Ka Wai Ola - Office of Hawaiian Affairs, Volume 14, Number 6, 1 June 1997 — Ka Manaʻo o nā Kahu Waiwai Pākahi [ARTICLE+ILLUSTRATION]

Ka Manaʻo o nā Kahu Waiwai Pākahi

Trustee Messages . :::: : . ' '

OHA lrustees' individual views expressed do not necessarily represent the official position of the Board of Trustees. OHA is not responsible for accuracy of these commentaries. The trustees weleome eommeni. Write to Ka Wai'Ola o OHA, 711 Kapi'olani Blvd. Suite 500, Honolulu 96813. ■ ■ * . ■/::' ■ " ■ ■ :

"You must remember never to cease to act because you fear you may fail. The way to lose any earthly kingdom is to be inflexible, intolerant and prejudicial. Another way is to be too flexible, tolerant of too many wrongs and without judgment at all." Lili'uokalani R 1917 It is a BREACH OF TRUST! Anything short of full compensation for native Hawaiian under the terms of the I 'l 1 L 1 1 I a n ,4 I «n L »-/\ '1 tl

x uuhl i-iaiiia tiu5i īo a uieaui of trust for whieh suit should and must be brought in a court of law! Article XII Sec. 4 of the State Constitution says, "...shall be held by the State as a public trust for native Hawaiians and the general public." The revisors of the Constitution stated in 1978, "...that the proportion should rightfully be based either on equal division or at Ieast on a percentage of the five purposes." If we followed this guideline then our entitlements should be 50 percent. However, in another retreat from jus-

tice, the legislature determined the share to be 20percent, 2.5 times less than we are entitled to. Despite the injustice of the percentage, we are not even receiving 20 percent of the revenues of the public land trust. The courts have recognized this fact and ruled against the state and in our favor on this matter.

Compensation for Native Hawaiians

Far more subtle and more difficult to understand is the state's policies on eneumbrances of the land of the trust. The state has encumbered thousands of acres of prime income-producing lands and reserved them for public uses such as government buildings, parks, roads and education. Although these ' encumbrances meet the criteria of use "for one or more" of the five purposes of the trust, it comes at the expense of the fifth purpose and an individual class of beneficiary, the native Hawaiian. How does this policy affect the trust revenues? See chart below for example. This year the legislature capped our revenue at $15 million whieh is ONLY 6.3percent of the total potential revenue ($236,927,120) for the public lands being utilized. If we add the revenues still in dispute as adjudicated by Judge Heely in the recent OHA vs. State case, (see bracketed information above) this pro rata share is more likely to be less than 4percent, a far cry from the 20 percent entitled by state law and even less than

the 50 percent entitled by Trust law. To complicate this issue even further, the State, as primary trustee of the Publie Land Trust, has failed to take an accurate fiscal and physical inventory of all the land assets that make up the trust. This, in itself, is a violation of trust law, a breach of fiduciary duty and a breach of trust. The Public Land Trust has been in existence since 1959, 38 years! For 21 years (1959-1980) the native Hawaiian received no measurable share of the trust and, Dresentlv, we

receive less than our legislative share. Has the State set aside Iand adjudicating this issue and render justice to our Hawaiian people. As our Queen was quoted shortly before her death, "another way is to be too flexible, tolerant of two many wrongs and without judgment at all."

Land Asset/Asset Value Tax Value Yrly Lease OHA's 20 % Land set aside for Public Education (5,562.65 acres) $2,263,278,000 $104,927,120 $20,985,424 3rd Party Leases (present) NA $100,000,000 $20,000,000 (OHA approximation-disputed ($195,000,000) ($39,000,000) Public Parks, Roads, Government Buildings, etc.. $800,000,000 $32,000,000 $6,400,000 TOTAL POTENTIAL LEASE REVENUE $236,927,120 $47,385,424 >

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Co(ette MacAa4o Trustee, Moloka'i & Lāna'

T Ae Pfo4e4 k.eA(e, {>, Trustee, Kaua'i, NPihau