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U.S. Supreme Court & Legislative Update

Friday, May 15th, 2009

By: TRUSTEE ROWENA AKANA

Source: May 2009 Ka Wai Ola o OHA Column

At the writing of this column, 15-days before it goes to print, Senate Bill 1677 is the only surviving bill that would provide any protection to ceded lands from being sold or exchanged.  While it does not provide the complete moratorium that we wanted, it does require a majority vote of both the House and Senate to disapprove the sale or exchange of ceded lands.  It also requires that the community be briefed regarding the location of the lands prior to its sale or exchange.

Unfortunately, State Attorney General Mark Bennett and House Speaker Calvin Say are now holding the bill hostage in an attempt to brow-beat the OHA trustees into dropping our lawsuit to stop any further sale of ceded lands.  SB1677 has been deferred from the final vote on third reading for four days in the House.  Governor Linda Lingle has made it clear that she will not sign the bill unless we drop our case.

Both Lingle and Bennett do not have any interest in doing what is right for Native Hawaiians.  If the Lingle administration truly won the recent Supreme Course case, like Bennett has bragged about in the media, why do they want us to drop the case while it’s being reconsidered by the Hawaii Supreme Court?  Also, if they really don’t intend to sell or exchange any ceded lands in the near future, why won’t they just pass SB1677 instead of threatening to kill it?  So much for the Governor’s commitment to Native Hawaiians.

There is NO reason for OHA to drop the case at this point because the Senate will most likely not accept the House’s changes to SB 1677 and we would just end-up dropping the case for nothing.  And settling the case with the Lingle administration without a moratorium on the sale of ceded lands would only anger our beneficiaries.  We would also be sending the wrong message to the Hawaii Supreme Court.

THE RECENT U.S. SUPREME COURT DECISION

In its recent decision on March 31, 2009, the U.S. Supreme Court sent the ceded-lands case back to the Hawai‘i Supreme Court for further deliberations.  Many assertions have been made in the media, and I want to clarify all of the misinformation out there.  Here is exactly what the U.S. Supreme Court said:

  1. The federal Apology Resolution did not impose a duty on the State of Hawaii to refrain from selling ceded lands.
  2. OHA had argued that the Hawaii Supreme Court’s ruling relied mainly on state law and only referred to the Apology Resolution for its facts concerning the ongoing reconciliation process.  The U.S. Supreme Court disagreed with OHA and concluded that the Hawaii Supreme Court did in fact rely on the Apology Resolution when it prohibited the sale of ceded lands.
  3. However, the U.S. Supreme Court did recognize that existing state laws could serve as the basis for the Hawaii Supreme Court’s decision to prohibit the sale of ceded lands.
  4. The Court also recognized that the Hawaii State Legislature has the authority to resolve the status of the ceded lands.
  5. They also said that the U.S. Supreme Court didn’t have the authority to decide whether, as a matter of state law, Native Hawaiians have rights related to Ceded Lands.  In other words, they said they don’t have the right, under Hawaii Constitution, to prohibit the sale of ceded lands until the status of those lands is definitively resolved through the state political process.

It is difficult for me to understand how the State Attorney General can claim this decision is a victory for the Lingle administration.  If the Hawaii Supreme Court decides that state law provides an independent basis for the prohibition on the sale of ceded lands, and I am confident they will, there will be no reason for us to go back before the U.S. Supreme Court and this lawsuit will finally come to an end – with OHA and its beneficiaries winning in the end.

SETTLEMENT BILLS

In my last article I wrote about Senate Bill 995 and House Bill 901, which 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.  I wrote that I favored the Senate’s version of the bill because it would convey Mauna Kea to OHA, along with several other parcels of land.  The House version did not include Mauna Kea.  At the time of this writing, is seems that HB 901 has died and only SB 995 will survive to the final conferencing stage of the legislative process.

House Settlement Proposal

On March 18, 2009, the House Committee on Hawaiian Affairs amended the Senate’s bill by (1) deleting the conveyance of all parcels to OHA except those in Kaka’ako Makai; and (2) inserting $200,000,000 as the amount owed by the State to OHA.

On March 23, 2009 the joint House Committees on Water, Land, & Ocean Resources and Judiciary amended this bill by deleting the requirement to transfer the management and control of the conveyed parcels to a sovereign native Hawaiian entity upon its recognition by the United States and the State.

Senate Settlement Proposal

On March 27, 2009, the Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs amended the House’s version of the bill by adding language that would allow OHA and the State to reach a “global settlement” of the past and future obligations of the State to Native Hawaiians.  The Committee felt that the proposal made by Governor Ben Cayetano back in March 31, 1999 is a sensible and appropriate approach toward a “global settlement” and that it should be re‑offered to OHA. 

Please note that a global settlement DOES NOT include natural resources, water and gathering rights or any other rights.  The settlement would include both land and money.  In my view, it would be a great opportunity for us to finally have the resources to build a strong nation.

The Senate’s “global settlement” offer includes:  (A) Monetary payment to OHA of $251 million; (B) Conveyance of public lands from the State to OHA equal to twenty per cent of the 1.8 million acres of ceded lands already inventoried; and (C) The suspension of the $15.1 million in annual payments to OHA effective upon a date to be agreed upon in good faith between the State and OHA.

OHA has to make a decision to accept or reject the “global settlement” (which means land & money only – this does not include rights to natural and mineral resources, gathering rights, etc.) and notify the Governor, the President of the Senate and the Speaker of the House of its decision in writing on or before January 1, 2010.  Any failure to properly and timely respond to the “global settlement” offer shall be deemed to be a rejection of the “global settlement.”

If a “global settlement” cannot be reached, Part II of the measure sets forth the Legislature’s approach to alternatively address the issue regarding past obligations only.  The dollar value of $200 million represents the amount agreed to between OHA and Governor Lingle regarding the resources that should be provided for the period between November 7, 1978, and July 1, 2008.  The Committee felt that $200 million for the past obligations is a fair and reasonable payment.

At the discretion of OHA, payment of the $200 million may be accomplished by either:  (A) A $200 million monetary payment; (B) Conveyance of properties in the public land trust with a combined tax assessed value of $200 million; or (C) A combination of cash payments and conveyance of properties totaling $200 million.

If OHA chooses to accept a $200 million monetary payment, it must notify the Governor, the President of the Senate and the Speaker of the House of its decision in writing by January 1, 2010.  Failure of OHA to respond to the Governor, the President of the Senate and the Speaker of the House by January 1, 2010, shall be deemed to be a rejection of OHA ‘ right to accept the $200 million monetary payment option.

The current $15.1 million in annual payments from the State to OHA shall remain uninterrupted for FYs 2009-10 and 2010-11.

In either settlement option, the specific public lands that are to be conveyed by the State to OHA is to be determined by negotiation between the Governor and OHA with reasonable diligence, in good faith, and shall be completed on or before January 1, 2015, unless mutually extended by the State and OHA.  OHA and the Governor’s Office are required to submit a report on the status of the negotiations to the Legislature no later than twenty days prior to the convening of the 2010 Regular Session.

CONTACT YOUR ELECTED OFFICIALS

While the legislative session will be over by the time of printing, I still encourage all of you to let your elected officials know that you support Senate’s version of the settlement bill and that you want a complete moratorium on the sale or exchange of ceded lands.  The legislative process is a long one and if the bills fail to pass this year, they will still be alive and will come up again next year.  It is truly unfortunate that some of our elected officials need to be constantly reminded about doing the right thing.  Aloha Ke Akua.

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Posted in Government, Land, Legal, Political, Sovereignty

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

Sunday, March 15th, 2009

By: TRUSTEE ROWENA AKANA

Source: March 2009 Ka Wai Ola o OHA Column

`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 Lāhaina in a project called Leiali’i and another 1,000 acres in Kona in a project referred to as La’i'ōpua.  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., are scheduled for February 25, 2009.

The Supreme Court will specifically look at whether the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893, Overthrow of the Kingdom of Hawaii strips the State of Hawaii 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 Hawaii 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 Hawaii 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 — 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 Hawaii State Legislature is trying to head-off the U.S. Supreme Court’s February 25th 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 US 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 Government, Land, Legal, OHA, Political

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 Government, Land, Legal, OHA, Political, Sovereignty

Fiscal Irresponsibility

Friday, August 15th, 2008

By: TRUSTEE ROWENA AKANA

Source: August 2008 Ka Wai Ola o OHA Column

`Ano`ai kakou…  Here is an update on OHA’s recent spending:

OHA OWNED BUSINESSES

On January 17, 2008, the BOT approved a realignment of the OHA budget appropriating $4,567,511 from OHA’s Fiscal Reserve Fund to be distributed over 3-years to the Hi’ilei Aloha LLC for the operation of its subsidiaries Hi’ipaka LLC and Hi’ipoi LLC.  The operating budget for all three businesses for the July 1, 2007 to June 30, 2008 fiscal year was $2,276,882, of which we have already spent $614,809.70 as of March 31, 2008.

MASSIVE GRANTS

The OHA budget was realigned again at our board meeting on June 5th to accommodate the huge Board Initiative grants which were also approved at the same meeting.  The grants include:  (1) $1,000,000 to Kanu o Ka Aina Learning ‘Ohana; (2) $750,000 to the Lana’i Cultural Center; (3) $500,000 to Kaumakapili Church; (4) $500,000 to the Malama Learning Center; (5) $150,000 to Hawaii Maoli; (6) $300,000 to Na Maka Walu; (7) $300,000 to Papahana Kuaola; and (8) $150,000 to La’i’opua 2020.  The grand total for all of these grants is $3,650,000!

Hawaii Maoli is a permanent fixture in our budget as they are contracted by OHA to collect Kau Inoa registrations.  However, there is no accounting for all of the funds that are being spent through this organization, especially monies given to grantees that do not have a 501(c)(3) nonprofit tax status.  How much more money is Hawaii Maoli getting through fees or charge-backs from these organizations?  The trustees have no idea.

LONG-TERM DHHL LOAN

On June 5th, the board authorized the Administrator to enter into an agreement with the Department of Hawaiian Homelands to cover their debt service on a loan of $35 to $41 million for a period of 30 years starting on July 1, 2008 with an amount not to exceed $3 million annually.

DHHL is a government agency under the Governor’s budget.  The state has long neglected its obligations to house Hawaiians and it should, therefore, be the state’s responsibility to guarantee the DHHL loans – not OHA.  It is the only fair thing to do since the state receives 80% of ceded land revenues while OHA has to survive on only 20% of those revenues.  As advocates for Hawaiians, OHA should be holding the state accountable instead of funding their shortfalls.

Trustee Mossman asked whether the timing for this proposal had anything to do with the Sovereign Councils of the Hawaiian Homelands Assembly’s (SCHHA) recent opposition to OHA’s negotiated settlement bill at the state legislature.  Trustee Heen assured the trustees that there was no “quid pro quo.”  However, I agree with Trustee Mossman that the timing is awfully suspicious.  Not to mention the fact that Haunani Apoliona is running for re-election this year.  Make no mistake, I am NOT against giving grant money away.  However, in order to stay within our budget, we must cut costs elsewhere.

At present, our budget is approximately $41 million.  Add to that all of the recent budget realignments and the budget will probably climb to well over $50 million a year.  This is a ridiculous figure.  Besides all this, OHA is too top heavy with “special assistants” who are getting contracts to work on “special projects” that are taking up a great deal of our inflated budget. 

The scariest thing of all is that Apoliona is supporting the increase in spending all the way through 2012.  In other words, these realigned budgets are being approved using money that we have yet to receive.  With the economy in the “drink,” our people struggling with high gas prices and unable to drive to work or losing their homes and being forced to live under freeway overpasses and beaches, OHA continues to spend money like “drunken sailors.”  The question is why?  At present, we are already $5 million overspent in our current budget.  Wouldn’t our people understand if we explained how important it is to tighten our belts at this time?  We should be leading by example.

“Making a lot of nonprofits happy now by offering them a lot of money into 2012 and then taking that money away after the November elections because we are not able to meet these commitments is cruel, irresponsible, and a terrible way to get votes.”

EXPENSIVE ATTORNEY’S FEES

One of OHA’s attorneys for our failed ceded lands negotiated settlement with the state and the OHA v. State II case was paid a total of $414,533.84 in attorney’s fees.  A second attorney was paid a total of $423,840.16.  As you may recall, the ceded lands negotiated settlement was shot down by the state senate and OHA lost the OHA v. State II case.

OHA’s Washington D.C. law firm that was hired to lobby for the passage of the Akaka bill was paid over $2,000,000 (that we know of, a request for a monthly billing statement would be much more accurate – these numbers are conservative).  A special consultant for the Akaka bill was paid an additional total of up to $450,000.  That is a total of up to $2,450,000 (conservatively) which have been paid to lobbyists who have not been able to deliver the votes.  Make no mistake, I support the passage of the Akaka bill, but I have also suggested many times that we hire people who are able to deliver.

OHA INVESTMENT PORTFOLIO DROPS

 The Native Hawaiian Trust Fund portfolio has lost 10% of its value (approximately $39 million) in these tough economic times, and probably more at the time of this printing.  National consumer and prognostic indicators say that investors should have at least 20% of their investments in cash that can be liquidated and moved quickly.  Unfortunately OHA currently has less than 10% or $25 million of its portfolio in cash

According to a June report from one of our money managers, global equity markets fell by more than 8%, with US and European equity markets returning -8.4% and -11.7% respectively.  As of July 9, 2008, the estimated preliminary return for their share of OHA’s portfolio in the month of June was –4.95% compared to benchmark performance of –4.48%.  They also stated that the growth outlook for the US economy remains weak, as increased unemployment, a weak dollar, and further pressure on the financial markets contribute to expectations of higher inflation over the next year, with expectations beyond that more restrained.  Given all of this bad news, it is now more important than ever to bring our spending under control.

TRUSTEE HEEN’S MEMORY

On another note, I was surprised to read OHA Trustee Walter Heen’s June 13th letter to the Star Bulletin where he wrote, “I do not recall Akana ever dissenting from any of the terms (of the ceded lands negotiated settlement) that were brought before the board, including the waiver provision that she now loudly decries.”

Heen was present at all of the executive session meetings where I expressed concerns regarding the waiver provision.  Further, all of the OHA trustees, along with the administrator, received a letter from me, in advance, which explained why I could not support the settlement bill and that I would be submitting testimony to the legislature in opposition to the bill.

I hope that Heen will make sure that OHA has lined up its “ducks” next time for the 2009 legislative session since he is now part of the negotiating team.  Further, I question why OHA’s negotiating team is still negotiating with the Governor’s office when she has publicly stated that she will not reconsider her proposal – a proposal that our beneficiaries have overwhelmingly rejected.  Why not just work with the legislature?

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Posted in Government, Legal, OHA, Political, Sovereignty

OHA must televise its meetings

Tuesday, July 15th, 2008

By: TRUSTEE ROWENA AKANA

Source: July 2008 Ka Wai Ola o OHA Column

`Ano`ai kakou…  Just like the resistance to conducting a forensic audit on OHA by certain trustees, efforts to broadcast our meetings on television are also facing the similar resistance.  The question is why? 

A forensic audit would be a useful tool to help us manage our assets better, as well as look at the things that we are doing right.  Similarly, broadcasting OHA meetings would be a great communication tool for our beneficiaries to learn about the programs we fund, how we are spending their Native Hawaiian Trust dollars.  More importantly, they can find out about the many, many other functions that OHA is also currently involved in such as land, water, and historic preservation issues (including litigation) on all islands.  We can also go more in-depth about the federal and state legislation that we support or object to.

Trustees at our May 22nd Committee on Beneficiaries, Advocacy & Empowerment (BAE) meeting were not supportive of a resolution (HCR 345), recently passed by the legislature, which asks that OHA be more accountable to our beneficiaries by televising our general meetings – similar to what the state legislature and city council already do on OLELO Community television.

One trustee insisted that, “If we had to do it, I would opt for the most inexpensive way.”  Another asked, “Who would watch us anyway?  There aren’t any numbers or demographics even on our radio show during our morning drive into work.”  I feel this is really a good question.  Why don’t we know who many people are listening to the show, especially since the show’s contract has just been renewed?  One trustee even said that “the legislature’s reso is just that!  It’s not law and we don’t have to do it if we don’t want to.”

Our deputy administrator’s comments were that he would have a recommendation to the board by September – Four months from our meeting!  Recognizing that it would only be a recommendation, it appears that there would NOT be a recording of an OHA meeting until the end of the year.  Why are these trustees worried about what the beneficiaries and the general public would see?  It should be obvious given the fact that it is an election year and Trustees Apoliona, Cataluna, Lindsey, and Machado are running for re-lection in the November 4th general election.

There are many positive points of broadcasting our meetings:

  • Broadcasting on OLELO would cost almost NO money since there are as many as fifty OHA staff members that are certified to handle OLELO video equipment and OLELO would run the show on their Native Hawaiian cable channel for free. 
  • OHA already produces regular programs and discussions on OLELO.
  • Most OHA meetings take place during work hours in the middle of the work week.  We should give our beneficiaries the option of viewing our meetings after they get home from work or on the weekends.
  • As for viewership, OHA deals with many hot-button issues that would resonate with the community and draw hundreds, if not thousands of viewers.
  • OHA’s mandate is so enormous that a one hour radio show couldn’t possibly address or explain exactly what we do here.  A television show would do more for OHA than any other paid advertising that OHA has ever done.
  • More and more people are turning on their televisions or their computers to view the news.  Unfortunately, less people are reading newspapers, like our Ka Wai Ola, these days.

All that said, broadcasting the OHA meetings would be a very good way to improve OHA’s image in the community.

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Posted in Government, Legal, OHA, Political

OHA beneficiaries demand accountability

Thursday, May 15th, 2008

By: TRUSTEE ROWENA AKANA

Source: May 2008 Ka Wai Ola o OHA Column

`Ano`ai kakou…  Here are a few recent developments at the legislature and at OHA:

SCHHA REQUESTS BASIC INFORMATION 

On March 27th, the Sovereign Councils of the Hawaiian Homeland Assembly (or SCHHA, formerly the State Council of Hawaiian Homestead Associations) called on the legislature to audit OHA.  They argued that OHA did not provide them with the basic information they needed to review OHA’s settlement agreement with the Lingle Administration for back-payments of ceded land revenues due from 1978-2008. 

The SCHHA specifically asked: (1) How the $200 million dollar amount was determined, including whether the revenues considered included disputed and undisputed income sources; (2) How $187 million of the total $200 million was determined to be provided in lieu of cash; (3) How the annual minimum payment of $15.1 million a year to OHA was determined; and (4) What native rights are being waived.  The SCHHA also said the State and OHA need to conduct a meaningful consultation with them as required by law since they are native Hawaiian beneficiaries. 

None of this would have happened if Chairperson Apoliona properly informed our beneficiaries about what this kind of settlement would mean to our future.

FORMER STAFF CLAIMS GROSS MISMANAGEMENT 

Also in March, a recent former OHA employee testified to State senators that he had “witnessed a great many outrageous acts” at OHA.  He wrote that, “OHA staff morale has plummeted, programs implemented to benefit Native Hawaiians have been circumvented, and gross mismanagement has been apparent from the very top.”  He also said that, “Today, OHA is a self serving organization only interested in acquiring money and power for itself and is so hamstrung by politics that it has failed in its mission to help all Native Hawaiians…”

He explained that one reason for the low moral at OHA is that “…the employees who have either chosen to leave OHA or who have been fired are the most competent at what they do professionally… and have the passion and drive to create successful projects for the community.  Initiative is rewarded by reprimands and/or termination from OHA by its top Administrators.” 

He also supported my earlier statements in the December 2007 Ka Wai Ola that staff members are not allowed to speak directly with Trustees.  He said that, “OHA staff are forbidden to speak with any of the Trustees for fear that they will ‘complain’ to them about the Administrator and the Deputy Administrator.  If a request is granted to speak with a Trustee, a manager accompanies staff to monitor what is being discussed.” 

Like the SCHHA, he also called for a financial and management audit of OHA, but his reason was due to “gross mismanagement.” 

FOUR-MONTH RESPONSE TIME TO INFORMATIONAL REQUESTS

Here is an example of my experience, even as a Trustee, of how hard it is to get any information out of OHA.  On January 4, 2008, I put in a request for specific information regarding the money being spent on sponsorships by OHA in Washington D.C.

I sent a follow-up memo on February 28th asking what happened since I had not heard back from them. 

I sent another follow-up memo to the administration on March 10th asking why they had not responded. 

I was finally forced to ask the Office of Information Practices (OIP) for help on March 11th. 

On March 12th, my office received a memo from the administration apologizing for the delay and promising that the report will be completed by the end of the month and circulated to all Trustees.

On March 14th the OIP sent a letter to the Administration saying that they had ten days to provide the information I requested or provide a reason why they were denying my request.

On March 31st, I had my staff follow-up with the administration (17 days after the OIP letter) to see what was causing the delay.  The administrator assured me that the report will be coming shortly.

Finally, on April 2nd, almost four months later, I received the information I requested.

Clearly, there is a lack of wisdom and foresight in OHA’s leadership.  Mrs. Rubin, the senior aide for Chairperson Haunani Apoliona, has been way out of line with her attack ads against me.  The recent incidents that I’ve described above only prove what I’ve been saying all along.  Instead of addressing the problems to make things better at OHA, the Chairperson and her staff continue to deny that there are serious problems within the organization.  Our beneficiaries have made their voices heard at the legislature this year, asking legislators to make OHA more transparent by sharing information and by demanding an audit.

NEW/OLD LAWSUIT – MUST FOLLOW THE MONEY

On April 3, 2008, attorney William H. Burgess, filed another lawsuit against OHA (Kuroiwa v. Lingle).  Burgess is representing six people with a history of filing lawsuits against Hawaiians, including James Kuroiwa, Earl Arakaki (from the previous lawsuit Arakaki v. Lingle), and former Advertiser publisher Thurston Twigg-Smith.  These people are still using the same tired arguments from Arakaki v. Lingle that have been thrown out by both Hawaii and Federal courts.

I have always said that what we need to do is follow the money and ask, “Who could be paying for this?”  What is Burgess’ motivation?  No one sues someone for nothing.  While some people may think that a lot of people are suing us, this is not the case.  All of these lawsuits are being filed by the same people and among them is Thurston Twigg-Smith, a man that has unlimited resources.  One has to be asking why?  What is Twigg-Smith’s real motivation?  At some point, the courts need to realize that these complaints need to be thrown out permanently.  There should be a limit to the nonsense.  Perhaps what we need to do is sue these people for harassment.  Maybe then common sense can prevail.

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Posted in Government, Legal, OHA, Political, Sovereignty

It’s a matter of trust…

Saturday, December 15th, 2007

By: TRUSTEE ROWENA AKANA

Source: December 2007 Ka Wai Ola o OHA Column

‘Ano‘ai käkou…  It is no secret that OHA has had a staff retention crisis for the past several years – 36 position vacancies this year alone.  It seems like all of our most experienced and capable staff have left and gone to DHHL, Kamehameha Schools, and other greener pastures.  This has to stop.  OHA’s mission is too important and far-reaching to constantly have to start over with new staff.  OHA needs to change at a fundamental level, and I say we should start by restoring the most basic ingredient of any relationship — trust.  How do we do that?  It’s really simple actually.

The leadership needs to rethink its current security procedures.  Each OHA staff person will soon be given individual ID cards that could potentially track him or her as they enter and leave any OHA workspace.  Heaven help you if you enter a trustee’s office without permission! All OHA staff members have also been fingerprinted to authenticate that they are indeed the person signing into and out of work.  Everyone knows it is their managers’ responsibility to make sure that their staff members are reporting to work on time.  The finger printing system only proves that there has been a failure at OHA’s management level.  The message that the current leadership is sending our staff is this – “We don’t trust any of you, just like we don’t trust some of the trustees.”  My question continues to be, “What could they possibly be doing to make themselves so paranoid that they don’t even trust their own staff or fellow trustees (other than 2 or 3 “inner circle” trustees).”  OHA can now be likened to a “lockdown” security compound.

If you want people to be trustworthy, you should first give them your trust.  As the administrator himself has said in the past, “we are all family.”  I agree with that wholeheartedly and I truly wish that this will eventually occur.  Unfortunately, the lack of trust reveals that, at present, we are a very dysfunctional family.

Currently, all OHA staff is discouraged from speaking with a trustee directly and all written communications must go through the administrator first.  This causes trustees to wait for up to 3-4 months to get any requested fiscal information.  All of the trustees are also beneficiaries who should never be denied access to OHA personnel or be forced to wait so long for an answer.

About Trust:  The board leadership has passed a new policy that forces a trustee to get the permission of all nine trustees to release or discuss any information shared in executive session.  Our old policy allowed a majority (5) of trustees to release any confidential information if it is appropriate.  This bylaw has served OHA without incident for the past 27 years.  The sudden change makes me wonder, “What is the current Chairperson doing that she fears is not pono?”  The new bylaw goes against basic trust law.  For example, a trustee would not be able to say anything if other trustees are making bad decisions behind the closed doors of executive session.  Hawaii Revised Statutes (HRS) 554A-6 requires a dissenting trustee to express their opposition or they would be liable for any damages caused by the co-trustees’ decisions.  How can a trustee do that if he or she is gagged by the new policy?

Case in point, at our last Board meeting on Lanai, the Chair’s agenda listed two items to be discussed in executive session using HRS 92-5(a)(4):  “Agenda Item VI., B. Legal Advisory by Board Counsel and Deputy Administrator regarding the board’s responsibilities and obligations under OHA Contract #1820 with Zell and Cox, Law, P.C. to ensure the provision of continued legal services to OHA.” and “Agenda Item VI., C. Legal Advisory by Board Counsel and Deputy Administrator regarding the board’s responsibilities and obligations under OHA Contract #1612 with Patton Boggs, LLC to ensure the provision of continued legal services to OHA.”  There was a discussion on these confidential matters, but then a motion to renew the two contracts with “x” amount of dollars, etc. was suddenly proposed.  Trustees were not given a copy of the motion in advance and an action item for this matter should have been included in the Trustees’ folders.  This should have been taken up in open session because contracts are not confidential.  But if that were done in an open session, then beneficiaries would know how much is being spent on our lobbying efforts.  This should not be a secret.  Everyone knows the board is supporting federal recognition legislation. 

This is the 4th time that this board has used the HRS 92-5(a)(4) executive session law to keep an action secret.  No materials regarding the action are provided to trustees ahead of time and they are instead presented on a chalkboard or in a slide show.  Then the vote is called.  This way, there is no paper trail of the action and the executive session minutes are not released to anyone.

While I recognize that certain parts of our records must remain confidential because of privacy issues, etc., there is no need to keep our entire discussion confidential.  We should consider ideas like blackening out the confidential information and releasing the non-confidential portion of our documents to the public, just like the federal government does.  Building a nation will require elected leaders to be forthright and strong, fair and transparent.  Who will have faith in a nation being built by people hiding behind the law and afraid to tell the people the truth about what they are doing?

I would like to stress that I am not against spending our funds to lobby for the passage of federal recognition.  At present, being federally recognized is the best way to protect our assets and future entitlements from lawsuits.  What I do object to is the secretive process that the leadership is using, which is neither upfront nor forthright.  As a trustee for OHA, it is my fiduciary responsibility to know exactly how much of the trust is being spent and for what purpose.  It is a responsibility I take seriously and I will continue my inquires until I can finally get straight answers.

In my opinion, the responsibility for this huge mess rests squarely on the current Chairman’s shoulders.  There is absolutely no way for a dissenting trustee to have any impact at board meetings.  It all started five years ago when she combined the five subject matter committees into only two, thus eliminating three committee chairmen and leaving the remaining two committees under the control of her two most trusted trustees, thereby consolidating her power.  After gaining total control over the board committees, she started using legal opinions to help her enforce her will at the board table to justify her actions and give her almost absolute control over all board discussions and stifling any dissenting views of other trustees and even certain beneficiaries.

Some, may consider these actions clever.  But is it?

Mathew 10:26

“For there is nothing covered, that shall not be revealed; and hid, that shall not be known.”

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Posted in Government, Legal, OHA, Political

Hawai’i's Hijacked Civil Rights Advisory Committee

Monday, October 15th, 2007

By: OHA Trustee Rowena Akana

Source: Ka Wai Ola o OHA, October 2007

‘Ano’ai kakou… As impossible as it sounds, the anti-Akaka racists have reached a new low. As most of you may have heard, the Hawai’i State Advisory Committee to the U.S. Commission on Civil Rights (HISAC) has begun hearing testimony on the proposed Akaka bill.In a move that shows just how ignorant the Bush administration is about Hawaiian history and culture, new members of the advisory committee include H. William Burgess, James Kuroiwa Jr., and lawyer Paul Sullivan – all of whom have publicly stated their strong opposition to the Akaka bill. These bozos are now using the Commission to give their preposterous arguments the illusion legitimacy. The fact that the Civil Rights Commission is against the Akaka Bill is an irony of the highest order. The leaders of the Civil Rights Movement who bled for equal rights in the ’60′s must be rolling in their graves!

HISAC had a public briefing in the state capitol auditorium on August 20th. State Attorney General Mark Bennett spoke in strong support of the Akaka bill, while Roger Clegg of the Center for Equal Opportunity in Virginia spoke in opposition. Bennett must be commended for his expertise on the issues and using his quick wit to make Clegg look like a fool.

Clegg kept insisting that the Akaka bill is unconstitutional, as if saying it over and over would make it a reality, but Bennett made it clear that Congress has the (plenary) power to pass the bill into law.

Clegg, admitted (several times) that he wasn’t familiar with Hawaiian history and culture and it showed. He argued that the “one drop rule” for Hawaiians to be considered Hawaiian wasn’t enough to qualify them to help rebuild a Hawaiian Governing Entity. He clearly didn’t know that the United States Congress created the blood quantum percentage in the 1920 Hawaiian Homes Act to limit the number of Hawaiians who qualified for homelands. It had nothing to do with defining whether a person can be considered Hawaiian or not.

Clegg also argued that the islands were not united as a single distinct nation prior to the arrival of Europeans and, therefore, don’t qualify to rebuild their government. This statement is also mistaken since the islands were still occupied by Native Hawaiians who were governed by a feudal system of Island Chiefs. Bennett had to remind him again that the argument is moot since Congress clearly has the power to make it happen.

Clegg argued that Hawaiians can’t rebuild their government under the process set-up for Native American tribes because the Hawaiian government hasn’t continued to function over the 100+ years since the overthrow. Bennett responded that it is ridiculous for the United States, who helped to overthrow the Hawaiian Government, to now say that Hawaiians can’t rebuild their government because it doesn’t exist today.

Finally, Clegg argued that if the Akaka bill passed, it could encourage other people to ask for nationhood, such as the Native peoples living in Texas. Bennett said it best when he reminded the audience that people usually go to “slippery slope” and “what if” arguments once they run out of good ones. This got more than a few chuckles from the audience.

I believe Clegg showed his true intentions when he mentioned that Hawaiians number more than 400,000 people across the nation and asked whether it would be wise to give so much power to such a large group within the U.S. He stressed that no American Indian or Alaska Native tribe even comes close to our numbers. If he had done his research, he would have known that the Navaho, the largest Native American tribe, have close to 500,000 members.

Clegg and the racists that invited him here to speak obviously fear that the Akaka bill would give us the power to finally help ourselves to forge a brighter future. They obviously want to keep Hawaiians and other native peoples from being self-sufficient. We need to fight harder now to preserve, not only our rights as natives of this land, but to show these racists Americans that we are not just poor Hawaiians but savvy Americans as well. We will attain sovereignty no matter how long it takes.

Dan Boylan of Midweek said it best: “The GOP Insults Hawaii’s Host Culture,” by stacking the deck of the Civil Rights Commission with Republican ideologues.

Imua e Hawai’i nei

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Posted in Government, Legal, Political, Sovereignty

Divide & Conquer

Saturday, September 15th, 2007

By: TRUSTEE ROWENA AKANA

Source: September 2007 Ka Wai Ola o OHA Column

`Ano`ai kakou…  Honolulu attorney Walter Schoettle must like beating a dead horse.  The Day v. Apoliona lawsuit against OHA is just another chapter in his long legal battle with OHA over the Hawaiian blood quantum percentage of beneficiaries.  This war in the courts goes back 20 years.  For example:  Price v. Akaka (1993); Price v. Hawaii (1991); Price v. Akaka (1991); Price v. Hawaii (1990); and Price v. Hawaii (1985).  (http://lp.findlaw.com/).

When I was first elected to OHA 17 years ago, Walter Schoettle was the attorney for The Hou Hawaiians (Nui Loa Price and Kamuela Price).  They sued several federal and state officials, including OHA trustees.  The district court denied the Hou’s motion for summary judgment and dismissed their complaint against all defendants.  But that didn’t stop Schoettle.

Now Schoettle has a new strategy with Virgil Day, Mel Ho’omanawanui, Josiah Ho’ohuli, Patrick Kahawaiola’a and Samuel Kealoha (all of whom are 50 percent Hawaiian or more), to revisit blood quantum again.  Their lawsuit argues that OHA’s $28 million annual budget should go to those with at least 50 percent Hawaiian blood.  In essence, they don’t want to “share the wealth.”  Let us not forget that blood quantum was never an issue with the Hawaiian Kingdom.  It was the United States Congress who created the blood quantum percentage in the 1920 Hawaiian Homes Act.  It was created to limit the number of Hawaiians who qualified for homelands, not to preserve our race.  It is sad that even after 100 years, some Hawaiians don’t recognize when they are being used.

They also challenge OHA’s right to partially fund the Native Hawaiian Legal Corporation (NHLC), which provides Hawaiian families with affordable legal representation.  Thousands of people who might not otherwise have been able to obtain legal advocacy have held on to valuable lands or received fair compensation for their lands.  NHLC also helped others to obtain Hawaiian Homestead leases, water for taro farming, and access to shoreline areas for fishing.  NHLC is the only non-profit, public interest law firm specializing in Hawaiian land and traditional rights.

Other groups that are threatened by the lawsuit include Alu Like, a non profit that funds Kupuna programs and assists Hawaiians with job training, and Na Pua No’eau, a Hawaiian language and culture program established at the University of Hawaii at Hilo.  It is important to point out that all of these programs are also funded through matching funds by the legislature.

The lawsuit also objects to OHA’s use of trust funds to lobby the Akaka Bill in Congress.  They seem to miss the point that without the Akaka bill, we may lose all of our Hawaiian Trusts and programs to lawsuits.

Walter Schoettle may be misleading his clients by telling them that unless they stop OHA, they will have to share their benefits, if the Akaka bill passes, with those with less than 50% Hawaiian blood.  I say, “What benefits?”  The only thing people with 50% or more Hawaiian blood are entitled to now are Hawaiian Home Lands.

On the other hand, all 1.4 million acres of Ceded Lands belong to all Hawaiians, regardless of their blood quantum.  The Native Hawaiian Trust Fund is much bigger than the acreage under the control of the Department of Hawaiian Home Lands (DHHL).  There is no need to be selfish.  Their self-serving attitude will only end up dividing Hawaiians.

Another reason that some homesteaders listed in the lawsuit probably don’t want the Akaka bill to pass is that they only want sovereignty on DHHL Lands.  How small-minded can these people be?  Do they honestly believe that hundreds of thousands of Native Hawaiians are going to go along with such a terrible idea?

We all need to realize that if we fight over the entitlements we receive then we all end up losers.  The only ones who end up winning are the Twigg-Smiths of the world.  Virgil Day and the other 50% Hawaiians need to wake up and realize that they are only being used to divide us.  Who wins if the Schoettles and the Burgess’ succeed?  Certainly not the Hawaiians.

“I appeal to you… that there be no division among you, but that you be united in the same mind and the same purpose.”  I Corinthians 1:10

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Posted in Government, Legal, Political, Sovereignty

The need for compromise & unity

Thursday, September 15th, 2005

By: TRUSTEE ROWENA AKANA

Source: September 2005 Ka Wai Ola o OHA Article

`Ano`ai kakou…  In late July, the trustees returned from another disappointing trip to lobby for the passage of the Akaka bill in Washington, D.C.  The bill has enough votes to pass the U.S. Senate, but unfortunately, several Republican Senators used last-minute political gamesmanship to prevent the bill from reaching the Senate floor for voting.  After witnessing these underhanded tactics, I am amazed that anything can get done in Washington.

The Senators that oppose the Akaka bill are obviously relying on false information being provided by Akaka bill opponents such as Thurston Twigg-Smith (who is part of the Arakaki lawsuit and whose ancestor helped orchestrate the overthrow), H. William Burgess (also with the Arakaki lawsuit and the anti-OHA organization Aloha for All), and Richard Rowland (Grassroot Institute of Hawai’i).  These people want us to believe that they are fighting for equality, but I believe they are actually motivated by racism.

To make matters worse, Washington has become so politically divided along party lines that neither side is willing to work together and hammer out a bill that all sides can live with.  It seems as if the Democrats and Republicans have lost the art of compromise. 

Years ago, Washington used to be a different place.  As Jack Valenti (President Lyndon B. Johnson’s Administration) described it, members of Congress built relationships based on trust.  The party in power understood that the role of the opposition was to oppose and didn’t take their criticism personally.  The minority party knew that just because you opposed an issue didn’t mean you couldn’t compromise.  No party could ever get everything they wanted.  That’s not how politics works.  Politics depends on compromise.

Here at home, the time has come for Native Hawaiians who support and oppose the Akaka Bill to come together in the spirit of compromise.  Native Hawaiians who oppose the Akaka bill need to realize that if they want to form an independent Hawaiian nation, they can – even if the Akaka bill were passed into law.  The bill does not give any position on the ultimate form of Native Hawaiian governance.  It only requires the Federal Government to recognize a trust relationship with our people.  More importantly, it would give us the ability to protect our trust assets until our governing entity is formed.

All of us can agree that we cannot build a nation without assets.  Native Hawaiian opponents of the Akaka bill must understand that there can be no final judgment in the federal courts if Congress approves the Akaka bill.  The bill offers strong protection to all of our Hawaiian trusts from the constant threat of lawsuits.  That’s why I have always supported the bill.

What we face today as Hawaiians is no different than what occurred over 100 years ago. We are still fighting off assaults on our culture, rights to our lands, and racism.  Only now, we are being called racists because we want to protect our entitlements.  Times have not changed much, people are still the same and racism is still the motivation behind the move to relieve us of whatever entitlements we have left.  The only thing that has changed is the sophistication used to manipulate us and the law.

Let us begin to work together for the cause of recognition.  Let us begin to agree on the things that we can agree to and set aside the things we differ on and move forward together for the future generations of Hawaiians yet to come.

We are one people.  We cannot afford to be divided, not when so much work remains to be done.  The struggle to regain our sovereign rights requires unity and the strength of numbers.  As the recent federal court decision regarding Kamehameha schools proves, the future of OHA, the Department of Hawaiian Home Lands, and all of the Hawaiian Trusts are certainly at risk.  We must work together and combine our influence so that we can do what is necessary to pass the Akaka bill.

Let us be as our Queen wished…  ONIPA’A, steadfast in what is good!

“I appeal to you… that there be no division among you, but that you be united in the same mind and the same purpose.”  I Corinthians 1:10

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Posted in Government, Legal, Political, Racism, Sovereignty

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