Nelson v. Hawaiian Homes Comm'n

• Decision Date: 09 May 2012
• Docket Number: No. SCWC–30110.,SCWC–30110.
• Citation: 127 Hawai'i 185,277 P.3d 279
• Parties: Richard NELSON III, Kaliko Chun, James Akiona, Sr., Sherilyn Adams, Kelii Ioane, Jr., and Charles Aipia (deceased), Respondents/Plaintiffs/Appellants, v. HAWAIIAN HOMES COMMISSION, The Department Of Hawaiian Home Lands, Alapaki Nahale-a, in his official capacity as Chair of the Hawaiian Homes Commission, Imaikalani P. Aiu, Perry Artates, Leimana K. Damate, Jeremy Kamakaneoaloha Hopkins, Michael P. Kahikina, Ian Lee Loy, Henry K. Tancayo, and Renwick V.I. Tassill, in their official capacities as members of the Hawaiian Homes Commission, Respondents/Defendants/Appellees, and Kalbert K. Young, in his official capacity as the State Director of Finance, and the State of Hawai‘i, Petitioners/Defendants/Appellees.
• Court: Hawaii Supreme Court

127 Hawai'i 185

277 P.3d 279

Richard NELSON III, Kaliko Chun, James Akiona, Sr., Sherilyn Adams, Kelii Ioane, Jr., and Charles Aipia (deceased), Respondents/Plaintiffs/Appellants,

v.HAWAIIAN HOMES COMMISSION, The Department Of Hawaiian Home Lands, Alapaki Nahale-a, in his official capacity as Chair of the Hawaiian Homes Commission, Imaikalani P. Aiu, Perry Artates, Leimana K. Damate, Jeremy Kamakaneoaloha Hopkins, Michael P. Kahikina, Ian Lee Loy, Henry K. Tancayo, and Renwick V.I. Tassill, in their official capacities as members of the Hawaiian Homes Commission,¹ Respondents/Defendants/Appellees,andKalbert K. Young, in his official capacity as the State Director of Finance, and the State of Hawai‘i, Petitioners/Defendants/Appellees.

No. SCWC–30110.

Supreme Court of Hawai‘i.

May 9, 2012.

David M. Louie, Attorney General, and Girard D. Lau and Charleen M. Aina, Deputy Attorneys General, for Petitioners/Defendants–Appellees.

David Kimo Frankel and Alan T. Murakami (Native Hawaiian Legal Corporation), for Respondents/Plaintiffs–Appellants.

RECKTENWALD, C.J., NAKAYAMA, ACOBA, DUFFY, and McKENNA, JJ.

Opinion of the Court by McKENNA, J.

I. Introduction

We are presented with one question:

Does the political question doctrine bar Hawaiian Homes Commission Act (HHCA) beneficiaries from using Haw. Const. Article XII, Section 1's "sufficient sums" provision to demand more legislative funding of the Department of Hawaiian Home lands (DHHL), when that provision provides no guidance at all as to how quickly homesteads must be developed?

At issue is the interpretation of Article XII, Section 1 of the Hawai‘i State Constitution, which now provides:

Anything in this constitution to the contrary notwithstanding, the Hawaiian Homes Commission Act, 1920, enacted by the Congress, as the same has been or may be amended prior to the admission of the State, is hereby adopted as a law of the State, subject to amendment or repeal by the legislature; provided that if and to the extent that the United States shall so require, such law shall be subject to amendment or repeal only with the consent of the United States and in no other manner; provided further that if the United States shall have been provided or shall provide that particular provisions or types of provisions of such Act may be amended in the manner required for ordinary state legislation, such provisions or types of provisions may be so amended. The proceeds and income from Hawaiian home lands shall be used only in accordance with the terms and spirit of such Act. The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law.

Thirty percent of the state receipts derived from the leasing of cultivated sugarcane lands under any provision of law or from water licenses shall be transferred to the native Hawaiian rehabilitation fund, section 213 of the Hawaiian Homes Commission Act, 1920, for the purposes enumerated in that section. Thirty percent of the state receipts derived from the leasing of lands cultivated as sugarcane lands on the effective date of this section shall continue to be so transferred to the native Hawaiian rehabilitation fund whenever such lands are sold, developed, leased, utilized, transferred, set aside or otherwise disposed of for purposes other than the cultivation of sugarcane. There shall be no ceiling established for the aggregate amount transferred into the native Hawaiian rehabilitation fund.

We hold that the 1978 Constitutional Convention history provides judicially discoverable and manageable standards, as well as initial policy determinations, as to what constitutes "sufficient sums" for DHHL's administrative and operating expenses only; therefore, judicial determination of "sufficient sums" as to that purpose under Article XII, Section 1 of the Hawai‘i State Constitution is not barred as a nonjusticiable political question, and the ICA did not err in so holding. However, Article XII, Section 1 and the 1978 Constitutional Convention do not shed light on what would constitute "sufficient sums" for (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; and (3) rehabilitation projects. Therefore, the political question doctrine bars judicial determination of what would constitute "sufficient sums" for those purposes, and the ICA erred in concluding otherwise.

II. Background

A. The Hawaiian Homes Commission Act; Article XII, Section 1 of the Hawai‘i Constitution; and the 1978 Constitutional Convention

Concerned about the condition of the native Hawaiian people, Congress enacted the Hawaiian Homes Commission Act ("HHCA") in 1921 to set aside about 203,500 acres of ceded lands for native Hawaiian homesteads. Hawaiian Homes Commission Act, 1920, 67 Pub L. 34, 42 Stat. 108 (1921); see also Rice v. Cayetano, 528 U.S. 495, 507, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). Prince Jonah Kuhio Kalanianaole, Hawai‘i's congressional delegate at the time, was instrumental in shepherding the Act through Congress, arguing that native Hawaiians "were entitled to a share of the lands that had been ‘ceded’ from the Republic of Hawaii to the United States in 1898 because they had not obtained their fair share of the lands distributed during the Mahele." Jon Van Dyke, Who Owns the Crown Lands of Hawai‘i? 239–40 (2008). Prince Kuhio spoke of the native Hawaiians' right to the land as follows: "Perhaps we have a legal right, certainly we have a moral right, to ask that these lands be set aside. We are not asking that what you are to do be in the nature of a largesse or as a grant, but as a matter of justice—belated justice." Id. at 241.

Under the Act, native Hawaiians (those of fifty percent blood quantum or more) could obtain 99–year leases for a dollar a year for residential, pastoral, and agricultural lots. See Native Hawaiian Rights Handbook 43 (Melody Kapilialoha MacKenzie ed., 1991). One purpose of the HHCA was to "save" the native Hawaiian race by "tak[ing] [native Hawaiians] back to the lands and giv[ing] them the mode of living that their ancestors were accustomed to and in that way rehabilitate them." Ahuna v. Dept. of Hawaiian Home Lands, 64 Haw. 327, 336 n. 10, 640 P.2d 1161, 1167 n. 10 (1982) (quoting Senator John H. Wise, H.R.Rep. No. 839, 66th Cong., 2d Sess. 4 (1920)).

The Act also appeased Hawai‘i's large-scale agricultural interests at the time. Hundreds of thousands of acres of prime agricultural land leased to these sugar and ranching interests were set to expire between 1917 and 1921, and the passage of the Act prevented the return of those lands to the pool of land available for homesteading. See Native Hawaiian Rights Handbook 45. In fact, the Act specifically designated cultivated cane lands as unavailable for Hawaiian homesteads. See id. at 17 (citing HHCA § 203). The lands remaining for Hawaiian homesteads were "arid and of marginal value," and many were "actually lava rock." Id. Most of the land was in "remote locations," on the "dry, leeward side of each island, generally with poor soils and rough terrain, more difficult and costly to develop," and without water—parcels famously described as "lands that a goat couldn't live on." Van Dyke, Who Owns the Crown Lands of Hawai‘i? 248. Diversified agriculture did not succeed on these lands; consequently, the homestead program focused its attention on providing houselots and some pasture lands. See Native Hawaiian Rights Handbook 17–18.

In 1959, Hawai‘i entered the union. As a condition of admission to statehood, the federal government conveyed the 200,000+ acres of home lands to the State, and the State was required to adopt the HHCA under its constitution. See Haw. Const. Art. XII, § 2. Through Section 2, the State of Hawai‘i "accepted specific trust obligations relating to the management of the Hawaiian home lands imposed by the federal government." Ahuna, 64 Haw. at 337, 640 P.2d at 1168.

Before the Constitutional Convention of 1978, the last sentence of the first paragraph of Article XI, Section 1 of the Hawai‘i Constitution, which related to how the State should fund DHHL to fulfill its trust obligations, read as follows:

The proceeds and income from Hawaiian home lands shall be used only in accordance with the terms of said Act, and the legislature may, from time to time, make additional sums available for the purposes of said Act by appropriating the same in the manner provided by law.

(emphasis added). Accordingly, the Legislature, prior to 1978, had discretion to fund (or not fund) DHHL.

Unfortunately, the State was not much more successful than the federal government in fulfilling its constitutional duties. See Kalima v. State, 111 Hawai‘i 84, 88, 137 P.3d 990, 994 (2006). In 1979, the Hawai‘i electorate voted to amend Article XI, Section 1, renumbered as Article XII, Section 1, to replace the last sentence of the first paragraph, quoted above, with the following language:

The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3), and (4) herein, by

...