Calvin Say | Rowena Akana

U.S. Supreme Court, legislative update

By: OHA Trustee Rowena Akana

Source: Ka Wai Ola o OHA, May 2009

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 browbeat the OHA trustees into dropping our lawsuit to stop any further sale of ceded lands. SB 1677 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 SB 1677 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 Hawaii 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 ñ with OHA and its beneficiaries winning in the end.

SETTLEMENT BILLS

In my last column, 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 Nov. 7, 1978, and July 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 million 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 Gov. 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 20 percent 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 and money only ñ 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 Jan. 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 Nov. 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 Jan. 1, 2010. Failure of OHA to respond to the Governor, the President of the Senate and the Speaker of the House by Jan. 1, 2010, shall be deemed to be a rejection of OHA’s 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 Jan. 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 20 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.

Governor trying to strongarm ceded land deal

By: Trustee Rowena Akana

Source: Letter to the Editor, The Maui News, April 18, 2009

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 the Office of Hawaiian Affairs wanted, it does require a majority vote of both the House and Senate to approve 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 browbeat the OHA trustees into dropping our lawsuit against any further sale of ceded lands. At this writing, SB1677 has been deferred from the final vote on third reading for four days in the House. Gov. Linda Lingle has made it clear that she will not sign the bill unless we drop our case.

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. 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.

No Progress Since February 2002

By Rowena Akana
June 2002

Source: Ka Wai Ola o OHA

The Legislative session ended on May 2, 2002. OHA had some victories and some disappointments. I am happy to report that the bill fixing the legislative problems which held up our ability to give grants passed the legislature and is on the Governor’s desk for approval. With his approval, OHA will be able to release a substantial sum of monies, which had been tied up, for grants to various Hawaiian entities.

I am also happy to report that the legislature passed the bill which allows OHA trustees to join the State Retirement System. Finally, making Hawaiian elected officials equal to other state elected officials.

The disappointment came with OHA’s revenues. Although OHA put forth a bill asking for interim revenues until the ceded lands issue is resolved, and kept it alive until the very end, the legislature found that it did not have the funds to pay the interim revenue, even though this same legislature gave the Japanese Cultural Center $8 million to bail them out of their money problems.

The Hawaii Supreme Court made it very clear to the State that it is its fuduciary obligation to the Hawaiians. We must continue to ask for our fair share of the ceded lands, whether it be through interim revenue, another revenue stream formula, or some sort of settlement. It ultimately may be necessary to take the State to court to force them to pay the Hawaiians their fair share of the ceded lands.

Since the new leadership took over the OHA board in February, there has been NO discussion on how to make up lost revenues or what the strategy will be to stop the bleeding. The lack of leadership of OHA is disappointing not only to those of us who have worked hard to try and resolve these land and revenue issues, but also to beneficiaries. Where is the plan? There has been no direction from this Chair on how to proceed or to plan for the future. All programs being worked on now were from the previous leadership. So, what’s new?

The issue of tying the ceded lands resolution to the ceded land inventory surfaced this past session, again. OHA and the State already know what lands produce income. Requiring a full inventory is only a stall tactic to withhold payment to the Hawaiians. Fortunately, this bill died, but we must be ever virgilant to make sure it does not resurface or gain momentum in the next session.

On another note, I am pleased to report that our FANNIE MAE loan program is progressing and with workshops to educate our beneficiaries more Hawaiians will become homeowners. We hope to have the kick off for the loan program on May 29th with a full press conference. It is anticipated that we will be able to help many of our Hawaiian beneficiaries by leveraging our monies through FANNIE MAE. This, in conjunction with our efforts to produce reasonable manufactured housing should put many of our low to middle income Hawaiian famiies in homes. I thank Doug McWilliams of FANNIE MAE for his tireless efforts in helping our Hawaiian community, and our OHA staffer, Patti Tancayo, for all her hard work with the FANNIE MAE project.

A big Mahalo to the leadership of the state legislature for taking the time to speak to me and our Administrator about our bills. In particular, Speaker Calvin Say, Chair Dwight Takamine, Chair Eric Hamakawa, Senate President Bobby Bunda, Chair Brian Taniguchi, Chair Jonathan Chun, Rep. Joseph Souki, Senator Colleen Hanabusa, the Hawaiian Caucus and the Republican Caucus for their efforts in getting our two bills passed. However, the bigger picture is our ceded lands revenue and getting the Akaka Bill passed by Congress. For without federal recognition the suits against OHA will not be resolved.

Thank you for all of your support–those of you who have continued to be supportive in the Community.

Entitlements

By: Trustee Rowena Akana
December 11, 1998

In his inaugural speech on December 7th, Governor Cayetano made a pledge to the Hawaiian community, “…And I pledge here and now that I will leave no stone unturned in settling the state’s differences with OHA over ceded lands. Before the end of my term we will reach a settlement which is fair and just to all, Hawaiian and non-Hawaiian.”

In the short time that I have been the Chairman of the Board of Trustees, I’ve made it clear that one of my priorities is to seek what is fair for our people. We’ve waited much too long for the State and Federal governments to lend credibility to their words. I am hopeful that the governor’s words are not empty words to be added to the pile of rhetoric dating back to the annexation in 1898, when 1.8 million acres of government and crown lands were taken. A Joint Resolution of Annexation provided that money from the ceded lands would be used solely for the benefit of the inhabitants of the Hawaiian Islands. Since that time we have waited for them to make these words credible. Hawaiians can no longer afford to wait for the governments to keep their words. It should be clear to everyone by now that unless we make things happen, waiting cannot be one of our options.

The Organic Act which established Hawaii as a U.S. Territory, also provided that ceded lands would be used for the benefit of the inhabitants of the Hawaiian Islands.

As we work toward achieving fairness from the State in negotiations on the Heely rulings, we must be equal partners in these negotiations.

Some suggest that compromise is the key. I whole-heartedly agree. OHA and its beneficiaries have compromised. That’s why we receive only 20 percent of proprietary revenues instead of 100 percent. That’s why the state forced Act 329 upon the Hawaiians. An Act which capped OHA’s revenue at $15 million for two years, while the state worked out its fiscal problems. The cap expires on June 30, 1999. The State is not any closer to any real negotiating numbers than they were two years ago. How serious do you suppose they are in negotiating a settlement with OHA? Some public comments made by the Governor are troubling. He said he was very comfortable with the $15 million cap. Also troubling is the fact that Calvin Say, (the new speaker of the house) had decided not to name a Hawaiian Affairs Committee because, he said it wasn’t important enough! The biggest issue facing the legislature is the ceded land claims! Calvin Say has put Hawaiian Affairs in the hands of the Judiciary Chair (Ed Case, Rep. Manoa). This is the committee that will hear Hawaiian bills and have the ability to change the laws of the land. They want to make sure that they create a bill that will statutorily stand up to muster. So in one fell swoop, they can destroy OHA and the 20% revenue share of cash entitlements. This maneuver is so blatant that the house leadership is confident that they can wipe us out.

I am happy to see that the Governor is publicly moving his position from not being able to afford what OHA is claiming to be its rightful share of revenues from ceded lands to a position of settling our differences.

In advocating for Hawaiian ceded lands and entitlements, OHA must put its best team together to represent us. People who are akamai and experienced. Recently, the Board of Trustees approved a team consisting of myself and Trustees Clayton Hee and Mililani Trask as primary team members.

We trustees must have you alongside us as we journey to our eventual and rightful end: Justice. From now on, it will take all Hawaiians to stave off the attack.

Hawaiians Can Make a Difference

By Trustee Rowena Akana
June 9, 1997

This summer, I’ll be getting together with representatives of various Native American tribes to see what we can learn from those who have found successful models of self-government and economic self-sufficiency. I’ll be sharing my observations with you, but this month I want to repeat how important your vote is. As I compare our situation with the Native American tribes’, the difference in our numbers occurs to me. Unlike Native Americans in any state, “Native” and part-Hawaiians eligible to vote are counted in the hundreds of thousands and we could have real clout at the polls.

You have seen me hint, not too subtly, in this paper and others, at replacing legislators who pretend to be our friends but are not really committed to our well-being. Although our next elections are 17 months away, it is not too early to be asking whether an incumbent deserves your vote. Potentially, we Hawaiians could form a bloc capable of striking terror into the hearts of two-faced politicians.

In the past, I have personally endorsed or opposed certain candidates. In the future, I will be guided by, among other factors, the first vote on the original objectionable draft of House Bill 2207. As passed, this legislation represents a compromise between the Senate and OHA which buys us time but locks us into a $15 million annual payment when everyone knows we are owed twice that. This dubious deal is supposed to give us our badly needed inventory of ceded lands which the Governor is dead set against. He claims that an inventory will take too long and that our claims should be settled now. Why? Does he know more than he is saying?

Watch the Governor carefully between now and November 1998. Watch your senators too. Recently Senator Lehua Fernandes Sallings lost her co-chairmanship of the powerful Ways and Means Committee to Roz Baker, a team-player who pushed the so-called “insurance reform” that is so flawed. We need to track this kind of movement. As for our friends and enemies in the House of Representatives, a vote for HB 2207 was a vote against Hawaiians.

Once again, here are the legislators who don’t deserve our vote:

Democrats:

Abinsay, Felipe; Moanalua, Shafter, Kapalama, Kalihi Waena
Ahu Isa, Lei; Alewa, Kapalama, Liliha, Nuuanu, Puunui
Cachola, Romy; Kalihi Kai, Palama
Case, Ed; Manoa
Chang, Jerry; South Hilo
Garcia, Nestor; Waipahu, Crestview
Goodenow, Kenny; Waimanalo, Keolu, Lanikai, Kailua, Lanikai,EL
Herkes, Bob; Ka’u, Puna
Ito, Ken; Kaneohe
Hiraki, Kenneth; Kakaako, Downtown, Ala Moana
Jones, Merwyn; Makaha, Waianae
Kanoho, Ezra; Lihue, Kapaa
Kawakami, Bertha; Koloa, Waimea, Niihau
Marilyn Lee; Mililani, Waipio
Morihara, David; Paia, Makawao, Kunia, etc.
Menor, Ron; Wheeler AFB, Mililani
Nakasone, Bob; Kahului, Wailuku, Waikapu
Okamura, Tom; Red Hill, Halawa Heights, Pearlridge, Aiea
Oshiro, Marcus; Wahiawa, Whitmore Village
Oshiro, Paul; Ewa Beach, Waipahu
Say, Calvin; Palolo, St. Louis, Kaimuki
Souki, Joe; Waihee, Wailuku
Stegmaier, David; Hawaii Kai, Portlock, Kalama
Suzuki, Nathan; Aliamanu, Moanalua, Salt Lake
Takamine, Dwight; N. Hamakua, N. Hilo, N. Kohala
Tom, Terrance ; Kahaluu, Ahuimanu, Heeia, Kaneohe
White, Mike; Lahaina, Kaanapali, Molokai, Lanai
Yamane, Brian; Diamond Head, Kapahulu, Kaimuki, Waikiki
Yonamine, Nobu; Pacific Palisades, Momilani, Manana
Yoshinaga, Terry N.; McCully, Moiliili, Pawaa

Republican:

Marumoto, Barbara; Waialae, Kahala, Wilhelmina Rise

As for our friends in the House, I hope Hawaiians will join me in supporting these legislators who voted against HB 2207:

Democrats:

Dennis Arakaki; Kam Heights, Kalihi Valley
Eric Hamakawa; South Hilo, Puna
Mike Kahikina; Barbers Point, Nanakuli, Maili, Waianae
Hermina Morita; Haiku, Hana, Hanalei, Kapaa, etc.
Scott Saiki; McCully, Moiliili, Kaimuki, Kapahulu
Alex Santiago; Schofield, Kahuku, Mokuleia, etc.
Mark Takai; Waimalu, Waiau, Royal Summit, Newtown
Roy Takumi; Pearl City, Waipahu
David Tarnas; South Kohala, North Kona

Republicans:

Sam Aiona; Makiki, Tantalus, Manoa
Galen Fox; Waikiki, Ala Wai
Chris Halford; Makena, Kula, Kihei etc.
Quentin Kawananakoa; Nuuanu, Punchbowl, Pauoa, etc.
Bob McDermott; Aliamanu, Hickam, Foster Village, Aiea, Halawa Valley
Colleen Meyer ; Laie, Waikane, Waihole, etc.
Mark Moses; Kunia, Makakilo, Ewa, Waipahu, Kapolei
David Pendleton; Kailua, Kaneohe, Enchanted Lake, Maunawili, Pohakapu
Cynthia Theilen; Kailua, Kaneohe Bay Drive
Gene Ward; Hahaione, Kuiouou, Niu, Aina Haina, etc.
Paul Whalen; South Kona, North Kona

Hawaiians’ Court Victories Could be Short-Lived

By: Trustee Rowena Akana
March 14, 1997

Source: Star Bulletin Viewpoint

Bills before Legislature attempt to reverse gains by Hawaiians

Two recent rulings, one from the Hawaii Supreme Court and the other from a Circuit Court, almost convinced Hawaiians that justice is alive and well in our islands.

I am referring to Public Access Shore Hawaii v. County of Hawaii Planning Commission, or the PASH decision, in which Judge Robert Klein held that our “legitimate traditional and customary practices must be protected,” and to OHA v. State of Hawaii in which Judge Dan Heely defined an augmented basis for OHA’s ceded lands revenues. And I say almost convinced us because of two bills recently referred out of committee this legislative session.

The provisions of Senate Bill 8, which would have gutted PASH, are, for this session, history thanks to a massive show of force by the very people the bill’s authors are claiming to benefit. The companion bill in the House had already died in its sleep, Rep. Ed Case, chairman of the Hawaiian Affairs Committee, having decided the better part of valor would be to defer it indefinitely. Then Case, a descendant of missionaries, determined to live up to the injustices perpetrated by his ancestors, got down to the serious business of voiding the Circuit Court decision in OHA v. State of Hawaii, House Bill 2207.

This monstrous piece of legislation, which revokes language in the Constitution, the Admissions Act, and Act 304, begins with a discussion of how wrongheaded Judge Heely was in misreading the Legislature’s intent when he ruled in OHA’s favor. Unlike the bill that would have nullified PASH, this one got no public hearing at all.

Like PASH, however, it is couched in terms of doing a big favor for everyone, especially OHA.

“It is in the public interest,” the measure reads (not to menton Case’s interest given the clientele his law firm represents), “that existing ambiguities be clarified, judicial misinterpretations of legislative intent be corrected, immediate threats to the state’s overall financial condition be mitigated, the ability of the state to carry out its sovereign functions be preserved, and a mechanism for the resolution of all outstanding issues between the state and the Office of Hawaiian Affairs outside of the litigation process and which involves representatives of both be provided.”

Case would pull all that off through a ceded lands inventory compiled in the state’s favor by the Department of Land and Natural Resources, a basis that excludes many lucrative sources of income, fixed income to OHA far below the currently mandated 20 percent of ceded land revenues, among other mechanisms designed ultimately to reduce Hawaiian entitlements.

Case seriously needs a lesson in contemporary U.S history. As a feature of statehood, the lands currently referred to as ceded were conveyed back to the state by the federal government in trust for the Hawaiian people. For some 20 years, the state barely acknowledged its fiduciary duty to us. This pattern of dereliction continued even when the state Constitution was redrafted and state statutes were enacted to provide for partial compliance with this duty.

I emphasize the word partial because the current system provides for the Hawaiian people to receive only a 20 percent share of one type of revenue these lands yields. OHA had to take the state to court to obtain a modicum of compliance with a duty ignored since 1959. Now it not only balks at obeying a subsequent court order, but wants to overturn it after the fact — not through any process of appeals but by providing that House Bill 2207 be applied to the judge’s decision retroactively.

The law does not look favorably on retroactivity and Case, in spite of his concern that future meetings between the state and OHA take place somewhere other than in court, fully expects OHA to challenge this bill. The bill’s unbelievably amateurish Section 10 seems to presume we will be successful in our attack since it starts off with the clause, “Even if the retroactive effect is held invalid…” The bill then goes on to provide that its statement of the intent of Act 304 is correct no matter what.

In other words, it remains retroactive even if a court says it’s not. While I happen to agree with Case that OHA will prevail in any challenge (including to Section 10), I believe that its most vulnerable feature is not its retroactivity but its fundamental injustice.

But don’t expect House Bill 2207 to die quietly. House Speaker Joe Souki is behind it and so is Calvin Say, Chairman of the House Finance Committee, whose committee members, for the most part, couldn’t be bothered with the hearing on this bill. This is a bill that saw the light of day for one reason: The state cannot pay OHA because it has been squandering the money meant for the Hawaiian people.

If ours were a private trust, instead of a public one, such irresponsibility would not be tolerated. Imagine a well intentioned uncle setting up a trust for his nieces and nephews with their stepfather authorized to administer it. Not a court in the country would allow the stepfather to reduce payments to his beneficiaries while he used their trust income to pay his own expenses as well as the debts he ran up living beyond his means.

Our stepfather/state is just as outrageous, if not worse “I can’t pay you,” the state is trying to tell us, “because I spent all my money and yours, too.” House Bill 2207 must be killed.

Rowena Akana is an at-large trustee of the Office of Hawaiian Affairs. The opinions in View Point columns are the authors’ and are not necessarily shared by the Star Bulletin.

Hawaiians Are Not the Enemy of the General Public

By Trustee Rowena Akana
February 8, 1997

A chaotic assault on Native Hawaiian entitlements got underway during the first week of the 1997 legislature. First, we heard the House Committee on Hawaiian Affairs take a swat at OHA’s submission for general funds, our only source of assistance for Hawaiians who do not meet the legislatively imposed fifty-percent blood quantum. Then we saw the House judiciary committee Chair Terrence Tom bully out of committee a Constitutional Convention, structured to give our legislators summer jobs gutting Native Hawaiian entitlements in 1998. On top of that, there is a measure afoot to repeal the statute that allows us access to justice and lets us sue the State when it fails to comply with its trust obligation to Hawaiians.

Clearly, many of our lawmakers have bought into the Governor’s public relations blitz targeting Hawaiians as Public Enemy Number One. While the same old cronyism and mismanagement–woes he vowed to fix–continue, the Governor is trying to shift the blame for the State’s cloudy fiscal future to the Office of Hawaiian Affairs. Some very smart people are following his camera when they should be focusing elsewhere.

So that we are all on the same page, I’ll set out the numbers again. The State gets 80 percent of ceded land revenues, or the lion’s share of land leases and rents. Until OHA took the State to court and won a determination to the contrary, the State was assured of ALL of the “sovereign” income from the big-ticket tenants such as the airport, Duty Free Shops, the University of Hawaii, etc. In addition, it collects revenues via the highest income tax in the United States, the most inequitable and pervasive general excise tax and other sources of funding extracted from its citizens, including Hawaiians. The Office of Hawaiian Affairs gets 20 percent of the income from ceded land leases and rents. Period. While Circuit Court Judge Dan Heely determined that OHA should be getting a percentage of “sovereign” income too, OHA has never received any. In an attempt to make sure we never do, the State is appealing Judge Heely’s decision. Currently Cayetano & Co. are floating the rumor that a hired gun from the Mainland will replace their consistently losing team from the Attorney General’s Office. In case this suit is, once again, decided on the merits, there is a bill in the hopper, drafted last year and brought back from the dead by Representatives Calvin Say and Nathan Suzuki, the Governor’s bag men in the House, excluding “sovereign” income from the ceded lands formula.

All this leads to the conclusion that the State is following the federal example in reneging on its treaties with Native people. Sadly, it has successfully stirred up public resentment so that the betrayal appears justified. A recent Honolulu Star Bulletin article called for OHA’s revenue percentage to be reduced, and I would not be surprised to see a bill proposing such a reduction this session. The State has not told the public that the 20 percent figure represents a compromise by OHA, the legislature, and the Governor, ratified by the voters in 1978. What would prevent the State from claiming a new, lower figure is still too much? Clearly, Hawaiians cannot have any confidence in the State even when it commits its word to law.

And there is an even bigger shibai going on, one affecting Hawaiians and non-Hawaiians alike. Whether the legislature chews up Hawaiian entitlements piecemeal during this session or swallows them whole during a Constitutional Convention, the financial bottom line will not change. Considering the entire State budget, the annual sum owed OHA based on 20 percent is very small, hovering around one percent. Paying it in full and on time should not bankrupt a fiscally responsible State. On the other hand, eliminating the payment won’t be the solution to poor management. The real bottom line here is that no one should trust the State’s representations when it comes to Hawaiian entitlements. The non-Hawaiian public should realize that Hawaiians are sharing 80 percent of our trust with them. To take more from us than we are already giving would be unconscionable.

Hands Off Ceded Land Revenues

By Trustee Rowena Akana
February 10, 1996

Source Star Bulletin Viewpoint

A wide variety of legal principles and historical events cloud the state’s title as trustee of Hawaiian ceded lands. Even if, purely for the sake of argument, the state were to hold clear title to these lands, countless examples showing a breach of trust responsibilities can be found. These issues, pending court cases, and the future status of ceded lands in a Hawaiian sovereign entity, have yet to be settled. Until then, the state has no right to add another chapter to the long, sad history of Hawaiian land alienation.

Gov. Ben Cayetano has made it clear that he considers Hawaiian entitlements a burden on the state treasury. While ceded land revenues are a mere drop in the bucket in the overall state budget, these revenues are certainly not his to touch in any event. Hawaiians have a right to these revenues, as affirmed and reaffirmed by a variety of laws and legal instruments.

Although it is often stated that we receive 20 percent of state income from ceded lands, our agreement with the state actually gives us much less. Imagine not one but two pools of ceded land revenues — sovereign income and proprietary income. Sovereign income includes the big ticket items like airport landing fees, Duty Free Shop income, income generated by the University of Hawaii, etc. The state holds onto all of this income; the Office of Hawaiian Affairs and its native Hawaiian beneficiaries don’t get a cent of it.

The second pool, proprietary income, involves a considerably smaller amount of money, drawn from land leases and rents of ceded lands. It is this pool from which OHA draws its 20 percent to service the needs of native Hawaiians, as required by the 1959 Admission Act.

It represents not 20 percent of our Hawaiian entitlements but 10 percent (or less) of these two revenue sources.

The state assumed fiduciary obligation upon being admitted as a state in 1959 and Section 5(f) of the Admission Act stipulated that proceeds from the sale or other disposition of ceded lands would be held by the state as a public trust for the support of betterment of the conditions of native Hawaiians, public schools, agriculture, parks, recreational areas and other lands for public use, and capital improvement projects.

In 1995, Rep. Calvin Say introduced a bill that would have diverted the ceded land revenues of OHA to state capital improvement projects. This would have crippled OHA’s ability to deliver crucial services to the Hawaiian community.

It also would have amounted to double dipping by the state, which already gets 20 percent (the same amount OHA receives) specifically for capital improvement projects. To add insult to injury, Hawaiians already pay their fair share of taxes to pay for such building programs!

Fortunately OHA’s trustees and Hawaiian organizations mobilized quickly and gained the support necessary to kill Say’s bill. Hawaiian entitlements are too vital for us to wait until another crisis situation spurs us to action. Now that the state legislative session is under way, it is in the interest of Hawaiians and Hawaii’s general public not to allow our legislators to take away what little funds OHA and Hawaiians receive.

Say and House Speaker Joe Souki have helped drive our state into the present fiscal fiasco. They try to deflect blame away from themselves with a lot of smoke and hot air. They don’t address the real issues; they invent new ones. They pit Hawaiians against non-Hawaiians by creating an atmosphere of distrust based upon unwarranted fears.

Hawaiians aren’t the only ones at risk here. Every tax-paying citizen of Hawaii will be directly affected by the decisions of lawmakers in 1996. Already there’s talk of increasing our general excise tax. Already there’s talk again of taking away OHA’s funding to pay for capital improvements. Can we allow the state to continue mismanaging our ceded land funds and our hard-earned tax dollars? I think not.

We must protect what little we have, before we all end up like the state — dead broke.

Akana Targets “Anti-Hawaiian” Democrats

By Mike Yuen
May 16, 1991

Source Star Bulletin

A trustee of the semiautonomous Office of Hawaiian Affairs has made overtures to Republican legislators for help in finding candidates to seriously challenge Democratic lawmakers seen as “anti-Hawaiian.”

OHA at-large trustee Rowena Akana, a Democrat, cited House Speaker Joe Souki (D, Wailuku), House Majority Leader Tom Okamura (D, Aiea), House Finance Chairman Calvin Say (D, Palolo), House Hawaiian Affairs Chairman Ed Case (D, Manoa) and freshman Rep. Kenney Goodenow (D, Waimanalo), whose district has a high percentage of native Hawaiians.

“What we saw during the legislative session this year can only be described as one of the worst assaults on Hawaiian entitlements in OHA’s 17 years,” said Akana, an organizer of the Hawaiian silent prayer vigil at the state Capitol during the past session.

She directed much of her criticism at a House-approved bill crafted by Case that would have nullified a Circuit Court ruling that expanded the definition of what was covered by the 20 percent the state owes OHA for use of ceded lands.

That provision, based on the House’s conclusion that the ruling judge misinterpreted legislative intent, was eliminated during conference negotiations at the insistence of Senate conferees. The bill approved by both chambers temporarily sets the state’s ceded-land payments at $15.1 million annually while special commission tries to resolve the dispute between the state and OHA.

Republican state Reps. Quentin Kawananakoa (Nuuanu) and Sam Aiona (Makiki), both of Hawaiian ancestry, acknowledged that Akana has had “informal discussions” with GOP lawmakers. But, they maintained, the talks have yet to reach the point of targeting any Democratic lawmaker.

The House’s 12 Republicans have closely aligned themselves with native Hawaiian concerns. Kawananakoa and Aiona said that was done because it was the right thing to do – not for strategic reasons.

Akana said she is turning to the GOP and to independents because she has yet to see Democrats back a Democratic challenger over a Democratic incumbent.

Akana stressed that while other OHA trustees are unhappy with how the Democratic-controlled Legislature acted on Hawaiian issues, her contacts with the GOP don’t reflect an official board position.

But, she added, “As a trustee, my first priority is to protect our trust. I’m not here as a Republican or a Democrat. I’m here as a nonpartisan person. When people become the enemies of this trust, whether they are Democrat or Republican, they become my enemy too.”

Akana declined to identify pro-Hawaiian candidates because there are no firm commitments.