495 (2000)(ltAs it

happens, no benefits actually went to native Hawaiians until the state constitution was

amended in 1978 to establish the Office of Hawaiian Affairs. It). The delegates were

also concerned that the definition of It native Hawaiian" in the Admission Act and the

Hawaiian Homes Commission Act, 1920, sec. 201(7), 42 Stat. 108 (1921), which

defined this term as "any descendent of not less than one-half part of the blood of the

races inhabiting the Hawaiian Islands previous to 1778," was unduly limiting and did

not reflect the recent federallaws that had included all persons of Hawaiian ancestry

in federal programs.

The main committee report of the Committee on Hawaiian Affairs

discussed the divisiveness of the blood quantum issue and recommended that

the time has come to include all native Hawaiians, regardless of blood quantum, for the number of descendants is increasing. This qualification has proved to be a factor in dividing the Hawaiian community - mothers and fathers from their children, cousins from cousins, friends from friends. Moreover, the removal of a blood qualification will be in line with the current policy of the federal government to extend benefits for Hawaiians to all Hawaiians regardless of blood quantum.

Standing Committee Rpt. No. 59, Committee on Hawaiian Affairs, 1 PROCEEDINGS

OF THE CONSTITUTIONAL CONVENTION OF 1978 at 647 (1979). The empowerment of

. OHA to address concerns of all persons of Hawaiian ancestry was thus explicitly

15


designed to conform to "the current policy of the federal government. ,,7

During the deliberations of the Committee of the Whole on September 2, 1978,

Delegate Leon K. Sterling, Jr., who was the Vice-Chairperson of the Conunittee on

Hawaiian Affairs, explained to the other delegates that because "[t]he basic inter.est

of Congress, to rehabilitate the Hawaiian people, continues," Con~ess had set up "a

second trust in the Admission Act" (in addition to the Hawaiian Homeland Program),

but that "[r]ather than attempt to draft a second rehabilitation program, Congress

delegated the task to the state legislature." 2 PROCEEDINGS OF THE CONSTITUTIONAL

CONVENTION OF 1978 at 460 (1979). Delegate Sterling noted that the Hawaii

Legislature had considered a bill (H.B.· No. 1469) that would have established a

Native Hawaiian entity, but the bill was not then enacted because of budgetary

concerns. The Con Con was thus proposing the creation of OHA, Delegate Sterling

concluded, in order "to comply with the Admission Act," as well as to serve "as a

receptacle ... for any other possible benefits that may be coming to the Hawaiian

people. II Id. (emphasis added).

The Committee on Hawaiian Affairs anticipated that OHA would be receiving

7 This committee report concluded that "a rationale that may have, had legitimacy in 1920 has now become outmoded." ld. See also Committee of the Whole

. Report No. 13, which explains that OHA was to be "a public trust entity for the benefit of the people of Hawaiian ancestry," and that one of its goals was to "unite Hawaiians as a people." Id. at 1018.

16


"funds, land or other resources earmarked for or belong to native Hawaiians" and that

such "reparations money" "will probably be awarded to all native Hawaiians

regardless of blood quantum." Id. at 644. But until such a settlement is realized, and

because the Admission Act limited the revenues from the ceded lands to be used only

for the betterment of those Hawaiians with 50% or more native blood, the only way

to enable OHA to provide services to all Hawaiians has been for the Hawaii

Legislature to appropriate general-fund revenues to support programs for the less

than-50% Hawaiians.

The Legislature understood this arrangement and explained its general fund

appropriation in 1981 by noting fIrst that the revenues from the public land trust

could be used to benefIt 50%-Hawaiians only. "The Office of Hawaiian Affairs on

the other hand, has responsibilities for Hawaiians as well. The appropriation request

is, in fact, to pay for the 'other Hawaiians' share ofOHA's administrative costs - to

be matched by that agency's own income." House Standing Comm. Rpt. No. 204,

Comm. on Water, Land Use, Development and Hawaiian Affairs, 1981 Legislative

Sess., House J oumal1 026. In later years, these appropriations were frequently linked

directly to corresponding federal appropriations. In 1989, for instance, Conference

Committee Report No. 107 explained that the Legislature'S funding of the Papa Ola

Lokahi health program was directly linked to a comparable federal program:

17


Your Committee recognizes the need for OHA to address the health problems and health needs of Hawaiians by providing funds to create an organization known as "Papa Ola Lokahi" the purpose of which is to develop a Native Hav/aiian (no blood quantum) comprehensive health care master plan. Public Law 100-579 calls for an estimated $19,600,000 of federal funds to be expended over a four year period for a maj or Hawaiian health care program.

1989 Legislative Sess., House Journal 806-07. After Congress enacted the 1993

Apology Resolution, the Hawaii Legislature took additional action to promote the

"reconciliation" that Congress called for. In 1997, for instance, the Legislature

specifically referred to the Apology Resolution in Section 1 of its Act 329:

The legislature finds that the events of history relating to Hawaiian and Native Hawaiians, including those set forth in Public Law 103-150 (November 23, 1993), continue to contribute to a deep sense of injustice among many Native Hawaiians and others. The legislature recognizes that the lasting reconciliation so desired by all people of Hawaii is possible only if it fairly acknowledges the past while moving into Hawaii's future.

The Hawaii Legislature's support for OHA through its general fund appropriations

has thus been designed to fulfill its trust obligations, which have been delegated to

the State through numerous federal statutes.

VI. COURTS HAVE RULED REPEATEDLY THAT THE POLITICAL OUESTION DOCTRINE BARS .nJDICIAL SCRUTINY OF THE RELATIONSHIP BETWEEN NATIVE HAWAllANS AND THE UNITED STATES.

This Honorable Court recognized early in this litigation that the political

18


question doctrine was central to Plaintiffs' claim when it explained that "whether

native Hawaiians are a 'tribe' ... may raise a political rather than a purely legal

question." Arakaki v. Cayetano, 198 F.Supp.2d 1165, 1178 n.11 (D.Hawai'i 2002).

But then, in its Order of May 8, 2002, slip op. at 33, the Court ruled that the OHA

Defendants had failed to meet their "burden of establishing that Plaintiffs present a

nonjusticiable question requiring dismissal." In reaching this conclusion, the Court

focused on the contention that the political question doctrine barred any court from

determining whether a native group constituted an "Indian tribe," based in part on the

contention of the OHA Defendants that the rational-basis level of judicial review

should apply to programs for native groups even if they are not formally recognized

as "tribes." Slip Opt at 31 (citing Alaska Chapter, Assoc. Gen. Contractors of Amer.,

Inc. v. Pierce, 694 F.2d 1162, 1168 n. 8 (9th Cir. 1982), and noting that the Pierce

opinion "applied the Morton [v. Mancari, 417 U.S. 535 (1974),] analysis broadly,

employing a rational basis test to benefits being provided to 'any person recognized

as being an Indian or Alaskan Native by a tribe, the Government, or any state. ").

The contention of the OHA Defendants in the present Motion is not, however,

that Plaintiffs' Complaint must be dismissed because the determination of whether

Native Hawaiians should be viewed as the equivalent of an "Indian tribe" is a

nonjusticiable political question. Rather, the contention of the OHA Defendants is

19


that Plaintiffs' Complaint must be dismissed because the question of how the political

branches fulfill the trust obligation owed by the United States toward any native

group that the political branches recognize or acknowledge as native, aboriginal, or

indigenous and as having a trust relationship with the United States (whether or not

the members of the group are formally constituted as a "tribe") is a nonjusticiable

political question.8

The OHA Defendants understand that Congress is not completely free to

designate any group whatsoever as "native" and give it that status under U.S. law.

See, e.g., United States v. Sandoval, 231 U.S. 28, 46 (1913)(explaining that Congress

is not free to "bring a community or body of people within the range of this power by

arbitrarily calling them an Indian tribe," but also acknowledging that with respect to

"distinctly Indian communities the questions whether, to what extent, and for what

time they shall be recognized and dealt with as dependent tribes requiring the

8 FELIX COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 5-6 (Rennard Strickland et al eds. 2d ed. 1982) explains why the focus on "tribes" can be misleading. Congress has consolidated disparate groups to create tribes and has sometimes divided ethnologically-related groups into a number of tribes or "bands." Furthermore, a study of federal statutes "reveals that tribes cannot be neatly divided into 'recognized' and 'nonrecognized' tribes for all purposes; rather, a . tribe may' exist' for some purposes but not for others." Id. at 7. See also Joint Tribal Council o/the Passamaquoddy Tribe v. Morton, 528 F.2d 370,378 (1st Cir .

. 1975)("Under such circumstances, the absence of specific federal recognition in and of itself provides little basis for concluding that the Passamaquoddies are not a 'tribe' within the Act. It)

20


guardianship and protection of the United States are to be determined by Congress,

and not by the courts." (Emphasis added.))

FELIX COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 5 (RelUlard Strickland

et al eds. 2nd ed. 1982) says that "[t]he Supreme Court has never refined the

'arbitrariness' standard referred to in Sandoval," and then explains that II [i]n light of

the deference given to congressional and executive determinations in this area,

however, it would appear that the only practical limitations upon congressional and

executive decisions as to tribal existence are the broad requirements that (a) the group

have some ancestors who lived in what is now the United States before discov.ery by

Europeans, and (b) the group be a 'people distinct from others. '" (quoting from The

Kansas Indians, 72 U.S. (5 Wall.) 737, 755 (1867)). See also COHEN, ide at 41-42:

"The [Supreme] Court has never held unconstitutional an action by which Congress

or the Executive has recognized or established Indian country."

The term "Indian" was never a term used by the natives themselves, but was

used mistakenly by Europeans to describe the natives they met and was also used, for

instance, by Captain James Cook and his crew to describe the natives they met in

Hawaii and on other Pacific Islands. See S. Rep. No.1 07-66 at 25 n.46; Jared Sparks,

Memoirs of the Life and Travels of John Ledyard (London 1828), and Colonel C.

Field, Britain's Sea Soldiers (Liverpool: Lyceum Press, 1924)(both quoting written

21


descriptions by John Ledyard, a member of Cook's crew, who characterized the

natives who fought with and killed Cook as "Indians"). It is also significant that the

Sandoval opinion explains that Congress can exercise power to regulate relations

with natives under the Indian Commerce Clause, Article I, Sec. 8, Clause 3, even with

regard to natives in "territory subsequently acquired," 231 U.S. at 46, and even with

regard to natives that may have become U.S. citizens. Id. at 48.

The OHA Defendants submit that no nonfrivolous argument can be presen"ted

that Native Hawaiians are not the native peoples of the Hawaiian Islands or that they

have not had a history of interaction with the United States comparable to that

experienced by other Native Americans.- See, e.g., this Court's historical summary

inArakakiv. Cayetano, 198 F.Supp.2d 1165, 1170-71 (D.Hawaii2002)(explaining

that "Hawaiians had their ovvn cultural and political structure" before the islands were

first visited by Europeans beginning in 1778 and that the U.S. Congress recognized

the need to assist persons of Hawaiian ancestry as early as 1921 when it enacted the

Hawaiian Homes Commission Act, 1921,42 Stat. 108).9

9 In a 1997 opinion letter written by the Interior Department in its role as administrating agency for the Native American Graves Protection and Repatriation Act, 25 U.S.C. sees. 3001-13, the Department explained that "indigenous should not be interpreted to exclude descendants of peoples, tribes, or cultures that may have migrated to the United States in prehistoric times, or, as in the case of -Hawaii, in historic times, prior to European exploration." Cited as reflecting the current Interior Department position in Bonnichsen v. United States, No. 02-35994, Ninth Circuit, Reply Brief of Federal Appellants (July 2, 2003),2003 WL

22


In its recent November 21, 2003 Order, this Court declined to address the

political question doctrine raised by the State Council of Hawaiian Homestead

Associations (SCHHA) as "premature" in light of the schedule of motions, but

suggested that it could be raised by another party in a subsequent round. Slip Ope at

7. During the oral argument on November 17, the Court explained to Plaintiffs'

counsel that the Court's earlier ruling on the political question doctrine was based on

the record that existed at that time, and that the issue might well require a different

response now that the record has evolved.

As this Honorable Court has previously explained, the political question

doctrine calls for a court to dismiss an action "when one of the following is

inextricable from the case":

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

22593882 at *22.

23


Order of May 8, 2002, slip Ope at 29 (quotingfrom Baker V. Carr, 369 U.S. 186, 217

(1962)). Several of these factors are relevant to the present Motion. The Constitution

delegates to the political branches of our government the responsibility to deal with

foreign affairs and relations with natives, and the courts have recognized this

unreviewable responsibility repeatedly, as explained below. Although the

Department of Interior articulated criteria in 1978 regulating federal recognition for

natives in the continental United States (which apply" only to those American Indian

groups indigenous to the continental United States"), see 25 C.F.R. sec. 83.3(a)

("Procedures for Establishing that an American Indian Group Exists as an Indian

Tribe"), no universally-applicable judicially discoverable or manageable standards

governing the wide variety of native groups in the United States have ever been

articulated by the political branches to allow the courts to evaluate whether these

standards are being applied fairly, and courts have deferred to the decisions of the

political departments, even if they favor some native groups over others. Nonjudicial

policy decisions must be made by the political branches to determine how to

implement the trust duties owed to native groups, and a judicial review of such

decisions would be an action of disrespect toward the political branches and also

could lead to embarrassment because of the multifarious, and possibly conflicting,

pronouncements on the issues.

24


In fact, the political question doctrine has been utilized repeatedly by state and

federal courts to deflect judicial challenges by Native Hawaiians seeking to pursue

their claims against the state and federal governments. Examples of decisions

whereby courts have characterized claims by Native Hawaiians as nonjusticiable

political questions include Territory v. Kapiolani Estate, 18 Hawaii 640

(1908)(ruling that a claim that the Territory of Hawaii had not received good title to

the ceded lands was a nonjusticiable political question); Territory v. Pauahi, 18

Hawaii 649 (1908)(same); Price v. State of Hawai'i, 764 F.2d 623, 628 (9th Cir.

1985), cert. denied, 474 U.S. lOSS (1986)(althoughnotexplicitlyutilizingthewords

"nonjusticiable" or "political question doctrine," nonetheless rejecting the claims

brought by the Native Hawaiian claimants because courts must defer to the political

branches when addressing such claims: "In the absence of explicit governing statutes

or regulations, we will not intrude on the traditionally executive or legislative

prerogative of recognizing a tribe's existence."); Trustees of the Office of Hawaiian

Affairs v. Yamasaki, 69 Hawaii 1S4, 737 P.2d 446 (1987)(ruling that OHA's efforts

to obtain the revenues from the ceded lands owed to it under state statutes raised a

nonjusticiable political question); Office of Hawaiian Affairs v. State, 96 Hawaii 388,

31 P.3d 901 (2001)(same); Kahawaiolaa v. Norton, 222 F.Supp.2d 1213 (D.Hawaii

2002), appeal pending, 9th Cir. No. 02-1739 (ruling that the claim by Native

2S


Hawaiians that the federal law excluding natives in Hawaii from obtaining federal

recognition violated the Equal Protection Clause of the Fourteenth Amendment raised

a nonjusticiable political question); Office of Hawaiian Affairs v. Housing and

Community Development Corporation of Hawaii, Civil No. 94-4207 (SSM)(lst

Cir.Ct. Hawaii, Dec. 5, 2002), appeal pending, No. 25570 Hawaii Supreme Court

(ruling that the claim brought by OHA and other Hawaiians that the ceded lands

should not be sold or transferred until the claims of the Native Hawaiian people are

resolved raised a nonjusticiable political question).

In light of these repeated rulings that claims by Native Hawaiians to their

resources and rights are nonjusticiable under the political question doctrine, it would

be truly ironic and totally illogical if the political question doctrine did not also block

challenges brought by non-Hawaiians to the few programs that have been established

by Congress and the State of Hawaii in recognition of the still-festering claims of the

Native Hawaiian people.

In Kahawaiolaa v. Norton, 222 F.Supp.2d 1213 (D.Hawaii 2002), appeal

pending, 9th Cir. No. 02-1739, 10 the Honorable Alan C. Kay ruled that a claim brought

10 On appeal, Secretary of the Interior Gale A. Norton argues that n[t]he

political decision of whether to recognize Native Hawaiians as a federal Indian . tribe with a govemment-to-government relationship with the United States is a quintessentially nonjusticiable political question." Kahawaiolaa v. Norton, No. 02-17239, Ninth Circuit, Brief for the Appellee (May 15,2003),2003 WL

26


by a group of Native Hawaiians challenging the exclusion of Native Hawaiians from

the acknowledgment regulations established by the Congress and the Department of

Interior constituted a non justiciable political question because Congress has

unreviewable authority and responsibility to decide how to deal with the indigenous

people within U.S. borders. "The decision to recognize (or not recognize) an Indian

tribe is generally regarded as a political question." 222 F.Supp.2d at 1218 (citing

Baker v. Carr, 369 U.S. 186,215-17 (1962); Miami Nation v. u.s. Dept. O/Interior,

255 F .3d 342,347 (7th Cir. 2001); and Western Shoshone Business Council v. Babbitt,

1 F.3d 1052, 1057 (10th Cir. 1993)). Judge Kay recognized that Native Hawaiians are

"people indigenous to the United States," ide at 1220 n.9 (quoting from FELIX S.

COHEN'S HANDBOOK OF FEDERAL INDIAN LA W 797-98 (Rennard Strickland et ale eds.

2nd ed. 1982)), but concluded that it was up to Congress to determine "the full extent

of the trust obligation owed by the United States to Native Hawaiians and the manner

of its fulfillment." Id. Judge Kay thus concluded that the political question doctrine

precluded courts from addressing much more than the mere question of whether

Native Hawaiians are or are not a "tribe." He concluded that the entire manner in

which the United States defmes its obligation to Native Hawaiians and "the manner

of its fulfillment" is a nonjusticiable political question.

22670058 at *21.

27


If the Kahawaiolaa decision is correct, then it must inevitably follow that the

present· case must also be dismissed as a nonjusticiable political question. The

present Plaintiffs are challenging state legislative expenditures authorized by the U.S.

Congress and designed to fulfill, at least in part, lithe trust obligation owed by the

United States to Native Hawaiians. II If it is a nonjusticiable political question to

challenge the failure of Congress to grant rights to and establish programs for Native

Hawaiians, then it must logically also be a nonjusticiable political question to

challenge those expenditures that have been authorized by Congress and appropriated

by the State pursuant to Congressional delegation and authorization.

VII. THE POLITICAL BRANCHES OF THE GOVERNMENT HAVE THE RESPONSmILITY TO DETERMINE RELATIONSHIPS BETWEEN THE UNITED STATES AND THE NATIVE PEOPLES LIVING IN THE UNITED STATES. AND JUDICIAL REVIEW OF SUCH DETERMINATIONS IS PRECLUDED BY THE POLITICAL OUESTION DOCTRINE.

The decision in Kahawaiolaa, supra, is fully consistent with a long line of

federal court decisions deferring to the political branches with regard to the

recognition of or establishment of a "special relationship" with a native group and the

manner in which the government's trust responsibilities toward the native group are

articulated and implemented. '" [T]he action of the federal government in recognizing

. or failing to recognize a tribe has traditionally been held to be a political one not

28


subject to judicial review.'" Miami Nation o/Indians o/Indiana, Inc. v. U.S. Dept.

o/Interior, 255 F.3d 342,347 (7th Cir. 2001)(quotingfrom WILLIAMC. CANBY, JR.,

AMERICAN INDIAN LAW IN A NUTSHELL 5 (3d ed. 1998)); United States v. Wright, 53

F.2d 300,306 (4th Cir. 1931)("the principle is well settled that whether the protective

and regulatory power of Congress shall be extended over an Indian community is a

political question with the determination of which the courts have no power to

interfere" (citing United States v. Holliday, 70 U.S. (3 Wall.) 407,419 (1865); Tiger

v. Western Inv. Co., 221 U.S. 286 (1911); United States v. Sandoval, 231 U.S. 28

(1913); Sisseton & Wahpeton Bands o/Sioux Indians v. United States, 277 U.S. 424

(1928)). See also Alaska v. Native Village o/Venetie Tribal Government, 522 U.S.

520, 534 (1998) (interpreting a statute to say that the lands allocated by Congress to

the Alaska Natives do not have the status of "Indian lands," but also acknowledging

that Congress has the power to alter or amend the statute and that the ultimate

determination of this issue is exclusively and unreviewably in the hands of the

Congress: "Whether the concept of Indian country should be modified is entirely for

Congress" (emphasis added)); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329,

343 (1998)("Congress possesses plenary power over Indian rights, including the

power to modify or eliminate tribal rights").

The Ninth Circuit's decision in Price v. State o/Hawaii, 764 F .2d 623, 628 (9th

29


eire 1985), rejected a claim by a Native Hawaiian group to tribal status ruling clearly

that such a determination is to be made by the political branches of the federal

government, not by the courts. In reaching this conclusion, the Court cited the

traditional sources of authority for this conclusion:

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 o/Federal Indian Law 4-5 (1982).

764 F.2d at 628.

The Holliday decision is particularly instructive, because the Supreme Court

ruled explicitly that "it is the rule of this court to follow the action of the execu#ve

and other political departments of the government, whose more special duty it is to

determine such affairs" with regard to recognizing native groups and determining

their rights. 70 U.S. at 419. "If by them [the political branches] those Indians are

recognized as a tribe, this court must do the same." Id. Similarly, the Court said it

must deter to congressional enactments governing all Indian groups, even if they

effect the rights of Indians off their reservations. Id. C'This power residing in

Congress, that body is necessarily supreme in its exercise. ") In The Kansas Indians,

72 U.S. (5 Wall.) 737 (1867), the Supreme Court used just as strong language

. deferring to the decisions of the political branches of the federal government, and

30


rejecting the claims of the new State of Kansas, even with regard to natives that had

migrated from elsewhere into Kansas. 11

In Western Shoshone Business Councilv. Babbitt, 1 F.3d 1052, 1057 (lOthCir.

1993), the Court explained that the judiciary's deference "to executive and legislative

determinations of tribal recognition ... was originally grounded in the executive's

exclusive power to govern relations with foreign governments" and has expanded to

cover also congressional enactments because of "broad congressional power over

Indian affairs." The opinion in Miami Nation o/Indians o/Indiana, Inc. v. U.S. Dept.

o/Interior, 255 F.3d 342 (7th Cir. 2001), explained further that recognition of native

groups was originally a presidential decision, like a decision to recognize a foreign

nation, but that Congress and the Interior Department have undertaken a increasingly

active role to bring some regularity to this process. The Miami Nation decision

explains that once "judicially manageable standards" have been promulgated, the

courts can playa role in seeing whether they have been complied with, but the courts

still have no role in deciding what the criteria should be, or how different native

11 FELIX COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 5 n.17 (Rennard

Strickland et al eds. 2d ed. 1982) points out that "Congress also has recognized . tribes which have migrated into the United States" (citing Act of Mar. 3, 1891, ch. 561, sec. 15, 26 Stat. 1101 (codified at 2S U.S.C. sec. 495)(establishing a reservation for the Metlakatla Indians)).

31


groups should be treated. Id at 349.12

vm. CONCLUSION.

The U.S. Congress has been crystal clear, in legislation enacted after Rice

v. Cayetano, 528 U. S. 495 (2000), that "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" and that "the political status of Native Hawaiians is comparable to that

of American Indians and Alaska Natives." Hawaiian Homelands Homeownership Act

of 2000, sec. 202(13), Pub. L. No. 106-568 (2000)(Title IT of the Omnibus Indian

Advancement Act), 114 Stat. 2868 (2000); Native Hawaiian Education Act, Pub. L.,

107-110, Sec. 7212(12)(B) and (D)(Feb. 8,2002). These statutes also explain that

"Congress has also delegated broad authority to administer a portion of the Federal

trust responsibility to the State of Hawaii. " Id., sec. 7212(12)(C). The United States

and the State of Hawaii are presently undergoing a "reconciliation" process with the

Native Hawaiian People pursuant to the instructions of Congress in the 1993 Apology

12 This view is consistent with the analysis in FELIX COHEN'S HANDBOOK OF

FEDERAL INDIAN LA W 3 and n. 4 (Rennard Strickland et al eds. 2nd ed. 1982), which says that U[t]he 'political question' doctrine is not likely to be used today to close off all judicial review of congressional action in Indian affairs, but that .. [t]or

. most current purposes, judicial deference to findings of tribal existence is still mandated by the extensive nature of congressional power in the field."

32


•

Resolution, Pub. L. 103-150, and the Hawaii Legislature's general-fund allocations

to the Office of Hawaiian Affairs are made pursuant to Congressional authorization.

It would therefore be altogether inappropriate, and a violation of the political question

doctrine, for this Honorable Court to question the constitutionality of these legislative

allocations or instructions and decisions of the U.S. Congress regarding this matter.

Because this Court is barred from addressing the central issue raised by Plaintiffs,

Plaintiffs' Complaint in the present case must be dismissed. 13


<6v-vP ~ S~Y~. BRODER JON M. VAN DYKE N.1ELODY MacKENZIE Attorneys for the OHA Defendants

13 OHA is mindful that this Honorable Court has segmented this proceeding so that arguments addressing the proper standard of review are not to be heard until a

. subsequent round; this motion does not address the substance of that issue, but rather solely the preliminary issue of justiciability.

33


•

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAW All

EARL F. ARAKAKI, et al, ) CIVIL NO. 02-00139 SOM-KSC ) (Declaratory Judgment)

Plaintiffs, ) ) CERTIFICATE OF CO:tv1PLIANCE

vs. ) ) ) )

LINDA LINGLE, et al., ) )

Defenda.7lts. ) )

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that the foregoing memorandum does

not exceed 9,000 words.


~~~.~ SHERRT. BRODER JON M. VAN DYKE IvfELODY MacKENZIE Attorneys for the OHA Defendants


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