Posts Tagged ‘ceded lands’

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Setting the record straight about the sale of ceded lands

Sunday, November 15th, 2009

By: OHA TRUSTEE ROWENA AKANA

Source: November 2009 Ka Wai Ola o OHA Column

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

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

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

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

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

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

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

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

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

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

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

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Posted in Government, Land, Legal

U.S. Supreme Court, legislative update

Friday, May 15th, 2009

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.

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Posted in Government

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 Legal

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

Sunday, March 15th, 2009

By: OHA Trustee Rowena Akana

Source: Ka Wai Ola o OHA, March 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Posted in Land

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 Legal

Legislative Update: OHA versus UH for control over Mauna Kea

Sunday, March 15th, 2009

By: TRUSTEE ROWENA AKANA

Source: March 2009 Ka Wai Ola o OHA Column

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

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

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

Efforts to Transfer Total Control of Mauna Kea to UH

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

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

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

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

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

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

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Posted in Land

Looking forward to the New Year (2009)

Monday, December 15th, 2008

By: TRUSTEE ROWENA AKANA

Source: December 2008 Ka Wai Ola o OHA Column

Congratulations to all of the public servants elected in 2008. Campaigning can be a grueling process. I look forward to working with all of you in what is certain to be a historic year for Native Hawaiians. During this holiday season we can finally look forward to the passage of the Akaka Bill in 2009.

The time has come for all of us to come together in spirit and give the Akaka Bill the final push it needs to become law. The bill will provide powerful protection from the constant threat of lawsuits to all of our Hawaiian trust assets. This is the reason why I have always supported the bill.

The Akaka Bill has never been in a better position for passage, although it must be reintroduced in the 2009 Congress. The nation has elected Senator Barack Obama to be our next president and he is on record as supporting the Akaka Bill. The Democrats have also increased their majorities in both the U.S. House and Senate.  We nearly got the Akaka Bill passed in the Senate just a few years ago with significantly less Democrats in office. 

This time around it should be relatively easier – so much so that we could probably do without the “help” from our high-paid lobbyists. I believe we can get the bill passed on our own. Given the current state of the economy, we should seriously consider saving our beneficiary dollars wherever we can. Our congressional delegation certainly doesn’t need our current lobbyists just to count votes.

What we face today as Hawaiians is no different than what occurred over the past 100 years. We are still fighting off assaults on our culture, the deterioration of our rights to our lands, and attacks from racist organizations. 

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.

As many of you already know, the U.S. Supreme Court recently decided to consider the State of Hawai‘i’s appeal of a lower-court injunction against the sale or transfer of ceded lands until our claims have been settled. This inexplicable action by the Lingle administration highlights the fact that the future of OHA, the Department of Hawaiian Home Lands and all of the Hawaiian Trusts continue to be perilously at risk.

The state’s appeal can be traced all the way back to 1994, when OHA and four Native Hawaiians sued the state to prevent it from selling or transferring any portions of ceded lands. We argued that the state must first settle Native Hawaiian claims to the ceded lands.  

In 2002, a circuit judge ruled in favor of the state, but a 2008 ruling by the Hawai‘i Supreme Court, which cited the 1993 Apology Bill, ruled in our favor.  Now, with the latest appeal to the U.S. Supreme Court, the state is once again trying to sell ceded lands without resolving Native Hawaiian ceded land claims. A U.S. Supreme Court ruling in favor of the state could lead to the transfer or sale of ceded lands without any oversight by Native Hawaiians.

Therefore, we must work together and combine our influence so that we can do what is necessary to finally pass the Akaka Bill. The fate of 1.2 million acres of ceded lands, the legacy of our once great kingdom, hangs in the balance.

May I wish each and every one of you a very blessed Christmas and a sincere wish of good health and best wishes for a wonderful New Year.  Aloha Ke Akua.

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Posted in Sovereignty

Blaming others…

Sunday, June 15th, 2008

By: TRUSTEE ROWENA AKANA

Source: June 2008 Ka Wai Ola o OHA Column

`Ano`ai kakou…  I wasn’t surprised when I opened the May issue of the Ka Wai Ola to see that fellow trustee Haunani Apoliona listed me first among those that she felt killed her negotiated settlement bill (HB266 HD2).  I guess I could see it as a compliment that she thinks I have such powerful influence, but once again, Apoliona misses the point.  The truth is, if Apoliona wants to look for someone to blame for the fiasco during this past legislative session, she needs to remember the phrase “the buck stops here,” or at least that is what good leaders presume.

It is obvious to me what killed OHA’s ceded land settlement legislation with the governor on the past due ceded land revenues that are owed to OHA.  It was Haunani Apoliona’s sheer arrogance.  Apoliona believed that she could just ram her legislation down everyone’s throat, including the legislature. 

She also completely misses the obvious fact that we needed to get the legislature’s approval for the settlement.  No one likes surprises, least of all politicians.  Apoliona also criticizes the five Senators who killed the bill, but what do you expect them to do when nearly a hundred OHA beneficiaries show up and testify against the bill for almost five hours?  Her “my way or the highway” attitude doomed the bill from the very beginning.

 For The Record

I opposed HB266 HD2 because the bill, if passed into law, would have bound our beneficiaries to a settlement agreement that was signed between OHA and the State on January 17, 2008.  The agreement contained language that would forever extinguish all rights afforded to Native Hawaiians under section 4 and 6 of Article XII of the State Constitution.  When I questioned OHA’s leadership about this language, they basically told me to not worry about it.  Then, after the fact, Senate President Colleen Hanabusa revealed in the May 6, 2008 Honolulu Advertiser that, “OHA leaders told her and other senators that the idea of eliminating future claims in exchange for $15.1 million annually in the future was (attorney general) Bennett’s idea and that they reluctantly agreed.  They had to agree to go along with it or the AG would no longer negotiate.”  OHA’s negotiating team deceived beneficiaries, the legislature, and fellow trustees by saying the agreement was mutual and that the amended language meant nothing.

Ka Wai Ola Now a Mouthpiece for OHA Leadership

I am truly disappointed with the direction that our Ka Wai Ola newspaper has taken ever since we lost 75% of our newspaper staff last year.  There is no longer any sense of fairness or balance in what is being reported to our beneficiaries and, in my opinion, it is now nothing more than a propaganda rag.  Nothing critical of OHA’s leadership is ever printed.  I have also received complaints from beneficiaries that their letters-to-the-editor are not being printed.  This is the first time in the many years I’ve been at OHA that the Ka Wai Ola has been reduced to a publication that, to some extent, is being censored.  For example, when an issue is deemed too controversial, somehow, thousands of copies of the newspaper seem to get lost and are not delivered to beneficiaries.  Also, as retribution for my past criticisms, you can now find my articles in the back of the paper.

Employee Exodus Continues in April

Three employees left OHA in April.  Two were accountants and one of them wrote a letter to trustees saying she felt she was unfairly terminated.  The other accountant resigned.  I have asked the Administration to discuss these departures at the next Board meeting.  The third employee that left was the high-profile manager of Hi’ipaka LLC.

Final Thoughts

The fact that there was no settlement between OHA and the State is very unfortunate.  Especially since Ms. Apoliona has claimed that she and the Governor’s office have been negotiating for three years.  This statement, on its face, appears less than truthful when you factor in the fact that the state offered up a couple of pieces of land and wrote language in the settlement document that HAD TO BE ACCEPTED BY OHA or there would be no deal.  These actions make it clear that THERE WAS NO NEGOTIATIONS going on at all!  There were only “take it or leave it” offers by the state which OHA’s negotiating team finally agreed to.

What is crystal clear now is that the state had every intention to keep all of the best ceded lands and had decided to appeal our Hawaii State Supreme Court decision not to allow the state to sell ceded lands until Hawaiian land claims could be settled.  The appeal by the State to the U.S. Supreme Court to reverse that decision makes the state’s efforts to settle with OHA and the Hawaiian people disingenuous.  To add insult to injury, the state has hired the former U.S. Solicitor General under President Clinton (who represented the state and OHA in the Rice v. Cayetano case) to represent the State of Hawaii in their appeal against OHA in the U.S. Supreme Court.

It is time for all Hawaiians to rally together for justice and to replace leaders who do NOT represent their interests in the November 4, 2008 General Election.  For more information on how to register to vote or to be a candidate in the OHA election, please call the Office of Elections at 453-8683 (Oahu) or toll free at 1-800-422-8683 for the neighbor islands.  Imua e Hawaii nei…

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Posted in Political

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 Legal, Sovereignty

Mu’olea Point

Thursday, July 15th, 2004

By Trustee Rowena Akana
July 2004

Source Honolulu Advertiser Letter to the Editor

I appreciated Vicky Viotti’s July 29th article regarding the Trust for Public Land’s (TPL) $342,000 grant request to OHA for the purchase of a 70-acre parcel at Mu’olea Point on Maui. While she did an excellent job of summarizing the discussion, I would like to add a few points.

It is outrageous that TPL would request money from OHA, monies that are to be spent for the betterment of Hawaiians, so that they can purchase land and hand it over to the County of Maui. Why should OHA help pay for land that Hawaiians will never own?

The State of Hawaii and the County of Maui are derelict in their responsibility to protect and preserve the lands at Mu’olea Point. If the Hana community truly feels that the site is so important, why doesn’t the County of Maui condemn the land using their power of eminent domain?

The County of Maui has the power to seize the property for public use if they can prove that doing so will serve the public good. Cities across the country have been using eminent domain to buy private property at a fair market value so that they can build roads, schools, and even courthouses. That’s what the City & County of Honolulu did when it purchased Waimea Falls Park.

I believe OHA trustee Linda Dela Cruz made an excellent point at the Board table that in the past, many organizations have used a connection to Hawaiians to push various proposals and developments through but, after the dust settled, how many Hawaiians really benefited?

TPL has argued that there are many culturally significant Hawaiian sites on the property but, in the end, it is only the County of Maui that will truly benefit by acquiring the land. OHA has a fiduciary responsibility to all Hawaiians. I still don’t see how OHA giving $342,000 to TPL will truly benefit the Hawaiian community at large.

And let’s not forget that Hawaiians only receive 20% of the revenues from ceded lands. The State should think about using the 80% of ceded land revenues it takes to purchase and preserve the property. After all, it’s part of the State’s mandate.

There are many ways to save the Mu’olea Point property besides asking OHA for a bailout. The State needs to step up to the plate and the County of Maui needs to get more creative.

Also, our beneficiaries should know that the following trustees support giving $342,000 to TPL: Haunani Apoliona, Oswald Stender, Boyd Mossman, Dante Carpenter, and Colette Machado.

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Posted in Land

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