Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 4, 1 April 1994 — Legislators updated on federal issues [ARTICLE+ILLUSTRATION]

Legislators updated on federal issues

by Patrick Johnston The federal trust responsibility to native Hawaiians, the apology resolution, land claims: The array and complexity of native Hawaiian issues at the federal level is daunting. In an attempt to update and infonn themselves of the issues, state legislators invited four experts on various federal issues to speak and answer questions at a special public hearing held Feb. 18 at the state office tower. The four speakers were: OHA land officer Linda Delaney; Norma Wong, special assistant for state-federal relations at the Office of State Planning; Patricia Zell, staff director and chief counsel for the Senate Committee on Indian Affairs; and Native Hawaiian Legal Corporation attorney Carl Christensen. Federal trust responsibility, legislation, census classification

Linda Delaney shed light on the past 15 years of dealings with Washington, mentioning two federal study eommission reports done on native Hawaiians in the early 1980s. In the first Native Hawaiians Study Commission report, federally appointed commissioners did not support a trust responsibility. Volume II, a dissenting opinion issued by the minority native Hawaiian commissioners, including current OHA trustee Kīna'u

Boyd Kamali'i, argued in favor of the trust. Delaney said that during the Bush/Reagan years the findings of Volume II were ignored in Washington but with the signing of the apology resolution this is changing. She also discussed the issue of census classification and how efforts were being made by Hawai'i Senator Daniel Akaka to have Hawaiians listed on the census as Native Americans, not Asian/Pacific islanders, giving them the same poliūeal status as Native Americans and clearing the way for native Hawaiians to receive some of the same type of federal

programs available to Native Americans. Delaney mentioned specific legislative gains that have been made in Washington. NAGPRA (Native Ameiiean Graves Protection and Repatriation Act) acknowledges the rights of native Hawaiians and made specific provisions for them, amendments made to the National Historic Preservation Act include native Hawaiian cultural values, and the Native Ameiiean Free Exercise of Religion Act extends constitutional protection for religions of native peoples. Individual claims, political status Wong pointed out that, while there has been a "shift" in the

polmeal chmate īn Washmgton, this should not be seen as a "transformation" and that future dealings with Washington would not be easy. With this in mind, she said that her office is focusing less on trying to get the federal govemment to accept a trust and more on looking into individual Hawaiian claims. Specifically she mentioned Lualualei, a paieel of land on O'ahu whieh was illegally withdrawn from the homelands trust and

is worth millions of dollars. Wong explained that it was difficult to work with the federal govemment regarding Hawaiian issues because of the presence of the "invisible hand of tlie Department of Justice" whieh was an unseen player at negotiating tables. She said that this year Janet Reno had hired a counsel to act as a eontact with the Justice Department. Wong also said they were trying to get a positive opinion from the U.S. Attomey General that native Hawaiians were "akin to Native Americans" to ensure that congressional programs for Hawaiians are considered constitutional. If Hawaiians are seen as only a racial group, then programs created exclusively for them would violate the 14th amendment of the U.S. constitution, whieh guarantees equal protection under the law.

Han litigation, homelands, Solicitor's statement Patricia Zell focused on homelands issues and federal assistance both to native Hawaiians in general and homesteaders.

Important issues she mentioned included the legality of third party leases on Hawaiian home lands. In the Han litigation (Han v. the Department of Justice) a group of homesteaders are suing the DOJ over the issue. Beginning as a dispute over use of homelands, the case has unleashed a number of contentious issues including whether the federal government has a trust responsibility to native

Hawaiians. Zell aIso discussed Clinton administration Solicitor John Lesche's statement that withdrew both supportive and opposing opinions regarding a federal trust responsibility. She explained that the statement does acknowledge a legal responsibility on the part of the U.S. for native Hawaiians and that the cancellation of the two contradictory opinions provides a basis for discussions regarding claims and responsibility for homelands.

Breaches of homeiands trust Carl Christensen pointed out that in the Han litigation the

federal government is using past court decisions to argue against a tmst. In the most significant of these cases, a breach of trust elaim by Keaukaha/Pana'ewa Community Association against the Department of Hawaiian Home Lands, the court decision went in favor of Hawaiian Homes on procedural grounds. The federal government is now relying on language from that decision to argue

against a trust responsibility.

Linda Delaney

Norma Wong

Patricia Zell

Carl Christensen