Ka Wai Ola - Office of Hawaiian Affairs, Volume 10, Number 9, 1 September 1993 — News from Washinston D.C. [ARTICLE+ILLUSTRATION]

News from Washinston D.C.

Mai Wakinekona Mai

by Paul Alexander Washington, D.C. Counsel for OHA

Stil I pending: reversal of Bush opinion denying U.S. trust responsibilty

An important issue still facing the Clinton Administration is the "midnight opinion" of the former Interior Department solicitor

(under the Bush Administration), denying a U.S. trust relationship to the Hawaiian Home Lands trust, or to native Hawaiians generally. The Hawai'i Congressional delegation has roundly condemned this

opinion; the Attomey General of Hawai'i has provided extensive legal analysis directed at reversing it; and OHA trustees have met with Secretary Bruce Babbitt and the new interior solicitor to press the case. Although the new administration is not letting the opinion have legal effect, the underlying issues are still under review within the Interior Department.

Recently, OHA Chairman Clayton Hee provided Secretary Babbitt with another response to the "opinion." The issues sur-

rounding the "opinion" are important because they ean affect the basis upon whieh the United States provides services to native Hawaiians, and affect the underlying arguments for other legal and moral claims that

native Hawaiians have against the United States, arising out of the overthrow of Queen Lili'uokalani. The memorandum drafted by U.H. law professor Jon Van Dyke and myself is relatively brief. It does not try to repeat the excellent arguments of Hawai'i Deputy Attorney General William Tam's memorandum whieh delineated historic and

legal arguments demonstrating the United States' responsibility for the mismanagement of the Hawaiian Home Lands trust. The thrust of our memorandum was that the "opinion" seriously misconstrues fundamental federal trust law concepts, and, in addition, makes several mistakes in its legal and historical analysis. The central thesis of the "midnight opinion" is that native Hawaiians are simply another ethnic or racial minority, for whom neither events nor the laws of the United States have imposed a trust relationship in whieh the United States would be financially liable for breaches of trust. Our response makes clear that the trust relationship is eoneepīually and legally broader than that espoused in the "opinion," and that a trust relationship ean exist even where the United States may have no clear financial liability. The response says that:

"... the Opinion misconstrues trust law as it relates to Native Americans. It makes no distinction between the existence of a trust, and the ability to hold the United States liable. In effect, the Opinion begins its analysis from a specific search for ftnancial liability on the part of the United States and works backward from that point. Somewhat simplistically, if it cannot find clear finaneial liability, the Opinion eoncludes there ean be no trust." In the homelands trust context, questions of financial liability cannot be resolved until Congress provides a statutory framework for addressing claims. When Congress provides that standard, it will presumably address liability standards. Another flaw in the "opinion" is that it fails to acknowledge that the Newlands Resolution of Annexation (1898) and the Organic Act (1900) both provide a distinct legal foundation for

determining that the United States recognized and accepted a trust to the native people of the islands. The "opinion" is a distortion of history, asserting that whatever trust may have been established, it was not for native Hawaiians. Still another flaw in the "opinion" is its failure to consider the full legislative history of the Hawaiian Homes Commission Act. This failure to give congressional intention the full weight that it is usually accorded in determining the trust responsibility of the United States, is itself a serious flaw in the "opinion." Congress' has extensive plenary authority with respect to native peoples. With respect to native Hawaiians, Congress has spoken over and over again by legislating for the benefit of native Hawaiians. In the findings section of the 1 992 Native Hawaiian continued on page 19

News from Washington eominueā from paee 15

Heahh Care Improvement Act amendments, Congress reviewed the legal relationship between native Hawaiians and the United States. With respect to the Hawaiian Homes Commission Act, it specifically stated "thereby affirming a trust relationship between the United States and the native Hawaiians." Similar acknowledgements are made throughout these defmitive 1992 findings. Finally, the "opinion" misconstrues a number of federal court and state decisions relating to native Hawaiians. We don't know when or if the Department of the Interior will affirmatively replace the discredited "opinion," but the issues will not go away, and are important in the overall struggle to provide justice for native Hawaiians. Our memorandum concludes:

"The United States has a trust responsibility to native Hawaiians for the same reasons it has a trust responsibility to other Native Americans. Through its treaty relationships, its course of dealings with the native people of Hawai'i, and through numerous federal statutes, the United States has established and aeknowledged a trust relationship with native Hawaiians. "The precise details of the United States' obligations to native Hawaiians have not yet been defined. Among the elements that need to be addressed by Congress are resolving the land claims of native Hawaiians, resolving the claims of native Hawaiians arising out of the management of the Home Lands trust, and restoration of selfdetermination and self-gover-nanee for native Hawaiians."