Since 2010, Moses Kalei Nahonoa- pi‘ilani Haia III has served as executive director of the Native Hawaiian Legal Corp., a private, nonprofit, public-interest law firm where he’s worked for 15 years.
But in at least one recent case — Nelson v. Hawaiian Homes Commission — he is himself a beneficiary of the court action. Haia is one of 27,000 qualified with 50 percent Hawaiian blood on the waiting list to receive a homestead.
“(The Hawaiian Homes Commission Act) is trying to give Hawaiians back a part of their foundation so that they can, pardon me, be Hawaiian in Hawaii.”
Moses Haia
Executive director, Native Hawaiian Legal Corp.
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The plaintiff in that case, which the Hawaii Supreme Court backed in its ruling, is Richard Nelson III, another on that waiting list who won $28 million in mandated state funding for the Department of Hawaiian Home Lands. The state seeks to appeal the amount.
Protecting DHHL’s ability to function is key to fulfilling the mission of the 1920 federal act, championed by Prince Kuhio to address the poverty of his people, Haia said.
“(Kuhio) wants to put them back on the land, because he knows that’s what they know,” Haia said. “That’s what this whole act is about. It’s trying to give Hawaiians back a part of their foundation so that they can, pardon me, be Hawaiian in Hawaii.”
The corporation has played a prominent role as an advocate in other cases chalked up as wins: One enabling DNA to serve as a genealogical record for DHHL beneficiaries, and another ensuring burials protection along the city’s rail-project route.
Another ruling — seeking to invalidate the permit for a Haleakala telescope, similar to the Thirty Meter Telescope decision for Mauna Kea — is pending.
Haia also is among those who had been seeking election to the coming ‘aha, or Hawaiian self-governance convention, until a legal challenge prompted the organizers to abort the election. The meeting will proceed anyway, Feb. 1-26, and Haia said he plans to take part in as much of the meeting as his schedule permits.
The 1994 graduate of the William S. Richardson School of Law is married, counting himself as the couple’s only child — along with the dog and two cats.
QUESTION: With the case about DHHL’s funding on appeal, what is your approach to the Legislature?
ANSWER: In my view, it’s education. I think that there’s a big hole that’s not understood and realized about what got us to this point. Why are we here, with a ruling from the judge, ordering the Legislature to fund them at $28 million for this current fiscal year?
The way that I see it is, we’ve got to go all the way back and start at the reason for the Hawaiian Homes Commission Act, why that came about, why it was passed in 1920 and why it became a part of statehood, that it was required that the state take over the obligation.
Then it goes to 1978, with the Constitutional Convention. So between the time the act was passed and 1978, there was no real obligation — maybe a moral obligation — to fund Hawaiian Homes. But no legal obligation.
That changed in 1978. … There’s a proposed amendment to the Constitution, that gets voted on by the people, and passed.
Q: What was the effect of that amendment on DHHL?
A: It changes a discretionary budget application of the state into mandatory…. The word that’s used is “may” provide funds; and then at the 1978 Constitutional Convention, that was changed to “shall.”
And then you look at all the history of the Constitutional Convention as it relates to that language. It talks about all of the problems with administering this program, given the lack of funding.
Q: Did it specify a certain amount that the state had to pay every year?
A: No, it did not. “Sufficient,” I believe, was the language used: “It shall provide sufficient funding.”
Q: That’s what the governor’s saying, right? That it’s never been the court’s discretion to say how much, that it’s odd that the judge is ordering the $28 million.
A: So, we’re obviously going to differ on that …
Another important point to take into account when it comes to this $28 million is, before this decision, the way that Hawaiian Homes was able to run their operations was that they had to lease out the lands that could have, should have been used to put Hawaiians on, … to make up that difference, so that they can operate.
When you look at that, and you see that the court is now saying $28 million for operating and administrative costs, that means the money that used to be used to operate can now be used for what it’s meant to be used for. And that’s putting people back on the land.
Q: Is the state precluded from suggesting a lower amount as more appropriate?
A: They should have done that at trial.
Q: So, was the state just asleep at the wheel on that?
A: You know, I wasn’t at trial, I wasn’t there on a daily basis, so I’m not entirely sure what their strategy was. But as a litigator, my experience is that whatever evidence you need to challenge, you get as soon as possible and figure out what you’re going to bring to argue against that. It appears they weren’t up to the task.
Q: You were saying that the $28 million is a figure that theoretically, if it holds, is going to be for just this year, and each year it would need to be readjusted. Is that then up to the Legislature to determine that threshold?
A: This is my take, from reading the decision. …The way that it happens is DHHL will say, “This is our budget request,” and there’s an argument whether or not the Legislature has discretion to figure out whether or not that’s enough, given the fact that there needs to be “sufficient” funding.
Q: The $28 million is just going to replace the $30 million from the settlement that they’re not getting anymore. So why can we expect DHHL to do any better at reducing the wait list and putting people on the land?
A: The Supreme Court said we don’t have management standards to determine what that (the cost of housing Hawaiians) is. But every year, I believe, Hawaiian Homes goes in with an additional funding request for that.… for the rest of DHHL’s budget, to make sure they can establish infrastructure, can start developing homestead land and getting them on the land.…
Q: Do you think DHHL is not aggressive enough in making their own case?
A: I mean, that’s always going to be a significant concern when an agency that has a mission, an obligation to a certain part of the community in Hawaii, has to go before the person — well, the administration is the one that puts the chair in place. It’s kind of a weird situation to be in.
Q: How do you think, in general, DHHL is accomplishing the mission on behalf of the beneficiaries?
A: Well, there’s the 27,000 on the wait list, so it’s not gone well. But I, once again, would go back to the reason for the Act, and all the history of how it just became a bunch of talk and not any action.
And if you start looking at where the waiting list began and where it is now, would money have made a difference?
Q: That was going to be my follow-up question. Do you think money would have made a difference?
A: In my mind, that’s why the money wasn’t given. Because we have a growing problem, but not really any strong advocacy on behalf of these beneficiaries. Hawaiian beneficiaries of the Hawaiian Homes Act just make up a small portion of the population in general, and of Hawaiians. That’s just the way I’ve seen it.
Q: But DHHL has been criticized for inefficiencies and irregularities. So to some extent, have they not been good stewards of the resources they did have from the state?
A: I can’t say that they haven’t. I don’t have enough information that would allow me to say definitely.
But given the situation, there’s a lot of blame to go around here. I have information that I know that there were commissioners, chairs, who were concerned and expressing that concern, and a deaf ear turned to them.
It’s not like people haven’t tried who were actually in those positions that would have been able to make changes.
Q: But maybe throwing money down the hole isn’t the way to do it because the structure might be dysfunctional.
A: Obviously, it’s going to be a combination of all those things. From my own experience, I get into certain habits that keep me in the same place, unless and until I get a boot in the butt, and sometimes that doesn’t even work.
Notwithstanding the fact that I agree or not that Hawaiian Homes has frittered away the money, the state has an obligation. So do that obligation, and then we’ll figure out whether, in fact, there’s no light.
Q: Do you have any takeaway from the DNA decision?
A: You’re just trying to tie yourself genealogically to someone who will give you enough of a blood quantum to be eligible for a lease.
More often than not, the cases we’re seeing is where a child has a birth certificate, but the biological father’s not on the birth certificate, and they don’t necessarily get there with just the one side of the family.
Q: Have you got a fair number of people coming in and saying, “Hey, I need to get to 50 percent and over so I can have rights.” Is that where this is going?
A: There’s a bit of that. Somebody sees an opportunity.
Q: On the issue of the telescopes on Mauna Kea and your case on Haleakala, has the review process for permits always been like the ones the court struck down?
A: There’s been a progression. When I first started working on administrative cases, there would be a hearing or meeting; people would sign up to testify. Any individual could at that point request a contested case.
But that wouldn’t stop the process. Ten days after the hearing you had to file a written request for a contested case. And then you determine whether or not you actually have the kind of interest that would require due process.
Q: But the board wouldn’t actually issue a permit at that time?
A: No.… And now it’s gotten to, for Mauna Kea and the same thing on Haleakala, that they think they can give the permit and then hold the case.
