Tag: PASH

Moving a Mountain: The Real Problem

`Ano`ai kakou…  For the past several months, there has been a tremendous focus on Mauna Kea.  OHA, as a Hawaiian agency created to better the conditions of Native Hawaiians, is tasked with administering ceded land revenues to address this mandate.

Because of this responsibility, OHA is frequently asked by the state agencies such as the University of Hawaii (UH), nonprofits, and even private entities to comment, help, or, in some cases, take legal action on issues important to Native Hawaiians.

Hawaiians are not against science

Today, Mauna Kea is an issue that has gone global with Hollywood celebrities joining the protest to stop the construction of the Thirty Meter Telescope (TMT) at the summit.  The Star Advertiser says OHA lacks leadership because we are not telling Hawaiians to stand down because the state needs revenue and everyone benefits from science.  They also feel we need to stand by our previous decision.  The newspaper needs to do their homework before making blanket statements.

Six years ago, the majority of the Board of Trustees accepted Mauna Kea as the sight for the TMT.  OHA also weighed in on a contested case hearing asking UH and the Mauna Kea Management planners to force them to do an Environmental Impact Statement and ensure they do what was necessary to culturally protect the site for future generations.

OHA lost the lawsuit and, when approached again last year, the Board took no action for many reasons.  The most critical being we no longer had standing to sue since we lost the first case and two Native Hawaiian workers on the Big Island testified that they needed the jobs the telescope construction would provide.

The real problem

The bigger issue here is UH and the state legislature.  The state has been a poor trustee of our ceded lands.  They are leasing our lands for only a $1 per year and it allows UH to sublease the lands for millions, perhaps billions of dollars.  Why isn’t UH making the builders of the telescope give something back to our community for the desecration of our sacred mountain?  Why isn’t UH requiring the builders to clean-up their mess and take down their telescopes that aren’t operational?

Where is all of this money going?  Is it really going to science?  Has the state ever conducted an audit of the University to verify where all of the millions generated on Mauna Kea each year are truly going?  UH is frequently complaining they are broke.  Where is the accountability?  Revenues generated on Mauna Kea are both Hawaiian and taxpayer monies and yet who really knows how the dollars are being spent?

The state and the legislature needs to revisit the autonomy that they have given to the UH and pull back that power.  UH should not have the power, in the name of science, to do anything they want with our aina.

Hawaiians are concerned about access to worship afforded to them by the PASH Law.

UH does not own the mountain and the state should make them return it to the people of Hawaii in the same pristine condition it was in when they took it from us.

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.