Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 8, 1 August 1989 — Senate hearings may lead to changes [ARTICLE]

Senate hearings may lead to changes

by Ann L. Moore Assistant Editor, Ka Wai Ola O OHA Aftemoon sessions of the hearings before the Senate Select Committee on Indian Affairs (Aug. 7 through Aug. 11) will be devoted to hearing testimony from representatives of state and federal agencies, including the Department of Hawaiian Homelands and the Office of Hawaiian Affairs. Senator Daniel K. Inouye, committee chairman, issued an memorandum on the focus of testimony in afternoon sessions. The memo said his staff received a lot of information during its June visit to Hawai'i. As a result of what the staff leamed from homesteaders and Native Hawaiians, experts who should be able to address the concerns, were invited to testify.

Fo!!owing is the run down on whieh subjects will be addressed on eaeh island and the reasons Native Hawaiians are concerned about the specific subjects. Topics for the hearings reflect those concerns, as told to staff members, and included in the memorandum issued by Inouye. Locations The hearings will be held: Monday, Aug. 7 on O'ahu, at the state Capitol auditorium. For O'ahu only there will be three sessions: 9 a.m. to noon, 1 to 4 p.m. and 5 to 9 p.m. Tuesday, Aug. 8 on Kaua'i, at Kaua'i Community College in Lihu'e, noon to 4 and 5 to 9 p.m. Wednesday, Aug. 9, on Moloka'i at the Mitchell Pau'ole Center, 'Ainoa Street, Kaunakakai, from noon to 4 and 5 to 9 p.m. Thursday, Aug. 10 on Maui at the Maui County Council Chambers, 200 High St., Wailuku from noon to 4 and 5 to 9 p.m. Friday, Aug. 11 on Hawai'i (Big Island) at the University of Hawai'i at Hilo in the campus theater from noon to 4 and 5 to 9 p.m. Who testifies when One hour (3 to 4 p.m.) following the committee's portion of the hearing will be set aside for the testimony of Native Hawaiians who are on the waiting list but who have not received assignments of land, and Native Hawaiians who are not members of Homestead Associations. These people should contact the committee directly to set up an appointment to testify. Contact may be made through Inouye's office in Honolulu at 541-2542. From noon to 3 p.m. experts invited by the committee will be heard. Committee members will also question the experts. Scope of the hearings Origina!ly, the hearings were to give the senate select committee a look at the status of Hawaiian Homelands and the needs of the people who live in

the homestead communities. However, at virtually every meeting the staff held proposals were put forward for amendments to the Hawaiian Homes Commission Act or for other legislation. Inouye noted there are some issues where there is "a clear consensus for change." He said he anticipates one outcome of the hearings could be a mandate from the Native Hawaiian community for legislative amendments to the Hawaiian Homes Commission Act. Along with testimony on homelands and the peoples', needs, the committee will hear testimony on any proposals for amendments to the Hawaiian Homes Commission Act, or any other acts of the Congress or the state legislature that witnesses want to put forward. Forms of testimony Testimony may be written or spoken. Written testimony may be of any length and will be included, in full, in the hearing record. Anyone who submits written testimony and also testifies should be brief to allow time for everyone. Copies of written testimony should be delivered to Inouye's office in Honolulu before the hearings. O'ahu on Aug. 7 Opening day for the hearings, Aug. 7, the senate committee will consider: • The history of the Hawaiian Homes Commission Act; • Congressional intent in enacting the law • The history of implementation of the act. • Then, the committee will consider: whether the policy embedded in the act ean be carried out effectively with 99-year leases; missing lands in the inventory of lands that were to be set aside; what the state's trust responsibility is and what responsibility the federal government has in assisting the state to fulfill its responsibility under the act; identification of specific homelands areas; Department Continued on page 7

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of Hawaiian Homelands (DHHL) plans for future development of homelands; DHHL actions to expand the land base; and the role of the federal government concerning the needs of homelands communities. Governor John Waihee has been invited to address the senate select committee members at the O'ahu session. Kauai on Aug. 8 At the Kauai afternoon session, the committee expects to hear testimony from representatives of the Department of Housing and Urban Development, the state department of housing, and housing experts on implementation of the FederalState Task Force recommendations on ceded land, and housing. Task Force: Following up on eoneem expressed by Native Hawaiians, Inouye said the committee will look into actions taken by state and federal agencies to carry out 134 recommendations made by the Federal-State Task Force (1982-1983). He said there is a widespread perception among Native Hawaiians that few if any have been acted upon. The senate committee expects to get an account of action or laek of action, and reasons, from state and federal agencies involved with carrying out the task force recommendation. Ceded lands: The Office of Hawaiian Affairs is the designated recipient of revenues from ceded lands and it has the mandate to use the money for the benefit of Native Hawaiians. OHA will testify about the ceded lands. OHA will identify land ceded to the state and the federal govemment; identify what use is now made of ceded land (airports, harbors, etc.); report on current negotiations with the state on the proportion of the land rent money that OHA should receive and what may eome of the negotiations. OHA staff will testify conceming the Department of Transportation's administration of ceded lands. OHA will also submit written testimony. TTie Department of Transportation will testify on its administration of the ceded lands. The DOT will be invited to provide the committee with an assessment of the current use status of the ceded lands and the potential for their return. Housing: Difficulty experienced by homesteaders in obtaining private financing for home construction because of the short-term nature of the tenancy on the land (many Moloka'i leases end in 35 years) and the trust status of the land will be discussed. Also on the agenda are: difficulties in finding private financing; problems caused by short-term tenancy; difficulty in getting FHA and FmHA loans; difficulties obtaining sufficient water; difficulties encountered in using "cluster" or multifamily housing because of obstacles in the Hawaiian Homes Commission Act whieh prevent condideration of those alternatives. Homesteaders say loans are unavailable and will not be available until DHHL develops an infrastructure whieh will guarantee homesteaders will have access to water, sewer and utilities. Homesteaders say DHHL has not got the staff or resources to develop such an infrastructure. Testimony will be heard on homesteader eoncerns about the required tax payments on homelands during the Kaua'i session. Now, taxes become due on assigned land within seven years even though a homesteader may not be able to occupy the land within that time. The requirement that taxes be paid before the land is occupied ean leave homesteaders with so little money they eannot qualify for a loan. Moloka'i on Aug. 9 At the Moloka'i afternoon session testimony is expected from water resource development experts and water law experts, representatives of county government and Department of Hawaiian Homelands staff. Water: Native Hawaiians told senate staffers the law is in plaee to fund (through appropriation

or issuance of bonds) and to develop water resources for domestic use, livestock and irrigation needs. Also, Section 220 of the Homes Commission Act allows the commission to us "govern-ment-owned water" free of all charge to provide an adequate water supply for domestic use and for livestock and farming. The act also includes the commission's right to build, or contract for, or use, any pipeline or ditch for the distribution and control of the water so there is water to use. In practice, homesteaders told senate staffers, they have to pay for water even when water is developed on DHHL lands by DHHL. Homesteaders say water rates are sometimes higher for them than on non-homestead lands. And, even if a water line goes across homeland the people eannot hook into it until DHHL submits infrastructure plans to the county, builds the infrastructure and arranges with the county to provide water. Additionally homesteaders must pay $2,000 for a meter and $1,000 to get it installed before they ean get water. Homesteaders note that American Indians living on reservations get water with the land. The Indians' rightto waterwasupheldbythe U.S. Supreme Court. But the Native Hawaiians' rights appear to be only to the land, not the necessary water. Only those who ean afford water ean get it, homesteaders said. Further, there does not appear to be any source of funding homesteaders ean tap to get water for their land if they are not in position to pay the county to supply water. DHHL, homesteaders said, does not have the funds to set up the infrastructure needed to supply water to homelands. DHHL water policy staff members are invited to testify. "Standing to sue": The Federal-State Task Force of 1982-1983 recommended that state and federal governments make a law to give beneficiaries the right to sue for breach of trust. This is called "standing to sue." The state has enacted legislation. The committee will hear from state legislators on the issue's history and the legislators' intent regarding current law. The governor's office has been invited to present testimony on the implementation of the act's provisions. The staff of the senate select committee is expected to present a legislative proposal on the right to sue for breach of trust. The committee anticipates receiving testimony on other proposals for new federal action on "standing to sue" legislation. Maui on Aug. 10 Experts are due to testify on agricultural issues, leasing policies, cultural rights and concerns, DHHL funding, programs for the elderly, eommunity and eeonomie development, land exchange policies, and the DHHL waiting list for homeland assignments. Agricultural concerns: Homesteaders eomplained to committee staff theypay domestic rates for agricultural water and so can't afford to develop the farmland. There is little or no large scale irrigation and water resources are scarce. Since DHHL holds first lein on all loans, homesteaders say loans are hard to get. The trust status of the homelands means the land cannot be used as collateral to secure loans. Homesteaders say a plan is needed to attract, secure and monitor agricultural loans. The plan should be integrated with agri-education, eommunity eeonomie development and entrepreneurship programs. Homesteaders would like cooling facilities developed so they could compete with big growers who have climate controlled storage facilities for perishable products. DHHL leasing policies: Third-party leases eoneem homesteaders. A DHHL policy allows thirdparty leases with non-beneficiaries. This, homesteaders said, lets non-beneficiary growers consolidate into large scale farming on 400 to 500 acre lots. Homesteaders are limited to 40-acre lots and continued on page 8

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cannot compete or enjoy the same benefits whieh larqe-scale operations enjoy. Cultural rights and concerns: Homesteaders say the practice of traditional rites and sacred ceremonies on DHHL lands, the pursuit of traditional hunting and fishing rights, access the sacred sites and whether lands should be set aside for those purposes has apparently never been considered by DHHL. Recent excavations on Maui of Native Hawaiian skeletal remains, and DHHL's excavation of remains on homelands in order to study the bones, was a subject of controversy among Native Hawaiians interviewed, staffers said. Health Centers authorized by the Native Hawaiian Health Care Improvement Act were to be cultural centers, homesteaders told the staff. The centers were supposed to be places where traditional healers could practice Native Hawaiian medicine, where the Hawaiian language could be taught and where cultural traditions could be passed on to youngsters. The centers were to be a focal point for regeneration of Native Hawaiian culture. But the centers do not set aside land for these purposes, Native Hawaiians said. Most homesteaders said they are concerned that DHHL should exchange lands they have for lands that have traditionally been used for fishing or sacred rites. DHHL Funding: The notion DHHL should be funded by the legislature rather then relying onrevenues from ceded land leases was supported by the 1982-1983 Federal-State Task Force and Native Hawaiians. Those in favor say if the legislature funded DHHL there would be less conflict when DHHL finds itself in the position of having to decide whether to use ceded-land ineome to pay for administration or use it to develop the homelands. The folk who favor funding by the legislature also say that, theoretically, there would be

more homelands available to beneficiaries. Frograms for the elderly: Native Hawaiians say the elderly cannot qualify for homelands because of their fixed incomes and the requirement that a person have money to maintain a home. Longterm health care for elderly people is a eoneem. The staff received the suggestion the land could be assigned on a community basis so long-term care facilities could be built. Hawaii on Aug. 11 Community and eeonomie development: Homesteaders pointed out that rarely is land set aside for use by the homestead community. This makes it difficult for homesteaders to pool resources or develop an eeonomie enterprise or community facility. Land that is the most economically viable, homesteaders said, is often leased on non-benefi-ciaries for commercial development and then homesteaders cannot develop it. They said the short-term tenancy of homelands precludes long range eeonomie or community developmpnt projects. The 99-year lease is the biggest impediment to eeonomie and community development beneficiaries said. As a result the senate committee expects to receive proposals to amend the Hawaiian Homes Commission Act to provide for either life-estates in leases or the vesting of equitable or restricted-fee title in their beneficiaries and their successors. Land exchange policies: The Federal-State Task Force found DHHL had exchanged lands of unequal value. The task force found the DHHL surrendered lands and mineral rights in exchange for the surface land only of the land DHHL received. Homestead beneficiaries now raise the question whether or not DHHL should be allowed to eontinue leasing land to non-beneficiaries when the land's best use would be to truly rehabiiitate the Hawaiian people.

Homesteaders said that because many homelands are held for residences there appears to be little opportunity for meaningful eeonomie development in homestead communities, under the present DHHL system. DHHL waiting lists: Homesteaders said applying for a plaee on the DHHL waiting list for homelands assignment is fraught with problems. Documentation is one problem. A waiting list for the whole state (rather than island-by-island) is a problem. People who live on an island feel they should have the first ehanee at lands on the island rather than being displaced by a person from a different island. Eligible successors feel they should be able to take their beneficiary-parent's plaee on the waiting list when the parent dies. Staff noted homesteaders appear to be uncertain as to what procedures to follow after a beneficiary-parent dies. Evening sessions every island Homestead associations are responsible for developing testimony for the 5 to 9 p.m. sessions. The memo said, "The organization of subject matter in the committee's portion of the hearing should not, in any way, determine or limit the subjects that are addressed in the evening portion of the hearing." A list of homestead associations and presidents was in the July issue of Ka Wai Ola O OHA.