University of Hawaii | Rowena Akana

UH should not be managing Mauna Kea

`Ano`ai kakou… On May 26, 2015, Governor David Ige announced that he would “protect the rights of the builders” of the Thirty Meter Telescope on Mauna Kea. He also admitted that the state has failed the mountain in many ways and he wants to change the management of the summit to give more consideration to culture and natural resources. (Star Advertiser, 5/27/15)

The Governor has asked UH, which subleases the summit area from the state, to make ten changes to improve its stewardship of Mauna Kea. His requests included making the TMT the last telescope on the mountain; getting rid of at least 25 percent of the telescopes by the time TMT is ready for operation in the 2020s; and returning more than 10,000 acres not being used for astronomy.

Governor Ige’s proposal provides us a positive first step in revising the way Mauna Kea is safe-guarded, but he needs to go much further. 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.

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

To avoid possible fiscal impacts to the UH’s educational mission, any proposed general lease for Mauna Kea lands should require UH to charge a 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.

UH should be required to conduct a financial review of all public land trust revenue it receives. This 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.

The state should also require UH to develop a Master Plan that will return Mauna Kea to its original, pristine state once all of the current telescope leases expire and the lands are returned to the people of Hawaii.

Finally, UH’s authority to manage public trust lands must be reevaluated because of its continual abuse and mismanagement of our precious lands. The state and the legislature should revisit the autonomy that they have given to the UH. At the very least, they need to pull back some of its power. They frequently complain about crumbling infrastructure and the need to raise tuition. It’s should be clear to everyone that UH is not a fiscally sustainable institution, and such a desperate organization should not be in charge of Mauna Kea.

UH has failed to live up to its commitments and it is OHA’s responsibility as advocate for our beneficiaries to take whatever actions are necessary, legal or otherwise, to make things right on their behalf.

The mountain means many different things for many different people, but the bottom line is if you’ can’t manage it properly then the state should give it to someone else who can.

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.

Hawaiian cultural and natural resources exploited

By: TRUSTEE ROWENA AKANA

Source: July 2006 Ka Wai Ola o OHA Column

`Ano`ai kakou… On March 2, 2006, I wrote University of Hawai’i President David McClain to request that UH abandon its patents on three varieties of Hawaiian taro. I was disappointed that the University ignored Hawaiian cultural sensitivities by patenting a variety of taro that was developed through centuries of selective breeding by our native Hawaiians ancestors. To make matters worse, the three patented Hawaiian taro are now exclusively licensed by the University, which forces farmers to pay a 2% royalty on gross sales of taro and prevents them from breeding or conducting research on the plants. I urged President McClain to develop a strong policy that will ensure that our unique Hawaiian cultural and natural resources are not exploited.

According to media reports, the University is currently researching ways to gain an exemption to its policy of automatically patenting new strains of taro. UH’s vice chancellor for research and graduate education, Gary Ostrander, said the university “has come to both recognize and appreciate the unique place that taro occupies in the lives and culture of indigenous peoples and in particular our Native Hawaiian community.” Ostrander said that while the institution has not determined how it will do so, “we can unequivocally state the intention of Manoa to make an exception to the process relating to patenting and licensing surrounding taro.” (Advertiser, May 17, 2006)

According to Ostrander, the issue is not a simple one for UH to resolve. The three patented taro have been bred to be resistant to a fungal leaf blight and under UH union contracts, it must be protected through a patent. He also said that if the university doesn’t obtain a patent, a commercial entity could easily obtain one and control the release of the hybrid. “Manoa now must find a way to simultaneously be responsive to our faculty, their union, potential predatory commercial patents, and of no less importance, our greater Native Hawaiian community,” he said. (Advertiser, May 17, 2006)

While I understand that this issue will not be easy for the University to resolve, they must realize that time is critical and we can’t let this drag-on endlessly. We must not allow Hawaiian intellectual properties to be left unprotected for even another day.

One effective way to make this issue a priority within UH is to keep it in the public eye through protests. Respected Hawaiian activist Walter Ritte has taken the lead by helping to build a stone memorial on the UH-Manoa lawn as a reminder of the connection between taro and Hawaiian culture. He also helped to chain and lock the main entrances to the University’s School of Medicine in Kaka’ako, 15 minutes before the monthly UH Board of Regents meeting was scheduled to begin. He stationed men dressed in white and yellow malos at the entrances to symbolically place a kapu on the building.

The protests shouldn’t be limited to just UH. I sent letters to Senate President Robert Bunda and House Speaker Calvin Say in the last legislative session about this issue but, in the end, nothing happened. Proposals were introduced to limit laboratory research and growth of genetically modified taro and coffee until mid-2011, and ban all work on genetically modified Hawaiian varieties of taro. Unfortunately, these proposals went no-where.

It is important to note that the University has consistently taken license to capture Hawaiian resources without compensation to Hawaiians. For example, the telescopes on Mauna Kea and the giving contracts to research companies to explore Hawaiian waters. We need to seek legislation next year to make it illegal for the University to continue doing this without regulation.

With the election season coming up in the next few months, we need to make the protection of Hawaiian intellectual property rights an important campaign issue. Our legislators need to know that we’re not going to sit idly by as the last of our valuable resources are stolen and controlled by a selfish few. Imua e Hawai’i nei…

Legislative Session 2002 a vital “next step”

By Rowena Akana
December 2001

Source: Ka Wai Ola o OHA

As chairman of the Legislative and Government Affairs Committee, my primary focus in the next legislative session will be to work with legislators to resolve the 20-year old dispute over the ceded land revenue due Hawaiians. We do not intend to address issues which will extinguish any future claims including fishing, gathering, or sea mining rights. The focus is to reassert Hawaiian rights and entitlements that were settled in previous negotiations.

Hawaiian rights have been whittled away by a series of court cases. The United States Supreme Court decision in RICE invalidated the Hawaiians-only vote for OHA. The Hawai’i Supreme Court’s decision to overturn Act 304 invalidates the basis for trust income. This puts OHA in a crisis situation. With the clarifying section of Act 304 invalidated, the court has no statutory guidance, and the income stream of OHA has been crippled. On the horizon is a possible damaging rule in the anticipated challenge to the constitutionality of entitlements for Native Hawaiians. Staying under the aegis of the state has and will run Hawaiian entitlements into the ground. The Hawai’i Supreme Court has emphasized that the state still has an obligation to the Hawaiians. Yet the income stream for OHA has trickled to a stop. The best thing for OHA would be to gain independence from the state and to run the affairs of Hawaiians for Hawaiians. This would remove the stain of unconstitutionality from Hawaiian programs and would allow us to economically develop the lands agreed upon in settlement to make Hawaiians once and for all self-sufficient. Further, it would be the beginning of the building of a nation.

If the state and OHA cannot come to a decision as to a settlement, OHA may have to revisit Act 304 and come up with a formula for payments due to the Hawaiian. However, it must be remembered that after the World Trade Center attacks, our state coffers have less monies and may not be able to offer Hawaiians enough. We must also remember that Act 304 only entitled Hawaiians to a 20 percent revenue share of land fees. This has been a source of great irritation towards the state for the past 20 years. OHA has tried to collect the 20 percent formula since 1980 which has also been the cause of the disputes resulting in several lawsuits. Resolving the land issue once and for all will be beneficial to all concerned. We must not call a settlement on land a global settlement. The term global is far-reaching and really has no meaning between OHA and the state on any kind of settlement.

Several years ago, OHA was in negotiations with the state for a land and cash settlement. Forces in OHA were against this, thus scuttling the negotiations. The misunderstanding of the term “settlement” in the negotiations was considered a settlement offer from the state as a global one. The term “global” was loosely bantered around so that it scared people into thinking it was forever on all issues. They failed to understand that a settlement with OHA over land issues would be beneficial to Hawaiians because we would be able to develop programs for Hawaiians without the worry of whether the state would continue to contest the 20 percent formula or disagree with OHA over what kinds of state income on leases should be exempt from the formula, such as the University of Hawai’i.

I look forward to working with the legislature and constituents as the legislative chair to try to resolve some of the critical issues that have beleaguered OHA for 20 years. I urge you to continue to lend your support towards this goal.

Hawaiians Are Not the Enemy of the General Public

By Trustee Rowena Akana
February 8, 1997

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

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

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

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

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

Hands Off Ceded Land Revenues

By Trustee Rowena Akana
February 10, 1996

Source Star Bulletin Viewpoint

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

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

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

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

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

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

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

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

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

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

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

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