Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 7, 1 July 1988 — Providing an Understanding of lssues lnvolved [ARTICLE+ILLUSTRATION]

Providing an Understanding of lssues lnvolved

st for Ceded Lands Revenue

However, a few months later, the Attorney General ruled that ceded lands transferred to the DOT for airport use are exempt from the OHA land trust (because the parcels were transferred, not sold) and therefore, OHA is not entitled to revenues from airports and harbors. A further reason given was that airport revenues have bondfinancing restrictions whieh prevent their use for any purpose other than repayment of bonds. When meetings with the DOT disintegrated, OHA Trustees felt there was no other alternative but to sue DOT. Attorneys Boyce Brown and David Schutter were hired to represent OHA. The Legislative Auditor's Final Report, issued in December 1986 takes issue with the Attorney General's opinion removing harbors and airports from the the Public Land Trust, saying it doubts that it was the legislature's intent to limit OHA's entitlement in this manner. The Legislative Auditor further recommends that all public land be included within the trust "in keeping with the trust concept that dates back to annexation."

The report further suggests that "difficult questions about OHA's entitlement to airport and harbor revenues "ean be resolved through negotiations whieh would substitute other ineome producing lands in OHA's share of the trust. In 1985 the Hawaii Circuit Court ruled that, despite objections by the Attorney General, OHA was indeed entitled to sue for its 20 percent share of ceded land revenues from airports and harbors. By late 1987, this victory had turned to ashes when the Hawaii State Supreme Court ruled that the dispute between OHA and DOT was a political matter for

the Hawaii Legislature to resolve, since that body implemented the pro rata entitlement but left unclear its full application. The U.S. Supreme Court in October 1987 declined to review the decision of the State Supreme Court without comment. Yet while the judicial remedy through the state level was now blocked and would have taken years through the federal courts, another avenue for resolution appeared. In his first "State of the State" address on January 26, 1987, Governor John David Waihee III, said "It is time that we start negotiating a fair settlement to the issue of ceded land revenues that protects the public's interest while allowing OHA to carry out its fiduciary responsibility." On January 11, 1988, OHA Chairman Moses K. Keale Sr. formed an ad hoe committee on ceded land entitlements to begin the negotiations whieh are ongoing. OHA ad hoe committee members are: Chairman Rodney Keali'imahiai Burgess III; Vice Chairman; Clarence F. T. Ching; and members Moanikeala Akaka and A. Frenchy DeSoto. OHA staff to the committee includes OHA Attorney Sherry Broder and Land Officer Linda Kawai'ono Delaney. The Governor's team includes Norma Wong, Patricia Brandt and George Kaeo. On January 25, 1988, the governor stated in his second "State of the State" address, "A compassionate society keeps its obligations. The most obvious of whieh is our fiduciary duty to native Hawaiians. The issue of ceded land revenues must be resolved. We have begun discussions with the Office of Hawaiian Affairs on this matter, and while the process of arriving at a fair and just settlement will not be easy or always pleasant — indeed it may

even take longer than one session — we are eommitted to settling this question onee and for all." What is decided in any settlement reached will set the course for the future of the public lands trust and the OHA entitlement, and mueh more. Material and assistance for this story also eame from OHA Land Officer Linda Kawai'ono Delaney. (To be continued)

Sand Island, Harbors

Airport