By Kaulu Luʻuwai and Mahina Tuteur
In 1964, the State of Hawaiʻi leased nearly 23,000 acres at Pōhakuloa to the U.S. Army for just one dollar. The state brokered a similar deal across Oʻahu at Mākua, Kahuku, and Kawailoa-Poamoho. These leases expire in August 2029 and renewal negotiations are underway.
The future of these ʻāina is not merely a policy question but a legal crisis. The law governs what the state can and cannot do with these lands, and the lāhui has a collective kuleana to demand that it be followed.
Since securing the leases, the military has had broad, largely unsupervised control over these lands. But these are not just any state lands – they are unrelinquished crown and government lands of the Hawaiian Kingdom, seized through the 1893 illegal overthrow without consent of the Native Hawaiian people.
Moreover, these lands carry two distinct yet intertwined legal obligations that the state cannot waive, delegate, or ignore.
The first is the Public Land Trust. Under Section 5 of the 1959 Admission Act and Article XII, Section 4 of the Hawaiʻi Constitution, these lands are held in trust for five explicit purposes, one of which is the betterment of the conditions of Native Hawaiians.
The second is the Public Trust Doctrine. Under Article XI, Section 1 of the Hawaiʻi Constitution, all public natural resources are held in trust for the benefit of present and future generations. Significantly, any decision around the use of these lands begins with a presumption in favor of public use, access, and enjoyment, not military utility.
Together, these bedrock principles plainly instruct how the state, as trustee, must proceed; it must show that these lease renewals serve the trust and its beneficiaries, and it cannot satisfy one constitutional duty while ignoring the other.
The Hawaiʻi Supreme Court made this crystal clear in Ching v. Case (2019), a dispute that arose from the Pōhakuloa lease. The court unanimously held that the state had breached its constitutional trust duties – drawing on both the Public Land Trust and the Public Trust Doctrine – by failing to monitor and inspect lands leased to the military and declared that it “may not passively allow [trust lands] to fall into ruin.”
If merely failing to monitor or inspect is a breach, a trustee who negotiates the re-leasing of trust assets behind closed doors before conducting environmental remediation and the constitutionally required Ka Paʻakai cultural impact analysis, or without meaningfully engaging the Native Hawaiian community and general public, surely breaches its trust duties.
Nonetheless, this is the path the governor is taking. Negotiations with federal entities have proceeded under compressed timelines without first addressing these threshold issues. Public Land Trust leases require Board of Land and Natural Resource (BLNR) approval and a legally adequate Environmental Impact Statement (EIS). BLNR has granted neither – in fact, it rejected the Army’s EISs for lease renewals at both Pōhakuloa and on Oʻahu last summer.
This is a once-in-a-generation moment.
For six decades these lands have been degraded, their waters and soils contaminated, their cultural sites rendered inaccessible. With the leases expiring, the law is on our side. The lāhui, as beneficiaries of these trust lands, will not be mere bystanders to these negotiations. We must demand accountability – and a reckoning.
In the words of Skippy Ioane, “Now that you know, do you care?” With knowledge comes kuleana, what we do with it is up to all of us.
Kaulu Luʻuwai is a post-JD Legal Fellow at Ka Huli Ao Center for Excellence in Native Hawaiian Law at UH Mānoa. Mahina Tuteur is an attorney, educator and small business owner with certificates in Native Hawaiian and Environmental law. Both Luʻuwai and Tuteur are members of OHA’s Technical Advisory Group which provides guidance to the Board of Trustees on matters related to the military in Hawaiʻi.