Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 6, 1 June 1991 — On a Hawaiian Native Claims Commission [ARTICLE+ILLUSTRATION]

On a Hawaiian Native Claims Commission

Last month this eolumn focused on the utility of a Native Hawaiian trust counsel as a potential part of a comprehensive federal claims legislative package. As noted, the effort to develop this comprehensive claims package requires the evaluation of a number of potential elements. Another potential element is a Hawaiian Native claims commission. Conceptually, although a claims commission ean take a lot of different forms, it is a device whereby the United States waives its sovereign immunity and provides a specifically designed forum to reach the merits of particular claims. Generally speaking, one cannot bring a elaim against the United States, or any government, without that government's consent; this essential aspect of governmental power is known as "sovereign immunity." In allowing claims against itself. a qovernment waives its sovereign

immunity; the waiver may be partial or full. Governments in allowing claims to be brought against them, determine where the elaim may be brought, by whom, and what type of recovery may be permitted. Most governments, including the United States, have by statute provided for the types of claims that may be brought against them. The range of claims that Native Hawaiians have against the United States — concerning, for example: the overthrow of the Queen; the acquisition, without payment, of approximately 2 million acres of Hawaiian land, the mismanagement of trust lands prior to statehood, and the United States' failure to enforce the trusts against the state of Hawai'i — are not the types of claims provided for by existing waivers of sovereign immunity. With the exception of very limited civil rights decisions, all lawsuits attempting to resolve Hawaiian Native Claims against the United States have failed.

In Hawai'i Governor Waihee's proposals to resolve claims against the state, a variation of a claims commission was proposed. Apparently this claims apparatus was to be limited to individual claims and was to be a fairly informal process. Advocates of the process asserted that informal procedures allow an easier and cheaper method to resolve claims. However, a significant question, was raised whether appropriate procedural due process rights would be provided to claimants. In effect, the claims process was accused of being less secure than the usual courtroom proceedings. This debate to some extent clouds the issue of whether a federal Hawaiian Native claims commission would be an appropriate tool. Simply put, a claims commission ean be whatever one designs it to be. Its organic statute defines its scope, who the commissioners are, how they are appointed, what cases it may hear, what standard of conduct the United States will be held to, what proofs will be required, what remedies it ean provide.

To date, the major experiment, concerning native claims, has been the Indian Claims Commission. This special act of Congress in 1947 provided a set period of time for tribes, and other Indian descendants to have claims against the United States resolved. The United States allowed its actions to be evaluated by a "fair and equitable dealings" standard — more of a political/moral judgement than a strictly legal eall. The lndian Claims Commission, now extinct with its remaining cases transferred to the United States Court of Claims, was a fairly*unique and even progressive experiment for its time. Today, however, its defects as a claims mechanism seem more clear than any long term benefits it generated. Those defects include: • the meager calculation of land value based on the "value" at the time the land was taken from the

Native people; • allowing the government to deduct the cost of any and all payments, gifts, teachers, etc. that it provided to the natives; • the payment of very low interest on the value at time of taking less "payments"; • and the restriction of damages to only money damages. In the last instance, for example, even though the various bands of the Great Sioux Nation have a judgement against the United States for several hundred million dollars for the loss of their Black Hills, the bands have refused payment. They are seeking an alternative congressional settlement that would provide at least a partial return of the Black Hills themselves to the Sioux. Perhaps the most significant criticism of the Indian Claims Commission process, however, was in the practice of per copita payments. Although sums of money were provided from the national treasury to settle claims, practically all the money was divided up into small shares based on tribal membership or heirship status, or both, and disbursed as such.

For example, eaeh eligible Indian in California received a mere $675 for the array of claims California Indians had against the United States. Although some individuals may have benefited at least in the short term, no discernible improvement in Indian land holdings or eeonomie conditions was produced nationwide by the Claims process. One of the challenges of developing a Hawaiian Native claims system will be to develop a system that avoids at least the known mistakes of the oast.

Mui Wakinekona

By Paul Alexander Washington, D.C. Counsel for OHA