In 1920, with events in Hawaii dating from circa 1893 a smoldering controversy and cause of bitter resentment, Congress enacted the Hawaiian Homes Commission Act to try to ensure that land in Hawaii was made available equitably and promptly to
In 1920, with events in Hawaii dating from circa 1893 a smoldering controversy and cause of bitter resentment, Congress enacted the Hawaiian Homes Commission Act to try to ensure that land in Hawaii was made available equitably and promptly to Native Hawaiians.
It was, observed Gavan Daws in his 1968 book “Shoal of Time, a History of the Hawaiian Islands,” legislation that was a “masterly blend of shadow and substance.” The idea was to hold the land interests of sugar planters at bay and to try to give Native Hawaiians an opportunity to take advantage of land reserved for their use.
It was supposed to be a process that occurred with reasonable haste.
Fast forward to 2016 — 96 years after enactment of the law — and what is clearly evident is that the division of land that was envisioned at the time has never occurred in a meaningful way. While the state Department of Hawaiian Home Lands has distributed many thousands of acres of leased land, easements and other access, thousands of Native Hawaiians have languished on the waiting list — many for decades.
As this controversy has gone on for nearly a century, parallel pressures have evolved within the Native Hawaiian community to demand full independence for Hawaii. The independence movement is multi-faceted, but a large part of its momentum derives from understandable extreme frustration with the failure of the state to distribute land.
In other words, the failure of the DHHL and the Legislature to respect the original intent of the 1920 legislation may have arguably intensified interest in independence. That raises the question of whether the broad and deep disaffection with the political process among Native Hawaiians might have been neutralized or reduced if the state had simply done its job between 1920 and now.
More on that a little later.
Waiting times for land have historically been ridiculous. In fact, when the Native Hawaiian Legal Corp. filed a lawsuit — Richard Nelson III vs. Hawaiian Homes Commission in 2007 — the plaintiffs included one man who would subsequently die before the litigation was concluded, having waiting an incredible 58 years. He was an extreme example, but far from the only person whose wait for a land entitlement has proved to be, so far, in vain.
To put things in perspective, Kauai has a comparatively small amount of Hawaiian Home Lands acreage — about 20,000 islandwide, the majority of it concentrated on the West side, predominantly in and around Kekaha and Hanapepe, but also on the East side around Anahola, as well as in Wailua Homesteads. Hawaii Island is where the majority of this land is concentrated.
In 2009, a judge ruled, in what is called a summary judgment motion, that the plaintiffs in Nelson had prevailed. The court ordered that the Legislature, by consistently shortchanging DHHL in its operating budget requests, had failed to comply with requirements that it adequately fund DHHL. But the state appealed, arguing that the court decision ordering “sufficient funds” to be appropriated had tread inappropriately on any court’s ability to dictate the financial terms because such matters are “political questions” outside the purview of courts.
The case went to the Intermediate Court of Appeals and, eventually, to the Hawaii Supreme Court, which in 2012 ruled that a 1978 state constitutional convention did make the issue of what constitutes “sufficient funds” something that courts could get into. The Supreme Court ordered the First Circuit Court to rule on what the term means in actual dollars.
For many years, the DHHL has overcome operating budget shortfalls by dipping into trust funds never intended to actually run the agency. This has repeatedly been a source of controversy. Since 2013, the Legislature has appropriated just $9.6 million each year in general fund money — far less than the DHHL required to fund its operations. Before 2013, the Legislature had provided even less general fund support — zero dollars in some years.
The department has argued that the budget shortfalls are in large degree responsible for its inability to do its job and allocate land in a timely way, though there are clear indications that DHHL’s problems are far broader than just budgetary.
Finally, last November, Circuit Court Judge Jeannette Castagnetti put a number on the amount the Legislature was obligated to appropriate to DHHL — about $29 million this fiscal year.
But the state still did not give up. Legislators have argued that the court’s order for a specific amount to be appropriated violates the separation of powers between the legislative and judicial branches of government. There is broad speculation that DHHL may not even get a general fund appropriation this year because of the dispute.
But this all looks a little bit like Donald Trump stalking away from a recent Fox news debate in Iowa because he didn’t like one of the moderators. And, like Trump, the Legislature has substituted its own pique for a broader commitment to a just outcome in administration of Native Hawaiian land. Trump deserved the derision he received for his tantrum. The same might be said for Hawaii’s two legislative chambers, and Gov. David Ige, as well.
There is little question that $29 million for this and future fiscal years — adjusted for inflation — is a not unreasonable sum to allow progress to occur toward equitable land distribution and a final recognition of, and respect for, what many Native Hawaiians find so frustrating.
The issue of whether the court could, or should, have made such a specific ruling is something that should be left for law school debating societies and law journals. It’s time to get on with land distribution justice for Native Hawaiians.
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Allan Parachini is a former journalist and PR executive. He is a Kilauea resident.
