Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 1, 1 January 1991 — Native Hawaiian Legal Corporation NHLC Report [ARTICLE]

Native Hawaiian Legal Corporation NHLC Report

by Mahealani Kamauu Executive Director

The "purpose clause" bill

During a controversial petition drive last year, 30,000 signatures were collected to oppose Senate Bill 3236, the so-called "purpose clause" bill. Senate Bill 3236 would have amended the Hawaiian Homes Commission Act by adding a preface, or "purpose" section. Those who opposed Senate Bill 3236 called for deferral of any amendments to the Act "until the state and federal governments had fulfilled their promise to settle native Hawaiians on their ancestral lands." The petition drive in opposition to Senate Bill 3236 was a statewide campaign whieh engaged all segments of the native, as well as non-native, eommunity, including church organizations. In the face of such forceful opposition, one has to wonder how this bill could possibly have survived. Somehow it passed both Houses of the Legislature. And many Hawaiian agencies and organizations, including NHLC, supported it. Senate Bill 3236 will become law if Congress approves it. What's the story here? Why SB 3236 was supported The bill corrects deficiencies in the Hawaiian Homes Commission Act by adding language whieh makes the Act's principal purposesexplicit: 1. establish a permanent land base; 2. plaee beneficiaries on the land promptly and efficiency; 3. prevent alienation of fee title; 4. provide adequate water and supporting infrastructure; 5. provide financial and technical support for eeonomie development. Those who opposed the bill said the purpose of the Act was and still is to plaee Hawaiians on the land. Simple. More legislation was not necessary, but merely an empty gesture and unconscionable delaying tactic on the part of state and federal officials who lacked moral commitment to making the program work. This "purpose clause" bill was nothing but shibai. But is it really that simple? Getting Hawaiians on the land By DHHL's own estimates, it will cost $2 billion over the next 10 years for infrastructure and home building costs. This would take care of the current waiting list. That means more than $200 million is required eaeh year, during eaeh and euery one of the next 10 years. Compare this with DHHL's actual funding the last four years. DHHL received only a little over $15 million a year. That's the most money it has ever been appropriated from the state, and $30 million of that is in the form of revenue bonds whieh must be repaid. lt seems if we're serious about settling Hawaiians on the land we need a monumental financial commitment. The state can't do it alone, and neither ean the Hawaiian community. lt's hard to disagree that state and federal officials have historically lacked commitment to the program. But laek of money has been even more daunting. Trust language Senate Bill 3236 states "... the United States and State of Hawai'i hereby acknowledge the trust established under this Act and affirm their fiduciary duty to faithfully administer the provisions of this Act on behalf of the native Hawaiian beneficiaries . . ." The explicit use of trust language in this bill is not inconsequential and should not be taken lightly. It holds the trustee (state and federal governments) to the highest legal standards of accountability in relation to DHHL beneficiaries. Trust language provides a strong basis for Con-

gress to make a substantial commitment to the program, in partnership with the state and Hawaiian community. And for those who argue a trust relationship has existed all along, the best that ean be said is that proposition has been questionable and shaky from the start. It is clear from official records that Congress never intended to support the program financially. In fact, that was a big selling point — the fact that the program would be self-supporting and cost the federal government nothing. Court cases have gone back and forth, some stating that a federal trust relationship exists, others disavowing all federal responsibility for the program. Within the last eouple of years, the U.S. Department of Interior has also vacillated, giving conflicting legal opinions on the question of a federal obligation to DHHL and its beneficiaries. From this erratic and shaky background, it appears an explicit statement of purpose in the Act itself could be of tremendous positive consequence. A Permanent land base A 99-year lease is not a permanent land base. An earlier homesteading program allowed 999-year leases. What was Congress' intent when they shortened the homesteading program from 999 years for the general public to 99 years for native Hawaiians? Although DHHL will now renew leases for an additional 99 years, there exists legal uncertainty about the future of homestead lands as the law is now written. Senate Bill 3236 makes it

clear that Hawaiian Home Lands are permanently (forever) trust lands. Water rights The Act as it is presently written does not provide adequate water, or confer preferential water rights to Hawaiian Homesteaders. Instead, it gives priority to other users who have water licenses from the state, even if the water source is on homestead lands. There has been litigation on the island of Kaua'i, for example, between homesteaders and Kekaha Sugar (a subsidiary of C. Brewer) on this very issue. Kekaha Sugar has a general lease for 14, 558 acres of homestead lands. The lease allows Kekaha Sugar to use homestead water without regard for the irrigation needs of homesteaders in the area. Kekaha Sugar has refused water to homestead ranchers. As a result, three out of the five ranchers who had held leases since the 1950s gave up ranching. The two who remain have had court action taken against them by Kekaha Sugar because in desperation they tapped into the eompany's water line. Be informed Senate Bill 3236 makes a specific commitment to provide adequate water. In summary there's a lot more to Senate Bill 3236 than meets the eye. More often than not, native Hawaiian issues have many facets whieh require our studious attention. These issues are not simple, and we owe it to ourselves to be informed.