Posts Tagged ‘Settlement with the State’

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Looking Back at 2009 and Looking forward to 2010

Friday, January 15th, 2010

By: OHA TRUSTEE ROWENA AKANA

Source: January 2010 Ka Wai Ola o OHA Column

Last year started out with the whole world caught up or affected in some negative way by America’s recession.  Economists said it would probably last through to 2010 and they were right. 

During the 2009 session, I found it embarrassing to sit through OHA’s budget briefing to the state legislature and listen to Senators and Representatives ask about OHA’s budget.  Questions included things like “Where are OHA’s priorities for spending?” and “How much was being spent on Kau Inoa registrations and OHA’s Washington D.C. office?”

They basically scolded us for not making any sacrifices and were reluctant to give us any more money.  At least that was my impression of their message to us.  However, it is important to note that the approximately $3 million that we receive annually from the state helps us to serve the less than 50% Hawaiian beneficiaries that we are also mandated to serve.

SETTLEMENT WITH THE STATE

I supported Senate Bill 995, introduced by Senator Clayton Hee, which attempted to resolve the claims and disputes relating to OHA’s portion of income from the public land trust between 11/7/1978 and 7/1/2009. 

Senator Hee’s proposal offered OHA $251 million in cash and 20 percent of the 1.8 million acres of ceded lands to be determined in negotiations between the agency and the Lingle administration.  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 which are still on the OHA board (Trustees Haunani Apoliona & Colette Machado).  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.

SB995 would have given OHA the right to choose from the following properties, among many others: Kaka’ako Makai; Kahana Valley and Beach Park; La Mariana and Pier 60; Heeia meadowlands; Mauna Kea: Mauna Kea Scientific Reserve; Waikiki Yacht Club; Ala Wai Boat Harbor Complex; Kalaeloa Makai; and any and all other lands that the State may agree to convey to OHA.

Even a few of these properties could generate all of the revenue OHA needs to operate indefinitely and would have given our future nation the concrete assets it needs to serve the Hawaiian population.  SB995 would have made Native Hawaiians self-sufficient (the very essence of sovereignty) and relieved the State of Hawaii of a large burden on their budget. 

Unfortunately, SB995 failed to pass during the last days of the legislature because according to Advertiser Staff Writer Gordon Y. K. Pang, “key House members,” no doubt let by Speaker Calvin Say, declined to support the bill.  Let us hope that we can convince them this year.

SAINT DAMIEN

It is fitting that we closed the year with the celebration of the sainthood of Father Damien, a non-Hawaiian who unselfishly gave his life to care for Hawaiians.

On October 1, 2009, I traveled along with a Hawaii delegation on a pilgrimage to Belgium and to Rome to honor Father Damien.  We visited Father Damien’s hometown of Tremelo where the people of the town embraced us.  I can now truly understand where the kindness and compassion that father Damien had for our Hawaiian people came from. 

In a ceremony led by Pope Benedict XVI in St. Peters Basilica in Vatican City, Rome, we witnessed the canonization of Father Damien on October the 11, 2009.

To Father Damien, people were people, and his service to his God meant that he must serve all of God’s people.  We would undoubtedly have a more peaceful world if we could all embrace the compassion for others that was exemplified by Saint Damien.  Let us think of these good thoughts and deeds as we move forward into this New Year.

My best wishes to all for a happy and successful 2010.  Aloha pumehana.

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Posted in OHA

Thanks for trying, Senators Hanabusa & Hee

Wednesday, July 15th, 2009

By: TRUSTEE ROWENA AKANA

Source: July 2009 Ka Wai Ola Column

I want to send out a Big Mahalo to all of the state senators who tried to resolve the ceded land revenue issue once and for all, especially Senate President Colleen Hanabusa and Senator Clayton Hee. 

Senator Hee introduced Senate Bill 995, which attempted to resolve the claims and disputes relating to OHA’s portion of income from the public land trust between 11/7/1978 and 7/1/2009.  Senator Hee’s proposal offered OHA $251 million in cash and 20 percent of the 1.8 million acres of ceded lands to be determined in negotiations between the agency and the Lingle administration.

SB995 would have given OHA the right to choose from the following properties, among many others:

(1)  Kaka’ako Makai;

(2)  Kahana Valley and Beach Park;

(3)  La Mariana and Pier 60;

(4)  Heeia meadowlands;

(5)  Mauna Kea: Mauna Kea Scientific Reserve;

(6)  Waikiki Yacht Club;

(7)  Ala Wai Boat Harbor Complex;

(8)      Kalaeloa Makai; and

(9)      Any and all other lands, together with the State’s interest in any and all improvements thereon, that the State may agree to convey to OHA;

Even a few of these properties could generate all of the revenue OHA needs to operate indefinitely and would have given our future nation the concrete assets it needs to serve the Hawaiian population. 

OHA can never be a self-sufficient organization as long as our leadership is content with begging the legislature for a 20% share of ceded land revenues every year – funds which can be taken away from us at anytime.  SB995 would have made Native Hawaiians self-sufficient (the very essence of sovereignty) and relieved the State of Hawaii of a large burden on their budget.  Unfortunately, this opportunity has once again slipped away from OHA’s hands.  AUWE!

So why did SB995 fail to pass during the last days of the legislature?  According to an article written by Advertiser Staff Writer Gordon Y. K. Pang on May 2, 2009, “key House members” declined to support the bill, but everyone knows that all of these key members are directed by House Speaker Calvin Say.  It doesn’t surprise me that Speaker Say killed the bill since he has not supported many Hawaiian issues.  Rumor has it that he had help from certain Hawaiians who conducted some hard, backdoor lobbying.  Speaker Say has also told OHA’s administration that he doesn’t want to see another settlement bill next year.

Pang’s article also stated that the OHA trustees were “lukewarm” in their support of SB995.  I am baffled by this statement since the board voted unanimously to support the bill with a few technical changes by our attorney, Bill Meheula.  When I later spoke with Pang, he said that Trustee Stender told him that the board did not formally support the bill, which is funny, since I remember Stender voting for it.  The lack of any coherent vision offered by our current leadership has been a set-back for OHA for the last seven years.  The mixed signals that are given on the boards’ behalf have also been less than honest.

I believe that if SB995 passed, the Governor would have vetoed it.  For all the praises she sang about helping the Hawaiian Community, at best it appears the Governor and her Attorney General have done everything they could to limit their support for OHA and its beneficiaries.

The Attorney General’s latest betrayal to Native Hawaiians is to remove his support for the Akaka bill if the original version from the year 2000 is introduced.  According to him, it is unconstitutional.  This has forced our congressional delegation to pullback the 2000 version and re-introduce last year’s bill that Republicans in Congress bastardized.  I say why rush this bill through now?  The Lingle administration will be gone next year.  At the same time, the democratic controlled Congress and a President who has pledge to sign the bill when it reaches his desk should be a better fit for us.

ON ANOTHER NOTE:

The Kawaiaha’o Church Multi-Purpose Center Construction Project

In early May of 2006, OHA contributed $1 million to help rebuild Likeke Hall at Kawaiaha’o Church.  However, reconstructing Likeke Hall has now turned into a “Multi-Purpose Center,” which will house offices, a nursery, archives, meeting space and a kitchen.

As many of you have certainly heard in the media, construction of the Multi-Purpose Center was put on hold in April after 69 sets of human remains were discovered by workers.  On May 27, 2009, OHA sent a letter to the State Historic Preservation Division (SHPD) regarding our serious concerns about the ongoing discovery of remains and the treatment of unmarked burial sites on the Kawaiaha’o Church property. (NOTE: At the time of this writing, we have not heard from SHPD).

State law requires that any discovered skeletal remains that appear to be over 50-years-old cannot be moved without the state Department of Health’s (DOH) approval.  However, since the church didn’t have names for the deceased, which DOH requires, the issue fell under the jurisdiction of SHPD.

OHA feels that a “good faith interpretation of the law” would require inventory level testing of any area proposed for construction.  OHA also stresses that if any remains are identified, that they be treated in accordance with the law as in previously identified burial sites.  The Oahu Island Burial Council also needs to be allowed to determine the ultimate disposition of the remains in consultation with identified lineal and cultural descendants; and this time, be given AN ACCURATE MAP of where the graves are located.

Since the area of Kawaiaha’o Cemetery and the surrounding area headed makai hold hundreds of unmarked ancestral Native Hawaiian burial sites, OHA strongly advised against removing or redesignating portions of Kawaiaha’o Church Cemetery just to make the Multi-Purpose Center easier to build.

OHA also reminded SHPD that construction workers need to remember that the surrounding soil contains fragments of our iwi kupuna that are too small to be noticed or properly recovered.  Given the powerful reverence for iwi kupuna within our Native Hawaiian community, the soil should also be treated with the utmost respect.  There should also be no utility lines, sewer lines or grease trap within the vicinity of human burial sites.

I strongly believe that construction should have been halted as soon as the first group of iwi was unearthed.  A REPUTABLE archeologist should have immediately contacted the Oahu Island Burial Council.  Instead, what seems to have occurred is that many of the iwi kupuna were placed in lauhala baskets and stored under the church.  The workers then destroyed all of the caskets, making the iwi almost impossible to identify.  This is a flagrant act of desecration no matter what culture a person comes from and it is unbelievable that it was allowed to occur at Kawaiaha’o Church.  The people responsible for this egregious act should be called upon to explain how this could have happened.

It is also unfathomable to me that a construction firm could possibly get a permit to desecrate such a sacred burial site in this manner without proper authorization.  One has to question if they even had all of the proper permits to proceed.  It is my understanding that the graves were unearthed with only a grading permit!  I believe that all of this could have been prevented if they had simply taken the time to do things right before construction started.  Now they are forced to work backwards to fix their mistakes after the damage has been done.

This project must not be allowed to continue until a plan can be agreed upon by all parties, including lineal descendants.  Let us pray that all sides can work together to care for the iwi kupuna in a pono way.  Aloha Ke Akua.

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Posted in Government

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

Support Senate’s OHA Settlement Bill

Sunday, April 19th, 2009

By: Trustee Rowena Akana

Source: Letter-to-the-Editor, Star-Bulletin, April 19, 2009

I strongly support Senate Bill 995, 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.

This bill proposes to convey Mauna Kea to OHA, along with several other parcels of land. The bill 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.

It should be noted that a global settlement does not include natural resources, water and gathering rights or any other rights.

The Senate’s “global settlement” offer includes monetary payment to OHA of $251 million; 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 the suspension of the $15.1 million in annual payments to OHA effective a date to be agreed upon in good faith.

In my view, SB 995 provides a great opportunity for all native Hawaiians to finally have the resources to build a strong nation.

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Posted in Government

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

Apoliona Sells Out Hawaiians

Saturday, November 15th, 2008

By: TRUSTEE ROWENA AKANA

Source: November 2008 Ka Wai Ola o OHA Column

During this past legislative session I strongly opposed HB 266, HD because the bill, if passed into law, would bind us to a settlement agreement that was signed between OHA and the State on January 17, 2008.  The agreement contained language that will forever extinguish all rights afforded to Native Hawaiians under section 4 and 6 of Article XII of the State Constitution. 

Apoliona tried to rush through a settlement with the state so that she could claim she settled our 28-year-old dispute during her bid for re-election.  Apoliona was willing to sell-out all Hawaiians, both now and in the future, by signing an agreement that would forever give up any claims we have to land and natural resources.  Hoping that no one would read the language of the agreement, Apoliona kept it a secret until she finally revealed it in January to the legislature.

Apoliona was confident that she could sneak this bill through the legislature before anyone caught on to this betrayal.  Unfortunately for her, the general public, Hawaiian beneficiaries, and the legislators did not agree that this was legislation that should be passed and over a hundred people testified against it.  In the end, the legislature killed the bill and told OHA to take any future agreements out to the public for hearings.  This has not occurred as of the writing of this article.

The following is the exact language that was contained in the agreement Apoliona signed:

“For claims on or after July 1, 2008: For each and every fiscal year following June 30, 2008, during which OHA retained the statutory right to receive an annual payment of income and proceeds from the public land trust lands of at least $15,100,000, OHA releases, waives, and forever discharges any and all claims of any kind concerning, relating to, or arising out of each and every claim for damages or any other relief against the STATE, or its departments, agencies, officers, or employees, by the office or any other person or entity, with respect to any controversy, claim, cause of action, or right of action arising out of, or relating to any right OHA or any other person or entity may have to income, proceeds, or any other tangible right, item, or benefit from the public land trust under section 4 and 6 of Article XII of the Constitution or any statute or act.  Such claims are forever barred, and to the extent any waiver of sovereign immunity for such a suit, claim, cause of action, or right of action still exists, that waiver is withdrawn by the Proposed Legislation.”

The language above also conflicts with the Akaka bill, specifically the section that allows for the United States and the State of Hawaii to enter into negotiations with the future Native Hawaiian governing entity to addressing such matters as the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources and also to address grievances regarding assertions of historical wrongs committed against Native Hawaiians by the United States or by the State of Hawaii.

It was for these reasons that I strongly opposed HB266, HD2 and ask the legislative committees to hold the bill until a more favorable agreement can be worked out by the Governor’s administration, the Legislature, Native Hawaiian beneficiaries, and OHA.

Everyone knows that OHA’s mission is to advocate for the betterment of our beneficiaries, so how could Apoliona sign an agreement that would extinguish the rights of all our beneficiaries to future entitlements including rights to surface and ground water and mineral resources?

BIG BULLY

          Since December of 2007, Apoliona has been bullying the administrator about approving my travel to the Cook Islands and questioning why the Premier of the country invited me and not her.  Apoliona’s non-stop harassment, micro-managing, and need to control everything has finally proved too much for him.

She recently used a Star Bulletin reporter to question me on why my airfare was more expensive than other trustees traveling on one particular trip to Washington, D.C.  This was one of the few times this happened and as those of you who have traveled to the continent know, your ticket price varies based on when you make your reservations.  Our trips to Washington are usually based on when the Akaka bill is heard and we don’t have a lot of time to rework our schedules before we can commit to traveling.

Apoliona never mentioned to that reporter that on one of her own trips to Washington, D.C., she spend nearly $9,000!  She also never mentioned that she outspent every trustee that ever served on the OHA board, with over $56,000 in one fiscal year of travel.

VINDICTIVE

Astonishingly, even though our Executive Policy manual clearly states that the Administrator has the power to authorize travel for trustees, he has chosen to let the Chairperson take over this duty before the new policy has been officially passed!

Without even the proper authority, Apoliona has denied my travel to South Dakota for official business.  For the past five years, I have been a board member of the Governor’s Interstate Indian Council.  I am the only non-Indian member.  This organization has supported our efforts for federal recognition with five resolutions that have been sent to Congress on our behalf.  This organization represents Native Americans and Alaska Natives in all 50 states.

This is one small example of the many punitive things Apoliona does to her fellow trustees who do not support her efforts to overspend, break procurement laws, withhold information from trustees and beneficiaries, and encouraging a “wild west” behavior at OHA for the last five years.

MORE THINGS TO CONSIDER

  • Beneficiaries should question why OHA spent over $37,000 on the mayoral debate, but spent zero dollars on a forum or debate for OHA candidates.  Wouldn’t an OHA candidate’s forum be more important to our beneficiaries than a mayor’s race?
  • Apoliona would never agree to a candidate’s debate for OHA.  She would have to answer the many questions beneficiaries have about all the money OHA has spent during her term as Chairwoman with no results or benefits that directly impact our people.
  • Everyone should question why Apoliona and her cronies did not question the Governor’s motives for appealing the State Supreme Court’s ruling that said the state could not engage in the sale of ceded lands until it reaches a settlement with Native Hawaiians.

The Governor appealed this all the way to the U.S. Supreme Court, which has recently granted the state the right to present its case before them.  This is the Governor who said that she believed that the Hawaiian people deserve to be compensated for the wrongs done to them.  This is the Governor that Apoliona has been in agreement with in signing-off on the future of entitlements for Hawaiians.  Who is Apoliona representing?

Apoliona has put Native Hawaiians in a NO WIN situation.  The Governor is fully aware that there is currently no justice for any native people at the U.S. Supreme Court.  We all know what happened to us in the “Rice Case” when we went before the Supreme Court.  That decision has led to nearly ten years of constant litigation.

CHOOSE WISELY

In this election year, voters can make the necessary changes and elect people who work cooperatively with others for the benefit of our people, in a manner that is open and transparent.  This is my hope for CHANGE.

Apoliona and Machado have proven that they cannot be trusted with the future of our native people.  Mahalo Ke Akua.

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Posted in Government

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

Too little, too late

Saturday, March 15th, 2008

By: TRUSTEE ROWENA AKANA

Source: March 2008 Ka Wai Ola Column

‘Ano‘ai käkou… OHA is currently lobbying the Legislature to pass a bill that will settle our claims against the State from 1978 to the present. For those who do not remember, former Gov. Ben Cayetano’s second settlement offer in 1999 was a better deal than the current proposal.

The Board voted to reject Cayetano’s first offer, which was much less than the $251 million he later offered, for the past due amounts owed to OHA from 1980. We also discussed a prospective offer of 20 percent, or 365,000 acres of ceded lands, if OHA would settle on all land claims against the State in the future.  This offer would not have included any ocean resources, or any other resource, that we would be entitled to.

OHA couldn’t consider Cayetano’s second offer because five Trustees, including Trustees Haunani Apoliona and Colette Machado, suddenly voted to end all negotiations. OHA’s attorney at the time, James E. Duffy Jr., now a Hawai‘i Supreme Court justice, repeatedly advised the Trustees to continue the negotiations, but they rejected his advice.

The $251 million that Cayetano offered in 1999 would be worth more than double today and the 365,000 acres of ceded lands would have meant economic self-sufficiency and a better negotiating position for the Akaka Bill.

I believe that Apoliona and Machado wanted to end negotiations because they did not want any credit to go to our negotiating team (former Trustees Clayton Hee and Mililani Trask and myself). They thought they could negotiate their own deal, but nine years later all they could come up with is a watered-down version of our previous deal. Their short-sightedness caused OHA to pay dearly a year later when the U.S. Supreme Court came down with the Rice decision.

Later, the Hawai‘i Supreme Court threw out Act 304 and suggested that the remedy must now be sought at the Legislature. I believe this decision was due to OHA walking away from the negotiating table after the Hawai‘i Supreme Court had asked OHA and the state to negotiate a settlement.

Please note that all of my statements can be verified by Gov. Cayetano, his chief negotiator Sam Callejo, Sen. Clayton Hee, or Justice James Duffy. I also have documents that support my statements regarding OHA’s 1999 negotiations with the state.

In 1980, the state legislature amended HRS chapter 10 by adding HRS 10-13.5, which provided that “twenty percent of all funds derived from the public (ceded) land trust shall be expended by OHA…”  The Hawai‘i Supreme Court quoted HRS 10-13.5 verbatim when it recently issued an injunction preventing the state from any future sale or transfer of ceded lands until the claims of Native Hawaiians have been resolved.  In light of this, OHA should really consider whether deleting the twenty percent provision in HRS 10-13.5 would hurt OHA’s standing with the Hawaii Supreme Court.  We should also consider whether we could negotiate a better deal with the state now that we are in a much stronger negotiating position.

Kau Inoa updates

Also, in a memo dated Jan. 31, Administrator Nämu‘o submits that our leader for Kau Inoa registrations on the continent, Chairperson Apoliona’s sister Aulani, is “…sometimes slow in gathering paperwork and submitting documentation for P-card payments.” Because of this, her OHA credit card was taken away and given to another staff person to manage (right?). Is it any surprise that our Kau Inoa program on the continent is so ineffective and no one knows for sure how much OHA funds are being spent? The Administrator announced that as of Feb. 7, the total number of Kau Inoa registrations is 80,625. There were 67,684 in Hawai‘i (84 percent) and 12,941 on the continent. As of Oct. 22, 2007, there were 29,574 registrants who needed to be verified as Native Hawaiian through the Department of Health.

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Posted in Sovereignty

Too Little, Too Late

Friday, February 8th, 2008

By: Trustee Rowena Akana

Source: Letter sent to Star Bulletin Editor on February 8, 2008

I am writing to correct the errors that were made by the Chairperson of the Office of Hawaiian Affiars and other trustees in their Feb. 7th letter. 

First, the letter twists the facts by stating that I rejected former Governor Cayetano’s offer in 1999 while I was serving as the Chairperson of OHA. 

What really happened is that the full board voted to reject Cayetano’s first offer, which was much less than the $251 million he later offered, for the past due amounts owed to OHA from 1980.

OHA and the state were also discussing a prospective offer of 20% or 365,000 acres of ceded lands, if OHA would settle on all land claims against the state in the future.  This offer would not have included any ocean resources, or any other resource, that the Hawaiian people would be entitled to.

OHA was not able to consider Cayetano’s second offer because five trustees, who include currently serving trustees Haunani Apoliona and Colette Machado, voted to end all negotiations.  OHA’s attorney at the time, James E. Duffy, Jr., now a Hawaii Supreme Court Justice, repeatedly advised the trustees to continue the negotiations, but they rejected his advice.

The $251 million that Cayetano offered in 1999 would be worth more than double today if it were properly invested and the 365,000 acres of ceded lands would have meant economic self-sufficiency and a better negotiating position for the Akaka bill.

I believe that Apoliona and Machado wanted to end negotiations because they did not want any credit to go to our negotiating team, which was made up of myself and former trustees Clayton Hee and Mililani Trask.

Apoliona and Machado thought they could negotiate their own deal, one that would serve as their legacy, but nine years later all they could come up with is a watered-down version of our previous deal that we now see before the legislature.  Their short-sightedness caused OHA to pay dearly a year later when the U.S. Supreme Court came down with the Rice decision.

Later, the Hawaii Supreme Court threw out Act 304 and suggested that the remedy must now be sought at the legislature.  I believe this decision was made by the court because OHA walked away from the negotiating table after the Hawaii Supreme Court had asked OHA and the state to negotiate a settlement.

Also, in light of the Hawaii Supreme Court’s recent injunction preventing the state from any future sale or transfer of ceded lands until the claims of Native Hawaiians have been resolved, OHA should really consider whether a better settlement can be negotiated than the one we now have before the legislature.

I encourage anyone who would like to dispute my statements to speak directly to Governor Cayetano, his chief negotiator Sam Callejo, Senator Clayton Hee, or Hawaii Supreme Court Justice James Duffy.  I also have signed documents from the 1999 negotiations to back up what I have written.

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Posted in Government

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