Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 7, 1 July 1988 — Native Hawaiian Legal Corporation N H L C Report [ARTICLE]

Native Hawaiian Legal Corporation N H L C Report

by Mahealani Ing, Executive Director

Right to Sue — Some Misperceptions

The controversial "Right To Sue" bill recently passed by the Legislature is a complicated document whieh raises many questions. Following are some criticisms whieh misinterpret certain provisions of House Bill 37. 1. Hawaiians cannot recoverover 130,000 acres currently used by non-natives. False. Hawaiians ean now go into court and seek injunctive and declaratory relief for return of these lands using federal statute 42 U.S.C. §1983. House Bill 37's passage does nothing to affect the ability of Hawaiians to file such claims. Sovereign immunity is still a legal bar to any elaim for back rent, but the bill neither bars such suits nor waives any right by native Hawaiians to elaim back rent in future legislation. This bill's failure to provide for back rents was a major disappointment to the Hawaiian community, but that is not the same as a bar to recovery for land currently used by non-natives — H.B. 37 does not create such a bar. 2. Even with the prospective right to sue, native Hawaiians will still not he able to recover lands or monies. False. Currently, a claimant could use 42 U.S.C. §1983 as a legal mechanism to recover lands through issuance by the federal courts of injunctive or declaratory orders. House Bill 37 adds to this option by enabling successful claimants to now recover direct monetary, out-of-pocket losses and attorney's fees as well for any claims whieh accrued as of July 1, 1986. 3. lf the Department of Hawaiian Home Lands is found guilty of breach of trust, the court ean only award land and monies to the Department, not the Plaintiff. This means that the same people who are guilty of abuses in the first plaee will receive the lands and monies if beneficiaries are successful in a prospective suit. The bill thus

gives an incentive to the Department of Hawaiian Home Lands to continue to abuse the trusts. When the Department of Hawaiian Home Lands, through illegal Executive Orders, lost airport lands, should those airport lands have been awarded to an individual Hawaiian, or individual Hawaiian organizations, if that individual Hawaiian or organization had brought a successful lawsuit? Or should it have gone back to the Department to administer on behalf of all Hawaiian beneficiaries? Under H.B. 37, a successful recovery of this sort would go back to the Department for the benefit of all Hawaiian beneficiaries. This is appropriate unless and until another mechanism for administering trust lands for all Hawaiians is in plaee. Individual beneficiaries ean be compensated for damages and attorneys' fees in lawsuits whieh do not involve depletion of the trust corpus as in the above example. As noted earlier, a native Hawaiian beneficiary ean get declaratory and injunctive relief resulting in an award of more land from the Department when it has breached its trust duty in limiting such awards or in refusing to make them. For example, the lower court in the Ahuna case ordered DHHL to grant Mr. Beck 3.5 acres more land because it had breached its trust duties by leaving the land idle. The Hawaiian Supreme Court affirmed that decision. Since H.B. 37 explicitly preserves all remedies now available to claimants, the court would retain the flexibility under its current powers to eompel such awards. 4. The Governor has been directed to make a plan by 1991 regarding settlement of all claims from 1959. This eoncentration of power in the Governor makes no provision for input from Hawaiian communities. There is no opportunity for Hawaiians to dispute this in the courts.

False. The bill establishes no new power in the Governor. Instead, it requires him to submit a plan over whieh native Hawaiians, through their legislative representatives, have final say. Failure by the Governor to eome up with a plan would automatically confer the right to sue. If the Governor did eome up with a plan, Hawaiians would not be excluded from the process of influencing resulting legislation. The Governor could similarly attempt to influence, but could not dictate, what the final plan enacted by the Legislature would be. The bill merely formalizes the schedule for following a procedure long established by the Constitution for enacting legislation. The Governor does not have any new unchecked power under this bill. Further, the courts have never been involved with proposed legislation. The courts and the legislature are two separate branches of government. It would be entirely inappropriate for the courts to become involved with the legislative process. It is true the state legislative process has not served Hawaiians well in issues dealing with native rights. The answer ultimately lies in creating a future where Hawaiians ean be free and selfdetermining. 5. In short, this bill extinguishes all claims since the beginning of the trust. There is no legal extinguishment of claims because of House Bill 37. NHLC pressed unsuccessfully for passage of Senate Bill 3413, Senate Draft 1, House Draft 1 during the 1988 legislature. That measure would have provided funds to quantify the back rent pwed by public agencies for past illegal uses of Hawaiian Home Lands. Continuing to press for measures of this sort, though tedious and pieeemeal, will lead to positive long-term changes for all Hawaiians.