Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 6, 1 Iune 1987 — Tracing the Source and Need [ARTICLE+ILLUSTRATION]

Tracing the Source and Need

Native Hawaiian, Rights to Sue Misunderstood

Editor's Note. The following article is extracted from testimony given by former Representative Kina'u Boyd Kamali'i before the Senate Committee on Housing, Hawaiian Programs and Development. Kamali'i testified as the Chairperson of the Covernment Affairs Committee of the O'ahu District Council, Association of Hawaiian Civic Clubs. Many people — including some at the legislature — do not understand the historical or legal basis for a native Hawaiian and Hawaiian "right to sue." Thus, it's important to trace the source and need for this right. First, there are two Hawaiian public trusts described in the "Admissions Act" whieh admitted Hawai'i as a state in 1959. These trusts are embodied in "Article XII Hawaiian Affairs" in our state constitution, and are implemented by related statutory law. The older Hawaiian trust — established by Congress with the passage of the "Hawaiian Homes Commission Act of 1920," as amended — is affirmed in "Secton 4" of the Admissions Act, and Sections 1, 2 and 3 of Article XII in the state constitution. This trust is managed by the Department and Commission of Hawaiian Home Lands and its native Hawaiian beneficiary class is defined by a federally-imposed blood quantum definition of individuals who are one-half or more than 50 percent Hawaiian. Last year, Congress ratified a change in this beneficiary class to allow the spouse or children of a Hawaiian Homes awardee, with less than half-Hawaiian blood, to "succeed" or inherit the award. This limited inclusion of successors was reflected in bills introduced this year. The second Hawaiian public trust is derived from the "ceded lands trust" described in Section 5(0 of the Admissions Act, and was implemented by Sections 4, 5 and 6 of the state constitution's Article XII with the creation of the Office of Hawaiian Affairs. As you know, the beneficiaries of this trust are native Hawaiians, as defined in the Hawaiian Homes Act, and Hawaiians who are less than 50 percent blood who are descendants of the original inhabitants of the islands prior to the arrival of Captain James Cook in 1778. Both of these trusts involve public lands whieh have been either set aside or as having a special purpose related to the "rehabilitation" and "betterment" of native Hawaiians. However expressed, these purposes are an imp!icit acknowledgment of the injustices experienced by Hawaiians as a result of the manner in whieh the islands and her people became a part of the United States. It is typical to see these trusts as a response to "need" within a certain ethnic group. But that is a fundamental misunderstanding of the status and entitlements of Hawaiians as they relate to these trusts. And why an Office of Hawaiian Affairs empowered to receive trust revenues is constitutional, but why an office of Filipino affairs with the same powers would be unconstitutional. Native Hawaiians — regardless of blood quantum — are descendants of the indigenous people of the islands. As such, Hawaiians are recognized as heirs to the aboriginal title of all of the lands now comprising the state of Hawai'i. As the "first people" of Hawai'i,

Hawaiians also onee exercised absolute dominion and sovereignty over these lands. When the kingdom or nation of Hawai'i was usurped by the United States, significant and continuing losses of land and self-determination were suffered by the Hawaiian people. Unlike immigrants, Hawaiians did not historically choose to become Americans. And as important, Hawaiians do not have the second or third generation immigrant comfort of knowing the native nation and culture continue intact separate from the United States. Hawai'i is the homeland of the Hawaiian. Our language, dance, values, history, ancient sites and graves — all there is that gives meaning to being "Hawaiian," exist no where else but here. It is that distinction whieh Hawaiians share with American Indians, Aleuts and native Alaskans. And from whieh we gain our unique status and entitlements as native Americans. Unfortunately, this status and resulting entitlements have been viewed as a relationship of dependence. Because the human price of lost lands, sovereignty and cultural integrity were, and continue to be, devastating to eaeh native American group. However, too many for too long, have viewed such devastation as an excuse for treating natives as incompetent. Having lost the land and sovereignty onee — even if the overwhelming historical evidence is that the lands and self-government were taken by force — native peoples have then experienced the "second conquest" of being denied management of their own assets, and are barred from seeking redress in court when so-called

governmental "guardians" abuse native trusts. This bar to judicial remedy is called "sovereign immunity." Both the Federal and State governments are protected from suits by their own citizens unless the Congress or Legislature explicitly allows suit by waiving sovereign immunity. When the Department of Hawaiian Home Lands sought the return of and fair compensation for the trust lands illegally used for state airports — the state responded by raising the shield of sovereign immunity. When OHA sued the State Department of Transportation for the violation of withholding trust revenues — the state again raised the defense of sovereign immunity. In neither case has the State asserted that trust violations have occurred — only that the State enjoys the privilege of ignoring the law, if it so chooses. That's why there is a need for the native Hawaiian and Hawaiian "right to sue." There are documented examples of gross trust violations by the State and Federal governments. And unless Hawaiians have the clear ability to guard the integrity of their assets or to restore such assets through judicial enforcement — the trusts are always at risk. Like nearly everyone else, I am confident that Governor John Waihe'e represents a "new beginning," a more compassionate and understanding grasp and approach to the problems and issues facing Hawai'i and the Hawaiian people. But the rights of native Hawaiians — like the rights enjoyed by all citizens — cannot rest nor be guaranteed by the goodwill of individual government leaders. Such rights must be recognized and protected by law, and by access to the courts. It is time to discard the out-dated philosophy that Hawaiians need guardians. And to disavow the abuse of native Hawaiian trusts by those who have only posed as such guardians. The right to sue — onee law — would achieve both.

Kinau Boyd Kamali'i, former State Representative, is shown here next to Hawaii Rep. Virginia lsbell presenting testimony at one of many hearings during the 1987 Legislature.