Ka Wai Ola - Office of Hawaiian Affairs, Volume 1, Number 1, 1 October 1980 — The Native Hawaiian Legal Corporation [ARTICLE]

The Native Hawaiian Legal Corporation

Professor Van Dyke is Acting Associate Dean and Professor of Law, University of Hawaii School of Law. The Hawaiian community has a long agenda of legal questions that need attention. For too long the interest of the Hawaiian community has not been put forward and Hawaiians have been denied a voice in our legal system. To fill this void, some of the Hawaiian attomeys, working with Hawaiian community workers and supportive non-Hawaiians, have formed the Native Hawaiian Legal Corporation to start looking at these legal questions. The Corportion will be receiving funding this fall to hire two attomeys to look into those questions that affect the Hawaiian community as a whole. The Native Hawaiian Legal Corporation has identified five priority areas to be investigated: 1. The first goal is to obtain federal "recognition' for the Hawaiian people as Native Americans with access to federal programs benefitting natives. Natives on the mainland are able to participate in a wide range of federal programs to assist their community development. Hawaiians have been cut off from most of these programs and so the first project is to obtain this federal status in ordertoparticipate with other native peoples. 2. The second priority is to secure the full benefits of the land tmst that was conveyed from the federal govemment to the State of Hawaii in the Hawaiian Homes Commission Actof 1920 and §5 ofthe 1959 Admissions Act. At the time of annexation the United States obtained about 2 million acres of land in the Hawaiian Islands. About 1.5 million of these acres were retumed to the State of Hawaii at the time of statehood in 1959, and the federal govemment retrains the rest. All of these lands have an implicit tmst obligation that attaches to them for the benefit of the Hawaiian people. The Hawaii State Legislature this past spring stated that 20% of the profits of the lands that are called the "ceded lands" should go to the Office of Hawaiian Affairs. The Hawaiian Homes Commission hasjurisdiction over approximately200.000 acres of land but has never been able to fully exploit the benefits of these lands. The lands that the federal government still retains still have an unresolved tmst obligation that attaches to them. Eaeh of these lands presents different legal problems that must be explored. 3. The Corporation will also try to help with the federal reparations or restitution efforts. Congress will be establishing a study commission this year to look into the question of reparations or restitution. Many position papers need to be prepared to help persuade the eommission of the need for reparations or restitution. 4. Surplus federal lands are now available and should be obtained for the Hawaiian community for their use. The Corporation will attempt to identify these lands and to obtain them for the Hawaiian community. 5. The final effort will be to secure and establish the customary and traditional rights of access and use. This effort will involve looking into the history of the Hawaiian community, and trying to identify those traditional rights that are appropriate in today's world. The federal Native American Religious Freedom Act and the Archaeological Resources Protection Act of 1979 provide a mechanism for protecting the important cultural, religious and archeological sites of the Hawaiian community. The Corporation will be working to implement these statutes in Hawaii. When the Office of Hawaiian Affairs comes into existence the Native Hawaiian Legal Corporation hopes to work closely with OHA to address these legal questions. The two lawyers that ean be hired with federal funds ean be augmented with additional staff through other funding sources and a team will be assembled to work on behalf of the Hawaiian community. This effort will be a difficult one, but with the support of Hawaiians and others on all the islands, some of the injustices that have occurred ean be redressed. It has been stated that the sharing of power is done by three institutions. At the national level, the United States Supreme Court had to establish itself as a growing partner in the sharing of power. At the state level, the people chose to concentrate or offsetthe equal sharingof powerby establishing a strong executive institution. In short, "power", the "last word on a question" is rooted in two ways: ( 1 ) the constitution and statutes, and (2) what the institution onee established ean amount or build by its actions. Previous to the Office of Hawaiian Affairs the will of the people, their sovereignty if you wish, was exercised by three institutions of government. Given that complete governmental power is in the areas of legislation, execution and judicial power there ean be no other or fourth institution of government. Unless, the people of the United States and the State of Hawaii created a fourth area in addition to the above three or by constitutional law and statute remove an existing institution or institutions from

by Jon Van Dyke & Board of Directors performing its vested role in certain affairs such of Hawaiian Affairs. However, what we believe the law is saying in pertinent language of Article XII, Section 6: "The Board of Trustees of the Office of Hawaiian Affairs shall exercise power as provided by law..." and Session Laws of Hawaii, Act 1 96 S-4: "There shall be an Office of Hawaiian Affairs constituted as a body corporate whieh shall be a separate entity independent of the Executive branch." may well be the ultimate ideals, but ean only be achieved by the pragmatic aims of the Trustees and the sheer courage and unity of the Hawaiian people. The statutory removal of the Executive from the Office of Hawaiian Affairs does not mean that the natural shift of executive power will be in the direction of the Trustees. For we must remember that the legislature shares in the function of the executive by granting authority and funding. Presently, the Office of Hawaiian Affairs does have remarkable authority to address its purposes and to govern the conduct of its business. Additionally as part of its independence of the executive the Office of Hawaiian Affairs submits its budget directly to the legislature in a manner similar to the judiciary. The Offīce is not totally dependent on the legislature for funding, as Nati ve Americans, Hawaiians qualify for a number of existing federal program funds. However, freedom from budget controls is not complete if

we shift our needs from the state treasury to the national treasury. Eeonomie independence will depend on the ability of the Office to implement its broad eeonomie powers and the planned and skillful use of the pro rata share. Mueh as the United States Supreme Court under Chief Justice Marshall in 1983 with the case of Marbury v. Madison established itself as a strong institution so must the Board of Trustees and the Hawaiian people establish the Office of Hawaiian Affairs as a strong institution within the governmental structure where power is shared. How equal will power be shared depends on you, your 'ohana and all of us as Hawaiians. The first public exposure of the possible strength of the Office will be on November, 4, 1 980, General Election Day. Only we ean set the direction and paee of the Office and how the total govemmental stmcture, federal, state and county, will relate to Hawaiians to wit: Governments (are) . . . organizations that have sufficient monopoly of control to enforce orderly settlement of disputes with other organizations in the area . . . whoevercontrols governmentusually has the"lastword"on a question; whoever controls government ean enforce decisions on other organizations in the area." (Ibid.) Presently, the first move to have the "last word" is voting on November 4, 1 980. For only through our vote ean the Office of Hawaiian Affairs have a meaningful role . . . the Fourth Institution of Govemment.