Next year will mark the centennial of when the Hawaiian Homes Commission Act was penned and introduced in Congress. It was intended as a means of addressing the uprooting of the Hawaiian nation by returning Native Hawaiians to the land. About 200,000 acres of the former crown lands were set aside in trust, to be awarded as homesteads to those with 50% or more Hawaiian ancestry.
It was enacted the following year and, with statehood 60 years ago, management of the trust moved from the federal commission to the state, through its newly formed Department of Hawaiian Home Lands (DHHL). Overseeing the trust became a state mandate, part of the Hawaii Constitution.
But it’s a mandate that has been given short shrift for most of the history of the Hawaiian Home Lands program. For hundreds of those beneficiaries, the trust ultimately would amount to a broken promise. Some 300 to 400 of them died while still on the waiting list, many of them for decades, without receiving a homestead.
And, as if to add insult to that injury, a breach-of-trust lawsuit intended to win damages for the 2,700 plaintiffs still waiting has itself languished for 20 years.
Oral arguments in Kalima v. State of Hawaii, named for lead plaintiff Leona Kalima, were heard on Wednesday by the state Supreme Court. It’s on appeal from a lower court that ruled DHHL was liable for those damages for failing to provide homesteads to eligible Native Hawaiians in a timely manner.
The trust being land-rich but cash-poor for many years is a major reason why it took so long to get off the ground to begin with. So while it may not be surprising that the state is battling to limit its financial liability in this case, it’s still dispiriting. The fact that this legal challenge has been so prolonged and then appealed further is just more evidence of that failing.
What has always been missing is a proper sense of urgency about the state’s mission. DHHL long ago should have been equipped with a more experienced land management team to troubleshoot the logjams and find a better path toward fulfilling its duty.
If the justices uphold the ruling — and they should — it will fall to a special master who will be appointed to decide, administratively, how much actual damages to award. And even there, the state is already wanting an excessive burden of proof from plaintiffs.
Rightly, the justices questioned Hawaii Solicitor General Clyde Wadsworth on why the state would ask plaintiffs to provide evidence of how much they paid for housing on non-homestead properties — going back decades, in many cases. Surely the court master will see to it that the bar is not set quite so high; public records can yield some of the basis for awards.
DHHL is not without its own legitimate complaints about the administrative funding the Legislature has provided so that trust funds need not be tapped. The agency went to court to secure that.
In more recent years DHHL has explored rental projects and other alternative models for providing affordable housing, particularly for those who struggle to qualify for a loan.
But agency officials years ago should have shouldered the responsibility of helping its beneficiaries on the road to financial literacy and readiness for home ownership. Instead, its lawyers are in court arguing that the state is not responsible for delays if they’re caused by a claimant’s failure to qualify and participate in homesteading.
If the present model is not succeeding at putting Native Hawaiians back on the land — and plainly it’s not — Job 1 should have been to come up with another. That is where DHHL’s focus belonged, for the past six decades.
