Professor Troy Andrade chronicles the distressing hundred-year history of the Hawaiian Homes Commission Act in his article, Belated Justice: The Failures and Promise of the Hawaiian Homes Commission Act, published in the American Indian Law Review. This history is marked by racism, the indulging of non-Native business interests, and political retaliation. Professor Andrade describes it as “the journey of a people forced to demand, decade after decade, what they were entitled to by law.”
Prior to European contact, Native Hawaiian social and political structures were based on chiefdoms with communal land ownership and management. European contact, the Western-backed establishment of the Kingdom of Hawai’i, and American colonization disrupted traditional land systems and displaced Native Hawaiians from their homelands. The United States has acknowledged that the annexation of Hawai’i as a territory included the transfer of lands from Native Hawaiians without consent or compensation.
The Hawaiian Homes Commission Act was enacted in 1921 in an effort to “rehabilitate” now impoverished Native Hawaiians. It placed over 200,000 acres of land into trust for Native Hawaiians with a blood quantum of fifty percent or more. With Hawaii’s statehood in 1959, administrative responsibilities under the Act were transferred from the federal government to the state. The federal government maintains some oversight authority.
Via administrative application, Native Hawaiians with the requisite blood quantum apply for a ninety-nine-year homestead lease within the trust lands. As of 2022, 9,967 leases are in place and 28,971 Native Hawaiians have 46,307 pending lease applications. Only a fraction of the trust lands available are subject to a lease. The administration of the Act has been marked by mismanagement, litigation, and contentious political conflicts. All the while, most of the beneficiaries of the trust lands have received no benefit from the trust corpus.
Although only 16% of the Act’s trust lands are located on Maui, the recent wildfires devastating the island puts the issue of land management across the state in further perspective. Investigations reveal that unmaintained grasslands contributed to the rapid spread of the fire, the deadliest in the US in over one hundred years. Ownership of the originating lands rests primarily with three parties: the state, the Bishop educational trust, and a local developer. The unmaintained grasses were a well-known problem exacerbated by lack of government mitigation.
In addition to the tragedy of reported deaths of 100 people, thousands of people have been displaced. Prior to the fires, thousands of Hawaiians were experiencing housing insecurity with Native Hawaiians being overrepresented vis-à-vis other groups. The state ranks first in the country for housing costs and ranks fifth in its rate of homelessness. and first in housing costs. Unsurprisingly, this is largely driven by out-of-state and investment purchases of a limited housing supply.
The wildfires are putting even more stress on an already unstable housing system. And many are looking at the thousands of charred acres as a prime real estate investment opportunity. The Governor’s office issued an emergency proclamation prohibiting unsolicited offers to purchase of lands in the affected zip codes. This has not stopped offers from coming in.
In his article, Professor Andrade proffers a series of recommendations for the just administration of the Act. These include (1) mandatory education regarding the Act’s requirements and the trust responsibility for all stakeholders including government employees and state and federal lawmakers; (2) adequate funding of the Hawaiian Home Lands program by the state and federal governments; (3) active federal involvement its oversight responsibilities; (4) legislative action to modify the high blood quantum eligibility threshold; and (5) active consultation with Native Hawaiians. Such recommendations would provide a robust foundation for supporting Native Hawaiian access and stewardship of their homelands even outside the scope of the Act.
Even amongst Indigenous law teaching and scholarship, I’m disappointed to say my own included, Native Hawaiian law is often relegated to a single slide or footnote. The laws are different, yes, but the colonization and racism that underlies them are all too familiar. Righting the wrongs of Hawaiian land management requires a commitment to shine “the light of truth upon them.” Thanks to the research of Professor Andrade, I can make this commitment and speak to how the failings of the Hawaiian Homes Commission Act is not merely a Native Hawaiian or Indigenous peoples issue, but rather a human rights one.
