Ka Wai Ola - Office of Hawaiian Affairs, Volume 6, Number 9, 1 September 1989 — Right to sue discussed at Maui session [ARTICLE+ILLUSTRATION]

Right to sue discussed at Maui session

By Ann L. Moore Sharp questioning of witnesses was the hallmark of the Maui session held Aug. 10 by members of the Senate Select Committee on Indian Aftairs and the House Committee on lnterior and insular Affairs. U.S. Senator Daniel K. Inouye, and U.S. Representative Daniel Akaka, both of Hawai'i, and U.S. Delegate from Guam Ben Blaz shared the committee table with State Senator Miehael Crozier at the eight hour session. The hearing was held in the County Council Chambers, Wailuku. Crozier commented, at the opening, that he had thought he was sensitive to the needs of the Hawaiian people. "I am part Hawaiian but I have a new perspective" he said. "Some have said 'What the Hawaiians want is outrageous.' the demands are not outrageous. What native Hawaiians want is simple justice." Davianna McGregor, participant in the nonhomestead testimony section and an assistant professor at the University of Hawaii, spoke for the protection of Kaho'olawe. She said strict oversite of the military uses of Kaho'olawe is needed and hearings to look into the military uses of all ceded lands. Mililani Trask, attorney, told the committee she disagrees with a statement in an earlier hearing that "progress" has been made on implementing the recommendations of the 1982-1983 Task Force. She said the federal government should not have a "Bureau of Hawaiian Affairs" (like the Bureau of Indian Affairs) but should have Hawaiian-issues divisions in Washington D.C. and in Hawaii. Mei Ling Akuna told the committee if the federal government had acted righteously in administering the trusts on ceded and home lands there

would not be the mess there is today. She asked for negotiations and a recognition that 1.5 million acres of 5(f) lands should be available to Hawaiians. "The state is the trustee not the owner," she said. Regarding construction of homes on homelands and the need for roads, water and electricity, Sam Kalaleiki of Kehei said the Army Reserve. troops and the Navy construction battalion would be used. Further, Kalaleiki said that with today's technology ther is no reason DHHL cannot do its job better and faster. Condos on homeIands? Following testimony from several people on their difficulties in getting onto the homelands, Inouye called on Ilima Pi'ianaia, chairman of the Hawaiian Homes Commission, to discuss subleasing of lands. She said when a lease is awarded the person gets a leasehold interest and they have vested rights of occupancy and succession. the commis-

sion ean set added conditions, she said, including eomplianee with building codes, health and safety codes and obtaining msurance. She noted Moloka'i had the first homesteads and the lessees subleased their lands to commercial ventures such as Libby MeNeil and Libby, CBC and Pacific Pine. The courts ruled that subleasing is leagal but the commission has oversight on subleases, she said. Inouye said he was taking his eue from Prince Kuhio's intent to get people back on the land. Given that intent, Inouye asked, isn't the subleasing of lands of third parties a contravention of that intent? Pi'ianaia said the people, at the time, were willing to work for a paycheck. She said Moloka'i has problems that have to be worked out. Inouye said Moloka'i witness suggested he be allowed to build a sub-standard building?" He said there are people living in boxes and cars at Anahola . Wouldn't they be better off in a grass shack on homeland, he asked. Pi'ianaia said there are questions of liability involved if the lessee is not financing the building himself. Maybe it is a first step that should be taken," Inouye said, "Many would take the risk. They would rather sleep on their own land." Inouye then threw a bombshell, asking if there wasn't an attorney general's opinion on record that county building codes do not apply to homestead lands. A deputy attorney general for Hawaiian Homelands said an opinion on record that county building codes do not apply to homestead lands. A deputy attorney general for Hawaiian Homelands said an opinion (72:21) said the senator was correct. Then the deputy went on to say that there is a difference between building codes and zoning codes and zoning codes may still continued on page 16

Attorney General Warren Price

Maui hearing from page 7 apply. Inouye requested further information form the Attorney General's office. Next, Dennis lehikawa, Maui County tax officer, faced some tough questions. iehikawa said the Homelands get a 25 percent tax discount. He said the courts have ruled the county must assess on fair market value. He said taxes were supposed to cover for services such as fire and poliee protection. When taxes are not paid, he said, a lein is placed on the individual since the law does not allow a tax lein on Home Lands. Inouye asked if the government or state buildings are assesed taxes. They are exempt, the official said. Along the same line Inouye asked about the military and other institutions. All exempt the official said. What about churches, Inouye asked. "For buildings used for religious activities, they pay $7 a year," the official said. "Maybe homesteaders should pay $7 a year," Inouye suggested. Then the senator told the audience the Maui County tax official was not to blame fo rhte policy and suggested the homesteaders and beneficiaries should "share their mana'o with the county officials." Following up on leasing policies, Inouye asked about building condominiums, forming co-orpera-tives and other forms of shared shelter. Pi'ianaia said lessees cand form co-ops and if they do they ean apply for loans. "There is no dollar maximum for a eo-op loan," she said. She noted that property lines cannot be erased but that homesteaders ean form groups and agree to use the land for specific purposes. "Could they build a resort?" Inouye asked. Pi'ianaia said no, because of the 99 year lease. Inouye then introduced Wayne Matsuo to the audience and advised people Matsuo is the state ombundsman, a person who tries to straighted out or resolve problems people have with the government. Matsuo recounted the heavy caseload he and his ll-member staff handle on a budget of $450,000 a year. Inouye suggested to Crozier the state should increase the staff and budget. Inouye |suggested that people who have not been able to resolve problems should eall the Ombundsman as a last resort. Matsuo said his ombundsman office is in the old Territorial Office Building, Honolulu. collect calls are accepted from off O'ahu he said. (The number is O'ahu 548-7811.) Suing for breach of trust OHA Trustee Clarence Ching, attorney Mililani Trask and Attorney General Warren Price spoke about the ability of the state to sue the federal government for breach of trust. ching's testimony stated OHA believes that to vindicate the important federal rights established under the Admissions Act and the Hawaiian Homes Trust, native Hawaiians must have access to federal courts. Ching, in written testimony, setforththe OHA pocontinued onpage 19

Maui hearing from page 16 sition that any federal legislation should make it clear that federal courts have jurisdiction over claims under either act, that native Hawaiian beneficiaries and organizations should have the right to sue for breaches of trust and that they should be able to sue in Federal District Court in Hawaii and not have to go to Washington D.C. and finally, that there should be a right to a trail by jury. Attorney Trask substantially set forth the same arguement before the committee. Attorney General Price disagreed in part. He said any damage awards should go back into the trust. Trask said Hawaiians should not dwell on 1893. Inouye said the committees job is to sell the Hawaiian's right to sue to Congress. "If you make claims you have to talk about yesterday. Opening the dark pages would be necessary," he said. He said, "We must say wesuffered, show how we suffered and show the need for reparations." More discussion followed with OHA and Trask holding for a judicial process and Price favoring open negotiations and legslation to straighten out the problems. Price said, "I don't believe the way to solve the problems (about breach of trust matters) is in the courts." Inouye recommended that OHA, the Attorney General and Trask hold

meetings and try to hammer out an agreement and a proposal. Because time was getting short the three panels on culture were combined into one. Paulani Kanaka'ole Kanahele spoke movingly of her childhood experiences and the gradual deterioration of the Hawaiian life style. Inouye said her statement was so eloquent he would like to use it as the preface to the committee's report. HenryAuwae of Hilo was recognized by Inouye as one of the world's foremost herbalist with an international reputation as a traditional hearler. Auwae spoke of the need for Hawaiians to return to the land and their traditional life. He pointed out the land and the Hawaiian are inextricably linked. Judy Cachola brought the "Kanaka Code" to the committee's attention. She said the a program is a plan for an "Hawaiian-subsistance lifestyle" on Hawaiian homelands that has proved itself by progress at King's Landing. Cachola said a problem is created when homelands are awarded to older people who no longer have the physical stamina to put "sweat equity" into building a home. Further, she said, the incremental nature of Hawaiian ineome is not taken into consideration. Kamaki Kanahele presented the State Council of Homestead Association's views to the committee. Kanahele presented a lengthly list of recommendations whieh will be covered in a future issue of Ka Wai Ola O Oha.