Ka Wai Ola - Office of Hawaiian Affairs, Volume 11, Number 12, 1 December 1994 — The selling of Hawaiian ceded lands [ARTICLE+ILLUSTRATION]

The selling of Hawaiian ceded lands

bv Moanike'ala Akaka Trustee, Hawai'i This is a complicated, controversial. and emotional issue that Hawaiians must deal with and

understand. Article 12, Section 4 of the State Constitution states: "... lands shall be held by the state as a public trust for native Hawaiians and the general publie," meaning sale of these lands is prohibited. The 1982 State

Legislature passed a bill, Act 304, saying OHA should receive 20 percent of revenues (only) of ceded lands. Between 1988-1990 I was one of the trustees negotiating for OHA resources owed retroactively by the state. I kept pushing for 'āina and not just money and insisted we should not

be forced to pay for ceded lands: but we were handcuffed by Act 304, whieh spoke only of revenues. During these negotiations for the retroactive package owed

OHA by the state for native Hawaiian programs, the Housing, Finance and Development Corporation (HFDC) was already planning socalled "affordable" housing on ceded lands at Leali'iLahaina and

Kealakehe, Kailua-Kona. Trustees objected to the state on the erosion of our ceded lands trust but were ignored. In 1992 HFDC head Joe Conant, observing trustee concerns, introduced Act 318. This act forces OHA and DHHL to take revenues for ceded lands and allows the 'āina to be

alienated from the trust corpus! Initially Conant's HFDC bill said Hawaiians should turn the 'āina over to the state at its "raw" land value. OHA trustees successfully battled to plaee land value at "fair market" price if we were forced (by Act 318) into alienation when it was obvious the bill would pass.

Act 318 also stated that the 'āina must be conveyed from DLNR to HFDC within 90 days of its last appraisal. Leiali'i's last appraisal was Nov. 4, 1993. In a letter to OHA from Conant on Oct. 13, 1994. he agreed there would be a reappraisal and that infrastructure would be included. However, on Nov. 2, 1994, Conant reneged. At a special BOT meeting held Nov. 4 to deal with this situation, HFDC staff tried to deliver a eheek for $5,573,604.40. I encouraged my fellow trustees to reject the eheek! There is a more

important issue here than money: accepting the eheek would have set a bad precedent since according to Article 12, Section 4, the state (HFDC) has no right to sell ceded lands. On Sept. 15, 1994 we trustees voted to accept over $5.5 million from the state for Leali'i, on eondition that in accepting the money OHA was not conceding that the land belongs to the state. Attorney General Robert Marks wrote an opinion that OHA incorporated into our position. HFDC admits that OHA's position puts Leiali'i and any other sale of ceded lands "under a cloud and that no one will buy houses under these circumstances" ( Honolulu Advertiser, Nov. 4, 1994). We were forced into this situation - the 1982 law said OHA gets revenues, not specifying 'āina. A contradiction exists: Article 12, Section 4 says "... land held in public trust for Hawaiians

..." whieh means it cannot be alienated. Act 318, however, forces ceded land out of the trust into private hands and is thereby unconstitutional! OHA had no other ehoiee but to sue HFDC - a class action on behalf of the Hawaiian people. Hawaiians should eome together on this issue, otherwise the erosion of our ceded lands will begin.

At out Nov. 4 meeting I made the motion: 1) to sue HFDC and Joe Conant because they acted in bad faith; 2) to overtum Act 318, whieh is unconstitutional, and 3) that there be no erosion nor alienation of ceded lands into private hands on the basis of Article 12, Section 4 - on behalf of the Hawaiian people. 'Onipa'a! Mālama pono. Ua mau ke ea o ka 'āina i ka pono.