Ka Wai Ola - Office of Hawaiian Affairs, 1 September 1982 — NATIVE STUDY COMMISSION REPORT IS "INFORMATIVE BUT DISAPPOINTING" [ARTICLE+ILLUSTRATION]

NATIVE STUDY COMMISSION REPORT IS "INFORMATIVE BUT DISAPPOINTING"

The Native Hawaiian Study Commission issued their draft report on September 23 for puhlie review and eommeni. The Chairman Kina 'u Kamali'i said that the report was "only a draft. and as such may and certainly will be revised in response to Dublic comment. . ." The inūial response by the Office of Hawaiian Affairs Trustee and Chairman of the Ad Hoe Committee on Reparations, Joe Kealoha was the recognition of "the many hours of research and testimony . . . but it is disappointing that the Commission's report contains no conclusions or recommendations." As there are only a limited number of copies of the report available to the general public, it was recommended by Trustee Kealoha that Chapter III of the Study Commission"s report be reprinted in K.A WAi OLA for our readers. Chairman of the Study Commission, Kina'u Kamali'i said. "I know that the greatest interest, and possibly the greatest confusion is with Part II. Chapter III. the section of this report whieh reviews the legal and historical relationship between native Hawaiians and the Federal Government. In particular, the question of monetary or lands settlement to Hawaiians as restitution or reparations for losses suffered at the time of the overthrow of the Kingdom of Hawai'i or at annexation." A summary of the entire report and a critique of Chapter III have been prepared by William Tagupa, Cultural

Affairs Officer of OHA for the readers of KA WAI OLA. We have also included a postcard cut-out with the address of the Washington D.C. Office of the Study Commission for you to use if you wish to send them your comments. We encourage you to write them. Full copies of the report are available at the Public Libraries, Alu Like Offices and at our offices throughout the State.

SUMMARY The Draft Report issued on September 23, 1982 by the Native Hawaiian Study Commissions is a 366 page document of facts and analyses relevant to the "culture needs and concerns of the Native Hawaiians." While having no explicit recommendations, the report itself is an informative document whieh gives a mueh needed statistical profile of Hawaiians in such areas as education, politics, heahh, and economics. Of immediate eoneem, however. are the sections dealing with the historical aspects of U.S.-Hawau reLations whieh have legal and moral implications. Under the general heading *Federal, State, and Loeal Relationships." The Draft Report reviews the following subjects: 1. Land Laws & Relationships - a historical discussion tenure from traditional times through the 1848 Great Mahele. wīth some eommeni on the proprietar> status of fishponds, geothermal rights and some of the effects of adverse possession. 2. Diplomatic and Congressional History of United States relationship with Hawaii and Native Hawaiians — a summary of the various treaties concluded between the U.S. and Hawaii, the American involvement in the 1893 overthrow of the monarchy, and the 1898 annexation of Continued on page 3

Trustee Joe Kealoha /rom Maui, Chairman o/ the Ad Hoe C ommittee on Reparations

Native study, eontinued from page 1 Hawaii and finally the general circumstances leading to statehood in 1959. 3. Whether native Hawaiians are entitled to Compensation for Loss of Land on Sovereignty Under Existing Law - a legal analysis of aboriginal rights claims to Crown and Government lands and possible compensation for such claims as well as for the loss of native Hawaiian sovereignty resulting from annexation, and a possible trust relationship between the federal government and native Hawaiians. 4. Review of the Hawaiian Homes Commission Programs — an assessment of the land status, program accomplishment, financial management and reporting, eligibility list and leasing activities of Hawaiian Horties Commission. 5. Assessment of Additional Federal Responses to the Unique Needs of Native Hawaiians - a review of federal programs for native Hawaiians. 6. Assessment of State's Responses to Native Hawaiian's Unique Needs - a discussion of the "ceded lands" provision of the 1959 Admissions Act and the State of Hawaii's policies of practices and the history and purpose of Office of Hawaiian Affairs. 7. Assessment of Private and Loeal Responses to Speeial Needs of Native Hawaiians - a survey of such private organizations as Kamehameha Schools/Bishop Estate, Queen Liliuokalani Children's Center, Lunalilo Home, and Alu Like. ine. The section dealing with native Hawaiian elaim has drawn the most comment and criticism. That section. reproduced herein. concluded that there now exist no legal basis for compensation of claims by native Hawaiians based on an analysis of existing statutes and the relevant historical facts. Chairperson Kina'u Kamali'i has stated publicly that although the "complex issues and questions" are "confusing and frustrating" there exists, in her opinion, a "strong elaim of conscience" resulting from the past injustices. Kamali'i also urged any "comments and recommendations" by the public be submitted to the Commission in writing no later than November 23. 1982 for inclusion into the final report to the President and the Congress. As part of its trust obligations to its beneficiaries, Office of Hawaiian Affairs will be submitting its rejoinder on the questions of reparations and claims. The Draft Report acknowledged at length the iniiial submission by Office of Hawaiian Affairs on such issues, particularly on matters dealing with "ceded lands". CRITIQUE lt should be emphasized that Chapter III was prepared by the U.S. Department of Justice. and therefore represents an unofficial position of the U.S. Attorney General. This chapter addrresses the following questions. I. Whether Native Hawaiians Hold Aboriginal Title to Crown and Government Lands and Whether They are Entitled to Compensation for Loss of Such Title. 2. Whether Native Hawaiians are Entitled to Compensation for Loss of Recogni?ed Title to Crown and Government Lands. 3. Whether Native Hawaiians are Entitled to Compensation for Loss of Sovereignty. 4 Trust Relationship Between the Natives of Hawaii and the United States. The analysis of the foregoing issues are entirely legal, focusing on existing statutory and case law. At the outset aboriginal title is a legal concept to provide a basis for a native group that does not have traditional, legally accepted land ownership rights to establish a elaim to land. First. natives must show themselves of a "single landowning entity." The draft report concluded that since "manv native Hawaiians abandoned the land to work for foreign land owners in Hawaii" or "to work in other nonagricultural pursuits"they did not have "eommoneeonomie ties whieh united them." The draft report noted that "after 1848 the Hawaiian Government did not view the native Hawaiians as an entity whieh had collective sights in the Crown and Government lands." The second part of the test is that the natives as a single landowning entity must have had "actual and exclusive use and occupancy of specified lands" for a long period of time prior to extinguishment of title. The drat report eoncluded that "since the native Hawaiians did not have a nomadic culture, actual and exclusive use and occupancy of the extensive area of Crown and Government lands is even more difficult to establish. native Hawaiians as a group have failed to meet the 3-part test. The third part of the test, wherein long term use and occupancy must be established prior lo extinguishment, was disregarded in the draft report. It was OHA'S submission that collective native rights in the soil preceded the 1848 Mahele and was subsequently strenghtened by the

Mahele and successive statutes whieh is now memorialized in HR 7-1. This important aspect was neither noted nor given any credit. The draft report further concluded that even if the test had been satisfied, aboriginal title had been extinguished by the Hawaiian Government through the 1848 Mahele, and succeeding legislative acts. Inasmuch as the U.S. Government had no part, claims for reparation cannot now be pressed. The draft report, moreover, stated that even all points were proved in favor of native Hawaiians, no law currently exists to provide court or administrative jurisdiction over the matter. The questions as to whether native Hawaiians are entitled to compensation for loss of recognized title (not aboriginal title) to Crown and Government lands was re-

solved in the draft report in the negative. The legal basis for such a conclusion is founded on the premise that recognized title ean be acknowledged only when the United States exercises sovereignty over such lands. Finally, the terminal question is whether native Hawaiians are entitled ot compensation for loss of sovereignty. The draft report concluded that as a matter of law and fact, native Hawaiians had no such elaim. This conclusion was based on the observation that sovereignty was terminated by the Provisiond Government prior to annexation. Even if historical circumstances were favorable to native Hawaiians, Congress may terminatesovereignty at will without the necessity of compensation under the U.S. Constitution.

Trustee Rod Burgess serves as the Office representative on the Federal-State Task Force for the Hawaiian Homelands. (Right-Center) Hearings were held on Oahu at Hawaiian Home Lands Department Offices and later in Hilo. Hawaii.