Anosh Yaqoob, JD 2008

On April 3, 2008, attorney H. William Burgess filed a complaint in the United States District Court for the District of Hawai‘i on behalf of several plaintiffs including James I. Kuroiwa, Earl F. Arakaki, and former Honolulu Advertiser owner Thurston Twigg-Smith, against Governor Linda Lingle along with a number of other state officials including Trustee Haunani Apoliona, Chairperson of the Office of Hawaiian Affairs (OHA), claiming the State of Hawai‘i is breaching its fiduciary duties to “non-ethnic Hawaiians” by not providing all Hawai‘i residents revenues derived from the ceded lands trust created under § 5(f) of Hawai‘i’s Admission Act.

The plaintiffs in Kuroiwa allege that by disbursing monies out of the Public Lands Trust to OHA, the State, as trustee of the ceded lands trust, has breached its fiduciary duty to all of Hawai‘i’s residents by not having made any separate distributions to other purported “non-ethnic Hawaiians.” The plaintiffs’ breach of trust claim is premised on a doctrine in Trusts and Estates law which maintains that trustees administering trust assets for their beneficiaries have a duty of impartiality to treat multiple beneficiaries equally as well as a duty not to comply with illegal trust terms.

As an outgrowth of their initial breach of trust claim, the plaintiffs also take issue with OHA’s specific expenditure on federal lobbying efforts in the U.S. Congress for passage of the Native Hawaiian Reorganization Act (popularly known as the “Akaka Bill”). The plaintiffs maintain that, as beneficiaries of the ceded lands trust, they should be entitled to monies for lobbying efforts against passage of the Akaka Bill. The plaintiffs’ complaint mounts a similar attack on the now-defunct settlement agreement between OHA and the State for breach of trust, for not including the purported “non-ethnic Hawaiians” as parties to the settlement agreement. Finally, the plaintiffs take issue with OHA’s expenditures on the Kau Inoa effort to create a Native Hawaiian registry, claiming that they had applied to register themselves with Kau Inoa and were denied such registration. The complaint remains unclear regarding how this failed effort at registration with Kau Inoa is a legal claim requiring relief from the courts.

Ultimately, the plaintiffs are seeking an injunction, asking the court to stop OHA from expending any monies on either federal lobbying efforts directed at passage of the Akaka Bill or the Kau Inoa registration effort. The plaintiffs further ask the court for a declaratory judgment deeming § 5(f) of the Admission Act unconstitutional under the Equal Protection Clause of the Fifth Amendment to the United States Constitution.

In a statement to the Honolulu Advertiser appearing on April 5, 2008, OHA Trustee and Chair Haunani Apoliona explained that “we will defend OHA’s constitutional and statutory rights for those we serve now and for the benefit of future generations of beneficiaries.” (“Lawsuit Targets OHA Funding,” Gordon Y.K. Pang). The Honolulu Advertiser’s coverage summarizes plaintiff’s claims, and includes Attorney General Mark Bennett’s opinion expressing confidence that the lawsuit will be unsuccessful—in the same way that many similar legal challenges to OHA’s mission and activities have failed. Attorney General Bennett also commented on the plaintiffs’ standing to bring the lawsuit saying, “the court said that in order to challenge the constitutionality of the Admissions Act, plaintiffs have to be able to state a claim against the United States who is a necessary party to any such claim, that plaintiffs were unable to state a claim against the United States, and thus they could not bring that lawsuit.”

OHA’s website expresses regret that it will again have to expend resources, time, and energy on defending another lawsuit calling into question OHA’s activities and its mission. OHA’s website provides further comment from Trustee Apoliona, who expressed regret at the lawsuit: “It’s the same players filing the lawsuit and the same theory that’s been rejected time and again by the Hawai‘i courts and by the 9th Circuit Court of Appeals…but we have to defend it, because number one they are asking for a court order to immediately shut OHA down. Even if they don’t prevail with the request for an injunction, they want the courts to close OHA and this means the many programs we fund will also be shut down. That will hurt Hawaiians and all of Hawai‘i,”

Similar lawsuits against the Office of Hawaiian Affairs, in many cases by these same plaintiffs, thus far have been largely unsuccessful. The nature of this lawsuit is similar, if not identical, to the 2002 lawsuit, Arakaki v. Lingle, which was dismissed due to the plaintiffs’ lack of having joined the United States as a necessary party to the lawsuit.

As this issue of Ka He‘e was going to press, Federal Judge J. Michael Seabright dismissed the plaintiffs' complaint. A more in-depth analysis of the dismissal will appear in the next issue of Ka He‘e.