ALERT: Appeals Court to Determine Whether State Should Be Held Accountable re: DHHL

ALERT:

Appeals Court to Determine Whether State Should Be Held Accountable

for Its Promise to FULLY FUND Hawaiian Homestead Program As a Condition of Statehood

WHO: Intermediate Court of Appeals

Judges Craig Nakamura, Daniel Foley and Alexa Fujise

WHERE: Supreme Court Courtroom, Ali`iolani Hale

417 S. King St. 2nd Floor

WHEN: Wednesday, September 8 at 9:00 a.m.

The outcome of the pending Nelson v HHC appeal before the appellate court raises the critical issue about the state’s failure to adhere to its constitutional duty to provide sufficient funding to the DHHL for all its homesteading programs. As many of you know, political influence has diverted hundreds of millions to more superfluous purposes like promoting businesses like the tourism industry, which is nothing short of corporate welfare. Simultaneously, for decades, native Hawaiians die waiting for awards of homesteads promised by the state in order to attain statehood because it refuses to pay for essential infrastructure and other programs critical to homesteading. The consequences are striking, if not tragic.

Should the Courts Hold the State Legally Accountable for Refusing to Fund DHHL Sufficiently?

FACT: As of June 30, 1978, there were approximately 5,769 people on the DHHL wait lists. As of June 30, 2007, the number had grown to 23,668.

FACT: As of the summer of 2008, 1,666 applicants had been on the wait lists for three decades or more. Over eight thousand have waited two decades or more. And over 15,000 have waited over ten years.

FACT: Since June 30, 2002, the number of people who were added to the DHHL wait lists each fiscal year has been greater than the number of new homestead leases that DHHL awarded to native Hawaiians for that fiscal year.

FACT: The State is no longer providing any general revenue funds for DHHL’s administrative and operating costs.

FACT: The State concedes that the DHHL has not received sufficient funding.

FACT: DHHL has been forced to lease Hawaiian Home Lands to commercial entities in order raise sufficient funds to provide homesteads to native Hawaiians.

In 1978, the voters of this State amended our State Constitution to specifically prevent this from occurring. Article XII § 1 of the Hawai`i State Constitution provides:

The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law.

In passing this amendment to the Constitution, the Committee Report for the Convention states:

Your committee proposal makes it expressly clear that the legislature is to fund DHHL for purposes which reflect the spirit and intent of the Act. Your Committee decided to no longer allow the legislature discretion in this area.

DHHL cannot afford to lease more acreage to the general public for the purposes of generating income to accommodate a minimal employee level. It is clear to your Committee that the intent and spirit of the Act would be better served by releasing the department of its present burden to generate revenues through the general leasing of its lands. Your Committee decided that through legislative funding this dilemma would be resolved. In that manner more lands could be made available to the intended beneficiaries.

The Intermediate Court of Appeals will hear arguments regarding whether this constitutional provision will be enforced. Judge Bert Ayabe, of the First Circuit Court, ruled in 2009 that it could not be enforced because this issue is a "political question" only redressable by the State Legislature, not the courts. NHLC will argue that the lower court is WRONG.

If you can generate more awareness of this upcoming argument by forwarding a copy of this email, please do. We would want as many affected Hawaiians, especially kûpuna, come to listen and show support for what we are placing before the court – an issue of conscience that should NOT go away. It is about a promise that has been broken. It is about legal accountability for that promise, while getting all the economic benefits of statehood. Please get any of your ohana or friends willing to attend this argument to show up!

Judge Bert Ayabe (who is on the short list to replace Chief Justice Moon who is retiring) dismissed the Nelson complaint because he believed only the Legislature can choose to uphold the duty to fund DHHL sufficiently because it is a “political” decision that a court cannot address. We disagree; it should be the court to tell the State that it is in breach of a constitutional duty to fund.

Plaintiffs Richard Nelson III, Kaliko Chun, James Akiona, Sr., Sherilyn Adams, Kelii Ioane, Jr., and Charles Apia, Plaintiffs-Appellants (represented by the Native Hawaiian Legal Corporation), vs. Defendants Hawaiian Homes Commission, the Department of Hawaiian Home Lands, Micah Kane in his official capacity as Chair of the Hawaiian Homes Commission, Perry Artates, Billie Baclig, Donald S.M. Chang, Stuart Hanchett, Malia Kamaka, Francis Lum, Trish Morikawa, and Milton Pa, in their official capacities as members of the Hawaiian Homes Commission, Georgina K. Kawamura, in her official capacity as the State Director of Finance, and the State of Hawaii, Defendants-Appellees. Civ. 07-1-1663-08 BIA Appellate No. 30110

Alan T. Murakami, Esq.

Native Hawaiian Legal Corporation

1164 Bishop Street

Suite 1205

Honolulu, HI 96813

Tel: 808-521-2302

Fax: 808-537-4268

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

OFFICE of HAWAIIAN AFFAIRS
KA WAI OLA NEWSPAPER
711 Kapi‘olani Blvd., Ste. 500 • Honolulu, Hawai‘i 96813-5249
'Apelila 2009 • Vol. 26, No. 4
www.oha.org/kwo/2009/04

The state's broken promise
to native Hawaiians

For the ﬁrst time in 20 years, governor seeks
not to fund DHHL's administrative budget

By Richard Nelson III, Sheri Adams, and Alan T. Murakami

In 1978, the delegates at the Constitutional Convention recognized that the State of Hawai'i had failed to live up to its promise to the federal government at statehood to faithfully administer the spirit of the Hawaiian Homes Commission Act. They recognized that the exclusive reliance at the time on general leasing Hawaiian home trust lands to pay for its programs and operations was insufficient. The convention's Hawaiian Affairs committee concluded:

"DHHL cannot afford to lease more acreage to the general public for the purposes of generating income to accommodate a minimal employee level. It is clear to your Committee that the intent and spirit of the Act would be better served by releasing the department of its present burden to generate revenues through the general leasing of its lands.Your Committee decided that through legislative funding this dilemma would be resolved. In that manner more lands could be made available to the intended beneficiaries." (Emphases added.)

Accordingly, they adopted a provision that required the state to provide "sufficient sums" to pay for all Hawaiian homestead costs, including the "administrative and operating budget" of the Department of Hawaiian Home Lands (DHHL). The delegates proposed to make it "expressly clear that the legislature is to fund DHHL" in order to rectify chronic underfunding of the program since its inception in 1921. In fact, the committee report stated that the constitutional amendment would "no longer allow the legislature discretion in this area." Hawai'i voters ratified this constitutional amendment.

More than three decades later, the promise of the constitutional delegates remains unfulfilled. The DHHL residential, farm and ranch wait list has grown four-fold. More than 1,700 applicants have waited more than three decades for a homestead. The state has not issued a new agricultural homestead lease since 1986. Many die each year waiting.

Now, after a decade of declining appropriations to DHHL, Governor Lingle proposes to make a bad situation even worse. She has proposed to provide no general funds to DHHL for its operating and administrative expenses this coming fiscal year and next. Instead, she is proposing to do exactly what the 1978 Constitutional Convention delegates intended to stop 30 years ago – compel DHHL to find money by leasing its homestead lands.

Given its trust responsibility to beneficiaries, Governor Lingle's plan to zero out DHHL general funding for its administrative and operating budget is not only illegal; it makes a mockery of the state's 1978 promise to native Hawaiian beneficiaries.

• No other department within the executive branch is responsible for administering a land trust exclusively on behalf of native Hawaiian beneficiaries;

• No other department within the executive branch has had 100 percent of its general fund appropriation eliminated for the next fiscal biennium;

• No other department within the executive branch must generate 100 percent funding for its own administrative and program budgets;

• There is no constitutional mandate to fund any other department within the executive branch, yet DHHL is the sole department targeted for elimination of general funding;

• DHHL administers a land base one-sixth the size of the Department of Land and Natural Resources; DLNR's 2009 budget is $111,965,479, consisting of state general funds, special funds, capital improvement funds and federal funds. DLNR has never been required to generate 100 percent of its administrative and
program costs.

Contrary to Lingle administration characterizations, those demanding that the state fulfill its constitutional obligation are not attempting to undermine Hawaiian self-determination or self-sufficiency. Remember, the governor currently appoints all Hawaiian Homes commissioners, including the commission chair. Rather, it is a matter of basic fairness to native Hawaiian beneficiaries, whom the State of Hawai'i has for too long relegated to Cinderella stepchild status. A promise is a promise. It is also simply a matter of enforcing the supreme law of Hawai'i, which the governor and all legislators have taken an oath to uphold.

--------------------------------------------------------------------------------

Richard Nelson III and Sheri Adams are among the five Native Hawaiians who, with the help of the Native Hawaiian Legal Corp., have sued the state, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands for breaches of trust and violating Article 12, section 1 of the Hawai'i Constitution, which ensures that DHHL receive sufficient state funding for administration and other purposes. Alan Murakami, the litigation director at Native Hawaiian Legal Corp., specializes in native rights.

Replies

Kaohi August 15, 2010 at 10:53am

Got it!
Kaohi August 15, 2010 at 9:30am

Tane,

One knows that you are my love--

But, I disagree. NHLC was there---at least the players.

Cynthia Thielen
Ron Albu
Jon Van Dyke
UH Law students
Tony Lucrisio
thus..NHLC..Mahealani

vs

Mits Ueyhara
Mililani
Lehua

The Breach of Trust, I take no credit because I was there to help our Na Kupuna to connect with the Department of Interior to clarify their position.
I spoke to:
Mr. Philip Montez, Director
Western Regional Office
8/27/1979

Read the report it's an eye opener at least for me when I read the Akaka Bill. In truth, I thought that the 'Broken Trust' that was created soon after glossed over the the Breach of Trust. I have an original copy.

I attended multi meetings with our Homestead just before the Gabby Pahinui concert. That is why, I was with Pono--I was exhausted..

I just came from Gege Kawelo's house. With another heart to heart meeting.

It's all locked in.....just as it was in the 70s when Na Kupuna asked, joined, and was put out on the streets for speaking up. Having this experience ...life goes on.

I disagree that the Military Veterans should have a front door passage onto our Hawaiian Homestead without a bloodquantum.

So in this sense, I want the Akaka Bill to DIE not postpone. Just simply DIE. No hearings, just DIE.

I know that DHHL will see the end, it's been my contentions since the 70s.

When Pono and I was at Gabby Pahinui's beach concert--As Pono put his arms around me in view of the entire public and in that moment, the weight lessened. I was able to view in my mind as to what will happen to our people in the future. They are pure in spirit and will prevail the 'dirty' politics, I don't know how, I just know this is true. I am grateful to Pono for giving Joshua (5 years old) and I quality time-- through his honest attention--I can see my grand-great-grandchildren doing their best in the future.

So, I will sleep with good concious tonight and wake up tomorrow morning to go to work and continue what my ancestors did 2,000 years ago.

Never mind the 'dirty' politics and the front door entrance of the US military that will pilage DHHL. At this time it is not stop'able. Just another battle lost for native women with 50% plus bloodquantum leasees on DHHL and their children.

Love you
- Tane > Kaohi August 15, 2010 at 10:52am
  
  Kuhio didn't want a 50%+ blood quantum criteria; it was the U.S. government. They are the ones that make and break the rules and bend them. It is the same when those behind in the list are pulled to the front through politics and influence like the Danners. A lot of the corruption began right after the Bill was past and Hawaii took over the trust given to it by the U.S. federal government. The state evolved the guidelines and put more hoops into it for Hawaiians to jump through to be accepted. This corruption of the bill has been ongoing even before those you mentioned. Either way; your children and/or descendants eventually won't qualify for the 50%+ qualifications. It then becomes a moot issue.
  - Pomaikaiokalani > Tane August 16, 2010 at 9:36am
    
    e Tane,
    After the passage of the Hawaiian Homes Commission Act, Prince Kuhio wanted to retire as Delegate to Congress. So that he could become the Chairpersion of the Act. Knowing that he had lots to explain to his people about the Act. Sadly Kuhio DIED six months after the passage of the Act.
    After the passing of Kuhio, the enemies set in and controled the Act. Enemies today who contine to control the Act.
    Presently DHHL does not accept Funding from the State of Hawaii. I see this as a way to make Lingle look good. Release her from giving Due Revenues to DHHL and more money for Lingle to spend on her Pet Projects.
    There is such a Corruption surronding DHHL. I had a aunt who servered as a Commissioner of DHHL. After speaking with her, I called for Her and the rest of the Commissioners, Resignation, including the Chairperson, Billie Beamer. My aunt never forgave me for that action. She never talked to me after that action that I took on her and the Commission.
    I know that soon we will have our government of our Kingdom in place. I worry that when that day comes, it is our Own of the Blood Quantum with their American Corrupt Minds will take over our government of our Kingdom. Our Kingdom of Queen Liliuokalani and her nation of our ancestors. All of our ancestors................... ALOHA KUU AINA HAWAII, o Pomai
    - Pomaikaiokalani > Pomaikaiokalani August 16, 2010 at 10:32am
      
      e Tane, All one has to do is get a copy of the DHHL Booklet. Look at much of their lands are leased out for only $1.00. Then look at who the $1.00 leases are going to and question, WHY.
      Hawaiian Electic, Hawaiian Tel., Cable T.V., Honolulu Water and on and on....
      Native Americans would never allow this on THEIR TRUST LANDS.
      I be NUHA AS HELL if I was a native Hawaiian living on DHHL with these violation of the DHHL TRUST................ I do not understand why so many native Hawaiians do not fully understand what belongs to them in TRUST......................
      I have HAD IT with these LuLu Bell native Hawaiians. o Pomai
      - Pomaikaiokalani > Pomaikaiokalani August 16, 2010 at 5:59pm
        
        e Tane, The violations that the State of Hawaii and the DHHL has committed against the native Hawaiian beneficiaries of DHHL and Public Land Trust of the State of Hawaii is so HEWA. HEWA that I can't begin to explain fully the violations.
        This one of the reasons why the State of Hawaii will never conduct an Audit of the Public Lands Trust. The State of Hawaii is one of only two States in the Union that holds it Public Lands in a Trust. The other State being Arizona. As Arizona's their State's Trust Lands are from the Native Americans of Arizona.
        In the United States the strongest laws are those of a Trust. Only in Hawaii are the Trust Laws violated so many times. As these Trust Laws deal with the native Hawiians.
        Of all the Horror Stories that I've heard in my life time on the Trust, are those dealing with DHHL. Keep in mind that DHHL is not a Private Trust, but a Federal Trust of the United States.
        Long Live The Hawaiian Kingdom, o Pomaikaiokalani ...................................1993
Tane August 15, 2010 at 8:28am

NHLC didn't create this problem since this issue predates its existence. Pomai is correct that the breach of trust was the leasing to outside commercial companies for $1.oo a year when the purpose was to lease it to raise revenue to fill in the negative gap funding. The $1.oo a year for the land was assigned to native Hawaiians only and not to outside interests.

The beneficiaries of DHHL should have brought this up when things were discovered but they didn't come together until much later when they formed their community association. Now that they have that formed; it's their obligation to make the Department accountable, especially since the DHHL has set up guidelines and policies.

Therefore, it's the Hawaiian Homestead Association leaders that should be doing the actions. They should have taken the issue to the NHLC to forward it to the state and DHHL; then to the courts if no action or remedy was made. So the problem lies with the leaders of the Hawaiian Homes Association. They snooze; they lose.

The way it's set up, only qualified native Hawaiians can contest the issue and less than 50% blood have no standing. The blood quantum was established to be divisive and to minimize the governments' obligation. With my 3/8ths or 38% deems me with no standing and I cannot initiate anything; but support your actions as I choose to do.

The way trends are going, in the somewhere future there may not be many 50%+ native Hawaiians and the DHHL will probably be dissolved. One more reason why the Akaka bill is wrong for Hawaiians and that the U.S. should de-occupy our country.
Kaohi August 15, 2010 at 1:16am

OFFICE of HAWAIIAN AFFAIRS
KA WAI OLA NEWSPAPER
711 Kapi‘olani Blvd., Ste. 500 • Honolulu, Hawai‘i 96813-5249
'Apelila 2009 • Vol. 26, No. 4
www.oha.org/kwo/2009/04

The state's broken promise
to native Hawaiians

For the ﬁrst time in 20 years, governor seeks
not to fund DHHL's administrative budget

By Richard Nelson III, Sheri Adams, and Alan T. Murakami

In 1978, the delegates at the Constitutional Convention recognized that the State of Hawai'i had failed to live up to its promise to the federal government at statehood to faithfully administer the spirit of the Hawaiian Homes Commission Act. They recognized that the exclusive reliance at the time on general leasing Hawaiian home trust lands to pay for its programs and operations was insufficient. The convention's Hawaiian Affairs committee concluded:

"DHHL cannot afford to lease more acreage to the general public for the purposes of generating income to accommodate a minimal employee level. It is clear to your Committee that the intent and spirit of the Act would be better served by releasing the department of its present burden to generate revenues through the general leasing of its lands.Your Committee decided that through legislative funding this dilemma would be resolved. In that manner more lands could be made available to the intended beneficiaries." (Emphases added.)

Accordingly, they adopted a provision that required the state to provide "sufficient sums" to pay for all Hawaiian homestead costs, including the "administrative and operating budget" of the Department of Hawaiian Home Lands (DHHL). The delegates proposed to make it "expressly clear that the legislature is to fund DHHL" in order to rectify chronic underfunding of the program since its inception in 1921. In fact, the committee report stated that the constitutional amendment would "no longer allow the legislature discretion in this area." Hawai'i voters ratified this constitutional amendment.

More than three decades later, the promise of the constitutional delegates remains unfulfilled. The DHHL residential, farm and ranch wait list has grown four-fold. More than 1,700 applicants have waited more than three decades for a homestead. The state has not issued a new agricultural homestead lease since 1986. Many die each year waiting.

Now, after a decade of declining appropriations to DHHL, Governor Lingle proposes to make a bad situation even worse. She has proposed to provide no general funds to DHHL for its operating and administrative expenses this coming fiscal year and next. Instead, she is proposing to do exactly what the 1978 Constitutional Convention delegates intended to stop 30 years ago – compel DHHL to find money by leasing its homestead lands.

Given its trust responsibility to beneficiaries, Governor Lingle's plan to zero out DHHL general funding for its administrative and operating budget is not only illegal; it makes a mockery of the state's 1978 promise to native Hawaiian beneficiaries.

• No other department within the executive branch is responsible for administering a land trust exclusively on behalf of native Hawaiian beneficiaries;

• No other department within the executive branch has had 100 percent of its general fund appropriation eliminated for the next fiscal biennium;

• No other department within the executive branch must generate 100 percent funding for its own administrative and program budgets;

• There is no constitutional mandate to fund any other department within the executive branch, yet DHHL is the sole department targeted for elimination of general funding;

• DHHL administers a land base one-sixth the size of the Department of Land and Natural Resources; DLNR's 2009 budget is $111,965,479, consisting of state general funds, special funds, capital improvement funds and federal funds. DLNR has never been required to generate 100 percent of its administrative and
program costs.

Contrary to Lingle administration characterizations, those demanding that the state fulfill its constitutional obligation are not attempting to undermine Hawaiian self-determination or self-sufficiency. Remember, the governor currently appoints all Hawaiian Homes commissioners, including the commission chair. Rather, it is a matter of basic fairness to native Hawaiian beneficiaries, whom the State of Hawai'i has for too long relegated to Cinderella stepchild status. A promise is a promise. It is also simply a matter of enforcing the supreme law of Hawai'i, which the governor and all legislators have taken an oath to uphold.

--------------------------------------------------------------------------------

Richard Nelson III and Sheri Adams are among the five Native Hawaiians who, with the help of the Native Hawaiian Legal Corp., have sued the state, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands for breaches of trust and violating Article 12, section 1 of the Hawai'i Constitution, which ensures that DHHL receive sufficient state funding for administration and other purposes. Alan Murakami, the litigation director at Native Hawaiian Legal Corp., specializes in native rights.
- Tane > Kaohi August 15, 2010 at 7:31am
  
  They fail to mention that the U.S. set up its trust obligation and funded it with a set amount which was a bit limited. When it turned over the trust, the State was then obligated to fund the program. Breaching this obligation, the federal government would step in to insure this trust was carried out. Maybe they should bring this issue up to the federal government since it relegated the responsibility to the state.
Pomaikaiokalani August 14, 2010 at 8:54pm

ALOHA Kakou,
Presently the DHHL do not accept FUNDING from the State. DHHL lease many of their DHHL for only $1.00 per year. Which is a Violation of the DHHL Trust.
Too many native Hawaiian have been on their "Backs" for too many years. Going along with the violations. In fact some have been part of the violations. Happy that 12 Homes are being built for native Hawaiians on Kauai.
No "Make Waves" and just be Happy with what you get and protect your Blood Quantum.

Long Live The Hawaiian Kingdom, o Pomaikaiokalani, Hawaiian Kingdom National Royalist 1993

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