Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 12, 1 December 1993 — Judge Edward King [ARTICLE]

Judge Edward King

Jrom page 2 ticipate with the task force the governor set up to represent the interests of native Hawaiians. It in\olves getting information from native Hawaiians about their concerns, responding to native Hawaiians, and having ihem give some input as to how questions are to be resolved. \\ ith all of that in mind, I work with the task force to assist in es aluating the claims arising out of breaches of the home lands trust and compensating the trust for those breaches. KWO: What are some examples of these breaches? King: A clear example is the use by the territorial or the state government of lands that were set aside for native Hawaiians and the home lands trust. This was lone by governors through executive orders quite frequently. Another example. of course. is sales or leases of land to third parties and non-Hawaiians with inadequate compensation, eitber from rent, or from payment for the land. KWO: Who ean file these claims? King: These aren't claims that ean be filed. Individual claims ean be addressed under the lndividual Claimant Relief Act. That establishes a vehicle for dealing with individual claims that have arisen since statehood. My task is to work with the state in resolving the claims of a more amorphous nature, that affect all beneficiaries. For example, turning land over to use by the government is a breach of the trust in that it's not a dedication of that

land to the use of native Hawaiians. At the same time you cannot look at that problem and figure out who is injured. Everybody is injured, all the beneficiaries are injured. KWO: Woulā an example of such a breach be use of Hawaiian home lands by the military? King: Military use of the land would be a very good example. KWO: What woulā be another example? King: Well, schools. There are several instances where schools have been set up. Now a lot of native Hawaiian children go to these schools, but so do others, and it is clear that this is use of home lands for purposes that are outside what is envisioned in the 1920 Hawaiian Homes Commission Act. ... I'm not speaking here of instances where land has been leased to some third party for f u 1 1 value. Because in those instances it is the policy of the Department of Hawaiian Home Lands to lease lands in order to generate funds. And the theory that DHHL has in doing that is that these funds are going to then be used to help deve!op lands for the uses that were contemplated in the trust. KWO: An example of this woulā be the Prince Kūhiō Shopping Plaza in Hilo. King: That is coiTect. KWO: So that could not be used as an example of a breach of trust?

King: No, I'm not saying it couldn't, I'm just saying that that's not what I'm pointing to as an example. The task force is not currently considering lease of land at fair market value as a breach. I've taken no posture that it's a breach either. I haven't been confronted with a need to determine whether it's a breach. If it is a breach it will surprise a lot of people. ... KWO: What would be the resolution ofthese claims? King: What has been done in instances where the government has had the land in the past and has used it, is, the appraisers have been asked to try to put values on the use of the land up to the time the government stopped using it. By and large the government had withdrawn those uses and either abandoned the uses or renegotiated them under terms

where they are paying fair market value to use the land. The big task for prior government use is to figure out what was the value of the use that the government obtained from the lands. ... KWO: Where will the money from the resolved claims go? King: It will go into the trust and it will be under the supervision of the Hawaiian Homes Commission. There is no question of that. It will be used for maintenance and development of the home lands areas. Of course one of the main problems of the home lands trust is that so few people have had access to home lands and far fewer native Hawaiians have had an opportu- ■ nity to use the lands. ... KWO: Is thefederal government cooperating? King: Well, the federal govern-

ment is having difficulty reaching a mature decision. I have not yet been involved in direct advocacy vis-a-vis the federal government, but right at the end of the last administration, in fact, practically as a midnight act, the Department of Interior issued a memo saying the federal government has no trast responsibilities to native Hawaiians. That has been the topic of a great deal of dialogue since then. The state has been trying to get the federal government to acknowledge it does have trust responsibilities. The new administration has withdrawn the earlier memo that was issued by the outgoing Republican administration but it has not stated what its position is at this time. The primary claims, the areas where there is a eommitment, are in the areas of state breaches.