The Hawaii Supreme Court has unanimously ruled that more than 2,700 Native Hawaiians who spent years languishing on the wait list for homestead land are entitled to compensation for the state’s failure to properly manage the land trust.

The ruling Tuesday came more than two decades after a group of beneficiaries of the century-old Hawaiian home lands trust sued, alleging the state had breached its trust obligations between 1959 and 1988 and contended they were entitled to damages.

“In 1990, Senator Michael Crozier observed, ‘[b]oth the length of the list and the length of the wait make the vast majority of Native Hawaiian people despair of ever receiving an award of land,'” the Supreme Court wrote in its ruling. “In the thirty years since Senator Crozier’s statement, the State of Hawaii has done little to address the ever-lengthening waitlist for lease awards of Hawaiian home lands.”

OHA Candidate Leone Kalima speaks during forum held at the Windward Community College campus.
Leona Kalima, a longtime advocate for Native Hawaiians and a lead plaintiff in the Hawaii Supreme Court case, lamented fellow plaintiffs who passed away “waiting for justice and it never came for them.” Cory Lum/Civil Beat/2018

A spokesman for the Hawaii attorney general said the state is reviewing the ruling and declined to comment further.

The Hawaiian Homes Commission Act was established by Congress in 1920 to provide land to Native Hawaiians. The state took on management of the trust after statehood in 1959 but for decades struggled to administer it.

Former Gov. John Waihee set up an administrative process in the early 1990s to help compensate people who lost money while waiting for homesteads, but beneficiaries ended up suing in 1999 when that process was unsuccessful.

The case has dragged on for more than two decades, and over the years nearly 400 of the plaintiffs have died. Leona Kalima, the named plaintiff, remembers receiving calls from some of the kupuna asking, “How’s our case?” Sometimes the calls would stop and she’d realize they died waiting for a resolution.

Kalima, 67, choked up as she described her own recent health scare.

“I couldn’t see leaving earth without finishing,” she said. “I know how hard it is for our kupuna who have passed away that they (were) waiting for justice and it never came for them. Hopefully we can stand good by them.”

The ruling comes two years after another Hawaii Supreme Court decision, known as the Nelson case, disappointed homestead beneficiaries who had hoped to prove that the Legislature was underfunding the Department of Hawaiian Home Lands. The court sided with the state and the Legislature wasn’t forced to increase funding.

Cedric Duarte, a spokesman for the Hawaiian Home Lands, declined to comment on the lawsuit but said Gov. David Ige’s administration and the Legislature have provided record levels of funding for homestead developments in recent years.

The department is on track to prepare at least 1,300 homestead lots over the next five years — “13% of what was completed over nearly 100 years,” he said in an email.

But even record levels of funding are far less than what the department needs to meet the demand, particularly for housing on Oahu.

Kalima says that she hopes this ruling is a wakeup call that prompts the state to provide more money to the homestead agency.

“Hopefully the state will step up to their obligation to DHHL because that was one of the foundations of statehood,” she said. “The state has treated us more like stepchildren or wards. If we can reverse that maybe we can reverse statehood.”

Carl Varady, attorney for the plaintiffs, said the ruling “establishes without any question the program has been miserably administered and DHHL has routinely breached its trust obligation.”

“The state is finally being required to live up to its empty promises,” he said. “From 1991 until now the claimants have been trying to get justice. It was delivered in capital letters yesterday.”

Waihee said the original administrative process in the early 1990s was intended to avoid litigation.

He said his father was among the trust beneficiaries who never got the land he waited for. The homestead agency told him he couldn’t own property if he wanted to receive ranch land so Waihee’s father sold their house. He died before the ranch was awarded to their family.

Waihee says the ruling this week is “significant because it’s the real first remedy for people who had been damaged because of the way the Hawaiian homes has not dealt effectively with their applicants.”

It’s still unclear how much money each plaintiff will receive. The state Supreme Court ruled that the lower court was correct to use fair market rental value to calculate the individual damages of the plaintiffs.

There are 2,721 claimants and although hundreds have died, their claims survive and are held by their estates. A lower court judge is next supposed to determine what the damages are based on a recommendation from a special master.

The state argued that individual beneficiaries must prove they are entitled to damages such as by showing they rented alternate land and didn’t turn down a homestead offer. The court rejected that argument.

“Establishing this proof will be prohibitively difficult for beneficiaries, who are not at fault for the time that has passed or the State’s failure to administer the Trust,” the state Supreme Court found. “Instead, the State must shoulder this burden by proving to the Special Master that individual beneficiaries’ damage awards should be reduced after damages are calculated by the (fair market rent value) damages model.”

Varady hopes the compensation is determined quickly.

“We’re 30 years down the line and we’ve waited a generation,” he said. “The state has failed miserably and has just compounded the harm by fighting this case.”

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