“Justice demands ending this case”: Kalima v. Hawaiʻi

Rysen Hirata-Epstein

While Hawaiʻi’s rich culture and vibrant geography make it a popular tourist destination, the state’s increase in visitors and new residents have presented issues of cost of living for those indigenous to the land. Most pressing is that of Native Hawaiians moving to the mainland at a rate of nearly 15 thousand people a year as they continue to be priced out of their homes. [1] With the average cost of living in the islands hovering at around $125-150,000 in contrast to a median family income of nearly $85,000 in 2022, these economic strains push Native Hawaiians off of land they have called home for generations. [2] [3] This is despite the Hawaiian Homes Commission Act, an idea born in 1893 and enacted into legislation in 1920, which was introduced to help “enable native Hawaiians to return to their lands to fully support self-sufficiency.” The act would aim to remedy American colonization by aiding in the “self-determination of native Hawaiians [... through] and the preservation of the values, traditions, and culture.” [4] Though meant to provide such as getting land or a house under the Hawaiian Homes Commission Act (HHCA), the wait remains extremely long. With over 46,000 applications at an average age of 59, the unrealistic expectation of all applicants being helped has greatly disadvantaged many Native Hawaiians. [5] These issues, thought have existed since the creation of the program. The Hawaiʻi legislature passed a law in 1988 to sue for any breach of trust regarding the HHCA that happened even as far back as Hawaiʻi’s statehood in 1959. The law then came into effect with the appointment of a Native Hawaiian Claims Panel three years later, managing to review only 53% of claims, and was later dissolved in 1999 due to political turmoil and a Governor’s veto. [6] [7]

The panel’s dissolution inspired a class action suit representing 2,497 members, Kalima, et al. v. State of Hawaiʻi, comprised of the 47% remaining claims, the initial plaintiffs sued over a breach of trust – the failure of legal duties – against the state. It would take 24 years of litigation for them to find justice, finally settling in October 2023. The suit sought to hold the panel liable for four claims, those being  “(1) mismanagement of the extensive waiting list; (2) mishandling of the plaintiffs' applications; (3) preference policies regarding eligibility requirements; and (4) the awarding of raw lands lacking infrastructure,” being essentially the state not fulfilling the act’s purpose. [8] As a result of two trials and appeals, the state Supreme Court greenlit the final settlement of $328 million to award the plaintiffs– specifically, those who had submitted claims to the Native Hawaiian Claims Panel before August 31, 1995. [9] [10] With the denial of a writ of mandamus by the state’s Supreme Court, the Court-approved plan to pay the 2,721-member settlement class was approved after decades of litigation. [11] As one of the most lengthy cases in modern history, the average age for those eligible to receive part of the settlement remains above 70 years old. [12] Many spent decades homeless or in poverty, and around 1,100 members passed away during litigation, raising questions about lengthy class action lawsuits and the HHCA itself. [13]

The state’s Supreme Court would write in its dismissal of an appeal, “Many have died before receiving homestead land or compensation for the State’s breach of its trust duties. Justice demands ending this case. Paying the beneficiaries. Now.” [14] They would then start the process of paying the class after over two decades of litigation. However, the extreme length of this class action is not atypical as the extreme length of the case is due to the 1988 law allowing claims from upwards of 29 years ago. This would lead to an extreme amount of class determination – essentially figuring out who fits the lawsuit’s definition of those affected – and become the basis for claims made in Kalima. [15] Specifically, the first case of Kalima v. State of Hawaiʻi filed in 1999, was to affirm it as a class action suit, which appeared before the state Supreme Court in 2006 to give the class the right to sue. The following year the First Circuit would rule that a subclass made of those on waiting lists for the HHCA, encompassing 70% of the original class, were entitled to financial compensation by the state due to its breach of trust. The court would also state that a model should be adopted to measure damage or compensation, based on the duration of a plaintiff’s time on the HHCA waitlists. A subsequent 2018 suit would lead to a judgment from the First Circuit again in favor of the subclass – which would be appealed. It would not be until 2020 that Kalima would be ruled in favor of the class and reaffirm that the State of Hawaiʻi had breached its trust, though taking another three years to determine the settlement cost and methods of distribution. [16] [17]

It is important to note that the original HHCA from 1920 dictated that to get a home under the act, the applicant must be 50% Hawaiian. [18] While the Prince of Hawaiʻi, Jonah Kūhiō Kalanianaʻole, had sought to lower the percentage to just 3.13%, this number was never implemented due to political influence from sugar plantation owners. Current laws dictate that the land owner’s offspring and their children may take over the lease if they are 25% Hawaiian, although it still leaves a considerable amount of trouble. Specifically, those who do not have the quantum to apply for HHCA and offspring whose quantum has dropped below one-quarter are forced to give up their land once the land owner dies. [19] To complicate matters further, a bill passed in Congress in 2017 allowed the blood quantum to be lowered but saw no action, and another bill introduced in 2022 died in committee. [20] [21] 

While the ruling in Kalima allows the class to have their claims of a breach of trust be compensated during the 36 years between statehood and the claim cutoff date, the extraneous issues persist – particularly a backlog of thousands who may never be compensated or see themselves placed on lands promised to them by the HHCA. As the case dealt with unresolved claims against the state, thousands of Native Hawaiians have little to no remedy, and can only hope to be chosen out of the list of thousands. Meanwhile, those in houses and land under the HHCA’s Department of Hawaiian Home Lands remain skeptical of the program as the vagueness of the HHCA causes a multitude of issues – particularly, the quality of houses leading to mold, structural instability, and electrical failure. [22] Furthermore, Kalima’s 24-year litigation saw many of the initial class pass away. As compared to other class action cases, the extreme length was caused by multiple appeals, such as the State of Hawaiʻi’s in 2018 and a denied motion in 2023, and numerous lawsuits over how to define those eligible to sue. [23] [24] While the suit has aimed to remedy the problems faced by those in the initial class, Native Hawaiians as a whole continue to suffer waiting for the HHCA. 

The extreme length that Kalima has taken and the thousands on the list have made thousands of Native Hawaiians live without compensation or aid as promised in HHCA. With many moving away and dying waiting to be helped, and estimates of the entire backlog being helped at 110 years, Kalima was able to remedy for a few what continues to be a system-wide issue. [25] As the period to file claims expired nearly 30 years ago, the breaches of trust found by the First Circuit and Supreme Courts of Hawaiʻi have continued — as is seen by the quality of houses given by the DHHL and the vagueness of the HHCA. As more Native Hawaiians continue to be strained by the HHCA, the slowness and administrative problems that revolve around the program will continue as even those who have been compensated under Kalima continue to wait and often pass while seeking their legally promised lands. 

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1. Yamaguchi, Adam. “Why Native Hawaiians Are Being ‘Pushed out of Paradise’ in Their Homeland.” CBS News, November 4, 2023. https://www.cbsnews.com/news/hawaii-native-hawaiians-moving-cost-of-living/. 

2. Mae, Angela. “How Much You Need to Live Comfortably in Hawaii.” Yahoo! Finance, June 16, 2023. https://finance.yahoo.com/news/much-live-comfortably-hawaii-120017133.html. 

3. Fujii-Oride, Noelle. “Here’s Which Ethnic Groups Make the Most Money in Hawai’i.” Hawaii Business Magazine, May 10, 2022. https://www.hawaiibusiness.com/income-by-ethnic-group-hawaii-wealth-money/. 

4. Native American Housing Assistance and Self-Determination Subchapter VIII - Housing Assistance for Native Hawaiians (1920). 

5. Hawaiian Home Lands Preservation Act. Bill, Congress.Gov § (2022). https://www.congress.gov/bill/117th-congress/house-bill/9614/text. 

6. Staff, Ka Wai Ola. “Kalima v. State of Hawaiʻi: What You Need to Know about the Lawsuit.” Ka Wai Ola, February 2, 2023. https://kawaiola.news/ea/kalima-v-state-of-hawai%CA%BBi-what-you-need-to-know-about-the-lawsuit/. 

7. Kalima, et al. vs. State of Hawai‘i, et al., Civil No. 99-4771 LWC, Unopposed Motion for Final Approval (State of Hawaiʻi, First Circuit June 19, 2023). 

8. Grande, Thomas. “Kalima v State – A Class Action Case Study.” Hawaii State Bar Association, n.d. https://hsba.org/HSBA_2020/Events/Event_Display.aspx?EventKey=21OS_KVS. 

9. Kalima, et al. vs. State of Hawai‘i, et al., Civil No. 99-4771 LWC, Order Granting Final Approval of Class Action Settlement and Motions for Attorneys’ Fees (State of Hawaiʻi, First Circuit August 1, 2023). 

10. Kalima v. State (111 Haw. June 30, 2006).

11. Rivera v. State of Hawaiʻi, et al., State of Hawaii Department of the Attorney General ( Hawai‘i Reports and Pacific Reporter 2023). 

12. Yamachika, Tom. “Upsetting the Apple CART in 24-Year-Old Litigation.” Tax Foundation of Hawaii, October 27, 2023. https://www.tfhawaii.org/wordpress/blog/2023/10/upsetting-the-apple-cart-in-24-year-old-litigation/. 

13. Hiraishi, Kuʻuwehi. “State to Begin Sending out Settlement Checks from $326m Hawaiian Homestead Lawsuit.” Hawai’i Public Radio, October 30, 2023. https://www.hawaiipublicradio.org/local-news/2023-10-30/state-to-begin-sending-out-settlement-checks-from-326m-hawaiian-homestead-lawsuit. 

14. Rivera v. State of Hawaiʻi, et al. (2023).

15. “How Long Does a Class Action Take?” ClassAction.org, February 19, 2024. https://www.classaction.org/learn/how-long-it-takes. 

16. S.Con.Res. 112, 31st, Senate, Hawaii, (2022). https://www.capitol.hawaii.gov/sessions/session2022/bills/SCR112_.HTM.

17. Rivera v. State of Hawaiʻi, et al. (2023).

18. Hawaiian Homes Commission Act (1921). 

19. Boyanton, Megan Ulu-Lani. “The Blood Quantum Controversy Through Hapa Hawaiʻi Eyes.” Ka Wai Ola, April 28, 2023. https://kawaiola.news/ea/the-blood-quantum-controversy-through-hapa-hawaii-eyes/. 

20. S.Bill. 1334 S.D. 2, 31st, Senate, Hawaii, (2021). https://www.capitol.hawaii.gov/sessions/session2021/bills/SB1334_SD2_.htm.

21. Hawaiian Home Lands Preservation Act, H.R.9614, 117th Cong. (2021-2022).

22. Perez, Rob. “These Native Hawaiians Waited Years for Homes on Their Ancestral Land. Then the Problems Began.” ProPublica, March 3, 2022. https://www.propublica.org/article/these-native-hawaiians-waited-years-for-homes-on-their-ancestral-land-then-the-problems-began. 

23. “Oral Argument before the Hawaii Supreme Court–SCAP-18-0000068.” Hawaii State Judiciary, August 21, 2019. https://www.courts.state.hi.us/oral-argument-before-the-hawaii-supreme-court-scap-18-0000068. 

24. “Supreme Court Dismisses Kalima Settlement Appeal.” Supreme Court dismisses Kalima settlement appeal, October 28, 2023. https://spectrumlocalnews.com/hi/hawaii/news/2023/10/27/supreme-court-dismisses-kalima-settlement-appeal. 

25. Fujii-Oride, Noelle. “Fixing the Backlog of Native Hawaiians Waiting for Homesteads - Hawaii Business Magazine.” Hawaii Business Magazine, September 4, 2019. https://www.hawaiibusiness.com/hawaiian-homesteads-backlog/.