Environmental Justice

Bianca Isaki

The U.S. Environmental Protection Agency defines “environmental justice” as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation and enforcement of environmental laws, regulations and policies.” In some ways, the concept is of limited utility for addressing the historical and ongoing injustice of state and private corporate management and exploitation of Mauna Kea because of its emphasis on the lack of regard of race, color, national origin, or income and on governmental law, which laws are written by and for state interests.

Law, however, itself has a history in indigenous resistance in Hawai`i. This history, its animating legacies of resistance, and the communities assembled in the present provide openings for organizing to advance environmental justice in a way that accords with Hawaiian self determination.

“We are a lawful people,” a Kanaka Maoli traditional practitioner and client once told me. We were discussing the many ways government works to afford the advantaged the most advantages. I did not understand her subscription to public processes, even as I was their lawyer and facilitating their participation in the process. In another instance, another Kanaka Maoli activist client explained to me, “We have to give them the opportunity to do what is right.” So, I do not know if the turn to law is a tactic of Indigenous resistance or an opening for the settler state to redeem itself. It can be both.

This module examines Kanaka Maoli engagements with environmental law in order to protect Mauna Kea. Importantly, these engagements, with few exception, were Kanaka Maoli-led endeavors and not initiated by environmental organizations.

Module 1: Settler state environmentalism and Indigenous resistance

Protecting land and natural resources seems far from the genocidal violence of Native dispossession. This sense of distance can be mobilized as an aggressive belief in the virtuousness of all conservation; a presumption that a purely self-less love of nature or academic desire to learn about it guides conservation efforts, or merely in the practical view that it does not matter why someone kills invasive species or builds bulwarks against erosion so long as the work gets done. One problem with these approaches is that they make Hawaiian self-determination a mere adjunct to the main task of conservation.

This course’s concern is related, but not identical, to efforts to make environmental conservation more “Hawaiian.” The Hawai‘i Conservation Alliance adopted the position that integration of Native Hawaiian culture is essential to conservation. Chang, Kevin et al, Hawaiian culture and conservation in Hawai‘i,” KaWai Ola at 14 (March 2011). Hawaiian conservationists had offered cogent, practical recommendations for aligning conservation work with Hawaiian community needs: recruiting Hawaiians into conservation work, applying traditional resource management, and using Hawaiian language, values, and knowledges. But, decolonizing conservation requires also addressing conservation as a colonial practice that maintain Native lands in settler hands. Amongst other things, this means recognizing agendas that settlers, and especially the settler state, bring with their protections of Hawai‘i’s ecosystems.

Noelani Goodyear-Kaʻōpua called for ways that “settlers can develop close relationships with land but without eliding the ongoing issue of Hawaiian sovereignty[.]” Goodyear-Kaʻōpua, Noelani. "Sovereign Pedagogies: Two Talks and Spoken Word from Hawaiʻi to Palestine." In Indigenous Politics, edited by J. KēhaulaniKauanui. New York, 2013. K. Wayne Wang targeted “settler environmentalism” as an “effort[] to redeem the settler as ecological[.]” Such efforts are “settler moves to innocence – diversions, distractions, which relieve the settler of feelings of guilt or responsibility, and conceal the need to give up land or power or privilege.” (Tuck and Yang 2012:21).

Environmental protection is a Hawaiian self-determination issue because, as Kanaka maoli scholar, Jon Osorio has said these lands “will be ours one day.” Osorio here points to the horizon of Hawaii’s public trust. The public trust doctrine has been called out as enacting a settler colonial politics of deferral. “Confirming postcolonial theorization of benevolent care, however, there is ongoing reluctance to accept Indigenous autonomy in service delivery. Indeed, the “impulse to improve and help Indigenous peoples is remarkably immune to critique, and there is an endless deferral of the time at which Indigenous peoples can be deemed ‘ready to manage themselves.’” (Coombes, Johnson et al. 2012: 695). While Hawaiʻi’s public trust has a similar deferral-effect, this is not necessarily a bad thing. Keeping the settler state on the hook to protect, manage, and allocate liability for lands and natural resources may be part of a canny tactic of instrumentalizing settler state resources.

On the other hand, settler stewardship can be an attempt to institutionalize non-native relationships to Native lands that bypass decolonization. One example is U.S. military’s claim to being the biggest conservation institution in Hawaiʻi while incidentally, failing to mention that it has to spend a lot on conservation to make up for its environmental destruction elsewhere – and often with the result that Native lands are cordoned off for, unironically, Native species propagation projects.

Module 2: Legal tools and their limits

This section addresses jurisprudential silences on exactly what is dicey and limited about environmental plaintiff work. This work typically involves a state agency tasked with maintaining public trust resources; it does a bad job of protecting those resources; and so the agency gets sued for violations of environmental laws and Hawaii’s public trust.

In this legal landscape, the state constitution mandates protections for natural resources under public trust provisions and traditional and customary Hawaiian practices. Hawai‘i regulations define Hawaiian cultural resources inclusively as “natural resources.Haw. Code. R. § 13-5-2. This is appropriate as many cultural practices utilize plants, winds, living creatures, and waters. Hawai‘i’s public land trust further obligates the state to administer certain lands for public interests, and for Hawaiians in particular. What is particular to Hawaiians are entitlements to land revenues, resources, and access rights. These legal protections for Hawaiian interests are historical formations marked by ongoing Native negotiations with and within settler legal institutions.

Note: Hawai‘i’s public trust is a constitutional mandate that “[a]ll public natural resources are held in trust by the State for the benefit of the people.” Haw. Const. art. XI, § 1. Hawai‘i’s public land trust requires the state to allocate 20% of revenues from specific “ceded lands” to native Hawaiian beneficiaries

Too quickly, however, names like “partnership” and “collaboration” get placed on all actions on these rights. These names gloss over the ongoing labor of keeping the state accountable to its trust obligations and is further complicit with efforts to whittle down these obligations down to their leanest existence.

In 2012, at a hearing on a permit for telescope construction on the sacred summit of Mauna Kea, the land board chair asked Hawaiian petitioners, “If the telescope is built, will you stop going up the mountain?” Petitioner, Pua Case asked if it was trick question. The chair denied this was so and the petitioner answered, the mauna is still sacred and she would continue to practice at the summit. The board voted to grant the permit. Years later, the chair told me that he would have voted against the permit she had said she would stop going up the mountain. If she could continue to go to Mauna Kea, her practice could bear a compromise with astronomy development. The point is that the administrator here adopted, not protection, but what can Hawaiian culture can merely survive as a permissible standard.

If Pua said she would stop going up the mountain, her practice would have been characterized as “too fragile” to be a substantive cultural tradition. As Audra Simpson has pointed out, “youth and fragility” is a settler state anxiety. “This youth and fragility is dealt with in law and managed through decisions on indigeneity” (Simpson 2008: 214). This was perhaps nowhere more in evidence than Hawai‘i governor Neil Abercrombie’s dismissal of challenges to telescope construction on Mauna Kea; “[t]here will be no more obstruction from someone who found their cultural roots six minutes ago.” Reed Flinkinger, “A measured look at Gov. Abercrombie: who have we got here?” West Hawai‘i Today (Apr. 1, 2012) available at: http://westhawaiitoday.com/sections/opinion/columns/measured-look-gov-abercrombie-who-have-we-got-here.html.

Module 3: Limits of Hawai‘i’s public in environmental justice struggles

Public trust claims are useful for calling out the state. Public trust litigation has helped restore water rights to kalo farmers and nearshore ecosystems (See In re Water Use Permit Applications, 105 Hawaiʻi 1, 93 P.3d 643 (2004) and In re Water Use Permit Applications, 105 Hawaiʻi 1, 11, 93 P.3d 643, 653 (2004)), prevented private landowners from usurping shoreline access (Diamond v. Dobbin, 319 P.3d 1017 (Hawaiʻi 2014)), stopped the taking Kaua‘i’s freshwater for commercial sale (Kauai Springs, Inc. v. Planning Comm'n of Cnty. ofKaua"i, SCWC-29440, 2014 WL 812683 (Haw. Feb. 28, 2014)), and, stymied the desecration of sacred summits by industrial astronomy development.Pub. Access Shoreline Hawaii by Rothstein v. Hawai'i Cnty. Planning Comm'n by Fujimoto, 79 Hawaiʻi 425, 903 P.2d 1246 (1995) and Pele Def. Fund v. Puna Geothermal Venture, 77 Hawaiʻi 64, 881 P.2d 1210 (1994).

But public trust claims do not articulate the fundamental disrepair of settler state control over Native lands and settler access to them. And, as I’m asserting, these claims are double-edged tools for creating relationships between decolonization and conservation.

Disrepairs of the public trust devolve from its “public”. An undifferentiated settler-citizen “public” disarticulates colonial legacies that fracture Hawaii’s polity. The “public” beneficiary of trust resources creates something like a settler “commons,” with its attendant appropriations of Native land. (Wolfe 2013: 265). This disjuncture came up when a nonprofit organized for public trail access sought alliance against a trail ‘swap’ between the state and the Hale‘ākala ranch corporation. While clarifying that public access to Native lands could not be common ground, the agreement was to go forward on a campaign to stop the state from alienating public trust lands.

“Trusting” the state risks “reif[ying] the legitimacy of the U.S. government” (Smith 2003: 50) and fosters a stultifying politics of demand that reinvests political futurity in a paternalistic state.[20] (Gover 2006: 318). Fiduciary principles riddle trust resource management with real property conventions that enable frameworks of settler colonial control. (Tuck, McKenzie et al. 2014: 10). In turn, property concepts tend to assess cultural values of land “parcels”in ways that fail to recognize indigenous relationships between land, epistemology, and ontology. (Shorter 2007).

The problem is not only that the state needs to be a better protector – or that the public trust is premised on disrepaired structures. Premise is not identity, particularly where we’re using legal instruments. The problem is when the public trust becomes a method of producing state control as something that protects Hawaiian culture.

Module 4: State beyonding v. decolonial temporality

By proposing a way around Hawaiian rights to protect Mauna Kea, Case’s interrogator - the DLNR chairperson William Aila - used the kind of “beyonding rhetoric” that “people use when they have a desire not to be stuck.” (Berlant 2007: 434). The state wants to avoid litigation and to get past the speed bump of kanaka maoli claims. But its constitution also positions it as a protector of Hawaiian culture. This role is crucial to the state’s claims to trust relationship with Native lands, and its continued control over them. The state’s determinations of who could have a say about the cultural impacts of the predator fence focused on those with histories of cultural practice and lineal descendancy in Ka‘ena. While appropriately land-based, this focus allowed the state to narrow the scope of Hawaiian cultural claims and made more “manageable” the task of producing state control as protection for Hawaiian culture.

For the state, the work entails producing Hawaiian culture as a resource that can be managed in the first place. (Yúdice 2004: 4). Culture-as-resource works in tandem with public trust jurisprudence to make feasible the settler state’s governance of the differences of Indigenous communities and the pasts that produce it. (Goldstein 2014: 44). George Yudice discusses a neoliberal “expediency of culture,” where culture becomes something “called on to resolve a range of problems for community, which seems only to be able to recognize itself in culture, which in turn has lost its specificity.” (Yúdice 2004: 25); see (Arvin 2009). What is expedient about this rendering of Hawaiian culture is that the state can protect it, usually under a management plan, thereby safeguarding the resource-glue that presumably coheres Hawaiian community; and thus allows the settler state to conclude that it protects Hawaiian culture without having to address Hawaiian self-determination.

Importantly, the state’s role under the public trust harbors a desire for reconciliation, which Tuck and Wang decry as being “about rescuing settler normalcy, about rescuing a settler future.” (Tuck and Yang 2012: 35). Decolonization, by contrast, means the repatriation of land and resources. Period. It does not harbor promises for settler state futurity. A decolonized future is not worked out until it is. As Frantz Fanon put it; “we will find out the answer as we get there[.]”

The purpose in examining the limits of the legal concepts used to administer public trust lands, including Mauna Kea, is to locate efforts to realize public trust protections within this open-ended decolonization program. Here, Osorio’s point that environmental protections are bound to lands that will one day be restored to Hawaiians cogently articulates the gap between state control of public trust resources and decolonization as a function of time.

The decolonial temporality the public trust makes possible is also a “colonial entanglement.”Jean Dennison (Osage) offers the concept of “colonial entanglement . . . to mark the shifts created through the ongoing settler-colonial process, with a particular focus on the agency that is possible within this space.” (Dennison 2013: 116). Instruments of entanglement may be a “means by which colonized people can pick up the pieces of the current moment and create their own original patterns for the future.” (Dennison 2013: 117).

Conservation is here a stopgap measure - an instrument picked up in the messy middle of settler colonialism. In this meantime, Hawaii’s public trust offers a malleable form that fits many kinds of conservation actors without becoming mired in political identity questions, many of which remain unanswerable absent the restoration of Hawaiian independence and land base. Here, distinguishing what will have been, for or against settler colonialism, is complicated by the unevenness of the settler state’s organization of claims that can be visible as political, as opposed to cultural.

The holding pattern established by the public trust, as I discuss more fully in the paper, marks the implicit excision of forms of Native selfhood that may occur prior and simultaneous with the production of its settler public. Here, state environmentalism operates through an administrative apparatus - “a mechanism for constituting and securing a public, establishing the boundaries of inclusion, and producing an abject body against which the proper, public body of the citizen can stand.” (Kawash 1998: 325). This apparatus “work[s] from the secular humanist canon to reconcile Indigenous people to the sovereignty of the settler-colonial nation, and not from an undeterminable alterity towards an undetermined autonomy.” (Neale 2013: 183). These are problems Glen Coulthard identified for Native sovereignties premised on state recognition. (Coulthard 2007: 6).

The take-home message, and alongside other caveats against settler state environmentalism, is that we should see the state’s overtures and recalcitrance towards Hawaiian culture as happening on grounds given by colonialism because we may otherwise miss enunciations of Indigenous sovereignty that fall outside of conventional political forms of participation. This does not render state environmentalism toxic to decolonization, but marks another way it can bypass what is meaningful about Kanaka Maoli resistance and world-making.

Guiding Questions:

  1. What are the genealogies of “environmental justice” as a term defined by the EPA and how do these overlap or intersect with kānaka maoli aloha ‘āina struggles?

  2. What are the limits to using settler state legal tools to protect Mauna Kea?

  3. What tactics can be used to protect Mauna Kea using settler state legal tools?

  4. What are the competing agendas between settler state environmentalism and Kia`i Mauna?


  1. Candace Fujikane, Mapping Abundance for a Planetary Future (Duke UP 2021)

  2. Royal Order of Kamehameha I, Moku o Mamalahoa-Heiau o Helu ‘Elua, Mauna Kea Anaina Hou, Mauna Kea - The Temple: Protecting the Sacred Resource, “Summary” (n.d.).

  3. Ku`ulei Higashi Kanaele and Ahiena Kanahele, Petition for Declaratory Orders from the Land Use Commission (2019)

  4. Anonymous Donors Petition for Writ of Mandamus (2020)

  5. Mauna Kea Anaina Hou v. Bd. of Land & Natural Res., 136 Hawai'i 376, 363 P.3d 224 (2015)

  6. Kilakila o Haleakala v. Bd. of Land, 138 Hawai‘i 383, 382 P.3d 195 (2016)

  7. Alegado, Rosanna; Kagawa-Viviani, Aurora; Kamelamela, Katie Leimomi (2020): Summary of Astro2020 Papers on Impact of Astronomy on Native Hawaiian Communities. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11522322.v1

  8. Walkowicz, Lucianne; Neilson, Hilding; Prescod-Weinstein, Chanda; Tuttle, Sarah; Nord, Brian (2020): Reframing astronomical research through an anticolonial lens — for TMT and beyond.. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11522295.v1

  9. McGregor, Davianna Pomaika'i; Kanahele, Tracy Ku'ulei Higashi (2020): Impacts of Astronomy on Indigenous Customary and Traditional Practices As Evident at Mauna Kea.. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11522289.v1

  10. Ayau, Edward Halealoha (2020): The Impacts of Astronomy on Non-Astronomers: Specifically, native Hawaiian beneficiaries of the Hawaiian Home Lands Trust.. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11522283.v1

  11. Kanahele, Tracy Ku'ulei Higashi; Isaki, Bianca; Muneoka, Shelley (2020): Kū Kia‘i Mauna: Historical and Ongoing Resistance to Industrial Astronomy Development on Mauna Kea, Hawai‘i. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11522280.v1

  12. Kiyuna, Kuʻupuamaeʻole (2020): Ka Piko Kaulana o ka ʻĀina: Additional Context for Understanding the Cultural Significance of Mauna Kea. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11522274.v1

  13. Office, Native Hawaiian Place of Learning Advancement (2020): "Maunakea at Mānoa" Survey. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11522256.v1

  14. William S. Richardson School of Law Environmental (2020): Understanding Mauna Kea: A Primer on Cultural and Environmental Impacts. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11522208.v1

  15. Alegado, Rosanna; Walkowicz, Lucianne; Kahanamoku, Sara S.; Neilson, Hilding; Kagawa-Viviani, Aurora; Kamelamela, Katie Leimomi; et al. (2020): A Native Hawaiian-led summary of the current impact of constructing the Thirty Meter Telescope on Maunakea. figshare. Preprint. https://doi.org/10.6084/m9.figshare.11434494.v1

  16. Gordon & Betty Moore Foundation, “Assessment of the Risks for Siting the Thity-Meter Telescope on Mauna Kea,” The Keystone Center (Oct. 26, 2007) available at: https://dlnr.hawaii.gov/mk/files/2017/01/B.17ae-Assessment-of-TMT-Risks-Moore-Foundation-2007.pdf

  17. Arvin, M. (2009). Sovereignty will not be funded: indigenous citizenship in Hawaiʻi's non-profit industrial complex. Ethnic Studies. San Diego, University of San Diego. Master's: 135.

  18. Neale, T. (2013). "Staircases, pyramids and poisons: the immunitary paradigm in the works of Noel Pearson and Peter Sutton." Continuum: Journal of Media and Cultural Studies 27(2): 177-192.

  19. Paperson, L. (2014). "A ghetto land pedagogy: an antidote for settler environmentalism." Environmental Education Research 20(1): 115-130.

  20. Povinelli, E. (1998). "The Cunning of Recognition: Real Being and Aboriginal Recognition in Settler Australia." Australian Feminist Law Journal 11: 3-27.

  21. Wolfe, P. (2013). "Recuperating Binarism: a heretical introduction." settler colonial studies journal 3(3-4): 257-279.

  22. Beamer, K. (2009). "Aliʻi Selective Appropriation of Modernity: Examining Colonial Assumptions in Hawaiʻi Prior to 1893." AlterNative: An International Journal of Indigenous Peoples 5(2): 138-155.

  23. Berlant, L. (2007). "Starved." South Atlantic Quarterly 106(3): 433-444.

  24. Coombes, B., et al. (2012). "Indigenous geographies II: The aspirational spaces in postcolonial poliics - reconciliation, belonging, and social provision." Progress in Human Geography 37(5): 691-700.

  25. Coulthard, G. S. (2007). "Subjects of Empire: Indigenous Peoples and the 'Politics of Recognition' in Canada." Contemporary Political Theory 6: 437-460.

  26. Dennison, J. (2013). "Stitching Osage Governance Into the Future." American Indian Culture and Research Journal 37(2): 115-128.

  27. Goeman, M. (2008). "From Place to Territories and Back Again: Centering Storied Land in the discussion of Indigenous Nation-building." International Journal of Critical Indigenous Studies 1(1): 23-34.

  28. Goldstein, A. (2014). "Finance and Foreclosure in the Colonial Present." Radical History Review 118(Winter): 42-63.

  29. Gover, K. (2006). "An Indian Trust for the Twenty-First Century." Natural Resources Journal 46(2): 317-374.

  30. Simpson, A. (2008). "Subjects of Sovereignty: Indigeneity, the Revenue Rule, and Juridics of Failed Consent." Law and Contemporary Problems 71(3): 191--215.

  31. Shorter, D. D. (2007). "Hunting for History in Potam Pueblo: A Yoeme (Yaqui) Indian Deer Dancing Epistemology." Folklore 1118(3): 282-306.

  32. Tuck, E., et al. (2014). "Land education: Indigenous, post-colonial, and decolonizing perspectives on place and environmental education research." Environmental Education Research 20(1): 1-23.

  33. Tuck, E. and K. W. Yang (2012). "Decolonization is not a metaphor." Decolonization: Indigeneity, Education & Society 1(1): 1-40.

  34. Tsosie, R. A. (2003). "The Conflict between the 'Public Trust' and the 'Indian Trust' Doctrines: Federal Public Land Policy and Native Nations." Tulsa Law Review 39: 271-311.

  35. Yúdice, G. (2004). The Expediency of Culture. Durham, NC, Duke University Press

Background history on Hawaii’s public trust and public trust lands

Public trust lands, approximately 1.8 million acres, derive from the 1848 Māhele, which transformed Native Hawaiian traditional land tenure systems to private land ownership under the Hawaiian Kingdom. Acting pursuant to Māhele enactments, the Land Commission “settled and established the inception of private land titles” under the authority of King Kamehameha III, the sovereign owner of all of Hawai‘i’s lands. Robert R. Kamins, Ownership of Geothermal Resources in Hawaii, 1 U. Haw. L. Rev. 69, 71 fn 5 (1979), quotingTerr. Of Hawai‘i v. Lili‘uokalani, 49 Haw. 88, 104 (1902). The Commission’s awards and patents are considered the “foundation of all titles to land in this Kingdom.” Kamins, 71 fn.15 quoting Thurston v. Bishop, 7 Haw 421, 429 (1888).

During the Māhele process, King Kamehameha III divided his lands into government and private (“crown”) lands. “Crown” lands consisted in approximately one million acres, or a quarter of the ʻāina, that Kamehameha III retained for himself from the Māhele. When Kamehameha III’s successor, Kamehameha IV, died in 1863, Kamehameha V (and not his widow, Queen Emma) received this lands in a court ruling that determined that Kamehameha V monarch needed to have lands to fulfill his responsibilities to his people. In 1865, the Hawai‘i legislature passed a statute that made Crown lands inalienable. From this point, a Board of Commissioners of Crown Lands managed the Crown Lands and used the revenues to support the monarchy.

“Government” lands, approximately 1.5 million acres, were transferred to the government itself in the Māhele, to be used for public purposes. Substantial amounts were sold during the Kingdom era, with about 800,000 acres remaining at the time of the 1893 overthrow. Both classes of lands were considered “public lands” under the Land Act of August 15, 1895, which repealed the 1865 statute that made Crown Lands inalienable. These lands were later merged into government lands. Lili‘uokalani v. United States, 45 Ct. Cl. 418 (1910). Between 1865 and 1898, the Reupblic of Hawai‘i, which succeeded the Kingdom after the 1893 overthrow, sold 46,594 acres of Crown and Government Lands.

Arising from the wake of the overthrow of the Hawaiian Kingdom’s last reigning monarch, the Republic of Hawai‘i usurped property consisting of: 1) government lands that had been surrendered by Kamehameha III; 2) lands ceded by the chiefs in lieu of a commutation fee required to establish their fee-simple ownership; 3) lands purchased by the government; 4) lands forfeited by certain claimants; and 5) pursuant to an 1894 act of the Republic of Hawai‘i, “crown” lands that had been the personal property of the King. Article 95 of the Constitution of July 3, 1894, Fundamental Laws of Hawaii at 237.

In 1898, the U.S. annexed Hawai‘i and the Republic of Hawai‘i “ceded” these government lands to the U.S. The instrument of that annexation, the 1898 Newlands Resolution, states that the Republic of Hawai‘i:

cede[s] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also . . . the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining.

Resolution No. 55 of July 7, 1898 (Newlands Resolution), 30 Stat. 750 (emphasis added).

In 1982, the Hawai‘i Attorney General opined that the broadly inclusive language of the Newlands Resolution extends to all public property that the Republic controlled. Tany S. Hong, State of Hawai‘i Attorney General Opinion to Hon. Susumu Ono, Chairman DLNR, 6 (June 24, 1982).

Lands ceded to the Republic of Hawai‘i, and to the U.S. government thereafter, “include all of the rights reserved by the King at the Māhele, by the Government in Land Commission Awards and Patents, and all other property rights accruing to the Government of Hawai‘i prior to 1898.” Tany S. Hong, State of Hawai‘i Attorney General Opinion to Hon. Susumu Ono, Chairman DLNR, 9 (June 24, 1982). These “ceded” lands retain the “reserved rights of… all mineral and metallic mines of every kind and description,” and all other natural resources in the public domain in 1898, which have not been subsequently transferred. In re: Robinson, 49 Haw. 429, 431 (1966) citing "An Act to Organize the Executive Departments of the Hawaiian Islands," pt. I, ch. VII, art. IV, S.L. 1845-6, p. 107, effective February 7, 1846. This Act prescribed the form of Royal Patents.

The 1898 Newlands Joint Resolution, the 1900 Organic Act, and the later 1959 Admissions Act, provided that revenues and proceeds from public lands should be used for the benefit of the inhabitants of the Territory of Hawai‘i for educational and other public purposes. State v. Zimring, 58 Haw.106 (1977).In both the 1898 Joint Resolution of Annexation and the 1900 Organic Act, the United States recognized that the unique status of Hawai‘iʻs public lands and stated that the laws governing U.S. public lands generally should not apply to them, and that the revenues from these lands should go to the people of Hawai‘i.

An 1899 opinion of the U.S. Attorney General clarified that these lands should be considered to be “a special trust.”200,000 acres of these public trust lands were set aside for the Hawaiian Home Lands Program in 1921 and the federal government retained approximately 350,000 acres for military bases and national parks.

The 1959 Admission Act transferred approximately 1.4 million acres to the new State of Hawai‘i, recognized the trust status of these lands, and stated that land revenues should be used for public purposes, including “for the betterment of the conditions of native Hawaiians.” Act of March 18, 1959, Pub. L. 86-3, 73 Stat. 4 (Admission Act).

Under the Admission Act § 5, public trust lands consist in all 5(b) lands that were ceded by the Republic of Hawai‘i to the U.S., excepting lands that were 5(c) set aside by federal actors or the state governor as of Hawai‘i’s admission on August 21, 1959, or 5(d) lands that the Territory of Hawai‘i conveyed to the state. Act of March 18, 1959, Pub. L. 86-3, 73 Stat. 4. Section 5(f) of the Admissions Act established a special public trust from lands transferred from the U.S. to the State upon admission in 1959 and is the basis for the public trust established in section 4 of the state constitution. Section 5(b) of the Admissions Act specifies that public trust lands are those public lands and other public property that the Republic of Hawai‘i ceded to the U.S. federal government by Joint Resolution of Annexation.Resolution No. 55 of July 7, 1898 (Newlands Resolution), 30 Stat. 750.

In 2003, the Hawai‘i state attorney general (AG) stated, "[c]eded lands . . . includ[e] the water, minerals, plants, and other things connected with the lands, and every species of title inchoate or complete."03-03 Op. Haw. Att’y Gen 6-7 (2003). This reference to ‘ceded lands’ indicates those lands that constitute 5(b) public trust lands. In coming to this conclusion, the Hawai‘i state attorney general reviewed State v. Zimring, 58 Haw. 106 (1977), in which the Hawai‘i Supreme Court determined that newly-formed lands as a result of lava flows are part of the public trust. The Zimring court found the lava flow question a case of first impression and applied equitable doctrines to balance between the relative “windfall” coastal property owners would enjoy against the overall public “benefit of all the people of Hawaii.” Zimring, 58 Haw. at 120. The Zimring court looked to the language of the Joint Resolution, which conveyed rights to the U.S. that were then conferred to the state upon the passage of the Admissions Act. The court found that the Hawai‘i Republic’s voluntarily cession of “all other property of the Hawaiian Islands together with every right and appurtenance thereunder appertaining” included property “real, personal and mixed, choate and inchoate, corporeal.” Zimring, 58 Haw. at 21-25.

Because the right to these lava flow land extensions vested in the trust in 1898 with the Newlands resolution, the fact that the actual land did not form until 1955 did not remove them from the state’s public trust. “Since the right to future lava extensions was conveyed to the United States at the time of annexation,” the court found, “any lava extension thereafter created should be considered to be among the "lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation." Id. at 123 citing Admission Act § 5(g). Lava flow land extensions, existing and in the future, were part of the 1898 cession and returned to the State in section 5(b) of the Admission Act. Tany S. Hong, State of Hawai‘i Attorney General Opinion to Hon. Susumu Ono, Chairman DLNR, 9 (June 24, 1982) interpretingState v. Zimring, 58 Haw. 106 (1977).

A later decision, Napeahi v. Paty, 921 F.2d 897 (9th Cir. 1988), used the Zimring rationale to find that the lands that become submerged through natural processes after 1898 also thereby become public lands subject to the section 5(f) trust. The Ninth circuit also drew from County of Hawaii v. Sotomura, 55 Haw. 176 (1973), which held that the state may acquire title to newly eroded submerged lands.

In 1978, Hawai‘i residents ratified Hawai‘i Constitution Article XII, section 6, which established a state agency, the Office of Hawaiian Affairs (OHA) and its right to receive a “pro rata portion” of the revenues generated from the use of public trust lands for the betterment of the conditions of Native Hawaiians. Hawai‘i Constitution Article XII, section 6 further empowers OHA board “to manage and administer the proceeds from the sale or other disposition of the lands, natural resources, minerals and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians.”

Hawai`i Constitution, article XII, § 4 describes this public trust as “lands granted to the State of Hawaii by Section 5(b) of the Admission Act” and excludes Hawaiian Home Lands.

Through Act 273, Session Laws of Hawai‘i (SLH) 1980, which was codified as Hawai‘i Revised Statutes (HRS) section 10-13.5, the state legislature defined OHA’s pro rata portion as “twenty per cent of all funds derived from the public land trust.” Initially, the state interpreted HRS § 10-13.5 to include only revenues generated from lands controlled and managed by the Department of Land and Natural Resources (DLNR). An Attorney General Opinion dated Sept. 23, 1983 upheld the state’s practice of not including within OHA’s pro rata portion revenues from lands that had been set aside or leased to agencies other than DLNR for public use, such as harbors and airports, or revenues generated by private businesses managing or operating on public lands or facilities. Using this methodology, between 1981 and 1990, the state transferred an average of approximately $1.4 million annually to OHA.

Hawai‘i Revised Statute (HRS) § 10-3(1) further specifies that the public trust consists in:

all proceeds and income from the sale, lease, or other disposition of lands ceded to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or acquired in exchange for lands so ceded, and conveyed to the State of Hawaii by virtue of section 5(b) of the Act of March 18, 1959.

Under HRS § 10-13.5, OHA should receive twenty-percent of these public trust revenues. Act 178, Session Laws of Hawai‘i 2006, sets aside HRS section 10-13.5 “until further action is taken by the legislature,” and establishes OHA’s interim pro rata portion as a specific dollar amount ($15.1 million per year). Accordingly, Act 178 is an interim determination of OHA’s pro rata portion of public land trust revenue going forward.

Currently, Executive Order 06-06, authorized by then Governor Linda Lingle, requires agencies to transfer twenty percent of revenues from public trust lands unless such a transfer conflicts with other laws.