In addition to the above violations, the State is also grossly non-compliant with federal law regarding the State’s proclaimed control of an asphalt strip laid atop land owned by the DHHL. The federal Hawaiian Homes Commission Act of 1920 (HHCA) requires that the US Department of Interior (DOI) approve all DHHL land exchanges (HHCA Sec. 206(3)). This obligation overrides any imagined State DOT ability to control a roadway illegally built over trust land.
Title 43 of the Code of Federal Regulations Part 47, lays out the proper land exchange procedures, which the state ignored.
For DHHL to have legally transferred to the DOT the land comprising the MAR, DHHL would have to answer “yes” to each of the following questions:
- Was an actual parcel of state land explicitly identified to exchange for the MAR?
- Did the HHC ever publicly take a vote to authorize its Chair to sign any disposition involving the MAR on DHHL lands or any other portion of trust lands in the vicinity of the intersection of MAR and the Daniel K. Inouye highway?
- As required by Title 43, Part 47.55
- Was a land appraisal done for the land transferred or exchanged?
- Was the appraisal reviewed by the Secretary of the Interior?
- As required by Title 43, Part 47.60
- Did the Hawaiian Homes Commission vote to enact the transfer or exchange?
- Did the HHC explicitly find that the MAR parcel was not needed for homesteading purposes?
- Were beneficiaries and homestead associations consulted about the transfer or exchange?
- Was a statement produced explaining how the transfer or exchange would advance the interests of DHHL beneficiaries?
- Was an analysis provided of the intended use of the Hawaiian Homestead lands to be conveyed?
- Were studies done of the lands to be transferred or exchanged in compliance with environmental, historic preservation, and burial laws?
- Were deeds signed by the parties?
- Was the Secretary of the Interior provided with all of the above?
- Did the Secretary of the Interior approve the deed?
In light of the above, serious questions emerge when considering the July 17, 2019, arrests of beneficiaries on the MAR. These were kūpuna exercising Hawaiian cultural practices protected by Article 12, Section 7 of the State Constitution to kia‘i (protect) sacred Maunakea. They were charged with obstruction.
In contrast, for over 50 years, UH and the DOT have benefited from using the same stolen MAR having paid nothing to the trust. Their leaders or personnel have never been arrested.