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The Honolulu Advertiser
Posted on: Thursday, November 5, 2009

Hawaii took too long to award leases to Native Hawaiians, court rules


By Gordon Y.K. Pang
Advertiser Staff Writer

Hawaii news photo - The Honolulu Advertiser

Kalima

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Hawaii news photo - The Honolulu Advertiser

Coreiro-Vierra

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Yesterday's court ruling that the state must pay damages to Native Hawaiians who were denied access to land was the first official confirmation that thousands of families were harmed by a decades-long delay in distributing homesteads.

State First Circuit Judge Eden Elizabeth Hifo ruled the state Department of Hawaiian Home Lands is required to place Native Hawaiians on lands set aside for them by the federal government in a prompt and efficient manner. Hifo's decision means the state could owe unspecified millions in damages to more than 2,700 Hawaiians who have been waiting for land.

"I'm very happy that it's come to this point after waiting and waiting and waiting and being broken-hearted so many times," said Wehilani Ching, who first applied for a Hawaiian Home Lands lease 47 years ago.

About 19,000 people with 50 percent or more Hawaiian blood are waiting to be placed on homesteads, which were promised to them as part of the Hawaiian Homes Act of 1920 passed by the U.S. Congress. When Hawaii became a state in 1959, it took over the obligation of distributing the land.

"The court concluded people should have been placed on the land quicker than they were," said Thomas Grande, one of the attorneys who brought the class-action lawsuit 10 years ago.

"The court found that some (plaintiffs) waited 25 years or more to be awarded a homestead and that a reasonable time to get a homestead would only be several years."

The 2,700 Native Hawaiians represented in the class action are those who went before a state-appointed review panel created in 1991 to resolve the claims for the period between Aug. 21, 1959, and June 30, 1988. That panel ran out of money before nearly all the claims were dealt with. The Kalima v. DHHL lawsuit was filed in 1999 but was stalled until the Hawai'i Supreme Court ruled in 2006 that the beneficiaries had standing to sue.

In her ruling, Hifo pointed to several specific examples of the breach of trust:

• The state failed to return 29,000 acres of land that had been taken out of the trust for government entities and private individuals.

• DHHL failed to maintain financial records for a number of years, making it impossible for the agency to issue bonds as a means of financing housing projects until the mid-1980s.

• The state should have conducted a land inventory when it took over trust responsibilities from the federal government in the early 1960s.

Attorney General Mark Bennett's office issued a statement late yesterday that said, "The state is reviewing the decision to determine appropriate next steps." Plaintiff attorneys said they are anticipating an appeal by the state.

SPECIAL MASTER

During the trial, state attorneys argued that DHHL did what it could to offer leases with the resources the agency was given and could not be found liable for not providing more leases more promptly.

The state also argued that it could not be held responsible for how the trust was administered by the federal government before statehood.

Hifo's decision calls for monetary damages based on a beneficiary's inability to obtain a lease earlier.

The decision calls for a special master to assist the judge by evaluating the claims of the beneficiaries and determining a formula for compensating them.

"We are likely to seek a class certification on damages, but with 2,721 individuals, if a damages class is not certified, the only option is to have 2,721 trials," Grande said. "The easiest way to do it is to establish a formula to measure the loss that people suffered because they weren't awarded a homestead."

Carl Varady, another plaintiff attorney, said expediency is important since the average age of a beneficiary in the lawsuit is over 60 and has been waiting for a homestead for more than two decades.

"You're looking at many people who spent the most productive years of their lives waiting for a homestead award," Varady said.

"All of our claimants' lives would have been much, much different had they been placed on the land promptly, at the time they had applied, and had they had the benefits of homesteading, during their productive years," Grande said.

WAITING AND WAITING

Among the beneficiaries who would be eligible for damages is Irene Cordeiro-Vierra, 82, of Lš'ie, who said being awarded a homestead years ago would have made an enormous difference in her life. By the time she was awarded a lease, she was retired and not in a position to afford a mortgage, she said.

Cordeiro-Vierra said she left her home in Honolulu to live on the beach at her brother's property in Puako from the mid-1980s to the early 1990s while working two jobs in the Kona-Kohala region. Cordeiro-Vierra said she applied for a lease in Kawaihae in 1984 but lost out in 1986 to about 40 other applicants ahead of her on the list.

Cordeiro-Vierra said she was ready to agree to take other available properties at that point but was told by a DHHL employee to wait for an upcoming project that would better suit her needs.

She waited until 1988 for such a project to come about but it did not. "Until this day, I don't have a Hawaiian home," she said. She gets calls and letters now from DHHL asking if she'd like to apply. "I'm not capable anymore," she said. "It has been very frustrating."

Leona Kalima, the lead named plaintiff, said there have been hang-ups in her application because she was adopted and DHHL could not pull out the documents that would eventually show her to be more than 50 percent Hawaiian.

Had she been able to obtain a lease, she said, she would not have had to pay rent for her then-growing family of six.

"I probably would've been able to send my children to college," she said.

The plaintiff attorneys made it clear that their lawsuit was geared at the DHHL program from statehood through 1989. In the 1990s, lands were restored to the trust and a $600 million was given to the trust as compensation for lands taken away for general use.

From 1959 to 1988, DHHL built an average of 71 homesteads a year. It's now building 481 homesteads a year, Grande said.

"By accepting the trust responsibility by which Hawai'i became a state they were obligated to fulfill their trust duties sooner," Varady said. "They did not do so, and the judge found that those delays now are compensable.

"Today the homes program is much better funded and much better managed than it was in those days. It was really hemajang (mixed-up). Everybody got a different story, everybody got a different process. People who applied earliest were getting awards latest."