H. WILLIAM BURGESS #833 2299C Round Top Drive Honolulu, Hawai'i 96822 Telephone: (808) 947-3234 Fax: (808) 947-5822
PATRICK W. HANIFIN #2716 1M HANIFIN PARSONS, LLLC 1001 Bishop Street Pacific Tower, Suite 2475 Honolulu, Hawai'i 96813 Telephone: (808) 585-0335 Fax: (808) 585-0336
Attorneys for Plaintiffs UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII
EARL F. ARAKAKI, et al., ) CIVIL NO. 02-00139 SOMIKSC ) Plaintiffs, ) PLAINTIFFS' FIRST REQUEST FOR v. ) ADMISSIONS DIRECTED TO STATE ) DEFENDANTS, IffiCAlDDHL BENJAMIN J. CAYETANO, et aI., ) DEFENDANTS, OHA DEFENDANTS ) AND SCHHA DEFENDANTS; State Defendants, ) EXHIBITS 1-3; CERTIFICATE OF ) SERVICE HAUNANI APOLIONA, et aI., ) ) OHA Defendants, ) ) Scheduling conference. RAYNARD C. SOON, et al., ) ) DATE: June 3, 2002 IffiCAlDHHL Defendants, ) TIME: 9:00 A.M. ) JUDGE: Magistrate Judge Kevin S.C. THE UNITED STATES OF AMERICA, and) Chang JOHN DOES 1 through 10, ) ) Defendants, ) Hearing on Plaintiffs' Motion for Preliminary ) Injunction. STATE COUNCIL OF HAWAIIAN ) HO:rv.IESTEAD ASSOCIATION and ) DATE: July 24, 2992 ANTHONY SANG, SR., ) TIIvIE: 9:00 A.M. DefendantlIntervenors. ) JUDGE: U.S. District Judge Susan Oki ) Mollway PLAINTIFFS' FIRST REQUEST FOR ADMISSIONS DIRECTED
University of Hawaii School of Law Library - Jon Van Dyke Archives Collection TO STATE DEFENDANTS, HHCAlDDHL DEFENDANTS, AND OHA DEFENDANTS Pursuant to Rules 26 and 36 of the Federal Rules of Civil
Procedure, Plaintiffs request that all Defendants, except the United States, respond
to the below listed requests for admissions for the purpose of this action only,
subject to pertinent objections to admissibility which may be interposed at trial,
within thirty (30) days after service of this request or earlier if ordered by the
Court.
DEFINITIONS and INSTRUCTIONS
As used herein the following words have the following meanings:
A. "State Defendants" means and includes Defendants
BENJAMIN J. CAYETANO in his official capacity as GOVERNOR OF THE STATE OF
HAW AI'I, NEAL MIYAHIRA in his official capacity as DIRECTOR OF THE DEPARTMENT
OF BUDGET AND FINANCE, GLENN OKIMOTO in his official capacity as STATE
COMPTROLLER, and DIRECTOR OF THE DEPARTIvlENT OF ACCOUNTING AND
GENERAL SERVICES, GILBERT COLOMA-AGARAN in his official capacity as
CHAIRMAN OF THE BOARD OF LAND AND NATURAL RESOURCES, JAIvlES J.
NAKATANI, in his official capacity as DIRECTOR OF THE DEPARTIvlENT OF
AGRICULTURE, SEll F. NAYA, in his official capacity as DIRECTOR OF THE
DEPARTMENT OF BUSINESS, ECONOMIC DEVELOPIvlENT AND TOURISM, BRIAN
MINAAI in his official capacity as DIRECTOR OF THE DEPARTIvlENT OF
TRANSPORTATION, and each of their predecessors, successors, agents, employees, attorneys, investigators, affiliates, and all other persons or entities acting in concert or cooperation with them or under their direction or control.
2 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection B. "OHA Defendants means and includes Defendants HAUNANI APOLIONA,
Chainnan, and ROWENA AKANA, DONALD B. CATALUNA, LINDA DELA CRUZ,
CLA YTON HEE, COLETTE Y.P. MACHADO, CHARLES OTA, OSWALD STENDER, and
JOHN D. W AIHE'E, IV in their official capacities as trustees of the Office of Hawaiian Affairs, and each of their predecessors, successors, agents, employees, attorneys, investigators, affiliates, and all other persons or entities acting in concert or cooperation with them or under their direction or control.
C. "HHCAlDHHL Defendants" means and includes Defendants RAYNARD C.
SOON, Chainnan, and WONDA MAE AGPALSA, HENRY CHO, THOMAS P.
CONTRADES, ROCKNE C. FREITAS, HERRING K. KALUA, MILTON PA, and JOHN A.H.
TOMOSO, in their official capacities as members of the Hawaiian Homes Commission, and each of their predecessors, successors, agents, employees, attorneys, investigators, affiliates, and all other persons or entities acting in concert or cooperation with them or under their direction or control.
D. "SCHHA Defendants" means and includes STATE COUNCIL OF
HAW AllAN HOMESTEAD ASSOCIATION and ANTHONY SANG, SR. and each of their predecessors, successors, agents, employees, attorneys, investigators, affiliates, and all other persons or entities acting in concert or cooperation with them or under their direction or control.
E. The "Complaint" means Plaintiffs' Complaint for Declaratory Judgment (Re:
Constitutionality of Office of Hawaiian Affairs, Hawaiian Homes Commission and Related
Laws) and for an Injunction filed herein March 4, 2002.
F. "Hawaiian" has the same meaning as in § 10-2 H.R.S., "any
descendant of the aboriginal peoples inhabiting the Hawaiian Islands which
exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which
peoples thereafter have continued to reside in Hawaii." .
3 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection G. "Native Hawaiian" has the same meaning as in § 10-2 H.R.S., "
any descendant of not less than one-half part of the races inhabiting the Hawaiian
Islands previous to 1778, as defined by the Hawaiian Homes Commission Act,
1920, as amended; provided that the term identically refers to the descendants of
such blood quantum of such aboriginal peoples which exercised sovereignty and
subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued
to reside in Hawaii."
H. "OHA laws" means and has the same definition as in paragraph 1h. of the
Complaint.
I. "HHCA laws" means and has the same definition as in paragraph 2f of the
Complaint.
J. "CAFR" means the State's Comprehensive Annual Financial Report. "General
Fund" means the State of Hawaii General Fund referred to in CAFR.
K. "You" or "your" means the person or persons responding to the
request for admissions in their official capacities and any of their agents,
associates and attorneys assisting in the response.
L. "Defendant" or "Defendants" means any individual or
individuals, entity or entities identified in this action as a defendant or defendants.
M. "State" means the State of Hawaii. "OHA means the Office of
Hawaiian Affairs. "HHC" means the Hawaiian Homes Commission. Dlflll..
means the Department of Hawaiian Home Lands. "Legislature" or "legislature"
means the legislature of the State of Hawaii.
4 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection N. "Person" means singular or plural as the case may be or any
business entity (e.g., sole proprietorship, partnership, corporation, joint venture,
etc.).
o. "And" or "or" shall be construed disjunctively or conjunctively
as necessary in order to bring within the scope of the request all responses that
might otherwise be construed to be outside its scope.
Each of these definitions and instructions is hereby incorporated into
each of the requests.
Each of the requested admissions must be truthfully admitted or denied
unless you set forth in detail the reasons why you cannot truthfully admit or deny
the matter contained in the request.
If good faith requires that you qualify your response or deny only a
portion of the matter for which an admission is requested, you must do so
expressly in your response.
You may not give lack of information or knowledge as a reason for
failure to admit or deny unless you state that you have made reasonable inquiry
and that the information known or readily obtainable by you is insufficient to
enable you to admit or deny.
Each of the required admissions will be deemed admitted under Rule
36 of the Federal Rules of Civil Procedure unless answers thereto are provided
within thirty (30) days of the service of this request or within such shorter time as
the Court may direct.
5 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection In the event you deny any of the requested admissions or parts thereof,
you must set forth with particularity why you are making the denial, and state
what facts or allegations you are relying upon in making said denial, with
reference to where said facts or allegations may be found or supported.
If you fail to admit any matter for which an admission is requested
herein, and if the truth of any such matter is later established, you may be required
to pay the expenses incurred in proving that matter, including reasonable
attorneys' fees pursuant to Rule 37(c) of the Federal Rules of Civil Procedure.
DATED: Honolulu, Hawaii, May _, 2002
H. Wll.LIAM BURGESS
PATRICKW.
HANIFIN
Attorneys for Plaintiffs
6 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection REQUESTS FOR ADMISSION DIRECTED TO ALL
DEFENDANTS
Admissions about allegations of the complaint
1. Plaintiffs are residents and citizens of the State of Hawaii and of the
United States of America.
Admit: --- Deny: ____
2. Included among Plaintiffs are persons of Japanese, English, Filipino,
Portuguese, Hawaiian, Irish, Chinese, Scottish, Polish, Jewish, German, Spanish, Okinawan,
Dutch, French and other ancestries.
Admit: --- Deny: ____
3. Every Plaintiff is a taxpayer of the State of Hawaii.
Admit: Deny: ____
4. Every Plaintiff is a beneficiary of the public land trust, also known as the
"Ceded lands trust" and sometimes also referred to as the "§5(f) trust."
Admit: Deny: ____
5. In 1898 the Republic of Hawaii ceded its public lands (the approximately
ll 1.8 million acres of lands formerly known as "Crown Lands" and "Government Lands ) to the
United States with the requirement that the ceded lands (except for those used for the civil, military of naval purposes of the United States or assigned for the use of local government) and
1 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection revenues derived from them "shall be used solely for the benefit of the inhabitants of the
Hawaiian Islands for educational and other public purposes."
Admit: ___ Deny: ____
6. In 1898, about 31 % of the inhabitants of Hawaii were of Hawaiian ancestry and the remaining 69% were of other ancestry. (Schmitt, Demographic Statistics of Hawaii:
1778-1965. Honolulu, 1968, interpolating between 1896 census and 1900 census.)
Admit: Deny: ____
7. Persons of Hawaiian ancestry, merely by virtue of their ancestry, did not have any special entitlement, greater than that of other subjects, to the benefit, use, income or proceeds of the public lands of the Kingdom of Hawaii. (Hanifin, To Dwell on the Earth in
Unity: Rice, Arakaki and the Growth o/Citizenship and Voting Rights in Hawaii, Haw. Bar
Journal, No. 13, p. 15 (2002).)
Admit: ___ Deny: ____
8. In 1921, Congress enacted the Hawaiian Homes Commission Act, 42 Stat.
It 108 (1921) (ltthe HHCA ) which set aside about 200,000 acres of the ceded lands and provided for long term leases of Homestead lots (at rent of one dollar per year) to "native Hawaiian" persons, defined in the HHCA as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands:previous to 1778."
Admit: ___ Deny: ____
2 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 1. The United States had no compelling governmental interest in enacting and thereafter implementing the IllICA whose only purpose was and is to provide benefits exclusively to one group, "native Hawaiians" defined explicitly by race.
Admit: ---- Deny: ____
1. The IllICA was not narrowly tailored to serve any compelling governmental interest of the United States.
Admit: ___ Deny: ____
1. In 1959, when Hawaii became a state, the United States transferred title to the ceded lands (less those parts retained by the U.S. for national parks, military bases and other public purposes but including the approximately 200,000 acres which had been set aside for native Hawaiians under the IllICA) back to Hawaii with the requirement in the Admission Act
§4 that the State adopt the IllICA and in §5(t) that the State hold the ceded lands "as a public trust" for "one or more" of five purposes ("for the support of public schools and other public educational institutions", "for the betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act" (i.e., "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778"), "for the development of farm and home ownership", "for the making of public improvements" and "for the provision of lands for public use."
Admit: ____ Deny: ____
2. The United States had no compelling interest in requiring that, as a condition for being admitted to statehood, Hawaii adopt the IllICA.
Admit: ---- Deny: ____ 3 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 3. The United States had no compelling interest in requiring that, as a condition for being admitted to statehood, Hawaii add a racial component, "for the betterment of the conditions of native Hawaiians" to the permitted purposes of the public land trust (to the extent that provision gives or in construed or implemented to give native Hawaiians any protection, entitlements, rights, privileges or immunities not given equally to other beneficiaries of the public land trust).
Admit: ____ Deny: ____
4. The State of Hawaii had and has no compelling governmental interest in adopting the HHCA or in implementing or enforcing its provisions.
Admit: ---- Deny: ____
5. The HHCA is not narrowly tailored to serve any compelling State interest.
Admit: Deny: ____
6. The practice of the State of Hawaii before 1978 was to channel the proceeds and income of the lands included in the trust by and large to the Department of
Education. The support of the public schools is a legitimate object for which the proceeds and income of the trust lands may be used. (Final Report on the Public Land Trust, December 1986,
Legislative Auditor, page 14.)
Admit: ---- Deny: ____
7. Children of Hawaiian ancestry make up about 25.5% of the student body in the public schools of the State of Hawaii. (Native Hawaiian Data Book 1998: Table 4.2
4 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection update: Total public school students: 186,318; Total Native Hawaiian (Hawaiians and Part
Hawaiians) students: 47,538 = 55.5%.}
Admit: ---- Deny: ____
8. In 1978, Hawaii's Constitution was certified to have been amended, among other ways, to: require that the legislature provide additional funding for IlliCA; to provide that the ceded lands returned to Hawaii "shall be held as a public trust for native Hawaiians and the general public"; and to establish an Office of Hawaiian Affairs ("aHA").
Admit: ___ Deny: ____
9. The State argued in Arakaki I that,
"Self-determination, not discrimination, lies at the heart of this case. The people of Hawaii, at their constitutional convention in 1978, sought to give the indigenous people of Hawaii the opportunity to retrieve a little of the sovereignty they lost at the overthrow of the Hawaiian Kingdom in 1893. This was to be accomplished by creating an Office of Hawaiian Affairs ... " "The creation of aHA, and its requirement that the trustees be Hawaiian, provided for 'accountability, self-determination, methods for self-sufficiency through assets and a land base, and the unification of all native Hawaiian people,' and was in 'recogni[tion] [of] the right of native Hawaiians to govern themselves and their assets" (underlining in State's brief.) State's opening brief in the 9th Circuit, pages 4 et seq.
Admit: ____ Deny: ____
10. The proposed amendment to establish aHA submitted to the voters at the
November 7, 1978 general election did not mention "sovereignty" or "self government" or "self determination" or propose to "recognize that native Hawaiians have the right to govern themselves. "
Admit: ___ Deny: ____
5 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 11. The informational booklet which was part of the official ballot for the
1978 election summarized the proposed OHA amendment as follows:
28. OFFICE OF HAWAllAN AFFAIRS (Article XII, Sections 4, 5, and 6) If adopted, this amendment: • sets forth the trust corpus and beneficiaries of the Admission Act. • Establishes an Office of Hawaiian Affairs with an elected board of trustees and provides for an effective date.
Admit: Deny: ____
1. The proposed definitions of "Hawaiian" and "native Hawaiian" on which the proposed OHA amendment was based, were not disclosed in the informational booklet or newspaper supplements provided to voters in 1978. The Hawaii Supreme Court therefore held in
Kahalekai v. Doi that those definitions were not ratified by the voters.
Admit: --- Deny: ____
2. The Lt. Governor's Result of Votes Cast for the 1978 General Election reported that all the 34 proposed amendments passed. The closest votes were for Dffill.. funding: Yes 129,089; No 123,137 (a difference of 5,952 votes); and Creation of OHA: Yes
130,232; No 121,994 (a difference of 8,232 votes).
Admit: ___ Deny: ____
3. The ballot counting program for the 1978 election apparently used criteria to tally the votes different from that officially requested by the Constitutional Convention. (The
6 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection ConCon had requested that, if a voter marked Part A, either a blanket Yes or No, and also marked one or more selective No's in Part B, the vote in Part B would be counted and Part A would be disregarded.) However, the actual vote counting apparently rejected all ballots with marks in both Parts A and B. This violated not only the ConCon's request but also the common law rule that if a voter's intention can be reasonably determined by examining the ballot, the vote should be counted. 18,833 ballots were rejected as "Overvotes".
Admit: Deny: ____
4. On June 27, 1959 a proposed change in the government of Hawaii was submitted to the people by the Statehood proposition asking: "Shall Hawaii immediately by admitted into the Union as a State?" The Yes vote was 132,773 (94.33%). The No vote was
7,971 (5.66%).
Admit: ___ Deny: ____
5. In 1979, the Hawaii Legislature enacted Chapter 196, (now Section 10-2
H.R.S.) which defined "Hawaiian" as "any descendant of the aboriginal peoples inhabiting the
Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii."; and defined "Native Hawaiian" as
" any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii."
Admit: --- Deny: ____
7 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 1. In 1980, the Hawaii Legislature enacted Section 10-13.5 H.R.S. "Twenty per cent of all funds derived from the public land trust, described in Section 10-3, shall be expended by the office [aHA], as defined in section 10-2, for the purposes of this chapter."
Admit: Deny: ____
2. In 1990 the Hawaii Legislature in Act 304 defined "revenue" from which aHA is to share, retroactive to 1980, as "all proceeds, fees, charges, rents or other income ... derived from any ... use or activity, that is situated upon and results from the actual use of lands comprising the public land trust".
Admit: ___ Deny: ____
3. The Supreme Court of the United States held, in Rice v. Cayetano, 528
U.S. 495, 514 (2000) that the § 10-2 H.R.S. definitions of "native Hawaiian" and "Hawaiian" are racial classifications. "Ancestry can be a proxy for race. It is that proxy here." "The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose." Id at 515.
Admit: ---- Deny: ____
4. The Supreme Court held in Adarand Constructors, Inc. v. Pena, 515 U.S.
200,222 (1995) that "equal protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment" and at 226, "Accordingly, we hold today that all racial classifications, imposed by whatever federal, state or local governmental actor must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests."
8 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ____ Deny: ____
5. The State of Hawaii had and has no compelling governmental interest in establishing the Office of Hawaiian Affairs, whose only purpose is to provide benefits exclusively to two groups, "native Hawaiians" and "Hawaiians" defined by race, or in enacting
and thereafter implementing the OHA laws.
Admit: ---- Deny: ____
6. The OHA laws are not narrowly tailored to serve any compelling State interest.
Admit: ---- Deny: ____
7. The Honolulu Advertiser of February 28, 2001 reported,
"The Office of Hawaiian Affairs is poised to spend millions of dollars in
what could rank as the state agency's most ambitious pUblicity campaign to gain
federal recognition for Hawaiians and deflect court challenges that threaten its
very existence. Called the "Post-Rice Overall Strategy" in the aftermath of the
landmark Rice vs. Cayetano case, the proposal amounts to a blitzkrieg of local
and national public relations efforts intended to "protect Hawaiian rights and
programs, protect Hawaiian assets and rebuild broad-based support for a Hawaiian
agenda," according to a draft copy of the strategy. "It's what OHA should have
been working on all along," said Haunani Apoliona, the agency's chairwoman.
9 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection "It's not about advancing OHA, it's about advancing the interests of all
Hawaiians." Though OHA trustees will not say what they expect the campaign to
cost, unofficial estimates range from $2 million to $9 million. The agency has an
investment portfolio worth more than $350 million. By a majority vote, its
trustees have the final authority to spend money on projects they deem appropriate
to fulfill the agency's mandate."
The State has no compelling governmental interest in spending from $2 to $9 million on a publicity campaign to circumvent that decision of the Supreme Court.
Admit: --- Deny: ____
8. The State has no compelling governmental interest in spending from $2 to
$9 million on a publicity campaign to support a bill which would permit the creation of a separate quasi-sovereign nation in the State of Hawaii.
Admit: ___ Deny: ____
Appropriations to OBA & impact on taxpayers
9. In 1992, by Act 300, the legislature amended the appropriations act of
1991 to provide that,
Provided that of the general fund appropriation for statewide planning and coordination (GO V 103), the sum of $5,000,000 in fiscal year 1992-1993 shall be used to partially satisfy and pay to the office of Hawaiian affairs, the am9unt of $111,833,00, subject to audit, payable to the office of Hawaiian affairs under Act 304, Session Laws of Hawaii 1990, for the period from June 16, 1980 through June 30, 1991; provided that the moneys appropriated by this section shall be utilized by the office of Hawaiian affairs for the betterment of native Hawaiians.
Admit: ___ Deny: ____
10 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 10. The $5 million general fund appropriation referred to in the immediately preceding question was paid to OHA, deposited and is part of the assets shown on OHA' s combined balance sheet as of February 28, 2002.
Admit: Deny: ____
11. In 1993, by Act 35, the legislature appropriated a sum not to exceed
$136,500,000 out of the general obligation bond funds of the State of Hawaii for payment to
OHA pursuant to Act 304 (1990) and Act 300 (1992).
Admit: ___ Deny: ____
12. On June 4, 1993 the Director of the Office of State Planning, Office of the
Governor, sent to the Chairman of the OHA board of trustees warrants payable in the amount of
$129,584,488.85 pursuant to Act 304, for the period of June 16, 1980 through June 30, 1991, which amount is however, subject to audit and reimbursement. (See Declaration of H. William
Burgess filed April 11, 2002, Exhibit B, last two pages.)
Admit: Deny: ____
13. The $129,584,488.85 referred to in the immediately preceding question was paid to OHA, deposited and is part of the assets shown on OHA's combined balance sheet as of February 28, 2002.
Admit: ___ Deny: ____
14. On September 12, 2001, the Hawaii Supreme Court in OHA v. State, No.
20281, held that Act 304 conflicts with federal legislation, "Therefore, Act 304 - by its own
11 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection terms - is effectively repealed. II (A copy of the decision is Exhibit A to Declaration of H.
William Burgess filed herein April 11, 2002.) There is no law now in effect entitling OHA to the
$129,584,488.85 paid to it pursuant to Act 304.
Admit: ___ Deny: ____
15. From the beginning of fiscal year 1994 (July 1, 1993) through April 1,
2002 the State has paid, from the General Fund, debt service, on General Obligation Funded
Debt of the State of Hawaii allocated to OHA, in the amount of $91,533,355.91. (Attachment 7 to the State Defendants' Answers to Interrogatories 4/11/02).
Admit: Deny: ____
16. Taxes are the largest single source of the money in the General Fund of the
State of Hawaii. (For example, CAFR for fiscal year ended June 30, 2001 shows total revenues received in the General Fund from taxes in the amount of $3,168,905,000 (which is about 93% of the total General Fund revenues) with the remaining amount, about 7% of the total General Fund revenues, coming from interest and investment income, charges for current services, accrued interest on general obligation bonds sold, etc.)
Admit: --- Deny: ____
17. Revenues from the public land trust are not credited to or accounted for in the General Fund.
Admit: --- Deny: ____
18. Appropriations from the General Fund are not, and cannot be, appropriations of revenues of the public land trust, no matter what they are called.
12 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ___ Deny: ____
19. As of April 1, 2002, the outstanding principal still owed by the State on the General Obligation Funded Debt allocated to OHA was $95,854,079.93. (Attachment 7 to
State Defendants' Answers to Interrogatories 4/11/02.)
Admit: --- Deny: ____
20. The legislature has appropriated and the State has paid to OHA some amounts from the General Fund for most of the years since 1980.
Admit: ___ Deny: ____
21. The legislature has appropriated and the State has paid to OHA (except for
FY 2003 which Plaintiffs believe has not yet been paid) the following amounts for the years and from the sources indicated:
Appropriations to OHA for years 7/1/97 - 6/30/03
Fiscal Year State Appropriations Totals General Fund "Special" Rev
1997- 2,808,201 15,100,000 $17,908,201
98 1998- 2,729,382 15,100,000 $17,829,382
99 1999- 2,550,922 8,238,109 $10,789,031
00 2000- 2,519,663 8,261,921 $10,781,584
01
13 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 2001- 2,619,663 4,446,029 $7,065,692
02 2002- 2,532,663 4,029,886 $6,562,549
03
Totals $15,760,494 $55,175,945 $70,936,439
Admit: --- Deny: ____
22. Each of the appropriations to OHA from the general fund listed in the immediately preceding question discriminated against State taxpayers not of Hawaiian ancestry because the appropriations increased their tax burden but the OHA laws exclude them from sharing in the benefits.
Admit: --- Deny: ____
23. By Act 2, Special Session of 2001, the Legislature appropriated to OHA from "General Funds" $2,619,663 for FY 02 and $2,532,663 for FY 03 in addition to the amounts appropriated from "Trust Funds" of $4,446,029 for FY 02 and $4,029,886 for FY 03.
Admit: ___ Deny: ____
24. Each of the appropriations to OHA from the general fund, listed in the immediately preceding question, discriminated against State taxpayers not of Hawaiian ancestry
(including the 13 Plaintiffs who are not of Hawaiian ancestry) because the appropriations increased their tax burden but the OHA laws exclude them from sharing in the benefits.
14 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ___ Deny: ____
25. As of February 28, 2002, per the OHA Financial Report, OHA held total assets of $343,738,581. Moneys appropriated by the legislature and paid by the State to OHA from the General Fund "equivalent to" a "pro rata portion of revenue derived from the public land trust" or from the proceeds of General Obligation bonds are the source of at least one half of those assets.
Admit: --- Deny: ____
26. Each of the appropriations to OHA from the General Fund "equivalent to" a "pro rata portion of revenue derived from the public land trust" or from the proceeds of General
Obligation bonds allocated to OHA for native Hawaiians, discriminated against State taxpayers not of native Hawaiian ancestry (including all Plaintiffs) because the appropriations increased their tax burden but the OHA laws exclude them from sharing in the benefits.
Admit: Deny: ____
Appropriations to HHCAlDIllIL and impact on taxpayers
27. The United States of America in 1959 had no compelling governmental interest in requiring, as a condition of statehood, that the new State of Hawaii adopt the Hawaiian
Homes Commission Act ("HHCAtI), whose only purpose is to provide benefits exclusively to
"native Hawaiians" defined by race.
Admit: ___ Deny: ____
28. The HHCA laws were not and are not now narrowly tailored to serve any compelling governmental interest of the United States.
15 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ---- Deny: ____
29. The State of Hawaii had and has no compelling governmental interest in adopting the RHCA or thereafter implementing the RHCA laws whose only purpose is to provide benefits exclusively to "native Hawaiians" defined by race.
Admit: ___ Deny: ____
30. The RHCA laws are not narrowly tailored to serve any compelling State interest.
Admit: ____ Deny: ____
31. The Honolulu Advertiser on April 4, 2001 and December 31, 2001 reported that the Hawaiian Homes Commission in 1994 had awarded Sandwich Isles
Communications, Inc,
the exclusive right to provide telecommunications services on all
Hawaiian Home Lands. The exclusive license was approved without any
competition or bidding. "With contract in hand, Hee applied for and received
low-interest federal loans from the U.S. Department of Agriculture under a
program designed to provide telecommunications services to sparsely populated
rural communities that wouldn't otherwise get fiber-optic cable.
"Part of the reason Sandwich Isles Communications has attracted interest
in Hawai'i political circles is that the company has ties to a variety of politicians
and current or former executives involved with Kamehameha Schools, another
politically influential local institution.
16 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection "AI Hee said his brother Clayton, chairman of the board of trustees of the
Office of Hawaiian Affairs, is not involved in the project. Sandwich Isles did hire
Clayton Hee's wife, Lynne Waters, to produce videos for presentations to business
leaders, homesteaders and others on the company's operations.
"Among the company's 22 employees are former Democratic House
Majority Leader Tom Okamura and former state Rep. Devon Nekoba, who both
carry the title of agency coordination officer. Hee said the two advise company
executi ves on government policy matters.
"Ties to Kamehameha Schools, formerly known as the Bishop Estate,
include Gil Tam, the company's vice president of government and community
relations, formerly director of administration and interim chief executive officer
for Bishop Estate; and Robert Kihune, chief exec uti ve officer, now a
Kamehameha Schools trustee.
"The Hawaiian Homes Commission chairwoman in 1994, when the
commission approved Hee's license, was Hoaliku Drake, the mother of former
Bishop Estate trustee Henry Peters. Clayton Hee is a friend of Peters and was
hired as a cultural affairs researcher for the Royal Hawaiian Shopping Center, a
subsidiary of the former Bishop EstatelKamehamaha Schools.
The State of Hawaii has no compelling governmental interest in permitting its officials to engage in nepotism or to award or continue to participate in non competitive contracts such as the one to Sandwich Isles Communications, Inc.
Admit: ---- Deny: ____
17 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 32. The Honolulu Advertiser on January 28, 2001 reported on the Hawaiian homestead project at Kalawahine Streamside on the hill above Roosevelt High School.
"The $26 million Kalawahine Streamside project was developed by
Kamehameha Investment Corp., a for-profit subsidiary of Kamehameha Schools
Trust, for the Department of Hawaiian Home Lands.
" This unique upper-middle-class neighborhood on Hawaiian homestead
land has 54 multilevel duplex units and 33 three-story single-family homes.
Selections were made off the Hawaiian Home Lands waiting list, but the asking
price of $174,900 to $196,100 for a duplex or $214,900 to $225,900 for a single
family unit made it unaffordable for most.
"These are the most expensive homes ever offered to applicants, and the
reason is the topography," project manager Elton Wong said. "The conditions
were challenging from a design and construction standpoint. But for location, it's
a good deal. Schuler Homes sells a market product of the same size for around
$385,000."
"Hiram deFries, Northwest region general manager for Equilon, formerly
Shell Oil Co., graduated from Punahou with Ayau's brother, Henry, and played
baseball with Mendes, 29-year-old Tamar deFries said. Ayau, 58, waited 37 years
for his entitlement opportunity. "I thought I'd never get it while I was alive," said
Ayau, who is retired from GTE Hawaiian Tel. "Homesteads in Wai 'anae and
Nanakuli were too far. "Eight years ago, I heard there might be something
happening in the Punchbowl area so I waited."
18 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection "Ayau and his wife, the former Aulani Ching, sold their Kamehameha
Heights home to move to Kalawahine Streamside. "To me, this is a one-of-a-kind
project because of the town location and the quality of the homes," Ayau said.
"An upper-middle-class community is a welcome addition to the area, say
Papakolea and Kewalo homestead leaders. "I like it," said Puni Kekauoha,
president of the Papakolea Community Association. "It's always nice to see our
people coming up to another level of li ving."
"Kekauoha was impressed by the newcomers' support in helping to
organize representation from the three communities for the recent homestead
rally-march to the State Capitol. [this rally-march was to protest a court case
seeking to declare unconstitutional the racial entitlement programs of the Office
of Hawaiian Affairs and the Department of Hawaiian Homelands]
"Among the Kalawahine residents are four Honolulu firefighters,
including captains Richard Soo and Ed Simeona, and many professional people.
"This neighborhood is setting a new standard," said Hee, the stockbroker and a
senior vice president at Morgan Stanley Dean Witter. "There are professional,
educated, hard-working Hawaiians who care about their community and take
pride in Ii ving among our people here.
"This is a throwback to the old Hawai'i neighborhoods where you knew
everybody and nobody had to lock their doors," said stockbroker Mark Hee, who
moved into a Kapahu Street duplex unit uphill from Ha 'alelea Place about a
month ago. "It's the kind of environment I had when I was growing up in Keolu
Hills 30 years ago." "It's like living in a mini San Francisco because of the hills,"
19 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection said Hee' s wife, Luana Alapa-Hee, a former Miss Hawai'i. "This neighborhood is
setting a new standard," said Hee, the stockbroker and a senior vice president at
Morgan Stanley Dean Witter. "There are professional, educated, hard-working
Hawaiians who care about their community and take pride in living among our
people here. "That's the real spirit I see at Kalawahine," added Hee. "We're proud
to be neighbors and happy with our environment." "
Articles in the Honolulu Star Bulletin September 9,2001 and in the
Advertiser April 4 and December 31, 2001 also covered the Kalawahine Streamside project in which the DHHL had provided $7 million in infrastructure and site related work.
The State has no compelling governmental interest in
providing infrastructure and public land to subsidize the purchase of homes worth
$385 thousand by upper middle class professionals and executives of one ancestry
but denying it to other citizens, even needy ones, who are not of the favored race.
Admit: ____ Deny: ____
33. In 1995 Special Session, Section 6, the legislature established the
Hawaiian home lands trust fund and the requirement that the State make twenty annual
deposits of $30 million into the trust fund.
Admit: ---- Deny: ____
34. The legislature, among other appropriations for other years, has
appropriated and the State has paid to HHCIDHHL and HHCIDHHL has received the
following amounts for the years and from the sources indicated:
20 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Appropriations & other revenues to DHHL (partial listing)
F Gen Intll Total Reference i State eral nv. s s Appropriations leas Inco c es me a I y e a r Gen G.O. eral Bond Fun Fund d
1 30,0 Act 14, 9 00,0 Spec. SL 1995 9 00 5 S.8(a)
9 6
2,34 S.9 8,55 8
2,39 S.10 0,00 " ° 1,53 S.11 9,00 " a 1 9 30,00 S.8(b) 9 0,000 6
9 7 1 86,00 $86,0 DHHL 9 0,000 00,00 AnnRept '00 9 a 7
9 9 1 1,33 12,00 6,89 6,67 $26,8 DHHL 9 2,04 0,000 2,25 5,68 99,97 AnnRept 'aD 9 5 2 2 9 9
21 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 0 0 2 1,35 15,00 6,15 6,89 $29,4 DHHL 0 9,54 0,000 0,52 8,75 08,82 AnnRept '01 0 6 0 7 3 0
0 1 2 1,35 6,01 $7,37 Decl 0 9,54 3,55 3,104 Jobie 0 6 8 Yamaguchi 1
0 2
T $40, $143, $19, $13, $215, 0 328, 000,0 056, 574, 959,4 t 695 00 330 439 64 a I s
Admit: Deny:
35. Each of the appropriations to DHHL from the general fund listed in
the immediately preceding question discriminated against State taxpayers not of native
Hawaiian ancestry (including all Plaintiffs) because the appropriations increased their tax
burden but the OHA laws exclude them from sharing in the benefits.
Admit: --- Deny: ____
36. Each of the appropriations to DHlll.. from the G.O. Bond Fund
(General Obligation Bond Fund) listed in the question before the immediately preceding
question, discriminated against State taxpayers not of native Hawaiian ancestry
(including all Plaintiffs) because the appropriations increased their tax burden but the
RHeA laws exclude them from sharing in the benefits.
22 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ___ Deny: ____
37. From the beginning of fiscal year 1998 (July 1, 1997) through
April 1, 2002 the State has paid, from the General Fund, debt service, on General
Obligation Funded Debt of the State of Hawaii allocated to the Hawaiian Home Land
Trust Settlement, in the amount of $35,148,474.85. (Attachment 9 to State Defendants'
Answers to Interrogatories 4/11102.)
Admit: --- Deny: ____
38. The debt service payments in the amount of $35,148,474.85 from
the General Fund summarized in the immediately preceding question discriminated
against State taxpayers not of native Hawaiian ancestry (including all Plaintiffs) because
the payments increased their tax burden but the RHeA laws exclude them from sharing
in the benefits.
Admit: ___ Deny: ____
39. As of April 1, 2002, the outstanding principal still owed by the
State on the General Obligation Funded Debt allocated to the Hawaiian Home Land Trust
was $126,277,234.55. (Attachment 9 to State Defendants' Answers to Interrogatories
4/11102.)
Admit: ___ Deny: ____
23 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 40. The $126,277,234.55 outstanding principal still owing on the debt
incurred for the Hawaiian Home Land Trust summarized in the immediately preceding
question discriminates against State taxpayers not of native Hawaiian ancestry (including
all Plaintiffs) because the burden of repaying it rests on their shoulders as taxpayers but
the HHCA laws exclude them from sharing in the benefits.
Admit: Deny: ____
41. As of June 30,2001, HHCIDHHL had cash and short-term
investments held in State Treasury of $153,084,506. Moneys appropriated and paid to
HHCIDHHL from the General Fund or from the proceeds of General Obligation bonds
are the source of at least one half of that cash and short-term investment.
Admit: ___ Deny: ____
Neither "Hawaiians" nor "native Hawaiians" are a recognized
Indian Tribe
42. The U.S. Department of Interior has not expressly recognized
Hawaiians as an Indian tribe or as the equivalent of an Indian tribe.
Admit: ---- Deny: ____
43. The U.S. Department of Interior has not expressly recognized
native Hawaiians as an Indian tribe or as the equivalent of an Indian tribe.
Admit: ____ Deny: ____
1. The U.S. Congress has not expressly recognized Hawaiians as an
Indian tribe.
24 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Adrnit: ___ Deny: ____
2. The U.S. Congress has not expressly recognized Hawaiians as the
equivalent of an Indian tribe.
Admit: ---- Deny: ____
3. The U.S. Congress has not expressly recognized native Hawaiians
as an Indian tribe or as the equivalent of an Indian tribe.
Admit: ---- Deny: ____
4. Hawaiians do not satisfy the seven mandatory criteria in 25 CFR
§83.1 for recognition as an Indian tribe.
Admit: ---- Deny: ____
s. Native Hawaiians do not satisfy the seven mandatory criteria in 25
CFR §83.1 for recognition as an Indian tribe.
Admit: Deny: ____
6. No quasi-sovereign entity or entities have exercised political
influence over all persons who meet the definition of Hawaiian continuously from
historic times to the present.
Adrnit: ___ Deny: ____
25 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 7. No quasi-sovereign entity or entities have exercised political
influence over all persons who meet the definition of native Hawaiian continuously from
historic times to the present.
Admit: ___ Deny: ____
Historical Facts
8. The ancestors of the people who lived in Hawai'i in 1778
immigrated to Hawai'i from other Polynesian islands.
Admit: Deny: ____
9. Archeologists estimate that the earliest settlement of Hawai'i
occurred sometime before 800 A.D. and after 1 B.C. PATRICK V. KIRCH, THE ROAD OF
THE WINDS, 289-300 (2000) (copy attached as Exhibit 1); Ross CORDY, EXALTED SITS
THECIllEF: THE ANCIENT HISTORY OF HAWAl' I ISLAND 104-109 (2000) (copy attached
as Exhibit 2).
Admit: ____ Deny: ____
10. Hawaiian legends recount stories of voyages from other Polynesian
islands to Hawai'i and voyages from Hawai'i to other Polynesian islands over many
generations.
Admit: ---- Deny: ____
26 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 11. The Hokule'a voyaging canoe has made round trips from Hawai'i to
other Polynesian islands including Tahiti, the Marquesas Islands, Rapa Nui (Easter
Island) and New Zealand (Aotearoa) using ancient Polynesian navigational techniques.
Admit: ____ Deny: ____
12. To qualify for benefits from OHA and DHHL it is not necessary for an
applicant to prove that he or she is descended from people on the first voyaging canoe to
reach Hawai'i or from members of the first Polynesian settlement in Hawai'i.
Admit: ____ Deny: ____
13. No non-Polynesians are known to have reached Hawai'i before
Captain James Cook in 1778.
Admit: ____ Deny: ____
14. In 1778, the ali'i 'ai moku (paramount chief or king) of each of the
island kingdoms (centered on Hawai'i, Maui, Oahu, and Kauai, respectively) assigned
lands to his leading ali'i followers who administered the lands and the people who lived
on the lands. Ali'i who were assigned land by the ali'i 'ai moku assigned some lands to
their own followers.
Admit: ---- Deny: ____
27 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 15. In 1778, the commoners (maka'ainana) transferred resources (food and
other items) to ali'i in return for the use of the land they farmed and in return for
opportunities to gather resources and to fish.
Admit: ---- Deny: ____
16. In 1778, the ali'i in charge of an ahupua'a (the konohiki) collected
resources produced by the commoners, kept some for his own use and the use of his
household, passed some on to the ali'i 'ai moku, and redistributed some resources to
commoners (maka' ainana).
Admit: ____ Deny: ____
17. In 1778, the distribution of lands was on a revocable basis; the ali'i 'ai
moku could remove a konohiki he or his predecessor had appointed.
Admit: Deny: ____
18. In 1778, the konohiki could evict maka'ainana from the land if they
failed to pay resources to the konohiki and ali'i 'ai moku or failed to follow orders issued
by the konohiki and ali'i 'ai moku. The konohiki could change the rules regarding
gathering and fishing and could increase the amount of resources the maka' ainana were
required to transfer to the konohiki.
Admit: ____ Deny: ____
28 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 19. In 1778, when an ali'i ai moku died, his successor could reassign land
to new konohiki and other users.
Admit: ---- Deny: ____
20. In 1778, the ali'i and the maka' ainana were not bound to the land but
could move about as they wished and take jobs on other land and on other islands if they
wished and if they could find such jobs.
Admit: ---- Deny: ____
21. Captain James Cook of the British Royal Navy arrived in Hawai'i the
first time in 1778.
Admit: ---- Deny: ____
22. Kamehameha I became King (ali'i 'ai moku) of the Island of Hawai'i
by defeating rival chiefs in war.
Admit: ---- Deny: ____
23. Kamehameha I became the first King of the Kingdom of Hawai'i by
conquering rival kingdoms or chiefdoms based on Maui and Oahu.
Admit: ____ Deny: ____
29 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 24. Kamehameha I used guns and employed English and American
advisors in his wars of conquest.
Admit: ____ Deny: ____
25. Kamehameha I appointed his English advisor John Young as governor
of the Island of Hawai'i. 1 KUYKENDALL, THEHAWAllAN KINGDOM 54 (1938).
Admit: Deny: ____
26. Kamehameha I appointed his American advisor Oliver Holmes as
governor of Oahu. 1 KUYKENDALL, THE HAWAIIAN KINGDOM 54 (1938).
Admit: Deny: ____
27. Kamehameha I, other ali'i and commoners traded with visiting
foreigners for foreign goods such as weapons, tools and lUXUry goods.
Admit: ____ Deny: ____
28. After Kamehameha I died in 1819, his widow, the Kuhina Nui
Ka'ahumanu and his son King Kamehameha IT, having seen foreigners ignore the kapu
rules with impunity for decades, overthrew the traditional religion and kapu system,
freeing women from traditional restrictions and destroying the statues of the old gods.
LILlKALA KAME'ELEllnWA, NATIVE LANDS AND FOREIGN DESIRES 74-79 (1992); 1
KUYKENDALL, THE HAWAIIAN KINGDOM 65- 70.
30 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ____ Deny: ____
1. After Ka' ahumanu and Kamehameha II overthrew the old religion,
Christian missionaries anived in 1820 and Ka'ahumanu and many other Hawaiians chose
to convert to Christianity.
Admit: ____ Deny: ____
1. In 1839 Hawai'i for the first time adopted a Bill of Rights, which
provided that the government was to respect private property rights.
Admit: ____ Deny: ____
2. In 1840, King Kamehameha ill proclaimed Hawai'i's first
Constitution, which incorporated the 1839 Bill of Rights and provided for a constitutional
monarchy.
Admit: ____ Deny: ____
3. Under the constitutional monarchy, Hawai'i followed the common law
rule of jus soli relating to citizenship. All persons born within the jurisdiction of the
Kingdom of Hawai'i, whether of alien foreigners, of naturalized or of native parents were
subjects of the Kingdom. I Statute Laws of Kamehameha III, § III (1846); Wong Foong
v. U.S., 69 F.2d 681, 682-683 (9th eire 1934).
31 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ____ Deny: ____
4. Under the constitutional monarchy, Hawai'i courts generally followed
the Anglo-American common law.
Admit: ---- Deny: ____
5. Alien immigrants could apply for naturalization as subjects of the
Kingdom of Hawai'i and could become naturalized subjects, regardless of their ancestry
or place of birth.
Admit: Deny: ____
6. A naturalized subject was deemed to be for all intents and purposes a
native of the Hawaiian Islands and entitled to all the rights, privileges and immunities of
an Hawaiian subject. 1859 Civil Code § 432.
Admit: Deny: ____
7. Between 1844 and 1894, using these provisions, 3,239 foreigners
became naturalized. Index to the Naturalization Record Books for Individuals
Naturalized by the Minister of the Interior of the Hawaiian Islands, 1844-1894 (no date)
(available in Hawai'i State Archives).
32 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ____ Deny: ____
8. Alien immigrants who wished to retain the citizenship of their country
of origin could apply for and become "denizens" of the Kingdom of Hawai'i, entitled to
full political rights of subjects, including voting and holding public office. Aliens and
Denizens, 5 Haw. 167 (1884).
Admit: ____ Deny: ____
9. The Kingdom government granted 143 foreigners letters of denization.
H. Arai, Indices to Certificates of Nationality 1846-1854, Denization 1846-1898, Oaths
of Loyalty to the Republic from Oahu 1894, and Certificates of Special Rights of
Citizenship 1896-1898 (1991).
Admit: ---- Deny: ____
10. Under the Kingdom of Hawai'i, naturalized subjects and denizens held
public offices, including cabinet posts, legislative seats, and judgeships.
Admit: ---- Deny: ____
33 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 11. In 1845, the Legislature of the Kingdom enacted a statute that created
the Board of Commissioners to Quiet Land Titles (the "Land Commission"). JON J.
CHINEN, THE GREAT MAHELE 8 (1958).
Admit: ---- Deny: ____
12. In 1846, the Land Commission adopted the Principles Adopted By the
Board of Commissioners to Quiet Land Titles in Their Adjudication of Claims Presented
to Them ("the Principles of the Land Commission). CHINEN, THE GREAT MAHELE at 9.
Admit: ---- Deny: ____
13. In 1848, during the Mahele, King Kamehameha ill and approximately
245 ali'i exchanged quitclaim deeds separating their respective interests in the lands of
Hawai'i. These transactions were recorded in the Mahele Book. CHINEN, THE GREAT
MAHELE at 15-24.
Admit: ____ Deny: ____
14. To obtain clear fee simple titles to their lands each ali'i who exchanged
quitclaim deeds with the King recorded in the Mahele Book was required to obtain an
award from the Land Commission and to pay a commutation fee to the Government equal
to one-third of the unimproved value of the land. CHINEN, THE GREAT MAHELE at 21-24.
34 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ____ Deny: ____
15. In 1848, King Kamehameha lIT divided the lands that had been
quitclaimed to him by the ali'i between himself and the Government of the Kingdom,
retaining approximately 1,000,000 acres of land as his private lands. CmNEN, THE
GREAT MAHELE at 25-27.
Admit: ---- Deny: ____
16. The interests in land divided among the King, ali'i and Government
were subject to the rights of native tenants. In 1850, the Legislature of the Kingdom
enacted a statute that provided for the procedure by which commoners could obtain
"kuleana" grants of land in which they asserted rights. Laws of Hawai'i 1850 p. 202;
Revised Laws of Hawai'i 1925 Vol. IT, pp. 2141-42; CI-llNEN THE GREAT MAHELE at 29.
Admit: Deny: ____
17. Under the procedure enacted by the Legislature, a commoner seeking a
kuleana grant had to be the head of a household engaged in cultivating the land; had to
apply to the Land Commission for an award granting him a fee interest; had to prove that
he and his family was actually cultivating the land he sought to acquire; had to have the
35 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection land surveyed; and had to complete the process laid out in the law to obtain an Land
Commission Award.
Admit: ---- Deny: ____
18. Commoners did not have to pay commutation fees to the Government
for kuleana awards.
Admit: ---- Deny: ____
19. Commoners could also apply for houselots in Honolulu, Hilo and
Lahaina.
Admit: ---- Deny: ____
20. Commoners who received fee simple interests in kuleana in the
Mahele could no longer be dispossessed at the will of the konohiki and no longer were
required to pay whatever rent the konohiki set.
Admit: ____ Deny: ____
21. Any commoner who did not complete the process of applying for a
Land Commission Award and did not receive such an award by 1855 had no enforceable
legal right to the land that he had been cultivating but was a tenant at will of the konohiki.
36 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ____ Deny: ____
22. As a result of the Kingdom Government's Mahele process, the ali'i
received over 1.5 million acres of land the King received about 1 million acres; the
Government received approximately 1.5 million acres; and less than 30,000 acres went to
native tenants. CHINEN, THEGREATMAHELE at 31.
Admit: ____ Deny: ____
23. Any commoner who did not receive a grant in the Mahele process was
entitled to purchase land for 12.5 cents per acre. Laws 1851 p. 52, reprinted in 1925
R.L.H. Vol. II at 2196-97, as amended by Laws 1853 p. 55, reprinted in id. at 2197.
Admit: Deny: ____
24. Between 1846 and 1893, the Government of the Kingdom sold at least
613,233 acres of Government Land to anyone who wanted to buy it. ROBERT H.
HORWITZ, ET AL, PuBLIC LAND POLICY IN HAWAI'I: AN HISTORICAL ANALYSIS,
(Legislative Reference Bureau) 1969, Appendix I, attached hereto as Exhibit "3."
Admit: ____ Deny: ____
25. The Act of January 3, 1865, Laws 1864 p. 69 reprinted in 1925 R.L.H.
at 2177-79, enacted by the Legislature of the Kingdom and signed by King Kamehameha
37 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection V made the King's lands, inherited from Kamehameha ill and Kamehameha IV, Crown
Lands (except lands that had been sold before passage of the Act). Thereafter, the
monarch could not sell the Crown Lands and they were managed by the Commissioners
of Crown Lands.
Admit: ____ Deny: ____
26. The United States recognized the Kingdom of Hawai'i as an
independent country, not as an Indian tribe, and entered into a Treaty of Reciprocity with
the Kingdom of Hawai'i in 1875, and renewed it in 1884, after it had ceased making
treaties with Indian tribes.
Admit: ---- Deny: ____
27. In 1852, King Kamehameha III proclaimed Hawai'i's second
constitution, after it had been approved by the Legislature of the Kingdom.
Admit: Deny: ____
28. In 1864, King Kamehameha V dissolved the legislature and the
constitutional convention and proclaimed a new constitution, replacing the Constitution
of 1852, and relying on his claim that as King he had authority to replace one constitution
with another. 2 KUYKENDALL, THEHAWATIANKIN'ODOM 127-134 (1953).
Admit: ____ Deny: ____
38 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 29. In 1864, the Kingdom Legislature created a Board of Immigration to
encourage immigration. Immigrants were actively recruited from the South Pacific, Asia
and Europe. 2 KUYKENDALL, THE HAwAllAN KINGDOM at 177-85.
Admit: Deny: ____
30. During King Kalakaua's trip around the world in 1881 he stopped in
Japan and told the Japanese government that in accordance with the policy of the
government of Hawai'i to increase population by inviting immigration from other
countries, any Japanese who desired to settle in the Hawaiian kingdom would be
permitted to do so. He also proposed a marriage between his niece, Princess Kaiulani and
a Japanese prince. 3 KUYKENDALL THE HAwAllAN KINGDOM at 156.
Admit: Deny: ____
31. In 1887, King Kalakaua promulgated a new constitution as a result of
pressure from some of his political opponents; it reduced the monarch's powers.
Admit: ____ Deny: ____
32. Queen Liliu'okalani also claimed the right to promulgate a new
constitution on her own authority as monarch. Ln..ruoKALANI, HAwAll'S STORY BY
HAWAll'S QUEEN (1898) at 21.
Admit: ____ Deny: ____
39 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 33. In 1890, persons of Hawaiian and part Hawaiian ancestry made up
approximately 45 % of the population of Hawaii. SCHMlTI', HISTORICAL STATISTICS OF
HAWAI'I74 (1977) (reporting statistics from 1890 census).
Admit: Deny: ____
34. In 1896, persons of Hawaiian and part-Hawaiian ancestry made up
approximately 36 % of the population of Hawai'i. SCHMlTI', HISTORICAL STATISTICS OF
HAWAI' I 74 (1977) (reporting statistics from 1896 census).
Admit: Deny: ____
35. In 1893, most adults of Hawaiian ancestry were not eligible to vote
because of gender, property and literacy restrictions on the franchise.
Admit: ---- Deny: ____
36. On January 14, 1893. Queen Liliu'okalani publicly announced that she
intended to promulgate a new Constitution.
Admit: ---- Deny: ____
37. On January 17, 1893, Queen Liliu'okalani was overthrown by her
political opponents led by Sanford B. Dole and Lorrin Thurston.
Admit: Deny: ____
40 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 38. Both Dole and Thurston were born in Hawai'i and so were native-born
subjects of the Hawaiian Kingdom.
Admit: ____ Deny: ____
39. On January 16, 1893, U.S. Navy Captain G.C. Wiltse, commanding
the U.S.S. Boston in Honolulu Harbor, ordered sailors and marines to go ashore to
preserve public order. He issued his order before receiving Minister Stevens' request for
assistance. The American sailors and marines landed despite a request by the
revolutionaries that they not be landed yet. The marines took up positions guarding the
American Legation and Consulate. The sailors camped out in space rented for them by
the United States Minister at Arion Hall. 3 KUYKENDALL, THE HAwAllAN KINGDOM at
594-95; WILLIAM ADAM Russ, THE HAwAllAN REVOLUTION (1893-94) at 83 n.65, 105-
06.
Admit: ____ Deny: ____
40. Neither the marines nor the sailors fired any weapons or threatened to
do so.
Admit: ____ Deny: ____
41 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 41. When asked by one of the revolutionaries what the United States
forces would do, the commander of the United States forces on shore said that they were
there to preserve public order and would support the Queen if she asked them to. Capt.
Wiltse refused the revolutionaries' requests for assistance. WILLIAM ADAM Russ, THE
HAWAIIAN REVOLUTION (1893-94) 86, 89 (1959).
Admit: ---- Deny: ____
42. On January 17, 1893, the Queen surrendered. She cast the surrender in
the form of a surrender to the United States but the surrender document was tendered to
Sanford Dole. 3 KUYKENDALL, THE HAwAllAN KINGDOM at 603
Admit: Deny: ____
43. Between January 17 and 19, 1893, all of the countries which had
recognized Hawai'i as an independent country and which had diplomats resident in
Honolulu recognized the Provisional Government as the government of Hawai'i. Russ,
THE HAWAIIAN REVOLUTION at 110.
Admit: ---- Deny: ____
44. In February 1893, representatives of the Provisional Government of
Hawai'i and representatives of the United States negotiated a treaty of annexation by
42 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection which Hawai'i would be annexed to the United States. President Harrison approved the
treaty and asked the Senate to ratify the treaty.
Admit: ____ Deny: ____
45. President Grover Cleveland, who succeeded President Hanison in
March 1893"having defeated him in the 1892 election, withdrew the treaty of annexation
before the Senate acted on it.
Admit: ____ Deny: ____
46. President Cleveland sent James Blount to Hawaii investigate the
overthrow of the monarchy. Blount filed a report that was highly critical of the actions of
the United States Minister, John Stevens, whom he accused of supporting the overthrow.
Admit: ____ Deny: ____
47. President Cleveland withdrew all American support for the Provisional
Government and demanded that its President, Sanford B. Dole, hand back power to the
Queen. Dole and the Provisional Government refused Cleveland's demands and denied
that President Cleveland had any authority in Hawai'i.
Admit: ____ Deny: ____
43 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 48. President Cleveland sent a message to Congress that accused Minister
Stevens of assisting in the overthrow. Cleveland asked Congress' advice about what to
do.
Admit: ____ Deny: ____
49. The Senate Committee on Foreign Relations conducted its own
investigation, called witnesses to testify under oath, and concluded that Captain Wiltse
and Minister Stevens had acted properly. Congress took no other action on President
Cleveland's message.
Admit: ____ Deny: ____
50. In 1894, the Republic of Hawai'i was formed as the successor of the
Provisional Government. The Constitution of the Republic provided that everyone born
in Hawai'i was a citizen of Hawai'i.
Admit: ____ Deny: ____
51. The Republic of Hawai'i was recognized as the government of Hawai'i
by the United States and other countries that had diplomatic relations with Hawai'i,
including Britain and Japan.
44 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection Admit: ---- Deny: ____
52. The Provisional Government and the Republic did not seize any
privately owned land.
Admit: ____ Deny: ____
53. The Constitution of the Republic provided that the Crown Lands
would not be held in a special trust but would be part of the Government Lands.
Admit: Deny: ____
54. The Government Lands of Hawai'i remained Government Lands after
the overthrow of Queen Liliu' okalani, although the people in charge of the government
changes and the form of government changed from a Monarchy to a Provisional
Government to a Republic.
Admit: ---- Deny: ____
55. In 1895, supporters of Liliu'okalani attempted to overthrow the
Republic, but failed to do so. Liliu' okalani subsequently abdicated as Queen but later
maintained that she had been forced to do so by threats to execute her followers.
Admit: Deny: ____
45 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 56. In 1897, President McKinley, who had succeeded President Cleveland,
negotiated a new treaty of annexation with the Republic of Hawai'i. He submitted the
treaty to the Senate and asked the Senate to approve the treaty. The Senate did not vote
on the treaty in 1897.
Admit: Deny: ____
57. In 1898, Congress approved a Joint Resolution for Annexation of
Hawai'i (sometimes called the "Newlands Resolution"), Resolution No. 55 of July 7,
1898,30 Stat. 750, which ratified the treaty of annexation and annexed Hawai'i to the
United States. The House of Representatives approved the Joint Resolution by more than
a two-thirds majority. The Senate approved the Joint Resolution by a two-thirds
majority. Russ, THEHAWAllANREPUBLIC (1894-98) 341,353 (1961).
Admit: ---- Deny: ____
58. In 1900, Congress enacted the Organic Act that organized the Territory
of Hawaii. Act of April 30, 1900, c. 339, 31 Stat. 141.
Admit: Deny: ____
46 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection 59. Voters of Hawaiian ancestry were a majority of the electorate of the
Territory through the 1922 election although persons of Hawaiian ancestry were a
minority of the population of the Territory. Voters of Hawaiian ancestry were a plurality
of the Territorial electorate through the 1938 election. LAWRENCE H. fuCHS, HA WAf!
PONO: A SOCIAL HISTORY 161 (1961).
Admit: ---- Deny: ____
VERIFICATION
STATEOF ______) ) COUNTYOF ______)
______, being first duly sworn on oath, deposes and says that he/she is a Defendant herein, that he/she has read the foregoing responses to Request for Admissions and knows the contents thereof and that the same are true to the best of hislher information and belief.
Subscribed and sworn to before me this __ day of ,1997.
NOTARY PUBLIC, State of Hawaii My commission expires: _____
47 University of Hawaii School of Law Library - Jon Van Dyke Archives Collection