A Standard for Permanent Injunctions (oh, and the State can't Alienate Ceded Lands yet).

(HSC January 31, 2008)

Editor’s Note.
Everything about this case is big. The litigation took years, the parties include State agencies, public figures, and an entire people. It even gives us a much-needed standard for permanent injunctions. Naturally, the opinion itself is big (97 pages long). I cannot possibly thoroughly examine the issues here without spending too much time and webspace on a single case. I’ve read through it and presented what I think are the most interesting issues and I do not represent this summary as a complete report of the OHA v. HCDCH.

Background. The Housing and Community Development Corporation of Hawai‘i (HDCDH) and the State attempted to transfer various lands on Maui and the Big Island for the purpose of building residential housing. In 1995 a slew of plaintiffs—OHA and a group of individuals—sought to enjoin the State from alienating the lands because the lands were ceded lands part of the public lands trust and could not be disposed of until claims by native Hawaiians had been settled in the political process. In the alternative, the plaintiffs sought declaratory relief that the State could not authorize the alienation of these lands because it would limit the claims of native Hawaiians to the ceded lands. The circuit court ruled for the State.

The Apology Resolution and Similar Pronouncements are “laws.” The HSC focused primarily on a joint resolution by Congress. This Apology Resolution acknowledged that native Hawaiians did not consent to the taking of their lands by the US government the 19th century. Pub. Law No. 103-150. The plaintiffs argued that the Apology Resolution essentially clouded the title of the ceded lands and thus the State cannot easily transfer or transfer the at all to a third party until the claims of native Hawaiians have been settled. The HSC treated the Apology Resolution as a statute subject to the same canons of statutory construction because it has emerged from legislative deliberations and proceedings just like other statutes. Ann Arbor R. Co. v. United States, 281 U.S. 658, 666 (1930). Turning to its plain language, the HSC concluded that the Apology Resolution does not require the turning over of the ceded lands to native Hawaiians, but rather recognizes that the native Hawaiians have unrelinquished claims to the ceded lands. There is no conveyance of the lands taking place in the Apology Resolution. The HSC also noted that this construction is supported by reports by the US Departments of Interior and Justice as well as similar resolutions passed by the Legislature in HNL.

The HSC then pointed out that the State’s constitutionally-imposed fiduciary duty to manage the ceded lands is analogous to the federal government’s fiduciary duty to Indians, Ahuna v. Dept. of Hawaiian Home Lands, 64 Haw. 327, 640 P.2d 1161 (1982), and thus, the State is saddled with a strong duty. The HSC held that the Apology Resolution and related state legislation “give rise to the State’s fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians have been resolved. Such duty is consistent with the State’s obligation to use reasonable skill and care in managing public lands trust and the Ahuna court’s declaration that the State’s conduct should be judged by the most exacting fiduciary standards.”

Congress has a Plenary Power over Indigenous People. The HSC treated the joint resolution of Congress as a statute and interpreted its plain language as federal recognition of the unrelinquished claims of native Hawaiians. The HSC was also careful to point out that while the Apology Resolution did not call for the conveyance of the ceded lands to native Hawaiians, it did not suggest that Congress lacked the power to do so. A fundamental tenent of federal Indian law is Congress’ plenary power over tribal sovereignty. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This includes the power to recognize a people as an Indian tribe. There is no mention in this opinion about this, but the HSC’s interpretation of the Apology Resolution suggests that federal recognition or, as articulated in a different section of the opinion, creation of native Hawaiian claims to the ceded lands might be pursuant to this plenary power. Unfortunately, that is a matter of federal law and the only court higher is in Washington, D.C.

A Terrible and Nagging Question. Looming behind all of this is Rice v. Cayetano, 528 U.S. 495 (2000), where the US Supreme Court struck down the State’s ability to limit voting for OHA trustees to native Hawaiians. The US Supreme Court noted that if the voting restrictions were upheld, it would be required to accept premises “not yet established in our case law” such as the premise that Congress, in various pronouncements like the Apology Resolution, “determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status.” The court dodged this, “assume[d] the validity of the underlying administrative structure and trusts [of the State], without intimating any opinion on that point[,]” and struck down the voting requirements on 15th Amendment grounds.

Thus, it did not squarely address the nagging question of whether the State of Hawai‘i has a power over its indigenous people or if it was delegated such a power from Congress (even when Congress, as seen from the Akaka Bill, refuses to boldly exercise its plenary power and recognize native Hawaiians in one breath, but recognizes these outstanding claims in another). The US Supreme Court never vigorously examined the Apology Resolution, but the HSC has here. Given the clear language of the Apology Resolution, perhaps the Cayetano dicta is misplaced. Only time will tell.

At Long Last! A Standard for Permanent Injunctions! Stepping aside from these heady matters, the HSC addressed a very practical issue in civil litigation. For some time now, our jurisdiction has only had a clear standard for temporary injunctions. Life of the Land v. Ariyoshi, 59 Haw. 156, 158, 577 P.2d 1116, 1118 (1978). The HSC adopted the reasoning of the circuit court and articulated the following standard for imposing a permanent injunction: (1) whether the plaintiff has prevailed on the merits (rather than a likelihood of success for temporary injunctions); (2) whether the balance of irreparable damage favors the issuance of the injunction; and (3) whether the public interest supports granting an injunction.

Having held that federal resolutions and related state legislation triggered the State’s fiduciary duty to preserve the ceded lands, the HSC held that a permanent injunction against the State was warranted. Again, the HSC turns to the Apology Resolution, which plainly states that the native Hawaiian people have these claims over the ceded lands, which were taken without “consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations.” Without the injunction, concluded the HSC, the lands could be alienated without having satisfied the claims of the native Hawaiian people. Additionally, the state Legislature has recognized that the reconciliation will someday occur. Until then, the State, ironically, must be enjoined from thwarting these efforts.


Having read the opinion what isn't mentioned [as it appears not to be an issue in this litigation] are prior transfers of the [mis-named] "ceded" lands and whether they now have had a cloud on the title. Also left undiscussed are any interests of "non-Native Hawaiian" Hawaiian Nationals. After all there were Hawaiian Nationals, not of aboriginal stock, whose "country" it was also that may have had some protected property interests that were wrongfully interfered with by the U.S. invasion and occupation.

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