Ka Wai Ola - Office of Hawaiian Affairs, Volume 28, Number 4, 1 April 2011 — APOLIONA et al PREVAILS over Day et al [ARTICLE+ILLUSTRATION]

APOLIONA et al PREVAILS over Day et al

Aloha e nā 'ōiwi 'ōlino nā pulapula a Haloa mai Hawai'i a Ni'ihau puni ke ao mālamalama. Five native Hawaiians, Virgil

E. Day, Mel Ho'omanawanui, Josiah L. Ho'ohuli, Patrick L. Kahawaiola'a and Samuel L. Kealoha, after six years, have failed in their attempt to take OHA to the U.S. Supreme Court. On Oct. 13, 2005, these five native Hawaiians filed their complaint in U.S. District Court. On March 10, 2006,

Walter Schoettle, Attorney for "the Live" filed their first amended complaint against Chairperson Apoliona, Trustees Akana, Carpenter, Cataluna, Dela Cruz, Machado, Mossman, Stender and Waihe'e IV, in their official OHA capacities. In the complaint "the Live" stated that OHA Defendants: 1) violated their rights under the Admission Act and the equal protection clause of the 14thAmendment, to the extent that those rights were enforceable under 42 USC 1983, by expending puhlie trust funds "without regard to the blood quantum contained in the definition of native Hawaiians in HHCA" (Counts I and II); and 2) breached their duty under the eommon law of the State of Hawai'i and HRS 10-16 (c) of fidelity owed to plaintiffs and native Hawaiian beneficiaries (Count III). Count IV of the amended complaint prayed for the following declaratory relief: "the extent that ... judicial decisions and statutory and constitutional provisions do not clearly establish that all land, ineome and proceeds therefrom, received by OHA defendants directly or indirectly from the 5(f) trust must be expended by OHA defendants for the betterment of the eonditions of native Hawaiians, plaintiffs are entitled to a declaratory judgment holding that all land, ineome and proceeds received by OHA defendants directly or indirectly from the 5(f) trust must be expended by OHA defendants for the

betterment of the conditions of native Hawaiians as defined in the [HHCA]." The plaintiffs identified four instances OHA allegedly used puhlie trust funds for purposes not limited to

the betterment of conditions of native Hawaiians: 1) the Akaka bill, 2) Native Hawaiian Legal Corp., 3) Nā Pua No'eau and 4) Alu Like. In August 2006, Lederal District Judge Susan Mollway dismissed the case in favor of OHA. Plaintiffs appealed the dismissal order to the 9th Circuit Court of Appeals. While Day vs. Apoliona was on appeal in the

9th Circuit, James Kuroiwa, Patricia A. Carroll, Toby Kravet, Garry P. Smith, Earl L. Arakaki and Thurston Twigg-Smith (collectively, the Six Non-Hawaiians) filed to intervene. They were denied. The 9th Circuit overturned Mollway's ruling and remanded the case to the District Court. On remand, Mollway again found in favor of OHA defendants against the plaintiffs, quoting the 9th Circuit, granting summary judgment in favor of OHA and dismissing the case on June 20, 2008. On July 21, 2008, the Day plaintiffs filed a Notice of Appeal to the U.S. Court of Appeals of the 9th Circuit. On July 26, 2010, the 9th Circuit Court of Appeals ruled in favor of OHA by affirming the District Court's grant of the Summary Judgment of June 20, 2008. In the meantime, on July 15, 2008, Wendell Marumoto, Putative Intervenor, filed a notice of appeal to the U.S. Court of Appeals for the 9th Circuit. On Oct. 16, 2009, the 9th Circuit affirmed the denial of Marumoto's motion to intervene by the District Court. Marumoto filed a petition for panel, or en banc, rehearing. The 9th Circuit denied the Marumoto petition on Dec. 22, 2009. On Oct. 25, 2010, Attorney Schoettle and the Day plaintiffs filed a petition for writ of certiorari with the U.S. Supreme Court. The Court denied the Writ from"the Five" on Feb. 22, 201 1, ua pau. 28/48 ■

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