Ka Wai Ola - Office of Hawaiian Affairs, Volume 25, Number 7, 1 Iulai 2008 — 'Sad words' [ARTICLE+ILLUSTRATION]

'Sad words'

Often during the recent debates over the ill-fated legislation proposed by OHA and the state administration regarding settlement of OHA's elaim for revenues from the State for its use of ceded lands, I thought of the words: "For of all sad words of tongue or pen, the saddest are these, 'It might have been,' " by lohn Greenleaf Whittier. Those words are also applieahle to claims made by some people that Gov. Ben Cayetano's 1999 offer to OHA to settle the matter was better, i.e., more generous. But nobody could tell me exactly what that offer was. And, if it was so good, why wasn't it accepted by OHA? So, I detennined to try to find out for myself. There is no written offer from Cayetano. That's probably because the settlement was discussed in meetings between Cayetano's Chief of Staff, Sam Callejo, and OHA's negotiating team, consisting of OHA Chair Rowena Akana, and Trustees Clayton Hee and Mililani Trask. Any offers or agreements discussed there would nonnally have been presented to the OHA Board later in executive session. That same procedure was followed in the latest negotiations. What I did find is an April 16, 1999, letter to Callejo, signed by Akana, in whieh she says, the letter is "one final effort to settle this case" for monies and some land in the amount of $305.6 M. She also says that "[t]he major difference between your last offer and this offer is the interest for fiscal years 1997 and 1998." Akana also agrees "to the partitioning of the puhlie land trust and transfer of title to the pro rata portion of the trust's lands to OHA to self-manage and administer." Akana's letter goes on to say: "With this settlement, OHA agrees to a bar of all claims for a prorata share of trust revenues

arising on or before Julv. 1999." Subsequently, on April 20, 1999, Trustee Trask sent a memorandum to Akana and Hee stating: I have just been notified of OHA's offer to the state regarding the ceded lands settlement. I do not agree that 'With this settlement, OHA agrees to a bar of all claims for a prorata share of trust revenues arising on or before July 1, 1999. ... I do not agree in waiving our peoples' right to sue the state for past breaches of the ceded lands trust. On April 27, 1999, the OHA Board discussed negotiations regarding "settlement proposals." Trustee Trask moved to "terminate settlement negotiations with the state." Trustee Hee pleaded for pahenee, "Notwithstanding the fact that the state may not have been forthright or diligent in responding to this office. We have put offers across that have gone unanswered." Trustee Trask responded, "that for four months the OHA negotiating team has worked diligently for the purpose of trying to resolve this matter[.]" She pointed out that offers were sent to the governor on April 1 and April 16 and no response was ever received. The motion carried and negotiations were discontinued. My point, here, is not to compare the so-called Cayetano proposal with the recent agreement. Rather, it is only to point out that in that situation proposals and counter proposals were discussed and rejected by both sides. There was nothing even close to an agreement. Attempting to compare that situation with the recent one is meaningless. It is clear, however, from Akana's April 16, 1999, letter, that Callejo and the OHA negotiating team were discussing a "global" (familiar word) settlement that would have detennined all monetary claims and partitioned the trust lands between the state and OHA. It is also clear that those terms would have met with a fiercer "firestonn" than the recent agreement. E3

LEO 'ELELE ■ TRUSTEE MESSAGES

Walter M. Heen TrustEE, O'ahu