Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 9, 1 September 1989 — Kauaʻi hearing [ARTICLE+ILLUSTRATION]

Kauaʻi hearing

Kaua'i Community College cafetorium echoed to pleas for the rights of Hawaiians to return to the lands of their forefathers on Tuesday, Aug. 8. Prince Kuhio's eall to "stay the wasting hand" echoed onee again when the Senate Select Committee on Indian Affairs and the House Committee on Interior and Insular Affairs met on Kaua'i. U.S. Senator Daniel K. Inouye and U.S. Representative Daniel Akaka, both of Hawai'i, and U.S. Delegate from Guam Ben Blaz heard over eight hours of uninterrupted testimony from state officials, trustees from the Office of Hawaiian Affairs, homesteaders and homestead association representatives during the Kaua'i session. The OHA trustees' testimony is in this issue in a separate story. Attorney H.K. Bruss Keppler kicked off the testimony by asking for a federal desk (formal and permanent representation) in eaeh federal agency dealing with the Hawaiian people. Keppler, representing the Association of Hawaiian Civic Clubs, asked for a single definition of who is Hawaiian. He recommended a definition whieh would include continued on page 4

Kaua'i hearing from page 3 anyone whose ancestors were inhabitants of the islands on or before 1778. He said the clubs have taken no position on the sovereignty issue. Arthur Trask of Kaua'i characterized the loss of the land as a "murderous injustice." He pointed out that America's involvement in World War II had begun in the Hawaiian Islands, that the Hawaiian people have suffered and been quiet. Trask pleaded with the committee to act to bring justice to the Hawaiian people and return them to their lands. Move to end statute of limitations Justice for the people was forcefully brought out when the State of Hawaii's Attorney General Warren Price recounted his agency's efforts to regain 1,700 acres of homestead lands whieh the U.S. Navy now claims it owns in fee simple. Price said the state tried to regain control of the Hawaiian Home Lands at Lualualei, in a suit brought in 1986. Over 1,800 acres at Lualualei, on 0'ahu's Wai'anae coast, were set aside for the U.S. Navy for an ammunition depot and transmitting station by executive orders of then-Governor Lawrence Judd. The 1930 and 1933 executive orders also provided that if the Navy no longer needed the site the land would be reinstated as Home Lands. (During the hearing, to clarify "excess and surplus" as defined by the government, Inouye said he had learned over the years that something that is excess to needs of an agency may not be surplus to the needs of the federal government. He noted he does not agree with that philosophy. He said he believes lands no longer needed for the original purpose should be returned.)

Price told the committee the state sued for return of the Lualualei land claiming the federal govemment had a fiduciary responsibility to the beneficiaries of the Home Lands Trust and that the federal government had breached that trust by failing to return the homelands. The federal government, Price said, foreclosed any remedy by claiming the statute of limitations had run out and the land now belonged to the government. "The government never admitted breach of trust," Pnee said. In effect, Price said, the government told the Hawaiian people that their time had run out and the federal government was keeping the land. "Can Congress cure this by setting aside the statute of limitations?" Price asked the committee. Inouye said "Yes."Inouye then invited Price to help his staff to draft federal legislation to set aside the statute of limitations so that Hawai'i could regain lands that were turned over to the federal government. Inouye indicated the limitation should be waived entirely to allow Hawai'i to sue for the lands "from day one," at the overthrow of the monarchy. Inouye asked whether Price would represent the state or the Home Lands Trust. The Attorney General said he would represent the state in any court action and that there would be "inherent conflict" in his position. Inouye asked if appointment of an independent counsel, such as has been done in federal investigations, would be appropriate. "Yes," Price said. He noted that the state has often appointed independent counsel for OHA when they had questions or problems where they wanted an unbiased, outside opinion. "Get something ready for September" Inouye told Pnee, apparently referring to the next Congressional session, in the autumn.

Inouye asked Pnee where any money would go if the courts awarded damages. Price said any money should go to repair the trust, not into anyone's pocket, includinglawyers. Price later told Ka Wai 01a's reporter that the change he proposed would bring the federal government to the negotiating table and "start the process." Price said the trust relationship is between the government and the native Hawaiians as a class of people with no differentiation between homesteaders and those on the waiting list or island Hawaiians or mainland Hawaiians or Hawaiians living anywhere else. Melody McKenzie of the Native Hawaiian Legal Corporation said NHLC strongly favors changing the ātatue of limitations. Right to take power Susan Williams, an American Indian and lawyer experienced with dealing in trust responsibilities of the United States to its indigenous people. She spoke of the Plenary Power Doctrine in whieh eonfiscation of lands was upheld, and whieh the Creek Nation challengd in 1944. Compensation was paid for the lands the U.S. confiscated, she said. She spoke forcefully of the duties of the executive branch, the general trust, and the rights of tribal peoples. "Matters of enrollment," she said, "are a matter for the tribe, not for the state." She noted blood quantum varies from tribe to tribe from one-eighth to 50 percent. She pointed out that federal benefit enrollment is not the same as tribal enrollment. Williams cautioned the Hawaiian people to articulate their relationship to the federalgovernment very carefully so they are not in court trying to clarify the "who and what." Don't let anyone tell you that you've no title to your lands," she told the audience. "You have an 'equitable right' title to the land." She explained this equitable right is different from a title in fee but a strong legal point. "Act assertively to establish management of water, land and sacred places," she said. "Don't ask for it, do it. Administer and supervise your own lands. Don't ask for power, take power," she said. continued on page 5

Senate committee and staff listen to testimony Kaua'i.

Discrimination in federal laws oointed out

from page 4 Among the problems brought to the committee's attention at Kaua'i were the issue of blood quantum; the problems homesteaders encounter trying to leave their homes to their successors; the possibility of extending leases on homestead lands, the return of ceded lands; the current uses of ceded lands; the heavy burden of paying taxes based on fair market value; and not being able to use homesteads as collateral for loans. Judith Naumu-Stewart, a lessee at Kekaha Homestead and spokeswoman for the Kekaha Homestead Association, said that from Koloa to Polihale and Ni'ihau, Kekaha has the greatest eoncentration of native Hawaiians residing on Kaua'i and yet in the area there have been only 67 homestead tracts allocated. She said the Kekaha Sugar Company's lease of 15,000 acres is due to expire Dec. 31, 1993. "We (the Kekaha Homestead Association) would like to lease the parcel of land to take native Hawaiians off the waiting Iist and put them on the land." The land could also be used for eeonomie development, she said, and the association wants the parcel restored to the inventory of Hawaiian Home Lands . Stewart said the association favors having every qualified successor begin with a new 99-year lease. "We would like the original lessee to be able to pass his or her lease on to bIood heirs in perpetuity," she said. Further, the Kekaha group would like to have the blood quantum requirement for DHHL homestead lots lowered, if someone ean prove Hawaiian ancestry. However, before that happens, people with more than 50 percent Hawaiian blood have to be taken care of, she said. A lot of problems could be solved, she said, if the state paid the 20 percent of revenues from ceded

land to OHA, as it is supposed to. "We wholeheartedly support the efforts of the Office of Hawaiian Affairs to secure our entitlement to those revenues," she said. On behalf of the assoqiation she said questions that have yet to be answered included: what happened to money alloted for infrastructure on homelands; what happened to the millions eoU lected by the Department of Transportation on 5 (f) lands on whieh native Hawaiians are entitled to a pro rata share; how mueh money has been eollected overall; who has been managing the money; when ean a full audit be done? A full time paid commissioner for the Department of Hawaiian Home Lands is needed, she said. Additional funding for DHHL is also needed so it ean discharge its obligations to native Hawaiians. Finally, she asked "Why hasn't the federal government appropriatd funds for DHHL throughout the years, for the support of this federal act?" Joseph Manini Sr. displayed a series of very old maps to the committee showing an alleged gradual erosions of boundaries of Homestead lands. Scholarships and ineome taxes Carmen "Boots" Panui, an Anahola homesteader, lvd the committee-members' attention riveted on her words when she told them the eollege scholarship financial aid form and the Tax Reform Act of 1986 both discriminate against native Hawaiians. Mother of 12 children and grandmother to 18, Panui pointed out the scholarship forms ask questions about the value of a person's home and how mueh they still owe in order to determine the person's equity in the home. The Tax Reform Act,

she noted, allows home equity to be used as eollateral for educational and home repair loans. "That is great for every homeowner in the United States except those living on Hawaiian Homelands," she said. Homesteaders are forbidden by law to "transfer, mortgage or pledge" their homes to any person or institution except a native Hawaiian or Hawaiian. The same problems arise in home improvement loans. Panui said she and her husband were unable to get any tax break for a home improvement loan because it was not secured by the home. Instead the loan is treated as a consumer loan. The deduction for consumer loans gradually diminishes under the new tax laws and ends in 1991. Panui added that Hawaiians be included in the federal laws whieh exempt Native Americans from having to include the value of their homes (on native lands) when applying for financial aid. lnouye indicated that his staff would take a serious look at the apparent inequity in the law. He noted the point raised by Panui had not been raised before. Homestead representatives brought up the proposed state development at Hanapepe and said there was no reason native Hawaiians could not be allowed a proportion of the lots. On the eeonomie side, the committee members were told the north shore fishing on Kaua'i is estimated to be a $5 million industry. It is unregulated, one witness said, and the result is heavy overfishing. The overfishing is causing the "destruction of the reefs and the Hawaiian diet with it." The witness said Hawaiians must be allowed to gather taro, fish and seaweed that are part of the traditional Hawaiian diet. He noted the state's recent $20 million surplus and said "It is at the expense of the native people."