Musings: Waiting Game

I’m always intrigued by all the microclimates on little Kauai. Yesterday, while heading north, I left cool temps and light showers at my house, ran into high clouds and a breeze along the coast at Kapaa, then hit heavy rains at Anahola and Moloaa, where the waterfalls were running for the second day in a row — a rare occurrence indeed. At Waipake, the clouds started to break, Kilauea was dry and full-on sun and Princeville was dead calm, hot and muggy.

You just never know what’s waiting around every corner. Unless, of course, you’re a Native Hawaiian seeking a homestead award or independence or a fair settlement of the so-called “ceded lands” claims. And then you can pretty much expect a repeat of the same old stall tactics that are employed to avoid dealing with the root issue: just what is the state’s responsibility to the indigenous people of the Islands?

Last month I wrote a post in which I reported that Maui District Court Judge Simone Polak had ruled the underlying issues of nationhood and land ownership in the Kahoolawe trespass case were political, not judicial.

“An action by this Court would, in turn, direct Congress and the State Legislature to recognize the Reinstated Nation of Hawaii as the native Hawaiian sovereign entity, and this Court cannot act where Congress and the State Legislature must,” the judge wrote in her order denying the motion [to dismiss].

More recently, in researching a story about how Micah Kane — now a finalist for Kamehameha Schools trustee — has managed the Hawaiian Homelands Trust, I again ran into a judge taking a similar political, not judicial, stand.

Is this case, Native Hawaiian Legal Corp. had sued Gov. Lingle and the Department of Hawaiian Home Lands for failing to request or secure sufficient public funding for the agency.

As Alan Murakami, the NHLC attorney who filed the suit, told me, ““The state has a legal mandate under the Constitution to adequately fund Hawaiian Homesteads.”

In a February 2008 Honolulu Weekly article on the lawsuit, Ian Lind noted:

The suit…points to Article XII, Section 2 of the State Constitution, passed by the 1978 Con-Con and adopted by the voters, which requires the Legislature to appropriate “sufficient sums” for development of development of home, agriculture, farm and ranch lots, loans, “rehabilitation projects” to improve “the general welfare and conditions of native Hawaiians”, and the administration and operation of DHHL.



Records of the Constitutional Convention, cited in the lawsuit, show that the intent of the amendment was to eliminate the “burden to generate revenues through the general leasing of lands” by requiring adequate legislative funding. The Con-Con’s action came after several years of protests and civil disobedience by Hawaiians angered that lands were being leased to politically connected businesses while their applications for leases languished without action, often for decades.

In January, however, a Big Island judge dismissed the Constitutional claims part of the suit, saying it was a political question that he couldn’t decide because there were no legislative standards set to determine what constitutes adequate funding. The rest of the suit, which challenges a commercial lease of homestead lands, is proceeding.

Meanwhile, the process of defunding DHHL continues full speed under Lingle and Kane. As Lind noted in his article:

It was not until 1987, after the election of Gov. John Waihee, that the Legislature first appropriated any general funds for the operations of DHHL.

General fund appropriations peaked at $4.2 million in 1992. 

Last year, the Legislature appropriated less than $1.5 million in general revenue to DHHL, while the Hawaii Tourism Authority, which is not constitutionally mandated, increased its state funding to $87 million.

As I report in my current article on Kane, he requested no general funds at all for the 2010 fiscal year. His rationale is that accepting taxpayer funds to operate programs that “benefit a single class of people” could open up the department to an equal protection lawsuit.

“We felt it was responsible to not give anyone the chance to do that.”

It seems the state should be defending DHHL against such attacks, not trying to avoid them. But of course, it’s in the state’s best interest to shirk its financial responsibility to DHHL even as the waiting list grows and more and more kanaka maoli end up homeless in their own land.

Instead of providing DHHL with adequate funding, Kane and Lingle have engaged in yet another land grab by accelerating the push to grant more commercial leases and revocable permits, which primarily benefit non-Hawaiians, under the guise of making the agency "self-sufficient.".

Some of what I wrote was cut from the printed article, so I’ll include it all here:

DHHL also receives $30 million annually under a $600 million settlement with the state over its prior uncompensated use of DHHL lands. That funding ends in four years.

Kane has maintained that the general leases he’s pursued will help make up for the loss of those monies. During his tenure, the agency approved 19 new general land leases totaling $4.6 million annually and 102 new revocable permits that generate some $2.45 million each year. Another six properties are currently being marketed, and the agency expects to formalize leases on them over the next 18 months.

For Murakami, Kane’s rationale doesn’t make sense because the numbers don’t add up.

Even at $30 million a year, it would still take 76 years to exhaust a wait list of 18,000 persons, he said. Furthermore, Kane previously testified that the agency needed about $100 million annually to make a serious dent in the waiting list. So how, he asked, can DHHL get people off the list while relying solely on general lease revenues that amount to about $12 million annually — or less than half what it had been receiving from the state? “It’s very questionable what’s going on here,” he said.

Kane lost his bid in the Legislature to have the general lease terms extended from 65 years to a maximum of 99, although the issue is expected to be taken up again in the next session.

In another section that was cut — ah, the constraints of print media — Molokai homesteader Glenn Teves noted that Kane also has de-emphasized agricultural awards, which could make Hawaiians, if not the agency, self-sufficient:

Teves is concerned about Kane’s decisions to develop DHHL’s ag lands and de-emphasize farm and pasture awards, noting that Kane did not create an agricultural department in the agency, as recommended by his predecessor, Ray Soon — also a Kam Schools trustee finalist.

“There’s a good chance the only ag left in Hawaii will be on Hawaiian Homes,” Teves said. “The rest will be speculated on. This subdivision of agricultural lands will be the demise of Hawaiian Homes’ big ag land holdings. The original intent of the Trust was rehabilitation of Hawaiians through agricultural production. You can’t ignore agrarian pursuits.”

Kane, meanwhile, has pursued state funding for infrastructure projects that primarily benefit commercial leases and general public uses, rather than solely DHHL beneficiaries.

“I just believe in a lot more inclusion,” he told me.

Unfortunately, that sort of inclusiveness tends to exclude the very people the Homestead Act was intended to benefit: kanaka maoli. In two years or less, Kane will go on to bigger and better things — if not Kam Schools, then some other plum job — without having made an appreciable dent in the homestead waiting list. He will, however, have put more non-Hawaiians on Hawaiian lands and helped to minimize the state’s financial obligation to DHHL.

"How people view my tenure here doesn't matter to me," Kane told me. "I know my heart's in the right place."

As Big Island homesteader Jerry Ma`uhili observed:

“What it always comes down to is this: we don’t have money and we don’t know when we’re going to get money so you folks just have to wait. We’ve waited half a century and we’re still waiting. Don’t make us wait another half century.”

But it seems that’s exactly what the state has in mind when it comes to all these thorny political questions about how to achieve some sort of justice for Native Hawaiians.