Ka Wai Ola - Office of Hawaiian Affairs, Volume 17, Number 7, 1 July 2000 — Home Lands claimants get first victory in court [ARTICLE]

Home Lands claimants get first victory in court

By Paula Durbin

tIRCUIT JUDGE Victoria Marks handed Hawaiian Home Lands beneficiaries an initial victory June 9 in their quest for compensation. After hearing arguments in Kalima vs. State ofHawai'i on whether they could sue as a class the State of Hawai'i for breach of its fiduciary duty in administering the Hawaiian Home Lands trust, Judge Marks ruled in favor of the Hawaiians. "The judge certified the class and determined this group of claimants could not be kept out of court," said Carl Varady, cocounsel for the class. As originally filed, three Hawaiians were named as plaintiffs in the suit against the state. Judge Marks' ruling opens the suit to all 2,721 whose unsettled claims were filed by an August 1995 deadline with the now defunct Hawaiian Home Lands Individual Claims Review Panel created by the Legislamre in 1991 to resolve disputes involving wrongs allegedly perpetrated by the Hawaiian Home Lands Trust between Aug 21, 1959 and June 30, 1988.

Wrongs alleged against the Department of Hawaiian Home Lands include lost applications for homesteads, substandard construction, failure to timely quahfy an applicant as native Hawaiian and excessive waits, of as long as a hfetime, for a homestead. Under the panel procedure, meritorious claims were to have been recommended to the Legislature for funding. When the panel disbanded, of the claims filed, 874 had been dismissed, and 1,376 were awaiting a hearing. Of the 418 found meritorious, none was ever funded. "A process intended to promote justice has been used to impede it. Clearly, money is more important to the state than justice," said Varady. State efforts to side-step the panel process date back to 1997, when the Legislature passed a measure amending the 1991 law. The amendment created a "working group," consisting mainly of appointees to Governor Benjamin Cayetano's cabinet, to review claims by Hawaiians dissatisfied with the notorious waits and excluding these See HOME LANDS on page 5

HOME LANDS

From page 1 claims from the panel's purview. The measure was ehallenged by 68 Hawaiians as a violation of due process, and Circuit Court Judge Marie Milks agreed, holding it unconstitutional. A 1999 bill extending the life of the Claims Review Panel was vetoed by Govemor Benjamin Cayetano last year, whieh prompted the current lawsuit. Arguing for the state at the June 9 hearing, Deputy Attomey General Charlene Aina admitted that, without the Claims Review Panel, the beneficiaries had no mechanism though whieh to obtain compensation for their losses. But she insisted they were improperly before the court and should wait for another mechanism

to become available. To this Varady countered later, "This is a txust rich in land that the state took on as a condition of the Admission Act. The state had a fiduciary duty to develop that resource in a manner that gets the result Congress intended. It is facially hypocritical for the attorney general to advocate that the Bishop Estate tmstees should pay for breaches of their fiduciary duty and not the state." Judge Marks also granted the plaintiffs' motion to eompel production of the names and addresses of everyone who had presented a elaim before the Claims Review Panel. These individuals will be receiving a notice in the mail whieh they should complete and return promptly. Information requested will facilitate identification of their claims and contact with the attorneys. With a grant from the Office of Hawaiian Affairs,

the Native Hawaiian Legal Corporation will send staff into the community to conduct the intake process. "The next round of motions will determine whieh claims are compensable," said Varady, adding that the most numerous category of claims is wait-list related, whieh the state is most determined to resist. "If we have to go to trial on eaeh elaim, we'll do that, but we hope to set up some other means of resolving them," he said. Of the case, a June 13 Honolulu Star-Bulletin editorial said, "The failure of the state and before it the territory to implement the homestead program adequately is one of the scandals of Hawai'i history. Although some of the contentions of Hawaiian activists are questionable, there is no doubt that promises made in the homelands act have not been kept. If the state does not wish to answer the beneficiaries in court, it had better get busy on those claims." ■