Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 12, 1 December 1990 — Native Hawaiian Legal Corporation [ARTICLE]

Native Hawaiian Legal Corporation

N H L C Report

Akiona vs. Department of Hawaiian Home Lands

By Mahealani Kamauu NHLC Executive Director In a very moving speech before the State Couneil of Hawaiian Homestead Associations, Hawaiian Home Lands Chair Hoaliku L. Drake stated, "In the past 70 years, many mistakes have been made by the Commissioners and the Department . . . As Chairman, I ask for forgiveness for any injustices that may have occurred in the past 70 years. We mihi. If we have offended you, we are sorry. Please forgive us".

The Chairman's remarks embody Hawaiian thinking. More than that, they are rooted in the Hawaiian spirit and traditional way of doing things. Her remarks challenge all of us to embark on a path of forgiveness and building for the future. In this context, the "un-Hawaiian" and "divisive" tactic of proceeding against the Department in court has been viewed as fomenting and continuing the bitterness of the past — a stubborn refusal to move forward in a "building up" (instead of "tearinq down") spirit of lokahi, or unity.

This is especially true when, as Chairman Drake added, " . . . if we do (make mistakes), it would not be intentionally or consciously to hurt anyone". What follows is the profile of a lawsuit whieh has its origin in mistakes and wrongs committed in the past — nearly 40 years ago. For many years, James Akiona and Sonny Kaniho dreamed and strived to resolve these wrongs and mistakes, with the Department, in a conciliatory spirit of lokahi. They got nowhere until they went to court. Then Hawaiian Home Lands eame up with a plan whieh it believed settled the problem. Unfortunately Mr. Akiona and Mr. Kaniho did not agree with the Department's plan. They believed it eontinued wrongs of the past.

Kupuna wisdom builds upon pono, or righteousness, and admonishes us against bitterness and negativity in thought and deed. But it does not ask us to be docile when confronted with that whieh we believe to be unjust. How do we resolve these differences together, Hawaiian to Hawaiian, and set aside the eha, old hurts? The success or failure of our collective aspirations to heal old wrongs turn upon the answer to that question. The Akiona litigation is a case in point. In 1952, 427 native Hawaiians applied for pastoral (ranch) lots at Pu'ukapu, Waimea, Hawai'i. 187 were

selected who had the best ehanee of succeeding. Of the 187, Hawaiian Homes awarded 48 lots of approximately 300 acres eaeh. The Aged Hawaiians are beneficiaries on the 1952 list who were still waiting for their pastoral lots after 38 years. Over the next 30 years, the Commission awarded another nine lots, but it did not follow the 1952 list. Instead, the Commission followed a new list without notifying the 1952 applicants, who eontinued to wait. For over 20 years, the Commission then insisted the 1952 list had been "temporary" and "lost". Throughout this period, Parker Ranch used the pasture lands at Pu'ukapu for minimal rent.

After years of searching, Sonny Kaniho, an applicant on the 1952 list, found a copy in the State Archives. The Department, whieh at first refused to recognize the list, finally reinstated it in 1983. Individuals on the list were then placed next in line for pastoral awards. James Akiona, a pure Hawaiian, was the second appiicant on that list. At 63 years of age, he was still anxious to start ranching with his children. Of the remaining 1952 applicants, approximately 95 are still alive and waiting for an award. The Aged Hawaiians felt all qualified applicants who were serious about ranching deserved lots big enough to support a viable ranching enterprise as Congress intended and as they had been promised.

Because of land scarcity created by non-home-stead leases and a competing need to get more homesteaders on the land, the Commission changed its policy. Without a public hearing, it reduced all planned homestead awards for Pu'ukapu to a maximum of 20 acres eaeh. When government proposes to change the status of or rezone public land, it must hold hearings to allow testimony and input. It must do all it ean to assure fairness and "due process". That is why, for example, county governments hold public hearings on amendments to development plans. When procedural safeguards are in plaee, justice and fairness are assured.

Beneficiaries never had a formal opportunity-to comment on the Commission's lot award plans for Pu'ukapu, Humu'ula and Kamaoa-Pueo. Since Commissioners dramatically decreased the size of ranch lot awards, the Aged Hawaiians wanted an opportunity to engage in the formal

consultative process afforded by a public hearing process. Through the hearing process, those who had waited for nearly 40 years and others who were serious and capable of ranching would ask the Commission to award them sufficient land.

1 he Commission s decision to limit lot size was also consistent with another new policy. Waiting list beneficiaries who wished to engage in commereial ranching would now be required to competitively bid for a general lease. General leases are available to the general public (with a native Hawaiian preference), at market prices. These recent policies ignore the original intent of the Hawaiian Homes Commission Act. In the meantime, nearly 50,000 ranching acres were and continue to be general-leased to the following non-homesteaders:

Kahua Ranch 9,370 acres at Kawaihae C.R. Benlehr, Ltd. 7,000 acres at Pi'ihonua Freddy Nobrigas, Ltd. 5,290 acres at Humu'ula Enterprise Parker Ranch 27,890 acres at Humu'ula TOTAL 49,550 acres

There are provisions within non-homestead leases whieh allow the Commission to withdraw lands when they are required for beneficiary use. The Commission has given the following reasons why it cannot withdraw these non-homestead leases: (1) it cannot afford supporting infrastructure; (2) it cannot afford to pay for leasehold improvements upon early termination of the lease; (3) it has not developed a management plan for these areas.

The Aged Hawaiians have tried long and hard to resolve these issues cooperatively with the Department, working to remove these obstacles for nearly a decade. After many futile years, they filed suit. In November, 1989, they won a preliminary court order from Judge Shunichi Kimura whieh required the Commission to hold public hearings and adopt rules before restricting pastoral lots to 20 acres.

After holding hearings at whieh many testified they hoped for an opportunity to ranch commercially, the Commissioners adopted vague factors for setting ranch lot sizes, calling them "rules". They then voted to award 204 unimproved ranch lots at Pu'ukapu, Humu'ula and Kamaoa Pueo. No infrastructure improvements were required or made prior to these awards.

These lots were 10 to 20 acres in size, capable of supporting two cows and two calves, except for a handful of 100-200 acre lots at Pu'ukapu and Humu'ula, a concession to the Aged Hawaiians. While these awards may provide temporary relief, the laek of a systematic approach offers no procedural quality and laek of water still render these larger acreages inadequate for a viable ranching enterprise. The Aged Hawaiians asked the court to temporarily postpone the planned awards to assure the right of beneficiaries to be heard on the latest award plan. The court denied this request. Therefore, although the underlying lawsuit was still pending before the court, the Commission proceeded with the small pastoral lot awards. After the awards were made, it notified awardees in writing of the pending court artion. The notice stated awardees might not get their land because of the lawsuit, whieh had been in process for several months. Thereafter, Mr. Akiona and his family were verbally harrassed and threatened over the telephone. This caused him to drop out of the lawsuit. The Department then wrote to the awardees and told them it did not condone violence. Other members of the Aged Hawaiians have continued the lawsuit to force withdrawal of the 50,000 acres in continued page 23

NHLC Report

from page 17 non-homestead leases before the Department should be allowed to restrict the size of pastoral homestead lease awards.

The Native Hawaiian Legal Corporation has represented Mr. Akiona and the Aged Hawaiians on many Hawaiian Homes issues over the past six years. Were it not for the Aged Hawaiians' hard work and commitment, the recent awards might never have materialized. Mr. Akiona and Sonny Kaniho deserve praise and honor for their long years of struggle. They have waited nearly 40 years and fight to protect all Hawaiians on the waiting list.

The Department should award sufficient land so that qualified homesteaders who are eapahle of ranching ean make a living at it. This is what was promised by framers of the Act. The Aged Hawaiians believe that the Department's current practice is wrong.