Beneficiary Lawsuits Drive State, Federal Accountability in Fulfilling Hawaiian Homes Commission Act
The 1921 Hawaiian Homes Commission Act created a framework to right the wrongs of the displacement of Native Hawaiians from their ancestral lands by setting aside land solely for Hawaiians. But any progress that has been made has not been due to an active and vigorous government response, but because of legal actions.
Those who track the impact of the Hawaiian Homes Commission Act say accountability has not been driven by the government, but by lawsuits from Native Hawaiian beneficiaries suing over actions like the use of land without consent or compensation. Retired attorney Alan Murakami worked nearly 40 years on Hawaiian Home Lands cases.
“The big example was Hilo Airport, which was built on Hawaiian Home Lands with no permission and no compensation and no authority from the (Hawaiian Homes) Commission,” says Murakami. “That was one of the earliest abuses of the trust that occurred.”
Murakami says the illegal transfer of land for parks, roads, schools, and more is well documented. It resulted in a 1995 settlement with the federal government known as the Hawaiian Home Lands Recovery Act, and a $600 million settlement with the state (Act 14).
“These are examples of attempts at least to try to remedy these systemic abuses of the trust that seem to have gotten tossed aside for one reason or another or for which there was not follow through,” says Murakami. “That led to deprivations of land from the land trust without compensation.”
Compensation in the form of money or a land exchange could help place the more than 28,000 Native Hawaiians on the waitlist onto homestead land.
“There is a multigenerational adverse consequence when the state fails to address the chronic long-standing waitlist issue,” says Honolulu Attorney Summer Sylva, Executive Director of the Native Hawaiian Legal Corporation.
Sylva says one of the biggest obstacles is the state’s failure to sufficiently fund the Department of Hawaiian Home Lands despite a constitutional mandate to do so.
“That was the basis for bringing the lawsuit in the first place back in 2007, and it’s the basis for us continuing to appeal until that very high-level fiduciary duty is satisfied,” says Sylva.
In 2012, the Hawaiʻi Supreme Court ruled in favor of Native Hawaiian beneficiaries represented by the legal corporation in Nelson v. the State of Hawaiʻi. The court found the state is required to provide DHHL with sufficient funding, but did not specify how much that would be.
DHHL Deputy Director Tyler Gomes says sufficient funding could be a gamechanger for the agency.
“It just costs a lot of money to develop raw land,” says Gomes.
He says development costs for a homestead lot in an area like Kapolei, which is central and already located near infrastructure, are about $150,000 per lot.
“When you get to areas, for example, in Kula on Maui, which is not quite near infrastructure, it goes up north of $150,000,” says Gomes. “And so if you think about the fact that we've got 28,000 Native Hawaiians waiting for awards, even if you take the most conservative estimate of $150,000 lot just for the infrastructure, that's going to cost the department somewhere between $4 and $6.5 billion dollars.”
DHHL received record-level funding from the state last year, but Gomes says it's $200 million short of what the agency needs to address the growing waitlist.
Until then, productivity will be capped, further delaying the promise of the Hawaiian Homes Commission Act.