Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 4, 1 April 1989 — Native Hawaiian Legal Corporation [ARTICLE]

Native Hawaiian Legal Corporation

N H L C Report

Lualualei Precedent

(Editor's note: A recent decision by the Ninth Circuit Court ofAppeals on militar\j use of Hawaiian Home Land at Lualualei, O'ahu may set a disturbing precedent to future claims by the state with regards to ceded lands. This case was a uery important one because it was the first time any state agency took the federal gouemment to court on the issue of military use of Hawaiian Home Iand. During the case, NHLC had filed an "amicus" brief on behalf of six natiue Hawaiian clients as interested parties who wanted to argue for the return of the land to DHHL control. In February, NHLC and its six clients held a press conference to discuss the recent decision and to present their alternatiue remedies to the situation.) by Livia Wang, Staff Attorney Native Hawaiian Legal Corporation On January 27, 1989 the Ninth Circuit Court of Appeals affirmed Judge Harold Fong's opinion in the case of State of Hawaii v. U.S.A. This district court opinion held that the State of Hawaii's suit to regain 1,700 acres of Haweiiian Home Lands located in Lualualei, O'ahu from the U.S. Navy is barred by the 12-year statute of limitations eontained in the Federal Quiet Title Act. In 1921, approximately 2,000 acres of lands located in Lualualei were designated as Hawaiian Home Lands after the 1920 Hawaiian Home Commission Act. In 1930 and 1933, then territorial governor Lawrence McCully Judd set aside over 1,800 acres of Hawaiian Home Lands to the United States Navy for an ammunition depot and a radio transmitting station. These executive orders were illegal because: 1) Section 206 of the Hawaiian Homes Commission Act states that the powers of the territorial govemor and the territorial eommissioner of public lands do not extend to Hawaiian Home Lands; and 2) Section 212 of the Hawaiian Homes Commission Act states that Hawaiian Home Lands returned to the commissioner of public lands may be disposed of by general lease only. In a 1978 federal case, Aki v. Beamer, (Civil No. 76-0144), the U.S. District Court held that a 1955 executive order setting aside Hawaiian Home Lands for a Kauai county beach park was unlawful and violative of Sections 204, 206 and 212 of the Hawaiian Homes Commission Act. The Lualualei homestead lands comprise approximately one-fifth (1/5) of all the Hawaiian home lands located on the island of O'ahu. Presently, there are over 9,000 qualified native Ha-

waiian beneficiaries on the Oahu island waiting list, waiting to receive a Hawaiian homestead lot award. In 1983, the Department of Hawaiian Home Lands wrote to the secretary of the Navy demanding the return of the Lualualei lands. In 1984, the Navy responded by stating that the lands were presently owned in fee simple by the United States since they were properly set aside for the Navy's use pursuant to the 1930 and 1933 executive orders. On October 22, 1986 the Department of Hawaiian Home Lands filed an action in federal court to regain title to the Lualualei lands. On January, 1988, U.S. District Court Judge Harold Fong granted the U.S. Navy's motion for summary judgment, holding that the State's action was barred by the 12-year statute of limitations contained in the Federal Quiet Title Act. Section 2409(a)(h) of the Federal Quiet Title Act states that: "No civil action may be maintained under this section by a state with respect to defense facilities (including land) of the United States so long as the lands at issue are being used or required by the United States for national defense purposes as determined by the head of the federal agency with jurisdiction over the lands involved, if it is determined that the state action was brought more than 12 years after the state knew or should have known of the claims of the United States. Upon cessation of such use or requirement, the state may dispute title to such lands pursuant to the provisions of this section. TFie decision of the head of the federal agency is not subject to judicial review." In his decision, Judge Fong concluded that the State of Hawai'i knew, or should have known, that the United States was claiming title to the Lualualei lands upon statehood because: 1) various eommunications between the Navy and the Hawaiian Homes Commission prior to statehood indicated that the U.S. was claiming some interests in the land; 2) the language in Section 5(c) of the Admissions Act indicated that the United States was claiming fee simple title to the Lualualei lands because they were retained pursuant to an executive order; and 3) the United States had eontinuous, notorious (well-known) possession of the Lualualei lands from the 1930's through statehood to the present. During the state's appeal, the Native Hawaiian Legal Corporation filed an "amicus" brief on behalf of six qualified native Hawaiian beneficiaries who are on the waiting list for Hawaiian home lands. These beneficiaries are: Radine Kawahinealohaokalani Kamakea, R. Kawehi Kanui-Gill, OHnda K. Medeiros, Rayne Kehaulani Nunuha, Clyde Maurice Kalani Ohelo and Velma Dela Pena. Some of these beneficiaries have been on the waiting list for over 15 years and two of these beneficiaries are presently homeless. The amicus brief argued that in the present case, the standard of notice for the purposes of starting the statute of limitations period should be heightened because the United States is a eotrustee over the Hawaiian home lands program together with the State Department of Hawaiian Home Lands. Therefore, the United Statesshould be required to give actual notice of its claims to title to the state and native Hawaiian beneficiaries before the statute of limitations ean begin to run. Hawaii trust law requires a trustee to provide actual notice to co-trustees and beneficiaries when a trustee is claiming an adverse interest in trust properties. Pursuant to Amieo Production Company v. U.S., 619F.2d 1383 ( 10th Cir. 1980), a federal court may look at relevant state law to determine whether under the circumstances a state received reasonable notice of a U.S. elaim to title.

The Ninth Circuit Court of Appeals held that the United States' role as a trustee to the Hawaiian home lands program has no effect on the notice requirements of the Federal Quiet Title Act, and that constructive notice given by the United States' continuous and notorious possession of the Lualualei lands is sufficient to trigger the 12year statute of limitations. Because the state is barred from suing the United States to regain title to the Lualualei Hawaiian homestead lands by the Federal Quiet Act's 12-year statute of limitations, the United States is allowed to maintain its possession of the Lualualei homestead lands. This use and possession is in violation of the United States' trust duties to hold, and manage these lands- for the benefit of native Hawaiian beneficiaries. The native Hawaiian beneficiaries who filed the amicus brief in this case are seeking to remedy the unjust effects of these court decisions by: 1) demanding that the U.S. Navy retract its declaration that the lands presently comprising the Lualualei naval radio transmitting facility and Lualualei naval ammunition depot are being used and are required by the United States for nahonal defense purposes, and returning these lands to the Department of Hawaiian Home Lands; 2) Iobbying Congress to amend the Federal Quiet Title Act to exclude native Hawaiian and native American trust lands from the 12-year statute of limitations; and 3) requesting Governor Waihee to include eom- v pensation for the loss of these Hawaiian Home Lands in his proposaI to resolve controversies relating to the Hawaiian Home Lands trust whieh must be submitted to the 1991 Legislature pursuant to the native Hawaiian Right-to-Sue Act.