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Setting the record straight about the sale of ceded lands

Sunday, November 15th, 2009

By: OHA TRUSTEE ROWENA AKANA

Source: November 2009 Ka Wai Ola o OHA Column

On July 15, 2009, OHA, three individual Native Hawaiian Plaintiffs, and the State jointly filed a motion to dismiss the 14-year-old OHA v. HHFDC case, which involves a tract of former crown (ceded) land on Maui, now known as the “Leiali’i parcel.”  OHA sued the state to stop the state from selling the ceded land.  Fellow plaintiff Professor Jonathan Kamakawiwo’ole Osorio was the only plaintiff who did not join the motion to dismiss the case.

OHA only agreed to dismiss the 14-year-old case after Act 176 (2009) became law after this past legislative session.  The new law will make it extremely difficult for the state to sell ceded lands.  While Act 176 is not as all inclusive as a full moratorium, it nonetheless provides a high bar for the sale of any ceded lands.

There is now a process for the state to follow to get permission to sell ceded lands.  Act 176 assures that Native Hawaiians will have many opportunities to participate in that process, including community meetings.  There is also a higher standard of 2/3 legislative vote (of each house) for any ceded lands to be sold.

While OHA simply asked that the case be dismissed without prejudice, the State, represented by Attorney General (AG) Mark Bennett, filed a Motion to Dismiss that went much further. 

AG Bennett argued that Professor Osorio does not have standing because he is not a Native Hawaiian as defined by the term is used in § 5(f) of the Admission Act and Art. XII, § 4 of the Hawaii Constitution.  OHA does not agree with this and explained to the AG that this type of argument should not be made.  However, the AG did not change his position.  The danger with making this argument in this case is that even if the Hawaii Supreme Court does not dismiss Professor Osorio’s claim on standing grounds, other people may use these statements against OHA and the State in other cases.

OHA also does not agree with the assertions made by AG Bennett that the “Newlands Resolution” gave all of our lands to the United States.  AG Bennett wrote that:

  • “Pursuant to the Newlands Resolution, the Republic of Hawaii ‘cede[d] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind’ and further ‘cede[d] and transfer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian islands, together with every right and appurtenance thereunto appertaining’ (hereinafter ceded lands). Ibid. The Newlands Resolution further provided that all ‘property and rights in the ceded lands ‘are vested in the United States of America.’”
  • “The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in ‘absolute fee’ under that resolution.”
  • “The Newlands Resolution and subsequent federal enactments foreclose any theory that native Hawaiians may have legal title or claims to the ceded lands that must necessarily (or can) be protected by injunction.”
  • “In the Newlands Resolution, Congress extinguished any such title or claims as a matter of federal law, by accepting the Republic of Hawaii’s cession of these lands and by vesting absolute title to (and ownership of) these lands in the United States.”  (NOTE: They of course do not mention that the Republic of Hawaii was an illegal government that had no right to cede any lands.)
  • “The Newlands Resolution annexed Hawaii to the United States. It recognized the Republic of Hawaii, accepted the cession ‘and transfer to the United States [of] the absolute fee and ownership of all public, Government [and] Crown lands, and declared that all ‘property and rights’ in the ceded lands had become ‘vested in the United States of America.’”
  • “Congress thereafter confirmed that the United States had assumed perfect title to the ceded lands and could use or dispose of them as it deemed appropriate.”

On August 6, 2009, Professor Osorio submitted a Memorandum in Opposition to the motion to dismiss the case.  In it, Professor Osorio asserts that:

  • OHA “has breached its fiduciary duty to beneficiaries by abandoning the lawsuit.”
  • That “[u]ndisputedly, the ideologies of race and eugenics are the genesis of the 1920 Hawaiian Homes Commission Act’s division of the Native Hawaiian people into those of 50% blood or more Hawaiian blood, and those without… It would appear the State’s memorandum that those ideological constructs necessary to reduce the number of potential beneficiaries are alive and well.”
  • That during the many years of litigation, there has never been a distinction between Native Hawaiians and that is and should be the law of this case.
  • That the Akaka bill will pass and the State will use arguments similar to the ones in this case to contend that Native Hawaiians have no claims to the ceded lands and that a “dismissal in this case will undermine the legal and historical bases upon which Native Hawaiians will rely in those negotiations.”

My hope is that the above information will help to clarify all of the different positions regarding the OHA v. HHFDC case.  The State and Osorio have made very negative statements against each other in the media.  OHA has not been involved in the “name-calling” other than refuting Osorio’s accusation that OHA breached its fiduciary duty.  OHA’s continuing position is to dismiss the case without prejudice.

The danger in Professor Osorio continuing this case is the possibility that the Hawaii Supreme Court might rule that he has no standing to pursue this case because he does not have a 50% native Hawaiian blood quantum.  This would seriously damage all of the progress that has been made to establish that there is no difference in a 50% blood quantum Hawaiian and those of us with less that 50%.  Until the next time.  Aloha pumehana.

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Posted in Government, Land, Legal

More OHA News

Tuesday, September 15th, 2009

By: TRUSTEE ROWENA AKANA

Source: September 2009 Ka Wai Ola o OHA Column

MAUNA KEA SELECTED FOR THIRTY METER TELESCOPE

Despite the serious concerns voiced by our administrator regarding the Thirty Meter Telescope (TMT) Observatory Project, on July 2, 2009, the board of trustees voted in favor of an OHA resolution supporting the selection of Mauna Kea as the site for the proposed project.  Trustees Cataluna, Waihee, and I were excused from the meeting and did not vote for the measure.

On July 22, 2009, Advertiser Staff Writer Mary Vorsino reported that Mauna Kea was selected for the TMT project despite the strong opposition from Native Hawaiian and environmental groups.  While Mauna Kea is considered sacred to us, the environmentalists are concerned about how the project will impact rare native plant and insect species at the top of the mountain.

The planning and permitting stage will begin in 2010.  Construction is scheduled to begin in 2011 and completed in 2018.  While this may seem like a done deal, the opposition posed by potential lawsuits could delay work on the new telescope. 

LEGISLATURE OVERRIDES LINGLE’S KAHANA VALLEY VETO

According to a July 16, 2009 Honolulu Advertiser article, the Kahana Valley living cultural park was established 30 years ago to preserve one of the few surviving ahupua’a.  Residents who were living there at the time received 50-year leases in exchange for 25 hours of work a month on cultural activities.  Last year, the state attorney general discovered that the leases had expired and six families without leases were told to leave.

During this past legislative session, Rep. Jessica Wooley introduced HB 1552 which authorizes the Department of Land and Natural Resources (DLNR) to issue long-term residential leases to qualified persons in state living parks. The bill also establishes living park planning councils to develop state living park master plans to ensure the living park achieves its purpose and goals.  Mostly importantly the bill establishes a 2-year moratorium on evictions of residents of Kahana valley state park.

On July 8, 2009, Governor Linda Lingle said she intended to veto the bill and this forced residents to schedule a protest rally the very same day.  After the bill was vetoed on July 15, 2009 by the Governor, the veto was quickly overridden and passed into law by the legislature, much to the relief of Kahana Valley residents.  Those residents who faced eviction last October will be allowed to remain in their homes and the way is now paved for more leases.

PRINCESS ABIGAIL KAWANANAKOA’S LAWSUIT

According to a July 17, 2009 Advertiser article by Rick Daysog, a lawsuit was filed in state Circuit Court on Wednesday, July 15, 2009 by Princess Abigail Kawananakoa against the Department of Land and Natural Resources (DLNR), the Department of Health, the State Historic Preservation Division (SHPD) and Kawaiaha’o Church.

Princess Kawananakoa believes that Kawaiaha’o church officials and construction workers dug up and disturbed the burial plot of her ancestor Queen Kapi’olani and those of other Hawaiian families.  She also alleged that the church skirted state burial laws, with the help of state officials, to fast-track the construction of the project.  “This project is about greed, not God,” Princess Kawananakoa said in an e-mail to The Advertiser. “I must take this to court because I cannot allow the desecration of Hawaiian graves to continue.”

In April, church officials denied that the Kapi’olani plot had been impacted.  However, a month later, they said they were unsure whether construction work had dug into the Kapi’olani plot.

George Van Buren, an attorney for Princess Kawananakoa, wrote in the lawsuit that the church and DLNR officials should have known it would find human remains because the property used to be part of the cemetery.  Van Buren also stated that church officials and the DLNR disregarded the advice of the church’s archaeological consultants, who recommended a “subsurface archaeological study for iwi, or bones, and other cultural artifacts” before beginning construction.  “Kawaiaha’o Church was concerned that any archaeological inventory survey would discover a concentration of human burial remains in the graveyard that could hinder and/or perhaps halt construction of the multipurpose center,” Van Buren said.

DLNR officials would not comment, saying they have not yet reviewed Kawananakoa’s lawsuit. 

SECOND KAWAIAHA’O LAWSUIT

The Advertiser also reported that Dana Naone Hall, former chairwoman of the Maui-Lana’i Island Burial Council, also plans to sue DLNR and church officials over their handling of the matter.  Naone Hall, who has relatives buried within the church’s cemetery ground, said that state law requires Kawaiaha’o officials to do an environmental assessment of the property since the church is a “designated historic site.” 

In her July 2, 2009 letter to DLNR, the Department of Health, and the Oahu Island Burial Council, Naone Hall has brought up the following serious concerns:

(1) The necessity to be clear about burial sites and cemeteries on Kawaiaha’o Church properties;

(2) The history of repeated disinterment of Native Hawaiian burials should not continue without any standards;

(3) DLNR has not conducted the Historic Preservation Review required by its own rules;

(4) Kawaiaha’o is not a cemetery as defined in HRS Chapter 441 and HRS 6E-41;

(5) The burials that were identified during construction were known about beforehand not “inadvertent discoveries.”

(6) DLNR and DOH do not possess the legal authority to disinter burials at Kawaiaha’o Church in the manner suggested in DLNR’s June 11, 2009 letter to Kawaiaha’o Church; and

(7) The agencies cannot permit any further construction on the Kawaiaha’o Church property until the Environmental Assessment is lawfully concluded.

Until the next time.  Aloha pumehana.

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Posted in Land

State of Hawai’i v. OHA: Showdown in Washington, D.C.

Sunday, March 15th, 2009

By: OHA Trustee Rowena Akana

Source: Ka Wai Ola o OHA, March 2009

‘Ano’ai kakou… In 1994, OHA joined Pia Thomas Aluli, Jonathan Kamakawiwo’ole Osorio, Charles Ka’ai’ai and Keoki Kamaka Ki’ili in suing the State of Hawai’i to prevent it from selling ceded lands. At that time, the State was about to sell nearly 500 acres in Lahaina in a project called Leiali’i and another 1,000 acres in Kona in a project referred to as La’i'Ùpua. The lawsuit argued that the State, as trustee of the ceded land trust, should not sell ceded lands until Native Hawaiian claims to ceded lands had been resolved.

In 2002, Circuit Judge Sabrina McKenna ruled in favor of the State and held that the State was authorized under the Admission Act to sell ceded lands. Then, in January 2008, the Hawai’i Supreme Court, in a unanimous decision, reversed the lower court decision and held that in light of the Apology Resolution and similar State legislation, the State possessed a fiduciary duty to preserve the corpus of the Public Land Trust, specifically, the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved.

The Lingle administration appealed to the U.S. Supreme Court and in October of 2008, the court said it would hear the case. OHA has asked the Lingle administration to withdraw its appeal to the U.S. Supreme Court, but they refused to budge. Oral arguments before the court in Washington, D.C., were scheduled for Feb. 25, 2009.

The Supreme Court will specifically look at whether the Joint Resolution to acknowledge the 100th anniversary of the Jan. 17, 1893, overthrow of the Kingdom of Hawai’i strips the State of Hawai’i of its authority to sell lands ceded to it by the federal government until it reaches a political settlement with the Native Hawaiians about the status of those lands.

The stakes could not be higher for us since the U.S. Supreme Court could rule that all ceded lands are the property of the State of Hawai’i and end up undermining all Native Hawaiian programs and assets as well as the legal basis for federal recognition.

What could possibly be motivating Governor Lingle to want to sell ceded lands? Why can’t she just offer 99-year leases like the provisional and territorial governments after the overthrow? A cynical person might conclude that it must have something to do with her political career. It’s also not hard to imagine that the urgent move to sell ceded lands is probably motivated by developers who are promising great things for her political future.

It is also shameful that the State of Hawai’i has to rely on native lands in order to continue operating. It has been far too easy for this state to rob our native resources to balance its budget.

Thankfully, OHA will not be alone in Washington. Among those filing legal briefs in opposition to the Lingle administration’s appeal are: Abigail Kawananakoa, former Gov. John Waihee, former Hawai’i Supreme Court Chief Justice William Richardson, Senate President Colleen Hanabusa, the entire Hawai’i congressional delegation, the Equal Justice Society, the Japanese American Citizens League, and the National Congress of American Indians.

Most of the briefs ask the U.S. Supreme Court to not hear the case, arguing that it is better to deal with the issue at the state level. Others argued that the court shouldn’t get involved since there wouldn’t be a substantial federal impact. The briefs also argue that the Hawai’i courts did not say that the Apology Resolution itself provided us with any rights or claims, but it did recognize that we have unrelinquished claims over the ceded lands and that it foresaw our future reconciliation of those claims with the state and federal governments.

Abigail Kawananakoa wrote that: “The State of Hawai’i has trust obligations to Native Hawaiians that are in the process of being reconciled by the nonjudicial branches of government. The trust and moral obligations of the State of Hawai’i arise from Hawai’i's complex history.”

Equal Justice Society and Japanese American Citizens League wrote that since the U.S. has admitted that the 1893 overthrow was illegal, “the ceded lands hold unique cultural, spiritual and political significance for the Native Hawaiian people ñ they are not fungible or replaceable.”

The U.S. solicitor general and attorneys general for 29 states have filed briefs in support of Governor Lingle’s position. The briefs argue that the Hawai’i Supreme Court misinterpreted the Apology Resolution and that preventing a state from selling, transferring or exchanging state lands would hurt not only the state but also all of its citizens.

The Native Hawaiian Caucus of the Hawai’i State Legislature is trying to head off the U.S. Supreme Court’s Feb. 25 hearing by quickly passing a law that would stop all sales of ceded lands. Senate President Hanabusa has even proposed a compromise that would allow the sale of ceded lands, but only with the approval of two-thirds vote of both the State House and State Senate.

All of the OHA trustees have been encouraged to attend the oral arguments, and I am planning to attend. I have no doubt that we will prevail because I believe the U.S. Supreme Court will clearly see that the Governor Lingle’s claims are not only historically wrong but also morally bankrupt.  Aloha Ke Akua.

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Posted in Land

Legislative Update: OHA versus UH for control over Mauna Kea

Sunday, March 15th, 2009

By: TRUSTEE ROWENA AKANA

Source: March 2009 Ka Wai Ola o OHA Column

`Ano`ai kakou…  I call out in a kahea for all Hawaiians and the people of Hawaii to oppose the University of Hawaii’s management of Mauna Kea and to support Senate Bill 995, SD2, which would give OHA ownership of our sacred mountain.

SB995 SD2 attempts to resolve claims and disputes relating to the portion of income and proceeds from the lands of the public land trust for use by OHA between 11/7/1978 and 7/1/2009.  This bill also conveys Mauna Kea to OHA, along with other parcels of land.  The House version of the above bill (HB901 HD2) does not include Mauna Kea.  It passed third reading on 3/10/2009 and has crossed over to the Senate.  At the time of the writing of this article, the board has not taken an “official” position on SB995 SD2. 

During the Cayetano administration, OHA was offered 20% of all ceded lands and $150 million in cash.  Five OHA board members refused the offer.  Two of those members are still on the OHA board.  In Governor Cayetano’s recent book, he speaks to the foolishness of those board members and refers to the events as a “missed opportunity” for OHA.  SB995 SD2 offers OHA another opportunity to redeem itself.

Efforts to Transfer Total Control of Mauna Kea to UH

HB1174 HD3 would allow the University of Hawaii’s Board of Regents (BOR) to adopt administrative rules to regulate public and commercial activities on Mauna Kea lands that UH leases from the Board of Land and Natural Resources (BLNR).  The bill, in its current form does the following: (1) It requires the BOR to establish procedures to enforce these rules; (2) allows UH to collect administrative fines for violations of these rules; and (3) Establishes the Mauna Kea Management Special Fund for the deposit and use of these revenues.

KAHEA, Mauna Kea Anaina Hou, Sierra Club Hawaii Island Chapter, Royal Order of Kamehameha I, and numerous concerned individuals opposed this measure.  OHA originally opposed the first version of the bill, but now supports the bill with amendments.

In her February 3, 2009 testimony to the House Committee on Higher Education, KAHEA Program Director Marti Townsend strongly opposed HB 1174 for the following reasons:

  • “Mauna Kea lands leased by the University are ‘ceded’ lands.  Granting this authority to the University will violate the Supreme Court’s ruling in OHA v. HCDCH.  With this bill, the Lingle Administration is seeking to transfer ceded land protected by the public lands trust from the state Department of Land and Natural Resources (DLNR) to the University of Hawaii.”
  • “Mauna Kea lands are public trust lands that must be managed by the landlord (BLNR), not the University, who is a mere lease-holder. State law requires that public trust lands be leased at fair market value for the benefit of the people of Hawaii, not the lease-holder.” 
  • “According to current state law, ceded lands are managed and administered by DLNR. See, HRS sec. 171-3. This bill seeks to transfer the ceded lands of Mauna Kea from DLNR to the University by granting the University ‘authority to manage and control public activities on the Mauna Kea lands.’ This is the exact same type of agency-to-agency transferred deemed illegal by the Supreme Court in OHA v. HCDCH and therefore should not be allowed by the state Legislature.” 
  • “The University’s activities on Mauna Kea have exploited, destroyed, and desecrated irreplaceable natural and cultural resources on the summit.  Mauna Kea’s Hawaiian alpine desert is unlike any other place in the world.  It is home to many Hawaiian endemic species some are found only on Mauna Kea!  Multiple reports, audits, and lawsuits have confirmed that the University’s telescope activities have violated the law and continue to destroy the natural and cultural resources of Mauna Kea.” 
  • “In multiple reviews of the University’s activities on the summit, the Hawaii State Auditor found that UH’s management of Mauna Kea is ‘inadequate to ensure the protection of natural resources’ and ‘neglected …the cultural value of Mauna Kea.’ Their report stated that UH’s Institute for Astronomy ‘focused primarily on the development of Mauna Kea and tied the benefits gained to its research program,’ and that its focus on telescope construction has been ‘at the expense of neglecting the site’s natural resources.’” 
  • “The University will use this authority to limit public access to the summit, regulate when and how Hawaiians worship on the summit, and expand telescope construction on the summit.” 
  • “For 30 years, the University has failed to pay the fair market rent to the State for its subleases to foreign countries and corporations that own telescopes atop Mauna Kea, as required by HRS sec. 171. This means the University owes the people of Hawaii back rent for the numerous telescope and support structures on the sacred summit.” 
  • “Unfortunately, the University has never accounted for the profits it has gained from its destructive use of Mauna Kea. According to a report to the UH Board of Regents in 1994, however, the University enjoyed at least $60 million annually in benefits from its use of Mauna Kea. In 2001, the University admitted to the Legislature that the work conducted on Mauna Kea earned $8 million a year just from the patent-lease contracts with defense contractors like Raytheon.” 
  • “Surprisingly, during this time of debilitating economic crisis, the University is not paying this back-rent to the State. Instead in this bill it is proposing to establish a special fund that would allow it to pocket all of the profits from the use of Mauna Kea lands, bypassing the general fund altogether. The University is literally seeking the Legislature’s approval to rob the people of Hawaii.”

On March 10, 2009, it passed third reading in the House with eleven (11) Representatives (Belatti, Berg, Brower, Carroll, Hanohano, C. Lee, Luke, McKelvey, Saiki, Shimabukuro, and Thielen) voting no and has crossed over to the Senate.

I will continue to keep you updated on these bills as they make their way through the second half of the legislative session.  In the meantime, I encourage each of you to call your elected officials and let them know how you feel about these important pieces of legislation.  Aloha Ke Akua.

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Posted in Land

Leave Mauna Kea Alone

Wednesday, October 15th, 2008

By: Trustee Rowena Akana

Source: Letter sent to newspaper editors, October 2008

I fully support Chile’s bid to be the site for the proposed $1 billion Thirty Meter Telescope being built by U.S. and Canadian Universities instead of Mauna Kea.

Both sites offer the same clarity of atmosphere that the telescopes need, but Mauna Kea is a sacred mountain and should not be further desecrated.

Mauna Kea has already been irreparable damaged by existing telescope facilities and it can never be restored to its original, pristine state.

I say, stop the devastation and let the Chileans have it.

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Posted in Land

La’au Point

Thursday, November 15th, 2007

By: Trustee Rowena Akana

Source: Letter to the Editor, Molokai Dispatch, November 2007

I am writing to clarify a few issues that Bridget Mowat brought up in her October 25, 2007 letter to the editor.

First, Office of Hawaiian Affiars (OHA) Chairperson Haunani Apoliona should have informed those who attended OHA’s October 17, 2007 Molokai meeting that both Trustee Mossman and I were in New York on official board business dealing with the Native Hawaiian Trust Fund.  Let me assure the Molokai community that, as a statewide at-large trustee, I am deeply concerned with La’au Point and would have made every effort to attend the meeting if it were not for the scheduling conflict.  Chair Apoliona should have also made sure whether the remaining trustees could attend or not and rescheduled the meeting if she didn’t have quorum.

Second, Trustee Dante Carpenter and I personally urged Chairperson Apoliona during last year’s Molokai meeting to consider rescinding OHA’s resolution supporting Molokai Ranch’s Master Plan, which includes the development of luxury homes at La`au Point.  Chair Apoliona flatly refused.

Third, the $100,000 that was awarded to the Molokai Land Trust, which is led by Trustee Machado, is indeed a cause for concern.  I was unable to attend the September 13th committee meeting that approved the grant due to a scheduling conflict.  However, I have learned that the $100,000 grant Mowat discusses was actually given to the nonprofit Ke Aupuni Lokahi, Inc. to administer in support of the Molokai Land Trust.  It is possible that the trustees did not understand that the grant would actually benefit the Moloka’i Land Trust.  Also, I do not know whether Trustee Colette Machado clearly explained to the Trustees that she would directly benefit from the grant.  In any case, she abstained from voting for it.

Finally, Trustee Machado assured us when we first approved the resolution supporting Molokai Ranch’s Master Plan that the Molokai community fully supported it.  As the Trustee from Molokai, we believed her and supported the resolution.  In the future, I will not make the mistake of believing Trustee Machado, or any trustee regarding a project they support, without first checking the facts for myself.

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Posted in Land

City Council Votes to Exempt Kuleana Lands from Property Taxes

Tuesday, May 15th, 2007

By: TRUSTEE ROWENA AKANA

Source: May 2007 Ka Wai Ola o OHA Column

`Ano`ai kakou…  After four years of countless meetings with elected officials and testifying before an endless parade of committees, Kuleana Lands are finally about to become exempt from real property taxes on the island of Oahu.

On April 11, 2007, the Honolulu City Council unanimously passed a bill that would establish a real property tax exemption for Kuleana Lands.  It now has 10 days (at the writing of this article) for the Mayor to sign it into law.  Since the Mayor’s administration testified that they support the bill, it is all but certain this will happen.

First of all, I would like to thank each and every member of the Council for their support of the Kuleana Land owners.  Their unanimous vote sends a strong message to the state that they are both understanding and sympathetic of Native Hawaiian issues.

I am deeply indebted to Councilman Donovan Dela Cruz.  He immediately saw that passing an exemption was the right thing to do after listening to the sad history of Kuleana Lands and the current crisis of the lineal landholders.  He quickly introduced the bill and remained a strong advocate for its passage.

I am also extremely thankful to Budget Committee Chair, Councilman Todd Apo, for his steadfast and strong leadership in helping to get the bill over many of the stumbling blocks that plagued it last year and prevented it from passing.  Councilman Apo used his knowledge of the issue to shepherd the bill all the way through to its final passage.

This is truly a momentous piece of legislation for Native Hawaiians.  I encourage all owners of Kuleana Lands who are lineal descendants of original title holders to apply for the exemption as soon as the City and County announces the application procedures, hopefully in the next few months.

Kuleana Land owners should use this time to make sure the names on their property title are current and completely up-to-date.  If the City’s property assessment department can’t find your name as the title holder, you will be forced to get a court order to prove your ownership.  Avoid any delays and extra expenses by clearing up any confusion on your property title now.

I now plan to approach each of the three remaining counties to pass similar legislation for Kuleana Land owners on the neighbor islands.  Within a year, I will finally have the hard data I need on the potential impact of the exemption by using Oahu as an example.  This will help make passing similar bills in Hawaii, Maui, and Kauai counties much easier.

I believe that we have finally helped to put an end to the injustices done to the caretakers of Kuleana lands over the past 150-years, at least on Oahu.  Now, the very last of the Kuleana Lands that have survived can be protected and kept in Hawaiian hands.  Protecting what’s left of Kuleana Lands will only help to preserve Hawai’i’s rich history and culture.

Kudos to the Honolulu City Council for making this a reality.  I look forward to future opportunities to partner with them as I continue to work for the betterment of our Hawaiian Community.  Mahalo nui loa.

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Posted in Land

Kuleana lands must be saved

Thursday, March 15th, 2007

By: TRUSTEE ROWENA AKANA

Source: March 2007 Ka Wai Ola o OHA Column

`Ano`ai kakou…  One issue that has been near and dear to my heart over the past few years is passing a law that would exempt Kuleana lands from property taxes.  Hawaiian families, who have been caring for their Kuleana lands for generations, are now facing sky-rocketing property taxes.  They could end up losing everything if something isn’t done soon to offer them some sort of tax relief.

A brief history of Kuleana Lands:  In 1848, as a result of the Mahele, all land in the Kingdom of Hawai‘i was placed in one of three categories:  Crown Lands (for the occupant of the throne); Government Lands; and Konohiki Lands (Kuleana Act, 1850).  (www.kumupono.com)

After native Hawaiian commoners were granted the opportunity to acquire their own parcels of land through the Mahele, foreigners were also granted the right to own land in 1850, provided they had sworn an oath of loyalty to the Hawaiian Monarch.  In order to receive their awards from the Land Commission, the hoa‘aina (native tenants) were required to prove that they cultivated the land for a living.  They were not permitted to acquire “wastelands” (e.g. fishponds) or lands which they cultivated “with the seeming intention of enlarging their lots.”  Once a claim was confirmed, a survey was required before the Land Commission was authorized to issue any award.

The lands awarded to the hoa‘aina became known as “Kuleana Lands.” All of the claims and awards (the Land Commission Awards or L.C.A.) were numbered, and the L.C.A. numbers remain in use today to identify the original owners of lands in Hawai‘i.  By the time of its closure on March 31, 1855, the Land Commission issued only 8,421 kuleana claims, equaling only 28,658 acres of land to the native tenants (cf. Indices of Awards 1929).

According to the Overview of Hawaiian History by Diane Lee Rhodes, many of the kuleana lands were later lost.  The list of reasons include:  (1) Native tenants mostly received lands that lacked firewood or were too rocky and unsuitable for farming.  (2) A number of kuleana were sold by dishonest land agents before the farmers could get a survey.  (3) The land commissioners delayed getting notices to landholders.  (4) Prices were out of reach for commoners.  (5) Finally, foreigners evicted legitimate kuleana owners without due process.

Since most of the Kuleana lands were carved up and taken away or abandoned, the impact on tax revenues would be extremely minimal so there should be no reason why this legislation shouldn’t pass.

This year, the bill got a hearing on the Senate side, thanks to the Water, Land, Agriculture and Hawaiian Affairs (WAH) committee chairman, Senator Russell S. Kokubun.  Unfortunately, the bill was deferred due to concerns that the bill might be unconstitutional.

I am currently working to get a city ordinance passed at the Honolulu City Council.  The bill is being spearheaded by Councilmember Todd Apo.  The first hearing for the bill will be February 28th.

If you or someone you know is living on Kuleana lands and are descendent of the original owners, I implore you to consider testifying.  We must put an end to the injustices done to the caretakers of Kuleana lands for the past 150-years once and for all.  If something is not done soon, the very last Kuleana lands that have survived will finally fall out of Hawaiian hands.  Protecting what’s left of Kuleana Lands will help preserve Hawai’i’s rich history and culture.  If you would like a copy of the bill e-mailed or sent to you, please contact my office.

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Posted in Land

Why we need to save Kuleana lands

Saturday, April 15th, 2006

By: TRUSTEE ROWENA AKANA

Source: April 2006 Ka Wai Ola o OHA Column

`Ano`ai kakou…  One issue that I have really pushed hard for at the state capitol is a bill to exempt Kuleana lands from property taxes.  Many Hawaiian families, who have been caring for their Kuleana lands for generations, are now facing sky-rocketing property taxes because of luxury resorts and shopping malls being built next-door.  The issue first came to my attention several years ago when a family came to OHA and asked that we take custody of their Kuleana land until they were able to save up enough money to pay off their back taxes.  If something isn’t done soon, more Kuleana Lands could fall out of Hawaiian hands.

A brief history of Kuleana Lands:  According to Kumu Pono Associates LLC’s website (www.kumupono.com), in 1848, as a result of the Mahele, all land in the Kingdom of Hawai‘i was placed in one of three categories:  Crown Lands (for the occupant of the throne); Government Lands; and Konohiki Lands (Kuleana Act, 1850). 

Ownership rights to all lands in the kingdom were “subject to the rights of the native tenants;” those individuals who lived on the land and worked it for their subsistence and the welfare of the chiefs (Kanawai Hoopai Karaima… {Penal Code} 1850:22).  The 1850 resolutions in “Kanawai Hoopai Karaima no ko Hawaii Pae Aina,” authorized the newly formed Land Commission to award fee-simple title to all native tenants who occupied and improved any portion of Crown, Government, or Konohiki lands.

After native Hawaiian commoners were granted the opportunity to acquire their own parcels of land through the Mahele, foreigners were also granted the right to own land in 1850, provided they had sworn an oath of loyalty to the Hawaiian Monarch.  In order to receive their awards from the Land Commission, the hoa‘aina (native tenants) were required to prove that they cultivated the land for a living.  They were not permitted to acquire “wastelands” (e.g. fishponds) or lands which they cultivated “with the seeming intention of enlarging their lots.”  Once a claim was confirmed, a survey was required before the Land Commission was authorized to issue any award.

The lands awarded to the hoa‘aina became known as “Kuleana Lands.” All of the claims and awards (the Land Commission Awards or L.C.A.) were numbered, and the L.C.A. numbers remain in use today to identify the original owners of lands in Hawai‘i.  By the time of its closure on March 31, 1855, the Land Commission issued only 8,421 kuleana claims, equaling only 28,658 acres of land to the native tenants (cf. Indices of Awards 1929).

According to the Overview of Hawaiian History by Diane Lee Rhodes, many of the kuleana lands were later lost.  The list of reasons include:  (1) Native tenants mostly received lands that lacked firewood or were too rocky and unsuitable for farming.  (2) A number of kuleana were sold by dishonest land agents before the farmers could get a survey.  (3) The land commissioners delayed getting notices to landholders.  (4) Prices were out of reach for commoners.  (5) Finally, foreigners evicted legitimate kuleana owners without due process.

Since most of the Kuleana lands were carved up and taken away or abandoned, the impact on tax revenues would be extremely minimal so there should be no reason why this legislation shouldn’t pass.  Unfortunately, both the House and Senate Kuleana land bills went nowhere this session.  The House refused to even hear the bill despite my pleas to the Committee on Hawaiian Affairs chairman, Representative Scott Saiki.

The bill got a hearing on the Senate side, thanks to the Judiciary and Hawaiian Affairs committee chairman, Senator Colleen Hanabusa, but the bill came up one vote short of passing.  I met with Senator Donna Mercado Kim, who voted no on the bill, to try to convince her to support the bill, but she insisted that we should go to each county and ask for the exemption individually, which makes no sense.  Why should we go to each county when one bill passed by the legislature can make the exemption law for the entire state? 

I am currently working to get a city ordinance passed at the Honolulu City Council.  Bill #25 was introduced on March 15, 2006.  If you or someone you know is living on Kuleana lands and are descendent of the original owners, I implore you to consider testifying.

We must put an end to the injustices done to the caretakers of Kuleana lands for the past 150-years once and for all.  If something is not done soon, the very last Kuleana lands that have survived will finally fall out of Hawaiian hands.  Protecting what’s left of Kuleana Lands will help preserve Hawai’i’s rich history and culture.

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Posted in Historical, Land

OHA needs a Land Konohiki

Friday, April 15th, 2005

By: OHA Trustee Rowena Akana

Source: Ka Wai Ola o OHA, April 2005

‘Ano’ai kakou… On August 19, 2004, The Honolulu Advertiser ran an article titled “OHA gets offer of free Puna land.” Six months later, the offer was withdrawn because OHA took too long to finalize the deal. Sound familiar? It should.

The same thing happened in late-2002 when a mainland company named PH Industries offered to donate 198 acres of land in Maili to OHA, 80 to 90 acres of which were developable. The company was leaving Hawaii and wanted to donate its land. OHA waited too long to respond and the company sold it to someone else for almost nothing. Trustee Oswald Stender, the budget chair at the time, said he did not see the urgency of the deal and failed to take it up in his committee in a timely manner.

There were so many possibilities for the Maili property. It was cleared of environmental hazards and zoned for agriculture and conservation use. At the very least, OHA could have sold it to a developer. The land was valued at $3,000,000 and it was sold for a measly $100,000. It was unconscionable to let such a huge opportunity slip through the cracks. Unfortunately, history tends to repeat itself.

On August 18, 2004, Joe Wedeman made an offer to donate 66.4 acres of Puna land to OHA on behalf of his wife, Harriet, who had inherited the land from her mother. About 35 acres contained no archaeological sites and could be developed. Trustee Boyd Mossman said the gift was a “tremendous opportunity” and could be an educational and cultural resource for students.

Trustee Carpenter and I immediately sent a memo to Trustee Stender after the offer was made, and asked him to bring it to the Board of Trustees for a vote as soon as possible. Trustee Carpenter wrote that “time is of the essence.” I specifically reminded Trustee Stender about the Maili debacle.

On September 1, 2004, Trustee Stender responded that he asked the OHA Administrator and his staff to ensure that a “due diligence” study is done before the issue could be presented to his committee. On September 29, 2004, the Administration reported to the Board that the consultants they hired, MN Capital Partners, LLC, needed three-weeks since they needed to visit the site.

Ten-weeks later, on December 17, 2004, my staff checked with the ARM committee to see whether the due diligence study was done or not. It was not. The Administration finally presented the due diligence study to the Board of Trustees on February 16, 2005. Unfortunately, it was too late. Mr. Wedeman had already sent a fax to OHA two days earlier, withdrawing the offer (the entire fax was just one sentence).

All this could have been avoided if OHA followed a May 2002 recommendation from the Land Committee’s (back when OHA had five subject-matter committees) to create an OHA Land Division to be headed by a “Land Konohiki,” an expert specializing in land acquisition, management, and investment and ceded land claims. The Land Konohiki could quickly look at and consider private lands for acquisition or even partner with other Hawaiian agencies to acquire land.

The first step in the Land Konohiki plan was to hire a land consultant to review prior land studies and make recommendations to the Board. The plan was passed by the Board on October 30, 2002.

Unfortunately, despite my numerous inquiries, nothing was done about the issue for months. On April 4, 2003, the Administration reported that they were still looking for a consultant. The Administration’s slow pace can only be blamed on the lack of direct Trustee oversight. When the current leadership took over in late-2002, they got rid of the Land Committee and there was no one to keep their feet to the fire.

It is sad to think of all the lost possibilities. If we had a Land Konohiki in place, our beneficiaries would now be in control of 264.4 acres of land. It is a supreme irony that OHA spends millions to lobby for federal recognition and yet continues to refuse free land. What good is a sovereign nation without a homeland?

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Posted in Land

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