Congress enacted a law in 1921 to help return those with at least 50 percent Native Hawaiian blood to homesteads to promote economic self-sufficiency and self-determination, but it has been stalled ever since. A state judge ruled four years ago that the state Department of Hawaiian Home Lands had neglected its trust responsibility since 1959 and it’s time for compensation. Further delay would be wholly irresponsible, and the U.S. Interior Department needs to add its weight to demand speedy resolution before more beneficiary plaintiffs in the breach-of-trust lawsuit die waiting.
A federal-state task force concluded in 1983 that the state had failed to meet its fiduciary obligations to nearly 8,000 applicants on the homestead waiting list. The Legislature recognized that negligence in 1988 by giving beneficiaries the right to sue to obtain their overdue lands. A strong ray of hope to avoid litigation emerged, however, when the state created an administrative panel to hear breach-of-trust claims on homesteading cases between 1959 to June 1988, ranging from long lease waits to lost applications.
But the panel was inexplicably allowed to disband before completing its mission, leading to the Kalima v. State lawsuit. That 1999 class-action suit upheld by the state Supreme Court in 2006 led to a 2009 trial victory for the 2,700-plus claimants. The homestead waitlist has since grown to more than 26,000 Native Hawaiians.
Incredibly, the delay continues. Nearly 300 of the 2,721 Hawaiians included as plaintiffs in the lawsuit have died, and the average age of the remainder is 65. State Attorney General David Louie says the state is committed to resolving the case in a fair and equitable manner to protect the state’s interest.
Louie, however, says the two sides are far apart and the case may have to be resolved by the state Supreme Court because of complexities involving thousands of claims going back as long as a half century, without legal precedent to follow. The longer that takes would be the better for the state, some plaintiffs point out, since a claim could be capped if a plaintiff dies without a homestead.
"This is a travesty," former Gov. John Waihee accurately described the situation to the Star-Advertiser’s Rob Perez. "To me, it’s compounding the initial breach."
It was under Waihee’s governorship that the state administrative panel had recommended payment of $18 million in claims to 471 of the plaintiffs in the lawsuit — an average of $38,000 per claimant — but none of it was distributed due to its premature dissolution. Then-Gov. Ben Cayetano vetoed a bill that would have extended the panel by one year, saying it would "perpetuate the beneficiaries’ misunderstanding that the panel’s recommended awards are valid."
Of course, the validity was affirmed by state Circuit Judge Eden Elizabeth Hifo four years ago, ruling that the state must pay compensation to avoid prolonging the economic harm to the Native Hawaiians who have been on the waiting list for decades.
Circuit Judge Virginia Crandall determined in a ruling last year that six years would be a reasonable wait for a homestead lease unless a beneficiary who is offered a homestead lease were to decline it.
In 2007, when a mediator was appointed in hopes of fostering a settlement, the plaintiffs broached options — but the state never countered and pulled out.
"This is a political game with the state," lamented Big Island resident Herk Freitas, 66, a class-action plaintiff who the dismantled state panel had recommended receive $123,000 in claims.
It’s clear that the state has breached its trust with Native Hawaiian homesteaders, both legally and morally. The complicated legal wrangling only wastes valuable time, money and energy that needs to be rechanneled toward resolution.
Renewed mediation efforts would be the pono path here, perhaps in conjunction with a legislative directive to resurrect the administrative panel in agreed-to lieu of ending the prolonged legal battle. Lastly, the U.S. Interior Department in the Obama administration should exercise its clout on the state to bring an end to this stalemate and assure claims to deserving recipients while they are still alive.
