Protect iwi kūpuna: Sand mining in central Maui must stop!

`Ano`ai kakou…  On June 14-15, 2017, the Trustees held community and Board meetings on Maui.  Several community members who attended the meetings shared their deep concerns about iwi kūpuna being disturbed by sand dune mining in central Maui.

According the OHA’s administration, the sand dunes have “immense cultural value” and are known to contain iwi of kūpuna from numerous historic battles and from ancient burials.  The State Historic Preservation Office within the Department of Land and Natural Resources and the Maui and Lāna’i Island Burial Council has primary jurisdiction over the discovery of ancestral remains and their disposition.  However, in 2009, the Maui Lanai Islands Burial Council reportedly asked for an accounting of burials affected by the sand mining, but nothing came from it.

The testifiers informed us that the recent movement of the sand for grading and mining has exposed even more burials.  In her testimony, Clare Apana asked the Trustees to support a moratorium on sand mining and to formally recognize the entire sand dune as a protected area and a known burial site.  Apana said that more than 1,000 iwi kūpuna have been disturbed in the sand dunes and more will be disturbed with every day that sand mining is allowed to go on.

A recent Star-Advertiser article by Timothy Hurley (dated July 2, 2017) reported that “sand has been mined on Maui since before World War II, but the activity increased in the 1970s as Maui’s inland dunes became the source of sand for concrete used to fuel a construction boom.  By 1985, Maui sand started being barged to Honolulu, and over a couple of decades 5.5 million tons were shipped to Oahu for use in construction, according to a 2006 report compiled for the county Department of Public Works and Environmental Management.  The report had estimated the sand could be depleted in less than 10 years.”

Even more disturbingly, the same Star-Advertiser article also stated that the sand mining on Maui has reportedly been a source of sand for the concrete used to build the pillars and guide ways of the Honolulu rail project now under construction.  My suggestion to the Honolulu Authority for Rapid Transportation is that they better look into it because I’m sure it will affect ridership.  Who wants to ride a cursed train?

OHA’s 2015 iwi kūpuna policy calls for the care, management and protection of iwi kūpuna.  Many of the Trustees feel passionately about this issue and some even suggested that OHA go to court.  The consensus was clear that we have to do something now and we can’t wait any longer.

On June 29, 2017, the Board approved the following motion — The Office of Hawaiian Affairs calls upon Maui Lani Partners to cease all sand and other resource extraction and grading to allow:

  •  The Maui Department of Planning to determine if sand extraction violates the Maui Zoning Code;
  •  The Maui Department of Public Works to determine if revocation or suspension of the Phase IX grading permit is appropriate; and
  • The State Historic Preservation Department and the Maui Lānaʻi Islands Burial Council to properly investigate the discovery of burials and whether historic preservation laws and conditions have been fully complied with and enforced.

If you care about our ancestral bones say something, do something.  Call the Maui County Council.  No more shipments of sand from Maui to build rail columns!  Aloha Ke Akua.

We need nationhood to protect our lands

`Ano`ai kakou…  Throughout the month of February, I was privileged to participated in the Na‘i Aupuni ‘aha to discuss self-governance.  I believe that calling for an ‘aha is an excellent opportunity to provide an open and democratic forum to discuss possible governing documents of our new nation.  This is where the ultimate form of the Hawaiian government can be debated and considered.

I have always advocated that gaining federal recognition as a native people would finally allow Hawaiians to negotiate with the state and federal governments for the return of some of our ceded lands that the state holds in trust.  Federal recognition would also put us in a stronger position to protect our lands and trust assets.

The three key elements of nationhood are sovereignty, self-determination and self-sufficiency.  In order for Hawaiians to exercise control over their lands and lives, they must achieve self-determination by organizing a mechanism for self-governance.  Hawaiians must create a government which provides for democratic representation before they can begin to interrelate with the State and the Federal governments who control their lands and trust assets. The ultimate goal of nationhood is to become self-sufficient and self-supporting.

My hope is that, as a result of the ‘aha, we will be able to draft the articles or provisions of our constitution for the new Hawaiian nation, whatever form it ultimately takes.  It is important to remember these documents can be changed or annulled.  This is only the beginning.  Once these governing documents are ratified by the Hawaiian people, they can be implemented to protect our lands and trust resources.  We would then be able to care for our people without assistance from anyone.

The window of opportunity for us to act on controlling our lands is closing.  For those who think we have lots of time to talk about this, they only need to look at all of the laws that have been passed in the last ten years to realize time is running out.

A good example of why nationhood is so critical for our people is the recent attempt in the legislature to pass the “forced land sales bills.”  Kamehameha Schools (KS) recently led the charge against legislation that would have forced Hawai‘i’s landowners to sell leasehold lands to their lessees.

If HB 1635 and HB 2173 had become law, all commercial, agriculture, conservation and industrial lands would have been put under threat to be forcibly sold.  KS would have been hurt by these bills since nearly 80 percent of their commercial properties are ground leased.  Our ceded lands controlled by DLNR would also be threatened.

Private land developers could have moved in to condemn and remove historical lands that were passed from generation to generation of Hawaiians.  This would have also negatively impacted the ability of Native Hawaiian organizations and trusts to fulfill their missions.  HB 1635 and HB 2173 represent yet another example of the government’s shameful history of removing Native Hawaiians from their ancestral lands.

Thankfully, on February 8th, KS announced that the House cancelled the hearing for HB 1635 and HB 2173, which effectively killed the bills.  However, there are other land bills in the legislature we need to be concerned about such as DLNR selling off remnants and the transfer of land to the military.  Let us be makaꞌala (watchful).  Aloha Ke Akua.

Governor should consider transferring Mauna Kea Lands to OHA

`Ano`ai kakou…  As many readers know, Mauna Kea is a ceded land asset belonging to both Native Hawaiians and the general public.  OHA Trustees are also mandated by state law to advocate for all Native Hawaiian and to protect and preserve sacred sites.

On May 26, 2015, Governor David Ige announced that he had asked UH, which subleases the summit area from the state, to make ten changes to improve its stewardship of Mauna Kea.  One of the ten changes included UH voluntarily returning to the state Department of Land and Natural Resources (DLNR) full jurisdiction of more than 10,000 acres that are not specifically needed for astronomy.

I commended Governor Ige for his commitment to make Mauna Kea whole again.  Transferring such a large portion of Mauna Kea out if UH’s hands is a wonderful idea and provides Native Hawaiians with a positive first step in revising the way Mauna Kea is safe-guarded.

However, I have recently heard through unconfirmed reports that DLNR has been resistant to taking control over the Mauna Kea lands because they lack the resources to properly manage it.

If it is true that DLNR is unable to take responsibility over the lands, I would like to suggest that the state encourage UH to turn over the lands to OHA.  It would make perfect sense since all 11,300 acres of land within the Mauna Kea Science Reserve are public land trust lands classified under section 5(b) of the Admissions Act.  The revenues from public trust lands must be dedicated to specific purposes including the betterment of Native Hawaiians.

OHA’s administration has built up its capacity to manage both commercial and preservations lands by establishing an in-house land department and a land committee at the board level.

I believe that transferring responsibility over Mauna Kea lands to OHA would produce the best “win-win” situation for the State, the University of Hawaii and all of OHA’s Native Hawaiian beneficiaries.  What better solution could there be than to put Hawaiian lands in Hawaiian hands?

ON ANOTHER NOTE…

On April 1, 2015, the Board of Trustees rescinded its support of Mauna Kea as the site of the TMT.  As a result OHA has no position as to whether or not the TMT should be located on the mountain.

Nonetheless, on July 10, 2015, OHA opposed DLNR’s proposals to use emergency rulemaking procedures to ban outdoor gear and nighttime presence in an 18,000 acre corridor leading to the summit of Mauna Kea.  OHA testified that there were a number of technical, statutory, cultural, environmental, public safety, and constitutional concerns, as well as the potential for unintended natural, cultural, and public safety concerns.

Despite OHA’s strong opposition, the BLNR passed the following rules: (1) A rule change that will allow for the BLNR Chairperson to close public hunting areas for up to 30 days; and (2) A rule closing the Mauna Kea Observatory Access Road, including one mile on either side, from 10:00 p.m. – 4:00 a.m.  Aloha Ke Akua.

UH needs to pay their fair share

`Ano`ai kakou… Here are two important issues affecting Native Hawaiians that require special attention:

MAUNA KEA

The 11,300 acres of land within the Mauna Kea Science Reserve are public land trust lands classified under section 5(b) of the Admissions Act. The revenues from public trust lands must be dedicated to specific purposes including the betterment of Native Hawaiians.

House Bill 1689 requires the University of Hawai’i to use the fair market value for the lease of lands when calculating the amount of funds that it must transfer to the public land trust fund.

OHA receives a portion of revenues generated from the use of these public land trust lands. HB 1689 will ensure that OHA and its beneficiaries receive adequate compensation for any future subleases.

Mauna Kea lands have long been mismanaged by UH. Sacred cultural lands have been industrially developed without any payment or clear benefit to Native Hawaiians.

At the same time, UH has been receiving a substantial benefit from its lessees in the form of telescope time, which has been valued in some cases at more than $100,000 a night. This benefit has mostly gone only to the astronomy program at UH; since none of this value is seen as sub-lessee rent. OHA beneficiaries and the State Board of Land and Natural Resources (BLNR) have not received a fair share of this substantial revenue.

To avoid possible fiscal impacts to the University of Hawai’i’s educational mission, any proposed general lease for Mauna Kea lands should require UH to charge more appropriate rent for the sublease or use of such lands. This would ensure that OHA beneficiaries and the State receive appropriate compensation for the use of these public land trust lands, and ensures that UH also receives adequate revenues to support its broader educational mission.

It should also be noted that the requirement for UH to conduct a financial review of all public land trust revenue will help to identify gaps in revenue from public land trust lands, as well as clarify what revenues may be generated from specific lands, such as Mauna Kea.

In the meantime, OHA should also propose a financial audit of all revenues UH derives from its use of public trust lands. This will allow OHA to ensure more appropriate level of benefits flow to public trust beneficiaries for the use of our sacred mountain. Finally, UH’s authority to manage public trust lands must be reevaluated because of its continual abuse and mismanagement of our precious lands.

NIIHAU KONOHIKI

Senate Bill 180 SD2 proposes to give one individual resident on Niihau the exclusive konohiki rights to regulate fishing around Niihau. The konohiki will be appointed by the Chairperson of BLNR, in consultation with the private owner of Niihau.

While I understand the arguments in support of this proposal, I believe that we must be very careful about setting a precedence of having only one person making all of the fishing rules for an entire island. Especially if that person may have vested interests to protect and could abuse their power as Konohiki to lock out any competition.

More OHA News

By: TRUSTEE ROWENA AKANA

Source: September 2009 Ka Wai Ola o OHA Column

MAUNA KEA SELECTED FOR THIRTY METER TELESCOPE

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

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

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

LEGISLATURE OVERRIDES LINGLE’S KAHANA VALLEY VETO

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

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

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

PRINCESS ABIGAIL KAWANANAKOA’S LAWSUIT

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

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

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

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

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

SECOND KAWAIAHA’O LAWSUIT

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

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

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

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

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

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

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

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

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

Until the next time.  Aloha pumehana.

How the state ripped the heart out of Waikiki:

DLNR values the dollar over Hawaiian-owned business, despite the fact that tourism is dependent on our unique Hawaiian Culture and Aloha spirit

By: TRUSTEE ROWENA AKANA

Source: September 2006 Ka Wai Ola o OHA Column

`Ano`ai kakou…  Barry Napoleon established Hawai’i’s first beach concession in 1952 on the sands of Waikiki Beach.  Although competitors moved in and the beach boys jockeyed for position, the tourists still saw the best O’ahu had to offer.  Surfing lessons, canoe rides, or just plain talking story, the Waikiki Beach Boys personified the spirit of aloha.  Then, Barry experienced first-hand how the state only gives lip service about our “aloha spirit.”

Barry said that from 1982 to 1984, he paid $400 a month to Department of Land and Natural Resources (DLNR) for an 8 by 12-foot space in front of the Hilton Hawaiian Village.  The DLNR took control of the beach concession stands after they saw the profits that could be made and began selling permits.

Problems for Barry began when he complained to the DLNR about alleged criminal activity out of his mainland competitor’s concession.  Three days later, the DLNR revoked his permit and confiscated his equipment, saying he had violated the conditions of his rental agreement by encroaching on several inches past his allotment of sand.

In 1985, he found a new home at the Waikiki Shores.  Barry was paying the owner $15,000 a month for ground-floor space fronting the beach.  The DLNR found out and evicted him.  Barry won a temporary restraining order so he could prove his permits were valid.  The DLNR ignored the court order and again confiscated his equipment.  Without his business, Barry could not earn enough money to press his case.  Earlier that same year, his two nephews tried to reopen a beach concession.  The state quickly tore it down.  Barry Napoleon was 65 years old at the time. He had spent the better part of his life on the beach at Waikiki and now the state took his livelihood in favor of mainlanders.

Eleven years later, it seems that DLNR is back at it again.  On July 26, 2006, Mary Vorsino of the Honolulu Advertiser wrote that after 29 years and thousands of students, Clyde Aikau closed his surfing school and concession stand at Duke Kahanamoku Beach in Waikiki and ended the only business he’s ever known.  Clyde, the brother of legendary surfer Eddie Aikau, was forced to let go of his 10 employees, which he hopes will find work as surf instructors with Hilton Hawaiian Village.  The Hilton is taking over the concession stand.  It is unbelievable to me that DLNR didn’t even give Aikau the courtesy of a break in the rent because of his expertise and tenure.

Vorsino quoted DLNR Chairman Peter Young as saying that Aikau has only himself to blame.  “We did not tell anybody what rent to suggest other than a minimum, and then it was competitive,” Young said. “We would hope they would evaluate their respective business plans and bid responsibly.”

I was shocked at the callousness and insensitivity of Young’s comments.  Where is his sympathy for struggling Hawaiian-owned businesses?  Like the tragedy with Barry Napoleon, DLNR seems to be once again putting the almighty dollar ahead of protecting the real reason people come to Hawaii – our unique Hawaiian culture and the Spirit of Aloha.  Marketing campaigns can’t sell what doesn’t exist.

I believe that OHA needs to investigate whether we should take control over the beach boy concessions at Waikiki Beach.  OHA could then ensure that the beach boys are culturally sensitive and that preferences are given to Hawaiian owned businesses.  After all, the beaches are considered submerged lands and are, therefore, ceded lands.

Tourists from around the world remembered Barry and other beach boys like him for one simple reason: they were genuine.  They were Hawaiian.  Let’s bring that authenticity back to Waikiki Beach.  Imua e Hawai’i nei…

Land and Sovereignty

By: Trustee Rowena Akana
February 3, 1999

No two words have so captured the attention of this archipelago’s residents as “land” and “sovereignty”. Despite developments since the 100-year anniversary of the 1893 illegal overthrow of the Hawaiian Monarchy, as well as the United States’ apology and admission of the illegality of the overthrow, many people do not grasp what either word means or will mean for their future.

The general goal of sovereignty advocates is the transfer of control of Hawaiian Home Lands and ceded lands directly to a native Hawaiian government. Currently, the state and federal government hold in trust about 1.2 million acres of land for the benefit of Hawaiians. Yet, the first people to these lands have seen very few benefits.

Hawaiian Home Lands are scattered tracts comprising about 197,075 acres, which Congress set aside in 1920 for native Hawaiian homesteaders. Ceded lands are the remains of an estimated 1.8 million acres of public, private and crown land illegally annexed by resolution from a provisional government to the United States in 1898.

Hawaiian land, once farmed communally, is now some of the most expensive real estate on Earth. Housing prices, driven up by mainland retirees and foreign speculators, are out of reach for Hawaiians living, working and raising families in the islands.

Hawaiian waters, once kept in ecological balance with humans through a complex kapu system, are now oversold to the highest bidder, or treated as a toilet for raw sewage.

Hawaiian culture, once a living history of genealogy, geography, and spirituality, was nearly obliterated by Calvinist missionaries and is usually obscured with tourist-pleasing luaus.

Today, 70-80,000 people (depending on the source) – of Hawaii’s more than one million residents are full-blooded Hawaiians. One fifth, or about 225,000 people claim some Hawaiian blood. Yet Hawaiians remain the poorest, sickest, least educated, worst housed, and most frequently imprisoned segment of Hawaii’s population.

Since Kamehameha the Great, foreigners have enjoyed some measure of control over Hawaiian land. The concept of land ownership was foreign to Hawaiians. How can you own what belongs to God? The king and his chief provided land grants to the people–some of them outsiders, who chose to grow large tracts of crops to be sold overseas, rather than to be eaten at home.

In 1825, when 12-year-old Kamehameha III ascended to the throne, the Council of Chiefs adopted the western practice of inheritance after the death of a king. However, foreigners, protective of their agricultural interest, sought more secure forms of land tenure. They and their governments applied considerable pressure on the young king.

In 1840, the year he drew up Hawaii’s first constitution, Kamehameha III granted the right to property by declaring that all land belonged to the chiefs and the people, with the king as trustee. In 1848, true ownership of land came to Hawaii, when the king accepted a land apportionment plan, called the Great Mahele, or division.

The Mahele completed the transition from a feudal redistribution land system to a fee simple land ownership system, by dividing the land among the king, government, chiefs and the people. The land was split into three parts: about 1 million acres of crown lands to which the king held title; 1.5 million acres of government lands for public use; and, the remaining 1.5 million of Konohiki lands set aside for individual ownership by the chiefs and the people.

The Mahele was an unmitigated disaster for the maka’ainana, the people of the land, or commoners. While the king intended to make available one-third of Hawaii’s lands to maka’ainana, they received much less than one percent of the total land. The maka’ainana’s land holdings and rights were further diluted in 1850, with the passage of additional legislation which authorized ownership and conveyance of the land, regardless of citizenship.

The stage was set for a massive land grab by Westerners. In the next half century, with a population no larger than 2,000, Westerners took control of most of Hawaii’s land, and manipulated the economy for their own profit.

Many Native Hawaiians pleaded with their last elected monarch, Queen Lili’uokalani, to protect the sovereignty of Hawaii. At the urging of her people, the queen attempted to regain some of the monarchy’s power, which had been lost during the reign of her predecessor and brother, King Kalakaua through the Bayonet Constitution.

Her efforts to change Hawaii’s Constitution and cabinet unnerved a group of the wealthiest American merchants and sugar planters. These men wanted to be part of the United States to avoid high import tariffs. So, backed by a contingent of 162 U.S. Marines, the businessmen imprisoned the queen, and took over the islands, including the acreage that was supposed to be available to the maka’ainana.

Despite Lili’uokalani’s steadfast belief that the United States government would honor its treaties with the Kingdom and reject the provisional government, Hawaii went from a sovereign nation to an American colony in five years. In 1898, under President William McKinley, Hawaii was annexed to the United States constellation, along with Puerto Rico, Guam and the Philippines.

President Grover Cleveland, who had opposed the coup, but failed to reverse it, wrote after leaving office: Hawaii is ours. But as look back upon the first steps in this miserable business, and as I contemplate the means to complete this outrage, I am ashamed of the whole affair.”

Meanwhile, the provisional government sold chunks of crown and Konohiki lands to fellow merchants and planters. When the islands were annexed illegally to the United States, Hawaii’s government acknowledged that this acreage (now 1.8 million acres) belonged to Native Hawaiians, and ceded it with the stipulation that it be held in trust for Native Hawaiians. The federal government summarily lopped off about 20 percent of the land for its own use, mostly for military bases and parks.

By 1920, the plight of the true inhabitants, Native Hawaiians, had become desperate. The population had dropped as much as 96 percent. Some scholars estimate that a one-time population of 1 million Hawaiians in pre-contact Hawaii had plummeted to 40,000.

However, a bill was being prepared that would allow Native Hawaiians to lease a small sliver of their former land. The Hawaiian Homes Commission Act began as a well meaning effort by Prince Jonah Kuhio, the Hawaiian territorial delegate to Congress, who saw urban slums and disease rapidly killing off Hawaiians, and hoped that returning Hawaiians to their aina, their agricultural land, could save them. In 1920, he said: “The Hawaiian race is passing, and if conditions continue to exist as they do today, this splendid race of people, my race, will pass from the face of this earth.”

No sooner did Prince Kuhio float his plan in Congress than it was co-opted by pineapple and sugar planters, who saw it as a way to secure their own uncertain futures. Their leases on 26,000 fertile acres were about to expire, and a general homestead law threatened to transfer their lucrative holdings to other hands.

So the planters struck a deal with territorial politicians: Get rid of general homesteading, allow us to keep our lands, and in exchange, you may allot 200,000 acres of “fourth class” lands to native Hawaiians for homestead. This land was arid, inaccessible, soilpoor, without infrastructure, and otherwise unfit for cultivation. Before long, Hawaiians abandoned agrarianism, and the bulk of homestead awards became simple house lots.
The sugar planters ensured that the Hawaiian Home Lands’ first executive was an ally. Its executive secretary was George Cooke, of Castle & Cooke, one of the Big Five plantation powers. The planters even pushed the 50 percent Hawaiian blood requirement, believing that interracial marriages would dilute the native population to extinction.

After statehood in 1959, responsibility for managing the homestead program was transferred from the federal government to the state Department of Hawaiian Home Lands (DHHL). Because the state failed to appropriate sufficient funding, until recently, the DHHL’s main source of revenue to manage and improve the land was income from general use leases granted non-Hawaiians on land “not immediately needed” for homestead. As a result, DHHL leased more land to non-Hawaiians than to Hawaiians.

For decades, the administration of the Hawaiian Home Lands trust went unquestioned. Subsequent investigations revealed mismanagement of the trust by both the federal and state governments. DHHL estimates that territorial and state governors issued between forty and sixty executive orders, which set aside Hawaiian Home Lands for military use. In 1978, a federal district court ruled that all governors’ executive orders were illegal.

In 1984, Governor Ariyoshi rescinded nearly thirty of these illegal acts, covering 30,000 acres. The Hawaii Attorney General also decreed that the U.S. Navy’s occupation of 1,400 acres of prime homelands near Honolulu was a “fundamental breach of trust”.

Rather than evicting the offending land users, which included state and federal agencies, the DHHL opted for monetary settlements totaling less than $10 million.

As of June 30,1997, only 6,428 homestead leases were awarded statewide, representing a mere 20.5 percent of the total Hawaiian Home Lands property. Meanwhile there are an estimated 29,162 qualified applicants on the Hawaiian Homes waiting list, many of whom have been waiting for forty years or more. Many have died waiting.

In 1959, when the Admissions Act turned responsibility for the remaining 1.5 million acres of ceded lands over to the new State of Hawaii, the federal government “retained” several hundred thousand acres for its national parks and military installations. Today, more than 100 facilities crowd the eight Hawaiian Islands, a land area approximately the size of Rhode Island and Connecticut combined. All the military bases occupy some ceded lands, and at least six occupy Hawaiian Home Lands, without consent or compensation.

Responsibility for these ceded lands rests with the Department of Land and Natural Resources (DLNR). For the state’s first twenty years, DLNR managed ceded lands without scrutiny. Among other abuses, it allowed use of ceded lands by other state departments without compensation. It also executed a slew of summary land swaps.

State and federal laws already mandate that Hawaiians receive priority for water, to support development, traditional agriculture, and gathering rights over subdivisions, hotels and golf courses — promises seemingly forgotten. The state’s Commission on Water Resources has ignored the “Hawaiian Rights” clause of the water code, the clause that guarantees adequate reserves of water for current and foreseeable development of Hawaiian Home Lands.

At the 1978 Constitutional Convention, the state admitted that it was derelict in its duty to provide for the Hawaiian community. The Office of Hawaiian Affairs (OHA) was created to receive 20 percent of all revenue generated by ceded lands for use for the benefit of Hawaiians.

Between 1980 and 1990, instead of 20 percent, OHA only received about $12.5 million in such proceeds. In 1993, OHA received $129 million from the state in settlement of those claims, including interest for back payment of monies owed by the state from 1980 – 1990, during the Waihee Administration.

In 1994, OHA initiated litigation to require the state to pay OHA past due amounts owed to Hawaiians that were not included in the $129 million settlement. In October 1996, Judge Heely granted OHA’s motion for partial summary judgment. The State filed an appeal. In December 1998, the Hawaii Supreme Court directed the parties to try to resolve the matter expeditiously. Negotiations continue.

As indigenous and first people to these islands, Hawaiians have essentially been under siege since foreign contact. In November 1993, President Clinton signed a Joint Resolution, which recognized the illegal procedure by which Hawaii was annexed to the United States, and apologized to Native Hawaiians on Behalf of the United States for the Overthrow of the Kingdom of Hawaii. This legal recognition has offered Hawaiians a unique opportunity to lead a renewed battle for the resurrection of the powerful principle of sovereignty. Sovereignty is not a foreign concept to Hawaiians, to Native Americans, or to states in general.

To the great nineteenth century orator, Stephen Douglas, states incorporated legally into the Union were co-equal and sovereign unto themselves. In his celebrated debates with Lincoln (echoing the Declaration of Independence, which states that “these United States are, and of right ought to be Free and Independent States”), Douglas said:

“THIS GOVERNMENT WAS MADE UPON THE GREAT BASIS OF THE SOVEREIGNTY OF THE STATES, THE RIGHT OF EACH STATE TO REGULATE ITS OWN DOMESTIC INSTITUTIONS TO SUIT ITSELF, AND THAT RIGHT WAS CONFERRED WITH THE UNDERSTANDING AND EXPECTATION THAT INASMUCH AS EACH LOCALITY HAD SEPARATE INTERESTS, EACH LOCALITY MUST HAVE DIFFERENT AND DISTINCT LOCAL DOMESTIC INSTITUTIONS, CORRESPONDING TO ITS WANTS AND INTERESTS.”

Native governments have formed under the federal government through the Department of the Interior. There are hundreds of recognized nations within the territorial United States, in which the United States is but one. The others consist of American Indians. If it is OK for American Indians to form sovereign nations, why not Hawaiians? Failure to do so would, in fact, be discrimination against Hawaiians.

As indigenous people, Hawaiians are seeking recognition from the federal government of their right to sovereignty and self determination. Hawaiians have no desire to be dependent on the state or federal government. If Hawaiians had control of their lands, they could take care of their own people. They would not be a drain on the economy. There would be no homeless Hawaiians.

Fundamental to any sovereignty concept is control over land. Hawaiians have never prospered on land held on their behalf, but outside their reach. Lands at issue consist of the 1.2 million acres currently under the control of the state and federal government, as well as lands set aside as Hawaiian Home Lands. Hawaiians are not talking about privately owned land.

Privatization: Good Deal or Sellout?

By: Trustee Rowena Akana
March 6, 1998

Another Opportunity for the People…. To Lose!!

Governor Ben Cayetano is calling for privatization of the State Historic Preservation Division. His suggestion calls for the firing of Historic Preservation Division staff, and reassigning their work to archaeologists who would be hired by developers to review their work. What a sweetheart deal this is…for the developers and consultants. It will save the State money primarily because the State is removing itself from most of the process, but it sells out their responsibility to monitor and prevent actions that are culturally and environmentally insensitive. These suggestions to “pass the buck” by the Governor, Legislators, and Joe Souki have once again placed the general public and the Hawaiian people in the loser column.

Allowing developers to hire their own hand-picked archeologists is tantamount to saying that all developers are not only honest and honorable, but culturally sensitive to the historic importance of our Aina. Does H-3 ring any alarm bells for you? We have a history of developers trying to brush aside any considerations for the history and culture of these islands.

“Letting developers hire archaeologists to review their projects is like ‘letting the Mafia police the Mafia,'” said Patrick Kirch of the University of California, Berkeley, in a recent Honolulu Advertiser article. Giving this kind of power to developers could lead to abuses that would allow high rise condos and shopping centers to be built on sacred refuges or burial grounds which are so important to Hawaii’s history. This form of privatization has some serious drawbacks, but the greatest concern is that it will diminish the quality of historic preservation work in Hawaii and allow greater destruction of Hawaiian sites and burials for the sake of development. The opportunity for the developer to skew the review in their favor is great since he is the employer of both the consultant doing the study, and the consultant reviewing it for adequacy.

The State has previously shown its tendency to avoid its statutory responsibilities in the handling of the burials program within the Department of Land and Natural Resources (DLNR). For the past two years OHA has funded two positions, including all the fringe benefits, for the burials program although the statutes mandate positions for this program, and the Legislature provides funding for it. Why is OHA funding positions for which the State has responsibility? Perhaps it’s another form of privatizing. Again, the State is passing the buck. There have been attempts to permanently move this program to OHA, but by doing so the program would lose its purpose because OHA has no enforcement powers. Moving this program to OHA would be detrimental to its existence unless the Governor and Legislature work to grant OHA enforcement powers, as required by statute.

In November 1997, I criticized the effort by the Governor and DLNR to privatize small boat harbors. In the article, I pointed out that WestRec Marinas lobbied the Governor and Michael Wilson, hoping to get a consulting agreement with DLNR to manage small boat harbors for the State. My concern then was for the people. What would happen to the local fishermen and the submerged lands in the harbor when boat harbors became privatized?

My concern is still that of the people of this state, and of the Aina. Whether the Governor privatizes the State Historic Preservation Division or the management of small boat harbors more public input is needed before being seriously considered.

Over the last two years I have watched what appears to be a very sinister move on the part of the administration and certain legislators to create commissions and divisions of the State government to divide and parcel out sections of ceded land so as to remove them from the main corpus of ceded lands. We only have to look at the bills being introduced into the Legislature to see this. Upon statehood in 1959, the State Constitution named two beneficiaries of Hawaiian lands: the Native Hawaiians and the general public. Therefore, it is my view that the general public should be as concerned as the Hawaiian people are that the State government does not breach its fiduciary responsibility as trustees to the public land trust. In the 1998 general elections we must tell these legislators that they can no longer mismanage our tax dollars and then cover their tracks with the use of ceded land.

Privatization of Small Boat Harbors…Citizens Beware

By: Trustee Rowena Akana, 1997

Source: Ka Wai Ola O OHA

During the 1997 legislative session, HB 1547 HD2 SD1 CD1, signed by the governor as Act 106, created a task force in the Department of Land and Natural Resources (DLNR) to evaluate the feasibility of and to make recommendations on a community-based management pilot program for one or more small boat harbors. This bill originally established a three-year pilot program to convert one such harbor into an independent, privately managed marina in accord with an operating agreement with DLNR. Public reaction caused legislators to rewrite the bill into a vehicle which reviews the prudence of community-based management of small boat harbors. Were they trying to slip one by us?

The state’s small boat harbors are important assets constructed, maintained, and operated for the purposes of recreation, landing of fish and inter-island commerce. As centers of economic activity, they produce revenue. Currently, they are regulated by DLNR, and are subject to many rules. The original HB 1547 would have allowed an exemption to the rules.

Hoping for a consulting agreement with DLNR to manage small boat harbors, WestRec Marinas, a California marina management firm, lobbied the governor and Michael Wilson to effect legislation which would privatize small boat harbors. Fortunately, WestRec is subject to Chapters 76-77. This setback is probably temporary as the legislature is known to have made exceptions to civil service laws in the past, and may do so again if pursued by interested parties.

Makes me wonder what the real story is behind Act 160 and WestRec Marinas. This firm has been under scrutiny in California, and has defaulted on a $2.5 million mortgage in south Florida, two marinas in Washington and another in Maryland. I would question its credibility.

In Hawaii Fishing News, Rick Gaffney’s article, “Every User A Loser For Sale: Hawaii’s Small Boat Harbors,” points to the governor’s enthusiasm for privatization of small boat harbors and whether his enthusiasm is fueled by companies like WestRec. Money may be the bottom line in privatization, but the governor, Mike Wilson and the legislature need to be concerned about the taxpayers who use these facilities. The real question is what happens to local boaters and fishermen when small boat harbors are privatized? Will they be able to fish off the banks of the harbor?

Rick Gaffney asks, “Do you think akule fishing would be allowed in a privatized small-boat harbor? No Way!” I hope the governor, department heads and legislators will provide solid answers to many questions that have been unanswered or not asked. And what of the submerged lands in the harbors? Will the state look out for Hawaiian interest? If privatization occurs, then management controls everything.

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.