Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 5, 1 May 1991 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

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More on a Native Hawaiian Trust Counsel

Mueh of the recent discussion concerning Hawaiian Native claims has focused on potential state-based remedies as reflected in the proposals known as the "Governor's Action Plan to Address Controversies." At the same time

as this state-focused effort occupies the spotlight, another effort has begun on the federal level todesign a package of federal remedies to address Hawaiian Native claims. Although the process being followed involves the Hawai'i congressional delegation and their staffs, particularly Sen. Daniel Inouye in his capacity as Chairman of the Senate Select Committee on Indian Affairs, the process has as its expressed goal to have a legislative package designed and developed through the participation of the Hawaiian Native community. Meetings, sometimes called drafting sessions, to date, have involved a broad range of groups and individuals. Since many of the issues have significant legal aspects, not surprisingly many of the participants have been attorneys. It is premature to report on the full scope of the remedies that may ultimately be proposed. It is clear, however, that there is a consensus that the full range of wrongs, starting with the overthrow of the Hawaiian monarchy, should be addressed by comprehensive federal legislation. There are several possibilities for remedies whieh may or may not have a plaee in the final proposal that have their origins in the FederalIndian relationship. One of these, whieh was briefly touched upon in a prior eolumn, is the trust counsel. Although there have been proposals for a trust counsel, including legislative proposals, periodically over the past 20 years, there is not

now, nor has there ever been, an actual trust counsel. To date, the trust counsel has remained a proposal. In the Indian context, the trust counsel's purpose is to address the continuing conflict of interest faced by the United States as the trustee for Indian property interests, whieh sometimes compete with the United States' responsibilities for other federal or public interests. This conflict of interest has taken many forms. For example, the Army Corps of Engineers may want to condemn Indian land in order to build a dam or other water project, while the Indian tribe might oppose the Corps action. How does the United States reconcile such a conflict? Whose

interest does it represent? The proposed trust counsel, in the Indian Context, would have the obligation to advocate for the Native interests within the government. One version of the proposal wou!d allow the trust counsel to represent Native interests in litigation while the Justice Department would representthe other interests of the United States in the same proceedings. Still another version calls for the United States to provide split briefs in litigation— legal arguments for both the native concerns as well as the other interests of the United States. In the Hawaiian Native context, the proposal for a trust counsel is somewhat different. The focus of the trust counsel would be to enforce the two federally created trusts: the Hawaiian Home Lands Trust and the Public Land Trust. As is well known since statehood, these trusts have been under the day-to-day management and supervision of the State of Hawai'i. As is also well known, there has been fairly continuous and

significant criticism over the management of these trusts. With respect for both trusts the United States has the responsibility as a residual trustee to enforce the terms of the trusts. With the exception of providing its views to Congress on state legislation concerning the Home Lands Trust that requires Congressional approval in order to be effective, the United States has been an absent trustee and has never used its available litigation remedies. The Executive Branch has taken a fairly narrow view of its role as trustee, preferring to defer to the State of Hawai'i. This reluctant trusteeship seems to stem in part from its view of how a federal system should work, and in part from its opposition to treating the United States/Hawaiian Native relationship as a political relationship. In any event, a Native Hawaiian trust counsel would be the focal point for the United States' existing trust obligations, and as proposed the counsel would have the United States' right to sue to enforce the terms and conditions of the existing trusts. The trust counsel would also serve as the advocate for Hawaiian trust issues within the federal government, and well as with the State of Hawai'i. As proposed, the counsel would be based in Hawai'i. Some of the issues that have bothered Native advocates concerning the whole concept of a trust counsel, are also pertinent to evaluating the efficacy of a Native Hawaiian trust counsel and will need to be worked through before a final proposal. For example: does the creation of the trust counsel, legally and/or functionally reduce the United States' obligation as a trustee; how is the trust counsel selected and set up so that he/she maintains independence from any particular political administration; and how would the trust counsel's right to sue fit with separately created rights to sue for beneficiaries and Hawaiian native organizations?

The focus of the Trust CounseI would be to enforce the two federally created trusts: the Hawaiian Home LandsTrust and the Puhlie Land Trust.