Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 6, 1 June 1994 — NHLC leads legal fight for Hawaiian land [ARTICLE+ILLUSTRATION]

NHLC leads legal fight for Hawaiian land

by Deborah L. Ward "Mānoanoa ka po'e; pānoanoa ka 'āina" Many are the people; rare is the land. Buried amid gray columns of squeezed print in the daily newspapers are the legal notices that most Hawai'i readers skip over in favor of sports or the comics. But to Hawaiian families, keeping a vigilant eye out for these notices ean mean the difference in being able to "keep Hawaiian land in Hawaiian hands," or possibly losing title forever to land onee owned by an ancestor.

Where ean Hawaiian families turn when they need legal services, but can't afford to hire an attorney to respond to a quiet title or adverse possession lawsuit? Or to defend other rights to land, natural resources and other entitlements? Since 1974, the Native Hawaiian Legal Corporation, a non-profit public interest law firm. has worked to "assert, protect and defend Hawaiian land and traditional rights." NHLC is governed by a 12-member board of directors, eight of whom are attomeys appointed by the Hawai'i State Bar \ssociation and four who are community representatives. It has a staff of 22 whieh includes an executive director, six attorneys and six paralegals (title searchers/genealogists), a translator and secretaries. Native Hawaiian Legal Corporation defends Hawaiian rights through four projects:

• the OHA Land Title Project — set up to assist native Hawaiians who need legal assistance in defending land titles or interest in real property in Hawai'i; it is funded by OHA and the state Legislature. • the Native Rights Project — whieh provides legal assistance to Hawaiians with claims to land, natural resources and related entitlements; it is funded by Legal Services Corporation (a federal agency), OHA and the state Legislature. • the Hawaiian Homelands Project — to assist individual beneficiaries (lessees and those on the waiting list) with problems relating to the Hawaiian Home Lands tmst. It is funded by the Hawai'i Bar Foundation.

• the Individual Claims Review Panel project represents Hawaiians with claims for breach of the DHHL trust. NHLC's primary focus has been in defending the interests of Hawaiian families against quiet title land claims, whieh are generally made by large landowners or businesses. Since 1982, when OHA established the Native Hawaiian Land Title Project, NHLC under eontract with OHA has received more than $5.2 million (in public land trust funds, and since 1988, matching state general funds) to provide representation for Hawaiians through the Native Hawaiian Land Title Project and the Native Rights Project. OHA supports these programs as part of its mission to better the conditions of native Hawaiians and

Hawaiians. Since 1981 the Land Title Project has represented more than 2,500 clients, who have recovered land and/or money valued in excess of $20 million. This year, NHLC is serving 1,079 clients, of whieh 641 (59 percent) are represented through the Land Title Project, 109 (10 percent) are represented through the Native Rights Project, 274

represented through the Hawaiian Homelands Project (26 percent) and 55 clients through the ICRP (5 percent). Turning point

Yet as NHLC's expertise has increased, and it has gained eon-

fidence of the Hawaiian eommunity and the respect of opposing attorneys, it has faced growing pains that may require it to reassess the fees clients pay for its services. A recent program audit asked OHA and NHLC to determine whieh of the applicants to the program are eapahle of paying a fair share of costs of services provided, and whieh applicants cannot reimburse the ^rogran^o^ervice^rovide^^

"NHLC attorneys stuck by us (and) fought hard for us when no one else would. They taught us more about the way the law works for us than we could have learned without them. We are more powerful now with that knowledge than we were before." Sonny Kaniho

As part of its current contract with OHA, NHLC charges clients attorneys' fees at greatly reduced rates. Average cost of one hour of professional service in FY 91-92 was $37.31. (Standard rates in other legal firms are $150 an hour and up.) NHLC also charges clients for all costs advanced, such as court filing fees, taking of depositions, title searches if an independent title company is consulted and so on. These costs are recovered on a contingency basis so the client pays only if the NHLC is successful in asserting their interests in the property. Half of the money collected goes back to OHA, into the Native Hawaiian Rights Fund. All clients agree to pay an initial non-refundable fee of $200. This goes to offset some of the initial costs associated with title and genealogical research.

NHLC recently asked for and received an emergency infusion of $147,000 from OHA to make up for a budget shortfall in the current fiscal year. Georgiana Alvaro, NHLC board chairman, noted that a legislative funding cut in FY 93 and FY 94 decreased expected funding by half for the Native Rights Project, and played a part in that shortfall. At the same time there was a reduction in funds from the Hawai'i Bar Foundation for the Hawaiian Homelands Project. The foundation gave NHLC seed money in 1991-92 of $50,000, whieh OHA matched that first year. The foundation later gave $20,000 in FY 93,

then $16,000 in FY 94. Alvaro also cited higher operating expenses due to NHLC's move to a new larger office and purchase of an improved eomputer system and telephone system. She said the NHLC board of directors is looking at a number of options for controlling operating expenses and generating additional ineome, such as: increasing attomey and paralegal hourly rates paid by clients; increasing the non-refundable deposit; adopting a sliding-fee schedule or other variation of payment for services according to clients' ability to pay. However, she said that they are concerned that services should continue to be affordable to clients who need legal help.

Other income-producing ideas being considered, said Alvaro, include the possibility of establishing a regular law practice branch to provide basic legal services (such as wills and trasts) at standard rates; making available non-litigation translation services for a fee; and subletting office space. Fundraising and grantwriting activities will eontinue, but it is difficult, says Mahealani Kamauu, NHLC executive director, to gain support from loeal and naīional foundations, who shy away from supporting litigation. At present, due to their high caseload (complex title cases may take years to resolve and involve hundreds of individuals), NHLC has set a temporary moratorium. Though no new cases are presently being accepted, families are given basic assistance in completing initial paperwork to keep them in the game, and referred to a private attorney if they ean afford one. If not, they go on a waiting list until the case load lightens up and new cases ean be accepted. NHLC has been asked by OHA trustees to present a budget plan for FY 95 that will allow them to lift this moratorium.

To many Hawaiians, NHLC is the body of legal warriors who will fight for the Hawaiian people. NHLC got its start in the early 1970s when several grassroots groups formed a non-profit legal service organization to help Hawaiian homesteaders with their claims. NHLC evolved out of that early grassroot effort. One of those homesteaders was Sonny Kaniho, of the Aged Hawaiians. He says, "NHLC attorneys stuck by us (and) fought hard for us when no one else would. They taught us more about the way the law works for us than we could have learned without them. We are more powerful now with that knowledge than we were before."

NHLC's logo, represents "niolo," something that is "upright, straight, stately, tall and straight as a tree without branches, sharply peaked as mountains." It was designed by 'imaikalani Kalahele.