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State of Hawaii enacts legislation in 2012 to transfer to OHA land in Kakaako valued at $200 Million. But is this land transfer legally permissible and morally righteous?


TABLE OF CONTENTS (scroll down to see each item in this order)

(1) ACT 015 (SB2783) -- TEXT OF THE BILL, ALL TESTIMONY AND COMMITTEE REPORTS, AND ITS LEGISLATIVE HISTORY

(2) LEGAL AND MORAL ISSUES TO BE CONSIDERED

(3) THE CEDED LANDS AND THE HISTORY OF PAYMENTS OF CEDED LANDS REVENUE FROM THE STATE OF HAWAII TO OHA; U.S. SUPREME COURT RULING THAT THE CEDED LANDS BELONG TO THE STATE OF HAWAII IN FEE SIMPLE ABSOLUTE ON BEHALF OF ALL THE PROPLE OF HAWAII

(4) JUNE 18, 2012 LETTER FROM ATTORNEY H. WILLIAM BURGESS TO GOVERNOR ABERCROMBIE AND THE OHA CEO AND TRUSTEES, DEMANDING THAT BEFORE THE $200 MILLION KAKA'AKO LAND TRANSFER IS CONSUMMATED, THEY SUBMIT TO THE HAWAII JUDICIARY THE QUESTION WHETHER ACT 015 IS LAWFUL

(5) HAWAII ATTORNEY GENERAL LETTER ON JUNE 22, 2012 REPLIES TO BURGESS DEMAND LETTER.

(6) Further news reports, commentaries, and legal documents will be posted in the order they occur.


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(1) ACT 015 (SB2783) -- TEXT OF THE BILL, ALL TESTIMONY AND COMMITTEE REPORTS, AND ITS LEGISLATIVE HISTORY

On April 11, 2012 the Governor of the State of Hawaii, Neil Abercrombie, signed into law Act 015, passed by the legislature as SB2783, whose official description is: "Conveys Kakaako Makai lands to Office of Hawaiian Affairs, and resolves all disputes and controversies, and extinguishes, discharges and bars all claims, suits, and actions relating to OHA's portion of income and proceeds from the public trust lands for the period November 7, 1978 through June 30, 2012."

The legislature maintains a website. Each piece of legislation has a webpage compiling all information about it including text of the bill, text of all testimony submitted to each committee, text of each committee report, and a chronological record of the dates of each committee hearing along with the the names of the Senators and Representatives who votes aye, aye with reservations, or no. That webpage for Act 015 (SB2783) is at

http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=2783&year=2012

It is notable that only one out of 76 members of the legislature voted no during any committee hearings or on final passage -- Senator Sam Slom, the only Republican in the state Senate (who has also been a staunch opponent of the Akaka bill and traveled to Washington to lobby against it).

The numerous compilations of testimony in each committee are extremely interesting to read. Nearly all of the testimony is in favor, submitted mostly by OHA, DHHL, the Hawaiian Civic Clubs, and other race-based entities which stand to benefit from the legislation. Testimony against the bill by Ken Conklin can be found in at least four of the committee compilations, including pp. 13-18 of the House Committee on Judiciary at

http://www.capitol.hawaii.gov/session2012/Testimony/SB2783_TESTIMONY_JUD_03-20-12_2_.PDF


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(2) LEGAL AND MORAL ISSUES TO BE CONSIDERED

The Office of Hawaiian Affairs is an agency of the state government whose mandate, according to the state Constitution, is to benefit ethnic Hawaiians exclusively. Is it unconstitutional and/or immoral for the state government to have an agency spending government money exclusively for the benefit of a racial group? Does the transfer of government lands in Kaka'ako to OHA violate the U.S. Constitution 14th Amendment equal protection clause (all people must be treated equally under the law regardless of race)? Does it violate the terms of the Annexation of 1898 whereby the public lands of Hawaii were ceded to the U.S. to be held in trust to benefit ALL the people of Hawaii with revenues to be used "for education and other public purposes"? Does the Kaka'ako land transfer violate the Statehood Act of 1959 which transfered the ceded lands back to the new State of Hawaii? Does it violate the requirement in trust law to treat all trust beneficiaries equally (ethnic Hawaiians and non-ethnic Hawaiians)?

Under Article 12, Section 6 of the Hawaii state Constitution as amended in 1978, the Office of Hawaiian Affairs is a semi-autonomous agency of the state government whose elected trustees are empowered "to manage and administer the proceeds from the sale or other disposition of the lands, natural resources, minerals and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians; to formulate policy relating to affairs of native Hawaiians and Hawaiians; and to exercise control over real and personal property set aside by state, federal or private sources and transferred to the board for native Hawaiians and Hawaiians."

The terms "Hawaiians" and "native Hawaiians" are defined by race: anyone having at least one drop of Hawaiian native blood, or anyone having at least 50% Hawaiian native blood, respectively. The U.S. Supreme Court, in Rice v. Cayetano (decided February 23, 2000), ruled that ancestry can be a proxy for race, and those two terms "Hawaiians" and "native Hawaiians" are racial identifiers. The Rice decision abolished the provision of the 1978 state Constitution that had said the right to vote for OHA trustees was restricted to people having at least one drop of Hawaiian native blood. The decision was based on the 15th Amendment, that the right to vote "shall not be denied or abridged on account of race."

There have been several major lawsuits relying on the Rice decision seeking to abolish the Office of Hawaiian Affairs, the Department of Hawaiian Homelands, and numerous government and private racial entitlement programs, on the grounds that such entities and programs are unconstitutional. From 2000 to 2012, the only such lawsuit that succeeded was Arakaki #1, in Summer/Fall 2000, which abolished the racial restriction that said the only people who could run for or serve as OHA trustees were people who had at least one drop of Hawaiian native blood. All other lawsuits seeking to abolish the racial entitlement programs themselves were dismissed on technicalities related to "standing" or the "political question" doctrine, without reaching the merits of the cases. See a detailed review and analysis of all these lawsuits during the first ten years after the Rice decision, and how the Akaka bill is related to these lawsuits, at

http://www.angelfire.com/big09a/RiceCayetanoTenthAnniv.html

Office of Hawaiian Affairs -- Watching the Moves It Makes to Expand the Evil Empire (acquiring huge parcels of land, building a headquarters for the "nation", considering purchase of a TV station, etc.) This webpage, with several subpages, describes the steps OHA is taking to expand the Evil Empire. First, a brief description of the empire and why it is evil. Then an outline of topics followed by links to webpages containing the full text and sources of relevant news reports and commentaries from 2005 through 2009 including acquisition of 40 square miles of land in Waokele O Puna on Hawaii Island (where a race-based corporation is now hoping to build a geothermal plant), and the entire Waimea Valley on Oahu.

http://www.angelfire.com/planet/bigfiles40/EvilEmpireOHA.html

The transfer of $200 Million of public lands to OHA is only one small (but important) step in an ongoing process of racial separatism which many separatists expect will lead to creation of a sovereign and independent race-based nation of Hawaii, with secession from the United States. For details see the 302-page book Book: "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State." 27 copies are available in the Hawaii Public Library system, and portions are available for free online at

http://tinyurl.com/2a9fqa


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(3) THE CEDED LANDS AND THE HISTORY OF PAYMENTS OF CEDED LANDS REVENUE FROM THE STATE OF HAWAII TO OHA; U.S. SUPREME COURT RULING THAT THE CEDED LANDS BELONG TO THE STATE OF HAWAII IN FEE SIMPLE ABSOLUTE ON BEHALF OF ALL THE PROPLE OF HAWAII

A major webpage explains what are the ceded lands and why there should be no racial allocation of ceded lands or their revenues. There is no historical, legal, or moral justification for race-based claims to ownership of ceded lands or to the revenues they generate. History, law, and morality all favor using the ceded lands to benefit all Hawai'i's people equally. Here are the points covered in the webpage: (1) What are the ceded lands? (2) Did ethnic Hawaiians ever have special rights to own the ceded lands or receive revenue from them? (3) Does the Legislature have any obligation to make a racial allocation of ceded lands or revenues? (4) Indeed, does the Legislature have any right to make such a racial allocation? (5) What purpose would be served by doing so? (6) If the Native Hawaiian Recognition bill passes, the federal government will be taking responsibility for ethnic Hawaiian entitlement programs. States generally leave the funding of Indian programs to the federal government. Therefore, it is unwise to establish any permanent flow of State of Hawai'i government resources to a group which might become a federally recognized tribe engaged in adversarial legal battles against the State of Hawai'i.

http://www.angelfire.com/hi2/hawaiiansovereignty/cededlands.html

Attorney H. William Burgess and his wife Sandra Puanani Burgess are the founders of the Aloha For All society. A webpage provides some biographical information about them: H. WILLIAM BURGESS AND SANDRA PUANANI BURGESS -- CHALLENGING OHA WITH ALOHA FOR ALL (Midweek, January 2, 2002); and also GRASSROOT INSTITUTE GEORGE WASHINGTON AWARD (November 4, 2005)

http://www.angelfire.com/hi2/hawaiiansovereignty/burgessmidweek010202.html

Mr. Burgess has represented plaintiffs in several of the most important lawsuits since 2000 seeking to dismantle race-based government institutions and programs. He has a website describing the major threats to unity and equality in Hawaii, at

http://aloha4all.org

Several sections of that website are devoted to ceded lands issues. Here are three of those sections:

20% of what? These staggering amounts are apparently arrived at by calculating OHAís 20% share on the gross revenues rather than the net revenues after expenses.

http://aloha4all.org/wordpress/basic-issues/essentials/20-of-what/

If OHA gets 20%: If the State is in fact paying OHA 20% of the gross revenues, that means OHA is probably actually receiving more than 100% of the net revenue from the ceded lands. Most businesses never achieve a 20% profit. It is highly unlikely that government agencies operating parks, roads, public schools and universities, airports, harbors, public rental, housing and housing development programs and hospitals could achieve net revenues (i.e., gross revenues less expenses) of anywhere near 20%.

http://aloha4all.org/wordpress/basic-issues/essentials/if-oha-gets-20/

A brief history of what the ceded lands are and how OHA came to get 20% of ceded land revenues, focusing on the Annexation of 1898; Statehood Admissions Act of 1959; virtually all ceded lands revenue goes to the Department of Education from 1959 to 1978; 1980 legislature passes law sending 20% of ceded lands revenue to OHA; 1990 - 2003 history of lawsuits and "settlements" over amounts of ceded land revenues owed to OHA

http://aloha4all.org/wordpress/basic-issues/essentials/the-ceded-lands/

Research done for plaintiffs in the Arakaki#2 lawsuit in the Summer of 2002 revealed huge amounts of money being diverted to the Office of Hawaiian Affairs (OHA) and the Department of Hawaiian Homelands (DHHL), which implements the Hawaiian Homes Commission Act. This is money which otherwise could have been spent for public schools or for other public purposes for the benefit of all the people of Hawaii without racial discrimination. An itemized compilation of the cost of OHA is provided on Sheet 1 followed by the backup detail on Sheet 2. After that comes a single spreadsheet itemizing the cost of DHHL. Here are some shocking "bottom line" figures: From July 1 1990 to June 30, 2002, plus the two years since then, the combined damage to the state's treasury from OHA and DHHL has been over $1 Billion. Note that this figure does not include costs from before 1990 (OHA was created in 1978, and DHHL was created in 1921). At the current expenditure rate, making reasonable assumptions, the projected damage for the next 10 years (Fiscal Years Ending June 30, 2005 through 2014) would be more than two Billion additional dollars. For the spreadsheets and other details see

http://www.angelfire.com/hi5/bigfiles/ohadhhlburdenstatetreasury.html

On March 31, 2009 the U.S. Supreme Court ruled unanimously 9-0 to overturn a Hawaii state Supreme Court decision that had been unanimous 5-0 regarding the ceded lands. The state Supreme Court had ruled that the state is prohibited from selling any parcel of ceded lands unless and until it reaches a settlement with ethnic Hawaiians [presumably OHA] on the overall ceded lands issue. That decision was based in part on the U.S. apology resolution of 1993 in which the U.S. apologized to ethnic Hawaiians for overthrowing the Kingdom of Hawaii. But the U.S. Supreme Court ruled that the apology resolution is merely a resolution of sentiment and has no legal force or effect regarding the ceded lands. The U.S. Supreme Court ruled that the State of Hawaii owns the ceded lands in fee simple absolute on behalf of all the people of Hawaii, and that no Congressional resolution in 1993 can possibly undo or place restrictions on the 1959 transfer of the ceded lands to the State of Hawaii in fee simple. A very large webpage has full text of all the legal briefs and decisions in this case, along with news reports and commentaries throughout several years.

http://bigfiles90.angelfire.com/CededNoSell.html


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(4) JUNE 18, 2012 LETTER FROM ATTORNEY H. WILLIAM BURGESS TO GOVERNOR ABERCROMBIE AND THE OHA CEO AND TRUSTEES, DEMANDING THAT BEFORE THE $200 MILLION KAKA'AKO LAND TRANSFER IS CONSUMMATED, THEY SUBMIT TO THE HAWAII JUDICIARY THE QUESTION WHETHER ACT 015 IS LAWFUL

Full text of the demand letter of June 18, 2012. The letter lays out some of the main issues needing to be resolved, and some of the main arguments to be put forward in possible future litigation about the Kaka'ako land transfer.

http://big09.angelfire.com/KakaakoBurgessDemandLetter061812.pdf

On June 20, 2012 KITV television interviewed attorney H. William Burgess and client Garry Smith (a likely plaintiff if a lawsuit is filed), standing on the grounds of fisherman's wharf, which is part of the Kaka'ako lands to be transferred. The 2 minute 23 second video played during an evening newscast can be viewed on the KITV website at

http://www.kitv.com/news/hawaii/Kakaako-to-be-given-to-OHA/-/8905354/15186356/-/82mq4ez/-/index.html

Here is the transcript of that interview, as published on the KITV website:

http://www.kitv.com/news/hawaii/Possible-legal-challenge-ahead-for-historic-Kakaako-land-transfer/-/8905354/15186114/-/nfbuiy/-/index.html

Possible legal challenge ahead for historic Kakaako land transfer State to formally transfer title to the Office of Hawaiian Affairs July 1

HONOLULU - In less than two weeks, the state is set to formally transfer title to 30 acres of prime Kakakako land to the Office of Hawaiian affairs.

Read more:
http://www.kitv.com/news/hawaii/Possible-legal-challenge-ahead-for-historic-Kakaako-land-transfer/-/8905354/15186114/-/nfbuiy/-/index.html#ixzz1yPg3Fzx8

It is a historic settlement to resolve ceded claims over a decades-old lawsuit. Two months ago, and with great fanfare, the state signed the deal to turn over prime Makai lands in Kakakao to OHA.

July 1 is when title of the real property is to be transferred, but just this week questions are being raised whether the state and OHA can legally do so.

Ewa resident Garry Smith, who may join in legal action to block the transfer, believes the state has made a serious mistake.

"They cannot give land that belongs to all of us, regardless of race, to one particular race," said Smith.

Honolulu attorney Bill Burgess called it a $200 million dollar giveaway.

Burgess, who has both won and lost previous OHA challenges, believes the Governor has a responsibility to all the people of Hawaii that conflicts with responsibilities to native Hawaiians.

He believes the governor and OHA must ask for clarification from the Hawaii Supreme Court before the deal goes through.

"There is a direct conflict. He should apply to the Supreme Court of Hawaii before he implements the law. Thatís our position." Burgess said.

Burgess believes the question to the court is whether the Equal Protection clause under the US Constitution, precludes a state from making distribution to trustees consisting only of members of one particular race.

The state attorney general's office said it is reviewing Burgess's letter. Gov. Neil Abercrombie, who views the settlement as a major achievement of his administration, did not seem overly concerned about the potential roadblock.

"I am confident that everything the legislature did this session, with regard to to bills that have been signed, which will bear any scrutiny," said Abercrombie.

OHA did not return calls for comment.

Burgess is giving the governor and OHA until June 22 to respond, otherwise he said he will be forced to take action in court.


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(5) HAWAII ATTORNEY GENERAL LETTER ON JUNE 22, 2012 REPLIES TO BURGESS DEMAND LETTER.

On June 22, 2012 the Hawaii Attorney General's office replied to the Burgess demand letter. Burgess had demanded that Act 15 be submitted to the state judiciary before the land transfer is consummated, to consider various issues regarding whether the land transfer is lawful. The AG reply says that indeed the state Supreme Court already ruled in an earlier case that the legislature must decide how much money the state owes to OHA for OHA's share of ceded land revenues.

** Conklin's comment: The AG letter does not at all respond to the demand made by Mr. Burgess. The AG letter merely says that the Hawaii judiciary has previously ruled that the legislature should decide the amount of ceded land revenue to be paid to OHA because setting the amount of the payment a political question that should not be decided by the judiciary. However, Mr. Burgess was demanding that the judiciary consider a very different set of issues: "Please consider this as a demand that, before you, as Governor of the State of Hawaii, or any officer, employee, attorney, agent or agency of the State of Hawaii, exercise any powers to implement the above Act, you first submit to the Hawaii judiciary the Federal Question of whether the Act violates or its implementation would violate: The Equal Protection clause or other provisions of the Constitution or civil rights laws of the Unites States or the fiduciary duties of the trustee State of Hawaii and you and other State officials under the federally created Ceded Lands Trust."

Thus the Attorney General has chosen to ignore the questions that need to be answered, and it appears that a lawsuit will be necessary to force the Court to answer those questions. Asking nicely won't get the job done.

The AG reply letter can be downloaded here:

http://big09.angelfire.com/KakaakoHawAGReplyToBurgess062212.pdf


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