OHA/Lingle 2008 legislation for $200 Million settlement of so-called back rent for ceded lands

This webpage is a subpage for item #1 in a larger webpage entitled

"Office of Hawaiian Affairs -- Watching the Moves It Makes to Expand the Evil Empire (acquiring huge parcels of land, building a headquarters for its tribal nation, considering purchase of a TV station, etc.). YEAR 2008"

That larger webpage covering all topics for 2008 is at

(1) Blitzkrieg propaganda campaign for secretly negotiated "settlement" of "back rent" owed for ceded lands. At the start of the Legislature's session for 2008 it is announced that OHA and the Governor have reached a "settlement" for "back rent" for the ceded lands, consisting of a package of money and land worth $200 Million. The Legislature will need to approve the "settlement" before it can take effect. Attorney Jon Van Dyke, who has worked tirelessly for decades as a highly paid lobbyist and spokesperson for OHA, published a book setting the stage a few weeks previously -- "Who Owns the Crown Lands of Hawaii?" and adds a lengthy newspaper commentary two days after the settlement announcement. Honolulu Advertiser editorial supports the settlement. A few days after the splashy public announcement of the "settlement" OHA broadcasts a TV infomercial about the ceded lands on one of the main TV stations, as propaganda to get the public to support the "settlement" (which the Legislature must still approve).


The "settlement" agreement between OHA and Governor Lingle was signed on January 17, 2008. That was the 115th anniversary of the revolution that overthrew the Hawaiian monarchy -- the event which forms the basis for the U.S. apology resolution and for the Akaka bill -- the event that allegedly made ethnic Hawaiians permanent victims entitled to enormous reparations. The 9 page letter of agreement, plus full text of the legislative bill to implement it, is included in a 38-page pdf file posted on the OHA website. The final page of that document is a list of all the properties to be transferred from the State of Hawaii to OHA pursuant to the agreement. The original URL on the OHA website was
The document has been placed on this website for safekeeping and can now be downloaded by clicking here:


Honolulu Advertiser, Friday, January 18, 2008

$200M deal settles dispute on ceded lands

By Gordon Y.K. Pang
Advertiser Staff Writer

The state will give the Office of Hawaiian Affairs a package of land and cash worth approximately $200 million to end a long-standing dispute over ceded lands, according to a proposed settlement expected to be announced today.

The settlement would address how much OHA is owed by the state from revenues generated from public lands turned over to the United States by the Republic of Hawai'i in 1898.

The plan must still be approved by the state Legislature. After OHA trustees voted 9-0 to approve the settlement during a closed session yesterday, OHA leaders took the plan to lawmakers at the state Capitol. OHA officials, as well as the office of Gov. Linda Lingle, declined to provide details yesterday pending a news conference today.

Sen. Clayton Hee, D-23rd (Kane'ohe, Kahuku), who was briefed by OHA officials, confirmed that the deal involves about $15 million in cash and an unspecified amount of land that includes acreage in Kaka'ako, Hilo and Kalaeloa. Additionally, the state would continue to pay OHA about $15.1 million annually for ongoing revenues, said Hee, a former OHA trustee.

Hee said the settlement appears to be significantly less than the deal offered in 1999 by then-Gov. Ben Cayetano that would have given OHA about $250 million and approximately 365,000 acres across the state. Hee, who was then OHA board chairman, said that deal fell through when a majority of OHA members chose to terminate negotiations with the state.


At the center of the complex negotiations has been what often is referred to as "ceded lands." Those lands, as explained by University of Hawai'i law professor and OHA consultant Jon Van Dyke in his new book, "Who Owns the Crown Lands of Hawaii," are comprised of what were once classified as "crown lands," lands that supported the monarchy, and "government lands," which supported the government.

When the government was overthrown in 1893, the republic combined the two groups of lands and classified them as "public lands" and ceded them to the U.S. government.

That situation continued under the Territorial Government, which ended with statehood in 1959, Van Dyke said. The federal government then transferred about 1.4 million acres to the new state to be held in trust.

Revenues generated from those lands were to be used for five purposes, including "for the betterment of conditions of Native Hawaiians."

But during the ensuing two decades, the state failed to allocate any resources directly for that purpose, Van Dyke said. At the 1978 Constitutional Convention, delegates sought to remedy the situation by creating OHA and requiring the Legislature to allocate a pro rata share of ceded land revenues to OHA explicitly for the betterment of Native Hawaiians, he said. That plan was ratified by Hawai'i voters in November 1978.


OHA and the state have been in dispute over what the payments should be, and over which lands and what revenues are covered, Van Dyke said. At one point, OHA filed a lawsuit against the state that reached the Hawai'i Supreme Court, which instructed the state and OHA to negotiate a settlement.

A later agreement approved by the Legislature in 1990 was fraught with ambiguities that led to further lawsuits, which ultimately led to the current negotiations, Van Dyke said.

Van Dyke stressed that the settlement would resolve only the dispute over the revenues derived on the lands. OHA and other advocates for Native Hawaiians still want the return of the lands or compensation for the loss of the lands as a result of the overthrow and annexation.

Yesterday was the 115th anniversary of the overthrow.

In 2006, a tentative agreement was reached and approved by the Legislature that pays OHA $15.1 million annually as its share of undisputed revenues derived from ceded lands, as well as a one-time $17.5 million payout. Until then, OHA had been receiving about $10 million for a number of years.


Honolulu Star-Bulletin, January 19, 2008

State and OHA make land deal

By Richard Borreca

The state has agreed to resolve a 30-year-old dispute with the Office of Hawaiian Affairs over so-called ceded lands by turning over $200 million in cash and land.

State land along Kewalo Basin and at Kalaeloa on Oahu and on Banyan Drive on the Big Island will be given to OHA, according to the agreement that state officials are calling historic. The land is valued at about $187 million.

The dispute traces its roots to 1978 when Hawaii voters approved changes to the state Constitution that created OHA, calling for the state to give OHA revenues from ceded lands -- land controlled by the state of Hawaii that was originally under the control of the kingdom of Hawaii.

The agreement must be approved by the Legislature.

Officials at a news conference in Gov. Linda Lingle's executive office at the state Capitol said yesterday that three state administrations, those of Govs. Waihee, Cayetano and Lingle, have tried to put together a deal to pay OHA for the lands.

"The payments to OHA resulted in being a football that was kicked from the Legislature to the courts back to the Legislature with little to limited success," Haunani Apoliona, OHA chairwoman, said yesterday.

The new agreement gives OHA $13 million now and guarantees an annual state payment of $15 million.

Also, OHA is given title of some closely watched waterfront property, the Ewa portion of Kewalo Basin that was controversial two years ago when a state-sponsored plan would have put up condominiums on the property in return for putting other parcels into park use.

Now the Hawaii Community Development Authority has formed a community group to reach consensus on how to develop the area. The parcel would still be under the jurisdiction of HCDA. Lingle said yesterday the agreement proposes that an additional person be added to the HCDA board and that the person be nominated by OHA.

The entire agreement must now be approved by the Legislature, and it is expected to be controversial.

Big Island Sen. Lorraine Inouye, whose Hilo district abuts the 80 acres of resort-zoned land at Banyan Drive that would go to OHA, predicted some discussion.

"I think resolving the issue is long overdue, but some may not be happy with it," Inouye (D, Hilo-Hamakua) said.

Apoliona called the agreement "momentous."

"Some native Hawaiians will think it is not enough, but there are those in the native Hawaiian community saying, 'Yeah, great move,'" Apoliona said.

Senate President Colleen Hanabusa said the Legislature will have to hold hearings to find out what the Hawaiian beneficiaries think.

"I feel we are going to be the receivers of a lot of frustrations and anxiety," Hanabusa said.

Jonathan Scheuer, OHA land management director, said the state controls more than 10,000 individual parcels of land worth more than a billion dollars. OHA and the state reviewed the various parcels and agreed on the three areas.

"We want to ensure that the land is developed in a culturally sound way that can produce outstanding revenues that can be put into beneficiary programs," Scheuer said.

The Hilo property, Scheuer said, represents 80 percent of the resort property in East Hawaii. While there are existing leases with hotel owners now, OHA wants to look at the entire package for future development.


Honolulu Advertiser, Saturday, January 19, 2008

OHA may get Hilo, Oahu properties

By Gordon Y.K. Pang and Kevin Dayton
Advertiser Staff Writers

The lands under the only hotel district on the east side of the Big Island would be transferred to the Office of Hawaiian Affairs under a settlement agreement reached between OHA and the state over a long-standing dispute regarding revenues generated from ceded lands.

Also part of the package are a group of lots in Kaka'ako that comprise an area that has seen many development plans, all of which have fallen by the wayside for various reasons, most recently a plan that called for two high-rises, retail spaces and other features.

A third parcel covers 110.1 acres at Campbell Industrial Park, once home to a cattle feed lot. OHA officials said the land may be used for solar energy production.

The proposed settlement agreement, formally announced at a press conference yesterday and which still needs to be approved by the state Legislature, would transfer an estimated $187 million in property and $13 million in cash to OHA. Additionally, OHA would continue to receive $15.1 million annually from state coffers.

The settlement addresses how much OHA is owed by the state from revenues generated from public lands turned over to the United States by the Republic of Hawai'i in 1898.

Both OHA Board Chairwoman Haunani Apoliona and Gov. Linda Lingle called the proposed settlement fair and reasonable to all parties involved. State senators and representatives were cautious and said they wanted to see more details.

Apoliona chastised comments made by Sen. Clayton Hee, a former OHA chairman, who on Thursday said the agreement gave OHA significantly less than a proposal by former Gov. Ben Cayetano in 1999. Apoliona said that proposal was contingent on unreasonable conditions sought by the administration that OHA and its constituencies could not live with.

When OHA then made a counteroffer, it was the administration that walked away, she said.

Of the three areas in which OHA would be gaining acreage, the Hilo property is by far the most developed, although at $34.5 million it has the lowest assessed value. OHA officials yesterday estimated that the six Hilo parcels, which total about 80.4 acres, generate about $800,000 in lease revenues annually to the state.

The parcels include the land under the Hilo Hawaiian Hotel and the Naniloa Volcanoes Resort, formerly known as the Hawai'i Naniloa Resort.

They declined to say how much potential revenue could be generated by redevelopment of the area, which was developed in the 1960s and 1970s.

The reaction from Hilo-area business leaders was mixed.

Rick Toledo, president of the Hawai'i Island Portuguese Chamber of Commerce, asked whether OHA will honor existing leases or renew leases now held by the current hotel owners.

"The devil is in the details," he said, predicting that the settlement will be closely watched by the Big Island business community when the issue surfaces at the Legislature.

Hilo is suffering as a tourist attraction because there is not enough good hotel inventory, said Robert Williams, president of the Hawai'i Island Chamber of Commerce. "It's a limiting factor on our tourism right now," Williams said. "We could use more quality hotel rooms."

Williams said he believes OHA would be obligated to honor existing leases, and a change in ownership for the 80 acres should not be terribly disruptive in the short term.

State and OHA officials confirmed that existing leases would be honored but also noted that many of them are up in 2015.

The state was often blamed over the years for the decline in the Hilo hotels because state law prohibited the Department of Land and Natural Resources from negotiating lease extensions or new leases with the existing hotel owners. By law, at the end of each lease the property must be put out to competitive bid.

The problem has been that as the hotels approach the end of their leases, they have no incentive to refurbish the properties or invest in them because they cannot be sure they will keep the lease, Williams said. Even if the owners are willing to make improvements, lenders are unwilling to finance the improvements as the end of the lease approaches, he said.

That led to some owners allowing their properties to deteriorate as the lease termination date approached.

"That is our main tourist area, and it would be nice to see more dollars put into the area to make the area a more desirable tourist destination for people to stay at," Williams said. "There's a possibility this could be a good thing."

The Honolulu parcels involve four lots totaling about 18.5 acres in Kaka'ako known as Kaka'ako Makai fronting Kewalo Basin that contain a mix of vacant and leased properties. The properties are valued at $92.7 million and comprise a portion of the state lands that recently were part of a redevelopment proposal spearheaded by Alexander & Baldwin Inc.

In 2006, the state Legislature passed a bill that effectively scrapped the A&B plan amid opposition from area residents, surfers and others objecting to the plan.


The Maui News, January 19, 2008

State, OHA settle ceded land dispute


WAILUKU – The state and the Office of Hawaiian Affairs have reached a tentative agreement that will provide OHA with 200 acres of prime real estate and $13 million in cash.

The estimated $200 million deal ends a federal lawsuit over contested lands ceded to the United States after the overthrow of the Hawaiian monarchy in 1893, OHA Maui Trustee Boyd Mossman announced Friday at a media conference held at the Lokahi Pacific building in Wailuku.

Gov. Linda Lingle endorsed the plan to accommodate past and future claims, which has been five years in the making. Now it's up to the state Legislature to approve the settlement, on which key lawmakers were briefed Thursday at the Capitol. The nine-member OHA Board of Trustees unanimously voted for the plan on Thursday as well.

Here's what's on the table:

A guarantee that the OHA funding will receive at least $15.1 million annually

200 acres of ceded lands on Oahu and the Big Island with a tax-assessed value of $187 million

$13 million in cash to help manage the prime real estate

"Finally, we are getting paid what was owed us," Mossman said. "This is the end of a long journey."

OHA had hired an international real estate expert and then formulated a list of the most profitable ceded lands, Mossman said. OHA and state exchanged lists numerous times before settling on 20 acres at Kakaako Makai and 100 acres at Kalaeloa Makai on Oahu, and 80 acres of Banyan Properties in Hilo.

The land has not been appraised yet, so the value could likely be more than $187 million, Mossman said. These areas also have the potential for development with hotels, tourist attractions, commercial centers, housing and office building, Mossman said.

He said that OHA anticipates some public resistance to development, and Mossman expects that some Native Hawaiian sovereignty groups will accuse OHA of selling out.

Meanwhile, people on the other side of the argument will say it's illegal or that the state gave up too much.

Maui Sen. J. Kalani English, whose district includes Hawaiian communities in Hana and Molokai, said he was "very peeved" that he was not one of the state lawmakers briefed on the proposal. He declined comment until he had the details.

"As one of only two Native Hawaiian senators with one of the largest Hawaiian constituencies, I would say it is a bad omen for them that they did not come and talk to us," English said Friday.

Thursday also marked the 115th anniversary of the overthrow of Hawaii by private American businessmen backed by the U.S. military. Those private interests seized 2 million acres of Hawaiian land.

"We were illegally overthrown, denied our land, our language and to an extent our culture," said Mossman, who is a retired Maui Circuit Court judge.

The justification for OHA is in provisions of the U.S. Admission Act, when Hawaii was given statehood by Congress in 1959. The Admission Act restored to the state title to all of the lands taken over by the Republic of Hawaii from the Hawaiian monarchy and "ceded" to the United States when the islands were annexed in 1898.

Section 5f of the Admissions Act specifies that the ceded lands restored to the state were a public trust to be used for support of public schools and "for betterment of the conditions of Native Hawaiians," as well as for development of farms and homes, and for public purposes.

OHA was established under a 1978 constitutional amendment, with state legislators subsequently enabling the organization of the agency and establishing that 20 percent of revenue from ceded lands would go into a trust fund supporting OHA and the Department of Hawaiian Home Lands.

In 1990, a state law gave $130 million to OHA. Not including the most recent settlement, the OHA trust fund has $450 million.

However, Mossman said payments from state lawmakers and past governors have been inconsistent.

Gov. Ben Cayetano refused to continue the payments altogether in 2001, which led to the latest dispute, Mossman said. A year later, OHA accused the state in 2002 of squatting on ceded lands.

When Lingle was elected in 2003, she agreed to pay OHA $9 million annually, and the 2007 Legislature upped that amount to $15.1 million.

Friday's settlement would resolve all the years with payment gaps, Mossman said. Originally, the OHA board of trustees had asked the state for $300 million in missing revenue, including interest.

Mossman said board trustees intentionally looked at properties that could be moneymakers rather than cultural or green space for the long-term solvency of the organization. Three areas on Maui were looked at but not disclosed Friday.

"To me, I'm very happy because acquiring equity property is more valuable than getting money," said Joe Kealoha of Maui, who was an original OHA trustee. "Yeah, it's good."

When and if the Congress and president approve a proposed Native Hawaiian Government Reorganization Act, Mossman said that the new Hawaiian governing entity would likely pursue more rights and ceded lands from the state and federal governments.


Hawaii Tribune-Herald (Hilo), Saturday, January 19, 2008

Local reaction to transfer seems guardedly positive

by Peter Sur
Tribune-Herald Staff Writer

The pending transfer of 80 acres on Hilo's Waiakea Peninsula from the state to the Office of Hawaiian Affairs won't affect any existing leases, Mayor Harry Kim was told.

If the Legislature approves the settlement, nearly all state-owned land on the peninsula would be transferred to OHA.

The Naniloa Volcanoes Resort, the Naniloa Country Club, the Hilo Hawaiian Hotel, Uncle Billy's Hilo Bay Hotel, the Reed's Bay Resort Hotel, Country Club Condo and Bayview Banyan sit on 80.4 acres of land worth nearly $34.5 million.

"As you know, the county parks, Reed's Bay, Banyan Drive, does border the lands in question," Kim said Friday after being briefed by Gov. Linda Lingle's office and OHA Chairwoman Haunani Apoliona.

Kim was told that county lands, including Coconut Island and Lili'uokalani Gardens, would not be affected.

Also, the terms of the leases "for the life of the lease would not change," Kim said.

"I am very glad that the state and OHA have been working all this time to see if they can resolve this matter," Kim said.

"Very few people realize that these lands are state lands, and those hotels are on leased lands," Kim said.

Most people probably won't see any change in how the properties are managed, Kim said. The only effective changes might be for Hawaii County, which would meet with OHA to resolve any remaining issues, and the leaseholders, who would recognize that "they have a different landowner now."

But the two lawmakers whose districts encompass East Hawaii's biggest collection of hotels wouldn't commit to voting either way on the settlement, citing their lack of familiarity with the terms.

"The only concern I raised in our Senate caucus was asking the Senate president, 'so what happens to those with present leases with the state?'" said Democratic state Sen. Lorraine Inouye, whose district stretches from Waimea to Keaukaha.

Asked how she might vote on the settlement, Inouye replied, "I'm not sure."

"We all haven't seen the agreement, so I can't say at this point in time," Inouye said. "I think the end result, hopefully, will be a good one."

State Rep. Jerry Chang, also a Democrat, also voiced concerns about some terms of the settlement.

"I haven't actually seen the whole thing, but I've heard about it," Chang said Friday afternoon, shortly after it was announced at a press conference in the governor's office.

"I think it would have been better if OHA had taken more income-producing property" instead of having the state pay OHA $15 million per year, "so we don't get bound with the $15 million per year in perpetuity.

"That's still a possibility, because it still has to be approved," Chang said.

Asked how he would vote, Chang similarly answered "I would not commit on that right now."

Only the resorts on the peninsula sit on the affected land. Other businesses, such as the Suisan Fish Market, Nihon Restaurant and Cultural Center, the Coconut Grill and the Hilo Seaside Hotel, aren't affected.

Calls to the Big Island's two other state senators and three leaseholders for comment were not returned.

"I think there's general support, my understanding," said OHA spokeswoman Crystal Kua, noting that the settlement was supported by several Republican lawmakers.


Hawaii Reporter, January 19, 2008

Millions More Taxpayer Dollars to the Office of Hawaiian Affairs - When is Enough, Enough?

By Garry P. Smith

Plan B for the Office of Hawaiian Affairs (OHA) is proceeding perfectly.

Unable to get the federal "Akaka Bill" through Congress and the President's office, so they could secure "federal recognition" and more importantly billions of dollars in land, cash and ultimately casinos, OHA has focused its attention on the more friendly state government and acquired state land and money anyway to form its new nation.

Stating "it's a good deal for taxpayers," Gov. Linda Lingle on Friday announced the state settlement for disputed ceded land revenue to OHA of $200 million. The deal includes only $13 million in cash and the rest in vast acreage in some of the most prime real estate in the State at considerably less than market value.

Why would a state agency want so much land while fervently supporting federal recognition that would require the State of Hawaii and the federal government to negotiate the surrendering of 1.2 million acres of ceded lands now owned by all races of citizens in Hawaii to the new Hawaiian Nation?

If the Akaka Bill does not pass Congress or is vetoed by the President as expected, Plan B of OHA will provide a land base for the new Nation of Hawaii. Land is money and power in Hawaii, especially undeveloped prime real estate in Kakaako and Kalaeloa.

Billions of dollars will be made by who ever owns the land and leases it out to commercial development as is all ready being done by the Department of Hawaiian Homelands throughout the state.

As a state taxpayer, I cannot even get a $1 tax rebate from the $700 million surplus of taxes in 2007, and probably not even a penny in 2008, but OHA can get a $200 million.

The governor also wants $100 million for Department of Hawaiian Homelands to build more homes for Hawaiians for Hawaiians on top of the $600 Million over 20 years all ready being paid by state taxpayers.

This is also in addition to the federal government's $150 million a year in various programs for Hawaiians. The Federal Communications Commission is providing $400 Million in rural fiber optic connections on Hawaiian Homesteads through Sandwich Isle Communications, which has an all Hawaiian Board of Directors including Kamehameha schools trustee Robert K.U. Kihune (VADM, USN, Ret) and Al Hee, Sen. Clayton Hee's brother.

Mayor Mufi Hannemann paid over $5 million from city taxpayers to buy Waimea Valley and then gave it to the Office of Hawaiian Affairs.

Hawaiians on homestead properties only pay $100 a year in property taxes for the same city services I pay over $3,000 a year for, so that is another benefit not given to the rest of us.

With the billions of dollars already paid out to Hawaiians, the question is why are there still so many Hawaiian homeless on the beaches?

When Gov. Linda Lingle says "it's a good deal for taxpayers," I have to ask who negotiated this deal for the average taxpayer? It doesn't sound like a very good deal to me. How much longer do the taxpayers of the State of Hawaii and the Federal Government have to pay for racial separatism and when will enough be enough?

Garry Smith is a resident of Ewa Beach who can be reached at


Honolulu Star-Bulletin, January 20, 2008

A fair and just settlement for unpaid ceded lands revenues

by Jon M. Van Dyke

Editor's note: The state and the Office of Hawaiian Affairs announced Friday that they had settled a longstanding dispute about ceded lands. According to the agreement, which is pending approval by the Legislature, the state will transfer to OHA $200 million in assets.

After protracted negotiations, the state and the Office of Hawaiian Affairs reached a settlement on the back pay owed to OHA from the revenues generated from the "ceded lands." What is the underlying basis for this payment, and why have these negotiations proved to be so difficult?

When Hawaii was annexed by the United States in 1898, about 1.8 million acres of land (more than 43 percent of the 4.1 million acres on Hawaii's main islands) were "ceded" by the Republic of Hawaii to the United States. These lands had been classified as "Crown Lands" (which supported the monarchy) and the "Government Lands" (which supported the government as a whole) during the Kingdom Period. When the kingdom was overthrown in 1893, the republic combined these two groups of lands as "Public Lands," and this merger continued during the Territorial Period (1898-1959). In 1993, the U.S. Congress apologized for U.S. participation in the overthrow, characterized the U.S. military and diplomatic role in the overthrow as "illegal" and a violation of "international law" and said that the lands were transferred "without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government."

It was recognized almost immediately after annexation that these "ceded lands" should not be merged with the other public lands of the United States and, because of their special history and meaning, that they should not be freely disposed of. The U.S. attorney general wrote in 1899 that the 1898 Annexation Resolution had created a "special trust" for the benefit of Hawaii's people.

In 1959, the federal government transferred about 1.4 million acres of the "ceded lands" to the new state of Hawaii, to be held in trust, with the revenue generated from these lands to be used for five named purposes, including "for the benefit of the conditions of native Hawaiians." During the next two decades, however, the state failed to allocate any of the revenue specifically for this purpose, devoting almost all of it to public education. To address this failure, the delegates to the 1978 Constitutional Convention proposed (and the voters adopted) amendments creating OHA and requiring the state Legislature to allocate a pro rata share of the revenues from the "ceded lands" to OHA to be used explicitly for the betterment of native Hawaiians.

The 1980 Legislature determined that the appropriate pro rata share for OHA should be 20 percent. This compromise figure was adopted because the "betterment of the conditions of native Hawaiians" was one of five purposes listed in the 1959 Admission Act and also perhaps because persons of Hawaiian ancestry constituted about 20 percent of the population of the state.

Difficulties arose almost immediately, however, about how to define "revenues" and which lands should be viewed as within the "ceded lands." After a lawsuit was filed by OHA in the 1980s, the Waihee administration negotiated an agreement dividing revenues into two categories -- "sovereign revenues" coming from activities unique to a government, such as collecting taxes and tuition at the university; and "proprietary revenues" coming from activities that any landowner could engage in, such as leases to farmers or operating airports or other profitable enterprises. It was agreed that OHA would receive 20 percent of the proprietary revenues, but none of the sovereign revenues, and the state then paid almost $135 million to OHA for revenues it had received in the 1980s but had not shared with OHA.

Disputes continued regarding the allocation of revenues between these two categories, focusing, for instance, on the duty-free sales from stores in Waikiki, because the customers receive their purchases when they depart at the airport, which is partially on "ceded lands."

The Hawaii Supreme Court refused to address the merits of this dispute, characterizing it as a "political question" that should be resolved by the Legislature, but the court stated clearly in 2001 (and again in 2006) that "the state's obligation to native Hawaiians is firmly established in our constitution" and "it is incumbent upon the legislature to enact legislation that gives effect to the right of native Hawaiians to benefit from the ceded lands trust."

The current settlement -- a combination of selected lands and money -- is designed to provide OHA with the funds it should have been receiving from the revenue stream generated by the "ceded lands" since this dispute arose. It is a fair settlement, reached in good faith through arms-length negotiations between the relevant state officials and OHA's trustees. It will enable OHA to maintain its existing programs and develop new ones to promote the well being of native Hawaiians, the Hawaiian language and Hawaiian culture.

This is an important interim settlement and an important step toward the ultimate resolution of the festering claims of the native Hawaiians, which could occur once the Akaka Bill is enacted, and negotiations begin between the native Hawaiian governing entity, on the one hand, and the state and federal governments, on the other.

Jon M. Van Dyke teaches constitutional and international law at the William S. Richardson School of Law, University of Hawaii-Manoa. His latest book is "Who Owns the Crown Lands of Hawaii?" (University of Hawaii Press).


Honolulu Advertiser, Monday, January 21, 2008

OHA settlement looks hopeful for both sides

Finally, a dollar amount has replaced the question mark that defined what the state owes to Native Hawaiians from the money it makes on land formerly belonging to the Hawaiian kingdom.

That figure, $200 million in cash and real estate, will have lawmakers combing through the settlement deal inked Friday between the state and the Office of Hawaiian Affairs. Of course, they should pull out the fine-tooth comb. But from the initial unveiling, there seems little that should worry either side.

From the state's perspective, the $15.1 million annual payment for revenues from the ceded lands the state inherited in the overthrow roughly represents the status quo. That's about where it stood for several years before legal disputes turned off the cash-flow pipeline, and where it is currently. The deal would settle all past claims and disputes over back pay owed OHA.

Much of the properties being conveyed to OHA in the deal are not the state's big moneymakers. In a year when the state is cash poor, turning over land in lieu of money is a reasonable plan, especially if it buys an end to the series of costly disputes over payments.

OHA's critics charge that the agency turned down a much more lucrative deal in 1999, when the Cayetano administration sat at the negotiating table. However, said OHA attorney William Meheula, the state then was seeking a final, "global" settlement, which OHA trustees rightly resisted, preferring to leave the ultimate deal on ceded lands for a sovereign entity to negotiate.

This deal also suits OHA's aims to build a land base in anticipation that federal recognition legislation will give Native Hawaiians a measure of sovereignty they've been seeking. OHA is reorganizing, as it should, to make land management a greater part of its mission.

Beneficiaries who have questions about this deal should track the enabling legislation as it moves through the Capitol. And OHA must hear from those beneficiaries while devising how this property is to be used.

In the meantime, the settlement offers hope of a win-win for both the state and Hawaiians and a hiatus in the seemingly ceaseless court battles that benefit none of us.


Honolulu Star-Bulletin, January 22, 2008

Deal draws debate
Ceded lands: Benefits of OHA settlement proposal in question

By Richard Borreca

State leaders are raising questions about the multimillion-dollar settlement between the state and the Office of Hawaiian Affairs over the use of so-called ceded lands.

Lawmakers predicted the settlement will not be liked by native Hawaiians. "I don't think the beneficiaries are going to be pleased with this settlement," said Senate President Colleen Hanabusa.

And former Gov. Ben Cayetano, who had worked for a settlement while he was in office, said the offer he made was a better deal for native Hawaiians.

"In 1999, we offered OHA $251 million plus 20 percent of the ceded lands (not the income), which I estimated at 365,000 acres," Cayetano recalled yesterday in an e-mail.

The proposed settlement announced Friday by OHA and Gov. Linda Lingle would resolve the OHA claims to the former Hawaiian monarchy lands used by the state by promising that the state would give OHA $15.1 million a year, plus nearly $200 million worth of state property including the resort property on Banyan Drive in Hilo and portions of Kakaako and Kalaeloa.

Cayetano said his offer was more generous, but it called for an agreement that OHA would not sue the state for future claims.

"I insisted on a global settlement because I wanted to protect the state from more lawsuits," Cayetano said, adding that OHA trustees were dismissive of the impact on the state, arrogant and greedy.

In reaction, Cayetano halted negotiations with OHA, and the talks stalled for nine years.

Yesterday, Haunani Apoliona, OHA chairwoman, charged that Cayetano's proposed settlement "unfairly sought to bar any future claim to title to state-controlled public lands such that the only remaining overthrow claim would be against the federal government."

Hanabusa also agreed with another criticism from Cayetano, that because OHA is a state agency, it should be monitored by the Legislature.

Cayetano said although money and land transferred from the state to OHA, it still belongs to the state.

"I think people should remember that OHA is a state agency. Whatever OHA gets from the settlement is still state property. For obvious political reasons, there is literally no oversight from either the Legislature or governor on how OHA spends its money," he said.

"The Legislature and governor should hold OHA accountable for its fiscal decisions -- it's their duty as elected officials to do so," the former governor said.

But Hanabusa (D, Nanakuli-Makua) added OHA should be afforded some degree of independence to monitor things for the narrowly defined beneficiary class, native Hawaiians.

The sovereignty question makes a decision on whether the Legislature should approve the OHA settlement even more complex because Apoliona says a future native Hawaiian government still could sue to get control of state lands.

"Only a native Hawaiian governing entity (and certainly not OHA) has the right to negotiate historic grievances over ownership of the crown and government lands that were illegally obtained from the Hawaii kingdom in 1893 and later ceded to the United States," Apoliona said yesterday.

She said if the Legislature approves the settlement, "the state will obtain a release of all of OHA's claims to income and proceeds from the public land trust" under the portions of the state Constitution that set up OHA.

"Going forward, OHA also releases the state of claims to future public land revenues as long as at least $15.1 million is annually paid to OHA," Apoliona said.

But the settlement does not address overthrow claims, according to the OHA chairwoman.


Honolulu Advertiser, Wednesday, January 23, 2008

OHA deal requires sober look

By Jerry Burris
Advertiser Columnist

Lawmakers and Gov. Linda Lingle say they hope the 2008 legislative session will resist distractions and controversies that could derail progress on education, a sustainable economy and the like.

Good goal. But that dream may be out the window if lawmakers begin thinking seriously about a historic agreement reached last week between the Lingle administration and the Office of Hawaiian Affairs.

On the surface, the agreement appears quite straightforward. It grants OHA a package of land and cash to settle longstanding claims that Hawaiians are owed something directly for the use of former Hawaiian crown and government lands now controlled by the state — the so-called ceded lands.

If approved by the Legislature, the state will have formally acknowledged it owes land and cash exclusively to Hawaiians, and Hawaiians alone, as their due share of the income the lands have generated over all these years.

It doesn't matter that the amounts are relatively minor. A precedent would have been struck.

As some have already signaled, this agreement takes care of one issue but leaves open the larger matter of whether Hawaiians are owed further compensation for loss of lands because of the 1893 overthrow and later annexation by the United States. That's where the big stakes come into play.

Resolution of those matters will most likely await the emergence of a Hawaiian "government" or political entity, either through the Akaka Hawaiian recognition bill in Congress or through some other, more organic process.

But when that day comes, and if lawmakers approve the Lingle-OHA deal, people will be able to point to 2008 as the moment when government officially recognized (and paid) Hawaiian claims for losses traced to the overthrow of the kingdom.

Those are the complex and time-consuming questions that legislators must consider before they approve this deal.

The other significant element in this arrangement is that this represents a decision to transfer, by government decision, certain valuable lands from public control to quasi-private ownership by a Hawaiian entity. In short, the agreement accepts the principle that some lands currently held in trust for the public, including Hawaiians of course, can now be alienated and put into the hands of one specific group.

In all, these are far-reaching matters that could occupy lawmaker attention for much of the 2008 session, if not beyond. So much for sticking with the needs and pressures of the moment.


Thursday, January 24, 2008

OHA must now begin to sharpen its focus

By David Shapiro

It's been an exercise in diminishing returns for the Office of Hawaiian Affairs as it tries to collect its share of the state's ceded lands, crown lands and other property held by the Republic of Hawai'i before Hawai'i was annexed by the United States in 1898.

After a decade of miscalculations in which OHA once dreamed of getting a court-ordered settlement of $1.2 billion, the agency last week accepted a state offer of a sixth as much — land and cash worth about $200 million plus ongoing payments of $15.1 million a year.

The positive is that OHA, which was formed by the 1978 Constitutional Convention to better the lives of Native Hawaiians, finally knows what its resources are and can work on focusing its mission.

The 1959 Admissions Act making Hawai'i a state specifically designated the betterment of Native Hawaiians as one of five purposes for ceded-land revenues. OHA was created as a means to get Hawaiians their share.

In 1993, the state gave OHA an initial payment of $130 million, which has since grown in value to about $500 million.

But attempts to determine the remainder of OHA's entitlement have stalled in court battles and negotiations that have played out against a backdrop of lawsuits filed by non-Hawaiians accusing the OHA and other Hawaiian-preference programs of racial discrimination.

OHA seemingly got the upper hand in 1996 when former Circuit Judge Daniel Heely set its share of ceded-land revenues at $1.2 billion, which the state appealed to the Hawai'i Supreme Court as an amount that would bankrupt the treasury.

Despite Chief Justice Ronald Moon's hints that the parties should settle out-of-court, OHA rejected a 1999 offer from the Cayetano administration for $250 million in cash plus 366,000 acres of land — an asset base that would have increased immensely in value given the boom in the real estate and financial markets since 1999.

When the Supreme Court overturned Heely in 2001, OHA lost its leverage, and it's taken eight years to negotiate a new deal with the Lingle administration that leaves OHA with a relatively scant $13 million in cash and land worth $187 million.

While the deal, which still must be approved by the Legislature, doesn't give OHA near what trustees once could have gotten, it's probably the best they can do at this point and provides a basis for moving forward.

The lands involved include some choice parcels for future revenues, such as properties in Hilo's Banyan Drive resort area and the Kaka'ako redevelopment zone.

OHA trustees must now sharpen their vision on how to best use the resources to fulfill OHA's mandate to better the lives of Native Hawaiians.

The agency has had fingers in a lot of pies, such as acquiring Waimea Valley and Wao Kele O Puna to preserve Hawaiian legacy lands, and making numerous grants in support of Hawaiian culture, education, economic welfare, health, housing and social well-being.

But there have been few high-impact, statement-making initiatives that define what OHA is about.

OHA has devoted much of its energy and resources to winning passage of the Akaka bill in Congress to head off legal challenges to its existence, and organizing a Hawaiian sovereignty campaign through its Kau Inoa registration program.

But there are questions about whether OHA, as a state agency subject to the scrutiny of the governor and Legislature, can independently lead a movement for Hawaiian self-government.

Some legislators responded to the ceded lands settlement by noting that resources transferred to OHA still belong to the state since OHA is a state agency, and perhaps lawmakers should provide more oversight of OHA's spending.


Honolulu Star-Bulletin, January 24, 2008

Ceded land settlement deserves fair hearing by legislators

An agreement between the state and the Office of Hawaiian Affairs on ceded lands will need the approval of the Legislature. It would not be surprising if an agreement on how to portion revenues from ceded lands to the Office of Hawaiian Affairs becomes one of the most contentious issues the Legislature takes on this year. Many organizations and individuals have opposed entitlement programs for the islands' native people, misunderstanding or disputing objectives of Congress and the federal government in attempting to rectify an injustice.

At the same time, there are those who won't be satisfied with what they might consider half-measures in reclaiming a Hawaii lost in the 1893 overthrow of a kingdom and the subsequent U.S. annexation.

Still others will see as too little the share of revenues, which is required by the state Constitution through the 1978 amendments that also established OHA.

Moreover, the possibility of future claims to public lands remains open under the settlement. Even though OHA would release additional claims to income and proceeds from the public land trust, a yet-to-be-established Hawaiian governing entity would not be similarly bound.

The agreement announced last week will sign over three pieces of state land and about $13 million in cash to OHA. In addition, the agency with the responsibility of expanding opportunities and programs for Hawaiians and promoting Hawaiian culture will continue to receive $15.1 million a year in ceded land revenues.

Though the 195 acres of land -- two parcels on Oahu and one on Hawaii island -- are valued at $187 million, they are dwarfed by the nearly 2 million acres ceded to the United States. Further, two of the sites are problematic.

Hotels on the Hilo property have leases from the state that expire in seven years. OHA says it will abide by the leases, but uncertainty about the long term could affect owner investments in the properties, which are Hilo's lodging mainstays, and eventually decrease revenue.

The agreement also includes about 18 acres at Kewalo Basin that were part of a controversial redevelopment plan, including condominiums, hotels and retail ventures. The Legislature eventually passed a bill that halted the project.

While OHA would gain title to the land, it will remain under the jurisdiction of the Hawaii Community Development Authority with OHA allowed one member to join the dozen others, raising questions about how much control of the property OHA will have.

The long-sought agreement will not satisfy all of OHA's beneficiaries, and it is sure to provoke OHA's opponents, but it should receive a fair review.


Honolulu Star-Bulletin, January 24, 2008, letter to editor

OHA trying to protect its own interests

After spending nearly seven years and more than $3 million of beneficiary/taxpayer money to get people to support the Akaka Bill, the Office of Hawaiian Affairs has begun to accept the inevitable, the bill's demise.

Their "very conflicted" declaration that it be "THE" native Hawaiian governing entity confirms suspicions of their intentions of a Sen. Dan Inouye- backed agenda: the reaffirmation and confirmation of the illegal statehood of Hawaii, the Organic Act -- the territorial acquisition of Hawaii, the alleged annexation of Hawaii, the Republic of Hawaii, the provisional government and the alleged overthrow of the government/kingdom of Hawaii by using Congress' definition of "kanaka" as indigenous Native Americans and its plenary powers to rule and eliminate our independence claims forever!

OHA acts of "global-like" settlements, cronyism and funding of special projects, taking place as we speak, continue to fester the divisiveness within our community and we are told to "stop grumbling."

OHA's kuleana is to take care of its trust responsibilities and listen to all its constituents. We have asked for reconciliation as guaranteed by President Clinton's 1993 Apology Bill. That needs to be defined.

Meaningful reconciliation would help to create more pono solutions toward self-determination and self-governance for the kanaka Hawaii and address the historical injustices rather than just the Akaka Bill, which only perpetuates our dependence on governmental handouts, entitlements and dictation.

Kunani Nihipali


Honolulu Advertiser, Friday, January 25, 2008

Columnist missed mark on OHA deal

By Mark Bennett

In Jerry Burris' Jan. 23 column about the state-OHA ceded lands agreement, he wrote: "If approved by the Legislature, the state will have formally acknowledged it owes land and cash exclusively to Hawaiians, and Hawaiians alone, as their due share of the income the lands have generated over all these years. It doesn't matter that the amounts are relatively minor. A precedent would have been struck."

These words make it sound as if this would be the first such acknowledgment in the history of the state of Hawai'i. This is patently untrue, and leaving this impression with readers does a real disservice.

Hawai'i's 1959 Admission Act explicitly acknowledges that ceded lands must be used for a number of purposes, including to benefit "native Hawaiians."

Sections 4, 5, and 6 of Article XII of the State Constitution, added by the 1978 Constitutional Convention, established OHA, in part, to receive, manage, and administer income and proceeds from Hawai'i's ceded lands for Native Hawaiians.

In 1980, the Legislature adopted implementing legislation that provided OHA 20 percent of all funds derived from the ceded lands, although the legislation never specifically defined exactly what was subject to the 20 percent, or how it would be calculated.

Since then, while there have been continuing attempts to resolve issues over exactly how much OHA is entitled to, from the income and proceeds of the ceded lands, there has never been a dispute as to the question of the state's constitutional duty to pay OHA some portion of the income and proceeds from the ceded lands for the benefit of Native Hawaiians. Since 1978, the state's obligation has been acknowledged again and again in legislation, and reiterated by the Hawai'i Supreme Court in several court decisions.

As recently as 2006, in Act 178, the Legislature, in fixing the amount of payments to OHA from ceded lands at $15.1 million per year, stated:

"The Legislature acknowledges that the state's obligation to Native Hawaiians is firmly established in the State Constitution. While many complex issues require the Legislature's further attention and consideration . . . the Legislature finds . . . that immediate action should be taken to clearly designate the pro rata share of revenues derived from the public land trust that the Office of Hawaiian Affairs is to receive annually."

The statement in Burris' column: "(I)f lawmakers approve the Lingle-OHA deal, people will be able to point to 2008 as the moment when government officially recognized (and paid) Hawaiian claims for losses traced to the overthrow of the kingdom," is simply untrue.

The agreement we have reached is a watershed because it fully, fairly and reasonably ends a 30-year-old dispute over the amount due OHA from the state under the provisions of Hawai'i's Constitution added in 1978, and not because it "officially recognized (and paid) Hawaiian claims for losses traced to the overthrow of the kingdom" for the first time.

While the Legislature should, of course, carefully examine the agreement, because that is its duty, it should not do so for the reasons Burris lists in his column, which are simply historically inaccurate and categorically untrue.

Mark Bennett is Hawai'i's attorney general. He wrote this commentary for The Advertiser.


January 25: A new webpage was created to compile a series of highly controversial political cartoons ridiculing the Kau Inoa racial registry, and the commentaries they spawned pro and con. The cartoons were published on a blog named "Zero Shibai" and reprinted in the online newspaper Hawaii Reporter. The cartoons drew a written protest from OHA chair Haunani Apoliona, and her protest stimulated both serious and sarcastic responses. See: "Bovine Flatulence -- Zero Shibai blog Kau Inoa cartoons (Overthrow victim, Kau Manua, Cow Inoa) cause OHA chair Haunani Apoliona to have a cow." at

Here is the cartoon which caused the biggest stir, including accusations of racism from both sides:


Honolulu Advertiser, Sunday, January 27, 2008

Doubts raised about Hawaiians-state deal

By Gordon Y.K. Pang

The Office of Hawaiian Affairs and the state went through more than a decade of negotiations to finally reach the landmark $200 million ceded lands settlement announced Jan. 18, but it has taken just days for lawmakers to raise serious reservations about the agreement.

The settlement, which calls for three large parcels of land to be transferred by the state to OHA along with $13 million cash, must be approved by the state Legislature. The parcels are in Kaka'ako and Kalaeloa on O'ahu, and Hilo on the Big Island.

Even the most critical of lawmakers said they are sincere about wanting to approve a settlement. But from the amount of land and money involved to whether the settlement would leave open the possibility of future claims, the questions being raised are complex, varied and not easily answered.

OHA officials, following criticism that they have not tried to seek input from their Native Hawaiian constituency, are starting a public informational campaign that will include meetings statewide, putting the bill and related information on the Internet and even the unusual step of calling constituents to let them know about the proposal.

House Majority Leader Kirk Caldwell, D-24th (Manoa), was among those who said he wants public input before deciding whether to support the plan.

"We want to hear from the beneficiaries, we want to hear whether they think the settlement seems fair and reasonable," Caldwell said. "Some beneficiaries may think that it's not enough."

Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said she found it troubling that OHA and the administration of Gov. Linda Lingle did not take the proposal to the public before coming to the Legislature.

"The problem I have for the Legislature is how can we explain an agreement to the people when we weren't party to it and we don't know why certain things were agreed to?" Hanabusa said.


One of the key issues raised is whether or not the Legislature can modify or amend portions of the agreement without jeopardizing the settlement. According to the terms of the settlement, any changes can nullify the agreement. But the agreement allows for changes if the state administration and OHA agree.

Sen. Jill Tokuda, D-24th (Kailua, Kane'ohe), who heads the Senate Agriculture and Hawaiian Affairs Committee, said she doesn't think any changes are possible.

"The sense I got was that this is the agreement that was signed by the trustees and the administration," Tokuda said. "I did not get the sense that this was something that was up for negotiation. If that was the intent, we should have been involved over the last three years. That would have made more sense."

But OHA administrator Clyde Namu'o said OHA is willing to entertain amendments to the proposal by lawmakers.

"We agreed with the executive branch that the agreement is the agreement and any changes to the agreement would need to be agreed upon by both OHA and the executive branch," he said. "So if there are amendments to the settlement agreement that both OHA and the executive branch felt were appropriate or acceptable, then that's fine."

Hanabusa, however, said she's also concerned how any attempts to change the bill might affect a settlement that's taken years to negotiate.

"If the legislators attempt to amend this bill, they're going to have to do it fully aware that they could possibly undo the settlement," she said.

Caldwell, who, like Hanabusa is a practicing attorney, said he's also wary about what any amendments might do to the settlement situation.

"Unless there was agreement to the changes, the whole thing collapses," he said. "Now you have the Legislature kind of negotiating with the parties. And it gets very complicated when you're trying to negotiate a settlement in public.

"And I'm not aware of any other situation where the state through the Legislature is negotiating a settlement with two parties."

But Sen. Clayton Hee, D-23rd (Kane'ohe, Kahuku), said the settlement agreement needs to change before he can support it. "I've made it clear (to colleagues) that the Legislature is not a rubber stamp, should not be a rubber stamp," Hee said.

A former OHA board member and one-time chairman, Hee said he believes a settlement is in the best interest of all parties. That said, however, Hee added: "The bill, as is, is not the best, in my opinion, the best product. I believe we can do better — for all parties."


Hee is among those who believes an offer made by former Gov. Ben Cayetano and his administration to OHA in 1999 made more sense. Under that scenario, according to both Hee and Cayetano, the state would have paid OHA $301 million in cash and given it 365,000 acres, about 20 percent of all ceded lands in the state.

But a majority of OHA members balked at that settlement because it would have required OHA to lose its right to sue the state for future claims.

Cayetano, in an e-mail, said he believes the Legislature should look at the settlement as a "global or final settlement" taking care of all claims and should "take steps to assure OHA cannot sue the state for future claims. Otherwise, it will never end."

Namu'o, however, said the current agreement settles the dispute over revenues from ceded lands due to OHA from 1978, when OHA was established, through 2008.

Sen. Sam Slom, R-8th (Kahala, Hawai'i Kai), said he has a problem with that. "Of all the things I'm concerned about, I would certainly want an extinguishment of any and all additional future claims, and OHA cannot guarantee that," he said.

Slom said the state Admission Act makes the state obligated to pay a share of ceded land revenues to Native Hawaiians. However, he said, "I think the settlement, in one way is over generous and in another way, I think the problem appears to be OHA."

While OHA is supposed to be the entity that accepts the funds and distributes it back to its beneficiaries, he has a problem with the fact that "OHA does not reflect all of the interest of all of the Native Hawaiians. It seems to be reflective of a certain group of people which also do a lot of infighting ... so an agreement reached between the governor, the administration and OHA may not be a total and workable agreement."


Several lawmakers said simply that at this point, they're still trying to digest the document and its ramifications — and weigh the pros and cons.

Rep. Hermina Morita, D-14th, (Hanalei, Anahola, Kapa'a), a member of the Legislature's Native Hawaiian Caucus, said she senses trepidation from different quarters. Some people are questioning the need for the state to continue to make a $15.1 million annual payment to OHA when it is receiving more than 200 acres of prime, revenue-generating land valued at $186 million in the settlement. Others, however, are arguing that the annual payment is not enough because it does not take into account any inflationary adjustments.

The $15.1 million is the same amount now being received annually by OHA and is based on the argument that when the federal government transferred 1.4 million acres to the new state of Hawai'i in 1959 to be held in trust, one of the five purposes for which revenues generated from those lands were to be used was "the betterment of conditions of Native Hawaiians."

Some believe that $15.1 million will amount to significantly less than 20 percent of all revenues as the years go by, while others believe revenues generated from the land to be handed over to OHA will more than offset that difference, Morita said.

"We've got to come to a decision and move on," she said. "OHA needs to be off its feet, off and running and responsible for its own actions."

Rep. Mele Carroll, D-13th (E. Maui, Moloka'i, Lana'i), who heads the Native Hawaiian Caucus, said she's happy the state and OHA have reached an agreement of some sort.

"Just the fact that they can come to a decision is a good sign," Carroll said. "But the devil is in the details."


The Office of Hawaiian Affairs is undertaking a campaign to inform its beneficiaries and general public about the $200 million settlement agreement reached with the state over the revenues generated from ceded lands from 1978 to 2008.

The campaign will begin this week with a phone bank of operators calling beneficiaries to inform them about the settlement agreement and answer any questions, OHA administrator Clyde Namu'o said.

Additionally, OHA will hold a series of informational public meetings across the state scheduled to begin the week of Feb. 4. The settlement agreement, the actual bill before both houses of the Legislature and other materials are also accessible at OHA's Web site at www.oha.org/.

A summary of the settlement agreement also should be available online this week, Namu'o said.


Honolulu Advertiser, January 27, 2008
Akamai Politics
The Advertiser's Jerry Burris is retired from the newspaper, but is blogging on the politics and events of the day, from the Legislature to the presidential election and beyond.

Sorting out that OHA-State lands settlement plan

As expected, that proposed between Gov. Linda Lingle and the Office of Hawaiian Affairs over ceded land claims has generated a big old mess of confusion and concern at the Legislature, which has the obligation to approve, disapprove or amend the proposal.

As Gordon Pang reports, some think the offer is too rich, others think it is not enough and others think it has to be tied to some kind of permanent, for evermore bar against any future lawsuits by OHA against the state on this matter.

These are all fair points. But in working this out, it is instructive to go back to the admissions act which gave control of ceded lands to the state and, in the same law, told the state what it could do with those lands and revenue from them.

The Act offers five potential uses for income from ceded lands, including schools, agriculture, the betterment of Hawaiians and other generally public purposes. But it does not say that each of the five potential uses must be funded, nor is there anything about a proportional division of the money.

In fact, the idea of giving OHA 20 percent of the income (five uses equals 20 percent for each) was a somewhat arbitrary compromise decision by the Legislature.

The actual federal law says the state can use any or all of the income from those lands "for one or more" of the five purposes, not necessarily all of them. Until OHA came along, that was generally education.

So, as this debate goes forward, its important to keep clear what the underlying legal groundwork is.

There are many good reasons to work toward the "betterment" of Hawaiians as the law says, but its important to maintain clarity of where all this comes from.


Midweek (O'ahu, Hawai'i), January 30, 2008

The Native Hawaiian ‘Reservation'

By Jerry Coffee

All across the northern U.S., from Washington, Montana and the Dakotas to Minnesota, Michigan and New York, Indian tribes increasingly flex their muscles, aided by steroid injections from the Bureau of Indian Affairs (BIA).

Over the years, Native American bureaucrats have stealthily infiltrated the BIA to the point of rubber-stamp approval of most self-serving initiatives from the nation's Indian tribes, which then go to Congress for enabling legislation. This has been facilitated by generous tribal campaign donations to key congressional and state legislative leaders; donations which - by the way - coming from Indian tribes are exempt from the usual campaign donation limits.

Some tribes have redrawn historical tribal boundaries to claim homestead properties of non-native Americans who have lived on them for generations. Such claims frequently find favorable endorsements by the BIA and, successful or not, land titles are frozen until resolution can be litigated. In any case, the property owners are out thousands of dollars in legal fees. Appropriate governmental intervention has been historically slow.

A more insidious tactic is "reservation shopping," whereby a tribal council identifies a perfect site - not necessarily even near the actual reservation - for a commercial enterprise, most commonly a gambling casino, but it could be a shopping center, a theme park or a truck stop. The council then applies for "reservation status," gets a rubber-stamp approval by the BIA and summary approval by Congress. From this point, the tribe's plans for the property require no approval by the Department of the Interior, no approval by the governor or the state Legislature, and no input from the surrounding community. According to U.S. Rep. Brian Baird, D. Wash., "The deck is so stacked against the local community ... when the approving agency is acting in a quasi advocacy role."

Some citizens in the Northwest who fight such blatant property encroachment characterize tribal sacred ground as anyplace on an interstate highway with an interchange near a metropolitan center.

Keep in mind that "tribal sovereignty" makes a tribe a coequal to the United States government above the state government. Once a property is added to the tribal "trust," it becomes a part of the reservation, technically immune from state zoning laws, state and federal taxes, campaign spending laws, environmental laws (no EISs) and, if the tribe chooses, immune from local law enforcement. Any products like cigarettes, gasoline or - in Hawaii, anything with GET - sold on reservation land are tax-free and can therefore undercut competing enterprises on adjacent non-reservation land.

All of the above is actually happening on the Mainland.

It should not be lost on the people of Hawaii that this is the model proposed by Sen. Dan Akaka in the "Akaka Bill" - that Native Hawaiians deserve the same rights as Native Americans. Although he is quick to point out the bill itself does not detail any of the above provisions, but only provides a "framework" for negotiations between the state and a "Hawaiian governing entity." This can mean anything from formally establishing OHA as the interim "Tribal Council" to the ultimate secession of Hawaii from the United States - "something for my grandchildren to decide," as Akaka puts it - leaving the secession door wide open.

Only a month or so ago there was some controversy over the plans for a Hawaiian Homelands parcel in Kapolei as to whether development of the parcel should be subject to state/county planning or zoning laws.

We have just seen the long-overdue (and what most consider fair) settlement of revenues and land to OHA from Hawaii's ceded lands. Should the Akaka Bill pass, it's fair to say the 209 acres (in three parcels) included in this recent settlement plus the existing Hawaiian home-lands would constitute the beginning of the "Native Hawaiian tribal reservation."

And even if OHA (backed up by the BIA and U.S. Department of the Interior) and the state Legislature could "negotiate" a future relationship as coequals, which they won't be, OHA will have enough ceded land revenue to spread around the Legislature - unrestricted - to make the HGEA look like beginners. We can be sure OHA will get its way.

But, hey, I guess that's what the senator has in mind!

Is that what you have in mind?


Honolulu Advertiser, Thursday, January 31, 2008, Letters to the Editor


The $200 million "settlement" of OHA's claims for ceded lands "rent" would settle nothing. We've repeatedly been told the lie that all 1.8 million acres of ceded lands belong to ethnic Hawaiians communally.

The Legislature has passed resolutions supporting the Akaka bill. Should the Legislature now give away money and land even before negotiations begin against the anticipated Akaka tribe to chop up the State of Hawai'i?

Our governor, attorney general and Legislature have an absolute duty to defend all Hawai'i's people against the rip-off of our money, land and jurisdictional authority by powerful institutions allegedly acting in the name of one racial group.

Neither the crown, nor government lands, nor the kingdom itself belonged to Native Hawaiians as a racial group. Yet the current "settlement" and future tribe are for ethnic Hawaiians exclusively.

There is no historical, legal or moral justification for race-based claims to ownership of ceded lands or to the revenues they generate. The current settlement and future Akaka tribe are steps along a terrible path.

Kenneth R. Conklin


Honolulu Star-Bulletin, February 4, 2008
Letters to the Editor

Cayetano offered better ceded land deal

I am writing to confirm former Gov. Ben Cayetano's statement in the Star-Bulletin's Jan. 22 article that his ceded lands settlement offer to the Office of Hawaiian Affairs, while he was in office, was a better deal for native Hawaiians than the proposal now before the Legislature. I was the chairwoman of the Office of Hawaiian Affairs in 1999 when he offered OHA $251 million plus 20 percent of the ceded lands, which is estimated at 365,000 acres.

Following OHA's victory in the Heely court case, the state of Hawaii appealed to the Hawaii Supreme Court, which then ordered the state and OHA to negotiate a settlement.

After only a few months, Haunani Apoliona, Collette Machado, Frenchy DeSoto, Louis Hao and Mililani Trask voted to halt the negotiations because they didn't understand that the $251 million was for the past due revenues to OHA and the 20 percent of the ceded lands was to settle future claims.

While it would have been a final settlement, imagine how great that would have been for our people if we had received the 20 percent of all of the ceded lands back then. Not only that, Gov. Cayetano was willing to consider many of the lands that OHA wanted. Our intention was to take the offer out into the community for input, but we never had the chance because of the shortsightedness of those trustees. As a result of OHA walking away from the table, the Supreme Court ruled the Heely act void, and told OHA to go back to the Legislature for a remedy.

Rowena Akana
Office of Hawaiian Affairs


Honolulu Advertiser, Wednesday, February 6, 2008
Letters to the Editor


As lawmakers prepare to hold hearings on the proposed public lands trust settlement, it's important to point out that the debt owed to OHA for Hawaiians is based on the State Constitution and Hawai'i statutes. OHA is legally authorized to own land and to collect some of the income and proceeds from the public lands trust for use by Hawaiians.

The Hawai'i Supreme Court has repeatedly recognized this legal obligation. Except for the period between Sept. 12, 2001, and early 2003, when then-Gov. Ben Cayetano stopped all payments to OHA, the state administration and Legislature have provided OHA with some revenue for the state's use of public lands. The settlement resolves the longstanding dispute over how much revenue is due OHA.

Some wish this were a "global settlement," some wrongfully believe it is. The fact is OHA does not have legal standing to settle land claims "for losses traced to the overthrow of the (Hawaiian) kingdom."

Those claims can only be asserted by a successor government, which OHA is not. The settling parties are clear that no land claims are being resolved under the agreement. Instead, OHA is giving up its right to sue for revenue legally due OHA from 1978 to 2008 in return for compensation of $200 million.

The settlement brings certainty out of uncertainty. It quantifies a debt due and owing and eliminates further suit as long as the annual revenue stream in the future is at least $15.1 million.

Robert Klein
OHA counsel


Honolulu Star-Bulletin, February 7, 2008
Letter to editor

Ceded lands deal guards future claims

Office of Hawaiian Affairs trustee Rowena Akana's praise for the "1999 Cayetano settlement" of the ceded lands question omits crucial facts (Letters, Star-Bulletin, Feb.4).

In then-Gov. Ben Cayetano's 1999 offer, OHA would have dismissed all lawsuits against the state, including OHA v. Housing and Community Development Corporation of Hawaii, the case just decided last week by the Hawaii state Supreme Court in favor of native Hawaiians.

In her letter, Akana writes that Cayetano's 1999 offer was "a better deal than the proposal now before the Legislature." The fact is Akana, who was then OHA chairwoman, rejected the Cayetano offer. She transmitted her own counter-offer to Cayetano. Akana fails to acknowledge that her counter-offer received no timely response from Cayetano. No mutual agreement between Akana and Cayetano was achieved. No settlement document between OHA and the state in 1999 was signed.

A partial settlement was concluded successfully in 1993 between OHA and the state (Waihee administration) related to the "undisputed revenues due to OHA" from the income and proceeds of the public land trust. That negotiation and mediation took more than 30 months to complete.

On Jan. 18, OHA and the state of Hawaii announced a settlement aimed at resolving "disputed revenues due to OHA" from income and proceeds of the public land trust. This negotiation and mediation took four years to complete.

This 2008 agreement in the amount of $200 million is to be implemented by the transfer of land and cash to OHA. The land parcels include commercial and industrial properties on Oahu and the Big Island totaling 209 acres. The state also will pay OHA just over $13 million in cash, and agrees to continue paying OHA a minimum of $15.1 million annually.

Upon approval of this 2008 settlement by the Legislature, the payment to OHA for its share of the "disputed" revenues due from the public land trust will be settled for the period from 1978 to 2008.

This 2008 settlement brings to closure the issue of "undisputed and disputed" revenues, payments of income and proceeds due to OHA since OHA's creation in 1978.

No overthrow claims to ownership of ceded lands are being resolved under this 2008 settlement agreement.

The value of this 2008 settlement is underscored by the state Supreme Court's Jan. 31 decision (OHA v. HCDCH). The high court ruled that Hawaiians have unresolved claims to ownership of kingdom lands that were "ceded" to the state of Hawaii at statehood. As long as those claims remain unresolved, the lands cannot be sold to third parties.

Under the "Cayetano settlement" in 1999, OHA, on behalf of its Hawaiian beneficiaries, would have been required to relinquish forever all claims to the 1.4 million acres of state-controlled "ceded lands."

It is fortunate for all Hawaiians that five OHA trustees stood firm in rejecting Cayetano's 1999 deal. These five were certainly not "short-sighted" as charged by Akana.

The settlement now before the Legislature is fair, reasonable and long overdue, and, most important, protects the rights of the Hawaiian people to our ceded lands.

S. Haunani Apoliona, Office of Hawaiian Affairs Board of Trustees chairwoman; Walter M. Heen, BOT vice-chairman; Oswald K. Stender, Assets and Resource Management Committee chairman; Colette P. Machado, Beneficiary and Advocacy Empowerment Committee chairwoman; trustee Boyd P. Mossman; trustee Robert Lindsey; trustee Donald B. Cataluna; and trustee John D. Waihee IV.


Hawaii Reporter, February 7, 2008

Akaka Bill Would Set Precedent for Break Up of Every State in the Nation
Letter to the U.S. Commission on Civil Rights

By H. William Burgess

Editor's note: This letter was sent Feb. 4, 2008, to the U.S. Commission on Civil Rights Director Kenneth L. Marcus and Regional Coordinating Chief Chris Byrnes, regarding the Native Hawaiian Government Reorganization Act of 2007, known as the Akaka bill.

Thank you for requesting my input. In my opinion, the gravest threat now facing the civil rights of the people of Hawaii, and the people of the United States, is the Akaka bill, currently pending in Congress as S. 310/H.R. 505, Native Hawaiian Government Reorganization Act of 2007.

This bill would create a privileged class consisting of anyone with at least one ancestor indigenous to the lands now part of the United States; and it would sponsor the creation of a separate sovereign government in Hawaii of, by and for persons with an ancestor indigenous to Hawaii. The bill does not require that new government to be subject to the full reach of the U.S. Constitution or the civil rights laws of the United States or the State of Hawaii; and it authorizes negotiations for the breakup and giveaway to that new government of some unspecified amount of Hawaii’s land, natural resources, governmental power and civil and criminal jurisdiction.

Imagine the consequences if Congress could authorize the breakup and give away of some or all of a state! What would become of the ”indestructible union composed of indestructible states” envisioned by the Constitution?

This bill would radically change existing Indian law by permitting recognition of tribal status based on blood alone. It thus would establish a precedent for the breakup of every state, and ultimately, of the United States itself.

Attached with further information about the dangers of this foolish bill is a copy of my testimony of May 3, 2007 to the U.S. Senate Committee on Indian Affairs -- see
and my response of May 17, 2007 to questions by Vice Chairman Craig Thomas -- see

Mahalo to the chairman and members and staff of the USCCR for standing firm to protect the equal protection of the laws for each and every citizen of the United States. If I may be of further assistance please call.

H. William Burgess is a Hawaii attorney and a member of the U.S. Civil Rights Commission's Hawaii committee. Reach him at


Hawaii Reporter, February 7, 2008

State's Land Distribution to Office of Hawaiian Affairs: 'Killing Our State Through Death of 1,000 Cuts'

By Kenneth R. Conklin

Aloha kakou

One small step for the Office of Hawaiian Affairs, one giant leap toward racial apartheid in Hawaii. That summarizes SB 2733 -- legislation now pending in the Hawaii State Senate that threatens to slice off another piece of Hawaii, slowly killing our state through the death of 1,000 cuts.

That's the big picture regarding the ceded lands (or distribution of royal crown lands) agreement between Gov. Linda Lingle on behalf of the state and the state Office of Hawaiian Affairs, which SB 2733 seeks to enact into law:


Since 1978 the government of Hawaii has been facilitating the development an "Evil Empire" of racially separate governmental and private institutions exclusively for ethnic Hawaiians.

The Office of Hawaiian Affairs (OHA) was founded on three pillars of racial separatism: Only ethnic Hawaiians could vote for OHA trustees; only ethnic Hawaiians could run for OHA trustee; and only ethnic Hawaiians could receive benefits from OHA.

The first pillar was knocked down by the U.S. Supreme Court in Rice v. Cayetano. The second pillar was knocked down by the U.S. District Court in Honolulu and the 9th Circuit Court of Appeals in Arakaki v. State of Hawaii. But the third pillar remains standing despite substantively correct lawsuits dismissed on technicalities.

In response to those lawsuits, the Akaka bill has been continuously re-introduced in Congress for nearly eight years, with zealous support from our Governor, Attorney General, and nearly every member of our Legislature. The Akaka bill seeks to authorize creation of a racially exclusionary government for all persons worldwide who have a drop of Hawaiian native blood -- that is the sole requirement for membership. The bill would authorize transfer of land, money, and jurisdictional authority to the phony Akaka tribe.

The whole concept of a racially exclusionary government is evil. And unlike any of the real Indian tribes which include a small number of people in a restricted and usually remote area of land, this one would legally segregate 20 percent of the entire population of a state, and perhaps 50 percent of the state's lands; thus deserving the label "apartheid." Hawaii's Evil Empire of racially exclusionary institutions has grown so powerful that hardly any public officials will dare to stand up against it.

The multiracial, multicultural society of Hawaii has hardly any voice in government to advocate for unity and equality; because the wealthy, powerful institutions of the Evil Empire have silenced their voice through the expenditure of untold millions of dollars in lobbying, advertising, school curriculum, and outright intimidation. Who hasn't seen expensive, racist Kau Inoa commercials beamed into their living rooms at least 200 times, or newspaper ads "explaining" the Akaka bill?

In case the Akaka bill does not get enacted, OHA created "Plan B" to expand anyway. The idea is to get our compliant governor and Legislature, plus the counties and private groups, to transfer land, money, and jurisdictional authority directly to OHA -- a plan already being implemented.

On Oahu the County of Honolulu used tax dollars plus money from several environmental groups to purchase the entire Waimea Valley. OHA made only a small contribution, but was given the deed to the entire valley.

In Waokele O Puna on Hawaii Island, OHA again contributed only a small portion of the purchase price but ended up with the deed to the entire parcel of 40 square miles.

Bills are now pending in the Legislature that would create racially stacked commissions to manage Haiku Valley and Makua Valley, with OHA having seats on those boards, and including a provision for outright transfer of the entire valley to OHA.

OHA keeps asking for money to build its new headquarters, which would become the national capitol of the new Akaka tribal nation (until Iolani Palace which taxpayers renovated is handed over). Now comes the state of Hawaii ready to give away $200 million of public land and money to OHA through SB2733.

If the Akaka bill passes (which our governor, attorney general and Legislature are working hard to accomplish), then the leadership of the new Akaka tribe will negotiate with the state of Hawaii for enormous amounts of land, money, and jurisdictional authority -- and who will stand up to protect the rights of the general public? Why should the state of Hawaii give away anything at this time, in the face of future negotiations where more will be demanded? Would a business owner give away part of something even before he enters negotiations where his opponent is demanding all of it?

The time is now to begin protecting all Hawaii's people against wealthy, powerful, greedy race-based institutions seeking to grab as much as they can at the expense of everyone else. Hawaii is experiencing the death of 1,000 cuts. Waimea Valley and Waokele O Puna were two of those cuts. SB2733 would take another cut out of the state of Hawaii, continuing the erosion of our tax base. To stop death by 1,000 cuts there must come a time when the knife is brushed aside before it can cut again.


It is historically, legally, and morally wrong to allocate government land, or revenues from land, for exclusive use by a racial group. Neither Kingdom law, nor the Organic Act for annexation, nor the Statehood Admissions Act, contemplated or required the creation of OHA.

The Constitutional amendment that created OHA in 1978 was passed by the smallest number of yes votes among all the amendments coming out of the Constitutional Convention; and the amendment creating OHA would have been defeated except that blank votes were counted as yes votes at that time, contrary to the way we count blank votes today. The decision to set aside 20 percent of ceded land revenue for OHA in 1978 was an arbitrary and capricious enactment of an ordinary law. It is not part of our Constitution -- the Legislature can and should repeal the 20 percent law at any time.

The public lands of Hawaii, including the ceded lands, belong to all the people of Hawaii without racial distinction. During the Kingdom, following the Mahele, the government lands were held by the government on behalf of all the people, just as now. The Crown lands also became government property by act of the Kingdom Legislature, gladly signed by the King, to issue government bonds to pay a mortgage lien on the Crown Lands the King had incurred to pay the King's personal (gambling) debts.

Thereafter the government owned the Crown Lands, while income from the Crown Lands was set aside to maintain the office of head of government in his official capacity but not as his private property. Thus, when the monarchy ended, the Crown lands and government lands were indistinguishable, all held by government as public lands to benefit all the people without regard to race -- both then and now.

The Statehood Act of 1959 does not require setting aside any ceded land income specifically for any racial group. It identified 5 purposes for the use of ceded land revenues, and explicitly said that part or all of the revenue could be used for any one or more of those 5 purposes.

When 100 percent of ceded land revenues was sent to the public schools from 1959 to 1979, the result was that 26 percent of ceded land revenues were thereby used for the betterment of Native Hawaiians, without need for racial separatist designation, simply because 26 percent of the children were of that racial group. Wasn't that a wonderful idea? Why not do that again? It must also be noted that the section 5(f) language identifying "betterment of native Hawaiians" as one purpose for spending ceded land revenues explicitly defined "native Hawaiians" as that term was used in the Hawaiian Homes Commission Act of 1920, which required 50 percent native blood quantum.

Therefore neither OHA, nor the anticipated Akaka tribe, is a proper receptacle for ceded land revenue, since OHA beneficiaries and Akaka tribe members are defined as needing only to have a single drop of the magic blood.

On Jan. 20 in the Honolulu Star-Bulletin, Jon Van Dyke wrote: "The revenue generated from these lands to be used for five named purposes ... ."

However, there was no requirement to spend one dime on any particular one of those purposes. Van Dyke laments "During the next two decades, however, the state failed to allocate any of the revenue specifically for this purpose [betterment of native Hawaiians], devoting almost all of it to public education. To address this failure ..."

As I explained above, Native Hawaiians received 26 percent of the ceded land revenues without any need for racist set-asides.

Furthermore, it was not a failure to send the money to the public schools, who now get zero money from the ceded lands because 20 percent of gross revenue sent to OHA exceeds 100 percent of net income after allowing for capital improvements and operating expenses for which we all pay.


OHA already has about $450 million. Most of that money has been sucked out of Hawaii's economy and sent to New York for stock market investments. OHA occasionally makes small grants to its "beneficiaries" but very little money reaches the makaainana (little people). It's time to stop feeding the beast. Repeal the law sending 20 percent of ceded land revenues to OHA. You can repeal that law tomorrow by a simple majority vote.

In the past OHA has sued the state of Hawaii (can a hand sue its arm?) for past-due "rent" "owed" for the 20 percent share of revenue. Does anybody think that won't happen again? This "settlement" guarantees $15.1 million annual payments toward the 20 percent share going forward, but OHA will again claim more is owed and will file more lawsuits. Stop this craziness. Repeal the 20 percent law.


One specific objection to SB2733 concerns the giveaway of lands along Banyan Drive in Hilo which are currently leased to the companies which built extremely valuable privately owned hotels.

A few years from now those land leases will expire. OHA will then become the owner of the hotels, without paying one penny to the builders and current owners.

OHA could choose to knock down the hotels to honor the fact that the lands are "sacred" to Native Hawaiians. Does anyone doubt there are moolelo (stories) about the gods or the chiefs frolicking on the beach there, or having heiau, fishponds, or taro patches there? Aren't ancient bones buried there?

OHA could choose to continue hotel operations reaping tremendous income from the hotels it will own.

OHA could choose to convert the hotels into condominiums which OHA could then sell leasehold for another cycle of years until it confiscates them yet again.

These scenarios are not at all far-fetched. One need only look at the town of Kailua, Oahu, where Kaneohe Ranch's lease on the land under the Kailuan condominium came to an end on December 31, 2007. The landowner refused to sell the land to the condominium owners, preferring instead to let the leases end. The condo owners now have lost their entire investment and have nowhere to call home.

The state of Hawaii as owner of the Banyan Drive land would treat the hotel owners fairly when their leases expire. But OHA is ruthless and the hotel owners had better prepare for financial disaster if SB 2733 passes.

'''Kenneth R. Conklin, Ph.D. is the author of "Hawaiian Apartheid -- Racial Separatism and Ethnic Nationalism in the Aloha State" available at all Hawaii libraries and at

To find out more about SB 2733, log onto SB 2733

To submit testimony, write to COMMITTEE ON AGRICULTURE AND HAWAIIAN AFFAIRS Sen. Jill N. Tokuda, Chair and Sen. J. Kalani English, Vice Chair; COMMITTEE ON WATER AND LAND, Sen. Clayton Hee, Chair and Sen. Russell S. Kokubun, Vice Chair; COMMITTEE ON JUDICIARY AND LABOR, Senator Brian T. Taniguchi, Chair and Sen. Clayton Hee, Vice Chair CONCERNING: SB 2733 RELATING TO THE PUBLIC TRUST LANDS SETTLEMENT by Saturday, Feb. 9, 2008. Send testimony to all senators at mailto:sens@capitol.hawaii.gov


Honolulu Advertiser, February 8, 2008, letter to editor


It is now clear that if the Akaka bill becomes law, huge chunks of state lands that benefit all the people of Hawai'i will be available to benefit only those with at least a drop of Hawaiian blood.

The governor's agreement to transfer valuable chunks of waterfront property in Kaka'ako and on Neighbor Islands to OHA is just the first installment in what OHA plans to be a massive transfer of other lands from state ownership to Native Hawaiian ownership in "negotiations" required by the Akaka bill, between the state and a new Native Hawaiian government.

Now that the Hawai'i Supreme Court has ruled that the state must reach a comprehensive ceded land deal with Native Hawaiians, that negotiating process has been tilted in favor of Hawaiians.

And it has become clear what "recognition" of Native Hawaiians really means. As succinctly put by U.S. Rep. Neil Abercrombie, the Akaka bill "is a bill about the control of assets. This is about land, this is about money... we're talking about 2.2 million acres of land..."

It's not just about "preserving Hawaiian culture." It's about getting land back from the haoles who "stole" it in 1893.

The big question now is — assuming the polls correctly predict we will have a Democrat president in 2009 who will sign the Akaka bill — how willing is the Legislature to give away these ceded lands.

If the Legislature accepts the entire current Lingle land transfer package, it will be a sign that under Akaka bill negotiations in 2009, it will give away at least 20 percent of the ceded lands, and probably a lot more.

The state Constitution and the federal government only require the state to use the ceded lands for any of five purposes, including public education and Native Hawaiian causes, among others. The Legislature chose the 20 percent figure itself. It could have decided on 5 percent or 1 percent.

This will be a hugely significant legislative decision for the 80 percent of Hawai'i's citizens who are not Native Hawaiian.

Tom Macdonald



Friday, February 8, 2008

OHA Pressures Grantees

The Office of Hawaiian Affairs (OHA) has been leveraging grantees to support the Ceded Land Settlement (HB2701 and SB2733) via multiple emails and phone calls directly to non-profits who are receiving grants from the Office of Hawaiian Affairs. OHA staff has been working the phone lines and sending out multiple emails to grantees, since the week of January 28, 2008.

According to several OHA staff members, several grantees are feeling pressured by OHA to submit testimony in favor of the Ceded Land Settlement, because they are made to fear that OHA will stop funding the programs and services they represent.

Hence, several grantees are sending favorable Ceded Land Settlement testimony under distress to the committees of the Hawai‘i State Legislature (Agriculture and Hawaiian Affairs, Water and Land, and Judiciary and Labor) who have scheduled a Ceded Land Settlement public hearing on the 9th of February 2008 at 10:00 am in the conference room auditorium.

It is criminal that OHA would leverage OHA trust dollars to influence Hawaiian beneficiaries and non-profit organizations that serve Hawaiian beneficiaries to support OHA’s agenda.

Even worse, OHA has placed these non-profit organizations in a precarious situation with the Internal Revenue Service (IRS). The IRS clearly states:

“In general, no organization may qualify for section 501(c)(3) status if a substantial part of its activities is attempting to influence legislation (commonly known as lobbying). A 501(c)(3) organization may engage in some lobbying, but too much lobbying activity risks loss of tax-exempt status. Legislation includes action by Congress, any state legislature, any local council, or similar governing body, with respect to acts, bills, resolutions, or similar items (such as legislative confirmation of appointive office), or by the public in referendum, ballot initiative, constitutional amendment, or similar procedure. It does not include actions by executive, judicial, or administrative bodies. An organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.”

OHA grantees beware, as it is common knowledge that OHA not only requested your support of the Ceded Land Settlement and other OHA legislative initiatives, but also requested that you reach out to those you serve to lobby for OHA’s agenda.

OHA grantees, you could be at-risk of losing your 501(c)(3) status.

Senate Concurrent Resolution 49, requesting that the Office of Hawaiian Affairs and the Attorney General, as representatives of the executive branch, conduct statewide informational hearings on the Ceded Lands Trust Settlement agreement was certified and copies sent on the 5th of February 2008. In response OHA has tentatively scheduled an estimated 20 to 30 presentations throughout the state beginning this week through mid-March 2008.

It is unfortunate that OHA chose not to conduct these presentations, which will most likely be OHA talking to the public versus a dialogue between OHA and the public, prior to submitting the Ceded Land Settlement to the Hawai‘i State Legislature.

The truth of the matter is OHA never intended to inform or include the public in the Ceded Land Settlement discourse. OHA is only conducting these presentations, because of the recommendation made by the 2008 Hawai‘i State Legislature to OHA through Senate Concurrent Resolution 49.

Beneficiaries and concerned public don’t be deceived by OHA.

OHA is not hosting these informational sessions with the intent of being honest and open. OHA is hosting these informational sessions, because they need to look good in the eyes of the 2008 Hawai‘i State Legislature.



Senator Jill N. Tokuda, Chair
Senator J. Kalani English, Vice Chair

Senator Clayton Hee, Chair
Senator Russell S. Kokubun, Vice Chair

Senator Brian T. Taniguchi, Chair
Senator Clayton Hee, Vice Chair

A 114-page pdf file contains the complete text of the bill itself plus all written testimony:


** Here are three different news reports about the state Senate committee hearing on the Lingle/OHA ceded lands "settlement." Note that the Honolulu Star-Bulletin report leaves out important details and is misleading, while the Honolulu Advertiser did not publish any report at all until Monday.

Hawaii Reporter, Saturday February 9, 2008

Senate Committee Intend to Pass Ceded Lands Bill Out of Committee Chairs will amend bill to "keep discussion going"

By Richard Rapoza [** Richard Rapoza is the Director of Communications for the Hawaii State Senate majority party]

HONOLULU – Following a lengthy hearing, the Chairs of the Hawaii State Senate’s Committees on Agriculture and Hawaiian Affairs, Water and Land, and Judiciary and Labor have announced their intention to pass out of committee Senate Bill 2733, which covers the proposed settlement of claims relating to ceded lands in Hawaii.

While formal decision-making on the bill has been rescheduled for later this week, committee chairs Brian Taniguchi (Judiciary and Labor) and Jill Tokuda (Agriculture and Hawaiian Affairs) announced their intentions in order to keep interested parties up-to-date on the bill’s status.

Senator Tokuda expressed the committees’ intention to "defect" the bill by changing the included appropriation to zero, and changing the effective date to July 1, 2050. Introducing intentional defects into a bill keeps the bill alive while ensuring that the Senate and House of Representatives will have an opportunity to further discuss its provisions at a later date.

"Our passing this bill out of committee is not meant as any indication that we find the proposed settlement complete or satisfactory," said Senator Tokuda. "Rather, we believe today’s hearing makes it very clear that more input from native Hawaiian beneficiaries is absolutely necessary. Any settlement agreement must reflect the will and the best interests of the beneficiaries."

"As anxious as many are to see a resolution to these issues, our best course of action is to show our respect to the community and deference to the process," Senator Tokuda continued. "This discussion must continue, and it is clear to us that these conversations must be out in the community. We are all hopeful that the Office of Hawaiian Affairs and the State Attorney General will do what is necessary to allow the discussion to continue in a meaningful and productive manner."

Close to two hundred groups and individuals submitted written testimony prior to today's hearing. Approximately fifty more either submitted late testimony or appeared at the hearing to provide oral testimony only.

The Committee on Water and Land and Committee on Agriculture and Hawaiian Affairs have scheduled decision-making for Tuesday, February 12, at 2:45 p.m. in Capitol Room 224. The Committee on Judiciary and Labor will include decision-making on SB 2733 in its scheduled hearing on Wednesday, February 13, at 9:00 a.m. in Room 016.


West Hawaii Today (Kona), February 10, 2008

Senate seeks more time on ceded land issue
30-year-old Dispute between State, OHA may be nearing a resolution

by Nancy Cook Lauer
Stephens Media Capitol Bureau

Sunday, February 10, 2008

HONOLULU -- Three Senate committees on Saturday heard five hours of testimony almost evenly divided between proponents and opponents, then decided they needed more time to consider a settlement agreement between the state administration and the Office of Hawaiian Affairs.

The Senate Agriculture and Hawaiian Affairs, Water and Land and Judiciary and Labor committees expect the bill, SB 2733, to go to a conference committee with the House, which has its own bill, HB 2701, that has not yet been heard.

"It is our strong opinion that more beneficiary participation and review is necessary," said Sen. Jill Tokuda, D-Kailua, Kaneohe, chairwoman of the Agriculture and Hawaiian Affairs committee. "The more important discussions that have to take place are not in this committee room -- it's out in the communities."

Both the House and the Senate have passed a resolution requiring OHA to hold public hearings on the settlement agreement.

The agreement, which took more than four years, settles a 30-year-old dispute that started when OHA was formed by the 1978 Constitutional Convention. OHA has argued that Native Hawaiians haven't been getting their share of revenues from so-called ceded lands that are held in trust by the state.

"I was not elected to be a rubber stamp on this settlement agreement," said Sen. Clayton Hee, D-Kaneohe, Kahuku.

The agreement would move control of the land under more than 80 percent of all hotel rooms in East Hawaii to OHA's control as part of a $200 million package that also guarantees OHA at least $15.1 million in cash a year. The Banyan Drive properties currently are under the state's control, with long-term leases given out to hoteliers and business owners.

"Thirty years is enough. It is enough that things have gone on for 30 years without a settlement," said Attorney General Mark Bennett, one of the parties to the agreement. "There is no way there can be a settlement that is all things to all people. ... Maybe we haven't achieved perfection, but we have achieved fairness and reasonableness."

The six Hilo properties along Banyan Drive total 80 acres and are the only properties generating income of the 11 properties being transferred. The Hilo properties -- Bayview Banyan, Country Club Condo, Hilo Hawaiian Hotel, Naniloa Hotel and golf, Reed's Bay Hotel and Uncle Billy's Hotel -- generate about $800,000 a year.

Walter Heen, vice chairman of the OHA Board of Trustees, said the Hawaiian organization will hold two meetings on the Big Island, four on Oahu and one each on Maui, Molokai and Kauai to "educate beneficiaries and respond to questions."

"This bill provides the opportunity for the Legislature to bring closure to an issue that has remained incompletely addressed for three decades and that the Hawaii Supreme Court has ruled is primarily under the authority and responsibility of the Legislature," Heen said.

The bill was supported by many Native Hawaiian groups, including the Association of Hawaiian Civic Clubs.

"The association is aware that any settlement on behalf of the Native Hawaiian people is a very sensitive issue, but we believe that the elected trustees of the Office of Hawaiian Affairs have taken their fiduciary responsibilities very seriously, that this settlement was arrived at only after many years' deliberation and due diligence," said President Leimomi Khan.

Those opposing the bill ranged from people who believe there should be no race-based preferences to members of the so-called Hawaiian Kingdom, who said they'd "rather eat rocks" than accept money from a group that has no right to make deals on their behalf.

"You, legislators of the state of Hawaii, have no rightful standing to convert (steal) the kingdom's claimed lands and award it to one of your agencies -- OHA," said Waimea resident Clarence Ku Ching, who claimed to be a Hawaiian Kingdom national.

"How can you cede something that you do not own?" asked Kealii Makekau, of Honolulu. "The people have been left out. Kanaka (Native Hawaiians), human beings, have been left out of the process."

Michael Trask, of Hilo, asked the Legislature to hold off a decision for a year until OHA can hold public hearings on all the islands getting more public input.

"The OHA/Lingle negotiations were closed to beneficiaries," Trask said. "At no time has OHA or Gov. (Linda) Lingle presented this settlement to our people nor has there been any effort to obtain beneficiary input to the process."

Retired Honolulu attorney William Burgess, who has participated in lawsuits challenging Hawaiian preferences, opposed the bill for a different reason.

"Aloha is for everyone," Burgess said. "Every citizen of Hawaii, whatever his or her ancestry, is entitled to the equal protection of the laws."

The full text of the bills (HB 2701, SB 2733) is available at


Honolulu Star-Bulletin, February 10, 2008

Senate panels to pass ceded land bill

By Gene Park

A bill to approve a multimillion-dollar settlement between the state and the Office of Hawaiian Affairs over the use of ceded lands will advance in the Legislature, even though lawmakers still have concerns over the measure.

Native Hawaiians were divided yesterday over the merits of the settlement during a five-hour hearing in the state Senate on the bill (SB2733).

Nearly 200 groups and individuals submitted verbal and written testimony.

The proposed settlement announced last month by OHA and Gov. Linda Lingle would resolve OHA's claims to the former Hawaiian monarchy lands used by the state. The state would give OHA $15.1 million a year in cash and nearly $200 million worth of state property, including resort property on Banyan Drive in Hilo and portions of Kakaako and Kalaeloa.

"OHA has a bad habit of making executive decisions on behalf of us, the kanaka maoli," said 37-year-old charter school teacher Andre Perez. "That is not the way to build trust. ... As a teacher in human relations, I have to give OHA a grade of F."

T.J. Mahoney Executive Director Lorraine Robinson said the settlement will help OHA continue to provide funding to programs to benefit Hawaiians.

"Approximately 60 percent of the residents in our program have Hawaiian ancestry," she said of her program, which helps women inmates make the transition back into society. "The support and funding we have received from the Office of Hawaiian Affairs has enabled us to address this social disparity in significant and meaningful ways."

OHA Administrator Clyde Namuo said the settlement was announced before the Legislature began its session to allow people to comment on it.

In a written news release, Senate Judiciary Committee Chairman Brian Taniguchi and Sen. Jill Tokuda, chairwoman of the Senate's Committee on Agriculture and Hawaiian Affairs, said the bill would go on to the Ways and Means Committee to allow further comment.

"Our passing this bill out of committee is not meant as any indication that we find the proposed settlement complete or satisfactory," Tokuda said in the news release.

Tokuda said more input is needed from native Hawaiian beneficiaries of OHA to make sure the settlement is in their best interests.

More meetings on settlement

The Office of Hawaiian Affairs and the state Attorney General will hold community meetings to discuss the ceded lands settlement:

» Wednesday: at the Waimanalo Library from 7 to 9 p.m.
» Friday: at Pearl City High School from 7 to 9 p.m.
» Saturday: at Maili Elementary School from 7 to 9 p.m.
» Feb. 18: at OHA Kulana Oiwi offices on Molokai from 7 to 9 p.m.

More meetings are being planned. Information gathered in the meetings will be included in a report to the Legislature.

Visit OHA's Web site at www.oha.org/pastdue/ for updates. A "Halawai Punaewele" or electronic meeting is also planned over the Internet on Feb. 22 at the same Web address.


Honolulu Advertiser, Tuesday, February 12, 2008

Talks set on OHA settlement

Public meetings will be held beginning tomorrow to discuss terms and conditions of a proposed $200 million ceded lands settlement between the Office of Hawaiian Affairs and the state of Hawai'i.

The meetings are being held by OHA and the state attorney general.

The settlement, signed Jan. 17, addresses how much the Office of Hawaiian Affairs is owed by the state from revenues generated from public lands turned over to the United States by the Republic of Hawai'i in 1898.

The $200 million settlement calls for the transfer of three large parcels of land to the Office of Hawaiian Affairs, along with $13 million cash. Additionally, OHA would continue to receive $15.1 million annually from state coffers.

The settlement must be approved by the Legislature, and some lawmakers have expressed reservations about some of its terms.

Comments and recommended improvements to the settlement will be collected from the public meetings and included in a report to the Legislature.

The settlement requires that both the executive branch and the Office of Hawaiian Affairs agree to any changes proposed by the Legislature.

The meetings are all at 7 p.m., unless otherwise noted. They are:

Tomorrow, Waimanalo Public & School Library, 41-1320 Kalaniana'ole Highway; Friday, Pearl City High School; Saturday, Ma'ili Elementary School, 10 a.m.; and Monday, Kulana 'Oiwi on Moloka'i.


Honolulu Advertiser, Thursday, February 14, 2008

Proposed ceded land deal raises questions

By Eloise Aguiar
Advertiser Windward O'ahu Writer

WAIMANALO — At community meetings around the state, Native Hawaiians are raising questions about a proposed $200 million ceded lands settlement between the state and the Office of Hawaiian Affairs.

The state and OHA are trying to explain the package, which would end a long dispute over the lands. Eighty people attended the third meeting in the series last night and overflowed the meeting room at Waimanalo Public & School Library. Already, major concerns have surfaced, said Vicky Holt Takamine, president of 'Ilio'ulaokalani Coalition.

The group is hosting the community education meetings that cover the settlement and other legislation that affects Native Hawaiians.

People are concerned about whether the annual $15.1 million payment from the state will be enough and question why the community wasn't included in the negotiation process, Takamine said before last night's meeting.

The settlement addresses how much OHA is owed by the state from revenues generated from public lands that were turned over to the United States by the Republic of Hawai'i in 1898.

It calls for transferring an estimated $187 million in property and $13 million in cash to OHA. OHA would also continue to receive $15.1 million annually from the state.

The Legislature must approve the settlement, and any changes made must be approved by both the administration and OHA.

Lawmakers have raised their own questions about parts of the agreement.

Takamine said people want the annual sum to adjust to inflation; otherwise "as years go by $15.1 million in perpetuity is going to be 10 cents in the future. For us, 'in perpetuity' is not a good deal."


People also want to know if the settlement is final and what happens to the ceded land that once belonged to the Hawaiian monarchy. The settlement doesn't address ownership of ceded land, said Jonathan Scheuer, OHA director of land management.

"OHA trustees do not believe that they are the entity that could ever release the claim because it's part of the state," Scheuer said when explaining the settlement. "It would have to be a Native Hawaiian entity elected by Native Hawaiians."

About 50 people attended the first two hastily called meetings, in Kahuku and Kane'ohe.

The Waimanalo meeting attracted the young and elders who had a range of views.

Mable Spencer, a Waimanalo resident, said the settlement doesn't go far enough in addressing the bigger picture that includes self determination under a sovereign government for Native Hawaiians.

The public lands and their ownership must also be resolved, Spencer said, adding that military expansion in the Islands is taking too much of the land, leaving Native Hawaiians on the beach.

Nevertheless, Spencer said, she is glad that the state is moving ahead with the settlement and praised Gov. Linda Lingle for her support of Native Hawaiians.

"We're grateful to where we are at this point but it's peanuts considering the bigger picture," she said.


A Kailua resident said the state is being let off easy with the settlement. "It doesn't seem fair," Jackie Lasky said. "It seems like Hawaiians lose a lot more than the state loses."

Lucy Akau, also a Waimanalo resident and a member of Waimanalo Homestead Association, said too many people are trying to get involved with solving Hawaiian problems and they should leave it up to Hawaiians to settle it among themselves.

Akau said she supports the OHA settlement but the land issue remains a problem. As an example, Akau points to public land in Kapahulu that people want for parking, but that the state Board of Land and Natural Resources was considering turning into commercial space.

"Greedy people want land to make money but Hawaiians want land for the people to live on," she said. "The settlement should be settled for houses and helping people and I don't only mean Hawaiians."

The community meetings will be recorded and a report about them will go to the Legislature, Takamine said, adding that the agreement in the form of a bill can still be changed.

Takamine said it is a better settlement than one offered under Gov. Ben Cayetano.

"There was no definition of land and we got land(s) that are income-producing or potential economic development land that would supplement the $15.1 million that is on the table."


Honolulu Star-Bulletin, February 14, 2008

Ceded-lands session meets native distrust

By Leila Fujimori

About 100 Hawaiians from Waimanalo and elsewhere turned out last night to learn more or to voice their opinions about the proposed $200 million settlement of a 30-year dispute between the state and the Office of Hawaiian Affairs over ceded lands.

Kaui Sang, 38, of Waimanalo said she attended to be educated on what the settlement encompasses and what OHA might have had to forgo, including the right to sue the state.

She fears that OHA might be "giving up too much" and that it could affect how OHA takes care of native Hawaiians.

Last night's meeting at Waimanalo Public Library was the first of several community meetings scheduled by OHA and the state Attorney General to explain the terms and conditions of the settlement and to gather comments and recommended improvements, which will be reported to the Legislature.

The settlement, signed Jan. 17, would include turning over to OHA state land along Kewalo Basin and at Kalaeloa on Oahu and along Banyan Drive in Hilo -- valued at about $187 million. The agreement also would give OHA $13 million now and a guaranteed $15 million annually.

An OHA representative explained the 30-year history of the dispute and that in the proposed settlement OHA gives up its right to sue for past-due amounts of income and proceeds of the public land trust from Nov. 7, 1978, to July 1, 2008.

It also gives up its right to sue for future payments in any year the Legislature does not pay at least $15.1 million. However, it does not release claims to the ownership of ceded lands, which are former monarchy lands that the state took over.

Sandra Clarke, who lives on the beach in Waimanalo, said, "I'm surprised to think that the same land that was ours, we're buying it."

Many native Hawaiians at last night's meeting expressed distrust of the state and Office of Hawaiian Affairs in their settlement agreement.

Others felt left out of the process.

Dexter Kaiama, 48, of Kailua said of the settlement, "What it is is a done deal. The deal is struck." He thought it unlikely that any input could be made into the terms of the settlement.

He called for a moratorium on the settlement proposal until the terms could properly be explained. He said there was "no prior input by the community, and a lack of transparency. Is that in keeping with the obligation of the state and OHA trustees to the native Hawaiians?

"It's an infomercial; it's OHA's attempt to inform the community to a settlement that they've already agreed to."

Orrin Kupau said, "OHA has not effectively rounded up the populace. You need the community helping you here today."

The dispute goes back to 1978 when Hawaii voters approved changes to the state Constitution that included the creation of OHA and required the state to give OHA revenues from ceded lands.


Honolulu Advertiser, Friday, February 15, 2008

Ceded land bill clears two hurdles

By Gordon Y.K. Pang

Two key state Senate committees yesterday advanced a plan to settle a dispute over ceded land revenues that would have the state give $200 million in land and cash to the Office of Hawaiian Affairs.

But it remained clear that the plan, or some version of a settlement, is still an iffy proposition at the state Capitol, where lawmakers must sign off on any settlement.

The Senate Agriculture and Hawaiian Affairs Committee and the Water and Land Committee voted unanimously to approve Senate Bill 2733. The Senate Judiciary Committee also approved the same bill on Wednesday.

The measure now goes before the full Senate for another vote before moving to the Senate Ways and Means Committee.

Three of the five votes in the Hawaiian Affairs committee, however, were cast with reservations. A sixth member of the Hawaiian Affairs committee who was not present for the meeting said he would have voted against the bill.

"I think the vote really reflects how difficult this issue is and how conflicted many of us feel," said Agriculture and Hawaiian Affairs Chairwoman Jill Tokuda, D-24th (Kailua, Kane'ohe). "I voted without reservations, but ... by moving this bill forward, it in no way means that the bill is complete or satisfactory. There's still a lot of work to be done."

The measure calls for three large parcels of land to be transferred by the state along with $13 million cash. The lands are in Kaka'ako and Kalaeloa on O'ahu, and in Hilo on the Big Island. Additionally, the state would give OHA an annual payment of $15 million for revenues derived from ceded lands — the same amount that has been paid annually for the last several years.

The three committee votes came after a public hearing on the bill last Saturday that lasted more than five hours and had more than 200 people offer spoken or written testimony. Tokuda estimated that slightly more of the spoken testimony was in favor of the bill, while slightly more of the written testimony was against it.

Senators yesterday urged OHA to gather as much as input as possible from the public on the proposal. OHA and other Hawaiian groups began a statewide series of such meetings on Monday.

Water and Land Committee Chairman Clayton Hee, D-23rd (Kane'ohe, Kahuku), who was among those who voted with reservations yesterday, said he believes the proposal reflects too much the wishes of state Attorney General Mark Bennett rather than those of Native Hawaiians.

"Hopefully, the Office of Hawaiian Affairs can get community discussions where they can gain a greater appreciation for the views of the native people as opposed to the Office of the Attorney General," said Hee, a former OHA member.

Sen. Sam Slom, R-8th (Kahala, Hawai'i Kai), said he was voting with "the strongest of ultra-extremist reservations" adding that he was asked to vote in favor of the bill "to keep the dialogue going."

Slom, a critic of OHA, said he found it most disconcerting that "too many were not invited to the table (and) were not taken into consideration."

Sen. J. Kalani English, D-6th (E. Maui, Moloka'i, Lana'i), who is on Tokuda's committee but was not present for the ceded lands bill vote because he was at another committee meeting, said he probably would have voted against the bill. English said neither the amount of lands nor the annual payment is enough to settle the ills the agreement is supposed to rectify.

"As a legislator, looking at it from a state perspective, for the state this is a very good deal," English said. "But when I put on my Native Hawaiian hat, I don't feel that this does justice to this issue for the time period because there has been immense suffering (on the part of Hawaiians) during that time, there's been immense hardship during that time."

English and Hee are the only senators of Hawaiian ancestry.

The House Democratic leadership has yet to hold a hearing on the bill. A hearing originally scheduled for earlier this month was later canceled. House leaders, however, appeared to be a little more receptive to the bill yesterday than their Senate counterparts.

House Majority Leader Kirk Caldwell, D-24th (Manoa), said "the general consensus is (the terms of the bill) appear to be fair and reasonable."

That said, however, House Democrats were told to go back and listen to what constituents had to say. House members are also waiting to see how the Senate proceedings and OHA hearings go.

House Speaker Calvin Say, D-20th (St. Louis Hts., Palolo, Wilhelmina Rise), said that he agrees in principle with most of the major terms of the settlement, including the three parcels. But like Hee and English, Say said he wants to amend the annual payment to reflect a non-fixed amount tied to some sort of inflationary index.

He said he also wants to take a closer look at the language of the bill, some of which he views as problematic.


Honolulu Advertiser, Sunday, February 17, 2008


Some see ceded-lands deal as unfair

Each week Editorial and Opinion Editor Jeanne Mariani-Belding hosts The Hot Seat, our opinion-page blog that brings in elected leaders and people in the news and lets you ask the questions during a live online chat. On The Hot Seat last week were state Attorney General Mark Bennett and state Office of Hawaiian Affairs Administrator Clyde Namu'o. They discussed the new ceded-lands settlement with our readers. Here is an excerpt from that Hot Seat session. To see the full conversation, go to The Hot Seat blog at www.honoluluadvertiser.com/opinion and click on "The Hot Seat." (Names of questioners are screen names given during our online chat.)

Caroline P.: I read about this settlement, and then I saw the Office of Hawaiian Affairs ads in the paper saying this is not a complete settlement. What is it then? Will taxpayers have to pay more? And how does the state justify this settlement, given competing needs like education, transportation, etc.?

Mark Bennett: This finally settles this one issue: OHA's share of the income and proceeds from the ceded lands. OHA will continue to receive money in the future, as provided in the settlement. I justify this as it is fair, reasonable, and, as importantly, payments by the state to OHA of a portion of the income and proceeds from the ceded lands is absolutely required by our state Constitution.

John: Does the proposed settlement the state is offering between OHA and the Hawaiian people exempt OHA or any other Hawaiian group from getting other land or settlements from the state?

Bennett: The settlement bars any other payments due in the past to OHA for the income and proceeds from the ceded lands. And the only payments due in the future are at least $15.1 million per year — per the terms of the settlement. This is a very important and long-lived issue, but is the only issue resolved in this settlement.

Ken Conklin: This "settlement" actually settles nothing, because the Office of Hawaiian Affairs will continue to demand ceded-land revenues forever and will sue when it doesn't get as much as it wants. This transfer of lands and money is one more slice taken out of the state in the death of a thousand cuts. Notice that the only question seems to be whether ethnic Hawaiians will go along with this deal, and nobody seems to give one flying leap whether the general population of Hawai'i wants to keep forking over money, land and jurisdictional authority to a race-based agency. Our attorney general and governor are co-conspirators with the Office of Hawaiian Affairs against the 80 percent of Hawai'i's people who lack a drop of native blood — not only on this so-called "settlement" but also on the Akaka bill to create a race-based government and break apart the state of Hawai'i.

Bennett: Your statement that this settles nothing is simply false. It absolutely and finally settles a 30-year dispute over an obligation in Hawai'i's Constitution. You have an absolute right to express your disagreement with the settlement and the Akaka bill. Your expressions of opinion, however, are just that — opinions and not facts.

Namu'o: We believe that the settlement represents a significant step forward for the state of Hawai'i and OHA. Our claim to income and proceeds from the Public Land Trust is clearly established in the state Constitution. We believe that the settlement is fair and just, and look forward to legislative approval. Finally, we believe what is good for Hawaiians is good for all citizens of the state of Hawai'i.

Ken Conklin: Clyde Namu'o repeated the mantra so often spoken by Linda Lingle: "What is good for Hawaiians is good for all citizens of the state of Hawai'i." I think you got that backwards. What we all should understand is that what is good for the state of Hawai'i is good for (ethnic) Hawaiians. The whole is far more important than any of its individual parts — unless you think there's one particular part that is more important than all the rest put together. Shame on Lingle and Bennett for thinking that way. It's understandable that Clyde Namu'o thinks that way because he claims to speak on behalf of the highly favored race that asserts special rights not available to anyone else.

Bennett: You want the state to ignore the requirements of our state laws and state Constitution (both of which I have taken an oath to defend) because you believe that they are in conflict with the United States Constitution, or perhaps because they are in conflict with your view of what the law ought to be. No court has, for example, ever ruled that the constitutional provisions, which require payments to OHA of income and proceeds from the ceded lands, violate the Constitution of the United States in any way. And while you are free to express your opinion as to what the law ought to be, it is the actual laws that control, and not the views of any particular citizen or group of citizens. I believe Hawai'i's Constitution and laws dealing with income and proceeds from the ceded lands are fully consistent with the United States Constitution, and I will continue to abide by my oath to support and defend them.

Roy: Will the Office of Hawaiian Affairs use any of the money or land from the agreement between the state and OHA for the use of affordable housing or for the homeless Hawaiian people?

Namu'o: In 2007, the Office of Hawaiian Affairs provided a grant of $1 million to help the homeless on the Leeward Coast of O'ahu. Providing housing solutions continues to be part of our strategic plan. We are near completion of an OHA Housing Plan that will provide us further guidance in terms of how the Office of Hawaiian Affairs may be effective in creating these housing solutions. The challenge that the trustees face is having a large mission and limited resources. Mahalo for your question.

H. William Burgess: According to the U.S. Supreme Court and the 9th Circuit (U.S. Court of Appeals), the 1.2 million acres in the ceded-lands trust) sometimes referred to as the sec. 5(f) trust are to benefit all the people of Hawai'i, not simply Native Hawaiians. As you know, Mark, the state, as trustee of the ceded-lands trust, has a duty of impartiality and a duty not to comply with illegal trust terms. That means the state has a fiduciary duty to use the income and proceeds as much for every non-Hawai'i citizen as for every Native Hawaiian and Hawaiian citizen. But for the last 27 years, the state has been distributing 20 percent of revenues (before payment of trust expenses) to OHA exclusively for Native Hawaiians. The total is more than $400 million. Yet no revenues have been distributed exclusively for non-Hawaiian beneficiaries, who make up 95 percent of the beneficiaries. To me, that suggests the state has short-changed non-Hawaiians by massive amounts. Will you please explain how the state can justify such a massive giveaway exclusively for a chosen few and no distribution at all to the rest of the beneficiaries?

Bennett: The Admission Act specifically provides that the state shall use the income and proceeds from the ceded lands "for one or more of the foregoing purposes" which include "for the betterment of the conditions of native Hawaiians." Before 1978, most proceeds were used for public education. Since then, a part of the income and proceeds have gone to OHA to benefit native Hawaiians, as required by Article XII of our Constitution, and the remainder, more than 80 percent, has gone for the other public purposes specified in the Admission Act. This is both in conformity with the Admission Act, and in compliance with Hawai'i's Constitution. We are entering into this settlement to fulfill our state constitutional obligation, and because the settlement is fair, reasonable and just.

Burgess: In answer to my question, you said: "Since then a part of the income and proceeds have gone to OHA to benefit native Hawaiians, as required by Article XII of our Constitution, and the remainder, more than 80 percent, has gone for the other public purposes specified in the Admission Act." Native Hawaiians benefit fully from other expenditures for roads, infrastructure, etc., in addition to the cash distributions to them. My question is why has the state not distributed cash exclusively for non-Hawaiians? How do you explain such lopsided cash distributions: $400 million to Native Hawaiians; zero for everyone else?

Bennett: I know you know precisely what Hawai'i's Constitution and laws say. Our Constitution provides specifically for payments to OHA for one of the Admission Act's five purposes.

The Admission Act states:

"The lands granted to the State of Hawai'i by subsection (b) of this section and public lands retained by the United States under subsections (c) and (d) and later conveyed to the State under subsection (e), together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use. Such lands, proceeds and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the Constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States. The schools and other educational institutions supported, in whole or in part out of such public trust shall forever remain under the exclusive control of said State; and no part of the proceeds or income from the lands granted under this Act shall be used for the support of any sectarian or denominational school, college or university."

I believe our system fully complies with the Admission Act.

100Shibai: Some legislators and some opponents of the OHA-state settlement complain that they were not consulted or included as parties in the negotiations. Is that a reasonable expectation to lay on OHA trustees and the state? At this stage, what is the proper role for the Legislature and the community regarding this settlement, from your point of view?

Bennett: The settlement was between the Office of Hawaiian Affairs and the state. Those were the only individuals who could actually participate in the settlement negotiations themselves. The state and OHA, for the years of the negotiation, have periodically informed the Legislature of the process and the goal of a complete settlement. When we worked out a partial plan in 2006, that required legislative approval — that we obtained — we told the Legislature in public hearings that we were continuing to negotiate a complete and final resolution of the issue. I believe the public have an absolute right to weigh in, and should weigh in, and the Legislature has to decide if this is the right thing for Hawai'i. But as to the Legislature, the Legislature has had the ability, since 1978, to come up with its own complete resolution of this issue, on its own, as the state Constitution provides, and it has not done so. It has allowed the Waihee, Cayetano and Lingle administrations to negotiate and then present something to the Legislature for consideration. We hope that the Legislature will agree with us that this settlement is fair, reasonable and in the best interests of our state.

Bill Punini Prescott: Ceded and held "in trust" are terms used as if they were synonymous. Ceded means to give up, and wasn't it because the U.S. paid off a huge debt incurred by the monarchy? Ceded lands were the one-third of all lands the king kept for himself. One-third went to the people, the other third to the chiefs. The people and chiefs were not bound to sell their portions to Hawaiians only. The king's third was to have benefited the citizens of Hawai'i was it not?

Namu'o: In 1898, after the illegal overthrow of the Kingdom of Hawai'i, the Republic of Hawai'i ceded the former crown and government lands to the United States. These lands were taken from the Kingdom of Hawai'i without consent from, or compensation to, the Hawaiian people.

Kalei: Why is OHA accepting nonceded lands as part of the settlement? Don't they want to get the kingdom lands back? Namu'o: The state had a hand in selecting the parcels that would provide OHA the back due revenue. In OHA's land policy, our mission includes protecting and preserving our lands and their cultural significance, and having financially viable property involvements. We believe the settlement parcels, ceded and nonceded, will balance our portfolio that includes Waimea Valley on O'ahu's North Shore and the Wao Kele O Puna rainforest on Hawai'i island. Roy: Will OHA and the Bishop Estate ever get together and come up with a plan to help the Hawaiian people? With the combined influence and money of the two, it could really help out the Hawaiians.

Namu'o: OHA partners with Kamehameha Schools in providing additional resources to Hawaiian-focused charter schools. For the last three years, OHA has appropriated $2.2 million annually in this regard. We will continue to work closely with Kamehameha Schools in identifying other partnership opportunities. Moreover, we also work with other Hawaiian groups such as the Queen Lili'uokalani Children's Center, state Department of Hawaiian Home Lands, Alu Like and other Hawaiian-focused entities to coordinate our efforts to better the conditions of Native Hawaiians.


Zero Shibai blog, cartoon entry for February 17, 2008

Season One Available Now; Season Two On Sale Later This Year
Hawaii's Favorite Show Comes to DVD;
Both Seasons Will Cost You a Fortune


Honolulu Advertiser, February 21, 2008

Public gets say on ceded lands

Three committees of the state House of Representatives will collect testimony from the public Saturday on its newly released version of a proposed settlement of disputed land revenue claims by the Office of Hawaiian Affairs against the state.

House Bill 266 keeps intact the bulk of the landmark settlement reached last month between OHA officials and Attorney General Mark Bennett, specifically a package of four parcels of state land valued at $187 million and a one-time cash payment of $13 million.

A key change is that it negates the proposed future annual payments of $15.1 million to OHA, as called for in the OHA-Bennett version and which has been criticized by many because it makes no allowances for inflationary factors. Instead, the House bill calls for an undefined pro rata share.

Saturday's 9 a.m. hearing at the state Capitol auditorium is being held jointly by three House committees: Finance, Judiciary and the Water, Land, Ocean Resources and Hawaiian Affairs.

While state lawmakers must agree to any deal, OHA and state administration officials also have the authority to nullify the settlement if it is amended in any way.

Yesterday, Bennett and OHA Administrator Clyde Namu'o each said they are willing to take a look at the proposed changes to the settlement agreement.

"The deal itself, from the House perspective, seems to be a fair agreement and I think we can work on the language and form issues," Bennett said. "There are some differences ... things we and OHA are going to talk about."

Namu'o said that OHA will support the House bill, but will offer amendments to it. "The bill keeps the $200 million intact but there are some of the technical issues that we are asking be changed," he said.

Namu'o declined to give the specifics of the proposed amendments, adding that OHA attorneys were expected to complete their analysis of the House bill today.

The agreement, which has been under negotiation for more than a decade, is aimed at settling how much OHA is owed by the state from revenues generated from public lands turned over to the United States by the Republic of Hawai'i in 1898.

House Bill 266 House Draft 1 appears to agree with most of the major points in the OHA-Bennett proposal, particularly leaving whole the $200 million for the years 1978 to 2008.

Its key difference is that it allows for the Legislature to decide annually how much should be distributed to OHA for its share of ceded land revenues in future years. If a decision can't be made by the Legislature, the amount is left up to the governor to decide.

House leaders were not available yesterday afternoon to explain their version of the settlement agreement. Last week, Speaker Calvin Say, D-20th (St. Louis Heights, Palolo, Wilhelmina Rise), and Majority Leader Kirk Caldwell, D-24th (Manoa), said they generally supported the original proposal.

Native Hawaiian sovereignty activist Ikaika Hussey said most of those in the activist community that he's spoken to are opposed to the original OHA-Bennett proposal.

"Our basic concern is you don't want to see anything happen in the Legislature which jeopardizes the right of future generations to achieve self-determination," Hussey said. "I would say that the (original) bill would hinder those possibilities because it would force a global settlement."

Hussey also noted that the original proposal "would bind the hands of all parties, including OHA, from future lawsuits involving any claims that took place within those 30 years."

Hussey said the House bill attempts to address that issue.

Bennett, however, said the original agreement should not be considered a global settlement.

"The bill that we had asked them to introduce ... only deals with one issue and that is the issue of OHA's entitlement under Chapter 12 of the (Hawai'i) constitution to income and proceeds from the ceded lands. It settles no other issue."

On a related note, Native Hawaiians and the public will get two more opportunities before Saturday's hearing to learn about the bill.

OHA is holding an Internet discussion on the proposed settlement from 9 to 11 a.m. tomorrow. Go to www.oha.org/pastdue/index.php for more information.

Meanwhile, a coalition of Native Hawaiian rights groups will hold a panel discussion at 6:30 p.m. tomorrow at the Kamakakuokalani Center for Hawaiian Studies at the University of Hawai'i-Manoa titled "Why the OHA settlement is a bad deal."

It will feature Hussey, who belongs to the group Hui Pu, and Jonathan Osorio, the director of the UH Hawaiian Studies center.

Correction: A proposed settlement agreement between the state and the Office of Hawaiian Affairs would resolve a dispute over the agency’s share of the revenues collected over the past 30 years from lands “ceded” to the state. A previous version of this story incorrectly characterized the disagreement.


On Saturday February 23 a hearing was held in the Hawaii HOuse of Representatives by three committees meeting in joint session.


COMMITTEE ON JUDICIARY Rep. Tommy Waters, Chair Rep. Blake K. Oshiro, Vice Chair

COMMITTEE ON FINANCE Rep. Marcus R. Oshiro, Chair Rep. Marilyn B. Lee, Vice Chair

Three pdf files contain the full text of the modified bill's language, plus all written testimony.

1. 44 MB, 92 pages. The first 50 pages are the testimony of AG Bennett, testimony of OHA, and the entire text of the bill. The remaining pages are all the written testimony that was submitted on time and for the possibility of giving oral testimony.

2. 11 MB, 30 pages. Testimony submitted late and with the possibility of giving oral testimony.

3. 67 MB, 207 pages. Testimony submitted only for the written record, waiving any personal appearance for oral testimony. Note that all this testimony is in favor of the bill; some was sent to OHA which in turn forwarded it to the Legislature; and many testimonies are extremely brief and contain nearly identical language thus corroborating evidence of an OHA-sponsored standardized letter which grant recipients were expected to submit.


Honolulu Advertiser, Sunday, February 24, 2008

Decision near for new ceded land deal

By Will Hoover

A trio of state House committees yesterday wrestled with an 11th-hour version of a proposed settlement of ceded land claims by the Office of Hawaiian Affairs against the state.

The new House Bill 266 would revise an agreement reached last month by the Office of Hawaiian Affairs and Attorney General Mark Bennett in the emotional issue which has vexed the state for decades, although fundamental aspects would essentially remain the same. Still in place would be a package of four parcels of state lands said to be worth $187 million, as well as a one-time cash payment of $13 million.

The new bill differs from the draft introduced by the Lingle administration in a couple of substantial ways. For instance, instead of fixing the amount of annual funds distributed to OHA for its share of ceded land revenues at $15.1 million, HB 266 allows the Legislature to adjust the figure over time.

"We wrote it as a formula that would adjust, given the revenue income that came in," explained Majority Leader Kirk Caldwell. "As a portion of the whole, that amount should grow over time."

Also, HB 266 gets away from the word "settlement," used in the earlier version, which cast that bill into the legal arena, according to OHA board counsel Robert Klein — leaving the state and OHA subject to potential lawsuits. That prospect is effectively eliminated by the wording of HB 266, which doesn't include the term settlement, but still ends up honoring the terms and conditions of the agreement reached by the state and OHA, Klein said.

"The bill that they have is not a settlement," he said. "It's just another legislative act."

Regardless of the wording, what could be finalized by the legislation is the decades-long dispute about how much OHA should receive for revenues derived on ceded lands and how the process should be implemented.


The so-called ceded lands are those that once supported the Hawaiian Monarchy and government before the overthrow in 1893. Those lands were subsequently ceded to the U.S. government until statehood in 1959, when 1.4 million acres were transferred from the federal government to America's newest state to be held in trust.

While a portion of the money generated by the lands was supposed to go to "the betterment of Native Hawaiians," none of the revenues were directly used for that purpose. OHA was thus created at the 1978 Constitutional Convention to correct the situation. A plan was ratified by Hawai'i voters by which the Legislature would allocate a share of ceded land revenues to go to OHA for the Hawaiian people.

Since that time, because of an ambiguously worded law, OHA and the state have been in dispute over OHA's share. Attorney General Bennett told the joint committees — Finance, Judiciary, and Water, Land, Ocean Resources and Hawaiian Affairs — that the legislation before them is a chance to finally end the conflict.

"This has been a history of missed opportunities," he said. "One of the reasons we settled this dispute and presented it to the Legislature was so that our successors in five, or 10 or 30 years will not look back on 2008 and say, 'There went one more in a long line of missed opportunities.' "

Although those who favored the new measure outnumbered those in opposition, several who spoke in support took the opportunity to lambaste those involved in the settlement process. Former OHA trustee Mililani Trask thanked the House members for the measure and praised HB 266 as a "legislative policy recommendation and not a settlement that waives Hawaiian rights to the trust."

But she went on to question the value and revenue potential of the settlement lands, called for a fiscal and management audit of OHA, and urged that all lands and revenues referred to in HB 266 be placed in receivership or escrow until such audits are completed.


Former OHA trustee Moanikeala Akaka, who also supported HB 266 and agreed with Trask about the lack of OHA accountability, wanted to know how the approximately $200 million settlement figure was decided upon.

Based on past agreements and formulas reached between the state and OHA, she said, "It baffles me that the value figure owed us Hawaiians went from $1.2 billion in 1996 to $200 million in 2008."

However, William Burgess, who opposed the measure, said ceded land revenues are intended to be for everyone, not just for the minority of Hawaiians, and asked the committee, "Where is the pro rata portion for all the rest of us?"

By his calculations, the unpaid sum owed the majority totals $7.6 billion.

And activist Leon Siu, a Hawaiian Kingdom National, opposed the legislation by calling it the latest insult in 115 years since the Hawaiian lands were stolen and the spoils of the theft "were passed down to ensuing puppet governments ... a smoke screen to justify the fact that this was ill-gotten, stolen, property."

Still, Caldwell said the potential for a history-making outcome is better now than it's been since OHA was created in 1978.

"There's opportunity here," he said. "I'm very hopeful. This is as good as it's ever been. Right now, the discussion is good. There's emotion behind it, but it's not name-calling and shouting."

A decision on the legislation will be reached this week.


Honolulu Advertiser, Monday February 25, 2008, Letter to editor


It is just so difficult to believe that Attorney General Mark Bennett ("Some see ceded-lands deal as unfair," Feb. 17) has struck such a great settlement deal with OHA that we all should be grateful it wasn't more.

It doesn't take much of an experienced negotiator to make a deal where we, the taxpayers, pay $187 million worth of prime real estate that is highly undervalued by any stretch of the imagination over a questionable debt.

The fact that Bennett repeats over and over again that this is payment for a single issue only, those of ceded-lands payments, creates the question: How much else is owed, and will the state have the same lack of negotiating skills for settlement of these future issues?

The Hawai'i Supreme Court recently ruled that the state must settle the ceded-lands dispute with OHA before any sale or transfers of ceded lands.

With the negotiating skills just demonstrated by our AG and given his bias in favor of the Akaka bill and Hawaiian sovereignty, the so-called non-Hawaiians will be lucky if he doesn't end up giving up the entire state. Or is that the plan B?

Garry P. Smith
'Ewa Beach


Related: http://www.hawaiitribune-herald.com/articles/2008/02/26/local_news/local01.txt
Hawaii Tribune-Herals, Tuesday February 26, 2008

OHA land deal draws angry crowd
Protesters at ceded land hearing say state is trying to cheat them out of their future

by Jason Armstrong

A proposed $200 million state settlement to resolve revenue claims from ceded lands was harshly criticized by Native Hawaiians who attended a public hearing on the pending deal Monday night in Hilo.

Aole, or never, is what several of the approximately 75 audience members said about the proposed cash-and-land agreement the Gov. Linda Lingle administration has negotiated with the state Office of Hawaiian Affairs.

Most of their objections centered around the value of the 209 acres of Oahu and Hawaii Island property, including 80 acres on Hilo's Banyan Drive, and the waiver of future lawsuits.

Angry shouting started soon after the crafters of the potential deal explained their proposal to end a 30-year battle over money earned from the public and private use of 1.8 million acres. The former sovereign lands were ceded to the U.S. government following the 1898 overthrow of the Hawaiian monarchy.

Former OHA Trustee Mililani Trask demanded proof that the land offered to OHA is actually worth the reported $187 million. "The Legislature's deciding on this this week. Give us this data," Trask said of the deal that would include a one-time payment of slightly more than $13 million. She and others said they won't agree not to sue to obtain future payments. Under the proposed deal, those legal claims would be barred if the state Legislature pays OHA at least $15.1 million in yearly revenues from the use of the former Kingdom of Hawaii lands.

"That's the agreement we negotiated," Attorney General Mark Bennett said. That didn't please Trask, who called the pending deal a "travesty." "We are not about to accept this waiver," she said.

Trask's outbursts prompted others to express their anger toward Bennett and OHA trustees, some of whom spent nearly five years negotiating a settlement to end the dispute. A few objectors held signs opposing the settlement, which is now in the hands of the Legislature.

"This is disgusting. My kids over here, you're ripping them off for their future," Edwin Miranda said. He suggested Native Hawaiians will never receive the money they're legally due. "There's no honor in the way you guys deal anymore," Miranda added.

The comments, which regressed into an audience debate over the use of profanity and decorum, even got the attention of a uniformed police officer who attended the standing-room-only hearing at the Queen Liliuokalani Children's Center.

"You're going to have peaceful Hawaiians ready to bust heads," added one sign-holding man, who declined to give his name to the Tribune-Herald.

Bennett said the state hired a private consultant to value the property in Hilo, along with 18.5 acres of commercial, waterfront land in Kakaako and 110 acres of industrial land in Kalaeloa, both located on Oahu. The consultant determined the tax-assessed value represented the fair market value of the properties, he said.

OHA accepted the tax values, which typically are 30 percent less than what properties could be sold for, OHA Trustee Robert Lindsey Jr. said. "We did not get an appraisal," he told the audience. That comment drew angry responses. "We want 100 percent of this money. You guys using us Hawaiians," one man shouted back.

Former OHA Trustee Moanaikeala Akaka, who helped negotiate the first ceded lands settlement in 1990 that called for OHA to receive 20 percent of the money the lands generate, called the new deal a "theft." "What is the maximum?" she asked of future payments that would be at least $15.1 million annually under a Senate version of the proposed settlement. "You guys don't tell us that, so there's a lot of concern that we're being cheated."

Before leaving to catch a return flight to Honolulu, Bennett responded that 20 percent of the revenue from the lands proposed for OHA ownership comes out to about $12 million yearly. Boosting that to at least $15.1 million would represent a 25 percent increase in cash payments, he said.

Puna Councilwoman Emily Naeole, who joined state lawmakers in attending, shouted in Bennett's face, telling him that Hawaiians cannot agree not to sue in the future. "We Hawaiians are loving people, but we got to act like this because of what we got to go through," said Naeole, a Native Hawaiian homesteader.

The Naniloa Volcanoes Resort, one of the properties slated to change from state ownership to OHA, is now leased by Ken Fujiyama, who said it represents 82 percent of the Hilo property proposed for exchange. Fujiyama suggested the combined six Banyan Drive properties, excluding the privately owned hotels built on them, are worth about $10 million. "From a land-value standpoint, it's hard for me to comprehend (the state-assigned value of) $34 million," he said.

If the deal goes through, OHA will take over administering the Banyan Drive leases, said Jonathan Scheuer, OHA land management director.

Bennett said anyone with questions can e-mail him at mark.j.bennett@hawaii.gov for answers.

Copies of the proposed settlement are available at


Honolulu Advertiser, Wednesday, February 27, 2008

New ceded lands bill offers viable solution

The state House has made reasonable changes to legislation enabling the state to give Native Hawaiians a share of revenues from ceded lands — meeting its constitutional obligations.

HB 266, which faces a critical vote today, deserves to pass. It essentially endorses the agreement struck between the Lingle administration and the Office of Hawaiian Affairs. That deal conveys certain parcels of land to the trust held for Native Hawaiians and sets an annual $15.1 million cash payment to the trust.

Discussion of virtually any aspect of ceded lands — property formerly owned by the Hawaiian kingdom and conveyed to the U.S. upon the annexation of Hawai'i — inevitably causes upheaval. This time, the talks concerned the state's commitment to dedicate some of the money made from ceded lands to Native Hawaiians, a commitment contained both in the federal Admissions Act and in the state Constitution.

The agreement is intended to close the books on ceded land revenue payments the state did not convey to OHA for years, when legal challenges over the payments shut off the cash-flow pipeline.

Democratic leaders in the House believe that the original bill needed amending in two key ways:

Language changes that affirm the state's sovereign immunity against lawsuits that could arise over the share set aside for the Native Hawaiian trust.

A requirement that lawmakers revisit the deal every two years and recalculate the OHA share based on current revenues from ceded lands. The bill asserts the legislative intent that $15.1 million represents a minimum payment, but gives lawmakers the flexibility they need if unforeseen circumstances demand adjustments. Both of these changes make practical sense; they set the deal on a solid footing, while allowing open discussion on the issue in future years.

This will not please those with broad, longstanding objections: Hawaiians who don't recognize OHA as authorized to negotiate for them and those who think Hawaiians are owed nothing at all.

But for those who prefer a thoughtful compromise to more years of bickering in the courts — well, they should be pleased.


Honolulu Weekly [a leftwing "alternative" newpaper distributed free of charge through newsboxes on O'ahu]
February 27, 2008
Cover Story

The Final Coup

A proposed ceded lands payback agreement signed Jan. 17 between the state and Office of Hawaiian Affairs (OHA) has triggered an impassioned public debate over what lands actually belong to Native Hawaiians and what form their self-government may take.

At the crux of the matter is the rightful ownership of some 1.8 million acres of the Hawaiian Kingdom public lands— comprising an estimated 40 percent of Hawai'i's total land mass and 95 percent of all acreage under state control — and who should determine how they are used. The agreement, originally called a settlement and now incorporated into House Bill 266, would give OHA $200 million in land and cash as back-due payment from ceded lands income and a to-be-determined share of future revenues.

The state/OHA deal was followed two weeks later by a Hawai'i Supreme Court ruling that bars the state from selling any of the "ceded lands" until the question of their ownership is resolved.

Whether the Hawaiian nation and its territory will be determined through international law, independence or the Akaka Bill, which would establish a nation-within-a-nation under federal jurisdiction on the Native Americans model, is a hot topic. The Akaka Bill has been endorsed by Gov. Linda Lingle, Attorney General Mark Bennett, presidential hopefuls Sen. Barack Obama and Sen. Hillary Clinton, and OHA, itself a state agency.

Raw deal

Groups seeking Hawaiian independence fear that the current proposed agreement is effectively positioning OHA to assume the role of a native governing entity as envisioned by the Akaka bill.

While some OHA trustees and the attorneys who negotiated the deal on the agency's behalf are touting the settlement as a good deal for Hawaiians, independence advocates view the entire process as a sham, saying neither the state nor OHA has legal jurisdiction over the ceded lands.

"It's just perpetuating a fraud," said Dr. Kekuni Blaisdell, a member of the Kanaka Maoli Tribunal Komike, which wants to see Hawaii returned to the United Nation's list of non-self-governing territories eligible for de-colonization. Hawai'i was placed on the list in 1946 and removed following the vote for statehood — a vote the group believes was conducted illegally because the option of independence was not on the ballot.

"It's giving the fraud some degree of respectability it doesn't deserve," Blaisdell said of the agreement. "What is needed is revelation of the truth."

Unceded lands

The truth is that the lands in question, while often referred to as "ceded," were actually seized from the Kingdom of Hawai'i during the 1893 overthrow of the monarchy. One hundred years later, the U.S. Congress deemed that action unlawful when it approved the "Apology Resolution."

"Our land was taken at the point of a gun and now the Hawaiians are begging and suing day in and day out to get what is rightfully ours," said Naliko Markel, a minister with the Reinstated Hawaiian Kingdom.

In 1898, the Republic of Hawai'i — led by those who masterminded the coup — "ceded" control of 1.8 million acres of Kingdom lands to the U.S. government and sold the rest to private parties.

"Ceded lands are stolen lands and therefore they have to be returned to their rightful owners," Blaisdell said. "And the rightful owners are not the federal government, the state or OHA. It's the people who are descendants of the subjects of the Hawaiian queen."

1959: State all in with Hawaiian lands

When Congress adopted the 1959 Admissions Act, which brought Hawai'i into the union, it kept 400,000 acres of "ceded lands" for military bases, national parks and other federal uses and put the rest into the Public Land Trust, which was turned over to the newly formed State of Hawai'i.

In the years since statehood, these trust lands have been developed for the Hilo and Honolulu international airports, Maui's Kahului Harbor, Sand Island, hotels, hospitals, affordable housing, golf courses, parks at Kapiolani and Ala Moana, the University of Hawaii, community colleges and other uses. Additional lands were sold, exchanged, leased or transferred to the counties or other government entities.

The Admissions Act mandated that the state use revenues from the trust to improve conditions for Native Hawaiians, develop farms and home ownership opportunities, and support public education and other public uses. However, revenue from the trust was used primarily for public education up until 1978, when the Constitutional Convention proposed creating OHA specifically to receive and manage trust revenues for the benefit of Hawaiians, according to the agency's website.

1978: OHA's hand

Hawai'i voters ratified that plan in 1978, and two years later the state Legislature passed Act 273, which directed 20 percent of all "funds" from trust lands to OHA, while failing to define just what the term "funds" encompassed. Blaisdell contends that the payment issue has been further complicated because OHA was supposed to conduct a full inventory of "ceded lands," but never did.

Since OHA's inception, it has been in litigation with the state over both the source and definition of these funds, most notably revenues from Hilo Hospital, state affordable housing and duty free shops at the Honolulu Airport.

The State Supreme Court said that before OHA could sue on the issue of funds, it had to go back to the Legislature to clarify the claims; this prompted the negotiations leading to the proposed settlement agreement, according to Jonathan Likeke Scheuer, OHA's land management director.

Disputed terms

The agreement, which must be ratified by the state Legislature, seeks to settle those long-contested revenue claims by awarding OHA commercial and industrial properties on Oahu and the Big Island with an assessed value of $187 million and $13 million in cash. The properties comprise a potrtion of Kaka'ako Makai, including Kewalo Basin waterfront and the site of the John Dominis Restaurant; Kalaeloa Makai, site of the former Campbell feedlot, which has the highest solar energy potential on O'ahu; and Hilo Kahua, an 80-acre resort area and golf course. The agreement also called for the state to pay OHA $15.1 million annually from here on as its share of revenues from trust lands. However, after complaints were aired in public hearings, held throughout February, that inflation was not addressed, that figure has been dropped from the House's version of the settlement bill. Instead, it proposes a method for doing a yearly assessment of the revenues collected from "ceded lands" income, and giving OHA an unspecified percentage of the total.

Jon Van Dyke, a University of Hawai'i Law School professor and author of Who Owns the Crown Lands of Hawai'i (2008, University of Hawai'i), acknowledged the concerns, but said "one answer" is that the commercial and industrial lands to be turned over to OHA "will increase in value."

Another source of contention is a provision that requires OHA to give up its right to sue the state to claim any other Trust income payments for the past 30 years. OHA also is barred from suing for additional payments in the future, unless the state fails to pay it at least $15.1 million annually.

Because the House bill deletes those provisions, it has garnered cautious support from some independence advocates.

"The perspective of those who are part of the independence movement is to hold the line: take the money, but with no strings attached," said Ikaika Hussey, who is active in several independence groups. "We don't want to sell out and we especially don't want to sell out the potential of future generations being able to achieve more than what we have."

Protesting the process

Others have criticized the way OHA and the state negotiated and signed the settlement agreement without seeking input from its beneficiaries, the Native Hawaiian community. OHA communications director Crystal Kua said the agency was already making plans to solicit comments from beneficiaries when the Legislature directed it to do so. OHA is currently conducting these meetings around the state.

At one such session, held Feb. 20 on Kaua'i, where Puanani Rogers denounced the proposed settlement. "I reject the process by which this was done, behind closed doors," she said.

William Meheula, a private attorney who represented OHA through the three and a half years of negotiations that resulted in the settlement agreement, responded that he recommended the discussions "be kept confidential until a deal is reached. You don't do these kinds of negotiations out in the public," he said. "They're never done that way."

Meanwhile, Rep. Hermina Morita, chair of the House committee on Water, Land, Ocean Resources & Hawaiian Affairs, expressed doubt that the Legislature will pass the bill this session. "It's always the budget that drives these kinds of things and the budget isn't looking good," she said, noting that "if anything, the Legislature would be a little more cautious" in adopting such a bill in light of the Jan. 31 state Supreme Court ruling.

The Supremes weigh in

The Court's decision allows OHA to seek an injunction barring the state from selling or transferring any Trust lands "until the claims of native Hawaiians to the ceded lands have been resolved."

The ruling stemmed from a 1995 lawsuit filed by OHA and four individual plaintiffs to prevent the state from transferring 1,500 acres of Trust lands on Maui and the Big Island to the Housing and Community Development Corp. of Hawai'i. They argued that the state has no power to sell Trust lands, and that such transfers would "erode the ceded lands trust."

The Justices agreed with the plaintiffs, and cited as the basis for their decision the federal "Apology Resolution" — Public Law 103-150. The resolution states in part that the Kingdom's lands were seized "without the consent of or compensation to the Native Hawaiian people of Hawai'i or their sovereign government."

It also apologizes for the overthrow and the deprivation of Native Hawaiians' right to self-determination and calls for "a proper process of reconciliation between the United States and the native Hawaiian people."

"The Apology Resolution clearly states that the overthrow of the monarchy in which the U.S. played a key role was a violation of treaties and international law," Blaisdell said. "This is crucial because our position is that treaties and international law have to be invoked, not ignored."

Staking a legacy

Independence groups have long contended that neither the state nor OHA has the right to determine the use of "ceded lands" because they still belong to the deposed nation. They see the court decision as both solidifying this stance and exposing the state and OHA's negotiations as fraudulent.

"The question is, do we still have rightful claims to the land, and the answer is yes," says Henry Noa, prime minister of the Reinstated Hawaiian Kingdom. (see 7-11-07 HW cover story).

"What this and the rest of the Apology says is that the so-called Republic of Hawai'i had no authority to cede or transfer these lands in the first place," writes Scott Crawford, director of electronic communications for the pro-independence Nation of Hawai'i, in the group's blog ([www.hawaiiankingdom.info]).

Crawford is far from alone in his assessment. Indeed, at the Feb. 20 public meeting on Kaua'i, deputy attorney general Charlene Aina acknowledged, "I know there is no formalized document" authorizing the transfer of lands from the Kingdom to the U.S. government.

Her statement prompted Kane Pa, a member of the Reinstated Hawaiian Kingdom, to observe: "We understand the crime and when we have people in a position of law ignoring the crime and the evidence, how can we as beneficiaries be comfortable in this process?"

Many of those who have spoken against the agreement fear that OHA is positioning itself to negotiate a settlement for the larger claims involving ownership of all acreage in the "ceded lands" trust. OHA officials, however, have dismissed that concern.

"OHA does not believe it is the entity that can negotiate and settle those claims because we're [an agency of] the State of Hawai'i," Scheuer said. "The [OHA] Trustees are very clear about this."

Scheuer also emphasized that the proposed settlement deals solely with the issue of revenues from trust lands and does not pre-empt any land ownership claims stemming from the overthrow of the monarchy.

Take the money and run—where?

Meheula told the approximately 100 people at the Kaua'i meeting that the proposed settlement does not affect "ceded lands" ownership claims. Instead, he sees it "as a way to get money I don't otherwise think we're gonna get to help Native Hawaiians. I recommend it, and I'm a guy who sued the Office of Hawaiian Affairs and the State of Hawai'i about four times on behalf of Native Hawaiians."

Anahola resident Hale Mawae asked whether OHA will use money from the settlement to continue its support for Kau Inoa, a Native Hawaiian voter registration drive that currently has 80,000 registrants, according to OHA's website.

Many sovereignty activists believe that Kau Inoa is linked to the Akaka Bill, which would recognize Native Hawaiians as indigenous to the U.S., place them under the control of the Bureau of Indian Affairs and extinguish all claims to independence.

Through its support for Kau Inoa, many fear that OHA is positioning itself to become the governing entity for the Hawaiian Nation outlined in the Akaka Bill.

Scheuer acknowledged that some of the settlement funds very well could be used for Kau Inoa, but said OHA also has funded other independence initiatives.

Van Dyke said he hopes the state Supreme Court decision "will energize the process of resolving these (ceded lands ownership) claims. The Akaka Bill is one method for that because it would creative a Native Hawaiian entity and facilitate negotiations with the United States."

He said the court's decision "makes it clear action has to take place because it freezes land and prevents the state from doing what it might want."

He noted that similar situations occurred prior to settlement of land claims with Alaska Natives, the Maori in New Zealand and Pueblo Indians in the American Southwest.

Blaisdell thinks the matter should be resolved through the internationally recognized process of self-determination for persons of occupied nations — a process he contends was wrongfully denied Hawaiians during the statehood vote.

Blaisdell said he and others plan to ask legislators to return Hawai'i to the United Nations list of non-self-governing nations, which would allow Hawaiians to decide whether they want to be incorporated within the U.S., independent or "freely associate with another country, such as Palau or the Federated States of Micronesia." During the statehood vote, only the first option was offered.

Take the money and take charge

Other Hawaiians feel the time is ripe to push for independence.

"I think our kanaka people should realize we have an opportunity to reclaim it all if they support the Reinstated Hawaiian Nation process, rather than just a portion of it," Noa said.

"We're coming for our land," Ka'iulani Huff, a pro-independence Kauai resident told OHA representatives at the meeting on her home island. "You're gonna settle for the pennies. We're gonna get it all."


Honolulu Advertiser, Thursday, February 28, 2008

Ceded-lands deal may hinge on state Senate

By Gordon Y.K. Pang

The state House, the Lingle administration and the Office of Hawaiian Affairs now appear to all be on the same page regarding a settlement of a longstanding dispute over ceded land revenues.

That could leave the fate of the $200 million settlement package in the hands of the 25 members of the state Senate. A key senator was noncommittal on the new proposal's chances in that body.

Three House committees yesterday voted to approve House Bill 266, House Draft 2, which OKs the state to hand over three parcels of land valued at $187 million and $13 million in cash to OHA. The proposal is intended to settle a dispute between the state and OHA over the agency's share of the revenues collected over the past 30 years from lands "ceded" to the state.

The full House is now expected to approve its version of the proposal and hand it over to the Senate for its consideration. Some senators have voiced strong reservations about the proposed settlement, although the original proposal in the form of Senate Bill 2733 is moving toward a final vote in that body as well.

"The significance of the (House) bill is that it sets the stage for a settlement agreement to go forward," said Rep. Ken Ito, who chairs the Committee on Water, Land, Ocean Resources and Hawaiian Affairs. Ito, D-48th (Kane'ohe), said attorneys from OHA, the House majority and Attorney General Mark Bennett's office worked to craft the latest version.

"It's going to move over to the Senate," predicted House Majority Leader Kirk Caldwell, D-24th (Manoa), who also was part of the team that helped put the new compromise together. The full House likely will vote on the bill in the next week or so.

There are two key differences between SB 2733 — the original bill — and HB 266, the bill passed by the three committees yesterday:

The House bill states OHA will get a minimum of $15.1 million in future years as its share of ceded land revenues. A biennial report would be submitted from the state Department of Land and Natural Resources, which would analyze the amount of money derived from ceded lands, and the Legislature would determine how much OHA would ultimately get. The original bill calls for a flat $15.1 million annual payment, a key sticking point for some Native Hawaiians.

The House bill deletes all references to a "settlement." Caldwell said: "I believe this legislation sets a policy that enables a settlement but does not set the terms of the settlement. We're the policymaking branch of government."


Both Bennett and OHA Administrator Clyde Namu'o said they can work with the new bill.

Bennett said the version hashed out among OHA, House leaders and himself is "a version that we can support." He singled out Caldwell, with whom he has disagreed on other issues, for helping put the plan together.

"I think (this bill) protects the state and it effectuates the settlement, so I think it's a very positive step," Bennett said.

The OHA board of trustees won't meet to vote on the House plan until its next regularly scheduled meeting March 6, Namu'o said.

However, Namu'o added, "we think the House bill represents an improvement and would urge the Senate to review and support it."

Senate Hawaiian Affairs Chairman Jill Tokuda, D-24th (Kailua, Kane'ohe), said she and other senators are taking a wait-and-see approach on the House proposal.

Just as senators wanted OHA to take the original proposal out to the public for comment, "we believe that the beneficiaries and the public need to have an opportunity to provide input on ... the new proposed settlement on the table," Tokuda said. "This raises some new questions."

Tokuda said the Senate is expected to pass SB 2733 and move it to the House. But she also said senators are waiting to hear back from OHA and the administration on public feedback from the past month's public hearings sponsored by OHA and other parties. The Senate gave OHA and the administration until March 26, she said.

Not all representatives are on board with the House version.

Rep. Sylvia Luke, D-26th (Pacific Heights, Pauoa, Punchbowl) voted against the bill, while Reps. Karl Rhoads, D-28th (Kaka'ako, Iwilei) and Clifton Tsuji, D-3rd (S. Hilo, Puna, Kea'au) voted in support but with reservations.


Luke said homesteaders in her district, specifically those living in Papakolea, had expressed strong concerns about the proposal.

"If there's any group of people who should benefit, it's the Native Hawaiians," Luke said. "The homesteads of Papakolea are beneficiaries of the bill, and I value their opinion."

Many were upset that OHA did not first approach them for their thoughts on the plan, she said.

Rhoads said "my impression is, from the people I talked to, the Native Hawaiian community is still sort of digesting (the proposal) and is not entirely sure. Obviously, there are different camps in the Hawaiian community and they still have doubts whether this is the best deal or not."

Tsuji said that while he initially had reservations, especially since the land being turned over would include the property under all of Hilo's main hotel district, he likely will vote without reservations when the bill comes before the full House.


Hawaii Reporter, February 28, 2008

Hawaiians Reject Office of Hawaiian Affairs ‘Settlement’ Proposal

Special from Hawaii Free Press
By Andrew Walden

Speaking at the offices of Hilo’s Queen Liliuokalani Children’s Center February 25, state Attorney General Mark Bennett, Office of Hawaiian Affairs Chief Counsel Robert Klein, and Office of Hawaiian Affairs Trustee Robert Lindsey faced sign waving protesters shouting obscenities as they tried to sell OHA’s settlement agreement to a hostile crowd of about 100 people.

Hilo resident Ed Miranda told Klein and Lindsey, “It is not for you guys to cut the line (so) nobody (can) sue. It is very obvious that you guys cannot take care of our interests.” As Bennett stood by passively Miranda rambled on about: “the prophesy of the Jewish Queen.”

Standing just feet from the State’s chief law enforcement officer and a former Supreme Court Justice, another speaker identified only as “Kealoha from Puna” said “This is our money, not your (OHA’s) money” and began cursing the speakers: “F*** you! F*** all of you! What has OHA done for the beneficiaries?”

A lady in the audience said, “We were not raised to speak like that. This is the Queen’s House.”

Kealoha then blurted out the deepest and most profound truth of the entire meeting: “They made me like that.”

Robert Lindsey responded saying that in the last year OHA had given grants to a Kona-based canoe club and to the ARC of Hilo.

For no apparent reason Kealoha then attempted to square off with a reporter seated in the front row before Councilwoman Emily Naeole directed him back to his seat.

A protester who declined to identify himself carried a sign reading, “OHA Stop stealing from Hawaiians.” He and others repeatedly interrupted and heckled the OHA representatives telling them at one point, “We are going to have peaceful Hawaiians ready to bust heads.” Another shouted, “We want 100% of this money. You guys are just using us Hawaiians.”

Councilwoman Naeole pointed her finger at Bennett, Klein, and Lindsey shouting: “We Hawaiians are loving people but we got to act like this because of what we got to go through.”

Former OHA Trustee Moana Akaka angrily denounced the settlement as “too small.”

Mililani Trask loudly denounced OHA and questioned the value of the lands proposed for transfer, demanding “valuation reports and environmental disclosure on all parcels.” Robert Lindsey admitted that OHA had not assessed the value of the properties and had instead relied on a formula based on tax valuations.

Ken Fujiyama, who owns a 65-year lease on Hilo’s Naniloa Hotel and an adjacent golf course, both to be transferred to OHA under the proposed settlement, echoed Trask’s concerns about valuation. He said “It is hard for me as a real estate person to look at a $200 million transaction with no appraisal.” About the Banyan Drive parcels, he added: “It is hard for me to comprehend (the State/OHA valuation of) $34 million. It is probably worth $10 million.”

Lindsey responded—unwittingly outlining the root of Hawaii’s economy: “In our experience there never is a shortage of developers willing to come in and spend ever-greater amounts for resort property.”

The meeting opened with a 30 minute power-point presentation by Dr Jonathan Scheuer, director of OHA’s newly-created land management hale. Scheuer explained: “OHA has fought this battle for 30 years. And it has distracted OHA from its core mission which is the betterment of the conditions of native Hawaiians.”

Illustrating the grasp of the OHA trustees, Scheuer explained how OHA rejected $5.5 million in payments which would have allowed affordable housing developments on ceded land in Kona and Lahaina. Instead the Trustees filed suit in November 1994. OHA also demanded 20% of all patient fees from Hilo Hospital because it is located on ceded lands. Asked Scheuer: “What about University tuition. The University is located almost entirely on ceded lands. Should OHA get 20% of that?”

Scheuer added: “I like to compare OHA to Kamehameha Schools. Kamehameha Schools has $9.1 billion dollars and can spend more in one year than OHA is worth in its entirety. Education is 1/20th of our kuleana and OHA’s resources are about 1/20th of Kamehameha Schools. So there is just a mismatch between the responsibility that we have for the betterment of native Hawaiians and the resources that we have to get those things done.”

Earlier this month-- 14 years after being filed -- OHA’s affordable housing case resulted in the Hawaii State Supreme Court injunction against the sale of ceded lands to any agency other than OHA until such time as native Hawaiian claims to ceded lands have been resolved.

Scheuer stated that OHA trustees had wished to keep ceded lands out of the settlement package but claimed that Attorney General Bennett had insisted on including at least one ceded lands parcel. Questioned about this by email, Bennett claimed that Scheuer “misspoke” in his presentation. After receiving a copy of Bennett’s response, Scheuer also claimed he “misspoke” but then wrote, “What I meant to say was that the (OHA) Board (of Trustees) had a preference in settlement to avoid ceded lands.”

Scheuer didn’t get much respect in Hilo. As his presentation ended, he was relegated to a corner of the room by Mililani Trask demanding: “We don’t want to speak to staffers. Where are the trustees?”

Robert Klein authored the 1995 PASH decision as a member of the Hawaii Supreme Court. He then resigned from the bench to join OHA as Chief Counsel and take full advantage of the decision he had just written. Unheeded, Klein pleaded with the crowd: “Is it more important to leave the moneys due you in the hands of the State? If there is too much dissention then (the proposed settlement) probably will not pass.”

Representative Clift Tsuji (D-Hilo) and Senator Lorraine Inouye (D-Hilo, Hamakua) silently observed the meeting.

Lindsey admitted: “We are not amongst our people at OHA.”

A young mother who brought three children to the meeting got up to speak. She said: “Sovereignty is already happening now. We are educating our children.” Eyeing Klein and Lindsey she pointed out: “What we have in front of us doesn’t work.”



West Hawaii Today (Kona), Thursday February 28, 2008

OHA settlement deal
The community speaks out on issue

by Erin Miller

The same day three House of Representatives committees approved a bill to settle disputes between the state and the Office of Hawaiian Affairs, more than 40 people gathered at Kealakehe Elementary School to air their concerns about the pending settlement.

Kamealoha Hanahano-Smith told OHA Administrator Clyde Namuo he would like to see the office and its trustees pursue more "tangibles," instead of just cash and revenue through land.

"The intent of the settlement is good," Hanohano-Smith said. "But we'd like to see more accountability. (OHA) has lost its connection to the very people who, over the years, have supported you for better or worse."

The settlement, which, in the House version of a bill to authorize it, includes about $13 million in cash, plus three state-owned parcels of lands -- Kakaako Makai and Kalaeloa Makai on Oahu and Hilo Banyan Drive. The assessed value of the land is about $187 million. The agreement also ensures OHA will receive at least $15.1 million each fiscal year from the state. The bill protects the state from future lawsuits related to the lands. The current Senate version of the bill would fix the annual payment at $15.1 million.

The meeting and public comment was ongoing as of press time.

Some of the discussion was delayed as meeting attendees expressed confusion over who was hosting the meeting and whether their comments would be included as formal testimony to be heard by state legislators. Ilioulaokalani, a nonprofit group that works to address issues related to Native Hawaiian rights, had called for a meeting on Wednesday evening to discuss a variety of topics, including concerns about genetically modified taro, and opened the meeting to OHA to discuss the proposed settlement.

Ilioulaokalani was not expressing or denying support of either the House or Senate bills by hosting the meeting, members said as the meeting opened.

Meeting facilitators asked that attendees speaking after a formal presentation about the history of ceded lands and the proposed settlement limit comments to the settlement and not other topics related to OHA's duties.

Namuo, responding to a question about the land-selection process, said OHA reviewed 10,000 state-owned properties before submitting 35 possible parcels to receive as part of the settlement. The parcels were selected for potential revenues; right now, the state collects about $800,000 in rent on the Banyan Drive land and $1.4 million for the Kakaako Makai land, he said.

Bo Kahui said he supported at least part of the House bill, but said he would like to see an independent audit of the money the state was reporting as revenue on other public trust lands. The $15.1 million or more the state will pay to OHA under the terms of the settlement is based on state revenues on those trust lands.

"The state cannot audit itself," Kahui said.

Namuo said that was a valid concern.

"There was a time where we simply needed to take the word of the state," Namuo said. "OHA has always felt we should be able to see the receipts."

He also told meeting attendees that OHA and its trustees realize community members would have liked to discuss the settlement earlier in the process and said they were trying to do a better job of being receptive to community concerns.

"They are, by its nature, confidential," Namuo said of the negotiation process, which began several years ago. "I wish we had done (community meetings) earlier."


Honolulu Advertiser, Thursday, February 28, 2008
Letters to the Editor


OHA seems willing to compromise its integrity, morality and lack of historical memory by complicitly joining the Republic of Hawai'i in continuing dealings involving the illegal conversion of stolen Hawaiian kingdom national lands (the so-called "ceded" lands) in settlement of a dispute with the state over money owed.

While, on its face, the settlement appears to return "Hawaiian" lands to "Hawaiians," the political reality (by international law) is that it doesn't.

It all reduces to the illegal "taking" of the lands of national Hawaiians (descendants and heirs of subjects of the Hawaiian kingdom, the holder of absolute title) by the Republic of Hawai'i (with no title) in the illegal overthrow of 1893 that were allegedly "ceded" to the United States by the so-called annexation that never took place (resolutions cannot annex foreign lands) and using them to pay the financial debts of the state to American-Hawaiians.

OHA's willingness to accept the "stolen" lands in settlement is about as far from being pono as possible.

This is a hewa (an abomination)!

Clarence Ku Ching, OHA Trustee 1986-1990
Waimea, Hawai'i


Honolulu Advertiser, Friday, February 29, 2008
Letters to the Editor


As a non-Hawaiian, I think the ceded land settlement is inadequate and unfair.

The state and non-Hawaiians like myself have benefited from the use of ceded/crown lands all these years, and with this settlement we will be getting off way too easy.

If the settlement is approved by the Legislature, the attorney general claims the state will "gain" by living up to what it was supposed to be doing since 1959 (and especially since 1978) and hasn't been doing: providing for the betterment of Hawaiians with 20 percent of the revenues generated from ceded Hawaiian crown lands.

How can getting rid of this revenue-sharing and barring past and future legal enforcement be considered fulfilling this obligation?

How can doing what the state was supposed to be doing from the beginning but not doing all this time be considered a "gain" to the state? Sounds like "cheap grace" to me, and an attempt to absolve the guilt and responsibilities of the state and non-Hawaiians who continue to benefit from the forcible taking of Hawaiian lands with little benefit to Hawaiians.

I urge non-Hawaiians to not settle for "cheap grace," but to listen to and work with Hawaiians to address their needs on their terms, because this is Hawaiian land that we live on, and we must recognize our responsibilities.

Jackie Lasky


Honolulu Star-Bulletin, February 29, 2008

Changed OHA bill prompts scrutiny

By Richard Borreca

Three state House committees are moving a new version of the $200 million settlement between the state and the Office of Hawaiian Affairs for a vote next week.

However, all the changes are prompting Senate leaders to call for another round of public hearings on the bill.

"This is very different from the first bill that was put forth," said Sen. Jill Tokuda, chairwoman of the Senate Hawaiian Affairs Committee. "Now we have a new bill on the table, and we are going to encourage them (OHA and the administration) to go back out to the beneficiaries and get their input on this. A new meeting would be essential to getting their input."

The new version of House Bill 266 was not ready for public inspection, but Rep. Ken Ito, chairman of the Water, Land Use and Hawaiian Affairs Committee, said the bill does not change the amount of money or the amount of land that would be given to OHA.

But it leaves at issue the question of the state's liability to civil action stemming from the settlement.

The state Constitution does not allow the state to be sued unless it is specially allowed or immunity is waived.

Added to the bill is a clause saying any such waiver is "withdrawn."

However, OHA attorney William Meheula insists that the law that established OHA includes a waiver that would allow lawsuits.

The settlement was announced in January by Gov. Linda Lingle and OHA.

Lingle said the agreement resolved any claims or disputes going back to 1978, when OHA was created. "There can never be a suit in the future on any of those claims," Lingle said.

The issue of native Hawaiians' right to sue regarding land claims has been controversial. In community meetings around the state regarding the settlement, native Hawaiians have feared that the settlement would stop their right to sue for past damages. Meheula said this week that the new bill would still allow those lawsuits to go forward.

Haunani Apoliona, OHA chairwoman, said she thought the new bill was a good one. "It is an improved product, and we are optimistic about its passage," she said.

Ito said that the original settlement had said that OHA would get $15.1 million a year but that now the Legislature would be required to determine the appropriate dollar amount, but not less than what had been previously approved.

House leaders said yesterday that the new bill was worked out with the concurrence of both OHA and the state. The bill was approved by Ito's committee along with Judiciary and Finance.

Rep. Sylvia Luke (D, Pacific Height-Punchbowl) was the only representative to vote against the bill.

The state and OHA have been locked in a 25-year dispute regarding the amount of ceded or crown land payments owed to OHA. The state Constitution requires that OHA is to share in the money made from the ceded lands.


On Wednesday March 12 OHA published a multicolor 4-page insert in the Honolulu Advertiser propagandizing for the OHA-Lingle ceded lands "settlement." The insert included a postage-paid post card for readers to vote yes or no on whether they approve the legislation. A hearing by 3 Senate committees is scheduled for Monday March 17 on a slightly revised House version of the bill. The OHA insert can be downloaded at


Honolulu Advertiser, Monday, March 17, 2008

Hawaiian leaders urge delay on ceded lands

By Gordon Y.K. Pang

Two Native Hawaiian leaders have joined with Hawaiian activists in calling for state lawmakers to delay passing an agreement that transfers $200 million of land and cash to the Office of Hawaiian Affairs.

Robin Danner, president and chief executive officer of the Council for Native Hawaiian Advancement, and Colin Kippen, executive director of the Native Hawaiian Education Council, said they want more information to be gathered before the settlement is adopted. That probably would mean putting off a decision at least until next year's Legislature convenes in January 2009.

Late yesterday, the Sovereign Councils of the Hawaiian Homelands Assembly also weighed in on the subject. The organization, formerly known as the State Council of Hawaiian Homestead Association, issued a statement saying it "strongly opposes" the agreement reached between OHA and the Lingle administration. The statement said homestead association presidents gathered Saturday to discuss the issue and voted unanimously to oppose the agreement. The group echoed the arguments made by Danner and Kippen.

Meanwhile, a poll conducted on OHA's behalf shows 55 percent of Hawai'i residents believe the Legislature should approve the settlement agreement while 72 percent of Native Hawaiians polled believe it should be passed.

The proposed settlement is meant to resolve a 30-year dispute between Native Hawaiians and the state over who gets the income from land once owned by the Kingdom of Hawai'i.

Under the terms of the agreement, OHA gets three parcels of land worth $187 million, $13 million in cash and a minimum annual payment of another $15.1 million. In exchange, OHA agrees to waive further claims to income from the so-called ceded lands from 1978 onward.

OHA and the Lingle administration have lobbied hard to get the settlement passed in this session of the Legislature, pointing out that the proposed agreement took more than four years of meetings to work out.

Danner and Kippen, who are usually allied with OHA on major issues, including their support for the Akaka bill for Native Hawaiian recognition, say they are not convinced this settlement is the best OHA could get.

"I think it's a significant decision, one that warrants us to pause — not just the Hawaiian community, but the Legislature, the state government," Danner said.

Kippen, who stressed he is speaking for himself and not his organization, said, "I'm opposed to this bill basically ... because it gives up too much for too little in a way that is unfair to Native Hawaiian beneficiaries."


OHA Administrator Clyde Namu'o and Attorney General Mark Bennett say the agreement is fair and beneficial to both sides and should be adopted.

Three committees of the state Senate meet in the state Capitol auditorium at 2:45 p.m. today to consider House Bill 266, the latest version of the negotiated settlement. The Legislature must approve the deal for it to become binding.

The $200 million offered in the settlement is presumed to represent the revenue generated by the ceded lands and owed, but not paid, to OHA by the state between 1978 and now.

The ceded lands are made up of 1.2 million acres, or about 40 percent of the total land in Hawai'i and about 95 percent of state-controlled lands, according to OHA.

A number of Hawaiians continue to believe that language in the settlement suggests the agreement could be interpreted to relinquish all future claims by anyone regarding ownership of the ceded lands.

The House draft of the bill contains language that is supposed to address that concern.

Kippen, a former senior counsel to the U.S. Senate Committee on Indian Affairs, former OHA deputy director and tribal judge for Indian tribes, cited language in the agreement that "waives claims of any kind" related to "income, proceeds, or any other tangible right."

That could be broadly interpreted by a judge to mean the agreement settles all claims by Hawaiians to ceded lands, not just any revenues derived from them, he said.

"The ambiguities that are in that document are in that document forever. That language is as broad as it gets and OHA agreed to it," Kippen said.

Bennett however, insists that the agreement settles only the issue of revenues.

"It talks about income and proceeds and that's what it's intended to do. That is what it is intended to deal with," Bennett said. "For people who are saying this bars other claims, there's no language to support that."


OHA's Namu'o said language in the House bill clarifies that point, and added that Bennett has agreed to go even further to clarify any ambiguity.

"Mark is going to go on the record and will offer language to be included in the committee report that essentially says this waiver does not extinguish any claims which the Hawaiians have to ceded lands," Namu'o said.

Said Bennett: "It's certainly possible that on particular language with the settlement agreement, we may work on modifying it with OHA."

But even without the ambiguity, Kippen believes the agreement gives up too much. "Ceded lands are from the top of the mountains ... to the submerged lands (in the sea)," Kippen said. "So let's say tomorrow ... somebody finds that there's this certain kind of limu that holds the cure to cancer or Alzheimer's, and the state now says, 'Those are growing on our ceded land, we want to sell those items, we want to make money on that.' " Hawaiians would not be able to get a share of that money because it would be income that goes to the state, Kippen said.

Danner, head of the Council for Native Hawaiian Advancement, said OHA and the administration of Gov. Linda Lingle have done a good job in getting the agreement to this point. However, she said, it's now up to the Legislature to take the time to make sure it is done right. Danner said she wants the state and OHA to work on completing an inventory of all ceded lands before the agreement is finalized, a process that likely would take at least until next year. "We'll all still be here next year," Danner said. "I don't think you sell the items in your house before you take an inventory of the items."

Namu'o, however, said that is an irrelevant point. While it's true that OHA has not received a detailed inventory of the entire 1.2 million acres of ceded lands, it does have an inventory of all income-generation lands in that category, he said.


Activist Mililani Trask, a former OHA trustee, said that since the Supreme Court's Rice v. Cayetano decision allowed for non-Hawaiians to be elected to the OHA board, its actions have been suspect. While she supports the concept of an agreement, Trask said, she still has too many questions about the current version. Trask echoed the concern of many that the $200 million amounts to too little. "We haven't been told what the $200 million is based on," she said. "How is that calculated?"

A judge in 1996 said that Hawaiians were owed $1.2 billion or more for revenues derived.

Namu'o, however, said that billion-dollar-plus figure was based on accumulated interest and a later court ruled that Hawaiians were not entitled to interest, only revenues themselves.

The values assigned to each of the three parcels selected to be handed over to OHA are based on assessed values issued by tax offices of the individual counties.

Trask said there needs to be further study. "I want to know what the environmental studies are on them (the parcels)," she said. "I think they're short-changing the people."

Andre Perez of the umbrella activist group Hui Pu, said he objects to the way the agreement was handed down without any consultation with beneficiaries.

"The constituents and beneficiaries only found out about this agreement after it had been submitted to the Legislature," Perez said. "And now we're going to tell you what we're going to do for you. It's a very condescending and paternalistic attitude."

Danner said the series of meetings OHA has held in recent weeks across the Islands is just a starting point. "There are informational meetings and then there are consultations," she said. "I just feel like we've got the cart before the horse."


While the specter of "establishment" Hawaiians like Danner and Kippen standing side by side with activists like Trask and Perez presents a formidable opposition, OHA is countering with the poll numbers that appear to show a majority of the public, and Native Hawaiians in particular, favor the proposed settlement.

Results showed 55 percent of those polled answering "yes" to the question "Do you believe the Legislature should approve the proposed settlement?" Only 26 percent of all respondents said "no" while 19 percent said they did not know.

Among Hawaiians, 72 percent said "yes," 20 percent said "no," and 9 percent did not know.

Asked how they felt about the agreement, 28 percent of total respondents and 27 percent of Native Hawaiians said the settlement is a good one, while 34 percent of all respondents and 62 percent of Hawaiians believed the package is too little for what OHA is owed. Only 22 percent of all respondents and 4 percent of Hawaiians said the settlement is too much.

Conducted by Ward Research Feb. 15-26, the poll queried 500 people, 100 of them Native Hawaiian. The number of people polled allows a margin of error of 4.4 percent for the total population polled and 9.8 percent for Native Hawaiians.

Perez said the poll didn't survey enough people to form an accurate gauge of how the public, and Native Hawaiians, feel about the settlement.



Honolulu Advertiser, Tuesday, March 18, 2008

Ceded lands settlement bill killed in Senate

By Treena Shapiro
Advertiser Government Writer

In a rebuke of a proposed $200 million settlement between the state and the Office of Hawaiian Affairs, three Senate committees voted against moving forward with the agreement last night.

Five senators representing the three committees voted unanimously to hold House Bill 266, which would have approved the settlement.

Sen. Jill Tokuda, D-24th (Kailua, Kane'ohe) announced the decision after five hours of testimony and the crowd of about 100, who mostly opposed the deal, applauded. Tokuda said too many questions remain about the settlement and more support from the Hawaiian community is needed.

The proposed agreement — which took four years to craft — seeks to resolve a 30-year-old dispute over rights to revenue from ceded lands, which once belonged to the Kingdom of Hawai'i.

The settlement would give OHA three parcels of land worth $187 million, $13 million in cash and a minimum of $15.1 million annually in exchange for OHA's agreement to waive further claims to ceded land income.

"We believe HB 266 was fair and just and are disappointed with the outcome of today's hearing," said Haunani Apoliona, chairwoman of the OHA board of trustees.

"OHA will review all the legislative and legal options available before deciding on the next course," said OHA Administrator Clyde Namu'o.

Another measure to approve the settlement is still alive in the House.

Tokuda, chairwoman of the Agriculture and Hawaiian Affairs Committee, said the Legislature wants to see a resolution to the ceded lands dispute "but any resolution that would be taken seriously must be pono and must involve the beneficiaries it will affect."

Tokuda said the agreement may have a better chance of passing next session.

The three Senate committees that took up the measure yesterday were Agriculture and Hawaiian Affairs, Judiciary and Labor, and Water and Land.

The bill that failed the committee vote was one of two versions moving through the Legislature, so the settlement isn't off the table, but it's unlikely the House and Senate will agree on terms of the settlement before conference committees are formed next month to deal with unresolved issues.


The senators' decision to kill the bill came after five hours of public testimony with most speaking in opposition. Questions over the amount Native Hawaiians would be getting and what they would be giving up accounted for much of the concern.

Former state Rep. Michael Kahikina said: "We would like to have a seat at the table of democracy. We would want a seat at the table of appropriations. We would like a seat at the table of negotiation."

However, attorney Bill Meheula and state Attorney General Mark Bennett, who helped negotiate the agreement, urged the senators to pass the bill, which they argued had support among Native Hawaiians despite the passionate opposition at the hearing.

"In the fringes there is strong opposition, but in the middle there is strong support," Meheula said.

"I disagree with him," said Andre Perez, of the Hawaiian activist group Hui Pu. "We're not the fringe. Today we're the majority."

Perez, echoing many of the other opponents, complained about a lack of transparency during the negotiation process and took issue with waiving rights to future claims.

"Shame on the Office of Hawaiian Affairs for failing to meet their fiduciary obligations to the beneficiaries of the Hawaiian Homelands Trust," said Uilani Hew Len, chairwoman of the Kupuna Council of the Waianae Kai Hawaiian Homeland Association.


Many who came to testify wanted the Legislature to hold off for a better settlement.

Former OHAtrustee Moani-keala Akaka said it was unclear how the $200 million figure was reached and she noted that the amount due the Hawaiians had been $1.2 billion in a 1996 Circuit Court decision, which was overturned in 2001.

After three decades of waiting for a settlement, Akana said it wouldn't hurt to hold out longer for a better one.

"We should not be settling for this chump change of $200 million," she said.

But Meheula, speaking for OHA, pointed out that if the settlement doesn't pass this session, a future attempt to settle could result in Hawaiians getting even less.

Leialoha "Rocky" Kaluhiwa, president of the Ko'olau Foundation, for example, wrote, "Addressing these issues is the honorable, pono approach for this Legislature and the state of Hawai'i."


Honolulu Advertiser, Tuesday, March 18, 2008, EDITORIAL

Lawmakers should not delay ceded lands deal

If critics have a compelling reason to delay the settlement on ceded land revenues, they haven't brought it to the table.

The Council for Native Hawaiian Advancement and the Native Hawaiian Education Council both have weighed in against a long-awaited accord struck between the state administration and the Office of Hawaiian Affairs. The agreement gives OHA some property and at least $15.1 million each year to fatten the Native Hawaiian Trust Fund.

The argument against the accord — that finalizing the deal would be premature — doesn't hold water.

The agreement is meant to settle how much revenue OHA should receive annually from the ceded lands, the property that belonged to the Hawaiian kingdom before the overthrow and was later ceded to the U.S. The federal government required upon statehood that the state government had to give over a share of the revenues to benefit Native Hawaiians.

Those beneficiaries should have a voice in how much they get, say various Hawaiian organizations. Robin Danner, president of CNHA, testified to lawmakers that "consultation by OHA should occur to ensure that the priorities of its beneficiaries are understood, prior to negotiations."

What this argument overlooks is that the beneficiaries do have a say. They elect trustees to represent their interests in protecting and building the Native Hawaiian trust, which funds many programs for the community. If the elected OHA board of trustees is doing a poor job, the voters can decide against re-electing them.

Other holes in the logic:

Critics point to a court ruling barring the state from conveying ceded lands to a private entity as being relevant, but it's not. The settlement involves land transfer from one state agency to another.

Danner maintains Hawaiian homesteaders had no representation in the negotiations. That's an empty argument because homesteaders have no status separate from other OHA beneficiaries in the ceded lands issue; the Hawaiian Homes trust is a separate matter altogether.

This deal does not settle the final disposition of ceded lands; lawmakers can simply add clarifying language if that is even in doubt.

OHA's unpopularity with some seems to have colored this dispute. But allowing such bickering to intrude into this deal simply prolongs the uncertainty over trust funding, and for no good purpose.



Akamai Politics
The Advertiser's Jerry Burris is retired from the newspaper, but is blogging on the politics and events of the day, from the Legislature to the presidential election and beyond.

Posted on: March 18, 2008

Ceded lands debate won't go away any time soon

It's too bad lawmakers could not come to agreement on that bill designed to settle past claims for a portion of ceded lands revenue due to the Office of Hawaiian Affairs.

But it became more than clear that, whatever the bill might have accomplished, it fell short of its primary purpose: To put to rest controversy over those ceded lands revenues. Indeed, the mere presence of the bill began to heighten controversy, not still it.

Some Hawaiians felt the amount of money and land in the proposal was not enough. Others were less concerned about the amounts than they were about the possibility that the legislation would stand in the way of future discussions about ceded lands and their revenue should a Hawaiian political entity emerge.

There were strong assurances from the authors that this bill only spoke to past disagreements, not a future discussion between the state and federal government and a Hawaiian entity, should one eventually emerge. But suspicions emerged.

It has become increasingly clear that all these matters: Who owns ceded lands, who is entitled to revenue from them, how much a claim Hawaiians have to the lands or their income and the future political status of Hawaiians are all intertwined. This may never be sorted out until a unified voice, speaking politically for all Hawaiians, finally emerges.

Who knows when that will happen?

(Note: Ceded lands are former Hawaiian government and crown lands --originally around 1.8 million acres on all islands, now somewhat less -- that were ceded in trust to the U.S. government upon annexation and then back in trust to the state upon statehood in 1959. They are supposed to be used for public benefits, including the betterment of Hawaiians. )


Honolulu Star-Bulletin, March 18, 2008

Panels reject $200M OHA land settlement
Years of negotiations fail to keep the bill alive in the Legislature

By Richard Borreca

A $200 million deal between the state and the Office of Hawaiian Affairs to resolve a 30-year dispute over the use of ceded lands appears to have failed.

The chairmen of the Committees on Water and Land, Judiciary, and Agriculture and Hawaiian Affairs said last night that they could not approve the settlement. The rejection effectively kills the bill for this year, unless a compromise can be fashioned by OHA, the Lingle administration and the Legislature.

"They are holding the bill. It does not move forward. It is not likely the House will hear the Senate bill, so it is basically dead," said Haunani Apoliona, OHA chairwoman. "There is no agreement. The disputed issues remain unresolved."

Attorney General Mark Bennett said he was disappointed because the debt has been owed for 30 years, and the state had negotiated with OHA for four years.

"The senators have chosen to reject it. I hope the bill can be revived, but if it isn't, the responsibility for this issue is where it started under the state Constitution -- with the Legislature, and I hope the Legislature will resolve it," Bennett said.

Gov. Linda Lingle is the third Hawaii governor to work on a settlement for ceded lands, or former monarchy lands.

When the settlement was announced on Jan. 18, Lingle said it would resolve any and all claims relating to income and proceeds from ceded lands.

"While we have had a clear, constitutional obligation since 1978 to share ceded-land revenues, the amount has always been in dispute," she said.

Lingle called the settlement "reasonable, fair and just," but senators said too many people raised too many questions about the deal.

For instance, three former OHA trustees and one current OHA trustee, Rowena Akana, testified against the settlement yesterday.

"OHA's mission is to advocate for the betterment of our beneficiaries," Akana said. "I cannot support a bill that will extinguish the rights of all our beneficiaries to future entitlements, including rights to surface, ground water and mineral resources."

Also speaking against the bill were former trustees Clarence Ku Ching, Moanikeala Akaka and Mililani Trask.

Trask said there were no assurances in the bill that money from the settlement would reach native Hawaiians.

"In reality, Hawaiians live and die in poverty because OHA has withheld hundreds of millions of dollars from those who need it most: the Hawaiian people," Trask said.

Sen. Clayton Hee (D, Kahuku-Kaneohe), who was OHA chairman when former Gov. Ben Cayetano attempted to negotiate a different settlement with OHA, said in previous negotiations all parts of the settlement were justified and explained.

"With this, there is an unknowing of what is in the details," Hee said last night. "We could not understand the basis of the agreement."

Earlier in the day, Senate President Colleen Hanabusa said she was concerned about the settlement because native Hawaiians said they were not involved in the negotiations.

"There is the potential for cutting off rights, and it behooves everyone to slow it down," Hanabusa said.

Sen. J. Kalani English (D, Maui-Molokai-Lanai) said many native Hawaiians said they had not been consulted.

"Across the board, my Hawaiian constituents are saying that if OHA gets the money, we aren't going to see any of it," English said. "I think the bill is onerous and that drawing it up without consultation makes it problematic."


Honolulu Advertiser, Wednesday, March 19, 2008

Ceded-land accord supporters may retry

By Gordon Y.K. Pang

Less than 24 hours after a stunning defeat for the state Office of Hawaiian Affairs before the Legislature, supporters of the proposed $200 million ceded lands settlement, including OHA officials themselves, held out hope that the agreement could be salvaged during the remaining month-and-a-half of the legislative session.

Meanwhile, opponents of the proposal said yesterday that OHA officials need to spend more time talking to the agency's beneficiaries after the legislative session to get the agency's priorities right.

After five hours of testimony, three major committees of the state Senate voted Monday night to shelve the plan, which would have had the state transfer three parcels valued at $187 million, $13 million in cash and at least $15 million annually, to OHA as its share of revenues derived from ceded lands.

In exchange, OHA and other Hawaiians would no longer be able to make further claims to those revenues.

Those opposed to House Bill 266 said Monday that the measure was giving up too much for too little and that it would have additional ramifications.

Two of three committee chairmen, Jill Tokuda, D-24th (Kailua, Kane'ohe), and Clayton Hee, D-23rd (Kane'ohe, Kahuku), said they wanted to OHA to go back to the drawing board after session.

But OHA Administrator Clyde Namu'o said agency officials want to talk to Senate President Colleen Hanabusa and House Speaker Calvin Say to see if there's still any chance of the settlement passing this session. "When and if that is exhausted and there is no relief, the trustees will determine, based on counsel's recommendation, what the next course of action might be," Namu'o said. Asked if that might include a lawsuit, Namu'o replied: "Whether or not there is a cause of action that OHA might assert, that is what the attorneys need to determine and recommend accordingly." He added: "Honestly, we would prefer not to go there. We really would prefer a legislative solution, and we don't think it's too late."

House Majority Leader Kirk Caldwell, D-24th (Manoa), said House Democratic leaders have also not given up on an amended bill that they helped craft. "There are 26 days left in the legislative session, that's a little less than half," Caldwell said. "Many things can happen." House leaders have yet to discuss whether to hold hearings on Senate Bill 2733, the Senate's version of the agreement which crossed over from that chamber earlier this month, he said.

Procedurally, the House could change the language of the Senate bill to reflect House Bill 266. If that happens, House and Senate members could try to hammer out an agreement in conference committee at the end of session. But that could only be done if the Senate leadership assigned conferees to discuss the matter, and it would not be required to do so.

Almost as stunning as the committees' abrupt decision Monday was the tone of the meeting. At a House hearing on the same bill also held in the Capitol auditorium on Feb. 23, hardly anyone spoke in opposition. Before the Senate on Monday, a majority of the speakers testified against it.

Kamaki Kanahele, chairman of the Sovereign Councils of the Hawaiian Homesteaders Assembly, said what drew scores of homesteaders to the hearing was OHA's refusal to acknowledge that they, as beneficiaries of the ceded lands, should have been consulted more thoroughly and early on. "They refused to recognize us, associate with us, to work with us," Kanahele said.

Namu'o said that in response to a request from lawmakers, OHA is holding more than 50 meetings statewide to discuss the issue with beneficiaries and the public. "I would say that anecdotally, many of the people who attended the meetings did not have any solutions to improve the legislation," Namu'o said.

Tamar deFries, vice president of the Merchant Street Hawaiian Civic Club who helped rally opponents by passing out copies of the bills in Native Hawaiian communities in recent weeks, said beneficiary consultation "involves a two-way flow of information and opinion exchange that can lead to several levels of participation, including the involvement of drafting policy and legislation." That has not been done, deFries said. The interim will allow stakeholders to "begin a process of truth that includes: a full and complete inventory of the ceded lands, an audit of all gross revenues generated by the ceded lands, and beneficiary consultation with stakeholders," she said.


Honolulu Star-Bulletin, March 19, 2008

Long dispute over ceded land revenues needs resolution

Key Senate committees have put a hold on a bill to authorize a settlement between the state and the Office of Hawaiian Affairs.

REJECTION of legislation that would have allowed the state and the Office of Hawaiian Affairs to settle a dispute concerning revenue rights from ceded lands appears rooted in a number of problems that could prove difficult to overcome.

Among them are dissatisfaction with the agency's performance, a belief that the settlement will cut off possibilities for future claims to public lands and that it was prepared without enough involvement of the Hawaiian community. In addition, the value of the settlement -- a total of $13 million in cash, $187 million in land and annual payments of at least $15.1 million -- has been criticized as too little.

Despite questions and conflicts, stakeholders should acknowledge that an agreement on the ceded lands is imperative if conditions for Hawaiians are to improve. A settlement cannot be all things to all people and individual concerns must give way to what's best for the greater number.

The agreement hoped to end a 30-year dispute over revenues owed from lands once held by the Hawaiian monarchy. Negotiated for four years, it was announced in January and bills were introduced to authorize the administration to complete the deal, but three Senate committees voted to hold back a House measure after hearing opposition. Other bills remain, but are unlikely to gain traction in the Legislature this session.

Though OHA has made good efforts in informing its constituents and inviting them to comment and discuss the agreement, it seems that presenting the settlement after it was completed did not sit well. OHA could try to temper opposition through increased communication and by further explaining how and why it came to approve the agreement. However, the agency has been persistently criticized as not doing enough for its beneficiaries, a dissatisfaction that could stand in the way of anything it does.

The agreement would require OHA to release additional claims to revenue from public lands, but the bill had been revised to set $15.1 million a years as the least OHA would receive with increases to be set legislatively or by the administration to reflect rising land values and income.

It does not bar future claims by a yet-to-be-established Hawaiian governing entity, but if language in the settlement does not make that clear, it also should be revised. If the agreement can be renegotiated to resolve other issues, OHA and the state should attempt to do so. However, to continue to resist compromise hampers OHA's goals and leaves another generation of Hawaii's native people at risk.


Honolulu Advertiser, Thursday, March 20, 2008

Senate fumbled duty on ceded land accord

There are roughly 200,000 beneficiaries of the Native Hawaiian Trust living in the state, and not one of them benefited from the actions of the state Senate this week.

On Monday, following a long hearing, three Senate committees voted to kill a bill that would enact a negotiated settlement of the disputed revenues owed to the trust from ceded lands, property once owned by the kingdom.

Courts have ruled that the settlement requires legislative action, so the Senate owed the public more than simply rejecting the deal and delaying resolution. That's not leadership: It's just politics.

The notion that Hawaiians are due a share of ceded revenue is enshrined in state and federal law. Just how much money has been a legal question fought in the courts for 30 years. So the Senate figured: What's one more year?

Opponents raised fears that the deal closed off all future claims to the land and other legal points that were all answered. Others believed the agency could have won more.

But in a failing economy, the chances of a better settlement are remote. The settlement negotiated by the Lingle administration and the Office of Hawaiian Affairs would have brought $200 million in cash and property into the trust, enriching it by 50 percent.

Now, because the bill was killed — to spend the better part of another year hearing from the community — that new wealth won't come in. No interest will accrue, no extra money for Hawaiian programs. No plans can be made for using the land.

If the point was to give Hawaiians a chance to weigh in, that was already happening: The Senate had passed a resolution directing OHA to hold community meetings and report back March 26. More than 50 briefings have been held, written comments collected, polls taken.

What was the point of ordering all that public comment, at beneficiary expense, if it was going to be ignored?

The House is working, as it should, to resurrect the bill. Let's hope our elected leaders can work to produce a solution rather than prolong the problem.


The Maui News, March 20, 2008

Hawaiians can’t agree

Anything involving ceded lands is a contentious issue in the Native Hawaiian community, if you can consider any group of fractious individuals and organizations a community.

From a non-Hawaiian but sympathetic perspective, there seems to be a three-way division among members of the islands’ host culture — those who believe the annexation of Hawaii by the United States was illegal and that the kingdom should be restored as a separate national entity, those who believe it is possible to establish a Native Hawaiian government within the existing political structure, and those who stand on the sidelines.

The latest contention to surface is a $200 million settlement between the state and the Office of Hawaiian Affairs over revenue from ceded lands, that is, lands that belonged to the kingdom at the time of the annexation.

The matter has been argued for 30 years. Gov. Ben Cayetano’s administration failed to reach any kind of agreement. Gov. Linda Lingle’s administration spent four years negotiating an agreement with OHA and sent the settlement to the Legislature for ratification. Some sort of agreement is required by the state constitution.

The proposed agreement would have handed over 200 acres of land, including revenue-rich 80 acres of Big Island resort property. It also would have required annual payments to OHA of at least $15.1 million as well as a one-time $13 million payment.

The deal was scuttled after a march of Native Hawaiians told the state Senate the settlement was “chump change” and would perpetuate more than a century of wrongs suffered by descendants of the original inhabitants of the islands. Despite 42 public meetings, OHA failed to convince Native Hawaiians the settlement was in their best interests. After listening to five hours of objections, senators effectively killed the legislation for this year. That leaves OHA and the state with trying to craft an acceptable version of the settlement.

That may be an impossible task unless the various factions of the Native Hawaiian community can first agree among themselves what is the best way for the culture to survive into the future.


Honolulu Advertiser, Friday, March 21, 2008

OHA still pushing for ceded lands settlement

By Gordon Y.K. Pang

Office of Hawaiian Affairs trustees and Hawai'i Attorney General Mark Bennett yesterday vowed to continue pressing for legislative approval of a $200 million ceded lands settlement this year. But a key senator was skeptical that a resolution could be reached in the remaining six weeks of the Legislature.

"We want to make it clear that we are not giving up," OHA Chairwoman Haunani Apoliona said at a news conference, with five of her eight colleagues flanking her.

But Sen. Jill Tokuda, who chairs the Senate's Agriculture and Hawaiian Affairs Committee, said Tuesday's decision to hold House Bill 266, which contained the settlement offer, speaks for itself.

"I think by holding the measure, that was a pretty definitive message that we do not intend to pass the bill this year," said Tokuda, D-24th (Kailua, Kane'ohe).

Tokuda stressed that she and other senators want the parties to get more feedback from the public, work on the bill and come back next year.

Bennett, the Lingle administration's chief negotiator in settlement talks with OHA, said, "We are going to do everything we can to try to still get this passed in this legislative session."

The agreement would transfer to OHA three state land parcels on O'ahu and the Big Island with an assessed value of $187 million, plus $13 million in cash, as settlement for OHA's share of the revenues derived during the past 30 years from ceded lands — lands that once belonged to the Hawaiian government.

OHA also would get a minimum of $15.1 million annually as its share of future revenues.

In return, OHA would give up all rights to make further claims.

Opponents of the agreement, who dominated the testimony Monday before the three Senate committees voted, believe the settlement gives up too much, offers too little and is fraught with issues beyond that of revenues derived from ceded lands.

Yesterday, OHA trustees said those arguments are groundless.

"All we are talking about is rent that is past due, that's all," said trustee Walter Heen.


There has been no discussion of who should own ceded lands or the larger issue of sovereignty for Native Hawaiians, he said. "The effort of OHA should not be confused with the effort toward sovereignty," Heen said.

Once the parcels transferred to OHA are developed, they would be able to generate income to help sustain its programs for Native Hawaiians, Heen said.

Trustee Oswald Stender reiterated that a recent poll conducted for OHA found that a majority of Hawai'i residents, and even more Native Hawaiians, support legislative approval of the agreement. "I am disappointed that the senators responded only to the concerns of a vocal minority," Stender said.

Not all OHA trustees are on board with the settlement agreement as it is written.

Trustee Rowena Akana said she has concerns with wording of the agreement, which she believes extinguishes the rights of Native Hawaiians to legally challenge the state for future claims.

"The right to sue came really hard for us. I don't want to give up that right," said Akana, reached by phone on the Mainland.

OHA attorney Robert Klein, however, said the wording deals only with claims to ceded land revenues, and that how much OHA should receive has always been the Legislature's prerogative.

"OHA is entitled to manage income and proceeds derived from the Public Lands Trust; that's all OHA's kuleana is," Klein said. "It's up to the Legislature to provide those incomes and proceeds. OHA's entitled to a pro rata share, that's constitutional. All you can waive is the right that you have. We don't have the right to ownership of the ceded lands."

Klein said the Hawai'i Supreme Court, in three decisions related to ceded lands, has talked about the need for lawmakers to resolve the revenues issue. Failure to do so could constitute a breach of fiduciary duty, he said. Failure to pass a settlement could make a legal case against the state stronger, he said.


Klein stressed, however, that he and trustees have not discussed seeking a judicial resolution to the issue and won't do so unless legislative options have been exhausted.

Senate Bill 2733, the Senate's version of the agreement, crossed over to the House earlier this month. Procedurally, the House could change the language of the Senate bill to reflect HB 266. If that happens, House and Senate members could try to hammer out an agreement in conference committee at the end of the session. But that could only be done if the Senate leadership assigns conferees to discuss the matter, which it is not required to do.

House Majority Leader Kirk Caldwell, D-24th (Manoa), said he believes there's still a chance a settlement can be approved by the Legislature this session.

House leaders have not yet discussed what to do, pending a report by OHA and the state summing up comments made at more than 40 public hearings on the agreement as requested by the Legislature, Caldwell said.

OHA trustees said it was unfair that the Senate made its decision before the March 26 deadline it itself had imposed on the report it had requested.

Sen. Clayton Hee, a former OHA trustee who has opposed the agreement in part because he believes OHA is not getting enough, said the parties have not yet clearly defined how they arrived at $200 million as the amount that should be paid.

"If the devil is in the details, then clearly it's a reasonable request to see the details — and so far as I'm aware, there are no details," he said. "It's a complicated accounting process and it begs disclosure."


Honolulu Advertiser, March 21, 2008
Letter to editor


The recent opposition to the $200 million ceded lands settlement came from some Hawaiian homesteader groups.

These 50 percenters (Hawaiians with a 50 percent or more blood quantum) object to the settlement because they believe the revenues that the Office of Hawaiian Affairs receives from the public land trust should be spent exclusively on them.

They want a commitment that 100 percent of the $200 million will be spent on them. They apparently are willing to stop the settlement to make their point.

However, this settlement is not about whether the 50 percenters are exclusively entitled to OHA's public land trust revenues. That issue is being litigated in an ongoing lawsuit, Day v. Apoliona, that I am not involved in. The settlement documents are completely neutral on this issue in the sense they do not change OHA's constitutional obligation to the 50 percenters. Therefore, if the homesteaders win the Day case, OHA may be obligated to spend the settlement proceeds on the 50 percenters.

All nine OHA trustees, the Lingle administration and all but two House members have supported this settlement.

A recent Ward Research poll shows that 68 percent of Hawai'i residents and 72 percent of Hawaiians support legislative approval of the settlement.

Moreover, until the homesteaders voiced their opposition on Monday, there was very little opposition to the settlement and that opposition came primarily from those who generally oppose all Native Hawaiian benefits and those who believe the United States is illegally occupying Hawai'i.

I urge the homesteaders to take their battle elsewhere, and I urge the Senate to reconsider the merits of the settlement.

William Meheula
OHA settlement lawyer



Honolulu Adsvertiser, Sunday, March 23, 2008

Hawaiians' priorities, not expediency, must matter in settlement

By Robin Puanani Danner

The ceded land trust consists of roughly 1.2 million acres of lands, submerged lands and harbors that were ceded by the federal government to the state under section 5(f) of the 1959 Hawai'i Admissions Act as a public trust. There are five purposes of the trust proceeds, one of which is bettering the conditions of native Hawaiians as defined by the Hawaiian Homes Commission Act of 1920. In 1978, the Office of Hawaiian Affairs was created as a state agency under Article XII to administer the ceded lands revenues dedicated to this obligation. The governor, the Legislature and the courts all agree the state's OHA has not received a proper share of the revenue. The only questions left are the terms and purpose of the settlement.

I applaud Gov. Linda Lingle and OHA for their leadership in taking up this longstanding issue, but process and inclusion matter, and what is important to Hawaiians must matter. The Legislature should not hastily approve this settlement for the sake of settling, or political or monetary expediency, or simply because it has been an issue for 30 years.

The opportunity here is much bigger. Hawaiians and our great state deserve a different future over our difficult past. It will come from a different approach. We cannot start the dialogue when the ink on a settlement agreement has dried; we must resolve to reach an agreement that accounts for what the beneficiaries of the ceded land trust value most. Without consultation, we cannot know if this agreement contains their priorities at all. Expediency is not the center of the bull's-eye, and settlement terms that flash a number and call out "This is your last chance, take it or leave it" is not how we achieve the very different future we see for ourselves as Hawaiians or as a state.

There are more than 200 years of native history of this kind of deal-making, here and in every state in the country. Under circumstances that are only defined by the measurements and consumption models of unrestrained capitalism, we have not fared well, nor has the stewardship of our island home as a result. Both hang in the balance of what we do differently now. We must not make decisions with insufficient time for due diligence. We must not accept being the last to know and having no opportunity to establish what our collective beneficiary priorities are in order to guide the priorities of an agreement at the beginning. We must not accept that fear of lost dollars and cents is the place where our deliberations begin. If we do, we rob our state of the Hawaiian ingenuity and energy toward developing long-lasting solutions to our state's most complex challenges.

I don't subscribe to these circumstances, and I don't subscribe to the notion that $13 million-plus land is the only answer to a 30-year question based on them. We haven't asked the right questions of the very beneficiaries we say this settlement supports, especially our homestead communities. We haven't asked, "What are your priorities in your communities, given the condition of your island homeland and the future you are reaching for? Will $13 million in cash and land at Kaka'ako, Hilo Bay and Kalaeloa meet them?" What is important to Hawaiians must matter in this settlement and in the administration of this trust, lest it be just another expedient deal, and not the fulfillment of priorities we know for ourselves must be achieved. Process and inclusion matter.

Going forward there are three actions the state should consider:

1) Agree to the completion of a ceded lands inventory. Regardless of whether lands are idle or generating income, this is a prudent data point for the trust and state to have and publish. Reasonable people would not agree to sell the contents of the family home without taking an inventory.

2) Coordinate well-planned consultation sessions over the next nine months, versus the past six weeks, to provide beneficiaries with comprehensive data by which to fully evaluate the agreement, and submit a report to the Legislature in 2009.

3) Specifically reach out and identify the priorities of beneficiaries of the Hawaiian Homes Commission Act on this settlement and in general. Beneficiary organizations are long standing and well known to the state and OHA, easily and readily available for consultation. Designate a representative from the Hawaiian Homes Commission to participate in any negotiations.

Settlement agreements of this nature, involving a public trust containing the collective assets and resources of the Hawaiian people, must pursue equitable value based on a set of priorities, and a reconciliation that respects the knowledge of those most impacted. Our trust will survive the time necessary for due diligence, and a thoughtful evaluation by the Legislature and the beneficiaries of the trust.

Robin Puanani Danner is the CEO of a Native Hawaiian community development nonprofit, is a former bank executive, and lives on Kaua'i. She wrote this commentary for The Advertiser.


Honolulu Advertiser, Sunday, March 23, 2008

Killing best hope for resolution isn't pono; we've waited 30 years

By Haunani Apoliona and Mark J. Bennett

On March 17, three Senate committees decided that instead of increasing the Office of Hawaiian Affairs' asset base by approximately $200 million — almost 50 percent — OHA will instead get nothing this year for what is past due. We disagree with this decision.

In 1959, through the Hawai'i State Admission Act, the United States transferred approximately 1.4 million acres of crown and government lands of the Kingdom of Hawai'i — also known as ceded lands — to the state.

The Admission Act required Hawai'i to hold 1.2 million acres and their income and proceeds as a public trust for one or more of five purposes, including supporting public schools, making public improvements, developing home ownership, bettering the conditions of native Hawaiians, and providing lands for public use.

OHA was created by the 1978 Constitutional Convention in part to receive a portion of income and proceeds from the ceded lands. The Legislature was responsible for determining and specifying how much was to go to OHA.

Since 1980, the Legislature has passed laws to spell out OHA's portion and the method of calculation; however, the Hawai'i Supreme Court has said that the legislation was so imprecise that the total amount to be paid to OHA cannot be accurately determined.

The court made clear that it is the responsibility of the Legislature to decide how much is to be paid. Sadly, that never happened in a way that allows this issue to be put to rest. As a result, the amounts have been the subject of divisive lawsuits for 30 years.

The Lingle administration, like previous administrations, has attempted to agree with OHA on income and proceeds amounts to be paid to OHA dating from 1978. Since 2003, we have informed the Legislature that we would attempt to negotiate this issue.

In 2008, the state and the OHA trustees came to a proposed resolution of the disputed amount of the income and proceeds from the ceded lands from 1978 to the present to be paid OHA. The proposed settlement provides about $200 million in land and cash to OHA (since 1978, OHA has received about $430 million in income and proceeds). OHA methodically selected land that would provide both income and growth. In addition, OHA would receive a minimum of $15.1 million per year in the future with the provision for legislative reexamination. The lowest annual payment OHA has received is $0, when Gov. Ben Cayetano suspended all payments; the highest is $15.1 million.

The House found the basic terms fair, but reminded us that the Legislature was not a party to any settlement and that the final decision was one of policy for the Legislature. The House passed a bill with which we agreed.

The Senate president introduced a resolution, adopted by the Legislature, requesting that OHA and the attorney general conduct statewide informational meetings, solicit input, and provide a report to the Legislature by March 26, 2008. We took this very seriously and spent many hours listening and discussing this matter at more than 40 meetings throughout Hawai'i.

The Senate's three committees, however, did not even wait for our report to be filed before making their March 17 decision.

While many comments were received from the more than 1,400 attendees at these meetings, not a single person who spoke suggested that Hawaiians were due nothing from the state for these past amounts.

Some felt the waiver language was too broad. OHA and the state, however, did not negotiate or resolve any issue other than the disputed amount of the income and proceeds from the ceded lands from 1978 to the present to be paid OHA, and the amount going forward — no other historic grievances of Hawaiians and nothing relating to the 1893 overthrow or to the state's ability to sell ceded lands to third parties. To make this absolutely clear and respond to concerns, the waiver language has been revised.

Some have said that there are unresolved questions. However, during the March 17 hearing, not one senator asked a question of any witness, nor offered any plan or resolution. If there is a Senate plan, it is a secret.

It is not pono to kill legislation that fairly resolves this 30-year-old controversy while failing to offer any alternative. It is not pono to direct us to solicit input and then not even consider our report of the voices we heard before acting.

To those who tell us to continue waiting, our response is that 30 years is long enough. Even if what we propose is not perfect, it is fair, and it is our best hope for resolution, especially given economic trends.

The Legislature will not adjourn for at least another six weeks, and thus the Senate still has an opportunity to act in this legislative session. That would be pono. Leadership involves decision-making that offers solutions, and not just hollow criticism.

Haunani Apoliona is chairwoman of OHA's Board of Trustees. Mark J. Bennett is the attorney general for the state of Hawai'i. They wrote this commentary for The Advertiser.



Honolulu Star-Bulletin, March 23, 2008
Gathering Place [commentary]

Despite legislative setback, OHA will pursue land settlement

by Haunani Apoliona

In a joint public hearing this week, three Senate committees voted to reject a bill to approve the proposed settlement of past due amounts from the Public Land Trust owed to the Office of Hawaiian Affairs. House Bill 266 had been overwhelmingly passed by the House with only two representatives voting against the bill.

The vote by five senators to hold a proposed settlement is a bitter blow to those who have waited 30 years for the state to fulfill its legal obligation to OHA.

This is a setback, but we will not give up. We are meeting with legislators to respond to false statements raised in testimony, and continuing to hold community forums to receive feedback. A joint resolution, authored by the Senate and passed in January, requires OHA to report to the Legislature by this Wednesday with public comments and suggestions on improving the settlement terms. For five senators to make a decision before even receiving community response is disrespectful of the legislative process and those who participated in the statewide community meetings.

The five senators should reconsider their action by letting the full Senate decide or at least provide an alternate plan. We are working with the House leadership to find another vehicle that will allow us to keep the settlement agreement alive and incorporate the changes requested in community meetings. We will fulfill our commitment to finish the 46 scheduled community meetings and compile a report for the Legislature due this week.

It is our fiduciary duty and kuleana to press forward, and we are asking everyone -- both Hawaiians and non-Hawaiians -- to make decisions based on facts, not election-year agendas. Three issues in particular have been raised in community meetings and we are addressing them:

» The Kalaeloa Makai lands in the settlement agreement are "toxic dumps." The Kalaeloa Makai land is zoned industrial. Because of its previous use as a feedlot, existing environmental studies indicate there might be contaminants but that can be reasonably mitigated. A Phase II environmental assessment is under way, and OHA will continue studies on all parcels if the settlement is passed. OHA's objective is to obtain land that can generate revenues in the future so other pristine land can be preserved.

» No settlement can be reached without a complete inventory of ceded lands and revenues. Such an inventory would be a tool for a native governing entity in pursuing the ownership claims to ceded lands. We strongly support the state compiling an inventory of ceded lands, but such an inventory is not required to settle the amount of past due disputed income and proceeds. OHA is seeking its unique right to a portion of income and proceeds from lands that produce income, and the state reports that information under terms of Act 178 passed in 2006.

» OHA failed to account for beneficiary input in the process of reaching a settlement agreement. The Board of Trustees, elected to carry out OHA's constitutional and statutory mandates, have negotiated a proposed settlement in order to respond to their mandates and the desires of beneficiaries that have been expressed for 30 years: get paid for what is past due and gain more resources that can be used for beneficiary programs. The accord itself was reached after a mediated negotiation that lasted more than four years. It was not a secret that OHA was negotiating with the state, and the Legislature has been specifically and publicly advised of these negotiations since 2003. The negotiations followed numerous well-publicized lawsuits, legislation and discussions between the Office of Hawaiian Affairs and previous governors. Because of the confidential nature of negotiations, OHA had planned a series of community meetings to provide details of the agreement prior to legislative enactment. In addition, public hearings during the legislative process have provided many opportunities to comment for both Hawaiians and non-Hawaiians.

The legislative process is not over. We are hopeful that before the Legislature adjourns, we will have a settlement agreement that is fair, just and reasonable. It is our duty to persevere, and we will do no less for the Hawaiian people. Ho'omau a holomua kkou.

Haunani Apoliona is chairwoman of the Board of Trustees of the Office of Hawaiian Affairs.


The Maui News, Sunday March 23, 2008

Scuttling decades of work ‘deplorable and unjustified’

The decision by five state senators, including one of two Native Hawaiian senators in our legislature, to defer action on a bill that would have approved a settlement between the state and the Office of Hawaiian Affairs is deplorable and unjustified.

By scuttling 30 years of work and frustration seeking to resolve past due debts admittedly owed by the state to OHA, these senators have denied us of much needed programs and opportunities to help uplift our people to the equivalent of between $10 million and $20 million just from earned interest each year.

The reasons are many but weak, the results prolonged and fatal. Hawaiians do not deserve to be represented by political animals who bend to political pressures, intrigue and power.

A hundred misled and misinformed Hawaiians at a combined Senate hearing of three committees and a total of five senators have trumped 72 percent of all Hawaiians in Hawaii who favor this settlement and whose common sense and desire to progress are not hindered by the ego, ignorance and selfishness of a few.

Indeed the Hawaiian crab syndrome lives.

The citizens of Hawaii can probably understand that all have the right to express their views. However, we should not stand for the kind of irresponsibility demonstrated by legislators who we trust to have some intelligence and integrity.

Perhaps the House can rekindle the flame and give life to this legislation on behalf of not only Hawaiians but all Hawaii in the interest of justice, fairness, and the perpetuation of Hawaii’s indigenous culture and people.

Boyd P. Mossman, Trustee
Office of Hawaiian Affairs, Maui


Honolulu Advertiser, Wednesday, March 26, 2008

OHA land deal about the future

By Jerry Burris
Advertiser Columnist

With the kind of money it routinely throws around, you'd think that the proposal for a $200 million land-and-cash settlement with the Office of Hawaiian Affairs over disputed past-due payments would be no big thing for our Legislature.

And, if truly it was only about land and cash, it probably would be no big thing. After all, the Legislature has long been on record as agreeing that OHA and its beneficiaries are owed something from the state to support its operations and good works.

The sticker is that just about everyone recognizes this conversation is about more than cleaning up a past-due obligation that has clouded the state's books and bond rating and has hampered OHA operations. Really, there is no way around it. The conversation is about the long-term relationship between Hawaiians and the rest of the state, institutionally and as individual citizens.

Until that conversation clarifies, it's understandable many lawmakers want to dance away from the issue.

Supporters of the proposal, including OHA chairwoman Haunani Apoliona and Attorney General Mark Bennett, are vigorous in their insistence that this plan in no way affects that larger "conversation" about a possible Hawaiian entity and whether it is or is not entitled to anything, let alone ceded lands or their revenue. This is simply an effort to settle a dispute over how much OHA is entitled to under the 1978 Constitution, they say.

Indeed, the legislation enabling the settlement was rewritten to make this point abundantly clear, they argue. But suspicions remain.

Those who envision a Hawaiian "nation" or political entity one day have far more in mind than the few chunks of land and $15 million a year in direct cash support as envisioned in the current proposed settlement. Some want a say over what happens to all ceded lands, those 1.2 million acres or more that are being held in trust by the state.

Others say a settlement might make sense, but they are not sure whether the current offer is (a) enough or (b) appropriate to the needs of Hawaiians. That is, might a settlement include more money for Hawaiian Homes or other such programs rather than putting the cash directly in the hands of the Office of Hawaiian Affairs?

But here's the bottom line: No matter what the current administration says and no matter how sincerely it may believe what it is saying, many Hawaiians do not see this conversation as being simply about cleaning up the past. They see it as about the future, for themselves and for all Hawaiians.


Honolulu Advertiser, Thursday, March 27, 2008

OHA upset over proposed audit

By Gordon Y.K. Pang


What: A hearing on a proposal requiring the Office of Hawaiian Affairs to undergo a financial and management audit before next year's legislative session

When: 2:45 p.m. today

Who: The Senate Agriculture and Hawaiian Affairs Committee

Where: Room 224 of the state Capitol.

To see the actual language of the proposal, go to: www.capitol.hawaii.gov

KAPOLEI — State senators will consider a measure today calling for a financial and management audit of the Office of Hawaiian Affairs.

The audit would come on the heels of the Senate's rejection last week of an agreement between the state and OHA to settle a 30-year dispute over revenue from land formerly owned by the Hawaiian government.

The settlement would give OHA $200 million in land and cash plus an annual $15.1 million payment. In exchange, OHA would relinquish any claims to revenues from the so-called "ceded lands."

Senate President Colleen Hanabusa said an audit of OHA would give everyone a chance to review the settlement.

"What the (OHA) beneficiaries are asking for, which we in the Senate do not find to be unreasonable, is to say, 'Slow it down a little bit. Let us participate in this. Talk to us.' And so the audit, to me, is an extension of that," said Hanabusa, D-21st (Nanakuli, Makaha).

Opponents of settlement have said it asks Hawaiians to give up too much for too little in return. Many Native Hawaiian leaders also complained they were not consulted on the settlement.

OHA trustees are unhappy with the proposed audit and question why lawmakers are asking for an audit now when the agency is mandated by law to undergo one every four years and is due one next year.

Meanwhile, Gov. Linda Lingle used the occasion of the dedication of the new Department of Hawaiian Home Lands headquarters in Kapolei yesterday to urge Hanabusa and other senators to allow the settlement agreement to go to a vote on the Senate floor.

Three Senate committees voted March 17 to shelve the proposal, telling the parties to come back next year after taking into consideration the concerns of constituents.

Lingle criticized senators for rejecting the proposal before they received a report they had sought detailing a series of public hearings held by OHA on the proposed settlement. The report was due yesterday and was received by House and Senate leaders yesterday afternoon.

The House has already approved the settlement and the Senate is all that stands in the way of its passage.


Opponents of the plan said OHA should have done a better job informing its constituents, particularly Hawaiian homesteaders, about the plan.

Hanabusa said she is calling for a financial audit because of those concerns. Hanabusa noted that state Auditor Marion Higa is required by statute to conduct an audit next year.

However, some OHA beneficiaries have asked for an audit to be done immediately. "In light of the settlement issues, we're just looking to expedite it one year," Hanabusa said.

She said beneficiaries have been ignored throughout the negotiation process. Some beneficiaries have raised questions about how OHA spends ceded land monies. "Whether or not those (concerns) are valid, we'll see," Hanabusa said.

OHA trustee John Waihe'e IV suggested the call for an audit was punitive.

"It does seem like an attempt to rile us up for whatever reason," he said. "To the average person, it makes them look petty and bad. They weren't getting positive feedback for holding the bill (to approve the settlement) and now they're doing this."

Lingle said she is equally puzzled by the request for an audit.

"It's irrelevant to the issue at hand," she said. "The issue is about an obligation that the state has to the Hawaiian people, with OHA as the recipient to it, as (mandated) by our Constitution. So, to me, the idea of an audit doesn't make any sense."

During her remarks at the dedication of DHHL's Kapolei headquarters, Lingle criticized senators for not approving the settlement.

"They didn't ask any questions of those who attended the meetings and they didn't offer any alternative plan for resolution to this situation," Lingle said.

The governor said she couldn't understand why senators opposed the settlement when they had not yet received an OHA report they had requested documenting a series of more than 40 community meetings statewide held by the agency and the attorney general's office on the plan.

"The senators didn't want to read what was in the report," Lingle said. Lingle received applause from about half the crowd of about 1,000 people, mostly Hawaiians, as she said "It's up to the senators to take another look ... to try our best to make certain that 30 years doesn't turn into 35, or 40, or 50 years."


The dispute over revenue from the 1.4 million-acre ceded lands — which include the Honolulu International Airport, Honolulu Harbor, Sand Island and Kahului Harbor — has been going on for three decades.

That 36-page report, handed to Senate and House leaders late yesterday, concluded that "there is clearly both support for and opposition to the settlement agreement and proposed legislation in the community."

The report acknowledged that a majority of those who spoke at the community meetings "were critical of the settlement."

However, the report said, most of the concerns raised were "from or about broad perspectives and concerns (rather) than what OHA's share of income and proceeds from the ceded lands ought to be."

The report also said a majority of those attending the meetings did not offer suggestions on how to improve the settlement and pointed to an OHA-paid poll that showed a majority of Hawaiians and non-Hawaiians support the settlement.

OHA trustee Walter Heen said an audit of OHA at this time has no relationship to the ceded lands issue.

Heen said OHA hires an outside auditor to conduct an independent audit annually and reports have come back with no problems.

As to the lack of prior consultation on the settlement, Heen noted that the Senate last year passed a resolution urging OHA to inform the Senate president and House speaker if a potential settlement is reached "recognizing the confidential nature of ongoing negotiations."

Kamaki Kanahele, president of the Sovereign Councils of the Hawaiian Homelands Assembly, applauded Hanabusa's call for an immediate audit of OHA.

Kanahele said homesteaders were not properly consulted on the settlement agreement, even though OHA has a fiduciary responsibility to them.

Further, Kanahele said, OHA has been negligent in giving priority to beneficiaries of the ceded land trust. "And this audit will factually prove it."


Honolulu Advertiser, March 27, 2008

** TWO letters to editor



As one of the original Office of Hawaiian Affairs trustees, I am upset Senate leaders are balking over a long-overdue settlement that will help countless Native Hawaiians.

This agreement is solid and will not affect so-called "global" claims. It settles the funding dispute that began when I was sworn in as an OHA trustee more than 27 years ago.

I am also distressed that some former OHA trustees and a current trustee are engaging in a campaign to misinform and scare the Native Hawaiian community.

These senators who want another nine months of meetings to make this agreement pono forget that they demanded OHA take this deal to the community this session and also insisted OHA prepare a report on those meetings by March 26. OHA conducted dozens of such meetings. I was at the Maui meeting and spoke in favor of the settlement.

But before OHA could forward its report, certain senators killed the measure.

Let's hope House members have the guts to stand up to the fringe elements of the Hawaiian community who intimidate and shout down those in the mainstream who favor this important measure.

Joseph Kealoha
Former OHA trustee


The recent closing of Molokai Ranch is a sad story of how the angry and unreasonable voices of a minority of Moloka'i residents caused the rest of the Friendly Isle to suffer. After a lengthy consultation with the community, Molokai Ranch agreed to turn over 50,000 acres to a public trust to maintain the open space lifestyle of Moloka'i in exchange for the right to develop a high-quality residential project at La'au Point.

The loud activists caused the politicians to stop the project. Now 120 residents are without jobs and Moloka'i will not be getting the 50,000-acre trust and revenue in perpetuity from the development project.

A similar thing is happening with the OHA proposed settlement. The Senate is succumbing to angry activists. The settlement is a reasonable compromise. Leaders can never satisfy everyone. If the Senate does not like the settlement, then improve it but do not lose this golden opportunity like Moloka'i did. Life is fragile and full of examples of where an un-acted upon opportunity today becomes a forever-lost opportunity tomorrow.

Colette Machado
Trustee, Moloka'i and Lana'i, Office of Hawaiian Affairs


Honolulu Star-Bulletin, March 28, 2008

OHA trustees slam audit plan

A Senate committee is pushing ahead with an audit of the Office of Hawaiian Affairs, despite claims by several OHA trustees that a regularly scheduled review of the state agency for Hawaiians would get government scrutiny next year anyway.

Sen. Jill Tokuda, chairwoman of the Agriculture and Hawaiian Affairs committee, recommended yesterday that the legislative auditor conduct an audit and report back by the opening of the 2009 Legislature.

OHA trustees said during a three-hour committee hearing that an audit was already scheduled by the end of 2009, but Tokuda said she wanted the results early next year.

"This will give us the opportunity to get the details in case we have recommendations," Tokuda (D, Kaneohe-Kailua) said.

The audit also was opposed by Attorney General Mark Bennett, who said it was not needed.

Former OHA trustee Mililani Trask, however, said in written testimony that OHA had no strategic plan, employees were leaving in large numbers and there were questions of unauthorized expenditures.

The resolution calling for the audit, SCR 138, now goes for another Senate committee vote, a vote by the entire Senate and then action in the state House.


Honolulu Advertiser, Friday, March 28, 2008

OHA audit resolution advances in Senate
Lawmakers deny claims by trustees, state AG that action is punitive

By Gordon Y.K. Pang

A key Senate committee yesterday advanced a resolution urging state Auditor Marion Higa to conduct a financial and management audit of the Office of Hawaiian Affairs, following more than three hours of testimony for and against the action.

OHA trustees and state Attorney General Mark Bennett said the sudden introduction of the resolution was punitive and tied to the critical comments they made after three Senate committees rejected a $200 million settlement of ceded land revenues last week.

They also pointed out that Higa is already scheduled to conduct an audit this year, under a statute that mandates such an audit of OHA every four years.

Senators said the suggestion for an audit came from growing calls from constituents who question OHA's expenditures and want more accountability from an agency established to benefit Native Hawaiians.

"This was brought to us by the beneficiaries," said Sen. Jill Tokuda, D-24th (Kane'ohe, Kailua), who chairs the Agriculture and Hawaiian Affairs Committee that voted 4-0 in favor of the resolution. Looking at trustees sitting in the audience, she said: "Step back for a moment and think about who called for this."

Tokuda said senators are aware that an audit is supposed to be done next year and were told by OHA officials that Higa intends to begin in December. That might mean the Legislature might not receive the audit until the 2010 legislative session. The resolution "is the Legislature's way of saying we would like to see an audit completed on time" for the 2009 session, Tokuda said.

The resolution now goes before the Senate Ways and Means Committee.

Bennett and several trustees pointed out inaccuracies in the wording of the resolution. For example, they said, it says lawmakers were unaware that negotiations over ceded land revenues were taking place when, in fact, the Senate last year passed a separate resolution calling for a settlement to be reached soon.

Tokuda responded that the original language of the audit resolution came from constituents. The incorrect language is being dropped, she said, and instead there will be language citing concerns raised by OHA critics about its expenditures, as well as other issues that came up in Higa's 2005 audit.

All references to the ceded lands revenues settlement are being deleted as well, she said. "We didn't want to have the two issues collide."

That a large chunk of the language was being gutted in favor of completely new wording that still calls for an audit further angered those who oppose the resolution, including Attorney General Bennett.

Bennett said it was too convenient to switch out the language.

"I am left with the unalterable impression that this is a punitive resolution, that this is a resolution that was intended to punish the Office of Hawaiian Affairs for taking public positions critical of the Hawai'i state Senate," he said. The message being sent to the public is that "criticize the Senate and you will be subject to an audit," he said.

Several OHA critics, however, suggested that OHA, as an agency, has been punitive and refused to offer funding to those who opposed OHA's views.

Other senators, among them Russell Kokubun, D-2nd (S. Hilo, Puna, Ka'u) and Sam Slom, R-8th (Kahala, Hawai'i Kai), also disputed the charge that the resolution is punitive.

"There were growing concerns about OHA's management, which were separate from ceded lands," Slom said.

Organizations and individuals spoke for and against the resolution, again magnifying a split in the community on OHA's standing.

The Sovereign Councils of the Hawaiian Homelands Assembly and Hui Pu, a coalition of Hawaiian sovereignty groups, supported the resolution. The Association of Hawaiian Civic Clubs and Native Hawaiian Legal Corp. opposed it.


Hawaii Reporter, March 28, 2008

Following the Trail of Money, Influence and Arrogance at the Office of Hawaiian Affairs

By Malia Zimmerman

In 2005, when Hawaii Reporter questioned the spending habits of the Office of Hawaii Affairs’ elected trustees, we were immediately brushed off. Not deterred, we filed Freedom of Information Act (FOIA) requests but, in violation of Hawaii’s open government law, we never received a response. Finally with the intervention of the Office of Information Practices, the office that advocates for open government, were told we could get the information for a bargain -- a mere $11,000.

What did we want to know?

We simply wanted to follow the money.

Specifically we asked how much money OHA trustees were spending on travel and what class they traveled in (I knew they traveled in First Class because I was on a flight with several of the trustees to Washington, D.C. and while I went to coach, they went to First Class);

We asked where the trustees stayed while on their trips, for how long and at what cost; and what family members traveled with them and on whose nickel;

We asked how much they spent on advertising for the Kau Inoa campaign to get Hawaiians to sign their blood quantum registry (they sponsor numerous newscasts, most likely to the tune of millions of dollars over the last few years);

We asked how much they spent on parties under the guise of getting signatures for Kau Inoa (we’d heard they spent $60,000 on an elaborate party in Las Vegas and obtained very few signatures in the process); We also asked how much they spent on lobbying with their D.C. firm and local lawyers, advertising and advocating for the Akaka bill and where the money was going.

In June 2006, Hawaii Reporter was the only news organization to fly to Washington, D.C. to cover the Akaka Bill cloture debate at the U.S. Capitol. Afterward, we were the only Hawaii news organization to attend OHA’s press conference, which followed the press conference by Akaka Bill opponents in the U.S. Senate. At that press conference, I asked OHA chair Haunani Apoliona why she hadn’t responded to my FOIA requests. In front of other national media and the attorney general, she promised that OHA was working on compiling the information and would get it to me soon. I persisted but she refused to estimate how much OHA was spending on advertising, Kau Inoa and the Akaka bill, and would not answer questions about her personal expenses including her first class travel to D.C. and accommodations.

Funny, Hawaii Reporter never received that information from OHA and the more we pushed, the more OHA began to attack us in their monthly newsletter Ka Wai Ola and in press releases. OHA even sent a photographer to follow me and harass me at an Akaka Bill debate that I covered (but it was no bother -- I felt like a celebrity followed by the paparazzi). Amazing that the money that was supposed to go to Hawaiians was instead being used to pay a photographer to chase me around -- and no one seemed to care. During 2007, we renewed our call for information, but received nothing.

Then in 2008, we published a ZeroShibai.com cartoon -- “Cow Inoa” -- poking fun at Apoliona, the Akaka Bill, and the Office of Hawaiian Affairs. Outraged, Apoliona lashed out, issuing a press release that called us “racist” and said Hawaii Reporter is not a real news organization. She, a state elected official -- demanded we pull the cartoon. KGMB TV covered the story, interviewing former Honolulu Star-Bulletin reporter Crystal Kua, who now works for OHA as its media spokesperson, and she echoed the same sentiments.

KGMB Reporter Lisa Kubota also interviewed me and aired four reports -- all very fair and balanced -- and in each I said the cartoon was a response to OHA’s secretive and arrogant attitude and refusal to reveal any financial information since 2005. I called OHA Hawaii’s most powerful and most secretive state agency and said no media investigate the trustees because they sponsor virtually every newscast on every local news station (KGMB’s Kubota disclosed her station takes money from OHA). I also noted that anyone who challenges OHA is deemed a "racist" (if they are non-Hawaiian) or "radical fringe" (if they are Hawaiian).

We received weeks of hate mail from people calling us all kinds of names for publishing the cartoon -- and several of them wrote to our advertisers trying to get them to cancel their ads. Some of our advertisers were threatened. We traced some of those letters back to recipients of OHA money. The national media covered the story and noted how amazing it was that a state agency was ordering us to pull the cartoon and interfering with the First Amendment.

On March 17, 2008, St. Patrick’s Day, something remarkable happened. During a joint Senate hearing at the state Capitol on the proposed $200 million ceded lands settlement, several dozen Hawaiians for more than 5 hours testified to their outrage over OHA’s representation of them. Their anger was so intense, that the very lawmakers who’d just voted to approve the settlement changed their vote and held the bill. Several Hawaiians said they distrusted OHA and did not believe the agency was representing them. Some called for an audit.

State Senators were surprised by the opposition to OHA and agreed to author a resolution calling for a fiscal and management audit of OHA.

Thursday, the Senate Agriculture and Hawaiian Affairs committee heard the measure. OHA trustees came out in strong opposition. State attorney general Mark Bennett, who commonly appears on OHA-sponsored television programs, and testifies for OHA before Congress, came out strongly against the resolution. He accused Senators of calling for the "punitive" audit in retaliation for the piece he authored with OHA trustees in one of the daily papers this Sunday critical of the Senators’ decision to hold this session the ceded lands bill that he negotiated.

But Hawaiians who endorsed the idea of an audit of OHA overwhelmed the moral indignation of OHA trustees and Bennett. Some Hawaiians even asked:

How much has been spent on OHA commercials and television shows promoting the Akaka Bill and Kau Inoa;

What about the Kau Inoa tee shirts -- how much do they cost; And the parties OHA is throwing under the guise of promoting Kau Inoa, how much do those cost;

How much has been spent on lobbying for the Akaka Bill;

How much are the trustees spending on themselves.

One Hawaiian told Senators that he'd been told it would cost $11,000 to get the information he requested.

Senators on the committee voted unanimously to pass the audit resolution and in fact plan to strengthen the language detailing the concerns of their Hawaiian constituents.

The resolution will go to the Ways and Means committee, and there will be tremendous pressure on the members to kill it there and delay the audit. But the fact is, the tide is turning against OHA and they are now suspect.

In a Honolulu Star-Bulletin blog entry, a writer compared the current climate at OHA to the corruption at Bishop Estate a decade ago -- something I have done publicly as well. That corruption at the Bishop Estate -- which boiled down to trustees taking millions of dollars for themselves and their political cronies -- is well documented in a book called Broken Trust by University of Hawaii Professor Randall Roth and Judge Samuel King.

If history really repeats itself, OHA trustees may find themselves investigated and then ousted as Bishop Estate’s high paid trustees were a decade ago.

The lesson: Hawaii's media doesn't want to challenge the establishment, because, as with the Bishop Estate, it is more lucrative to get along.

Reform and accountability have to come from within the Hawaiian community -- the call for these is getting louder. It seems the depth of discontent is extremely severe.


Honolulu Advertiser, Sunday, March 30, 2008

Senate gives priority to OHA audit

OHA audit: The state Senate Agriculture and Hawaiian Affairs Committee moved a resolution on Thursday calling for a state financial and management audit of the state Office of Hawaiian Affairs.

The state auditor was already scheduled to conduct an audit of OHA this year but the committee's action showed that senators believe it is a priority.

State Sen. Jill Tokuda, D-24th (Kailua, Kane'ohe), the committee's chairwoman, said the audit was suggested by OHA beneficiaries who want more accountability over OHA's spending.

State Attorney General Mark Bennett and OHA trustees described the audit as punitive and connected to comments they made that were critical of the Senate after three Senate committees rejected a $200 million state settlement with OHA over ceded land revenues.


Honolulu Advertiser, Sunday, March 30, 2008
Letters to the Editor


** 2 letters to editor


The 2008 Legislature has an opportunity to resolve an important issue facing all of Hawai'i — the long-overdue settlement of public land trust revenues owed to the Office of Hawaiian Affairs.

But the chances of that happening seem to dwindle daily at the Capitol.

First, three Senate committees killed the bill 10 days before OHA complied with a resolution that it produce a report on 45 meetings it held statewide with beneficiaries over terms of the $200 million settlement.

Next, one of those Senate committees produced a poorly written and obviously rushed resolution calling for a financial and management audit of OHA.

After OHA trustees and state Attorney General Mark Bennett challenged numerous falsehoods in the resolution, the committee chair incredibly said she didn't know who wrote the resolution and then gutted the offending portions.

This is political sabotage designed to divert public attention from the real issue — a public land trust settlement.

OHA is not afraid of an audit. It already has a legislative audit scheduled to start in December, in addition to yearly internal audits that show continuing improvements.

Still there's a push for a hurried up audit, and as lawmakers spend time on that, there remains no resolution on the settlement.

It's another opportunity squandered on an issue the state Senate is responsible for but has long shirked. And, once again, all of Hawai'i loses.

Oswald Stender
OHA trustee



I am a beneficiary of the Hawaiian homestead trust and the OHA trust and I am offended by the March 18 editorial. The Advertiser has done a disservice to our Hawaiian community, as you have skewed the facts around the ceded lands deal.

Have you not done your homework on OHA and how the trustees are elected and what their function is? They are now elected by all citizens of Hawai'i and they do not represent Native Hawaiian beneficiaries. They are elected to administer a public trust for the betterment of Native Hawaiians.

For you to say homesteaders have no status separate from other OHA beneficiaries in the ceded-land issue is preposterous.

Mahalo nui to our lawmakers for delaying the ceded lands deal. You did the right thing. You knew it was wrong, knowing the Hawaiian community had no knowledge of this agreement. There was no beneficiary consultation or inventory of land.

Denise L. Ka'a'a
President, Kalawahine Streamside Association and member, Sovereign Councils of the Hawaiian Homelands Assembly


Honolulu Star-Bulletin, March 30, 2008, EDITORIAL

Audits should not be political weapons

State senators are calling for an accelerated audit of the Office of Hawaii Affairs.

Trying to fathom the motives of state lawmakers is like trying to read tea leaves in a cup of black coffee. Such is the case involving a proposed settlement between the state and the Office of Hawaiian Affairs over revenue rights from ceded land. Having rejected the settlement, key senators are now demanding an immediate audit of OHA even though one is scheduled by law for next year.

Their claim that the call for an audit has nothing to do with the settlement is contradicted by the language of a draft resolution, which clearly states that it does. Although Sen. Jill Tokuda, chairwoman of the Agriculture and Hawaiian Affairs committee, says the language will be revised, she and her allies cannot deny it was the basis for their action.

The draft also attempts to give the impression that lawmakers had been kept in the dark about a possible settlement when records, including bills they passed and briefings they requested and received, show they had been well aware that negotiations were taking place.

So why the accelerated audit?

State Attorney General Mark Bennett suggests that senators are peeved because OHA had the gall to criticize them. Trustee Walter Heen says lawmakers want to meddle in policy decisions outside their jurisdiction. Senators say they are simply doing the will of constituents.

Given the benefit of the doubt, the question of what senators hope to accomplish remains.

If the audit finds problems with OHA, which seems likely because that is the nature of audits, will senators then have grounds to reject another settlement next time? Or will they then attempt to amend the state Constitution, which binds OHA to representing the interests of Hawaiians?

Audits are an important, powerful tool largely controlled by the Legislature and should not be used for political purposes. Nor should they provide cover for weak- kneed lawmakers unwilling to make tough decisions.


Honolulu Advertiser, Monday, March 31, 2008, EDITORIAL

Why such a big rush to finish OHA audit?

So much to do, so little time.

That could define the jobs of many people, but among them certainly has to be Marion Higa, state auditor. Every year the Legislature rolls out requests for studies of various state agencies.

Now the Senate has added a comprehensive audit of the Office of Hawaiian Affairs. And hurry it up, please.

Here's the rub: State law requires OHA to be audited every four years, and since the last one was done in 2005, Higa anticipated finishing the next one in 2009.

A Senate resolution is pressing her staff to finish it in time for the 2009 session. If there is a compelling reason that the audit needs to be done that quickly, it hasn't been made clear by the Agriculture and Hawaiian Affairs Committee that passed it.

Its chair, Sen. Jill Tokuda, insists that the resolution was driven only by demands from OHA beneficiaries who criticize the way the agency spends money. She added that the series of four-year cycles originally was to have begun in 1996, which would have made an audit due this year.

Funny how that scheduling lag never mattered until this year, in the wake of a major spat. The Senate balked at finalizing a negotiated settlement of revenues owed OHA.

The Legislature needs to treat requests for audits with an even hand. This year such requests may include studies of University of Hawai'i athletics and the Department of Education. It's hard to imagine why an OHA audit should rise to the top of the list.


Honolulu Advertiser, Tuesday, April 8, 2008

Ceded-land debate back on the table
OHA brings revised plan, calling for new negotiations, to Senate

By Gordon Y.K. Pang

The Office of Hawaiian Affairs and state Attorney General Mark Bennett may soon be negotiating again on ceded land revenues.

If they negotiate under a new plan being offered in the Senate, the $200 million in land and cash for OHA that both sides saw as fair and reasonable when the settlement was announced Jan. 18 would be the minimum starting point for new talks.

The state House approved the OHA-Bennett settlement, but three Senate committees rejected it and told OHA to come back next year with a better plan.

OHA officials have offered to the Senate what essentially is a new bill calling for the agency and Bennett to renegotiate — this time with more public input during the negotiations.

OHA administrator Clyde Namu'o said the new legislation is "a realization that the Legislature is not going to pass the settlement as we presented it because they're not satisfied with it."

House Majority Leader Kirk Caldwell, D-24th (Manoa), said the latest plan "is a request to continue negotiations with a floor of $200 million."

It's the latest twist in the debate over how much money OHA should get as its share of the revenues and proceeds generated by ceded lands, the lands once owned by the Hawaiian government.

As late as Friday, OHA officials publicly were united with Gov. Linda Lingle's administration and House leaders in urging the Senate to pass HB 266, the settlement approved by the House.

Both Bennett and Caldwell said they still want the existing settlement to be approved by the Senate, adding that they are happy the Senate leadership is willing to discuss ceded land revenues this session.


Senate President Colleen Hanabusa said the new legislation makes no reference to waiving other claims to past revenues or to any future revenues yet derived. The OHA-Bennett settlement waives any other claims to past, current or future revenues and says OHA should get a minimum of $15.1 million annually for future revenues, with the exact amount to be determined by the Legislature.

Hanabusa, D-21st (Nanakuli, Makaha), noted that a waiver and the settling of future claims were among the major objections raised by opponents of the OHA-Bennett settlement. Those opponents included key state senators, who argued that OHA gave up too much for too little.

"What is not in the (new) bill are the two things that we (in the Senate) had the most trouble with, which was the waiver language as well as the issue of the capping of future revenues. Those are not in there," she said.

Under the new legislation, House Bill 1201, Committee Draft 1, OHA and Bennett are required to continue negotiations on the amount the agency should have received from Nov. 7, 1978, to June 30, 2008.

The new proposal also calls for OHA to:

Renegotiate part of its settlement with Bennett that covers three parcels of land: in Kaka'ako Makai and Kalaeloa on O'ahu, and Hilo's Banyan Drive on the Big Island. Those three parcels, with a combined assessed value of $187 million, would have been given to OHA along with $13 million cash under the OHA-Bennett settlement.

Hold "periodic open public meetings throughout the state" during its new negotiations with Bennett. Lack of consultation with the Hawaiian community was one criticism of the OHA-Bennett settlement.

"Attempt to reach an agreement" with Bennett before the Legislature reconvenes in January 2009.


Both Hanabusa and Namu'o stressed that while language about a waiver of other claims and future claims aren't in the latest plan, those subjects could still work themselves into what finally returns to the Legislature next year. "Arguably, they might be able to negotiate it but that's not in this particular bill."

"The bill doesn't have any waiver because we're not settling anything," Namu'o said. "That's not to say that the settlement document itself, if we arrive at a new agreement, would not have a waiver."

Exactly which side is pressing for a reopening of negotiations was unclear.

Hanabusa said OHA officials and attorneys visited her office Thursday and Friday and provided "their position on the settlement."

Hanabusa added: "As far as we're (in the Senate) concerned, we were probably pau for this session. And the House, as I understand it, wasn't going to try to revive it."

Namu'o made it clear that OHA would not have offered up a new plan if the Senate had been more receptive to the OHA-Bennett proposal.

Bennett said any plan to keep the discussion about ceded land revenues alive this session is positive.

However, he said, "we spent a significant amount of time negotiating with OHA and presented for the Legislature's consideration a product which both we and OHA believed was fair and reasonable."

Asked what the administration will do if the Legislature approves a bill asking it to go back to the bargaining table, Bennett said: "I'm not going to speculate about legislation ... but at this point, we have nothing more to negotiate."

Ultimately, he said, "it's the Legislature's kuleana to decide how much it's going to pay OHA."


Caldwell said he has not yet discussed the new plan with fellow House leaders, but believes "the House is pretty clear where it stands — it wants a comprehensive settlement."

The House approved the OHA-Bennett settlement "to resolve this in a comprehensive way and to not have to put off for another year defining our constitutional obligation which we've put off for 30 years."

State Sen. Jill Tokuda, D-24th (Kailua, Kane'ohe), chairwoman of the Senate Agriculture and Hawaiian Affairs Committee, said the new proposal basically addresses the concerns senators had with the OHA-Bennett settlement.

Tokuda said the proposed settlement should be used as a base for further discussions that involve the Hawaiian community. "It's taking the rest of the year to go out and have that discussion with the beneficiaries and the community to flesh out the details, to get to a point where everyone is in agreement, and then to come back to us," she said.

Sen. Clayton Hee, D-23rd (Kahuku, Kane'ohe), the former OHA trustee, has been among the loudest voices opposing the OHA-Bennett proposal.

Hee said he "instinctively" believes the $200 million package is not enough to settle past claims.

The chairman of the Water and Land Committee, Hee said he and other senators still want to see a more detailed accounting of how the parties calculated that the settlement should be $200 million.


Honolulu Star-Bulletin, April 8, 2008

State’s OHA deal fails

By Richard Borreca

The proposed $200 million Office of Hawaiian Affairs settlement appears dead for this year's legislative session.

Senate President Colleen Hanabusa said yesterday that OHA trustees voted to urge the Legislature to pass a bill directing OHA to spend another year in negotiations.

Earlier this year, Gov. Linda Lingle and OHA Chairwoman Haunani Apoliona concluded four years of negotiations with a deal that would have given OHA more than $187 million in land on Oahu and in Hilo, plus a $13 million payment and a promise to give OHA an additional $15 million every year.

But some native Hawaiian beneficiaries, including several Hawaiian homestead organizations, said not enough was known about the settlement and complained that they were not consulted. While trustees endorsed the settlement, several former trustees said the offer was too broad and limited native Hawaiians' ability to sue for past damages.

Yesterday, Hanabusa, who had not supported the settlement, said she met last week with trustees and attorneys representing OHA. "They want to continue to negotiate for the upcoming year and to hold public meetings no less than once a month," she said.

"To me, this is a very good position. I think they realize they need to touch bases with their beneficiaries," added Hanabusa (D, Nanakuli-Makua).

The new plan was called a compromise by Senate GOP leader Sen. Fred Hemmings (R, Lanikai-Waimanalo).

"While I think it would have been a win-win for everybody if there was a settlement, I think they tried to get it through this year and they couldn't," Hemmings said.

"As I understand it, it would be compromise to keep the issue alive for another year, so it is not dead."

Hanabusa said the new proposal would direct OHA and the state to continue to negotiate.

"Basically, it orders the attorney general back to the table with OHA, and the AG doesn't have the prerogative of saying he didn't want to talk," she said.

Attorney General Mark Bennett said the settlement already reached was fair and reasonable.

"To the extent that this means a bill will be in conference, it is better to have a bill alive in conference than no bill at all," Bennett said, noting that the new proposal must still be negotiated by both the House and Senate.

Clyde Namuo, OHA administrator, said the issue "is in the hands of the Legislature."


Honolulu Advertiser, April 10, 2008, Letters to editor


Sen. Clayton Hee is right. The ceded lands settlement is not enough.

In 1999, OHA turned down a settlement offer in which it would have gotten $250 million and 365,000 acres of land. Now it has accepted $13 million and a couple of hundred acres of land. In the next settlement proposal, OHA will be paying the state.

Whenever the state gets together with itself to settle Native Hawaiian claims, the state gets the mine and Native Hawaiians get the shaft.

Meanwhile, the Department of Hawaiian Home Lands is mismanaging Hawaiian homelands on the Big Island. Gorse has destroyed 25,000 acres of Hawaiian homelands and is rapidly destroying another 25,000 acres. This is one-fourth of the 200,000 acres of homelands and no one is the least bit interested in this gross breach of trust.

Walter Schoettle


Honolulu Advertiser, Sunday, April 27, 2008

Hope fades for ceded lands
OHA will work to improve settlement, overcome key obstacles

By Gordon Y.K. Pang

With much fanfare about how a 30-year dispute had been resolved, the Office of Hawaiian Affairs and the Lingle administration in January rolled out a $200 million settlement designed to settle claims over revenues from lands that once belonged to the Hawaiian government.

But as this year's Legislature winds to a close, discussion on the settlement is nowhere to be found in the halls of the state Capitol.

OHA administrator Clyde Namu'o said that lawmakers technically have until Wednesday to agree on a settlement. But he acknowledged that he was "not real hopeful" there would be any movement.

Namu'o said that despite failing to get the agreement approved this year, OHA trustees want to work hard during the interim to craft something more palatable to all parties for next session.

"We need to consider what our course of action is going to be during the interim," Namu'o said. "My guess is we will still go back out into the community to talk about the settlement. We know the issues now that people have raised and we're going to try to see if we can address each one of them."

Three Senate committees scuttled the plan in mid-March, citing several sticking points.

Then, earlier this month, OHA officials and key senators tried to salvage some measure of progress by offering a plan that would have required the agency and the state to go back to the bargaining table between now and the next session in exchange for the guarantee of consideration by lawmakers then.

But House leaders refused to entertain that proposal, leaving OHA officials and the Lingle administration at the end of this session with nothing to show for its two years of negotiating.

The debate over ceded land revenues is one of the most substantial issues facing OHA and many in the Hawaiian community who feel the state has been receiving financial and other benefits from the use of the lands without giving proper compensation.

This is the closest the state and OHA have come to a resolution, and the worry is that if this opportunity is lost, it could be years more before the proper amount of revenues can be used to help the Hawaiian community.

The main obstacles in the way of a settlement agreement:

Concern by some lawmakers, a large homesteader group and others that OHA was not getting enough in exchange for giving up any future claims to ceded land revenues.

Anger that OHA's constituents, and primarily those beneficiaries defined as Hawaiians with 50 percent or more blood, weren't properly consulted.


The settlement called for OHA to receive from the state three parcels of land in Hilo, Kaka'ako and Kalaeloa, with a collective assessed value of $187 million, and $13 million cash. With a trust fund valued at about $400 million, the deal would in essence increase OHA's holdings by 50 percent.

The money is used for a host of programs and services designed to benefit Hawaiians, including funding for Hawaiian immersion charter schools, business and education loans, landbanking culturally rich properties, and its controversial lobbying for a federal recognition act in Congress.

In exchange, OHA would have signed away any rights by Hawaiians to past or future claims to ceded land revenues.

Many who testified at legislative hearings and community meetings regarding the settlement proposal argued that what would be given up was too much, particularly the provision that any right to make future claims be relinquished. Some suggested that it would be unreasonable to bargain away rights and revenues that could not yet even be imagined.

That argument made an impression on Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha).

OHA officials "need to discuss this with their beneficiaries because it is their rights being affected," Hanabusa said. "In essence, it's cutting their future benefits."

OHA officials privately acknowledged that giving up future claims was something the state pushed in the settlement. In OHA's early April proposal to begin talks again in the interim, there was no mention of future claims.

Key senators who put down the original settlement bill all pointed to the lack of consultation with native Hawaiians as a reason for their decision.

A slew of Hawaiian homesteaders and their supporters who testified in mid-March reminded lawmakers that language in both the Hawaiian Homes Commission Act of 1920-21 and the state Admissions Act of 1959 directed a share of ceded land revenues, also known as public land trust revenues, to go to "the betterment of conditions of native Hawaiians," defined with a small "n" by the federal government as those with 50 percent or more Hawaiian blood.

That reopened a long-running debate about OHA's obligation to those with 50 percent or more Hawaiian blood. A majority of its $400 million trust has come from the ceded land revenues and interest generated from those revenues. In recent years, less than 10 percent of its annual revenues, about $3 million, actually comes from state general funds not tied to ceded land revenues and interest.

Homesteaders and their supporters say that's a good reason why they should have been better informed, and had a say, in the settlement negotiations.


OHA administrator Namu'o said the agency's philosophy has been that anything that benefits all Hawaiians benefits 50 percent Hawaiians.

OHA believes there are an estimated 400,000 Hawaiians nationwide, about 250,000 of whom live in Hawai'i. There are believed to be about 50,000 to 80,000 native Hawaiians and less than 5,000 pure Hawaiians.

For a while, OHA had a loan program only for homesteaders. That has since ended, but native Hawaiians can still apply for home improvement loans through other programs open to all Hawaiians, Namu'o said.

"I'm not disputing that part of our mission here is to help the 50 percenters," Namu'o said. "I think our approach is we satisfy both the Admissions Act and the state Constitution."

But Hanabusa, whose district is comprised largely of the Wai'anae Coast, which contains the largest percentage of Hawaiian homesteaders in the state, believes the 50 percent Hawaiians have a legitimate point.

OHA was created by the 1978 Constitutional Convention, and later approved by voters, as the receptacle for ceded land revenues, also known as public trust funds. Its "vision and mission" statement was worded in a way intended to address all segments of the Hawaiian community:

"The mix of trust funds, earmarked for Hawaiians of at least 50 percent blood quantum, and general funds, provided annually by the Legislature, allows OHA to serve Hawaiians of any blood quantum."

"I think the co-mingling is very questionable for any purpose," said Hanabusa, who chaired the Senate Hawaiian Affairs Committee for six years before becoming Senate president.

The issue of how, or to what degree, OHA meets its obligation to native Hawaiians is also the subject of the Day v. Apoliona lawsuit, which challenges the agency's authority to use ceded land revenues for those who do not have at least 50 percent Hawaiian blood. (See accompanying story.)


Critics of the settlement also took issue with the three parcels that were to be given to OHA, suggesting that they are not prime properties. They also said that the 110 acres in Kalaeloa may contain toxic material, an allegation that state and OHA officials have denied repeatedly.

Sen. Clayton Hee, D-23rd (Kahuku, Kane'ohe), said he opposes the settlement because neither the state nor OHA has provided the details about how the parties arrived at the settlement amount and the parcels chosen.

Hee, a former OHA trustee, believes his former colleagues could have and should have bargained for a better deal from the state.

Sen. Russell Kokubun, who also voted against the settlement agreement, said there needs to be a much larger discussion on what types of lands OHA should receive from the state.

Kokubun, D-2nd (S. Hilo, Puna, Ka'u), whose district also includes large populations of native Hawaiians including Maku'u and Keaukaha-Pana'ewa, said the beneficiaries should play a bigger role in deciding which lands should be part of the settlement.

"When they (OHA and the state) made their selection on those three parcels of land, that came out of nowhere," Kokubun said. "I don't know how they evaluated and determined those were to be the pieces. I think there are certainly other productive lands that need to be considered."

For instance, the state could even help facilitate an exchange of a parcel such as the Big Island's Waipi'o Valley, a culturally significant area for Hawaiians, which is owned primarily by Bishop Museum, Kokubun said. Mauna Kea could also be discussed, he said.

Another possibility might be an entire ahupua'a system such as the region of Manuka in the Ka'u district of the Big Island, Kokubun said. "There's value there that goes way beyond the commercial appraised value," he said.


Honolulu Advertiser, Sunday, April 27, 2008

Dispute arises over whom OHA serves

By Gordon Y.K. Pang

A key side issue that arose during the debate over the proposed ceded land revenues settlement is the discussion about whom the Office of Hawaiian Affairs is supposed to serve.

OHA officials say they are mandated to serve all Hawaiians and that by doing so, everyone benefits. But a growing number of native Hawaiians, those having 50 percent or more Hawaiian blood, say OHA is obligated to serve only them under an original 1921 mandate that preceded the agency by 57 years.

Though the courts have found for OHA on several occasions, the issue resurfaced during debate over the ceded lands settlement between OHA and the state.

Ceded lands are the crown and government lands that once belonged to the Hawaiian government.

OHA was established in the 1978 Constitutional Convention and tasked with administering the share of ceded land revenues, also known as public land trust revenues, that, according to the Hawaiian Homes Commission Act of 1920-21 and the state Admissions Act of 1959, are supposed to go to the "betterment of conditions of native Hawaiians."

But ConCon officials went on to give OHA a broader mandate, the "betterment of conditions of Hawaiians," which has commonly been interpreted to mean anyone with any amount of Hawaiian blood.

The bulk of OHA's $400 million trust has come from the ceded land revenues and interest generated from those revenues. Today, OHA gets $15.1 million annually from the state for its share of ceded land revenues. Its other chief revenue sources are about $18 million in interest from its investments, and about $3 million in general funds from the state.

Kamaki Kanahele, chairman of the Sovereign Councils of the Hawaiian Homelands Assembly, said more, if not all, ceded land revenues should go to native Hawaiians.

A former OHA trustee and administrator, Kanahele said that in the early 1980s, the state began giving "matching" money to OHA.

"That gave OHA the flexibility to service all Hawaiians," Kanahele said. But from that point forward, he said, OHA no longer kept count of how much the 50 percent-plus Hawaiians were getting compared to everyone else.

Attorney Bill Meheula, hired by OHA to help negotiate the ceded land revenues settlement and who has done other work for the agency, said the Admissions Act and the revised Hawai'i Constitution spelled out that the money is to be used for both native Hawaiians and Hawaiians.

The Constitution says there are two beneficiaries — the native Hawaiians and Hawaiians, Meheula said. "But then it went on to say that in managing and administering any of its funds, including the incomes and proceeds from the public lands trust, it was to be used for native Hawaiians and Hawaiians, not just native Hawaiians," Meheula said.

Prior challenges against OHA's use of ceded land revenues for all Hawaiians were unsuccessful, Meheula said.

More recently, the Day v. Apoliona lawsuit challenges OHA's discretion to use ceded land revenues for non-Hawaiians. Filed by five men, all of whom are at least 50 percent Hawaiian, it was dismissed by U.S. District Judge Susan Oki Mollway only to be ordered reinstated by the 9th Circuit appeals court in August 2007. The issue is slated to be back in Mollway's court next month.

Samuel Kealoha, one of the five plaintiffs, said the 1978 ConCon "scammed" 50 percent Hawaiians of the ceded land revenues. Kealoha, 59 and a seven-eighths Hawaiians, said: "The scheme was to undermine native Hawaiians as recognized by the state of Hawai'i. When they put in 'and Hawaiians,' that was the scam. Congress did not say anything about 'and Hawaiians.'"

Ray Soon, a former chairman of the Department of Hawaiian Home Lands, said there was no mass objection by 50 percent Hawaiians when ceded land revenues were diverted to help all Hawaiians. The native Hawaiians have been more than generous, he said.

"That's 30 years of redirection of funds to another beneficiary class, without protest," Soon said. "Many of us held back our criticism because we thought it critical that all Hawaiians be working together, pulling together in the same canoe, so to speak."

Soon believes OHA and DHHL, which is mandated to providing home ownership to those with 50 percent or more Hawaiian blood, should work more cooperatively.

Leaders at both agencies agree they need to work more closely with each other, said DHHL Director Micah Kane. "How we go about it is important; we need to go about it in a respectful way," Kane said.

Mel Kalahiki, chairman of the group Living Nation of Hawaii, said Hawaiians of all blood quantums need to recall the days before OHA existed. "We had nothing, no place to go," Kalahiki said. "The money was collected and it was going to the general funds of the state." Today, he said, "look at the money OHA is putting into schools and the language, etc. It's a lot of help. "

University of Hawai'i law professor Jon Van Dyke, author of the book "Who Owns the Crown Lands of Hawai'i?" and a paid consultant for OHA on several projects, said that in 1921, conservative interests locally and in Congress inserted language into the Hawaiian Homes Act that limited the amount of Hawaiians entitled to benefit from the ceded lands.

"The sugar planters here in the Islands wanted to limit the number of people that would be eligible to be on home lands," Van Dyke said. That's how the 50 percent eligibility requirement got into the Hawaiian Homes Act. "No Hawaiians supported that," Van Dyke said.


Honolulu Star-Bulletin, May 3, 2008

Lingle pulls land talks with OHA off the table

By Richard Borreca

Rejection of a $200 million settlement between the state and the Office of Hawaiian Affairs was the Legislature's biggest failure, according to Gov. Linda Lingle.

In a brief meeting with reporters yesterday, Lingle said her administration will not resume negotiations with OHA or offer any new proposals to the Legislature regarding the settlement required to satisfy state constitutional requirements.

The settlement called for giving OHA $13 million plus state land in Kakaako, Kapolei and the Big Island -- valued at $187 million. It also called for additional payments of $13 million a year.

Senate leaders said the settlement had not been discussed with the Hawaiian community, and directed OHA to start better communications and come back next year with another settlement.

Asked if the state would return to the bargaining table, Lingle said yesterday, "No, we won't."

"We were trying to help the Legislature. It was their responsibility. We worked in good faith for four years to bring them a package that was fair to taxpayers and the Hawaiian people," Lingle said.

"I think it was a bad, shortsighted, political decision," Lingle said. She singled out Sen. Jill Tokuda (D, Kaneohe-Kailua), who, as chairwoman of the Hawaiian Affairs Committee, played a big role in rejecting the settlement. "The fact that a couple of people could stop something is always frustrating," Lingle said.

Tokuda responded that OHA was willing to continue the community discussion and return to the Legislature next year. "I think they recognized the importance of taking a good look at the issue," Tokuda said. She denied that she unilaterally killed the settlement. "I wouldn't say I am a one-man show. I think the Senate as a whole had a number of concerns," Tokuda said.

Winning legislative approval to continue administration plans to purchase and then preserve the Turtle Bay area of Oahu's North Shore was a bright spot for the Legislature, Lingle said.

Lingle singled out Sen. Clayton Hee (D, Kaneohe-Kahuku) and Rep. Mike Magaoay (D, Schofield-Kahuku) for their work moving the bill through the Legislature. "The people who voted for Turtle Bay win very big because it shows a recognition that we need to preserve our state," Lingle said.

On Thursday evening the Legislature came close to overriding Lingle's veto of a measure that would have restricted her power to declare a state emergency and ignore state or county laws. The Senate approved the veto override, but the House failed to vote on it.

Lingle said she declared a state emergency to handle the problems with homelessness on the Leeward Coast, and the Legislature did not fight her. "I truly believed it was a state health emergency," Lingle said, describing how officials saw homeless people using the beach as a toilet. "I don't mean in the public bathroom, I mean on the public beach. There were children there, and they would go to public schools. I thought the chance of the spread of disease and illness was higher, and we needed to do something right away," Lingle said.

The state dropped environmental, procurement and zoning laws to speed the construction of emergency housing for the homeless. Lingle said she understood that legislators were concerned, but when she wrote House and Senate leaders saying, "'If you have a problem with me using these powers, please let me know and we will just stop,' they did not ask me to stop," Lingle said.


Honolulu Advertiser, Tuesday, May 6, 2008

Ceded-land deal at impasse
Lingle won't budge, leaving claims to future revenues unresolved

By Gordon Y.K. Pang

Just days after the end of the legislative session and a failed attempt to reach an agreement over how much ceded-land revenue is owed to the Office of Hawaiian Affairs, the key parties involved appear to again be at loggerheads.

This time the issue is over what should happen next. While Gov. Linda Lingle says her administration stands by the existing proposal, lawmakers and OHA want to go back to the bargaining table.

Lawmakers did not approve an agreement reached between the Lingle administration and OHA that would have given the agency three parcels of land valued at $187 million and $13 million cash, as well as a minimum of $15.1 million in ensuing years.

But in the waning days of the session, legislators tacked onto the state budget a nonbinding proviso requiring the Lingle administration and OHA to resume negotiations on the 30-year-old dispute.

Meanwhile, Lingle on Friday told reporters her staff will not return to the negotiating table with OHA leaders.

The key element is a disagreement over claims to future revenues that would be generated from ceded lands — land that once belonged to the Hawaiian government and have since been "ceded" to the state.

The Lingle bargaining team, led by Attorney General Mark Bennett, pushed hard to include the elimination of all future claims to ceded-land revenues.

But future claims became a serious point of contention for many of those who opposed the bill. A segment of the Hawaiian community questioned the wisdom of OHA bargaining away revenues that could, as yet, be unknown.

While the bill was approved by the House, three Senate committees shelved the plan, insisting that OHA needed to discuss it with beneficiaries.

With several weeks left in the session, senators urged House members to support a new measure calling on the administration and OHA to renegotiate but to leave out discussion of future claims. The House, however, declined to support that legislation and instead asked senators to support the Lingle-OHA plan.

Lingle could not be reached for comment yesterday, and neither could Bennett, who was out of state. Lingle administration spokesman Lenny Klompus confirmed what the governor said on Friday.

"She said she would not resume negotiations with OHA or offer any new proposals to the Legislature regarding a settlement," Klompus said.

The administration was seeking to help the Legislature with its responsibility, Klompus said.

It is not clear if Lingle had known of the budget proviso before making her comments on Friday.

Bennett, when asked several weeks ago what he thought about going back to the bargaining table, said, "I'm not going to speculate about legislation ... but at this point, we have nothing more to negotiate."

As the session ended, OHA Administrator Clyde Namu'o said the agency would take lawmakers' advice and go back and speak to constituents and address their concerns.

Namu'o yesterday told The Associated Press that the future now depends on Lingle.

"We have been without the benefit of these resources for these 30 years while the issues are being debated back and forth," Namu'o said. "A lot of it will depend on the willingness of the executive branch to come to the table and work with us."

OHA wants to leave the price of the deal unchanged at $200 million while reviewing the value and locations of the lands it selected.

Meanwhile, Senate and House leaders who disagreed on the $200 million settlement proposal are in agreement that the administration and OHA should go back to the bargaining table.

Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said the proviso was inserted in response to OHA's concern that Lingle would not return to negotiate.

Hanabusa said OHA leaders told her and other senators that the idea of eliminating future claims in exchange for $15.1 million annually in the future was Bennett's idea and that they reluctantly agreed. "They had to agree to go along with it or the AG (attorney general) would no longer negotiate," she said.

The bill was subsequently amended in the House to require that $15.1 million be only the annual minimum, but Senate leaders said they still didn't think it was enough for what OHA was giving up.

State Rep. Kirk Caldwell, D-24th (Manoa), the House majority leader, said, "The state and OHA should try to reach an agreement prior to the convening of the next legislative session.

"We believe that OHA and the state negotiated in good faith and that the Legislature this year should have authorized (the settlement agreement). As far as the House is concerned, there is a 30-year obligation outstanding that still needs to be fulfilled. For us, it was a missed opportunity."

Caldwell, an attorney, said he'd heard what Lingle said and doesn't think it works for the lawmakers to negotiate with OHA. "Hopefully, as time passes, the parties will be willing to step up again," he said.

Both Caldwell and Hanabusa agreed, however, that the budget proviso has no effect of law.

"It's up to the governor as to what she wants to do," Hanabusa said. "We'd like to believe that the governor is going to at least give it consideration given the fact that this is the position of the Legislature."

The Associated Press contributed to this story.


The Maui News, May 6, 2008

Hawaiian land deal unresolved; Lingle will not renegotiate

By MARK NIESSE, The Associated Press

HONOLULU — An attempt at settling a 30-year dispute over former Hawaiian kingdom land revenues may have to be reworked since Native Hawaiians opposed the deal, causing it to fail in the Legislature.

The $200 million settlement between the state and the Office of Hawaiian Affairs was shot down by five key senators in March after hundreds of people testified against it. It wasn’t revived before the Legislature adjourned last week.

But Gov. Linda Lingle says she won’t renegotiate because lawmakers should revive the existing agreement when they return to the Capitol next year.

The deal would give OHA $13 million and hand over 200 acres of land worth $187 million, including about 80 acres of the Big Island resort area along Banyan Drive in Hilo. It also would have required annual payments of at least $15.1 million

The settlement was an effort to end a fight over how the state should meet its constitutional obligation to pay the Office of Hawaiian Affairs income from land ceded to the U.S. government.

‘‘We have been without the benefit of these resources for these 30 years while the issues are being debated back and forth,’’ said Clyde Namuo, administrator for the Office of Hawaiian Affairs. ‘‘A lot of it will depend on the willingness of the executive branch to come to the table and work with us.’’

OHA wants to leave the price of the deal unchanged at $200 million while reviewing the value and locations of the lands it selected.

The agency also wants any legislation to only address past disputes because many people said they were concerned the settlement would waive their rights to make future claims. The state already pays OHA $15 million a year under a law passed in 2006.

Lingle believes lawmakers should reconsider their inaction in settling this long-running argument, said spokesman Russell Pang.

‘‘We hope for the Legislature to move forward on the bill,’’ Pang said. ‘‘The Legislature didn’t say they wouldn’t budge.’’

Sen. Jill Tokuda, chairwoman of the Agriculture and Hawaiian Affairs Committee, said state residents made it clear to lawmakers that there were questions about the $200 million amount, the parcels selected and waivers of future claims.

‘‘This is about fulfilling an obligation that goes back much further than the last 30 years,’’ said Tokuda, D-Kaneohe-Kailua.

The Office of Hawaiian Affairs and lawmakers plan to meet with Hawaiian groups over the next few months to hear their concerns and find an acceptable resolution.

Any change from the previous settlement would force either Lingle or lawmakers to be flexible.

Lawmakers say it’s the governor’s duty to negotiate a new settlement, while Lingle maintains it’s their responsibility to enact her previous agreement into law.


Honolulu Star-Bulletin, May 30, 2008, Letter to editor

OHA land deal wasn't handled appropriately

In the May issue of "Ka Wai Ola," the Office of Hawaiian Affairs' newspaper, trustee Haunani Apoliona listed me among those she felt killed her negotiated settlement bill. Her sheer arrogance is what killed it. I opposed HB 266 HD 2 because it contained language that would extinguish rights afforded to Hawaiians under the state Constitution. Senate President Colleen Hanabusa revealed in the May 6 Honolulu Advertiser that eliminating future claims in exchange for $15.1 million annually was Attorney General Mark Bennett's idea. They had to agree or the AG would no longer negotiate.

Apoliona claims that she and the governor's office have been negotiating for three years. The state wrote language in the settlement document that had to be accepted by OHA or there would be no deal. OHA's negotiating team deceived beneficiaries by saying the agreement was mutual. The appeal makes the state's efforts to settle with OHA and the Hawaiian people disingenuous.

Rowena Akana
Office of Hawaiian Affairs trustee


Hawaii Reporter, June 12, 2008

Hawaiian Homes: Time for Change

By Sam Slom

On June 5, 2008, the state Office of Hawaiian Affairs (OHA) announced it would front $90 million to the state Department of Hawaiian Home Lands (DHHL) over the next 30 years in what was described as "a historic partnership," uniting state land with state (taxpayer) money.

The funding would permit DHHL to deliver up to 500 residential house lots-nearly double the current rate- to Native Hawaiians hungering for a home of their own. Some state leaders were ecstatic calling this a "bold step."

But is it?

It is true that the two high-cost, taxpayer-financed state agencies, that are supposed to be serving the same constituencies, have failed to work in concert in the past. It is also true that Gov. Linda Lingle’s administration and DHHL Executive Director, Micah Kane have accelerated the process of placing more Hawaiians on homelands than past administrations. But is this really progress? Is there any change here?

DHHL since 1994 has been receiving $30 million annually from the Hawaii State Legislature. That grant, based on a land settlement agreement, is scheduled to end in 2015.

However, DHHL also receives about $12 million annually from its commercial land leases. That amount is expected to increase substantially with massive Kapolei development proposed. And DHHL seeks even more revenue sources.

OHA receives millions more annually, directly and indirectly, from all Hawaii taxpayers. The Lingle Administration has maintained a very close and special relationship with OHA, supporting OHA programs, land acquisition, budgets and legislative initiatives such as the Akaka Bill (Native Hawaiian Federal Recognition).

A ceded lands agreement proposed by Lingle and OHA this past legislative session would have bestowed another $200 million to OHA, in land and cash, and $15 million a year (at least) in perpetuity.

The deal fell apart when Native Hawaiian beneficiaries, excluded from the secret negotiations, balked at the arrangement in which they did not play a part. They wanted even more money. A lot more. And the continued right to sue.

A legislative proposal this year, inquiring into OHA's financial dealings and requiring a detailed financial and management audit of OHA was opposed vehemently by OHA and the executive branch, led by state Attorney General Mark Bennett.

Under terms of this new alliance, DHHL will borrow more than $40 million in revenue bonds (to be sold to private investors by year's end) while OHA will guarantee DHHL $3 million per year for the next 30 years. The 2008 Hawaii State Legislature provided DHHL the authority to issue up to $100 million in development bonds. The bonds will be used by DHHL for infrastructure for the house lots statewide.

Years earlier, the Lingle administration targeted 6,000 new land leases by the end of 2008. Despite two past aggressive years, the total at mid-year amounts to less than 3,000 new leases.

Funding constraints and reduced revenue estimates are responsible for the reduced number of 500 lots. It is relevant to note that since the U.S. Congress passed the Hawaiian Home Lands Act in 1920, only about 5,900 lots were developed for lease during the previous 82 years before Lingle (2002).

Currently, there are more than 20,000 Native Hawaiians on a wait list for a state government land lease. Many have been waiting for decades.

Do the math; these state agency financial development plans are not going to meaningfully reduce Hawaiian home demand in the foreseeable future. This is not a bold new initiative. Bond and financing costs will be substantial. Actual new homes will be minimal. There is no real change being proposed, just more taxpayer guarantees and a great deal of government development activity.

Native Hawaiians should not be looking to government or politicians to give them relief. If they do, they will continue to be frustrated and disappointed. If we truly desire change and bold action, there should be more initiatives and tax incentives for self-sustainability (the current buzz word of the state), private development, zoning changes for innovative housing and finally, fee simple ownership of land by the Hawaiians.

More Hawaiian homes will only come with less dependence on government developers and landlords.

Hawaiians need more housing, not more government land deals.

Sam Slom is a state Senator and the president of Small Business Hawaii. SBH was founded by Lex Brodie in1975. SBH is Hawaii's most effective small business advocacy organization with 2,000 statewide business firm members. Its mission is to improve Hawaii's business and investment climate.


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This webpage was a subpage for item #1 in a larger webpage for 2008 entitled

"Office of Hawaiian Affairs -- Watching the Moves It Makes to Expand the Evil Empire (acquiring huge parcels of land, building a headquarters for its tribal nation, considering purchase of a TV station, etc.). YEAR 2008"

That larger webpage covering all topics for 2008 is at




(c) Copyright 2008 Kenneth R. Conklin, Ph.D. All rights reserved