Generous wording of a 1979 Hawaii constitutional amendment promising that taxpayers would foot the bill for building homes, farms and ranches for native Hawaiians is now haunting the state. A three-judge panel of the state Intermediate Court of Appeals has ordered the state to pay what could mean tens of millions of dollars that it cannot possibly afford. The state should appeal the ruling to the Hawaii Supreme Court, where it should be overturned in recognition of financial reality.
The generosity originated with the 1978 Constitutional Convention, which endorsed an amendment to change a law that had said the state "may, from time to time," add money to the Hawaiian Home Lands program, to read that it "shall make sufficient" money available.
To convention delegate Frenchy DeSoto, that meant paying for operation and administration of the program, a reasonable and modest interpretation by the future Office of Hawaiian Affairs chairwoman. She estimated at the convention that the cost would amount to $1.3 million to $1.6 million a year. Delegate Finley Sutton, however, interpreted it as requiring the state to pay for developing house lots for applicants on the waiting list and provide loans to lessees to build their homes, in addition to operating the program. That was an exorbitant interpretation.
The state routinely pays to operate the Department of Hawaiian Home Lands, since it is a state agency. Although the department was delinquent in awarding only 5,800 leases to native Hawaiians in its first 80 years, it was highly active in the administration of Gov. Linda Lingle, granting money from non-government revenues to place 2,450 native Hawaiians into homes and launching home development in Kapolei.
In the lawsuit, the Native Hawaiian Legal Corp. maintained that the state has an obligation to pay for development of residential, farm and ranch lots for the 23,000 native Hawaiians now on the waiting list. Lawyers have said former department director Micah Kane has estimated the cost at $100 million.
The appeals court overturned a circuit judge’s decisions that the funding was a "political question" that should not be decided by the courts. Arguing that the amendment is not a political question to be answered by a flexible state Legislature, the plaintiffs cited the 1962 Baker v. Carr landmark ruling by the U.S. Supreme Court that invalidated a Tennessee legislative reapportionment because it didn’t consider losses of population in some counties and increases in others.
The comparison is twisted: Providing proper legislative representation to heads counted in Tennessee is different than doling out money in Hawaii without legislative approval. Yes, the appalling decades of delay by DHHL hurt native Hawaiian homesteaders, and the state should continue the home lands pace set by the Lingle administration. But the obligation shall rightly be funded by legislative allocation within the context of the state budget, not via judicial order based on a flawed premise.