Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 6, 1 June 1988 — Right to Sue Bill Highlights Most Successful Ever Legislative Session for Hawaiian People [ARTICLE]

Right to Sue Bill Highlights Most Successful Ever Legislative Session for Hawaiian People

By Linda Kawai'ono Deianey Land Officer Six years after the Native Hawaiian and Hawaiian "right to sue" bill was first introduced, the State Legislature this year unanimously passed what many considered one of the most controversial measures of the session. The break-through eame at a meeting called in early April by Legislative leaders of the Conferenee Committee on the bill. Having passed both the House of Representatives and the Senate last year — but in significantly different versions — the right to sue was at an impasse. Although the meeting was originally called to announee a compromise resolution for more governmental investigation of "the myriad issues" relating to the Hawaiian Home Lands and Office of Hawaiian Affairs trusts — a surprising, even stunning, public argument between conference leaders Senator Clayton Hee and Representative Andy Levin erupted at the meeting. With more than 100 Hawaiians marching in the rotunda urging action on the right to sue bill, the two legislators accused eaeh other of an unwillingness to meet and hammer out a law assuring Native Hawaiians the right to enter State Court for the enforcement of the two native trusts. Played out before representatives from OHA, Ka Lahui, the Hawaiian Civic Clubs, and the Governor's Office, the angry exchange between legislators revealed that both House and Senate conferees were "ready and willing" to get back to the table. The "right to sue" bill was backon track. The first conference draft was circulated by eonferees from the House. At an emergency meeting called by the OHA Board of Trustees (BOT), this draft was unanimously opposed (see "Right to Sue Opposed" in April issue of Ka Wai Ola O OHA) as inflicting more "wrong" to the two trusts, rather than recognizing a right. Similar concerns were voiced by other Hawaiian organizations. In a series of tense late night Conference Committee meetings, this draft started to shift dramatically and the final bill began to take shape. Responding to the opposition of the OHA Board, the bill ultimately addressed and included: ■ an explicit waiver of "sovereign immunity" by the State to allow suits in circuit court; ■ the right of OHA, Native Hawaiian organizations and individuals to sue for both personal "out of pocket" damages and for breaches of the two trusts, effective July 1, 1988; ■ the clear statement that the trusts were for "the sole benefit" of Hawaiian beneficiaries, and any other use was a trust violation; ■ distinguishes and defines the two public native trusts as derived from the Admissions Act and affirmed in the State Constitution; ■ permits suits on retroactive claims back to 1959 effective July 1, 1991, if the Governor and State Legislature do not redress such violations by that date, and if proposed restitution is rejected by a two-third vote of either the House or Senate. Speaking on the floor of the House in favor of

passage, Rep. Levin called the right to sue bill "the first step on a long journey toward justice." Responding on behalf of the OHA Board, Chairman Moses K. Keale Sr. called passage of the Native Hawaiian right to sue "an historic victory for the Hawaiian people." "For the first time in this century," Keale said, "the Hawaiian people are being treated as adu!ts and not children in need of guardians to protect them from themselves. Now, we have the same rights as any other beneficiary to the full enjoyment and protection of our Hawaiian Home Lands and OHA trusts. "This right to sue in State courts is a significant recognition of both the human rights and the human dignity of the Hawaiian people. "On behalf of the entire Hawaiian people, we wish to express our profound appreciation to the members of the Conference Committee — Senators Clayton Hee, Malama Solomon, Milton Holt, James Aki and Ann Kobayashi; and Representatives Andy Levin, Wayne Metcalf, David Ige, Virginia Isbell and Bill Pfeil for their diligence and commitment to seeing this bill become law." The Fourteenth State Legislature also acted on a series of other measures important to OHA and our Native Hawaiian beneficiaries. Among the bills

now awaiting the Governor's signature are: ■ the OHA Supplemental Budget — whieh provides an additional $100,000 to fund cooperative programs between OHA and other Hawaiian agencies, necessary expansion of the Native Hawaiian Land Title Project, and a statewide Kupuna Conference; ■ amendments to the State Historic Preservation laws requiring notification to and consultation with OHA if construction activities disturb native burials; ■ approval of $664,000 in funding for the establishment and inventory of Na Ala Hele — a statewide trail and access system; and ■ a resolution mandating the Department of Land and Natural Resources to develop rules and regulations to facilitate traditional use of kuleana now restricted by Conservation District zoning laws. Unfortunately, bills to require a transferof State cemeteries to OHA and the Native Hawaiian Language Commission did not pass. Overall, though, this 1988 Session must be judged as one of the most successful ever for the Hawaiian people.