Ka Wai Ola - Office of Hawaiian Affairs, Volume 16, Number 9, 1 September 1999 — Hawaiian hopes for due process dead? [ARTICLE]

Hawaiian hopes for due process dead?

[Kllilllil1 UPPAIE: Govemor,s veto of claims process extension

B y M e 1 1 s s a S e u Staff Attorney. N a 1 1 v e Hawallan Legal Corp. In July, Governor Cayetano vetoed a bill that would have continued the Hawaiian Home Lands Trust Individual Claims review process. He thereby killed a process intended to heal and resolve hurts suffered by countless Hawaiians at the hands of the state. The history of the claims process reaches back to 1988, when Governor John Waihee and the Legislature began working on ways to resolve controversies and long-standing wrongs with respect to the Hawaiian Home Lands Trust. In 1991, the Legislature created the Hawaiian Home Lands Trust Individual Claims Review Panel, a neutral body established to 1) hear. claims £rom individual Hawaiians harmed by the Department of Hawaiian Home Lands between Aug. 21, 1959 and June 20, 1988, and 2) recommend to the Legislature whether the claimants should receive compensation and/or corrective action.

The process was intended to be less formal and less costly than going to court. It gave Hawaiians their first real taste of fairness and due process, but it was not an automatic win. Claimants had to present evidence and or witnesses supporting their elaim. Often without counsel of their own, they faced deputy attorneys general representing DHHL. The panel's recommendation that a claimant was entitled to relief was subject to the Legislature's approval. Nonetheless, some 2800 people filed claims based on lost homestead applieations, substandard construction, DHHL's failure to timely qualify a person as a native Hawaiian, and excessive waits, in some cases a lifetime, for a homestead. The process deteriorated as the state tried to dismantle and sabotage it. For one year, the AG's office delayed and undermined the Panel's attempts to address the waiting list claims. Then, in 1997, Governor Ben Cayetano and the AG proposed new criteria and a new damages formula that would have eliminated about 1200 claimants, including

those who had already obtained favorable decisions, or about 2/3 of the claims filed. Circuit Court Judge Mane Milks declared the resulting law uneonstitutional because it violated claimants' due process rights. Unfortunately, even though the outcome was just, the suit delayed the panel's work. This year, similar legislation surfaced, but the legislators, including Senator Colleen Hanabusa, rejected it. Instead they unanimously passed House Bill 1675 establishing a claims compensation commission to eome up with different options, and giving the panel one more year to review the claims outstanding. But Gov. Cayetano vetoed the bill, saying the panel was taking too long and ignoring the AG's role in causing the delay. He also disagreed with the panel's decision that unreasonable waits for a homestead should be eompensated. Now, the claimants' only recourse is to file their claims in the circuit courts by Dec. 31. All claimants wishing to be able to

pursue claims in circuit court must do the following: * Notiiy the Hawaiian Claims Office that you intend to ffie a Iawsuit in Circuit Court. The Hawaiian Claims Office has sent out notice forms to eaeh claimant. Claimants must fill out and return the notice form to the Hawaiian Claims Office by Oct. 1 to preserve their right to sue the State in circuit court. If you are not sure whether you will file a lawsuit by Dec. 31, you should send in the notice form by Oct. 1 anyway. This will preserve your right to sue the state. You ean later change your mind and decide not to file suit. But if you do not return the notice by Oct. 1, you will lose your right to sue the state. If you have not received a form, or if you have lost it, or don't know ,if you returned the right form or not, eall the Hawaiian Claims Office at 586-2826 or 1-800-481-0800 (neighbor islands). • File a lawsuit in Circuit Court by Dec. 31. |