Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 9, 1 September 1989 — Water rights concern Molokaʻi people [ARTICLE+ILLUSTRATION]

Water rights concern Molokaʻi people

Deborah L. Ward Editor, Ka Wai 'Ola O OHA For Moloka'i residents, Wednesday, Aug. 9, was the day to speak before members of the visiting Congressional panel, U.S. Senator Daniel Inouye, U.S. Representative Daniel Akaka, and U.S. Delegate from Guam Ben Blaz, at the Mitehell Pauole center, Kaunakakai. First to present testimony to the committee was Moloka'i physician and activist Emmet Aluli. He summarized several avenues that Hawaiians are taking to direct their own future including studies done by Na Puuwai, a native Hawaiian health organization on Moloka'i. Aluli was a key initiator of the Moloka'i diet study. He noted other native Hawaiian eommunities also have diet projects. He hopes these studies will someday help all Hawaiians prolong their lives. Today, Aluli says loeal groups are trying to revitalize the Hawaiian connection to the land. He sees the homesteads as a way for Hawaiians to determine their own future. He said Congress must look at military use of Hawaiian Homes Land and begin returning lands to homestead purposes. He said a solution must begin with a U.S. apology for its role in overthrow of the Hawaiian nation, followed by return of a land base, fishing, hunting and gathering rights, protection of native Hawaiian religious practices and historic sites, and continuing federal cash payments. Noelani Jay, a third generation homesteader from Ho'olehua, spoke about the need for water at Kalamaula agricultural homesteads and about the illegal use of homestead water by non-Hawaiian third-party users. She requested funding of an agricultural entrepreneur program to teach farming skills to native Hawaiians.

Colette Machado, spoke in opposition to successorship transfer to any but immediate family members and general leases of homestead land to non-native Hawaiians. She favors general leases to native Hawaiians; a statewide inventory of Hawaiian Homes trust lands; designation of additional homestead areas based on "pocket eommunities" of the Hawaiians living on Lana'i and at the east end of Moloka'i. Paige Barber, a community developer, said she wants hearings on sovereignty. She called for a stop to the further sale of ceded lands considered surplus by the federal government. Inouye said "We intend to conduct a series of seminars to explain to Hawaiians the different kinds of sovereignty, then we will act. We will not impose our will or sovereignty upon native Hawaiians." He also noted that any steps to sovereignty would be long and painful, because it would involve "undoing history." A panel of experts discussed water and agricultural issues on Hawaiian Homes Land. Deputy Attorney General Bill Tam summarized the development of Hawaiian water law whieh protects the "appurtenant rights" of native Hawaiians. Tam said many homestead lands are very dry and depend on groundwater, so there is need for money for DHHL to develop well systems. DHHL has special rights to water use, Tam said and the Hawaiian Homes Commission Act reserves strong claims to water, and hasfirst elaim on water from state land. When Senator Inouye asked who a homesteader could consult for legal advice if they felt they were not getting needed water, Tam said they could go to the State Water Commission or to the Hawaiian Homes Commission. Steve Michaels, of the attorney general's office, said the state ombudsman's office ean receive

complaints for action within state government. He added that the new water code should help native Hawaiian water rights to evolve in today's modern eeonomie conditions. However, Inouye noted that while the Attorney General's office acts as trustee for the homesteader's rights, it also representsthestate DHHL and DLNR. Therefore a conflict exists if a homesteader wished to sue either department. For this reason, lnouye said, it appears there is no clear agency the homesteaders ean appeal to for legal advice if their concerns have not been handled to their satisfaction by the Hawaiian Homes Commission or the water commission. Speaking for the Native Hawaiian Legal Corporation whieh has defended homesteaders in water rights cases, attorney Alan Murakami said the Moloka'i irrigation system serves fewer than 50 agricultural homesteaders at Hoolehua. He pointed to the legal and financial prob!ems the system has had, and to suits by homestead associations because of non-homestead use of the system. He described the 30-years of effort by Kekaha homesteaders on Kaua'i to get irrigation water for pasture lands. They are caught between DHHL and DLNR over who gets water in that area. Homesteaders get water for domestic use and livestock, but not for irrigation. The bottom line, he said, is that the homesteaders are not really being given the goods. He recommended the committee should make the Hawaiian Homes trust benefits more specific. Murakami said the goal of the committee should be to give homestead beneficiaries cbut. If the state accepted the responsibility for the trust, it should perform and not relegate responsibility to DHHL, he said. He suggested an advisory eommittee be formed for recommendations from homestead groups and a renewed federal involvement in yearly oversight of the Hawaiian Homes Commission Act administration. OHA recommendations Louis Hao, OHA Trustee from Moloka'i, presented testimony on the problems of the Hawaiian Homes Commission Act in delivering water, especially for irrigation, of homesteaders. Financial, legal and administrative obstacles such as little eoordination between DHHL and DLNR on leases of state land and water licenses are involved, he said. He noted that Section 221 of the Hawaiian continued on page 7

Moloka'i hearing /rom page 6 Homes Commission Act allows DHHL the right to take "government-owned" water for domestic and livestock use by homesteaders. However, he added, the failure to reserve similar rights for irrigation purposes leaves DHHL and the pastoral homesteaders at Kekaha, South Point, Kau, Kula, Wai'anae and on Moloka'i without any real legal recourse to securing adequate water. OHA proposes the following recommendations, Hao said: • an immediate moratorium on future water licenses by DLNR until the Dept. of the Interior is satisfied the state has an effective program to assure that eaeh subsequent water license is issued subject to the rights of homesteaders and or the DHHL to withdraw sufficient irrigation water to settle homesteaders on farm, ranch and aquacultural lots. • authorize the U.S. Department of Justice to specifically monitor the issuance of water licenses so the U.S. assures such licenses contain adequate protection for reserved water rights; • ensure all Hawaiian homesteads have adequate water. • give the Office of Hawaiian Affairs and its beneficiaries the right to go to federal court of relief. University of Hawai'i at Manoa law professor Williamson Chang, an expert on Hawaiian water law, enumerated instances in whieh homestead water has been used for resort development, golf courses, by munieipal governments, and nonhomestead estates on the big islan, while homestead lots laek adequate water. He said funding for infrastructure (roads, sewers, electricity and water) in homestead areas should include money for water development. He called it a "cruel hoax" to give homesteaders land without water. Chang said the federal government needs to

help Native Hawaiians get adequate legal representation so as to be able to exercise their rights as homesteaders. Ilima Pi'ianaia, director of the Hawaiian Homes Commission and DHHL, talked about the two water systems DHHL developed, on Moloka'i and at Anahola, Kaua'i, whieh serve homestead areas. She said because it is costly to develop separate water systems for eaeh homestead, other homesteads use the cheaper domestic (county) water systems. However, she said DHHL is now working with the Department of Agriculture and Department of Land and Natural Resources to look at water development needs for homesteads at Ho'olehua, Molka'i, at Ka'u and Waimea/Paauilo, Hawai'i, at Kula, Maui. At Kawaihae, Hawai'i she said, DHHL may have its water provided by the Kohala Ranch company in exchange for a boundary amendment and land reclassification allowing urban development. The permit is in process. In the meanhme, DLNR is drilling a $2 million exploratory well at Kawaiahae for DHHL. Through the late afternoon and into the evening, speakers from the three Moloka'i homestead associations shared their concerns and recommendations for change. Gertrude Pau'ole France, daughter of the late Mitchell Pau'ole for whieh the meeting site is named, alded for clarification of what happens after the current 99 year leases expire; how thirdparty leases work, and what rights homesteaders have to sue. She recommended set-up of a small business zone in the Ho'olehua homestead for commercial businesses operated by homesteaders and called for enforeced upkeep and beautification of homestead lots. Edward Ayau, a Hoolehua homestead beneficiary and attorney, who called for the federal government to take back the Hawaiian Home Lands program until a sovereign Hawaiin nation ean be constituted with the homelands as part of the land base. then, he said, the land should be transferred

to Ka Lahui Hawai'i. He called for eventual deletion of the 99-year lease limit. He called for federal funding to high schools in communities with Hawaiian populahon, as an alternative to a Kamehameha Schools education. Homsteaders spoke in favor of : retaining the blood quantum requirement for homestead lots until all native Hawaiians had been taken care of; the eventual deletion of a blood quantum requirement: successorship to immediate family members; and federal assistance in obtaining home loans. A veteran asked for help to obtain a home loan through the Veterans Administration. The VA denied his applieahon because it viewed the Hawaiian Homes program as discriminatory. However, not all proposals took the same line. Some wanted to eliminate the 99-years lease, while others wanted perpetual renewal of the lease for eaeh successor. Some proposed allowing homesteaders to own the land in fee simple, othersopposed this practice for fear the land would be sold and pass out of Hawaiian hands. Some favored abolition of all third-party leases, while others suggested they should be reviewed and increased fees be charged.

OHA trustee Louis Hao addresses the committee on Moioka'i.