Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 3, 1 March 1991 — Waihee submits plan for controversies [ARTICLE]

Waihee submits plan for controversies

In January, Governor John Waihee submitted to the 1991 state Legislature, "An Action Plan to Address Controversies Under the Hawaiian Home Lands Trust and the Public Land Trust." The govemor's plan is in direct response to either presenting a proposal toward settling past controversies involving both land trusts, or to face the consequences of a bill that would give Hawaiians the right-to-sue the State and collect damages on their claims.

Act 395, or the "right-to-sue" bill was adopted by the Legislature in 1988. Such action established a Native Hawaiian Trusts Judicial Relief Act, and waived the immunity of the State of Hawai'i for any breach of trust or fiduciary duty regarding the management and disposition of trust funds and resources of the Hawaiian home lands trust, and the public land trust, administered by the Office of Hawaiian Affairs. This judicial relief became effective on July 1, 1988. Recognizing the need to redress past controversies surrounding the two native Hawaiian trusts, Act 395 also established a mechanism for administrative and !egislative deliberation of proposals to resolve trust abridgments by the State from Admission on Aug. 21, 1959 through June 30, 1988.

Section 5 of the Admission Act, requires the governor to present a proposal to the legislature, . . . "to resolve controversies relating to the Hawaiian home lands trust . . . between statehood and 1988, and resolve controversies relating to the public land trust . . . between its creation in 1980 and 1988." Deadline for submitting the proposal was the start of the 1991 Legislature. While viewing the proposal and its contents as an alternative to court action, the legislature linked the submittal and success of the proposal to a "retroactive riaht-to-sue."

Under Section 5, if the governor failed to present a proposal in 1991 or if the proposal is rejected by a two-thirds vote of the house introducing the resolution, and no other means of resolution is provided; then a retroactive right-to-sue takes effect for a period of two years. If placed into effect, the "right-to-sue" law would make it possible for Hawaiians to sue the State for past controversies involving any breach of the trusts between 1959 and 1988. For the first time, Hawaiians would gain the right to enter the courts for monetary damages on their claims. Section 5 was a legislative compromise. Faced with the warning that trust claims would bankrupt the state, the legislature deferred action on the retroactive right-to-sue. Instead, a "trigger-mecha-nism" offering a potential judicial relief for past wrongs was set in plaee.

The hope in seeking a 1991 proposal to resolve controversies was to encourage negotiation and to provide a cost figure for legislative review. The State stresses that the action plan proposal

has been constructed as the beginning of action towards resolution, not as resolution itself. It sees the implementation of the proposaI as an, "ongoing, evolving process."