Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 9, 1 Kepakemapa 1998 — Page 21 Advertisements Column 1 [ADVERTISEMENT]

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by Melissa Seu staff attorney, Native Hawaiian Legal Corporation

On JuK 24, 1998, vkaory was final)y anained for 68 nafive Ha\vanaas w6o dared to sue the State of Hawai'i. The victor> eanie in the form of a decision from First Circuit Judge Maiie Milks whieh held thatalaw enacted in 1997 to decimaie an administrative process designed to redress wrongs suffered b\ indi\idual Hawaiians. \iolated the coastitutional due process rights of those nati\e Hawaiians and was therefore void and invalid. However, the fight against injustice is not over. Indeed. the fight is just beginning. Approximately one year ago, I \\Tote an artide infomring native Hawaiians about a particularly onerous law whieh had been passed by the 1997 Legislature. ("Legislative Action Kills Hopes For Fairness," Ka Wai Ola o OHA, August 1997.) The law, whieh was ulfimateh' adopted as Act 382, 1997 Hawaii Session Laws ("Act 382"), had to do with the Hawaiian Home Lands Trust Indi\idual Claims Re\iew Panel. The Claims Panel was set up by the 1991 Legislature to be a neutral bod\ so that it could 1) hear claims from indi\idual Hawaiians who \vere harmed by the Department of Hawaiian Home Lands ("DHHL") between August 21, 1959, and June 20, 1988, and 2) recommend to the Legislature whether the indi\idual daimants should received money compensafion and/or corrective aelion from the State. In 1997, the Claims Panel asked the Legislature to approve 165 daims whieh the Panel had completed and pay those claimants their recommended money damages, totaling approximately $6.8 million. Faced with a $6.8 million bill, the Iegislature dedded not to pay those daimants and instead enacted Act 382. Act 382 ignored the guidelines and prindples established by the Claims Panel and gutted the Claims Panel process. In its plaee, Act 382 established a new process under a "Woridng Group" whieh would dedde whether any claims are valid, and how mueh, if any compensation eaeh claimant should receive. We at the Native Hawaiian Legal Corporation said the Working Group was biased because it was made up of the diredor of DHHL, the State Attorney General, the director of the State Offlce of Budget and Finance, and Ihe chairperson of the origjnal CJaims Panel. At least three of the four members had openly testified against the claimaints at legislative hearings even before tlie law was enacted. In effecfi Ad 382 changed the rules in mid-stream, threw out the Claims Panel's four and a lialf years of work, and left it to the state to decide 1) whether the state committed any wrongs with resped to an individual claimant, and 2) what kind of compensation the individual was entitled to receive from the state. In addition,

Ad 382 ordered the Claims Panel ;uid DHHL to figure out what kind of nonmonetary compensation would be received by those claimanLs whose 165 claims were eompleted by the Claims Panel. The Ad 382 Working Group ultimately developed criteria whieh eliminated 1 .200 daimainLs or reduced by 60% the number of claims to be considered. Uiose claims whieh the Ad 382 Working Group felt \vere not deserving of eompensation included "Waiting List Claims," those brought by Hawaiians who felt they had waited an unreasonablv long time fbr a homestead, "Accelerated Award Claims," those brought bv Hawaiians who had been awarded homestead leases in tlie 1980s but were unable to use their homesteads because of the laek of infrastructure, "Coastruction Claims," those claims brought by Hawaiians based on substandard construction of the homes on their homestead lots or the infrastrudure for their lots, and "Unlawlul Policy Claims," those brought by Hawaiiaas who had not been awarded a homestead as a result of an illegal DHHL rule or policy. GovernorCayetanoapprovedandsignedintolaw īlie Working Group's criteria, therebv completing the cycle to whieh Hawaiians are ahvays subjeded at the hands of the State: 1) state makes promise to Hawaiians for redress or relief, 2) state breaks promise. Determined to eall the stale on what it was doing, on November 11, 1997, NHLC attorneys and Attorney Hayden Aluli, filed a lawsuit against the state on behalf of 68 native Hawaiians who had filed claims with the Claims Panel. The state DefendanLs included die four members of the Ad 382 Working Group as well as the original Claims Panel, whieh was required by Ad 382 to apply the Working Group's new criteria. The lawsuit asked the court to declare Ad 328 unconstitutional and therefore void on the grounds that Ad 382 violated 1) the state and federal constitutional separation of powers and non-delegation doctrine, 2) Plaintiffs' constitutional riglits to ehie process and equal protection, and 3) the Contrad Clause of the U.S. Constitution 4) Ihe constitutional prohibition against tlie taking of private property \vitliout just compensation. In addition, the lawsuit alleged that by taking action as agents of the state under the authority of Act 382, the defendanLs would 1) breach the state's trust duty owed to Plaintifls under the Hawaiian Homes Commission Act, 2) be in a dired conflid of interest with their duties to Plaintiffs, who ;tre benefidaries of the Hawaiian Home Lands Trust, in violation of Plaintiffs' due process rights under the HHCA, and the State and Federal constitutions, and 3) violate Chapter 42, 1983, of

the U.S. Code. The lawsuit also asked the court to enjoin the defendants from taking aelion under Ad 382. On July 24, 1998, Judge Mane Milks declared Ad 382 unconstitutional on the grounds that it violated the plaintiffs' constitutional right to due process. Judge Milks' decision affects not only those 68 native Ha\vaiians who brouglit the lawsuit, but all those who filed claims with flie Claims Panel, whieh presenfly totals over 3,000 Hawaiians. Is this a vidory for Hawaiians? Yes, definitely. In effect, Judge Milks' decision puts back into plaee the prindples andproceduresestabfishedbytheClaimsPanel. Itgives back to the claimants a feir and objedive process. Does this mean all those claimants who get favorable recommeniMons from the Claims Panel will get paid their recommendedmoneydamages? No, not necessarily. Judge Milks' decision simply invalidates Act 382, the Working Group and the Working Group's criteria. However, the claimants must now go back to the Legjslature in 1999 and demand payment for their claims. That's when the real work begias, because under the law, the Legislature has the discretion to dedde whether or not it will pay the eompensation whieh the Clakns Panel recommends, and there is no telling what the Legislature will do. The only hope the claimants have in finally receiving payment for the wrongs they suffered is if they convince the Iegjslature to pay up. Why is this important to all Hawaiians and not just those who filed claims with the Claims Panel? Whal flie Legislature did when it enacted Ad 382 and tried to change the Claims Panel process is an example of how the state atways reneges on its promises to native Hawaiians. It is lime for all Hawaiians, not just those who filed claims, to stand up and say, "No more." No more broken promiscs. No more false hopes. Imagine flie impact if all those who attended the August 12, 1998, rally marking the l()0th anniversary of HawaTi's annexation to the linited States, showed up at the Legislature? What a difference there would be; what a show of strength.

\ative Hawaiian Legal Corporation 1164 Bishop StreeL Suite 1205 Honolulu, Hawai'i 96813 Phone: (808) 521-2302 Fax: (808) 537-4268