Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 1, 1 January 1994 — Feds moving slowly on trust responsibility for native Hawaiians [ARTICLE]

Feds moving slowly on trust responsibility for native Hawaiians

by Patrick Johnston The federal government wants to talk but is still not prepared to change its position regarding a trust responsibility for native Hawaiians. A Nov. 15 statement by Solicitor John Lesche on the subject withdrew an eariier opinion issued in the final hours of the Bush Administration that said the U.S. had no trust responsibility. The opinion was significant because, if accepted, it wou!d have made many of the programs already passed by Congress that specifically address Hawaiian concerns unconstitutional.

However, the statement added the Department of Justice would continue to argue against the trust responsibility in ongoing court cases (Han v. Dept. of Justice). The statement also said it was withdrawing a supportive opinion issued during the Carter Administration. "The United States is maintaining its position in the litigation," the statement reads. "Therefore, rewriting the January 19 (Bush Administration) opinion to narrow its focus seems unnecessary. Instead I am simply withdrawing the opinion in its entirety. To avoid confusion, I am at the same time disclaiming the future departmental reliance upon an August 27, 1979, letter of the Deputy Solicitor (overruled in the Jan. 19 Opinion) to the extent that it could be construed as inconsistent with the position of the United States in the litigation." In other words, it will be a while yet before the federal government clears up the issue of a trust with native Hawaiians. At stake is potentially billions of dollars of reparations for use of Hawaiian lands, access to programs presently available only to Native Americans, and ultimately, recognition of a sovereign Hawaiian entity. On a more conciliatory note, the Secretary of the Interior Bruce Babbitt wrote in a letter to Gov. Waihe'e that he hoped the eaneeling of the two contradictory opinions would "clear the way for further discussions regarding the needs of native Hawaiians."

He also said he has appointed his special counsel, Miehael Hayman, to serve as his representative under the Hawaiian Homes Commission Act. Hayman has been instructed to meet with representatives of the State of Hawai'i and Hawai'i's congressional representatives to discuss native Hawaiian issues and "what further steps might be taken by the United States." Babbitt noted that many laws have been passed in the past 20 years that address the needs of native Hawaiians and that legislation might be the best way to address their concerns "such as their status as aboriginal, indigenous people." Paul Alexander, OHA Washington counsel, said the Babbitt letter was significant because it recognized the importance of the House and Senate in the native Hawaiian issue. "The optimistic part of recent events is that the Secretary and the Solicitor recognize that Congress has a role to play in resolving native Hawaiian claims."