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State had a chance to resolve claims 'long ago,' Waihee says

By Rob Perez

LAST UPDATED: 04:39 p.m. HST, Feb 12, 2014

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Over the years: Kalima v. State explained »

It was supposed to be an informal, relatively inexpensive process, similar to filing a workers' compensation claim.

In the early 1990s, the state created an administrative panel to hear breach-of-trust claims from Native Hawaiian beneficiaries involving homesteading cases from August 1959 to June 1988. The claims ranged from inordinately long waits for leases to lost applications.

In theory, the administrative process would allow the beneficiaries to recover damages — if warranted — more quickly than if they had to go to court. The panel was charged with making recommendations to the Legislature, which had to approve any remedies.

If the beneficiaries weren't satisfied with the outcome, they also were provided an option to sue the state for acts that otherwise could not be pursued legally because of the passage of time.

In exchange for access to an administrative process, the beneficiaries were limited to recovering only actual damages — not punitive ones — and the claims had to be filed by a certain date, effectively limiting the claimant pool, according to former Gov. John Waihee, whose administration created the panel in conjunction with the Legislature.

More than 2,800 beneficiaries submitted more than 4,000 claims to the group by the 1995 deadline.

But before the panel could finish its reviews, the state disbanded it in 1999. Then-Gov. Ben Cayetano vetoed a bill that would have extended the life of the group by one year. That would have been the second extension for a body that originally was given five years to do its job.

By the time the panel was disbanded, it had processed only about half the claims, with the majority resulting in denials. The panel recommended payment of $18 million in damages to 471 claimants.

None of the damages were ever paid.

Asked if the state reneged on a promise by abandoning the administrative process, Waihee replied, "That's absolutely how I see it."

Reached by email, Cayetano, who served as lieutenant governor during Waihee's term and succeeded him as governor, referred the Star-Advertiser to his 1999 veto message and his 2009 memoir.

In the veto message, Cayetano said one year wouldn't be enough to finish the panel's work. He questioned the validity of that work, saying the panel misapplied criteria and the formula for damages, and also raised concerns about panel bias.

"This bill will perpetuate the same erroneous standards for another year," Cayetano wrote in his veto message. "This, in turn, will perpetuate the beneficiaries' misunderstanding that the panel's recommended awards are valid."

In his memoir, "Ben," Cayetano wrote: "Allowing claims as old as 40 years to be made against the state was bad policy."

But proponents of the law saw it as a way to "redress past breaches and remedy long-standing wrongs," as Peter L. Trask, then-chairman of the panel, told legislators in 1999.

Waihee said it's unfortunate that the panel was unable to complete its work. "If it had, this issue would have been resolved long ago, as it should have been."

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Over the years: Kalima v. State explained »

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Over the years

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EwaWarrior wrote:
Cayetano, always looking out for himself. Nothing new here.
on July 14,2013 | 04:35AM
hilocal wrote:
EwaWarrior, huh?
on July 14,2013 | 08:29AM
wiliki wrote:
Kalihi Boi but lived many years in Pearl City.
on July 14,2013 | 10:20AM
RichardCory wrote:
Who cares?
on July 14,2013 | 11:10AM
Skyler wrote:
Are you also EwaWarrior? You're answering for him.
on July 14,2013 | 12:14PM
wiliki wrote:
He has a point in that so many claims were denied by the panel. They'd get fairer treatment by the courts. The legislature should have discussed the issue from the very basics. The question of extension was too narrow and Cayetano realized that.
on July 14,2013 | 10:24AM
Mythman wrote:
When things go terribly wrong, there is always a root cause, as there is in this mess. The divergence of how to administer the native lands from standard federal Indian land doctrine, caused by the ali'i trusts, is the root cause. Waiting out the natives of the blood until they all die out is definitely part of the divergence, so there is no news in this story. There are solutions but they are not to be found amongst those who contributed to the mess by not doing their own critical analysis while waiting for the contract or check to arrive in their mail box signed by Kay S Bee E et al.......
on July 14,2013 | 04:45AM
allie wrote:
sorry..we mandans so not in anyw ay recognize your ali'i or their land claims.
on July 14,2013 | 12:16PM
nitpikker wrote:
isnt this a hhl issue? why drag the state into this mess?
on July 14,2013 | 07:13AM
Graham wrote:
What did the ex-Governor do to eliminate this problem when he was Governor?????
on July 14,2013 | 07:20AM
KeithHaugen wrote:
What a travesty, an ongoing, never-ending travesty. And those who are culpable are as numerous as those who are being denied.
on July 14,2013 | 07:23AM
hilocal wrote:
KeithHaugen, you said it. Who served on the panel that did such a poor job? Who appointed them? Why didn't some of them go to court? Where were the media in all this?
on July 14,2013 | 08:32AM
allie wrote:
agree...follow the money. Who benefits from this mess. Find that out and you will begin to understand
on July 14,2013 | 12:17PM
wiliki wrote:
But the legilature could change it all.
on July 14,2013 | 10:25AM
soundofreason wrote:
"Waihee said it's unfortunate that the panel was unable to complete its work. "If it had, this issue would have been resolved long ago, as it should have been."............ but since it didn't............too bad? I differ. Now, there should be the award AND a PENALTY for not doing it correctly.
on July 14,2013 | 07:47AM
hilocal wrote:
soundofreason, I agree. Justice is needed: better late than never.
on July 14,2013 | 08:34AM
wiliki wrote:
Nope.... too many claims were denied. If we assume that all might have qualified for a lease, then so much faulty claims does not seem likely. The panel was doing something wrong.
on July 14,2013 | 10:27AM
LanaUlulani wrote:

All the more reason to REJECT the "Native Hawaiian Roll" propaganda which will be their next "story."

We Hawaiians are better off WITHOUT American government intervention. Our kupuna were SELF reliant. They counted on themselves and each other.

Auwe to the Democrat Regime in Hawai'i who have controlled the House and Senate in Hawai'i since 1962 thus have made all of the laws that have systematically caused the genocide of the Hawaiian people! Just say NO to their "Native Hawaiian Roll." Watch them come out from the woodwork after this story!

on July 14,2013 | 07:49AM
wiliki wrote:
Republicans didn't do any better. Hawaiians elected Lingle to solve this mess. She did nothing.... Hawaiians are part of the American govt and should realize that to have a solution, then they need to be part of the solution. They have to advocate some basic principles to the agreement. The article says that Hawaiians would have preferred to argue each and every case in court. That's a non-starter and an all-or-nothing-solution.
on July 14,2013 | 10:33AM
poidragon wrote:
go read the article again and get it right this time, the reason why they wanted to argue each case, individually is that they knew from prior experience in dealing with the State government, that nothing would get done in a timely fashion, if at all! Leaving them the only option to pursue this would be to go to court!
on July 14,2013 | 04:16PM
allie wrote:
calm down lana. Theer has been no genocide out here. Nothing close to it. Stop blaming others for your laziness and problems you caused. We mandans are rebuilding our lives and are not blaming Hawaiians for claiming to be natives in competition with us for federal benefits.
on July 14,2013 | 12:19PM
holokanaka wrote:
there was stealing of a Sovereign Nation which continues to today under occupation.
on July 14,2013 | 01:26PM
allie wrote:
Nothign was stolen at all..stick to facts
on July 14,2013 | 02:07PM
holokanaka wrote:
there is no annexation treaty by which america claims ownership of these Islands allie and that is FACT. can you prove that is not a fact?
on July 14,2013 | 09:59PM
Terii_Kelii wrote:
i havent seen you for a while....
on July 14,2013 | 07:05PM
Terii_Kelii wrote:
I havent seen you for a while.....
on July 14,2013 | 07:08PM
poidragon wrote:
Now that is the worst idea, I have heard in a long time by any Hawaiian! If you want to do that, go right ahead, but do not try to drag the rest of the Hawaiian community down with you into your own stupidity! Hawaiians no longer live alone in their islands, but in fact share it with the rest of the world; as an integral part of the United States, we Hawaiians should do our best to integrate ourselves into American society as another member race, pursuing life, liberty and enjoying the freedoms guaranteed by the Constitution; instead of being just another bump in the road!
on July 14,2013 | 04:23PM
itsok wrote:
This story makes me feel sick for the native hawaiian people. This is a disgusting problem that the state must rectify as soon as possible for the sake of justice.
on July 14,2013 | 08:12AM
kolohepalu wrote:
Anybody remember on TV how Bulai'ia used to follow Waihe'e around the capitol, dragging his surfboard? He called him Why-hee because "he no ack Hawaiian", i.e. he capitalized on being native Hawaiian but did squat for them as governor. He's just a sellout, cog in the machine.
on July 14,2013 | 08:16AM
allie wrote:
True but millions are still missing from his term in office. He ripped off the state. Check out the airport scandal that was never really dealt with.
on July 15,2013 | 12:07PM
Poplm wrote:
Boo-hoo race card politics only succeeds if it creates more government. Government only serves itself. it can't become smaller Before waihee we had small government here after waihee we lost our ability to operate in the black and we never will again.
on July 14,2013 | 08:19AM
false wrote:
Unfortunately Hawaiians who make it into the system become the "color" of the system. It's the only way to survive. That's the reality in all organizations. If you go against the common synthesis of expectations, you don't last and are ignored and the dismissed. That's the reality of it all. Make noise and you will be undone. Hawaiian Homes distribution has long been who's connected to whom. Personal experience with access and advancement based on a friendship with a connected custodian. It's amazing how kindness, respect and genuine regard can play out to advantages for a Hawaiian Homes assignment without knowing where it came from. As we achieved we moved on and no longer hold any Hawaiian Homes property. It was reassigned.
on July 14,2013 | 09:14AM
wiliki wrote:
It's disturbing that so many claims were dismissed. It seems to make the point that Cayetano was concerned about the standards that the panel used to determine compensation.
on July 14,2013 | 10:20AM
Kaleo744 wrote:
Hey look where BC is living now..."high on a hill looking down"......making sure the "rail" doesn't block his view of the "skyline"
on July 14,2013 | 10:34AM
poidragon wrote:
"Waihee said it's unfortunate that the panel was unable to complete its work. "If it had, this issue would have been resolved long ago, as it should have been."" Sorry Johnny boy but your dead wrong on this one, after 5 years, the panel you empowered could not get the job done, in a timely fashion or otherwise! They dropped the ball and then Governor Cayetano picked up the ball and punted, pushing the issue down the road for another administration to consider and as we all know by now, Gov Abercrombie is not going to touch it with a 10 ft. pole! So in effect the State continues to deny any accountability on this particular issue and will let it lie fallow until all the defendants pass away, and then they will quietly sweep it under the carpet and forget about it!
on July 14,2013 | 04:13PM
53andrea wrote:
Who is paying the cost for this lawsuit and the continuing court cases? How do the lawyers get paid? Sounds like the defendants are not being fairly compensated.
on July 14,2013 | 06:32PM
tiki886 wrote:
So where was "Squid Wata" when he was Da Governor?
on July 14,2013 | 09:09PM
Darlene wrote:
but if it was for Filipinos the outcome would have been different.
on July 18,2013 | 09:25PM
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