State House Representatives faced a crowded Capitol room 329 on Valentine's Day, Sat., Feb. 14, for hearings on their version of the OHA past due revenue payments bill. The Senate heard testimony on its version the day before. – Photo: Blaine Fergerstrom

Ceded lands, Akaka Bill at forefront of pending legislation

By Lisa Asato / Ka Wai Ola

In a flurry of activity on Feb. 4, the Akaka Bill was reintroduced in Congress as state Senate and House committees advanced bills that would place a moratorium on ceded lands sales by the state.

But falling short of passing a moratorium law before the U.S. Supreme Court's Feb. 25 review of the ceded lands case – as some lawmakers had hoped – the state House and Senate instead passed a concurrent resolution urging Gov. Linda Lingle and Attorney General Mark Bennett to withdraw the state's appeal to the nation's high court. "The timing is crucial," Rep. Mele Carroll said in a statement. "We need this resolution as we go to the U.S. Supreme Court."

Senate Concurrent Resolution 40 passed in the Senate Feb. 20 and in the House Feb. 23 – two days before the Supreme Court heard arguments on the case that pits OHA and four individual plaintiffs against the state, which appealed to the nation's high court after the Hawai'i Supreme Court unanimously ruled in January 2008 that the state could not sell or transfer ceded lands until Native Hawaiian claims to those lands were resolved through the political process.

Because the governor and lieutenant governor were out of town, the concurrent resolution was sent to Georgina Kawamura, director of the state Budget and Finance Department, who was in charge in their absence.

The Senate also approved a bill on Feb. 20 that would require two-thirds of each house to approve sales of ceded lands – as opposed to a full moratorium, which is favored by OHA, the Kupu'āina Coalition and the Legislative Hawaiian Caucus, which has made the moratorium bill its top priority this session.

State Attorney General Mark Bennett and University of Hawai'i Law Professor Jon Van Dyke were among those testifying on the Ceded Lands moratorium bills at the state Legislature on Feb. 4. - Photo: Lisa Asato

Referring to the two-thirds majority bill, Senate President Colleen Hanabusa said: "We are, through this bill (SB 1677 SD 1), setting our position as to who will make the decision of any sale of land. It is, after all, the Legislature that sets the policy, or laws, of this state and the governor should abide by it."

Hanabusa said the bill is preferable to the moratorium bill because it recognizes "that government should not have their hands tied." Under the two-thirds bill, state proposals to sell ceded lands would be considered on a case-by-case basis, whereas a moratorium would ban sales altogether.

"I believe the Legislature should be there to ensure that ceded lands are protected," said Hanabusa, before she left to attend the U.S. Supreme Court hearing of the ceded lands case. "The Senate has responded to the cry of the people. We expedited the bill and resolutions. We also have a hybrid moratorium two-thirds bill remaining in the process. The Senate bill passed 24-0 with no reservations. This is as positive a statement as can be made."

Three moratorium-related bills that the House Hawaiian Affairs Committee unanimously passed Feb. 4 – HB 1667, HB 1805 and HB 1841 – have died in the House because Speaker Calvin Say "chooses to wait for the Senate version to come over," said committee Chairwoman Mele Carroll.

"Because this issue is so important, I'm saddened that a person in our leadership such as the Speaker would hold back bills that the Hawaiian Affairs Committee has unanimously passed and (has) passed on the floor (of the House)," Carroll said. Say did not return a request for comment.

On the Senate side, after the Feb. 4 hearing, Sen. Brian Taniguchi, chairman of the Judiciary and Government Operations Committee, wouldn't commit to hearing SB 1085, but said "chances are good" that he would. That moratorium bill would sunset Dec. 31, 2014, or when native claims are resolved, whichever comes first.

The Kupu'āina Coalition has placed Taniguchi's photo on its home page, urging people to "both call and e-mail this guy!" to ask him to hear SB 1085 by Feb. 27 otherwise the bill would die.

Past-due revenue bill

Also in February, House and Senate committees advanced bills that would transfer property to OHA to settle past-due income and proceeds the state owes OHA from the Public Land Trust for the 30-year period from Nov. 7, 1978, to July 1, 2008.

In their original form, the settlement bills, SB 995 and HB 901, would have transferred Kaka'ako Makai on O'ahu and Banyan Drive in Hilo to OHA in phase one, which would comprise $127.2 million of the overall $200 million settlement. Additional property would be identified later to be transferred in phase two to make up the balance of the settlement.

At a Feb. 13 hearing, the Senate Water, Land, Agriculture and Hawaiian Affairs Committee expanded the scope of the properties to be transferred to include largely cultural properties: Mauna Kea Scientific Reserve and Mauna Kea Ice Age Natural Reserve, a 143.5-acre square parcel around Pu'u Pōhaku; Kahana Valley and Beach Park; La Mariana and submerged lands; accreted peninsula bordered by Kalihi and Moanalua stream; He'eia wetlands or fishpond; and all state-owned fishponds statewide as identified in the Hawaiian Fishponds: Fishpond Database. The Senate committee also deleted specifics on what properties would be transferred in the first phase.

Leimomi Khan, president of the Association of the Hawaiian Civic Clubs, told the committee that she liked the idea of a package that was balanced with both revenue-generating properties and cultural properties. "Really, we need money to take care of these properties," she said, but she was concerned that the added properties were coming after a House committee held hearings statewide on the original bill – and after OHA had been criticized last year for not conducting public hearings before the proposal was made public. "I think there's going to be similar critics," she said.

Committee Chairman Clayton Hee said the idea for the properties originated from Native Hawaiian beneficiaries who expressed their interests in their cultural values. OHA Trustee Walter Heen told the Senate committee he was concerned that additional funds would also be needed for development, restoration and liability issues for the added properties. "You understand the bill doesn't require you to fix the fishponds," Sen. Hee asked the trustee. "Are you opposed to fishponds?"

"No, not opposed to fishponds," Heen replied. "What we're saying is, 'Give us the resources to take care of them.' "

Both Hee's Senate committee and the House Hawaiian Affairs Committee deleted the Banyan Drive property from the settlement bill. Hawaiian Affairs Committee Chairwoman Mele Carroll said that after taking the bill statewide for hearings, she found testifiers in Maui, Moloka'i, Kona and Kaua'i were supportive of the bill, but people in Hilo were concerned about the Banyan Drive property, she said, describing their concerns as follows: OHA's vision to put senior housing in a tsunami zone, whether title to those lands could be transferred under the current dispute over ceded lands sales and transfers, and a lack of understanding of OHA's criteria for choosing that parcel.

"I felt compelled to take the Hilo property out of the bill with the notion that OHA … would do due diligence in addressing all the concerns that were raised regarding this property and looking at it in the best interest of the community and OHA's goals – is it truly the best choice? I wanted to give OHA that opportunity to work on it by 2010, in the second phase," said Carroll, who represents East Maui, Moloka'i, Lāna'i and Kaho'olawe. The committee also inserted language clarifying that any parcels transferred to OHA would later be transferred to a Hawaiian governing entity, as is stated under law for Kaho'olawe, Carroll said.

In a presentation before the committee on Feb. 14, OHA Land Management Director Jonathan Likeke Scheuer said OHA spends about $1.3 million annually to manage its current culturally valuable properties, Wao Kele o Puna on Hawai'i and Waimea Valley on O'ahu. He said the proposed Banyan Drive and Kaka'ako Makai parcels were chosen because they produced income – and together would immediately generate an additional $1.8 million to OHA through leases. "Clearly if OHA continues to take only cultural lands, which don't produce revenue, and it doesn't take potentially revenue-producing lands, it won't have the resources to protect the very cultural values that it purchased the lands for," he told the audience.

"However, because this is a two-phase process … Trustees will have the opportunity to get input from communities into what kinds of properties could be proposed for transfer to OHA in phase two of the bill in 2010," he said.

He also said the bill reflects input from the community last year, through forums including 45 community meetings held statewide. "In this year's settlement agreement … there is no waiver of future claims. Future revenue due to the Office of Hawaiian Affairs is not addressed," he said. And OHA has the right to do due diligence and reject the property, he said.

Akaka Bill

And in Congress, the Akaka Bill, otherwise known as the Native Hawaiian Government Reorganization Act, was reintroduced Feb. 4 in both houses by Hawai'i's congressional delegation. The bill is identical to the bill passed by the U.S. House in 2000 and would provide a process for a Native Hawaiian government to be federally recognized in a government-to-government relationship with the United States. "The legislation is consistent with federal and state law and allows Native Hawaiians to be treated the same way as our country's other indigenous people," U.S. Sen. Daniel Akaka said during his floor speech, referring to Alaska Natives and American Indians.

Unlike the 2007 version of the bill, the current bill does not ban gambling. But Martha Ross, OHA's Washington, D.C., Bureau Chief, said that the Hawaiian recognition bill does not authorize Native Hawaiians to conduct any type of gambling because there is no legalized gambling in Hawai'i. The bill also does not authorize Native Hawaiians to be part of the Indian Gaming Regulatory Act, she said. 

Akaka's office issued a statement saying opponents of the bill have sought to spread misinformation about the bill, and that it was important to clarify that the bill would not allow Hawai'i to secede from the United States, would not allow private lands to be taken, would not authorize gambling in Hawai'i and would not create a reservation in Hawai'i.

U.S. Rep. Neil Abercrombie said the bill was important to everyone in Hawai'i, not just Native Hawaiians. "It provides a process to address longstanding issues facing Hawai'i's indigenous peoples and the State of Hawai'i," he said in a statement. "In addressing these matters, we have begun a process of healing, a process of reconciliation not only between the United States and the native people of Hawai'i, but within the state.

After several previous attempts, many observers have expressed high hopes for the bill's passage because Democrats are in control of both houses of Congress and Hawai'i-born President Obama has said he would sign the bill.