Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 2, 1 February 1987 — Native Hawaiian Lepal Corporation [ARTICLE]

Native Hawaiian Lepal Corporation

NHLC Report * \ Right to Sue By Mahealani Ing, Executive Uirector We've all heard the horror stories about Hawaiian Homes applicants waiting for 30 plus years for their homesteads. Acceleration of unimproved lot awards by DHHL over the past several years has shown great promise, but the fact that the situation was allowed to fester for many years highlights the powerlessness native Hawaiians have felt without a statutorily explicit right to enforce their rights in court. Instead, they have had to trust that suits would be brought by the U.S. Attorney General on their behalf, something never done in the 66-year history of the program. Governors of Hawai'i, by executive order, had illegally allowed Hawaiian Homes lands to be used for the general public. The 200,000 acres in lands set aside for the trust had never been properly inventoried. The Hawaiian Homes Commission itself voted to allow the use of its lands by loeal and state agencies without compensation or having properly completed land exchanges. In 1985, former Gov. George R. Ariyoshi finally nullified the executive orders whieh had deprived the Department of land for whieh the state never paid eompensation. Even today, however, the state and federal governments continue to use Hawaiian Home lands for whieh little or no compensation has been paid and land exchanges have not been consummated. One of the corrective measures this task force recommended was the passage of both federal and state statutes specifically granting the right to enforce the Act through the courts. The task force concluded that there was substantial judicial authority and policy reasons for an implied right of action; however, members of the task force urged that specific statutes be enacted on both the federal and state levels so that the right was clear and explicit. In the 66-year history of the program, as noted above, the U.S. had never resorted to judicial action to eompel eomplianee or to remedy breaches of trust under the Act in spite of repeated and systematic mismanagement. The success or failure of the program should not have depended upon the willingness and consent of the federal government. History showed there was little reason to rely on this mode of enforcement. In 1978, the Ninth Circuit Court of Appeals held in the case of Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission that native Hawaiians could not directly enforce the Hawaiian Homes trust under the Hawaiian Homes Commission Act although the U.S. Attorney General strongly supported their right to sue in its "friend of the court" brief. In 1982, however, the same federal court gave native Hawaiians an alternative right to sue in federal court under a civil rights statute. No state court has yet ruled one way or the other. In spite of many arguments to the contrary, enactment of statutes giving native Hawaiians the right to sue in both federal and state courts will not encourage frivolous lawsuits. It is neither easy nor eheap to take a case to court; accordingly, beneficiaries would have to be very judicious. Furthermore, these cases would have to involve significant, not frivolous, issues. Unfortunately, in 1986 former Gov. Ariyoshi vetoed legislation whieh could have granted native Hawaiians the right to sue under the Act. The 1986 bill had passed both houses of the Legislature for the first time in three years. The few times significant judicial decisions relating to the Hawaiian Homes program have been made have been when individuals have been able to overcome standing as well as financial hurdles to sue in their own names. The number of lawsuits brought to enforce provisions of the Act has been miniscule, and will likely continue to be a remedy of last resort. Nonetheless, without a clear statutory right to sue to enforce the trust, native Hawaiians will continue to be at a disadvantage, especially in state courts. The right to go to court is a critical element in the range of remedies necessary to obtain all program benefits. Without a statute clearly establishing this right, state courts will continue to debate whether or not such a right in fact exists. He hanai ali'i, he 'ai ahupua'a. The rearing of a chief is the ruling of an ahupua'a. — Mary Kawena Pukui.