The CHAIRMAN. Now can the Congress cure this by enacting legislation that would set aside the running of the statute of limitations?

Mr. PRICE. Absolutely, Senator, and that is a course that I think would be very apropos because there are a number of things that could be rectified by going back to the time when the Federal Government was in charge of this trust.

The CHAIRMAN. Would you have your staff get together with my staff

Mr. PRICE. We will, indeed.

The CHAIRMAN [continuing]. To draft appropriate legislation?
Mr. PRICE. Absolutely. [Applause.]

So, again, we need an avenue to get back into this trust to the time when breaches were occurring or improper transfers of land were occurring, way back then, that we are now paying the price for now. We have to go back and do that. That suggestion, Senator, is an excellent suggestion. We're glad to work with you on that because it's appropriate and it's fair.

The CHAIRMAN. By that ruling, does it mean that the statute has run for all the violations?

Mr. PRICE. That is a legal issue in debate, Senator. We certainly would take the position and try to come up with additional theories. We have a very imaginative gang of lawyers in my office that we are trying to come up with different theories to go after and get around the statute of limitations.

It seems to us that the Federal Government had put itself in the position of a guardian to a ward at this point in time. To be able to get behind the statute of limitations and avoid the consequences of mishandling of that wardship just seems to us to be so patently unfair that we hope that a court at some point in time would figure out a theory or that we could figure out a theory to get through that, but to this point in time we have not been able to do it; we got shut out.

The CHAIRMAN. When do you think the statute should begin running?

Mr. PRICE. Well, I personally think that if we're going to re-examine, if the decision is to re-examine this thing from day one, that it should be waived entirely and we should go back to day one and see whose fault was what along the way.

You know, Senator, when this trust was handed over to the State at its statehood, I submit that this trust was in critical condition. The Federal Government basically handed over this trust and said, "Okay, State, you've got it." Then the Solicitor General comes out and says, "Well, you know, I think that, gee whiz, the beneficiaries ought to be able to sue for breaches of the trust." We'll talk about that later on. We'll talk about this later this week. But he doesn't talk about suing the Federal Government; he talks about suing the State who just got handed this critically-conditioned trust. To us, that symbolizes what the Federal Government has done with this trust.

We think whatever avenues we can take should be taken. My suggestion is we go back to day one and we look and see where the

I don't think that the solution to this will lie with the lawyers and with the judicial system for this reason: as in the Lualualie case, the lawyers from the Federal Government were doing their jobs. They were. They raised a legitimate defense, at least they considered it legitimate; we still don't. But they raised a defense and they won.

If you leave this to the courts and to the lawyers, that is what's going to happen. I have nothing against lawyers. Some of my best friends are lawyers. [Laughter.]

But, it's up to the policymakers to set aside the statute of limitations issues, the technical issues, and go back into this and look at it from a very practical standpoint of what was done, what can be done to fix what was done, with an overriding consideration that, indeed, the beneficiaries of this trust are the only innocent parties and, with that in mind, work together to try and open this thing up.

But, as long as we keep playing games in the courts, as long as we keep hiding behind statutes of limitations, we'll be here 5 years from now.

The CHAIRMAN. Does your office have a list of the so-called illegal conveyances?

Mr. PRICE. The transfers of land out of this trust arguablythere's going to be argument on every conveyance as to whether it was proper or improper, this, that, or the other. I will say that in the last few years the executive orders making transfers have been cancelled. It is true the lands have not been all transferred back, and there are arguments as to whether all or some of these transfers were, indeed, legal, but until you sit down and start looking at that and trying to make some of those determinations, we can go to court on every one of them and we have to defend them. We have to try to defend the actions of our client. We have to defend the actions of the State.

Without prejudicing anything that we might have to say in court later on, I can say that there are legitimate questions on many of these issues.

The CHAIRMAN. Where will your standing be in the event that the conveyances made to the territory, and now the State of Hawaii, for schools for instance-in that situation do you represent the Native Hawaiian, the Department of Hawaiian Home Lands, the Office of Hawaiian Affairs, or do you represent the State?

Mr. PRICE. Somebody said, "Thank you for that question, Senator." [Laughter.]

This will get into, I think, the discussion later in the week on whether to sue, but let me say this: Clearly, as the task force report points out, there are inherent conflicts in the State of Hawaii the way this thing is set up. The remedy to this is to insure that if there is a right some place, there is a remedy and there is someone to pursue the remedy.

We defend OHA and we defend Hawaiian Home Lands. We do it by getting separate lawyers. We do it all the time when there are conflicts between the two.

But as far as who brings the action for the breaches, under present law only the Federal Government can bring any actions. So whether we could or we could not at this point in time is probably

premature. Clearly, if the law is maintained as it is, that the Federal Government is the only entity that properly can sue for breach of these trusts, then, indeed, it's going to be in the conflict of suing itself.

If there is a mechanism to allow people to start the ball rolling, so to speak, in trying to get a review of the issues related to the various alleged breaches, that could be done through a Federal process. There are methods under Hawaii State law right now, which we'll talk about next week, but in its suit, a direct suit against the State for breach of trust, we would represent the State, but the suit can't be brought because the statute makes it terribly exclusive right of control by the Feds.

The CHAIRMAN. In recent years we have been appointing special counsels, special prosecutors. Do you think that could be a possibility?

Mr. PRICE. Absolutely. We do it all the time. As mentioned, when we have conflicts between State agencies, we will hire special outside, independent lawyers to represent them. We've done that for OHA on a number of situations where their interest would conflict with the State. They have got outside counsel that are not connected with the AG's office that are paid by the State but do not answer to the State and are completely free to independently assess the legal avenues for OHA.

The CHAIRMAN. You have indicated that when there is a breach of trust, it is incumbent upon the Federal Government to bring suit.

Mr. PRICE. That's correct.

The CHAIRMAN. And they would have to sue themselves?

Mr. PRICE. That's correct. If—well, unless they would have a statute of limitations defense against themselves. [Laughter.]

Which they probably would raise, based upon their latest case. The CHAIRMAN. In a situation like that, do you think the appointment of a special independent counsel would be appropriate? Mr. PRICE. I do, sir. If, indeed, we are going-the decision by the people themselves and the State people who set the policy, if, indeed, the policy is going to be to go back and to open it from day one and look, then clearly the Federal Government first cannot deny they have a trust responsibility. They could certainly deny that they participated in breaches, but clearly they would be the subject of claims that there are breaches. For that reason, they would have to have independent counsel. That would be an avenue to do that.

The CHAIRMAN. Let us work on this and get it ready for September.

Mr. PRICE. Again, Mr. Chairman, this issue again is a question in my judgment that has to be ultimately decided by the policymakers, and the suggestions you have made are right in keeping with the course that it probably has to go because, again, it's a threepart system that's necessary. The State has to be involved, the Federal Government has to be involved, and the beneficiaries have to be involved.

After the Admissions Act when the State of Hawaii inherited this trust in the condition that it was in, a number of years went by and the record is clear not a heck of a lot was done. The ques

tion that has arisen today is, Does the Federal Government have a continuing trustee relationship to this trust or did the trustee relationship end at statehood, as the Solicitor General of the United States has claimed it did?

Our position is, no, the Federal Government has a continuing trust obligation, and that trust obligation is derived from a couple of areas. One, what they said to the State of Hawaii is, first off, take this trust in the shape we're giving it to you and, by the way, you can't change the Hawaiian Homes Commission Act without us going along with it.

Second, we're the ones who have to enforce this trust. So they gave us this entity and they sat for thirty or forty years and didn't do anything. They didn't give any guidance as to how it was supposed to be enforced. The State clearly at this point in time did things they probably shouldn't have done, but the Federal Government was supposed to be there watching. It didn't do it.

Again, there are a number of people to blame, but that's not the way to get the solution on the table. In the recent years, and particularly since Governor Waihe'e took office, a number of things have happened.

There have been first-time appropriations for the Hawaiian Homes Commission. There has been-the EOs have been rescinded a few years ago. Again, it's true that all this land has not been transferred back, and that's an area that has to be explored.

There's been a right-to-sue bill passed which is a limited right to sue. That does give a remedy where a right is involved.

There have been efforts by the State to improve the condition and to repair the trust. To our knowledge, there has been no effort by the Federal Government to do the same. Indeed, I harken back to the Lualualei case where, instead of coming forward on the issue, they basically ducked behind a technicality.

In conclusion, Mr. Chairman, again this is a question for those in different positions than the lawyers, but I certainly would urge this committee to look at this as something that must be done, and will take legislation to do. It will take money to do, and to work with the State and the beneficiaries to keep it out of the courts as best as possible, because with the lawyers come the delays. I think only in that fashion are we going to get to the bottom of this and get a solution that's fair for everybody.

Thank you, Mr. Chairman.

[Prepared statement of Warren Price appears in appendix.] [Applause.]

The CHAIRMAN. In the event the court determines that there is a breach of trust and there are identifiable damages involved, who should receive the damages?

Mr. PRICE. It is the position of my office, Senator, that—and this gets into right to sue, but I'll just in a moment explain where we're coming from. We feel that if there are damages recovered, that the money should go back in to repair the trust, as opposed to going in someone's pocket; and, to be very honest with you, into some lawyer's pocket.

If we keep picking away at the corpus of this trust and the money keeps going out the window, we're going to continually face the problems of repairing the trust sooner or later. The right-to-sue

bill that was passed by the legislature in 1988, indeed, except for under very special circumstances where there's actual damage to an individual, under very limited circumstances, if there are damages that are proven by breach of trust, if the damages go back in to repair the trust and it's insured that they stay and maintain the trust-it's my judgment that that is the only way that you can hold and to begin the repair process which is certainly needed.

The CHAIRMAN. You have spoken on the State's trust responsibility. Do you differentiate between the trust responsibility as it relates to those who are lessees and those who are on the waiting list?

Mr. PRICE. I think that the trust responsibility is to the class of people, and that's the Native Hawaiian people. Whether they're in or out the door, they're defined and they are the beneficiaries of this trust, all of them.

So, the answer is, no, we don't make any differentiation between people on or off the list or on or off homesteading. The trust is for all Native Hawaiians.

Mr. AKAKA. Would there also be a differentiation, therefore, of Hawaiians who live in Hawaii and Hawaiians who live outside of Hawaii?

Mr. PRICE. I don't think so. If they're Native Hawaiians, they fall within the class, and that's-the blood quantum first appeared in the Hawaiian Homes Commission Act and has been incorporated into 5(f) through the Hawaiian Homes Commission Act, but that's the determination. In that, it wouldn't make any difference where you live. You become a member of that class, and to the extent that duties are owed, they are owed to you as a member of that class; absolutely.

Mr. BLAZ. Mr. Attorney General, when you started your testimony, you made it a point to call attention to the distinction between the U.S. Government and the Indian tribes as contrasted to the U.S. Government and the Native Hawaiians; am I correct?

Mr. PRICE. That's correct.

Mr. BLAZ. Given that sentiment of yours, then, what would be your feeling regarding Ms. Williams' suggestion on the sovereignty question on the Native Hawaiians assuming the responsibility now and then apparently having the Federal or the State acquiescing later to that effort by them? How would you respond to that?

Mr. PRICE. Congressman, I hate to do this, but I'm going to duck the question, but let me tell you why. [Laughter.]

I think the issue of sovereignty is a complete policy issue. We try to keep our focus in on the law, the trust responsibilities and what's happened in the past, where we are now, where we're going in the future. To the extent that that interrelates to some policy concerns that I talked about here today, they are interwoven to the point they can't be separated.

The issue of sovereignty I think is a complete policy question, and there is legal framework for it in various forums. So, from my perspective, that's there from the lawyers' perspective.

I just think that it should be left to the policymakers as opposed to the lawyer here to talk about the sovereignty issue.

Mr. BLAZ. In other words, you're dumping it on us.