Tag: Act 304

Let Us Pray for Guidance, Perseverance and Tolerance

By Trustee Rowena Akana
December 2002

Source: Ka Wai Ola o OHA

Mele Kalikimaka me ka hou’oli makahiki hou to everyone, and a Big Mahalo to everyone who supported me in the November elections.

As we move forward in the new millennium with two new members on the OHA Board we look optimistically for change both in the leadership and in OHA’s direction for the future. At the writing of this article no one has been chosen for the chairmanship as yet. It is unfortunate that new members do not get to know other members of the board before they choose a chair. It has happened time and time again that while people promise anything to get the position, once they get it, nothing changes and the chair’s position becomes one of power and control.

Let me recap what has taken place in the last eight months. OHA lost the interim revenue bill at the Legislature, Act 304 was not revisited by the legislature; OHA lost almost $100 million in our investments, mostly because of inattention to business and a lack of concern by both the chairman of the board and the chairman of finance. While everyone lost money on the stock market this year, we were given many opportunities to bail out of some of our investments and reinvest in real estate and other more tangible investments. Instead, this leadership did nothing despite the urging of at least two trustees. At no time were any emergency meetings called to discuss OHA’s financial crises, nor were any meetings called to address the many legal challenges facing OHA.

The board never met to discuss any planning for the future, given the fact that we now were faced with no income and we were still funding operations and programs using our trust assets for the first time in OHA’s history.

Now, after all this, you would think that the past leadership would be ashamed to ask for the leadership again. But that is not the case. Here we go again. What is scary is it only takes five votes….four old guys and one new uninformed well meaning person who wants to make OHA look unified. After a few months, the honeymoon will be over when that new person realizes that he has been duped and the leadership is incapable of leading and they find themselves in “F” troop instead.

So, what is the answer? The answer is do not choose a leader right away. Have a committee-of-the-whole with a new chair for every meeting for three months and the person who can build consensus among the trustees will win the prize. We certainly must try something new, nothing so far has worked. Wish us luck with a new process because there must be some serious effort put into the tasks that lay ahead. Example: negotiations with the state on a ceded land settlement, interim revenue, addressing legal challenges, federal recognition and a transfer of entitlements.

“Through wisdom is a house built, and by understanding it is established and by knowledge shall the chambers be filled.” Proverbs 14:3-4

Have a great holiday season and God bless!

OHA’s 2002 Legislative Package

By Trustee Rowena Akana
January 18, 2002

Source Letter to Editor

On September 12, 2001, the Hawaii State Supreme Court delivered a devastating blow to the Hawaiians when they struck down Act 304, which gave OHA 20% of the ceded land revenues collected by the State to be used for Hawaiian beneficiaries.

Without a steady flow of income to sustain all of our programs, we trustees must now reassess our current programs and look at ways to down size to preserve our trust assets.

While the Supreme Court may have struck down the mechanism for payments to Hawaiians, they did declare that the state still must fulfill its constitutional obligation to the Hawaiian people. They also gave the legislature the charge of amending Act 304. Until this is completed, there will be NO payments made to OHA by the state.

OHA will ask the legislature this year for an interim revenue amount until Act 304 is resolved. Because a formula based on revenues has been so problematic for OHA and the state, we must consider, in the very near future, to settle the ceded land claims with the state. This would allow the Hawaiian people the opportunity to have a land base on which to build our nation.

The second OHA bill asks the legislature to adopt a waiver from the state procurement laws. Because of an attorney general opinion, OHA is no longer able to give money to 501 C 3 programs. OHA is unable at this time to give any grants out to anyone. This opinion has basically stopped all flow of money from OHA to any organization or group asking for funds.

The third bill addresses the need to revisit Act 304 as directed by the Supreme Court of Hawaii.

The fourth bill allows the OHA trustees the ability to join the State Retirement System. For 20 years the trustees have NOT been allowed to join the State Retirement System.

At the Federal level: the Federal piece of legislation known as the Akaka Bill is slated to be heard in the Spring of 2002 in the Congress. While there may not be total agreement on the language of this bill, it is very important that Hawaiians receive federal recognition from the United States. Without this recognition we cannot proceed to nationhood.

On another note: I am happy to announce that within the next 30 days OHA will:

1. Increase out business loan amount to $250,000.

2. Partner in building 45 housing units in Kapolei.

3. Develop a partnership with FANNIE MAE to allow ALL Hawaiians to borrow money for home mortgages for down payments and closing costs at a reduced interest rate below the prime rate.

4. We will continue to work to develop a health initiative for our kupuna.

We ask for your kokua, this legislative session, to help us resolve some very critical issues for our people. Mahalo Ke Akua

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’ 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.