KA LEO KAIĀULU - LETTERS

Ka Leo Kaiāulu

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This month Letters to the Editor offers two letters on both sides of the issue of the ceded lands settlement between the Office of Hawaiian Affairs and the state administration.

Waiting for a better deal

The state Supreme Court is to be commended for its recent ruling barring ceded land sales by the state of Hawai'i. This court held that “the Apology Resolution and related state legislation (for theft of our Hawaiian nation) give rise to the state's fiduciary responsibility to preserve and protect the public land trust, specifically for ceded lands – until such time as the unrelinquished claims of Native Hawaiians have been resolved.”

I remember very well in the early '90s when I was the OHA Trustee representing Hawai'i Island, that the state Housing and Community Development Corporation of Hawai'i (HCDCA) told the Office of Hawaiian Affairs that it had plans to build two subdivisions on ceded lands in Kailua-Kona and Maui. In the HCDCA proposal, OHA would receive on behalf of the Hawaiian people 20 percent of the value for the sale of these lands from the state. And I feared that our precious ceded land corpus, the remnants of our Hawaiian nation lands, were again being diminished, this time by the state for these two subdivisions, which would have made them private property even before we Kanaka Maoli had reached a land settlement with the state. Sure enough, 18 years later, still – no settlement.

At an OHA meeting in the early '90s, officials from HCDCA came before the Trustees and passed around a $5 million check to entice us into accepting this proposal to sell our ceded trust lands. I knew it would be a bad precedent, though it was tempting to some Trustees. I had to speak against this sale of our ceded lands, and I thank the gods that my fellow board members ended up agreeing, despite our attorney at that table, Earl Anzai, encouraging us to accept the state's $5 million offer. Anzai also taunted us Trustees, saying we may never see that offer again. OHA in '94 sought an injunction for those Maui and Kailua-Kona parcels and the alienation of any other ceded lands from the Public Land Trust. The state ended up giving those parcels to Hawaiian Home Lands. Anzai was later Gov. Ben Cayetano's attorney general when Cayetano reneged on OHA's share of the revenue stream income payment from the ceded lands OHA had been receiving. When Linda Lingle became governor, she was pono in reinstating OHA's share of the ceded land revenue.

The Jan. 31 state Supreme Court ruling validates the wisdom of the previous OHA Trustees to reject the $5 million offer for our 'āina. We must remember – 'āina was not a commodity for our Hawaiian nation.

Today, another group of OHA Trustees and the Lingle administration are proposing a $200 million package composed of land and $13 million in cash.

This settlement stems from the unresolved issues of the initial settlement of 1990 – Act 304, which I helped to negotiate for five years as an OHA Trustee. Those unresolved issues were left over from the Waihe'e administration for the years 1978 to 1990, since OHA came into being. If you recall, then-state Circuit Judge Daniel Heely ruled in 1996 that those unresolved issues amounted to $1.2 billion more owed to OHA from ceded land revenues already collected by the state. Heely's ruling was reversed on Sept. 12, 2001. (I find this an interesting coincidence that Chief Justice Ronald Moon announced the reversal of Heely's opinion on Sept. 12, 2001, while the world was in shock over the 9/11 tragedy. It seems hard to believe that this date of the announcement of the reversal of Heely's ruling was a coincidence.)

Regardless, the question remains how this $200 million figure was arrived at. In the late '80s, when we were negotiating for Act 304, there was an agreed-upon formula between OHA and the state as to how OHA's 20 percent share of the revenues from ceded lands were derived. We used that formula for the Waihe'e administration and that is probably how Heely arrived at the $1.2 billion figure that he said was owed to OHA. That may have been then; this is now. Now, 18 years later, it baffles me that the value figure owed us Hawaiians went from $1.2 billion in '96 to $200 million in 2008.

The Chairperson of OHA, Haunani Apoliona, on Dec. 17 at the State of OHA presentation, where the theme was “One has seen the right thing to do and has done it,” stated that we as Hawaiians “should not grumble.” I hope that statement was not the prelude and foreboding to this $200 million package now before the state Legislature. I wonder – was Apoliona afraid there was something to grumble about? The value of the unresolved issues from 1978 to 2008 should increase from $1.2 billion of Heely's ruling instead of being diminished by 80 percent to $200 million proposed by the current OHA Trustees and the Lingle administration, 12 years after Heely's ruling.

The state can pay us off in installments or better yet, with more of our own ceded lands, although I don't feel we should have to exchange for our own ceded lands. We deserve much more than the three parcels proposed by OHA and the Lingle administration. There should also be hearings statewide so that people can address this proposal that would shortchange our Hawaiian people and nation. These should not be called ceded lands; they should be called “seized” lands.

It is interesting that state Attorney General Mark Bennett continues to insist that the state has a right to sell our seized (ceded) lands. Thank goodness for the Supreme Court's wisdom on this issue.

Ua mau ke 'ea o ka 'āina i ka pono. Indeed! The life of the land is perpetuated in righteousness.

Moanikeala Akaka
Hilo, Hawai'i Island

Editor's note: Moanikeala Akaka served as an OHA Trustee from 1984 to 1996.

Settle the state's past-due revenue debt to OHA

Among the many issues before the state Legislature this session is legislation that settles longstanding issues for Native Hawaiians. SB 2733 and HB 266 would resolve outstanding claims to past due revenue for the Office of Hawaiian Affairs (OHA) from ceded lands.

As of one of the five enumerated uses of the ceded land trust, all agree that the state has a legal obligation to Native Hawaiians as described in the Hawai'i Constitution, the Admission Act and various laws adopted by the state Legislature. How this obligation should be carried out has remained a complex and unresolved issue.

The state of Hawai'i has been struggling with ceded land issues since I was first elected to the state Legislature more than three decades ago. Back then, the Legislature approved what would eventually become Act 273 quantifying OHA's pro rata share of revenue from the Public Land Trust at 20 percent. This act passed almost 30 years ago. Now, the state of Hawai'i is moving toward paying the debt it has incurred since then.

This settlement on back payment took more than four years of intense negotiation and medication between the state attorney general and OHA. It is a real opportunity to close an unsettled chapter and enable all those involved to make progress on other fronts.

I wholeheartedly support a thorough and judicious consideration of SB 2733 and HB 266. Giving this issue the serious time and attention it deserves is a large step toward reconciling Hawai'i's past. Mahalo for your consideration.

U.S. Rep. Neil Abercrombie
Washington, D.C.

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