U.S. Supreme Court, legislative update

By: OHA Trustee Rowena Akana

Source: Ka Wai Ola o OHA, May 2009

At the writing of this column, 15 days before it goes to print, Senate Bill 1677 is the only surviving bill that would provide any protection to ceded lands from being sold or exchanged. While it does not provide the complete moratorium that we wanted, it does require a majority vote of both the House and Senate to disapprove the sale or exchange of ceded lands. It also requires that the community be briefed regarding the location of the lands prior to its sale or exchange.

Unfortunately, State Attorney General Mark Bennett and House Speaker Calvin Say are now holding the bill hostage in an attempt to browbeat the OHA trustees into dropping our lawsuit to stop any further sale of ceded lands. SB 1677 has been deferred from the final vote on third reading for four days in the House. Governor Linda Lingle has made it clear that she will not sign the bill unless we drop our case.

Both Lingle and Bennett do not have any interest in doing what is right for Native Hawaiians. If the Lingle administration truly won the recent Supreme Course case, like Bennett has bragged about in the media, why do they want us to drop the case while it’s being reconsidered by the Hawaii Supreme Court? Also, if they really don’t intend to sell or exchange any ceded lands in the near future, why won’t they just pass SB 1677 instead of threatening to kill it? So much for the Governor’s commitment to Native Hawaiians.

There is NO reason for OHA to drop the case at this point because the Senate will most likely not accept the House’s changes to SB 1677 and we would just end up dropping the case for nothing. And settling the case with the Lingle administration without a moratorium on the sale of ceded lands would only anger our beneficiaries. We would also be sending the wrong message to the Hawaii Supreme Court.


In its recent decision on March 31, 2009, the U.S. Supreme Court sent the ceded-lands case back to the Hawaii Supreme Court for further deliberations. Many assertions have been made in the media, and I want to clarify all of the misinformation out there. Here is exactly what the U.S. Supreme Court said:

1) The federal Apology Resolution did not impose a duty on the State of Hawaii to refrain from selling ceded lands.

2) OHA had argued that the Hawaii Supreme Court’s ruling relied mainly on state law and only referred to the Apology Resolution for its facts concerning the ongoing reconciliation process. The U.S. Supreme Court disagreed with OHA and concluded that the Hawaii Supreme Court did in fact rely on the Apology Resolution when it prohibited the sale of ceded lands.

3) However, the U.S. Supreme Court did recognize that existing state laws could serve as the basis for the Hawaii Supreme Court’s decision to prohibit the sale of ceded lands.

4) The Court also recognized that the Hawaii State Legislature has the authority to resolve the status of the ceded lands.

5) They also said that the U.S. Supreme Court didn’t have the authority to decide whether, as a matter of state law, Native Hawaiians have rights related to ceded lands. In other words, they said they don’t have the right, under Hawaii Constitution, to prohibit the sale of ceded lands until the status of those lands is definitively resolved through the state political process.

It is difficult for me to understand how the State Attorney General can claim this decision is a victory for the Lingle administration. If the Hawaii Supreme Court decides that state law provides an independent basis for the prohibition on the sale of ceded lands, and I am confident they will, there will be no reason for us to go back before the U.S. Supreme Court and this lawsuit will finally come to an end ñ with OHA and its beneficiaries winning in the end.


In my last column, I wrote about Senate Bill 995 and House Bill 901, which attempts to resolve claims and disputes relating to the portion of income and proceeds from the lands of the public land trust for use by OHA between Nov. 7, 1978, and July 1, 2009. I wrote that I favored the Senate’s version of the bill because it would convey Mauna Kea to OHA, along with several other parcels of land. The House version did not include Mauna Kea. At the time of this writing, is seems that HB 901 has died and only SB 995 will survive to the final conferencing stage of the legislative process.

House Settlement Proposal

On March 18, 2009, the House Committee on Hawaiian Affairs amended the Senate’s bill by (1) deleting the conveyance of all parcels to OHA except those in Kaka’ako Makai; and (2) inserting $200 million as the amount owed by the State to OHA.

On March 23, 2009, the joint House Committees on Water, Land & Ocean Resources and Judiciary amended this bill by deleting the requirement to transfer the management and control of the conveyed parcels to a sovereign native Hawaiian entity upon its recognition by the United States and the State.

Senate Settlement Proposal

On March 27, 2009, the Senate Committee on Water, Land, Agriculture and Hawaiian Affairs amended the House’s version of the bill by adding language that would allow OHA and the State to reach a “global settlement” of the past and future obligations of the State to Native Hawaiians. The Committee felt that the proposal made by Gov. Ben Cayetano back in March 31, 1999, is a sensible and appropriate approach toward a “global settlement” and that it should be re‑offered to OHA.

Please note that a global settlement DOES NOT include natural resources, water and gathering rights or any other rights. The settlement would include both land and money. In my view, it would be a great opportunity for us to finally have the resources to build a strong nation.

The Senate’s “global settlement” offer includes: (A) Monetary payment to OHA of $251 million; (B) Conveyance of public lands from the State to OHA equal to 20 percent of the 1.8 million acres of ceded lands already inventoried; and (C) The suspension of the $15.1 million in annual payments to OHA effective upon a date to be agreed upon in good faith between the State and OHA.

OHA has to make a decision to accept or reject the “global settlement” (which means land and money only ñ this does not include rights to natural and mineral resources, gathering rights, etc.) and notify the Governor, the President of the Senate and the Speaker of the House of its decision in writing on or before Jan. 1, 2010. Any failure to properly and timely respond to the “global settlement” offer shall be deemed to be a rejection of the “global settlement.”

If a “global settlement” cannot be reached, Part II of the measure sets forth the Legislature’s approach to alternatively address the issue regarding past obligations only. The dollar value of $200 million represents the amount agreed to between OHA and Governor Lingle regarding the resources that should be provided for the period between Nov. 7, 1978, and July 1, 2008. The Committee felt that $200 million for the past obligations is a fair and reasonable payment.

At the discretion of OHA, payment of the $200 million may be accomplished by either: (A) A $200 million monetary payment; (B) Conveyance of properties in the public land trust with a combined tax assessed value of $200 million; or (C) A combination of cash payments and conveyance of properties totaling $200 million.

If OHA chooses to accept a $200 million monetary payment, it must notify the Governor, the President of the Senate and the Speaker of the House of its decision in writing by Jan. 1, 2010. Failure of OHA to respond to the Governor, the President of the Senate and the Speaker of the House by Jan. 1, 2010, shall be deemed to be a rejection of OHA’s right to accept the $200 million monetary payment option.

The current $15.1 million in annual payments from the State to OHA shall remain uninterrupted for FYs 2009-10 and 2010-11.

In either settlement option, the specific public lands that are to be conveyed by the State to OHA is to be determined by negotiation between the Governor and OHA with reasonable diligence, in good faith, and shall be completed on or before Jan. 1, 2015, unless mutually extended by the State and OHA. OHA and the Governor’s Office are required to submit a report on the status of the negotiations to the Legislature no later than 20 days prior to the convening of the 2010 regular session.


While the legislative session will be over by the time of printing, I still encourage all of you to let your elected officials know that you support Senate’s version of the settlement bill and that you want a complete moratorium on the sale or exchange of ceded lands. The legislative process is a long one and if the bills fail to pass this year, they will still be alive and will come up again next year. It is truly unfortunate that some of our elected officials need to be constantly reminded about doing the right thing.  Aloha Ke Akua.

Recent Polls show people of Hawaii believe in fairness for Native Hawaiians

By: OHA Trustee Rowena Akana

Source Ka Wai Ola o OHA, November 2007

‘Ano’ai kakou… According to a poll conducted by Ward Research for OHA, 70% of residents surveyed favored the Akaka Bill, while nearly two-thirds of those polled also believe that the issue of race should not be a reason to deny federal recognition to Hawaiians.

However, anti-Akaka bill groups like the Grassroot Institute of Hawaii (with a membership of a handful of people) and some of the members of the newly formed Hawaii Civil Rights Advisory Committee are trying to re-write our Hawaiian history. Like other racist groups who say the Holocaust never happened, the Grassroots Institute would not be happy until Native Hawaiians no longer exist or are driven out from our Aina. They keep hoping that, if they keep repeating the same non-truths over and over again, people will start believing their nonsense.

The poll was conducted by telephone from August 15-27, 2007 from a sampling of 380 residents statewide. The sample is representative of the Hawaii population by age, ethnicity, and island of residence and carries a maximum sampling error of plus or minus 5 percent.

Those surveyed were asked, “Do you think that Hawaiians should be recognized by the U.S. as a distinct indigenous group, similar to the recognition given to American Indians and Alaska Natives?” A solid seventy percent responded, “Yes,” while 18 percent said, “No” and 12 percent didn’t know.

I have always had faith that the people of Hawaii truly understand the issue of federal recognition for Hawaiians and could not be easily fooled by all the negative doomsday rhetoric of the anti-Akaka bill naysayers. The poll showed that 84% of those surveyed heard of the Akaka bill and 79% were aware of the lawsuits against OHA, DHHL and Kamehameha Schools.

Sixty-seven percent of those polled also said that Hawaiians have the right to make decisions about their land, education, health, cultural and traditional practices, and social policies. Eighty-three percent of those surveyed believe that over 100-federally funded programs for Hawaiians should continue.

The vast majority of Hawaii residents want organizations such as the Kamehameha Schools, DHHL and OHA, which are under the constant threat of lawsuits, to be protected through federal recognition. They believe in the fundamental question of fairness and that Hawaiians should be treated equally like other indigenous people, including American Indians and Native Alaskans.

So, to the naysayers, I say – Stop embarrassing yourself and wasting your time, energy, and money on fruitless efforts. You cannot change or re-write history. OHA only has to educate 18% of Hawaii residents on the merits of the Akaka bill, while opponents need to somehow mislead a whopping 64%. It takes so much more energy to confuse and mislead people, while it is much easier to just speak the truth.

All these years of spreading lies and misleading people haven’t gotten people like H. William Burgess anywhere. People of Hawaii know what is right, fair and just. After all, isn’t fairness and justice the American way?

Imua e Hawai’i nei…

The Hawaiians’ Phantom Menace

By: OHA Trustee Rowena Akana

Source: Ka Wai Ola o OHA, August 2006

In early June, the trustees traveled to Washington D.C. to witness the long awaited vote on S. 147, also known as the Akaka Bill, in the U.S. Senate. What should have been a historic event quickly turned into a frustrating experience. Listening to Senators from the South speak against the bill, calling it “racist legislation,” made me want to jump out of the gallery and scream, “HYPOCRITES!” Senator Lamar Alexander (R-TN) shockingly said that granting federal recognition for Native Hawaiians could lead to Mormons, the Amish, and Hasidic Jews seeking their own federal recognition! It was clear that his goal was to lump all Hawaiians together with other minorities so he could argue that we all need to be treated equally. The problem with this argument is the undisputed fact that Hawaiians are indigenous people, similar to Native Americans and Native Alaskans who are already recognized. Senator Alexander is clearly discriminating against Hawaiians. So who’s the real racist?

When the vote was finally taken, we were shy by four votes. Two Democratic Senators were out sick and thanks to arm-twisting by Senate Leader Bill Frist (R-TN) at least three Republicans switched their vote at the last minute. Senator Frist told them that their leadership positions would be in jeopardy if they supported the Akaka bill and they choose to protect their political careers rather than keep their promises to Senators Akaka and Inouye.

At the end of that sad day, I was assured of two things: First, racism and ignorance is alive and well in the U.S. Senate. Second, partisan politics has ruined Congress. The trustees later learned that the Republicans were bitter with the Democrats for voting against their Estate Tax bill the day before. Killing the Akaka bill was just payback. I left Washington with a feeling of disgust and disdain for our so-called leaders of America.

With so many important issues that need to be dealt with in the world and at home, these career politicians proved they are only preoccupied with keeping the status quo and furthering their political careers. They use inflammatory issues like gay rights, flag burning, and immigration to detract us from the real issues of importance like New Orleans, North Korea, Iran, and Iraq. Is it any wonder why Americans are losing respect for their leaders and canít believe a word they say?

As bad as the Southern Senators were, nothing was worse than seeing Clarence Ching, a former OHA Trustee, sitting next to William Burgess, the lawyer who has consistently sued OHA, the State, and Hawaiian Homelands to break up all Hawaiian entitlements. The same William Burgess who has lobbied Congress to kill the Akaka bill and has called Hawaiians who favor federal recognition “racists.” And let’s not forget about State Senator Sam Slom, the only member of the State Legislature to vote “no” on the Akaka Resolution (HCR 56, SD1) of 2005. He was also there with Burgess. It is just bizarre that a Republican state senator would so vigorously oppose a bill that the Republican Governor so strongly supports. Not to mention the fact that all of Hawai’i’s other elected officials including the Mayors from all counties and the state legislature also supported federal recognition in a non-partisan effort. It is egregious that one elected official felt his opinion was more important than all of the state’s other elected officials. Since when does a single opinion become more important than the will of the people?

Where and when did this opposition to Hawaiian sovereignty begin? Some rumors have been circulating that it was started years ago by a prominent Kama’aina who called a meeting of other like-minded people to his home to discuss how they could band together and prevent the Bishop Estate, the Department of Hawaiian Home Lands, and OHA from becoming too powerful. After all, with control over vast tracts of land and revenues from ceded lands, Hawaiians could one day dominate the State, and this is a frightening thought for some. While I have no evidence that this long standing rumor is true, I have been thinking very seriously about it lately, especially after what I witnessed in Washington.

After the fall of the Bishop Estate Trustees, all of their cases were later thrown out of court, but it was too late to save most of their reputations. Now we find ourselves embroiled in more lawsuits to take out OHA and Hawaiian Homes. So, could the rumor be true? I think the question to ask is who is paying for all of the lawsuits that Mr. Burgess has filed? Perhaps then we may have the clues to who is behind the movement to ensure Hawaiians never regain sovereignty and that all Hawaiian entitlements are erased.