On July 17, 2019, peaceful protests opposing the development of the TMT on Maunakea reached a critical and sorrowful moment when 33 kūpuna and one caregiver were arrested on the Maunakea Access Road (MKAR) which leads to the summit of the mauna.
Adding to the deep kaumaha of that day was the fact that the road is built on Hawaiian Homelands – lands that are held by the state in trust for Native Hawaiian beneficiaries under the Hawaiian Homes Commission Act (HHCA).
In 2018, one year prior to the arrests, the Department of Transportation (DOT) declared the road and the lands underlying it as belonging to the DOT, not the Department of Hawaiian Home Lands (DHHL) or the Home Lands trust.
HHCA/DHHL beneficiaries Pualani Kanakaʻole Kanahele, Edward Halealoha Ayau, and Keliʻi “Skippy” Ioane, represented by Native Hawaiian Legal Corporation (NHLC), challenged the DOT’s taking of Hawaiian land without compensation, consultation with beneficiaries, or due process as required under the HHCA in Kanahele, et. al. v. State, et. al. (“Kanahele”).
After years of litigation the question was settled by the Hawai’i Supreme Court in a unanimous, definitive opinion written by Justice Sabrina McKenna that was issued on May 20, 2024. The court held that the DOT was wrong in taking the lands, and that DHHL breached its trust duties by allowing the DOT to do so without following due process or requiring compensation.
The Supreme Court opinion noted that, “…land designated as Hawaiian home lands must remain under the control of the DHHL unless the land is sold or exchanged consistent with the HHCA…There is nothing in the record indicating a land exchange or sale was completed…The State blatantly disregarded unambiguous requirements of the HHCA, and in doing so, breached its constitutional and fiduciary obligation to faithfully carry out the HHCA.
“…It is troubling that the DOT unlaterilly designated the MKAR as a state highway via an internal memo. Instead of following the procedures for a land exchange or sale as described in HHCA sections 204(a)(3) and 205 and 43 C.F.R. part 47, the State – particularly the HHC members and DHHL – blatantly breached their fiduciary duties by allowing the illegal taking and then failing to remedy the designation that violated the HHCA.”
The case continues to determine the appropriate remedies to address these breaches of trust.
Beyond concerns addressed in Kanahele regarding the state’s mismanagement of the land beneath the Maunakea access road, it also aims the spotlight on the fact that, across the pae ʻāina, there are many instances of public use of Hawaiian Home Lands without compensation by other state agencies.
Many roads, schools, and parks across the state sit on Hawaiian Home Lands. These public uses do not advance the purpose of the HHCA to get Native Hawaiians onto the ʻāina.
In the Kanahele opinion, McKenna specifically mentions another example of uncompensated public uses of Hawaiian Home Lands: “As an example of an unlawful taking, 65 acres of Hawaiian Home Lands were used by the State Department of Education for Nānākuli High School. The record does not appear to explain whether or how this matter was resolved.”
Uncompensated use of DHHL trust lands for purposes other than homes for beneficiaries is a serious injustice impacting Hawaiian families.
“When state agencies use Hawaiian Home Lands without the trust being compensated, beneficiaries suffer. A very small percentage of land in Hawaiʻi was taken into trust for the Hawaiian Home Lands program. Those lands are for Hawaiian families to get back to the ʻāina,” said NHLC Executive Director Makalika Naholowaʻa.
“That’s what Prince Kūhiō fought for in the 1920s when the HHCA was passed by the U.S. Congress, and thatʻs the purpose all agencies in the state should respect today. More people are on the homestead waitlist than there should be, and many have died waiting because these lands are not being put to their intended use for Native Hawaiians.”
A task force was created by the United States Secretary of the Interior and Gov. John Waiheʻe in the 1980s to investigate public misuse of trust lands. The task force concluded that, in many ways, the state had not met its fiduciary obligations under the HHCA which are established in the Act, agreed to by compact with the federal government, and committed to in the state constitution.
The task force reported, “[t]he State has not identified with precision the Hawaiian Home Lands that constitute the assets of the trust; it has not at all times accounted accurately for revenues associated with trust lands; it has not maintained auditable financial records and statements; and, it has entered into conveyances and encumbrances of Hawaiian Home lands that have not been authorized by law.”
Subsequent legislation, including Act 395 of 1988 and Act 14 of 1995, was intended to address these issues, providing for funds and land exchanges to compensate the trust for past and existing land uses at those times. However, itʻs unclear what land exchanges have occurred and the scale of uncompensated public use of Hawaiian Home Lands that continue.
Though Kanahele is a victory for the lands beneath the Maunakea Access Road, unfortunately, the case also highlights the ongoing historical failure of both the federal and state governments to deliver on their trust duties to Native Hawaiian beneficiaries.
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