Sunday, January 14, 2001
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Posted on: Sunday, January 14, 2001

Lawsuit galvanizes homestead tenants

By Yasmin Anwar
Advertiser Staff Writer

Two years ago, retired merchant seaman Ben Kaluna wouldn’t have been caught dead at a sovereignty rally. Nestled comfortably in Honolulu’s Papakolea homestead community, he saw no need to defend his entitlements.

Rallies today and tomorrow

Today: Sovereignty Sunday rally at Iolani Palace to commemorate the Jan. 17, 1893, overthrow of Queen Liliuokalani: 10 a.m. to 4 p.m.

Tomorrow: Hawaiian homesteaders and others rally at State Capitol in defense of Hawaiian entitlements: 10 a.m. to 2 p.m.

Back then, Kaluna didn’t face losing the bargain of a homestead lease that costs a dollar a year for 99 years, with a provision for a 100-year extension.

But his sense of security has changed since the filing of a federal lawsuit that seeks to abolish the Office of Hawaiian Affairs, the state Department of Hawaiian Home Lands, and other government-supported native entitlements.

Traditionally reticent to get involved with politics, many Hawaiian homesteaders say they’re waking up from their slumber to resist a legal challenge from Honolulu resident Patrick Barrett and former Hawaii Republican Party Chairman John Carroll.

"When push comes to shove, we protect ourselves," said Kaluna, whose family moved to Papakolea from Kakaako in 1947. He loves his home and his neighborhood and is not about to give it all up.

Tomorrow Kaluna, 62, is joining hundreds of Hawaiian homesteaders at a rally at the State Capitol in a public show of unity against the Barrett/Carroll lawsuit.

At issue in the lawsuit is Article 12 of the state constitution, which established OHA, provided the foundation for native gathering rights on private property and adopted the Hawaiian Homes Commission Act, a 1920 federal measure that set aside 200,000 acres for Hawaiians with at least 50 percent native blood.

Leimamo Kapea, whose home is among the Papakolea homesteads, wants all Hawaiians to get "a piece of the pie." She says the Barrett/Carroll lawsuit has pulled Hawaiians together to "rise up and be heard."

Bruce Asato • The Honolulu Advertiser

The lawsuit says such "racial preferences" violate the constitutional clause guaranteeing equal protection.

On March 12, U.S. District Judge David Ezra is set to hear Barrett’s request for a preliminary injunction to halt operations at OHA and the state Department of Hawaiian Home Lands.

Some doubt that drastic measures will be taken immediately. These people fault some Hawaiian community leaders for whipping up hysteria about the lawsuit.

Others caution that anything is possible after last year’s U.S. Supreme Court ruling striking down a two-decade law barring non-Hawaiians from voting in OHA elections.

"The Native Hawaiians realize how critical this issue is," said Lela Hubbard, a retired teacher who is active in the Hawaiian community. "They know they can lose everything."

32 homestead communities

In recent weeks, news of the Barrett/Carroll case has provoked considerable unease in the state’s 32 homestead communities. Statewide, there are close to 7,000 Hawaiians with homestead leases, and just more than 19,000 on the waiting list.

More than 800 homesteaders from such communities as Princess Kahanu, Waianae Kai and Waianae Valley attended a Nanakuli briefing Thursday to learn more about the potential impact of the Barrett/Carroll suit.

"A federal judge will say if we have a future or no future on homestead lands," said a leaflet announcing the briefing.

As beneficiaries of the federal Hawaiian Homes Commission Act, few homesteaders anticipated their benefits would ever be on shaky ground.

The measure was enacted to help Hawaiians after a report from the House Committee on Territories concluded that the number of full-blooded Hawaiians had decreased from 142,650 to 22,500 since 1826.

Prince Kuhio, the territory’s delegate to Congress, pushed for the minimal blood quantum requirement of 1/32. But sugar plantation owners and ranchers argued that only full-blooded Hawaiians should be eligible for homesteading. And so a compromise was struck at 50 percent.

Just as there are divisions in the Hawaiian community over who is entitled to land, money and federal recognition, there are divisions over how best to defend Hawaiian Homes leases from the Barrett/Carroll suit.

Though Gov. Ben Cayetano and state Attorney General Earl Anzai have pledged to defend the state constitution and Native Hawaiian entitlements, OHA and three other Native Hawaiian organizations have filed motions to intervene.

Higher legal expenses

OHA is expected to allocate much more than the $500,000 it spent to defend itself before the U.S. Supreme Court in Big Island rancher Harold "Freddy" Rice’s challenge to its Hawaiian-only elections.

Meanwhile, the state Department of Hawaiian Home Lands has lent the state Council of Hawaiian Homestead Associations $600,000 for their legal defense effort. The lawyers are Honolulu attorney Bert Kobayashi and former Hawaii Supreme Court justice Robert Klein.

Maui attorney and homesteader Emmett Lee Loy and others are charging that the state has a conflict of interest in representing OHA because it owes the agency hundreds of millions of dollars in back revenues for ceded lands.

Those former crown lands are some 1.8 million acres taken by the United States after annexation and returned to Hawaii in 1959 for public benefits, including the betterment of native Hawaiian beneficiaries of the federal Hawaiian Homes Commission Act.

Lee Loy contends that the state and OHA have breached that trust by expanding those benefits to Hawaiians with less than 50 percent native blood. He was denied a motion to intervene in Carroll’s federal lawsuit challenging the constitutionality of state-financed Hawaiian entitlements. A decision on Lee Loy’s motion to intervene in a case filed by Honolulu resident Patrick Barrett is still pending.

Leimamo Kapea, a lifelong resident of Papak¯lea, agrees that a preference for homestead leases should be given to those with the most native blood, but that all Hawaiians should ultimately get "a piece of the pie."

Whether that pie will exist for much longer is up to the courts. On the hopeful side, Kapea says the crisis is drawing the fragmented homesteader community together and, as a Christian, she believes that God will take the side of Hawaiians in this battle.

At the last Papakolea community meeting, she counted about 80 people compared to the usual half dozen, with many voicing fears about losing their homes.

"You know what’s so beautiful about this pilikia (trouble)? It has pulled us together," said Kapea, who will be singing at tomorrow’s rally. "Now it’s up to the Hawaiians to rise up and be heard."

Correction: Maui lawyer and homesteader Emmett Lee Loy was denied a motion to intervene in John Carroll’s federal lawsuit challenging the constitutionality of state-financed Hawaiian entitlements. A decision on Lee Loy’s motion to intervene in a case filed by Honolulu resident Patrick Barrett is still pending. A story in the Local News section of Sunday’s Advertiser contained incomplete information because of a reporter’s error.

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