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Abstract
Excerpted From: Troy J.H. Andrade, Belated Justice: The Failures and Promise of the Hawaiian Homes Commission Act, 46 American Indian Law Review 1 (2022) (301 Footnotes) (Full Document)
In the Hawaiian enclave of Waimnalo, Raymond Pae Galdeira, a native son of that community, established a government funded program to keep teens off the street and out of trouble. This program--the Waimnalo Teen Project-- provided respite and safe activities for the predominantly indigenous teens. One night, Galdeira took some of his teens “home” to a collection of makeshift sheds at Waimnalo Beach Park. Because a storm sent strong gusts of wind and consistent sprays of ocean water toward the tent city, Galdeira and the teens ran to help hold down a family home on the cusp of going airborne and flying into the ocean. Galdeira saw his students--these children--and their families struggling to live, not by choice, on the beach. He saw these Knaka Maoli families struggling to survive in their own homelands and questioned how this could happen.
Galdeira found an answer from Legal Aid volunteer Elizabeth Tuttle, who had researched the state and federal governments' consistent failures to follow through with promises made to native Hawaiians under the 1921 Hawaiian Homes Commission Act (“HHCA”). The HHCA--a federal law incorporated into state law--set aside approximately 203,500 acres of Kingdom of Hawai'i Crown and Government Lands for those of at least fifty percent Native Hawaiian blood. The aim of the HHCA was to provide a vehicle to “rehabilitate” the dying Native Hawaiian population through the use of homesteads. The irony of the teens' situation--Knaka Maoli living on the beach dodging a severe rainstorm while hundreds of thousands of acres of land lay idle with no tenants--struck a nerve.
Galdeira needed to take action. He rallied support from the Waimnalo community and invited people from across Hawai'i to learn and discuss the HHCA and the state agency that administered the Hawaiian Home Lands program, the state Department of Hawaiian Home Lands (“DHHL”). Those at the gathering complained of the long waiting list for a lease award and the lack of funding for the agency. They discussed failed award and leasing policies. They shared serious concerns regarding nepotism and favoritism within the DHHL. Unbeknownst to them at the time, this gathering--calling themselves, simply, The Hawaiians--began a political reawakening of Native Hawaiian consciousness of historical injustices against Hawai'i's Native people. The Hawaiians' first objective was to discuss their grievances regarding the Hawaiian Home Lands program with Hawai'i's Governor John A. Burns.
On October 13, 1970, Galdeira advised Governor Burns that, unless he agreed to a meeting, The Hawaiians would hold a rally at the State Capitol during the festivities of Aloha Week, the busiest tourist season, to “demonstrate that we Hawaiians are united in our drive to get more land through the [HHCA] and to help encourage our people to participate and strengthen our cause.” Galdeira continued to reach out to the Governor's office, yet his calls were met with silence. Galdeira, thus, led a rally at the State Capitol of Hawaiians and non-Hawaiians from across Hawai'i to challenge the Governor's inaction on the Hawaiian Home Lands program and to demand a meeting. Governor Burns--clearly embarrassed by the rally at the heavily media covered event--finally granted The Hawaiians a meeting, but not before confronting Galdeira. Burns yelled to Galdeira, “What the fock you doing?” Galdeira at first showed deference to the governor, but then shouted back, “Hey, fock you man, because we trying to reach you and you were giving us this kind of run around.” Burns, clearly enraged, responded, “Bullshit[.]” For about five minutes the governor and young kanaka from Waimnalo argued. Finally, Burns backed down and said, “Okay, I want to meet with you at two o'clock.”
True to his word, Governor Burns met with Galdeira and the demonstrators, answered their questions, and assured the group that his administration would take concrete steps to address the failing Hawaiian Home Lands program. Following the initial Aloha Week confrontation, the Governor continued to have open discussions with Galdeira and The Hawaiians about the state of DHHL and the Hawaiian Home Lands program. These continued discussions led to concrete action, including the appointment of one of The Hawaiians to lead DHHL. Following the 1970 Aloha Week protest, the small victories of Galdeira and other HHCA beneficiaries barely scratched the surface of the festering problems that plagued and continue to haunt the Hawaiian Home Lands program.
The year 2021 marks a century since the passage of the HHCA and over fifty years since The Hawaiians' Aloha Week protest against the failures of the DHHL. The 1921 HHCA was, from its noble inception, an attempt to rehabilitate a dwindling population of Hawaiians. Yet undergirding the 100-year-old law is an origin story colored by racism, rugged American individualism, and greed. Thus, while the humanitarian endeavor to rehabilitate Native Hawaiians was laudable, this effort, as discussed in Part II of this Article, was simply a façade to suppress Native Hawaiian claims to land and ensure the profitability of a handful of business interests in Hawai'i. Indeed, the land provided within the corpus of the HHCA was unsuitable for agrarian pursuits with little, if any, access to necessary infrastructure and resources like water; they were lands that, according to one legislator, “a goat couldn't live on.” In addition, and perhaps more insidious and damaging, the HHCA codified a divisive racial scheme that fractured Hawaiians by imposing a new identity based on an arbitrary fifty percent blood quantum, which ensured that stolen Kingdom lands would eventually return to the United States. The HHCA reflected the concessions and negotiations of Hawaiian leaders and the business elite in territorial Hawai'i.
The injustices, however, did not end with the creation of the HHCA. For nearly all of its existence, the United States and the State of Hawai'i shirked their responsibilities and obligations under the HHCA to the beneficiaries of the trust. Part III of this Article specifically analyzes the government's failure to address decades-long breaches of trust related to addressing the inordinately long waiting period to obtain a lease and the abysmal record of adequately funding DHHL.
Unsurprisingly, this story of injustice is truly a story that captures the journey of a people forced to demand, decade after decade, what they were entitled to by law. Pae Galdeira's interaction with the Burns Administration fifty years after the HHCA's passage was an interaction that repeated itself with each successive administration and generation of Knaka Maoli. This injustice continued as the State of Hawai'i and the federal government stymied the potential of the Hawaiian Home Lands program and left the promises of justice unfulfilled.
[. . .]
At every step along the 100-year journey of the Hawaiian Homes Commission Act, Hawaiians have been fighting for what they are already entitled to under the law. Generation after generation faced new legal challenges and new political realities. From the beginning, a Congress heavily influenced by white sugar and ranching interests in Hawai'i, created a law that undermined Hawaiian sovereignty and rights in the Crown and Government lands of the Kingdom. Simultaneously, Congress limited who could benefit from these lands by employing racist blood quantum requirements. Although not perfect, the HHCA provided a minimum level of protection for some Hawaiians. Yet, as of this writing, while nearly 10,000 individuals have been lucky enough to obtain a homestead, over 28,000 more wait for the state and federal government to find the political will to truly implement the rehabilitative purposes of the law. If the pace of providing 10,000 homestead leases in the last 100 years continues, it will be an unacceptable 280 years before the current list is cleared.
The HHCA's centennial is an important opportunity to recalibrate the relationship between the federal government, the State of Hawai'i, and native Hawaiian beneficiaries. While not exhaustive, the following list of proposals may help to frame the next century of the HHCA in a way that will provide the justice that Khi envisioned by returning 'ina to Hawaiians and supporting Hawaiian self-determination.
First, and as a foundation, all stakeholders should be educated about the HHCA, its origins, and the government's trust responsibilities as set forth in the Hawai'i Constitution. For example, in much the same way that state law requires members of certain government boards and commissions to receive training in Native Hawaiian legal issues, state and federal lawmakers must also receive training on issues relating to the HHCA.
Second, the federal and state governments must provide the necessary funding and support to ensure the success of the Hawaiian Home Lands program. DHHL is in need of long-term funding solutions to, among other things, support the department's operations, to pay for necessary infrastructure to develop more lots, and to provide loans for beneficiaries. Relatedly, lawmakers must also address the current funding structure for DHHL that relies too heavily on general leasing. In addition, although the Hawai'i Constitution requires the state legislature to provide sufficient sums to support the program, there is nothing precluding other state agencies from supporting the homesteading goal. The shortcomings of the State in its role as trustee can be remedied if the governor required other state agencies to fully cooperate with ensuring the success of the DHHL in implementing the HHCA.
Third, the federal government should continue to take a more active role in holding the State to account for its trust failures. In 2016, the U.S. Department of the Interior implemented two additional regulations pertaining to the HHCA that implied that the federal government would be actively involved in ensuring that the trust is properly carried out. These administrative rules clarified federal involvement in the Hawaiian Home Lands program and left interesting avenues available for the federal government to interject to either advance or stymie rehabilitation efforts. When combined with President Joseph R. Biden, Jr.'s recent executive order advancing equity, justice, and opportunity for native Hawaiians, among others, the federal government seems primed to intervene to assist beneficiaries.
Fourth, state and federal lawmakers must work together to update the HHCA to conform it to the needs and reality of the twenty first century. These updates could include, but are not limited to, eliminating or modifying the blood quantum requirement for applicants and successors, and upgrading DHHL's information management and record system. Recently, In 2021, U.S. Congressman Kaiali'i Kahele introduced House Joint Resolution 55, titled the Prince Jonah Khi Kalaniana'ole Protecting Family Legacies Act, which would provide congressional consent for the state's 2017 amendments to the HHCA to lower the blood quantum requirement of successors. With Hawai'i's U.S. Senator Brian Schatz at the helm of the Senate Indian Affairs Committee, the time seems ripe to get federal support for updates to the HHCA.
Finally, and most importantly, solutions to the woes of the HHCA should include consultation with native Hawaiian beneficiaries. The beneficiaries have held the government accountable for years--in the state Capitol during Aloha Week, on the slopes of Parker Ranch, and in courtrooms. Countless reports and successful lawsuits demonstrate the important role that beneficiaries have played and will continue to play in the success of the Hawaiian Home Lands program. To this end, there must be greater beneficiary involvement in the implementation of the law as the HHCA provides a clear vehicle for Hawaiian self-determination.
Now is the time to reimagine what the next century will look like for the HHCA. Now is the time for providing true justice.
Associate Professor of Law and Director of the Ulu Lehua Scholars Program, William S. Richardson School of Law, University of Hawai'i at Mnoa. Ph.D. 2016, University of Hawai'i at Mnoa. J.D. 2011, William S. Richardson School of Law, University of Hawai'i at Mnoa.
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