Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 9, 1 Kepakemapa 1988 — Responding to Right to Sue Story [ARTICLE]
Responding to Right to Sue Story
University of Hawaii Professor Haunani-Kay Trask and attorney Mililani Trask, members of "Civil Rights for Hawaiians," have requested an opportunity to respond to the Native Hawaiian Legal Corporation's (NHLC) eolumnon "Right-to-Sue" legislation whieh appeared in the July 1988, issue of Ka Wai Ola O OHA.
The Trask sisters say that the eolumn, written by Mahealani Ing, "was a response to a flyer that our group printed to inform Hawaiians about the Waihe'e/Levin version of the Right-to-Sue bill," but did not include information contained in the flyer, representing their group's position. In the interest of publishing differing views of issues affecting the Hawaiian community, Ka Wai Ola O OHA has agreed to print the following response from "Civil Rights for Hawaiians." 1. Hawaiians cannot recover over 130,000
acres currently used by non-natives. TRUE. Native Hawaiian Legal Corporation (NHLC) claims that "Hawaiians ean now go into court and seek injunctive and declaratory relief for return of these lands using federal statute 42 U.S.C. 1983." Injunctive and declaratory relief does not return lands to beneficiaries. Such relief only declares that some action — such as the taking of Hawaiian Home Lands for non-natives— is illegal; or such relief stops the leasing of such lands to non-natives. But neither declaratory nor injunctive relief forces the Department of Hawaiian Home Lands (DHHL) to give land to native beneficiaries. The community version of the right to sue bill, rather than the Waihe'e/Levin version, sought to give Hawaiians the right to go to court to ask that lands go directly to beneficiaries. Neither the NHLC nor anyone else has ever filed a 1983 action to obtain lands because such remedy is not available under this action. This is precisely why the Federal-State Task Force,whichincluded a State judge, recommended that the State pass a right to sue bill.
2. Even with a prospective right to sue, native Hawaiians will still not be able to recover lands or monies. TRUE. NHLC claims that land ean be recovered through a 1983 action, whieh we have shown to be false, and that beyond this, out of pocket losses ean be recovered. This is a false issue since native beneficiaries ean only recover out of pocket !osses after they first incur such losses. But the purpose of the Hawaiian Homes Act was to force the Department, rather than the beneficiaries, to pay for things like water lines and other infrastructure. It is ridiculous to celebrate a bill that only says a beneficiary will get monies back that, in reality, the beneficiary should not have to spend to beqin with!
3. If DHHL is found guilty of breach of trust, the court ean only award land and monies to the Department, not the Plaintiff. This means that the same people who are guilty of abuses in the first plaee will receive the lands and monies if beneficiaries are successful in a prospective suit. The bill thus gives an incentive to DHHL to continue to abuse the trusts.
The job of DHHL is to give land to Hawaiians. The Waihe'e/Levin bill states that ". . . no award of land shall be made directly to or for the individual benefit of any particular person not charged by law with the administration of the trust . . ." This means that only state trustees ean receive land awards. This is contrary to the purpose of the Hawaiian Homes Act whieh is to award land to the people. The OHA article by NHLC poses the question, "Shouldn't returned
lands go back to the Department to administer on behalf of all Hawaiian beneficiaries?" The answer NHLC gives is YES. The answer Civil Rights for Hawaiians gives is NO. Land should go to the beneficiaries not to the same Department whieh continues to lease our lands to nonnatives. At present, there are 17,000 Hawaiian families waiting for homesteads and 130,000 acres of Hawaiian Home Lands used by non-natives and
leased to them by DHHL. 4. The Governor has beendirected to make a plan by 1991 regarding settlement of all claims from 1959. This concentration of power in the Governor makes no provision for input from Hawaiian communities. There is no opportunity for Hawaiians to dispute this in the courts. TRUE. Whenever there is a legal question about past rentals due, the court will order appraisals to determine what the dollar amount is. Under the Waihe'e/Levin bill the Governor will "make a plan" to submit to the Legislature. Neither the Governor nor the Legislature is impartial, as a
Judge would be. Because the Governor and the Legislature are accountable to all the citizens of Hawai'i and not just to Hawaiians, they are in a conflict of interest regarding Hawaiian lands. It should not be up to the Governor to decide a legal dispute. It is up to the courts. In this case, the Executive branch of government is usurping the powers of the Judicial branch. The record of both the Legislature and the Govemor's office regarding Hawaiian land issues has been very poor. Trusting to these branches of government to decide a settlement is like trusting to thieves to decide how mueh of their stolen goods should be returned. Civil Rights for Hawaiians does not believe that those who are guilty of taking Hawaiian lands should be the ones who decide how to compensate us for that taking.
5. In short, this bill extinguishes all claims since the beginning of the trust. TRUE. The Govemor worked to kill Senate Bill 3413 whieh would have helped to determine exactly how mueh back rental was due DHHL. Now, the Govemor has the power to decide how mueh should be paid. He will no doubt consider the costs of such back rentals to the State, rather than the loss of both monies and lands to native beneficiaries. Civil Rights for Hawaiians was the first group to !obby for the right to sue bill, long before NHLC and the Office of Hawaiian Affairs. We do not receive State funding, as does OHAand NHLC. We have never had any conflict of interest with the State and so have never had any problems with representing the beneficiaries rather than the Govemor's office.
The politics of the final passage of the right to sue bill reside in a breakdown of who supported the bill: The Civic Clubs, OHA and NHLC all supported the Governor. Civil Rights for Hawaiians, E Ola Mau and the Nuclear-Free and Independent Pacific Movement all supported a veto. In our analysis, those who supported passage of the bill support the Govemor and the tremendous concentration of power that he is attempting to achieve. Those who did not support passage of the bill support self-determination for Hawaiians. Sovereignty was at the heart of the community version of the right to sue bill. When the bill became but another extension of the Govemor's power, those of us who support sovereignty spoke out against the bill. The question for Hawaiians is whether they support the will of our people or the will of the Governor.