Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 12, 1 December 2009 — After long legal battle over Hawaiian home lands, money becomes the focus [ARTICLE+ILLUSTRATION]
After long legal battle over Hawaiian home lands, money becomes the focus
By Liza Simon Public Affairs Specialist \ow that Native Hawaiian plaintiffs have prevailed in a class-action suit against the state and the Department of Hawaiian Home Lands, plaintiffs attorneys are shifting their focus to a monetary resolution to the decadelong legal battle. Following a recent ruling that the state is liahle for breaches of trust, plaintiffs attorneys are asking the court to treat damages as a class-wide action, because the only other option would be to hold individual trials for eaeh of the more than 2,700 claimants, attorney Thomas Grande said. Grande also said that he and co-counsel Carl Varady are in the process of filing motions to determine standards for damages. "We are contending that the amount of damages (for eaeh plaintiff) should be equal to the market value of an improved leasehold homestead lot, because that is what people were deprived of," he said. The court decision recommends appointing a special master to facilitate the awarding of damages. First Circuit Judge Eden Elizabeth Hifo ruled on Nov. 3 that the state committed breaches of trust between 1959 and 1988 by failing to plaee Hawaiians in a timely manner on lands set aside for them under the federal Hawaiian Homes Commission Act. The ruling pertains to beneficiaries who went before a state-appointed review board created in 1991 to resolve homestead claims pending since statehood in 1959. The panel did not have resources to process the claims and disbanded in 1999. The class-action lawsuit was filed that year. It remains unclear whether the state will appeal. DHHL deferred comment to the state attorney general's office, whieh released a statement Nov. 4, saying: "The state is reviewing the decision to determine the appropriate next steps." Hailing the outcome of the recent four-week trial, Grande said it marks the first time beneficiaries of the DHHL trust have won the right to compensation in court. "It's also a monument to the perseverance of our plaintiffs - many of them are elderly. The claims were not something we lobbied for. The state under the panel during Gov. John Waihe'e's administration solicited their claims. The plaintiffs waited
patiently to find an answer for many decades. More than 300 died while they were waiting in vain," said Grande. Raynette Nalani Ah Chong is the daughter of one of the six original plaintiffs, Joseph Ching Sr., who died in 2001 without closure, long after first applying for a homestead award in 1962. "I know this thing consumed him, even though he never talked about it a lot. He was the only breadwinner in the family. Not getting the award meant we couldn't ask for mueh as kids. My sister wanted to go into accounting but had to drop out of college when my parents couldn't pay for it," said Ah Chong, who said her father eventually bought a family home but struggled to meet mortgage payments. She said that after the Waihe'e panel was formed, her father sought a homestead award with renewed vigor with the aim of eventually passing the home on to her. She said his hopes were dashed at a 1986 homestead lots selection meeting in Waimānalo, where DHHL staff skipped over his name in what appeared to be a mistake. Ah Chong said he took his fight to correct the error to the Legislature, asking for support for a bill to reform DHHL. When the legislation failed to pass, her father joined the class-action lawsuit. Ah Chong, herself a plaintiff in the case, testified on behalf of her father at the recent trial, where she read his letters written to the Legislature about his dissatisfaction with DHHL. Ah Chong bought her own home eight years ago. "But I've got to do the right thing for my Dad and for all the other Hawaiians who missed out like he did, so I will continue his fight," she said. Ah Chong said she "screamed with joy," when her attorney's office phoned her with the news of the Nov. 3 court decision. But she remains only cautiously optimistic. "Times are hard. The state is not going to want to pay. If there's an appeal, it could drag on," said Ah Chong. Just in case, she said she is sharing all legal information on her case with her 25-year-old daughter. "She might have to piek up where I leave off and do what I am doing now for me and my Dad." Hifo wrote in her 18-page decision that the plaintiffs proved by "clear and convincing evidence" breaches of trust that caused eligible Native Hawaiians to not be placed on the land - whieh itself is a further breach of trust. Hifo said breaches of trust include: • The state not doing an inventory of lands after taking over the trust from the federal government after statehood. See DHHL on pagE 20
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Speaking at a Nov. 4 press conference, lead plaintiff Leona Kalima said homeownership helps you improve "your stance in life" and had she been awarded a lease "way back," she said, "I could have probably afforded to send my children to eollege." With her, from left, are plaintiffs Raynette Nalani Ah Chong, whose father, another plaintiff, died in 2001 awaiting resolution to the 1 0-year-old case, and lrene CordeiroVierra, who at 82 says she's too old and sickly to accept a homestead from DHHL. - Photo: UsaAsato
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• DHHL not maintaining proper financial records, whieh among other things prevented it from taking advantage of revenue bonds.
• The state not returning 29,000 acres of land, or "set asides," whieh had been removed from the trust for government entities and private individuals, most before statehood. At the same time, Hifo said the state's failure to appropriate general funds or authorize general obligation or revenue bonds "is not itself a breach of trust." Her decision found that funding the trust is "distinct from the duty to manage the trust in a manner that protects trust assets and the ability to make the trust assets productive."
Hifo's ruling was critical of DHHL's practice of leasing the highest quality lands to the Department of Land and Natural Resources at favorable rates under short licenses that required no improvements. "In other words, the leasing was mismanaged and failed to make homelands fully productive even given their quality," according to the decision. Varady, a plaintiffs attorney, described DHHL's application and awardprocesses between 1959 and 1988 as "really hamajang," a loeal term meaning "messed up." "People's applications were getting lost, people who applied earliest were getting awards latest," he said at a Nov. 4 press conference. "You're looking at many people who spent the productive years of their lives waiting for a homestead award, and many of them applied during that period of time." He said had they received awards in a timely manner, "they would be in a position to be handing down their homesteads to their children or their grandchildren." At the press conference, four plaintiffs briefly shared their stories. Lead plaintiff Leona Kalima, who was adopted, said her 1 972 applieation was thwarted by not being able to prove her required 50-percent ancestry for eligibility, even though DHHL already had her adoption records and thus proof of her ancestry but "couldn't and wouldn't help me out." Kalima, who could verify her eligibility by 1983, said now that she is a homeowner with her daughter she ean see how that is an asset whieh helps improve credit scores, get loans and improve "your stance in life." Varady said Hifo's ruling would not change the way DHHL operates today; rather, it targets past wrongs. He said DHHL today is mueh improved largely due to Act 14, whieh in 1995 provided DHHL a $600 million settlement over 20 years to restore the trust. "I want to be very careful to acknowledge the fact that it's doing so mueh better," he said. DHHL built an average of 7 1 homesteads a year during the period 1959 to 1988; today it builds 481 homesteads a year, Grande said, adding, "It was primarily the laek of resources that kept the plaintiffs from getting what they wanted all those years. The state just treated DHHL worse than any other department. Its precious lands and resources were being depleted." Grande said the class-action lawsuit hit many snags over a 10-year period. The state had appealed the case to the state Supreme Court, whieh ruled that claims could be brought under state law created to remedy these claims and remanded the case to the lower court. Procedural questions also lingered over how to litigate on behalf of nine subclasses: some alleged DHHL lost their claims; some said their 50percent blood quantum was improperly challenged; others claimed unenforced successor rights, Grande noted. The federal Hawaiian Homes Commission Act was passed in 1921 to help rehabilitate Native Hawaiians and support their self-sufficiency through homestead awards for homes, agriculture, ranching and other purposes. The state heeame trustee upon statehood in 1959. ■ Lisa Asato contributed to this report.
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