Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 2, 1 Pepeluali 1987 — NHLC's Success Laid to Many Hands Helping Out [ARTICLE]

NHLC's Success Laid to Many Hands Helping Out

Fifteen years ago, a group of Hawaiians stood on a grassy knoll overlooking Waimea ranchland and wept. They had committed an act of civil disobedience by trespassing onto Hawaiian Homelands leased to Parker Ranch. They were arrested for doing so. After years of watching applicants patiently wait for their leases, Sonny Kaniho, Alvina Park, Joe Tassill, Pae Galdeira, Dixon Enos and other members of "The Hawaiians" had taken this bo!d step. In so doing, they helped lay the foundation for creation of a law firm whieh could advocate on their behalf, the Native Hawaiian Legal Corporation. Many others helped along the way. Gil Johnson, a storefront legal aid lawyer now a professor of law at the University of Chicago; David Getches, first director of the Indian public interest law firm, the Native American Rights Fund; representatives to the Council of Hawaiian Organizations (in particular, Winona Rubin, Georgianna Padeken and Randy Kalahiki); and past NHLC Executive Directors Gail Prejean and attorney Boyce Brown. Today, five attorneys and a support staff of 10 work exclusiveiy to assert, protect and defend land and traditional rights. NHLC is governed by a 12-member board of directors. Of these, eight are attorneys appointed by the Hawaii Bar Association and four are community representatives. They include attorneys Georgiana Alvaro, Hayden Aluli, Bruss Keppeler and community representatives Keoki Fukumitsu, Eric Enos, Alvina Park and Randy Kalahiki. Attorney Clarence F.T. Ching servied on NHLC's board for seven years before resigning to assume his Office of Hawaiian Affairs trusteeship. The Corporation administers two major projects. The first, called the Land Title Project, has been funded and supported for the past six years by OHA. Trustees Rod Burgess, Frenchy DeSoto, Moses Keale, Walter Ritte, Joseph Kealoha and Thomas K. Kaulukukui Sr., along with OHA staff member Martin Wilson and former staffer Francis Ka'uhane were responsible for getting the project started. The Land Title Project was created to do quiet title work. A quiet title action is a lawsuit in whieh one party, the Plaintiff, seeks adjudication of the interests of all parties in a designated parcel of real property. The typical situation whieh gives rise to a quiet title lawsuit is one where a large landholder engaged in agricultural or ranching activities wishes to sell, subdivide, or otherwise dispose of Iand. The landholder has characteristically been using the property without good title, and must warrant his right to it to prospective buyers, permitting agencies, etc. Oftentimes the landholder will have eome to use the property pursuant to a lease agreement decades old whieh has not been surrendered upon expiration to heirs of a deceased lessor. In other situations, the landholders will have moved onto "abandoned" property and absorbed it into their larger, surrounding tracts of land. It is not uneommon to have retired ranch hands testify that they were instructed to tear down fences of small land owners and run cattle through in order to establish an adverse elaim. In a recent survey, NHLC determined that there were approximately 300 active cases statewide in whieh over 5,000 defendants with Hawaiian surnames were listed. Although quiet title work is considered a complex area of property law, NHLC's almost exclusive focus in the area for the last six years has enabled it to develop an expertise in systemetizing the handling of these cases. The other major project whieh the Corporation administers is federally funded through the Legal Services Corporation or LSC. LSC is the same federal agency whieh funds legal aid programs nationally. In 1979, LSC created a special fund for native Ameriean programs and NHLC became a successful applicant. Cases with potential impact upon Hawaiians as a class of native Americans are handled under this project. For example, this past year, NHLC handled cases dealing with kuleana access; shoreline access; subsistence gathering and water rights; and one case dealing with freedom of religion. NHLC represented clients in 10 cases on the island of Maui, Hawaii and Oahu whieh dealt with the problem of access to kuleana.

Nakoa v. Byron was successfully settled in client's favor by gaining direct access to his parcel. A eompanion case, In re Nakoa, is presently being negotiated. Kona 01d Hawaiian Trails Group v. Lyman and its eompanion case, Kona OId Hawaiian Trails Group v. Ono and the DLNR seek to preserve ancient Hawaiian trails over whieh a modern subdivision is being planned. In re Morris involves negotiations to secure access to a landlocked kuleana. Hui Alanui o Makena is a community group on the island of Maui whieh is seeking to protect coastal lateral aecess being threatened by a resort development. Kuloloio v. Board of Land & Natural Resources involves access to and protection of coastal resources. In the area of water rights, Kahakuloa Acres v. Mendez resulted in a settlement whieh allowed NHLC's client first priority in obtaining sufficient water to irrigate taro patches on his three kuleana. Fukumitsu v. Aquatic Farms is a simiiar case wherein client reached a settlement agreement recognizing his right to obtain water for irrigation of kuleana where his family had grown taro for many generations and was still actively taro farming. NHLC also represented several small taro farmers whose water had been diverted by East Maui Irrigation Company from a watershed area with permission from the state's Board of Land and Natural Resources. After an administrative appeal, the BLNR was required to conduct contested case hearings prior to issuing any permits for water licenses affecting the rights of these taro farmers to obtain sufficient water to eultivate their kuleana from the nearest water resource. In the area of shoreline access, NHLC represents elients on the island of Maui who have been cut off from a traditional route to the seashore for fishing and subsistenee purposes by a private landowner. In re Mitchell involved native Hawaiians who are attempting to protect their subsistence gathering rights by minimizing disruption to native forests caused by a hydroelectric plant. In the area of religious freedom, an appeal was made to the Hawaii Supreme Court from a decision by the BLNR granting a permit to Campbell Estate for geothermal exploration and development in the Kilauea middle east rift zone. NHLC represented believers in the volcano goddess Pele who felt that geothermal development would infringe upon their constitutional right to freely exercise their religion. This case is still on appeal. NHLC represented clients on the island of Maui and Hawaii in disputes over whether certain public lands should have been included in the inventory of ceded lands, trust proceeds from whieh are administered by OHA. Finally, in the area of reparations, NHLC's senior attorney Melody MacKenzie has been one of the attorneys most responsible for researching the legal basis for native Hawaiian reparations, and has beenso recognized since beginning her work at NHLC. — MI