Category: Legal

OHA Plagued by Another Frivolous Lawsuit Filed by the Same People

By Rowena Akana
April 2002

Source: Ka Wai Ola o OHA

Arakaki v. Cayetano disenfranchises Hawaiians from their rightful entitlements.

OHA is faced with yet another lawsuit enjoining the State and Federal governments from giving Hawaiians their entitlements. On March 12, 2002, the Honorable Judge Mollway heard arguments on whether to issue a temporary restraining order against the State, OHA and DHHL, and had the good sense to deny such an order. However, the case will go on further to address the issue of whether OHA and DHHL are entitled to their entitlements.

This case comes squarely on the heels of the recently dismissed Carroll case. How many times must OHA and others go to court to address the same issues? The Arakaki plaintiffs argue that the original trust (without the Admissions Act amendments) is what governs and that does not mention using the ceded lands for the betterment of Hawaiians, and that the amendments which do allow ceded lands to be used for the “betterment of Native Hawaiians,” were improper. They argue that they have standing as taxpayers and beneficiaries of the original trust. This is pure blasphemy!

It is well within the jurisdiction of the court to hear a case brought by or on behalf of the beneficiaries of a trust for breach of fiduciary responsibility under Title 28 of the United States. This action is especially applicable where these rights are clearly granted by the Admission Act (Public Law 86.3, March 18, 1959) and the State Constitution which established the Public Trust and named the native Hawaiian as a beneficiary class. As required by the Admission Act the people of Hawaii constitutionally enacted the following:

“The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution…shall be held by the State as a public trust for native Hawaiians and the general public.”

“Any trust provisions which the Congress shall impose, upon the admission of this State, in respect of the lands patented to the State by the United States or the proceeds and income there from, shall be complied with by appropriate legislation. Such legislation shall not diminish or limit the benefits of native Hawaiians under Section 4 of Article XII.”

The Admissions Act was an act of Congress and can only be struck down by another Act of Congress or the United States Supreme Court.

Hawaiian lands have been given away, taken away, and sold until they own very little of what was originally theirs. Our people are still awaiting the day when they can own their own homes. This case should unite the Hawaiians to speak up and fight for their entitlements. This is why I believe so strongly in sovereignty–so those against Hawaiian entitlements cannot take them away. Wha’t next? Kamehameha Schools, Liliuokalani Trust and other Hawaiian trusts?

Racism Comes to Hawaii Vis-à-vis Freddy Rice

By: Trustee Rowena M.N. Akana
April 2000

Source: Ka Wai Ola o OHA

Mr. Rice’s attorneys are riding high on the hog vis a vis their 15th amendment win in Rice vs. Cayetano. However, what the media has not reported is that Mr. Rice was the pawn used by the white, racist, and elitist group Campaign for A ColorBlind America (CCBA) to further its agenda to reverse any affirmative action initiatives and laws regarding the protection of native peoples’ rights.

The CCBA has written briefs that helped to overturn at least 10 Supreme Court cases about minorities and Native Americans. With the Rice case under his belt, CCBA executive Marc Levin announced that the organization would now pursue the elimination of other Hawaiian trusts and entitlements. CCBA is motivated by their belief that by the year 2020, minorities will control all of America, and whites will no longer be the controlling class. For this racist group, being a member of a minority group and being oppressed is unfathomable.

Echoing Mr. Levin’s sentiments is former attorney John Goemans, who plans to continue his fight to infiltrate the 50th state with overt racism and white supremacy. Although he is no longer licensed to practice law in Hawaii, Mr. Goemans has publicly stated that he intends to use the Rice victory as ammunition against programs that the Hawaiian people hold dear. Mr. Goemans says he is planning these attacks because “…all government programs, state and federal, for native Hawaiians are race based, presumptively unconstitutional, and up for challenge.”

With that said, it should not come as a surprise that CCBA is aiding Mr. Goemans in his quest to strip our people of what is historically due to us. According to the CCBA’s website (http://www.equalrights.com), it “assisted Goemans with his appeal to the Ninth Circuit Court and filed an amicus brief at the Supreme Court.”

Mr. Goemans, along with others who challenge Hawaiian entitlements, should refer to the U.S. brief filed in the Supreme Court on behalf of OHA and the state that declares that Hawaiians are equal to Native Americans and Native Alaskan peoples. Therefore, any entitlements that Hawaiians enjoy cannot be considered race-based, but rather, political status entitlements as the native people of this land.

The Rice ruling underscores the need to build consensus on the issue of self-determination so that OHA can move forward as an agency that is “quasi- sovereign” rather than an arm of the state. One of the methods by which self-determination can be accomplished for our people is through federal legislation that would afford native Hawaiians the same special status as Native Americans now enjoy. We Hawaiians are at a juncture where we are able to restructure a nation that takes into consideration what is best suited for us. We have progressed insofar as to possess the ability to hold jurisdiction and control over our resources and lands. We do not need the state to decide these things for us.

Our Hawaiian voices need to be heard at the state legislature, and in the U.S. Congress. We must get involved in the legislative process, or risk having this process decided for us. To have others decide for us, strips Hawaiians of autonomy and the ability to decide for ourselves what is best for us.

This ruling should be a wake-up call for not just Hawaiians, but for the entire state. As a state, we need to stomp out any hint of racism. And as a Hawaiian community we need to tell our story and get the message out so that history will not be repeated for our future generations.

OHA Chair issues statement on the U.S. Supreme Court’s decision

By: OHA Chair Rowena M.N. Akana
March 22, 1999

Source: Office of Hawaiian Affairs, Media Release

HONOLULU–As you all are surely aware, the United States Supreme Court has agreed to hear the appeal in the case of Rice vs. Cayetano. This comes as no surprise, however unpleasant. This case has been doggedly appealed to the highest court in the land, which I am hopeful will let stand the previous decisions by District Court Judge David Ezra and 9th Circuit Court of Appeals justices. It is especially worth noting that Senator Daniel K. Akaka has echoed this sentiment in an earlier statement today. As noted by our distinguished senator, The Ninth Circuit correctly determined that the OHA voting restriction “is not primarily racial, but legal and political.” I fully agree with Senator Akaka that the Supreme Court should without hesitation affirm that principle. Additionally, we share the view that this is a political question better left to Congress, the State of Hawai’i, and Native Hawaiians.

If there is a silver lining regarding the Supreme Court’s willingness to take this case to another level, it is that we once and for all will end the incessant challenges by Mr. Rice to the rights of the indigenous people of these lands. I am confident that our Attorney General will represent the interests of the Hawaiian people to the fullest extent. I will do what I can to assist our Attorney General to ensure that we never allow the clock to be turned back to a time when the rights of the minority, indigenous people, were trampled under foot of the majority.

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.

Makua: Target State Not Military

By: Trustee Rowena Akana

Source: Kai Wai Ola o OHA, August 1997

Last month, the U.S. Marines had planned an amphibious landing at Makua Beach. The five-day exercise was to begin with an amphibious assault on the beach, followed by live-fire training in the valley. The community was outraged, and rightly so. The Wai’anae Coast Neighborhood Board, Hui Malama o Makua, Pastor Kaleo Patterson (organizer of the demonstrations leading up to the day of the scheduled landing) and the Hawai’i Ecumenical Coalition rose to protest the intrusion of the military onto sacred land at Makua. The protest caused Governor Cayetano to meet with Admiral Prueher (commander-in-chief, Pacific Command), and a meeting with representatives of the community ensued. The military changed its plans and landed at Bellows Air Force Station instead. While Frenchy DeSoto proclaimed this a major victory, this was anything but a victory. All it did was postpone the inevitable.

The military has not ruled out future training activities in the area which is held sacred by Hawaiians. Using live ammunition, and firing into a beautiful sacred valley in the middle of thriving communities is insane. Would the military try this in other states for 65 years? Let’s see if other communities in America will allow them to do this.

The people of Hawai’i must become more involved in what our state officials are doing on our behalf.

One could argue all day about being ready for war, but let’s be realistic. If there is a third world war, no one would be fighting in hand-to-hand combat. The fight would be a nuclear one and none of us would have to worry about Makua Valley, or anywhere else.

In 1964, the state leased Makua to the Army for $1 for 65 years until the year 2029. The lease allows the military to use the beach for maneuvers, but in doing so, it infringes on the community’s public access rights.

During 1ast year’s legislative session, the governor and the legislature decried the poor condition of state finances and how departments and programs would have to tighten down to run more efficiently with less money. But while they are selling the sob story of “no money,” they, at the same time, give away prime lands at $1 for 65 years, denying us -the constituency and beneficiaries – our fair share of revenues: 20 percent – OHA beneficiaries; 80 percent – general public beneficiaries. This debacle allows potentially millions of state dollars to be lost.

The protest at Makua raises questions, not only about access, but about state accountability in meeting its responsibilities to the public trust.

* Shouldn’t there be a review of state land leases? Because of the state’s rationale for low lease rent, an impartial third party should do the review.

* For how much of our valuable ceded lands are we not receiving proper compensation? When potential revenue is allowed to slip away, we get short-changed in education, human services, health and other benefits.

* Why weren’t access requirements considered in the lease of Makua? The state must let the military know that it cannot lease valuable land for bombings, live ammunition firing and training. Although the governor met with Admiral Prueher to change the landing site, this wasn’t resolved when the lease was given in 1964. The target of protest should be the administration, not necessarily the military, because the state can revoke the lease at any time.

* The state doesn’t own lands; it is the trustee for these lands. Shouldn’t it be more accountable for their management of these lands?

It’s time we (the public) demand that the state take its responsibilities seriously as trustee of our public trust. We have allowed them to mismanage our lands for too long! Should we be considering hiring private counsel to investigate the state for their mismanagement of our public land trust?

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.

Entitlements–It Belongs to You

By Trustee Moses Keale
November, 1992

Source Ka Wai Ola O OHA

These are tough times for all of us. Last month I issued a challenge to everyone to speak loudly and clearly that we, the native sons and daughters of this land want our full entitlements. Do you remember my question last month? “Does all this really matter?” And do you remember my answer? “…the total entitlements compensation would approach $30,000,000 yearly. … if you factor in the back payments for rents for these lands the total back rent could exceed $300,000,000!”

Yes, it does make a great deal of difference! I remember all too well how OHA began 12 years ago. We, the nine trustees, were told to run an agency to better the conditions of the Hawaiian people. And they said we were entitled to do this on a budget of $225,000 of public matching funds supplemented by our entitlements income. With the expectation of the people high and the money minimal, it was a struggle to keep our heads above water. For many years there was very little change in our income stream. Between 1981 and 1989 OHA’s annual operating income from special and general funds amounted to an average of $2,066,000 per year. The most significant changes in public funding came in fiscal year 1988 when the legislature almost tripled our general funding level. This was accomplished under the guiding hands of then Administrator Kamaki Kanahele now an accomplished Trustee.

Our biggest break, though, came in 1990 when agreements were reached with the Governor’s office on the PROPER entitlement amount. This was a quantum leap in revenue amounting to more than $8,000,000 annually. Now, under these conditions, we could really function. Now, we could really implement a large portion of the master plan. We conducted public hearings to revise the functional plan and the Board met to implement new policies and procedures.

We hired a new administrator and at his request we reorganized the office. In fact, based on his recommendation, we requested that the legislature change the Hawaii Revised Statutes to allow the Administrator to employ all personnel without obtaining the approval of the Board as was the previous practice. Then, we asked him to draft and to implement a plan that would effectuate the major objectives of the master plan and would incorporate the new functional action items. This was a bold new experiment for us which reflected our ability to use the newly obtained resources.

The Trustees had done their job in obtaining the revenue stream and now it was up to administration to provide programs to impact the beneficiaries. It was our hope that you, the Hawaiian people, would finally begin to feel the impact of new programs to service your needs. Well, the experiment has been a failure! Certainly, three years is adequate time to evaluate the impact of the new products.

In reviewing all of our present initiatives, and after eliminating the ongoing projects which began prior to the reorganization (for example: The Native Hawaiian Revolving Loan Fund, Aha Opio O OHA, Aha Kupuna, educational tutorial programs, the embryo of our self-help housing program, and our ongoing health initiatives), it seems our new programs have fallen far short of the mark. Administration proposed a revolutionary program called I Luna Ae, a 7-point initiative, designed to address concerns and provide services where services were needed. Included in this 7-point initiative were:

Operation Ea, designed to address restitution from the federal government;

Operation Ka Poe, otherwise known as the single definition mandate;

Operation Ohana, targeted to gain data on all Hawaiians to effectuate a better system for the delivery of services and benefits to every Hawaiian;

Operation Malama Mau, created to address the need to identify and protect our cultural heritage and cultural assets;

Operation Alohi, a program designed to enhance our communications system in order to keep our beneficiaries informed of our work;

Operation Hui Imi, a task force of Hawaiian Agencies created to coordinate services to lessen duplication and overlapping of strategies;

Operation Hookuleana, designed to effectuate full entitlements from the state government.

Well, after extensive review, I find that the following is true:

Operation Ea, which began with the publishing of the “Blueprint for Native Hawaiian Entitlements” and other promises of securing restitution, has produced three pieces of proposed federal legislation. One of these draft bills is seriously flawed, another is presumptuous and the third needs input from the effected beneficiary class. No formal hearings have been held on these documents and the public input process has been limited.

Operation Ka Poe, reflects serious flaws in thinking. Less than 1/2 of the Hawaiians over the age of 18 actually received ballots. Of those who received the ballots only 38% returned them. Therefore, the 19,000+ Hawaiians voting in favor of this initiative represented only 16% of the estimated 125,000 adult Hawaiians residing in the state. It was not the overwhelming voice of the Hawaiian people who spoke up for a single definition, it was only a select few.

Operation Ohana, was one of the most noteworthy programs in concept. The goal, as articulated by the administration, was to enroll 150,000 Hawaiians by 1990. It is now 1992 and the latest report indicates that less than 10,000 Hawaiians have completed the enrollment process.

Operation Malama Mau, has met many of its objectives. The Native Hawaiian Historic Preservation Council has been diligent in its work and has achieved notable progress in the area of cultural preservation and protection of sites and practices.

Operation Alohi, has finally begun to make limited inroads toward a commitment to communicate with the beneficiary. After nearly three years of failures and large expenditures of funds, the program has finally begun to move toward its target goals thanks to the efforts of the new public information officer.

Operation Hui Imi, has been operational and met with success. Coordination of program and program services among the agencies and organizations servicing Hawaiians have improved.

Operation Hookuleana, also has been successful. But this success can be directly attributable to work by the Trustees who have been in direct control of the process from the beginning. There is still much to be done and the Trustees are continuing to work directly with the Governor’s office.

Taken as a whole, I find that while we have spent large sums of moneys, expended an enormous amount of staff time, and committed a great deal of office resources toward the efforts of the I Luna Ae program, the success ratio is dismal. Of the seven initiatives, three of the most costly programs have been failures, one could not meet its targeted objective because of severe understaffing, and one was taken over by the Trustees with outside help hired to complete the task. Of the two remaining program initiatives, Operation Malama Mau’s product has been tainted because of administrative misdirection while Operation Hui Imi appears to be self-sustaining.

It is time for us to take a hard look at whether our resources are being directed in an efficient manner. The bottom line is whether you are receiving the benefits that we have mandated the office to deliver. Ultimately, it is the duty of the nine trustees to evaluate the progress and determine whether the work of this office is acceptable. Our focus should now turn toward building the best “delivery of service program” that we can muster. To this end I have always pledged my energies. To this end my efforts will be concentrated. Although we must not lose sight of gaining full entitlements for the Hawaiian people, it is time to concentrate on the delivery of these entitlements to the people. Although this may require tough and unpleasant decisions, that is the nature of position of leadership to which each of us is elected!

IMUA E NO OHANA. A INU I KA WAI AWAAWAI

A i manao kekahi e lilo i pookele i waena o oukou, e pono no e lilo ia i kauwa na oukou. Na ke Akua e malama a e alakai ia kakou apau.