Ka Wai Ola - Office of Hawaiian Affairs, Volume 8, Number 6, 1 Iune 1991 — OHA: the struggle for Legitimacy -- Part 3 [ARTICLE+ILLUSTRATION]
OHA: the struggle for Legitimacy -- Part 3
The period in OHA's history from 1983 to 1985 l uas marked by a few tumultuous controversies that overshadowed all of its day-to-day operations and helped to fix the future course of the Office. For this reason, Chapter III, "OHA — The Struggle for Legitimacy" is not a chronological story, but a study of four distinct episodes, all of whieh occurred at roughly the same time. We hope that a careful reading of these complex yet uitally important "topics" will help you understand how OHA — and the Hawaiian community — eame of age in the mid1 980s. by Curt Sanburn Special to Ka Wai Ola O OHA
At this point in OHA's history, it's important to understand the laws — the state constitutional amendments and the enabling legislation — whieh created the agency and set up a revenue source to fund its mission. Bear with us through a quick review of OHA's legal history: In 1978, Hawai'i voters ratified constitutional amendments to create OHA for the betterment of Hawaiians and to fund its activities through a share of revenues from the "public land trust"; that is, the crown and government lands (approximately 1.75 million acres) ceded to the U.S. government at the time of annexation in 1898 and transferred by the U.S. to the newly created State of Hawaii in 1959. A condition of that transfer, spelled out in the Admissions Act, was that the state must use any ineome from the pubHc land trust for any of five explicit purposes, including the "betterment of the conditions of native Hawaiians." This condition was the basis for the State Legislature's formula to fund OHA: a one-fifth (or 20 percent) share of public land trust revenues. The formula became law in 1980. By law, then, the newly created Office of Hawaiian Affairs was entitled to 20 percent of all funds generated from the public land trust, to be used for the betterment of "native Hawaiians," those with 50 percent or more Hawaiian blood. One would think that was the end of it, but it was onlv the beqinninq.
On April 9, 1983, the Board of Trustees of the Office of Hawaiian Affairs authorized wellknown attorney Boyce Brown to proceed with a lawsuit against the State of Hawai'i. The suit sought to retrieve OHA's 20 percent share of a $1.8 million settlement reached between the state and Moloka'i Ranch ine. regarding illegal sand mining done by the ranch on public trust, or "ceded" lands at Kaluakoi, Moloka'i. The technicalities of the suit were complex, but its historic importance cannot be overestimated. For the first time in its brief existence, OHA was not going to be polite. In fact, OHA would go all the way and demand its rightful and legal share of all public land trust revenues. But OHA was already receiving about $1.2 million every year from the public land trust
revenues, at least from those revenues collected by the Department of Land and Natural Resources. Wasn't that enough? "No, it wasn't enough," says former Trustee Rod Burgess who, as chairman of OHA's land committee during those crucial years, led the charge for full payments from the public land trust. "We were going after our 20 percent of revenues from our lands, Hawaiian lands, and it wasn't up to the discretion of the state what OHA would get paid — the law was specific. We were going after what we were entitled to." As the trustees and their advisors became more knowledgeable about the public, or "ceded" land trust, became aware that they were being shortchanged by the state. This was at about the same time that they realized that the monies they were
getting trom the trust, between $1.2 and $1.5 million annually, was barely enough to staff the office and pay overhead, mueh less service the needs of the Hawaiian community. According to Trustee Moses Keaie, "The Molokai sand-mining suit happened at a time when we were dickering with the state about what revenues from whieh lands OHA should get. The law said we get 20 percent from all ineome, period, but the department chiefs within the Ariyoshi administration had different ideas. So we had this jockeying back and forth." Summarizing the Board's reasoning for the suit, constitutional lawyer Jon Van Dyke, a professor at the UH Law School and a long-time adviser to OHA, says "There was a lot of frustration, a feeling that the state was not responsive to OHA's concerns and claims, a sense the administration was nickel-and-dimeing OHA constantly." The Department of Transportation (DOT), for example, wasn't sharing any of its revenue (estimated at $100 million annually) with OHA, even though the income-producing Honolulu International Airport and harbors throughout the state were on ceded land. The Department of Land and Natural Resources (DLNR), whieh was continued page 12
OHA: A Celebration Of Ten Years
ln its 1984 lawsuit against the State of Hawai i, OHA sought its legal share of ceded land revenues from Honolulu lnternational Airport, shipping facilities on Sand lsland and at Honolulu Harbor (below).
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from page 11 providing all of OHA's ceded lands ineome, mostly from agricultural lease rents, had no way to ensure a full accounting for its quarterly payments to OHA, payments whieh fluctuated with every quarter, depending on payments DLNR's tenants were — or were not — making. The Moloka'i sand mining suit, spearheaded by Trustees Walter Ritte, Rod Burgess and Hayden Burgess and endorsed unanimously by the Board, was the first effort to raise this complex but vital issue of fairness and legal entitlement in the courts. OHA's claims against the state rqade the newspaper headlines. To judge by the reaction, from commentators and editorial writers, you'd have thought that OHA (whose mandate was to help all Hawaiians, and whose annual budget would barely cover the purchase of a single home in Kahala) was being ungrateful. Requests for a meeting with then-Governor Ariyoshi went inanswered. A meeting between Ariyoshi's DOT director, Ryokichi "Ricky" Higashionna, and a delegation from OHA ended quickly and nastily when Higashionna promised the delegatior. that OHA wasn't getting a penny from DOT and then threw them out of his office. Finally, a few OHA trustees met with the governor in early 1984. He backed his appointed department heads, refusing to make any concessions. Instead, Hawaii's chief executive suggested OHA initiate a second, "friendly" lawsuit against the State of Hawaii, a suit that would settle the whole question of public trust lands revenues onee and for all. "The governor's suggestion was totallysurprising and shocking," Burgess says. "He had the discretionary authority to resolve the situation without a suit, but he went for the suit because he probably knew the financial impact of a negotiated settlement with OHA would have been significant. His concerns were strictly political; he had a hot potato on his hands and rather than make the decision himself, he passed the buck to the judiciary.
"This was the same governor," Burgess says, "who had promised us an 'open door policy' and here he was, on the first big issue we raised, and his open door becomes a closed-door policy. The suit was the only avenue he gave us." Analyzing the situation from the perspective of seven years later, Trustee Keale says, "Nobody, including the governor, was ready to commit to OHA politically. They were hoping we would just fade away." The trustees went back to their offices and did exactly what Ariyoshi suggested. They hired a second high-profile attorney, David Schutter, to join Boyce Brown in a second lawsuit to elaim onefifth of the revenues from all DOT lands and from lands under the proposed Aloha Tower redevelopment and land leased to Matson Navigation Company at Sand Island in Honolulu Harbor. The stakes were high: OHA's projected 20 piercent share of annual revenues from these lands was estimated at somewhere between $10 and $20 million. The newspaper headlines announcing the second suit on March 9, 1984 were even bigger this time. Very quickly a lot happened. Powerful state House Speaker and part-Hawaiian Henry Peters met with seven trustees and urged them to withdraw the suit. Governor Ariyoshi publicly warned that the suit would adversely affect the state's revenue bonds. A month later, Circuit Court Judge Edwin Honda heard arguments for a summary judgement as to whether OHA had legal standing to sue the state. (A year later, after several delays, Honda allowed the suit to proceed.) In the most shocking development to eome out of the lawsuit, Deputy Attorney General James Dannenberg suggested that OHA was not in a position to sue because its trustees were elected by one racial group, whieh was unconstitutional under the equal protection clause. Dannenberg was, in fact, challenging OHA's very existence in the process of arguing the state administration's case.
Jon Van Dyke remains mystified by Dannenberg's suggestion that OHA was unconstitutional, especially after the Attorney General's office had already issued an opinion confirming OHA's legality in 1982. Van Dyke figures the challenge, as confused as it was, was "tactical, in the sense of trying to throw an obstacle in the litigation and scare the trustees; to say, in effect, 'Look, you guys are getting uppity, and if you pursue this line of reasoning, we're going to argue that you don't even exist." In a March 8, 1984 statement released to the press at the time of the lawsuit, the trustees said: "The suit has been filed with great reluctance and only after two and one-half years of attempts to negotiate a fair and reasonable settlement with the state administration. Because the Department of Transportation refuses even to discuss our entitlements, we are left no option other than to seek justice in the courts. "The Board of Trustees literally has no discretion in this matter. To ignore the DOT's adamant refusal to comply with the law would be a breach of fiduciary duty whieh could subject us to a suit by any of our beneficiaries." After years of stalling and delay, the Moloka'i and DOT cases (whieh had been consolidated into one suit) made their way to the U.S. Supreme Court whieh, on October 13, 1987, refused to hear OHA's elaim against the state. The high cost was saying, in effect, that the state leqislature should clarify itself.
The matter was destined to be decided politically, by negotiation with the new and more sympathetic administration of Governor John Waihee, who had been instrumental in the creation of OHA at the 1978 Constitutional Convention. These negotiations led to the historic ceded lands settlement between OHA and the state in 1990. This chapter in OHA's history was a long and difficult one, seven years of legaf maneuveringand acrimonious debate, both inside OHA and among the Hawaiian community, and in the state at large. There were those who urged OHA to be patient and those who thought lawsuits violated the principle of ho'oponopono. There were those who thought suing the State of Hawaii was "treason." To the general public, the endless headlines and courtroom clashes probably looked like so mueh wasteful, legalistic wheel-spinning, very far from the dream of a Hawaiian political entity leading Hawaiians in the creation of a better — and independent — community. If the trustees had done nothing and meekly accepted whatever was offered, OHA might have been more "popular" with Hawaii's established power structure, but by the same token it would have become an ineffectual and dependent political tool, destined to pay lip service to the needs of the Hawaiian community with no resources to meet the challenges and goals that had been so optimistically charted in 1978. Through this battle, as exhausting as it was, the Office matured as an advocate for Hawaiian entitlements and proved that it must be taken seriously.
State Senator and former OHA Trustee Peter Apo meets with the OHA Board of Trustees in eariy 1983. Shown at the table are Trustees Walter Ritte (back to camera), Moses Keale and Gard Kealoha.
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