Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 8, 1 August 1998 — Hawaiians in court [ARTICLE]

Hawaiians in court

? . : Homestead waits, ceded lands, PASH I

By Paula Durbin j| ______________________________ I USTICE CAME down I on the side of Native I Hawaiians during the I third week of July when m two circuit court judges ruled in their favor, but kanaka maoli fared less well at | the Hawai'i Supreme Court. j Of the three cases decided j over four-days, only Apa vs. j Cayetano attracted media attention. At issue in t hat I case was 1997 legislation amending a 1991 law under whieh Hawaiians ean sue when state officials breach the Hawaiian Home Lands trust.. Sō far, 165 claimants are owed some $6 million in damages, pending legislative j approval, with more than 4,000 filed claims still to be j evaluated. Specifically, Act 382, the j 1997 amendment, would have created a "working j group" to review claims by | Native Hawaiians dissatisfied

with notoriously long waits for a homestead. Damages for wait-list claims, constituting 60 percent of all claims filed, would have been excluded, according to the criteria to have been applied by the working group eomprised mainly of appointees to the governor's cabinet. But 68 Hawaiians filed suit alleging the statute represented a denial of due process and Circuit Court Judge Marie Milks agreedt. On July 24, she granted their motion for summary judgment, holding Act 382 unconstitutional in an order for. Unnoticed by the media was Circuit Court Judge Kevin Chang's July 21 refusal to dismiss Office of Hawaiian Affairs vs. Hawai'i Finance and Development Corp. OHA is seeking a moratorium on any sale of ceded lands until resolution of claims for the uneompenSee COURTS on page 5 " • " : " ■ ...i,,,,.' ,

From page 3 sated taking of Hawaiian land after the 1 893 overthrow. In 1996, citing the Apology Resolution of 1993, Judge Daniel Heely denied a similar state motion brought on other grounds. Attorney Sherry Broder said Judge Chang's ruling, whieh cited a 1977 case holding that the state had only "naked title" to ceded lands, also considered the Apology Resolution. Trial is set for Oct. 19. On July 23, the Hawai'i Supreme Court issued its one-sentence disposition, ignored by the media, affirming Big Island District Court Judge William

Chillingsworth's conviction of 28 Hawaiian defendants for misdemeanor trespassing in State vs. Keli'ikoa et a\. They had been arrested Dec. 10, 1994 while participating in a Lono procession toward Hā'ena using Kea'au Road, considered private tyIn its brief as amicus curiae supporting the defendants' appeal, OHA urged the court to reverse the eonvictions, citing Pua Kanahele's trial testimony on the sacred nature of the Hā'ena site and its significance to hula, oli and the Pele legends. According to attorneys involved with the suit, Kea'au Road, part of the Lunalilo Estate sold at auction, was open to traffic for centuries until the land court ruled it closed in 1933. They said the only other access to Hā'ena is via a dif-

.« ficult coastal trail. , Because their convictions were upheld, the defen- ; dants will eaeh have to pay a $25 fine. The laek of a full opinion in the case, Broder said, makes it difficult to assess any impact on the native gathering rights the court affirmed two years ago in Puhlie Access Shoreline Hawai'i vs. Nansay ine., popularly known as PASH. Attorney Hayden Aluli represented Hawaiians in all j three cases. "It's refreshing that two judges courageously sided with Hawaiians in two pending cases," , he commented. "But it's too bad that the Hawai'i s Supreme Court passed up a golden opportunity to pro- * vide guidance on the nature of private title and native ; rights in Hawai'i." ■ 2

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