Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 3, 1 March 1991 — Summary: controversies, recommended actions [ARTICLE]

Summary: controversies, recommended actions

A. Inventory, owncrship and control of Iands 1. Laek of an accurate inventory of Hawaiian Home Lands • Develop and maintain a coordinated land records management system that encompasses: organizing and maintaining Department of Hawaiian Home Land's (DHHL) land ownership and transaction records of eaeh tract, including appropriate historical records; reviewing, correcting and updating information on Department of Land and Natural Resource's (DLNR) state land inventory data base; reconciling other agencies; and relevant land records with DHHL's records. • Provide DHHL with a "Ho'ike" type of access to the Hawaiian Home Lands inventory. • Expedite research and documentation on iand title and boundary issues, including surveying lands that have the most important survey needs.

2. Illegal or improper withdrawals and transfers of Hawaiian Home Lands. • Convene a task force of r,epresentatives from DHHL, DLNR, Office of State Planning (OSP) and Department of the Attorney General to accelerate the review and decision-making process eoneeming DHHL's land title and related compensation claims based on illegal, improper or unauthorized withdrawals, transfers, taking or uses of Hawaiian Home Lands. B. Federal participation

1. Right-to-Sue. There is general agreement among parties eoncerned with misuse of the Hawaiian Home Lands trust that the federal government must bear some of the responsibility for redress. Discussion centers on three different issues: the federal government's role in initiating litigation; the right to sue in federa! court and the right of beneficiaries to sue the federal government. • Establish a federal-state task force to inventory controversies whieh arose between the ineeption of the HHCA of 1920 and statehood, and recommended corrective actions to Congress.

2. Financial participation. Until the late 1980's, the federal government provided no financial support to homestead program. • The state should pursue federal government recognition of U.S. ongoing responsibilities to the Hawaiian Home Lands programs, over and above the federal role in monitoring for state breaches of trust. 3. Title and leasing disputes. Unlawful actions or abuses that removed lands from the Hawaiian Home Lands trust for non-trust

purposes without compensation to the trust. • lt is the state's responsibility to pursue title disputes with the federal government. The state also has an obligation to settle controversies over the use of DHHL iand by the federal government for nominal rent.

C. Non-Homestead Land Uses 1. Revenue issues The acquisition or exchange of new lands or the development of present lands for the sole purpose of ineome generation has been criticized as going against the purposes or intent of the Hawaiian Homes Commission Act. However, DHHL is authorized to take such actions according to the language of the Act itself. 2. General Leases Controversies center on whether the general leasing of Hawaiian Home Lands is serving the best interests of the beneficiaries. • Approximately 50,000 acres of land now in general lease will reach the end of their lease term in the next few years. Support DHHL's request for feasibility studies of these lands.

3. Licenses and Revocable Permits. Concerns about permitted and licensed land generally center on non-homestead land uses, and whether these serve the intent of the Act or the best interests of the Act's beneficiaries. 4. Lands in public use. • DHHL must consider whether it is more appropriate for some of the park lands to be exchanged rather than remain in DHHL inventory. • Establish a policy regarding Hawaiian Home Lands used for public purposes: when beneficaries receive no collateral benefits, DHHL should consider the advantages to beneficiaries of exchanging the property for its full appraised value in the form of cash, other land, or credit for future land exchanges.

Overall recommended actions for nonhomestead actions for Homestead land uses. • DHHL should propose a comprehensive policy and rules governing leases, licenses and permits that include evaluation and incorporation of current DHHL po!icies and procedures. The proposal should look toward standardizing conditions, provisions and lease terms. D. Master planning Though a system of master plan exists, some beneficiaries are unaware what is planned in their vicinity and others felt their expressed needs and desires were ignored. An issue whieh ean be addressed in part in the master plans is the level of DHHL adherence to state and county land use

regulations for homesteading activities. E. Land Management 1. Lands of little use to beneficiaries. • Ample public notice and a public hearing for comments regarding any decision to remove land from the DHHL inventory.

2. Exchanges Controversies stem from a perception that such exchanges in the past did more to benefit other parties then they did beneficiaries. Current concerns center on safeguards to prevent unfair exchanges in the future. «?• • Establish a master strategy on land acquisition, to include a policy governing the process and types of land acquisition available to DHHL (general and exchange situations). 3. Accelerated program award of unimproved lots.

The legacy of accelerated program of the mid1980's is an obligation for infrastructure improvements whieh will require a substantial portion of DHHL revenues and energies for the next three to five years. • Assess details of the three pre-1967 exchanges to determine the need for retroactive settlement. • The challenge of making unimproved lots into liveable communities will require special internal arrangements at DHHL interagency agreements with other agencies that ean assist DHHL, and federal funding. • Marshal expertise and financial resources from a variety of sources in order to fulfill the trust obligations to those beneficiaries who received uninhabitable lots.

F. Homestead program administration 1. Application process The process of being qualified for Hawaiian Home Lands programs has brought up complaints and controversies. Approximately 25 percent of all prospective applicants require extensive research in order to substantiate their native Hawaiian blood quantum. Adoptions and questionable paternity situations have resulted in referrals or contested case hearings.

• A review of DHHLs Homestead bervices Division practices and procedures is needed to ensure a consistent application of eligibility standards. • Beneficiaries voice their greatest amount of complaints in the verification of the blood quantum of applicants. Because of this eoneem proposals from the Hawaiian genealogy task force that will facilitate beneficiary needs for documentation should be supported. continued page 14

Hawaiian Homelands T rust summary

from page 12 2. Eligibility requirements. The Hawaiian community is divided on the issue' of whether the Hawaiian Home Lands program should continue 50 percent or more blood quantum requirement for beneficiaries. • lt is expected that debate and discussion on the issue will continue until a wide scale concensus among Hawaiians is reached on the blood quantum issue.

• I he state, as trustee to current benehciaries, should not seek any change in the eligibility requirements until such time as all native Hawaiians currently on the lists, or who are eligible for the programs, have been served. However, circumstances may someday require a change in the quantum requirements for successors to beneficiaries. 3. Waiting lists. Critics of the Hawaiian Home Lands administration have related the maintenance of the DHHL waiting lists to symbolize other reasons for problems within the programs.

• DHHL should be supported in its review of the practices and procedures of the Homestead Services Division, whieh will be part of DHHL's next phase in its reorganization plan. • DHHL should begin a regular series of first class, twice-a-year mailings, to applicants on its waiting list in order to update applicant addresses. 4. Successorship The concerns center on what will happen to those currently living on homesteads, but do not qualify as successors.

• Due to the large number of beneficiaries waiting to be served, the state must act to prevent any dilution of trust benefits to those beneficiaries currently eligible for the program. However, in the future changes in demographics may require changes in successorship definitions. Such changes would have to eome about through demands made by beneficiaries and not unilateral action by the state. G. Native Hawaiian rights and cultural practices

Some beneficiaries and other Hawaiians feel that DHHL and HHC should be doing more to acknowledge native rights of gathering, hunting, fishing, religious worship, and other cultural practices. • DHHL should adopt a policy on the protection and access to historic and other valued sites. The policy should provide priority usage to lessees. • DHHL will have to seek additional funding if sites are to be developed or maintained for use. • Conduct legal research into the extent that there may be Konohiki rights to fish in areas offshore of lands reserved for Hawaiian Home Lands in the Commission Act. Also, cover whether there have been prior claims for such rights within the Act.

• Policy recommendations to DLNR concerning permitted uses of offshore resources when bordering with major tracts of DHHL land. Policy should establish priority issuance of licenses or special dispensation. H. Prior Individual and Family Claims Native Hawaiian organizations, individuals and their successors to homestead leases have had the right to sue in the courts of the State of Hawai'i to enforce the provisions of the Hawaiian Homes Commission Act, as amended since July 1, 1988. But, for those controversies that may have occurred prior to July 1, 1988, no elaim at this time may be brouqht.

• Establish a Board of Individual Claims Resolution attached to the Judiciary for administrative purposes only, for a period of five years. The Board will: oversee and direct alternative dispute resolution processes for individual elaimants; and will submit proposed resolutions consisting of corrective action, reimbursement, or both, to the Hawaiian Homes Commission or the Hawai'i State Leaislature as aDDrooriate.

• The Board should consist of five members to be appointed from nominations submitted by homestead organizations. At least three members of the Board shall be native Hawaiian, and no more than two shall be a resident of the same island. The members should select a chairperson.