9th U.S. Circuit Court of Appeals’ recent decision affirming the standing of the Arakaki plaintiffs to sue OHA

By: Trustee Rowena Akana

Source:  Letter to various newspaper editors, May, 2009

While those opposed to Native Hawaiian programs may see the recent 9th U.S. Circuit Court of Appeals’ decision regarding the Arakaki lawsuit as a victory, we at the Office of Hawaiian Affairs were actually pleased that the 9th Circuit denied the plaintiffs any standing regarding the Department of Hawaiian Home Lands or ceded land revenues. 

I believe that the Arakaki lawsuit is just another one of a long history of challenges that Hawaiians have had to overcome since 1893.  Like all of those challenges in the past, the Hawaiian community will meet them head on and work diligently to overcome it.

In these difficult times, I truly appreciate the non-Hawaiians who have had the courage to step forward and speak out in support of their Hawaiian friends and neighbors.  People like Robbie Alms, who thoroughly impressed me with his speech during the Kamehameha Schools’ Unity Rally on Saturday, August 6, 2005 at ‘Iolani Palace.

Alms spoke from the heart when he said that he has never felt deprived because he could not attend the Kamehameha Schools.  He sincerely felt that his friends who were able to attend were blessed, but their blessing involved no loss on his part.

Alms also showed great insight when he said that it should disturb all of us greatly, both Hawaiians and non-Hawaiian, that laws designed to “lift the yoke of slavery from black Americans are used as weapons to harm native people.”

I would like to send out a warm mahalo nui loa to all of the non-Hawaiians out there, like Robbie Alms, who continue to speak out for the Hawaiian community in its time of need.  As for the Arakaki lawsuit, make no mistake, none of the programs currently working to assist disadvantaged Native Hawaiians will ever fall victim to its terrorization.

OHA beneficiaries demand accountability


Source: May 2008 Ka Wai Ola o OHA Column

`Ano`ai kakou…  Here are a few recent developments at the legislature and at OHA:


On March 27th, the Sovereign Councils of the Hawaiian Homeland Assembly (or SCHHA, formerly the State Council of Hawaiian Homestead Associations) called on the legislature to audit OHA.  They argued that OHA did not provide them with the basic information they needed to review OHA’s settlement agreement with the Lingle Administration for back-payments of ceded land revenues due from 1978-2008. 

The SCHHA specifically asked: (1) How the $200 million dollar amount was determined, including whether the revenues considered included disputed and undisputed income sources; (2) How $187 million of the total $200 million was determined to be provided in lieu of cash; (3) How the annual minimum payment of $15.1 million a year to OHA was determined; and (4) What native rights are being waived.  The SCHHA also said the State and OHA need to conduct a meaningful consultation with them as required by law since they are native Hawaiian beneficiaries. 

None of this would have happened if Chairperson Apoliona properly informed our beneficiaries about what this kind of settlement would mean to our future.


Also in March, a recent former OHA employee testified to State senators that he had “witnessed a great many outrageous acts” at OHA.  He wrote that, “OHA staff morale has plummeted, programs implemented to benefit Native Hawaiians have been circumvented, and gross mismanagement has been apparent from the very top.”  He also said that, “Today, OHA is a self serving organization only interested in acquiring money and power for itself and is so hamstrung by politics that it has failed in its mission to help all Native Hawaiians…”

He explained that one reason for the low moral at OHA is that “…the employees who have either chosen to leave OHA or who have been fired are the most competent at what they do professionally… and have the passion and drive to create successful projects for the community.  Initiative is rewarded by reprimands and/or termination from OHA by its top Administrators.” 

He also supported my earlier statements in the December 2007 Ka Wai Ola that staff members are not allowed to speak directly with Trustees.  He said that, “OHA staff are forbidden to speak with any of the Trustees for fear that they will ‘complain’ to them about the Administrator and the Deputy Administrator.  If a request is granted to speak with a Trustee, a manager accompanies staff to monitor what is being discussed.” 

Like the SCHHA, he also called for a financial and management audit of OHA, but his reason was due to “gross mismanagement.” 


Here is an example of my experience, even as a Trustee, of how hard it is to get any information out of OHA.  On January 4, 2008, I put in a request for specific information regarding the money being spent on sponsorships by OHA in Washington D.C.

I sent a follow-up memo on February 28th asking what happened since I had not heard back from them. 

I sent another follow-up memo to the administration on March 10th asking why they had not responded. 

I was finally forced to ask the Office of Information Practices (OIP) for help on March 11th

On March 12th, my office received a memo from the administration apologizing for the delay and promising that the report will be completed by the end of the month and circulated to all Trustees.

On March 14th the OIP sent a letter to the Administration saying that they had ten days to provide the information I requested or provide a reason why they were denying my request.

On March 31st, I had my staff follow-up with the administration (17 days after the OIP letter) to see what was causing the delay.  The administrator assured me that the report will be coming shortly.

Finally, on April 2nd, almost four months later, I received the information I requested.

Clearly, there is a lack of wisdom and foresight in OHA’s leadership.  Mrs. Rubin, the senior aide for Chairperson Haunani Apoliona, has been way out of line with her attack ads against me.  The recent incidents that I’ve described above only prove what I’ve been saying all along.  Instead of addressing the problems to make things better at OHA, the Chairperson and her staff continue to deny that there are serious problems within the organization.  Our beneficiaries have made their voices heard at the legislature this year, asking legislators to make OHA more transparent by sharing information and by demanding an audit.


On April 3, 2008, attorney William H. Burgess, filed another lawsuit against OHA (Kuroiwa v. Lingle).  Burgess is representing six people with a history of filing lawsuits against Hawaiians, including James Kuroiwa, Earl Arakaki (from the previous lawsuit Arakaki v. Lingle), and former Advertiser publisher Thurston Twigg-Smith.  These people are still using the same tired arguments from Arakaki v. Lingle that have been thrown out by both Hawaii and Federal courts.

I have always said that what we need to do is follow the money and ask, “Who could be paying for this?”  What is Burgess’ motivation?  No one sues someone for nothing.  While some people may think that a lot of people are suing us, this is not the case.  All of these lawsuits are being filed by the same people and among them is Thurston Twigg-Smith, a man that has unlimited resources.  One has to be asking why?  What is Twigg-Smith’s real motivation?  At some point, the courts need to realize that these complaints need to be thrown out permanently.  There should be a limit to the nonsense.  Perhaps what we need to do is sue these people for harassment.  Maybe then common sense can prevail.

The need for compromise & unity


Source: September 2005 Ka Wai Ola o OHA Article

`Ano`ai kakou…  In late July, the trustees returned from another disappointing trip to lobby for the passage of the Akaka bill in Washington, D.C.  The bill has enough votes to pass the U.S. Senate, but unfortunately, several Republican Senators used last-minute political gamesmanship to prevent the bill from reaching the Senate floor for voting.  After witnessing these underhanded tactics, I am amazed that anything can get done in Washington.

The Senators that oppose the Akaka bill are obviously relying on false information being provided by Akaka bill opponents such as Thurston Twigg-Smith (who is part of the Arakaki lawsuit and whose ancestor helped orchestrate the overthrow), H. William Burgess (also with the Arakaki lawsuit and the anti-OHA organization Aloha for All), and Richard Rowland (Grassroot Institute of Hawai’i).  These people want us to believe that they are fighting for equality, but I believe they are actually motivated by racism.

To make matters worse, Washington has become so politically divided along party lines that neither side is willing to work together and hammer out a bill that all sides can live with.  It seems as if the Democrats and Republicans have lost the art of compromise. 

Years ago, Washington used to be a different place.  As Jack Valenti (President Lyndon B. Johnson’s Administration) described it, members of Congress built relationships based on trust.  The party in power understood that the role of the opposition was to oppose and didn’t take their criticism personally.  The minority party knew that just because you opposed an issue didn’t mean you couldn’t compromise.  No party could ever get everything they wanted.  That’s not how politics works.  Politics depends on compromise.

Here at home, the time has come for Native Hawaiians who support and oppose the Akaka Bill to come together in the spirit of compromise.  Native Hawaiians who oppose the Akaka bill need to realize that if they want to form an independent Hawaiian nation, they can – even if the Akaka bill were passed into law.  The bill does not give any position on the ultimate form of Native Hawaiian governance.  It only requires the Federal Government to recognize a trust relationship with our people.  More importantly, it would give us the ability to protect our trust assets until our governing entity is formed.

All of us can agree that we cannot build a nation without assets.  Native Hawaiian opponents of the Akaka bill must understand that there can be no final judgment in the federal courts if Congress approves the Akaka bill.  The bill offers strong protection to all of our Hawaiian trusts from the constant threat of lawsuits.  That’s why I have always supported the bill.

What we face today as Hawaiians is no different than what occurred over 100 years ago. We are still fighting off assaults on our culture, rights to our lands, and racism.  Only now, we are being called racists because we want to protect our entitlements.  Times have not changed much, people are still the same and racism is still the motivation behind the move to relieve us of whatever entitlements we have left.  The only thing that has changed is the sophistication used to manipulate us and the law.

Let us begin to work together for the cause of recognition.  Let us begin to agree on the things that we can agree to and set aside the things we differ on and move forward together for the future generations of Hawaiians yet to come.

We are one people.  We cannot afford to be divided, not when so much work remains to be done.  The struggle to regain our sovereign rights requires unity and the strength of numbers.  As the recent federal court decision regarding Kamehameha schools proves, the future of OHA, the Department of Hawaiian Home Lands, and all of the Hawaiian Trusts are certainly at risk.  We must work together and combine our influence so that we can do what is necessary to pass the Akaka bill.

Let us be as our Queen wished…  ONIPA’A, steadfast in what is good!

“I appeal to you… that there be no division among you, but that you be united in the same mind and the same purpose.”  I Corinthians 1:10

Stop Harassing OHA

By Trustee Rowena Akana
March 2005

Source Submitted to various Letters to the Editor

Earl Arakaki should have disclosed his past conflicts with the Office of Hawaiian Affairs in his March 10, 2005 letter to The Honolulu Advertiser.

It would have certainly made his negative spin on OHA’s efforts at the state legislature more understandable to your readers if they knew that Mr. Arakaki has repeatedly filed lawsuits (Arakaki v. Cayetano & Arakaki v. Lingle) challenging the constitutionality of both OHA and the Department of Hawaiian Homelands.

Aside from this omission, Mr. Arakaki also failed to mention some other key facts in his attempt to confuse the public.

First, Mr. Arakaki questioned OHA’s request to the legislature for a more permanent office building. OHA is a state agency. Who else is more appropriate to fund a state building, for a state agency, than the state?

Second, Arakaki questioned the supposedly large amount of legislative requests for funds that OHA is supporting on behalf of its beneficiaries. He, of all people, should know that OHA has been constitutionally mandated to better the conditions of both Native Hawaiians and the Hawaiian community in general since 1978. OHA exists to advocate for Hawaiians in all levels of government, especially the state.

OHA lobbies the legislature on behalf of its constituents just like any other advocate organization. If Mr. Arakaki has a problem with the way state legislators are allocating state funds, he should take it up with them. Do not bad-mouth OHA just because it is better at lobbying the legislature than you and your cohorts.

Finally, I’d like to say to Mr. Arakaki that we get it already – you really, really don’t like OHA and you really, really wish that we would go away forever. But you and I both know that we’re not going anywhere. Even if OHA were to disappear tomorrow, each and every one of us, from Trustees to staff, would continue their efforts to assist the Hawaiian Community. Why not try and help us out instead of being a perpetual part of the problem?

The Most Critical Issues Facing OHA Today

By Rowena Akana
November 22, 2002

Source: Ka Wai Ola o OHA

As the most senior member of the Board of Trustees serving three consecutive terms, I believe I have the historical knowledge necessary to deal with some of the most critical issues facing OHA today.

1. Loss of ceded land revenues
2. Legal challenges to our Trust
3. Federal recognition
4. Negotiations with the State on a ceded land settlement.

While there are other challenges that we must address at OHA, those listed above are the most critical. As Hawaiians, the indigenous people of our lands, what we face today is no different than what occurred over 100 years ago. We are still fighting off assaults on our culture, rights to our lands and racism. Only now, we are being called racists because we want to protect our entitlements. Times have not changed much, people are still the same and greed is still the motivation behind the move to relieve us of whatever entitlements we have left. The only thing that has changed is the sophistication used to manipulate us and the law.

The future of OHA and other Hawaiian trusts are certainly at risk. Hawaiian leaders will have to work together and use whatever resources that are necessary to protect existing Hawaiian Trusts.

It is my opinion that in these critical times for OHA and all Hawaiian trusts, it is very important to have experienced leadership to help steer our canoe.

The unresolved issues of a permanent revenue stream for OHA and the failure of the Legislature to address the Supreme Court of Hawaii’s direction to them to “fix” Act 304 by defining what ceded land revenues constitute revenue for OHA was devastating to our Public Land Trust. For the first time in OHA’s 22 year history we have had to use our principal investments to fund programs and operations.

In 1991, OHA’s trust assets totaled $11 million. In 1993, our negotiating team settled with the State, on a partial settlement of approximately $129 million for back due payments owed to OHA from ceded land revenues. In 1999, as chair of the OHA Board, our investments had grown to nearly $400 million. In today’s market OHA’s assets are worth considerably less.

As a trustee who has always believed that the needs of our people should come first, the following are some of the programs that I have initiated:

1. FANNIE MAE Loan commitment of $135 million for home loans for ALL Hawaiians. This is a partnership between the Office of Hawaiian Affairs, FANNIE MAE, Bank of Hawaii and First Hawaiian Bank to provide low interest loans to all Hawaiians for home ownership;

2. The purchase of Quality Homes/Prefabricated Housing. OHA recently bought half ownership in this manufacturing plant which can produce homes that are steel constructed for approximately $50,000 each. This home loan program now adds a new dimension to OHA’s Commitment to home ownership;

3. Hawaiian Registry Program. The Hawaiian registry will not only show proof of Hawaiian ancestry, but sports a new look as a photo I.D.;

4. $350,000 commitment to annual scholarships for higher education;

5. Kupuna Health Program identifying elderly who are not covered by existing programs.

In the next few years, because of the challenges we face, experienced leadership will play a key role in our ability to deal with these issues as they present themselves.

I am very grateful to the Hawaiian community for having believed in my devotion and ability to lead, and for their continued support throughout my years at OHA. I am asking for your support again on November 5th, Election Day.  Mahalo ia ‘oe.

Who is behind the Latest Lawsuit Against the OHA and the DHHL

By Rowena Akana
May 2002

Source: Ka Wai Ola o OHA

In my last Ka Wai Ola article, I wrote about the latest case against OHA: Arakaki v. Cayetano. Our readers and beneficiaries should be aware of exactly who is behind this lawsuit and what their mission is.

The plaintiffs in the case are: Earl F. Arakaki, Evelyn C. Arakaki, Edward U. Bugarin, Sandra Puanani BURGESS, wife of attorney William Burgess who is one of the lawyers filing this suit, Patricia A. Carroll, Robert M. Chapman, Brian L. Clarke, Michael Y. Garcia, Roger Grantham, Toby M. Kravet, James I. Kuroiwa, Jr., Frances M. Nichols, Donna Malia Scaff, Jack H. Scaff, Allen H. Teshima, and Thurston Twigg-Smith.

The most infamous plaintiff is Mr. Twigg-Smith who is still trying to change his ancestral past. What is the motivation for this case and who is funding these cases? Look at the list of plaintiffs, who among them has the finances to continue this legal assault; who among them has continued as his ancestors did to try to make extinct the native people of our islands? At the core of this issue is the fight to control our lands. Mr. Twigg-Smith’s attorney sums it up clearly when he said “we want to sink these two ships” (OHA and DHHL)

In a letter to the editor on March 22, 2002 to the Honolulu Advertiser written by Professor Jonathan K. Osorio of the University of Hawaii at Manoa, he wrote:

“It’s ironic that one of the plaintiffs in this case is Thurston Twigg-Smith, former publisher and owner of your newspaper and the grandson of Lorrin Thurston, who, in 1887, drafted the first race-based constitution in the kingdom’s history, which immediately deprived hundreds of Chinese citizens of the right to vote and created special voting privileges for the wealthy.

“The plaintiffs want fairness right this moment and care nothing of the mockery made of democracy and fairness by the ancestors of Twigg-Smith and Freddy Rice, who led the illegal takeover of the kingdom. How odd that these two should now lead the fight to end Hawaiian ‘entitlements’.”

This latest case requests the court to find and declare that the provisions which create OHA and the Hawaiian Homes Commission Act are unconstitutional. It is important to note that some of the litigants in these cases have written frivolous articles in the newspapers using terms like “race-based” and “taxpayers’ dollars” to incite the community. these people have not done their homework. Ceded land revenues are NOT taxpayer dollars. And for the record, Hawaiians never heard of the word “racist” until foreigners came here and brought their prejudices with them. there is no word in the Hawaiian language that describes a “racist.” I also believe that in our fair state of Hawaii, we have shown the world that all nationalities can coexist and live harmoniously with each ogther. I am certain that William Burgess’ opinions are not shared by the general community. Hawaii is unique not just because of its climate, but most especially for its people.

Again, we must not grow weary of these lawsuits–we must continue to show up en masse and voice our opinions on our entitlements. We must continue our fight on the Federal level as well and support the Akaka bill, SB 2899, the first bill introduced in the Fall of 2000 by the Indian Affairs Committee. This bill continues to carry the support of the Hawaiian people and community leaders who had great impact on the language of the bill itself. I urge all of you who support Hawaiian sovereignty to write to the Hawaiian delegation and to ask them to support SB 2899, the Bill of the People.

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?