The state's broken promise
to native Hawaiians

For the first time in 20 years, governor seeks
not to fund DHHL's administrative budget

By Richard Nelson III, Sheri Adams, and Alan T. Murakami

In 1978, the delegates at the Constitutional Convention recognized that the State of Hawai'i had failed to live up to its promise to the federal government at statehood to faithfully administer the spirit of the Hawaiian Homes Commission Act. They recognized that the exclusive reliance at the time on general leasing Hawaiian home trust lands to pay for its programs and operations was insufficient. The convention's Hawaiian Affairs committee concluded:

"DHHL cannot afford to lease more acreage to the general public for the purposes of generating income to accommodate a minimal employee level. It is clear to your Committee that the intent and spirit of the Act would be better served by releasing the department of its present burden to generate revenues through the general leasing of its lands.Your Committee decided that through legislative funding this dilemma would be resolved. In that manner more lands could be made available to the intended beneficiaries." (Emphases added.)

Accordingly, they adopted a provision that required the state to provide "sufficient sums" to pay for all Hawaiian homestead costs, including the "administrative and operating budget" of the Department of Hawaiian Home Lands (DHHL). The delegates proposed to make it "expressly clear that the legislature is to fund DHHL" in order to rectify chronic underfunding of the program since its inception in 1921. In fact, the committee report stated that the constitutional amendment would "no longer allow the legislature discretion in this area." Hawai'i voters ratified this constitutional amendment.

More than three decades later, the promise of the constitutional delegates remains unfulfilled. The DHHL residential, farm and ranch wait list has grown four-fold. More than 1,700 applicants have waited more than three decades for a homestead. The state has not issued a new agricultural homestead lease since 1986. Many die each year waiting.

Now, after a decade of declining appropriations to DHHL, Governor Lingle proposes to make a bad situation even worse. She has proposed to provide no general funds to DHHL for its operating and administrative expenses this coming fiscal year and next. Instead, she is proposing to do exactly what the 1978 Constitutional Convention delegates intended to stop 30 years ago – compel DHHL to find money by leasing its homestead lands.

Given its trust responsibility to beneficiaries, Governor Lingle's plan to zero out DHHL general funding for its administrative and operating budget is not only illegal; it makes a mockery of the state's 1978 promise to native Hawaiian beneficiaries.

• No other department within the executive branch is responsible for administering a land trust exclusively on behalf of native Hawaiian beneficiaries;

• No other department within the executive branch has had 100 percent of its general fund appropriation eliminated for the next fiscal biennium;

• No other department within the executive branch must generate 100 percent funding for its own administrative and program budgets;

• There is no constitutional mandate to fund any other department within the executive branch, yet DHHL is the sole department targeted for elimination of general funding;

• DHHL administers a land base one-sixth the size of the Department of Land and Natural Resources; DLNR's 2009 budget is $111,965,479, consisting of state general funds, special funds, capital improvement funds and federal funds. DLNR has never been required to generate 100 percent of its administrative and
program costs.

Contrary to Lingle administration characterizations, those demanding that the state fulfill its constitutional obligation are not attempting to undermine Hawaiian self-determination or self-sufficiency. Remember, the governor currently appoints all Hawaiian Homes commissioners, including the commission chair. Rather, it is a matter of basic fairness to native Hawaiian beneficiaries, whom the State of Hawai'i has for too long relegated to Cinderella stepchild status. A promise is a promise. It is also simply a matter of enforcing the supreme law of Hawai'i, which the governor and all legislators have taken an oath to uphold.

Richard Nelson III and Sheri Adams are among the five Native Hawaiians who, with the help of the Native Hawaiian Legal Corp., have sued the state, the Hawaiian Homes Commission and the Department of Hawaiian Home Lands for breaches of trust and violating Article 12, section 1 of the Hawai'i Constitution, which ensures that DHHL receive sufficient state funding for administration and other purposes. Alan Murakami, the litigation director at Native Hawaiian Legal Corp., specializes in native rights.