The Lum Court and Native Hawaiian Rights by Melody Kapilialoha MacKenzie* I. INTRODUCTION Since Herman Lum became Chief Justice of the Hawaii Supreme Court in 1983, the court has issued relatively few opinions dealing with Native Hawaiian issues. Those few opinions may not be sufficient to allow a fair assessment of the Lum Court's attitude toward Native Hawaiian rights. Only five published decisions can be identified as dealing with "purely" Native Hawaiian issues. The rest, while brought by Hawaiians and affecting Native Hawaiian concerns are not strictly Hawaiian rights cases. The few cases heard and determined by the court indicate that the Lum Court is not receptive to Native Hawaiians rights. Indeed, none of the cases expands or advances those rights. With one important exception, Ahia v. Department of Transportation,' all of the court's Native Hawaiian rights decisions have been rendered by a unanimous court. Many of the decisions issued are in fact memorandum opinions and have no precedential effect. These opinions are discussed here because they mark a disturbing trend by the court to issue memorandum opinions even where a published opinion could clarify or develop the existing body of law. II. THE NATIVE HAWAIIAN TRUSTS Perhaps the clearest opportunity for the Lum Court to play a more dynamic, but still judicially appropriate, role in recognizing Native * B.A., Beloit College, Beloit, Wisconsin; J.D., Wm. S. Richardson School of Law, 1976. The author clerked for Chief Justice William S. Richardson of the Hawaii Supreme Court from 1976 to 1980. 1 69 Haw. 538, 751 P.2d 81 (1988) (Nakamura, J.). University of Hawai'i Law Review / Vol. 14:377 Hawaiian rights is in interpreting the two Native Hawaiian trusts- the Hawaiian Home Lands Trust and the Public Land Trust. The court's task in these instances would be merely to construe the appli- cable statutes establishing the trusts consistent with the state's fiduciary responsibility. The court's decisions, however, have been disappoint- ingly conservative, merely confirming the status quo or worse. A. The Hawaiian Home Lands Trust In 1921, the United States Congress passed the Hawaiian Homes Commission Act (HHCA), 2 setting aside between 188,000 acres and 203,000 acres of public trust lands for homesteading by Native Ha- waiians.' Under the HHCA, Native Hawaiians could obtain ninety- nine year leases at the rate of a dollar per year, for residential, pastoral, and agricultural lots. The HHCA also provided for services to assist the beneficiaries with the establishment of these homesteads. Congress, however, restricted eligibility for the program to Native Hawaiians of fifty percent or more Hawaiian blood. Primary responsibility for ad- ministration and management of the Hawaiian Homes program was transferred to the State of Hawaii as a condition of statehood.4 The program is now administered by a state agency, the Department of Hawaiian Home Lands, whose executive board is the Hawaiian Homes Commission. The federal government, however, still retains responsi- bility for certain aspects of implementing the original act and Congress has retained the power to amend the act.' In 1985, the Hawaiian Homes Commission (Commission), leased 4.3 acres of Hawaiian Homes lands to the Department of Transpor- tation (D.O.T.) for a public boat ramp at Kaulana, Kama'oa-Pu'u'eo, Ka' for $10,575, or the construction of certain improvements designed to accelerate homesteading in the area. Several beneficiaries challenged the Commission's authority, under section 204 of the HHCA, to lease the area to a public agency. Section 204(2) authorizes the Commission 2 42 Stat. 108 (1921), reprinted in I HAW. REV. STAT. at 167-205 (1985) (adopted in the HAW. CONST. art. XII, S 1). I See MELODY KAPILIALOHA MAcKENZIE, NATIVE HAWAIIAN RIGHTS HANDBOOK 43-76 (1990), for a detailed analysis of the HHCA and its implementation. Hawaii Admission Act 5§ 4, 5, 73 Stat. 4 (1959), reprinted in 1 HAW. REV. STAT. at 86-89 (1985). 1 Id.; HHCA § 223, 42 Stat. 108 (1921), reprinted in 1 HAW. REV. STAT. at 167- 205 (1985). 1992 / NATIVE HAWAIIAN RIGHTS to lease lands not required for homesteading to the public. The beneficiaries contended that a government agency, such as the D.O.T., is not a member of the public within the meaning of section 204(2). The Hawaii Supreme Court in Ahia v. Department of Transportation, in a three-to-two decision, agreed with the Commission that section 204 allows such a disposition. 6 In a lengthy opinion, Justice Nakamura, writing for the majority, determined that the elimination of the term "general public" in an earlier version of section 204(2) and the substitution of the term "public" indicated an intention by the legis- lature to include government agencies.7 According to the majority, the term "general public" refers to the people or community at large, but does not include organized government. 8 The legislative committee reports on the amendment indicated that one of its purposes was to "grant the Department of Hawaiian Home Lands (Department) full authority to manage available Hawaiian home lands not required for leasing[.]" 9 The committee reports, however, gave no reason for the deletion of "the general public" and the substitution instead of "the public."10 The court concluded, however: In light of the stated purpose to invest the Commission with 'full authority to manage retained available .. .lands,' we think the amend- ment could only have been meant to dispel any notion that the Com- mission was not vested with such authority, including the power to lease to the government or its agencies 'available lands not required for leasing [as homestead lands to beneficiaries]." 1 The majority opinion did not specifically address whether this dis- position constituted a breach of the Commission's trust responsibility, but given the court's handling of other issues raised by the beneficiaries, it is unlikely that the majority would have found a breach of the trust. For instance, the beneficiaries had asserted that the lands in question were immediately needed for homesteading purposes. In disposing of that issue, the majority recognized that the Kama'oa-Pu'u'eo lands had never been leased to Native Hawaiians for homesteading, but justified the Commission's decision to lease the lands to the D.O.T. 6 69 Haw. 538, 751 P.2d 81 (1988). 7 Id. at 548, 751 P.2d at 88. Id. at 547, 751 P.2d at 88. Id. at 547, 751 P.2d at 87 (citing SEN. STANDING COMM. REP. No. 600-76, reprinted in 1976 HAW. SEN. J. 1141). 10 Id. I Id. University of Hawai'i Law Review / Vol. 14:377 as one that would bring water to the area and make it possible to start 2 a homesteading program. The minority opinion," written by Justice Padgett, with Justice Hayashi concurring, addressed the breach of trust question. Under the second paragraph of HHCA section 204(2), in giving a lease for "commercial, industrial, or other business purposes" the Department is required to give preference to Native Hawaiians. The appellants, Native Hawaiian beneficiaries, had alleged that they were willing and able to take the lease in question. The majority opinion rejected the notion that the lease was for a commercial purpose. Justice Padgett pointed out, however, that the two terms are not mutually exclusive; a boat ramp may be used by the public but can also serve a commercial purpose if fees are charged.' 4 The minority concluded that as long as the lease had commercial as well as public aspects to it, the Commission had a fiduciary responsibility to, at least, give consideration to making the lease to beneficiaries. 5 Justice Padgett also took the Commission and Department to task, reminding them that they, unlike other government agencies, are held to higher fiduciary responsibilities in 16 dealing with beneficiaries. The minority opinion then examined the construction of section 204(2). Another provision of HHCA, section 207(c), allows the De- partment to grant utility easements and licenses for public purposes. If section 204(2) can be read as giving the Department the authority to lease lands for public purposes, then, Padgett argued, the provisions of section 207(c) are "mere surplusage, devoid of any effect.' 17 Advocating a "holistic" approach, Justice Padgett concluded that the HHCA contains a "complete framework for dealing with the trust lands."'" This framework allows the Commission to make certain dispositions for public purposes and, with restrictions, to make leases to the public. It does not, in the minority's judgment, grant the Commission the unrestricted power to make leases for public purposes 9 to other government agencies. ' Justice Padgett, in an important foot- 12 Id. at 550, 751 P.2d at 89. 13 Id. at 552, 751 P.2d at 89 (Padgett, J., dissenting). 14 Id. at 553, 751 P.2d at 90. IS Id. at 554, 751 P.2d at 91. ,6 Id. at 553, 751 P.2d at 91. 17 Id. at 556, 751 P.2d at 92. 8 Id. at 557, 751 P.2d at 93. 19 Id. at 557-58, 751 P.2d at 93. 1992 / NATIVE HAWAIIAN RIGHTS note, recognized that his construction of the HHCA would require legislative action to validate certain dispositions of trust lands made by the Department. He concluded, however, [I]f there is to be a power, in the Department, to turn over trust lands to other government agencies, it should be as a result of express language enacted by the legislature and approved by Congress with a full public debate on the desirability and the terms thereof. We owe the trust and 20 its Native Hawaiian beneficiaries no less.