Long legal battle looms for beneficiaries of original Hawaiian land

Kealoha Kelekolio is one of thousands of native Hawaiians who waited decades for a piece of land managed by the State Department of Hawaiian Lands.

Hawaiian beneficiaries like Kelekolio scored a victory in 2020 when the Hawaii Supreme Court ruled that the state had failed in its duty to manage the land trust and said a process for those on the list waiting to collect state payments should go ahead.

But that hasn’t happened yet. And state attorneys and Hawaiian plaintiffs are still working through the legal issues following the High Court ruling. The hash of these issues could extend into 2022, according to recently filed court documents.

And that doesn’t include the claims process that a state court has yet to rule on.

Kealoha Kelekolio stands in front of her house in Maili. He is one of thousands of Hawaiian beneficiaries who could be owed decades for decades to secure a lease for original Hawaiian land. Cory Lum / Civil Beat / 2021

Kelekolio first asked for agricultural land in 1979. Now he’s wondering when a resolution will come in this 20-year-old affair.

“If I had been on earth I would be able to take care of myself,” he said. “But I’m 75 now, how much time do I have left?” “

It’s already a long fight

Hawaiian beneficiaries sued the state in 1999 after an administrative process failed to help those who had waited years for a home. Leona Kalima, beneficiary and lawyer, is the main plaintiff in this case.

The Supreme Court first ruled on the case in 2006, in a decision now called Kalima I. This case established that the more than 2,700 plaintiffs who were part of the class action could seek damages. to the state, the Honolulu Star-Bulletin reported. in 2006.

The Hawaii Supreme Court’s 2020 ruling, called Kalima II, was aimed at solving some of the bigger issues in the case. He reaffirmed that 2,721 people who had to wait for leases are entitled to damages due to the state’s failure to manage the land trust; that the damage began to accumulate from the time the complainants requested to be on the waiting list; and that market rental fair values ​​should be used to calculate the damages owed to each claimant.

The High Court returned the case to the First Circuit Court to settle the claims process. But now both sides say there are more issues to be addressed.

Lawyers for the beneficiaries and the state met in court on Thursday to resolve some of these differences.

“The defendants seem to want to play 20 more years of hide and seek, while (the beneficiaries) continue to die, awaiting the assistance to which they are entitled.” – Lawyer Carl Varady

Earlier this year, the state hired the Farm Benedict Sugihara law firm to assist with the case and provide legal advice to the state. The contract is worth up to $ 200,000.

Gary Yamashiroya, spokesperson for the state attorney general’s office, said in a statement that the state plans to file additional legal cases in February to address outstanding issues, including how the claims process will be. administered, how to calculate damages for eligible claimants and when exactly those damages stopped accumulating.

But hearings on these motions are not expected to begin until March, according to the minutes of a status conference in November.

In addition, both the State and the plaintiffs inform each other to verify the list of beneficiaries who could claim damages. The state argued that it had the right to obtain information that could help it determine whether someone should be disqualified from the list.

Lawyers Carl Varady and Thomas Grande, who represent the plaintiffs, accused the state of trying to challenge issues that should already have been dealt with by the High Court or other rulings.

“The defendants seem to want to play 20 more years of hide and seek, while (the beneficiaries) continue to die, awaiting the relief to which they are entitled,” Varady wrote in a status conference statement in November.

Of the 2,721 applicants who fall into what is called the waiting list subcategory, more than 400 have already died. Varady and Grande argued that damages should be calculated before the state tries to throw someone off the list.

State prosecutors argue that lawyers misread the court order.

“We respectfully disagree with your description of the impact of the decision. Your apparent suggestion that the defenses be ignored until claims are otherwise resolved is impractical and absurd, ”the state wrote in a letter earlier this year.

To complicate matters further, a lengthy verification process that state attorneys say they have yet to conduct on individual lease files to help verify information for plaintiffs.

This process is expected to end in April and has required the AG’s office to reassign deputy attorneys general to this project. Some of those MPs are taking on extra work in addition to their normal state defense duties in other cases, according to a letter from Deputy Attorney General Katie Lambert.

Our plane approaches Molokai Airport, overflying the family estates of the Department of Hawaiian Home Lands.
Legal issues stemming from a 2020 state Supreme Court ruling and rental records check process could push the case back to 2022. Cory Lum / Civil Beat / 2021

Additionally, other deputies previously assigned to the case have retired or left the department, Lambert’s letter said.

Even after the state’s legal issues are resolved and rental records verified, the court still needs to finalize a claims administration process. This means hiring a claims processor, a genealogist to help beneficiaries who previously could not prove their Native Hawaiian ancestry, and a court-appointed special master to oversee claims hearings.

Rick Eichor, a retired lawyer who has litigated class actions in Hawaii, said the major struggle in such cases usually occurs early on, when the parties being sued attempt to oppose the formation of a group in order to train the plaintiffs in dozens of individual lawsuits.

Usually, once there is a damage calculation process, it all starts to fall into place.

Eichor said this case is unique because of all the issues it has raised and the “monumental” legal struggles that have referred the case to the state Supreme Court on two occasions.

The length of the case might depend on the willingness of each side to fight.

“It depends on how much fight you have,” Eichor said. “And the state has a lot of fighting because it’s a potentially huge damage action.”

It’s a fight Kelekolio, who now lives in Maili, hopes to be resolved soon. His parents first applied in the 1950s, but decided to buy a house instead. His brother and sister who were also awaiting native land died while on the waiting list, he said.

Given the improving fiscal situation in Hawaii, he hopes the state will prioritize settlement funding in this case.

“It would definitely help if they offered a reward,” he said.


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