Ka Wai Ola - Office of Hawaiian Affairs, Volume 14, Number 7, 1 July 1997 — Pick up challenge: Take state to court [ARTICLE+ILLUSTRATION]

Pick up challenge: Take state to court

The final question in this series of articles on JUSTICE and our TRUST is: "How ean we obfain Justice if the Legislative and Administrative branches of our State refuse to recognize our legal trust entitlements?" The answer resides squarely within the

venue and jnrisdiction of our judicial system — the state and

federal courts. It is well within the jurisdiction of the court to hear a case brought by or on behalf of the beneficiaries of a trust for breach of fiduciary responsibility under Title 28 of the United States Codes. This action is especially applieahle wher(Hhese rights are clearly granted by the Admission Act (Public Law 86-3, March 18, 1959) and the State Constitution whieh established the Public Trust and named the native Hawaiian as a beneficiary class. As required by the Admission Act the people of Hawai'i constitutionally enacted the following: "The lands granted to the State of Hawai'i by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution,...shall be held by the State as a public trust for native Hawaiians and the general public* "Any trust provisions whieh the Congress shall impose, upon the admission of this State, in respect of the lands patented to the State by the United States or the proceeds and ineome therefrom, shall be complied with by appropriate legislation. Such legislation shall not diminish or limit the benefits of native Hawaiians under Section 4 of Article XII."** Adopting language into the Constitution to acknowledge eomplianee and implementing that eomplianee are two different matters. As illustrated in my articles of May and June (Ka Wai Ola), the State has been and eontinues to be unfaithful in its administration of the Public Trust and subsequently in breach of their trust position. By exercising poor judgment and laek of good faith, the State has challenged us to "take them to court." It is time to piek up the ehallenge and proceed to settle this issue onee and for all. Although we have patiently (1988-1997) negotiated in good faith and honor, the State has not reciprocated in turn. They ask for eompromise and we agree. Then, they reversed their position with a mere comment that "it is in the best interest of the State." Well, I disagree!!! The State should never plaee itself above the law! Compliance with Trust laws are morally correct and Federally mandated!!! Inaccordance

with that principle, we, the native Hawaiians, beneficiaries of the Public Trust, are entitled to at least all of the following guarantees of Federal Statutes as enumerated in Volume 76, TRUSTS of the American Jurisprudence 2d: • Impartial loyalty by the trustees (Sec. 389) • Act in the interest of the trust exclusively (Sec. 380) • Refrain from personal traffic in trust property (Sec. 382) • Take no benefit or personal advantage (Sec. 377) • Render a full and accurate record & accounting of his trusteeship to the beneficiary (Sec. 405) • Keep separate accounts from trustees own accounts, with full disclosures (Sec. 407) • Protect the trust estate (Sec. 443)

It is unfortunate that we must resort to court action but when eaeh party does not act in good faith, the law guarantees protection of everyone's legal rights. It is my belief that Hawaiians will always act in good faith, with honor, and with duty to all of its moral obhgations to other Hawaiians as well as to our neighbors and fellow citizens of this State. After all, that is the basis of the Aloha spirit and the foundation of our culture. I believe that is our strength and not the weakness that others have tried to use to continue to take unfair advantage of our Hawaiian people. "...Now to avoid any collision of armed forces...yield my authority until such time as the Government of the United States shall, upon the facts presented to it, undo the actions of its representatives..." ....Queen Lili'uokalani, January 19, 1893. NOW IS THE TIME!!! * The State of Hawai'i Constitution, Article XII, Sec. 4. ** Ibid., Article XVI, Sec. 7, Compliance With Trust. i 1 I

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Keale Trustee, Kaua'i and Ni'ihau