Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 11, 1 November 1987 — Keale: Time for Hawaiians to Unite' [ARTICLE+ILLUSTRATION]

Keale: Time for Hawaiians to Unite'

Courts Decide Not to Decide on OHA Suit

By Linda Kawai'ono Delaney Lands Officer Without comment last month, the United States Supreme Court refused to hear the Office of Hawaiian Affairs suit against the State Department of Transportation (SDOT) for money owed Native Hawaiian beneficiaries from airport and harbor uses of ceded land. The OHA Board of Trustees had approved direct appeal to the High Court after the State Supreme Court earlier ruled against hearing the suit because it raised legislative, not iudicial issues.

Reacting to news of the latest rejection, OHA Board Chairman Moses K. Keale Sr. expressed "great disappointment that our pleas for justice have been 'thrown out' by the highest courts of this state and nation. These decisions, in effect, make us malihinis or strangers in our own land." At issue is the SDOT refusal to recognize the OHA entitlement to money generated from public lands used to support State airports and harbors. According to a recent SDOT report, the Airport Revenue Fund alone is projected to generate $166 million in this fiscal year. Funds derived directly from land use — landing fees, airport use charges and concession fees — total $121 million.

The potential ineome to OHA just from airports, figured as 20 percent of the gross receipts and narrowed only to land-related revenue — would be in excess of $24 million annually. That's a lot of money. Especially when you consider that OHA now receives only $1.4 million from lands under the jurisdiction of the Department of Land and Natural Resources. What's the problem? Obviously, the law — though complex — is clear. OHA is empowered by the State Constitution to receive a pro rata share of ineome from the lands returned to the State under Section 5(b) of the Admissions Act. In 1980, the State Legislature determined that this pro rata would be 20 percent of all ineome from these lands. In other words, 20<C of eaeh dollar eamed from certain public lands would be transferred to OHA and used "for the betterment of native Hawaiians."

This entitlement draws its moral strength from the 5(f) trust provision whieh recognizes — but does not implement nor fully explore— the historical linkage and ownership of virtually all the now-public lands eontrolled by the national and State govemments. At base, the 5(b) lands are stolen property. Onee the crown and government lands of the Kingdom, the State now holds and enjoys the benefit from Native Hawaiian ancestral lands.

Ignoring the full implication of their responsibility , the State Constitution was amended in 1978 to provide symbolic restitution to the Hawaiian people. It all seemed clear. Now, comes the catch. In another section of law describing the operation of the State Department of Transportation, it is also legislatively mandated that the SDOT must be self-sup-porting. Thus, transportation fees and concession eontracts have been set to meet the operating costs of the department, and to raise the money needed to pay outstanding bonded indebtedness related to construction costs.

SDOT maintains that this earlier legal requirement pre-empts the OHA entitlement. Typically, when laws seem to be in conflict — courts will mle that the newer statute must be enforced. By that standard, the OHA share — demanded by the State Constitution as well — holds sway. Unfortunately, both the State and U.S. Supreme Courts decided not to decide. Whieh is where we are now. Rejected by the courts. And told to seek not justice, but a politicaI compromise. This challenge is not presented to OHA. It is a ehallenge to all Hawaiians. Politics is a process of numbers. Of organization and commitment.

As Chairman Keale puts it: "If the courts say this issue is a poiitical one, so be it. Perhaps now, for the first time in a century, it is time for the Hawaiians to unite behind a eommon purpose.

"Hawaiians must receive the revenues due to them. "There are over 200,000 residents of Hawai'i who are of Hawaiian ancestry. That represents almost 20 percent of the State's population. That is a political force that cannot be ignored."

Moses K. Keale Sr., center, chairman of the Off iee of Hawalian Affairs Board of T rustees, expresses disappointment over Supreme Court's decision on OH A's land suit. At left during press conference is OHA Administrator Kamaki A. Kanahele III while Attorney Boyce Brown is at rfght.