Friday, October 1, 1999

State of Hawaii

Three sue state
over homeland process

By Debra Barayuga


Leona Kalima waited 20 years to get onto the waiting list for Hawaiian homestead land on Kauai, and she's still waiting.

So when the Legislature in 1991 gave native Hawaiians the right to sue the state for breaches of the Hawaiian Home Lands Trust, Kalima was among 2,752 who submitted over 4,000 claims by an August 1995 deadline to a panel established to determine compensation owed.

The Legislature has since acted on only two of those claims, leaving more than 2,700 claimants who will lose their right to compensation.

Yesterday, Kalima and two other beneficiaries, Dianne Boner and Joseph Ching, filed suit in U.S. District Court to protect their rights to sue for breaches of trust.

The three represent different stages of the claims process, which none completed either because the panel hadn't issued an opinion or the Legislature failed to act. They contend the state has created a "sham" process designed to prevent them from receiving compensation or lands.

To sue the state, claimants had to file an intent to sue by today, and file suit in Circuit Court by Dec. 30. Legislative action, however, is required for claimants to sue.

Tom Grande, Kalima's attorney, called the process "ludicrous," saying it created false hope for native Hawaiians who have waited decades for entitlements.

"They have to meet a statutory deadline to sue even though there has been no legislative action on their claims, and the Legislature will not even meet again until next year," he said.

If the plaintiffs don't prevail in federal court, they will have to file suit by Dec. 30 to challenge legislative action that hasn't been taken yet, Grande said.

A bill in the 1999 Legislature that would have extended the deadline for the panel to continue reviewing claims and presenting them to the Legislature for action was vetoed by the governor.

By the 1999 legislative session, the panel had issued advisory opinions on 47 percent of a total 4,700 claims filed -- totaling an estimated $60 million in damages. But the Legislature did not act on the recommendations.

Offering beneficiaries the right to sue and then taking it away violates their rights to due process and equal protection, said Carl Varady, attorney for Boner.

The beneficiaries are not asking the court to decide their claims, Varady said, but to leave the door open for them to sue for breaches of trust. "Let us do what you promised, instead of pulling the rug out from the beneficiaries and putting them back in a line that has no end."

There are currently about 19,000 names on the waiting list for homestead or agricultural lots. Only 6,000 beneficiaries have been awarded lots in the 70 years since Congress passed the Hawaiian Homelands Act -- giving native Hawaiians the right to homestead or farm lots.

Boner has waited 24 years for a shot at homestead land. When she first got on the list, her husband, a journeyman electrician, could have built their home. Today she's divorced, and even if offered a lot, she wouldn't be able to afford it, she said.

The panel awarded Boner damages of $57,000, but since the Legislature did not act on the recommendation, she won't see any of it.

Ching applied for a lot in 1972, but his name was deferred because he owned property at the time. He applied again in 1985 and finally got a homestead lot in 1993. The Legislature last session approved the panel's $72,000 award for damages to Ching, but to this day he hasn't seen a cent.

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