Ka Wai Ola - Office of Hawaiian Affairs, Volume 27, Number 11, 1 November 2010 — MESSAGE FROM THE CHAIRPERSON [ARTICLE+ILLUSTRATION]

MESSAGE FROM THE CHAIRPERSON

On the occasion of OHA's 30th anniversary, Apoliona looks to the future thraugh the lens of the past

By Haunani Apoliona INTRODUCTION

The past centui'y in Hawai 'i included the renaissance of Native Hawaiian history, traditions, language and culture. Native Hawaiians recovered, restored, renewed and recommitted to bringing the best from the time of our Native Hawaiian ancestors into the present; to leam from the past and to chart the future with spiritual strength, patience, focus and discipline. The 1978 Hawai'i State Constitutional Convention set the groundwork for (1) afhrming Hawai'i's Native Hawaiian legacy through amendments to the State of Hawai'i Constitution, ratihed by all Hawai'i voters, (2) acknowledging the State's historic obhgation, embodied in the Admission Act, to improve conditions for Native Hawaiians through ceded land ineome and revenues; and (3) establishing the Ofhce of Hawaiian Affairs to ensure appropriate outcomes for needs of Native Hawaiian benehciaries and Hawaiian se1f-detemiination.

This following summary of information, while limited in scope, is intended to share a recounting of progress to date by the Office of Hawaiian Affairs Board of Trustees, Administration and staff with our community at large in preparing the way for rebuilding Native Hawaiian governance and self-determination for the 2010-2020 decade. The evolution of the Office of Hawaiian Affairs over the past three decades ean be characterized as follows: • Decade One (1978-1988) Formation of OHA: Birth and Infancy steps • Decade Two (1989-1999) Struggle for recognition and legitimacy: Growing pains • Decade Three (2000-2010) Improving oversight management; and Preparing for rebuilding Native Hawaiian governance As we bring closure to this present decade (2000-2010), both OHA and the Hawaiian eommunity approach the culmination of a historic outcome - passage of the Native Hawaiian Government Reorganization Act - a eulminahon

of inihal preparations for re-estab-lishing recognized Native Hawaiian governance. Outlined in this partial summary are accomplishments and outcomes in four critical areas achieved in this decade: A. Operational efficiency and planned outcomes at Board, Administration/staff and eommu-

nity levels B. Advocacy for passage of the Native Hawaiian Government Reorganization Act and iniīial preparation for rebuilding of Native Hawaiian self-governance and loeal and national community well-being. C. Provision of significant hnaneial support to several State agencies and the University of Hawai'i in responding to Native Hawaiian needs for services and programs reaching beyond OHA's own initiatives in community grants. D. Engagement in legal challenges made against Native Hawaiians and OHA to protect lands, resources and rights for future generations of Native Hawaiians. Note: Detailed information on items in this summary are documented in OHA files and mueh more information is available on OHA's web site www.oha.org. PARTIALSUMMARYOF 0UTC0MES

A. Strengthened and stabilized OHA Administration/staff and Board of Trustees operations to maximize efficiency, effectiveness and quality of performance make significant impact in achieving identified goals. 1. Improved community percep-

KJ i . • - i mMMM

Along wilh U.S. Sen. ūaniel Akaka, pictured, and the entire Congressional delegation, OHA has continued to push for passage of the Akaka bill. - Screenshot: Courtesy of C-SPAN

tion/appreciation/reputation/respect for its mission as OHA: • Established a diverse information and communication network for Native Hawaiians, Hawai'i and beyond through a monthly newspaper, weekday morning interactive radio shows, regular 'ŌLELO television panel interviews, an interactive portal/television station link, special issue public televised forums, community meetings and press conferences; community relations positively and credibly built by OHA as demonstrated in web site information access, media articles, video commentary and forums, requests from business and community groups forpresentations about Native Hawaiian issues, edueahon of policymakers and public agencies and mueh more. • Reduced negative public exchanges between Trustees with improved internal BOT cohesiveness is evidenced by minutes of regular public Trustee meetings, media commentary and editorial, State Auditor's comments, investment and financial regulators, e-mails, telephone calls and letters received from active as well as would-be OHA partners, and feedback from our beneficiaries. 2. Increased organizational stability and operational efficiency • In August 2001, BOT hired a new OHA Administrator to reorganize and improve operations for implementing BOT policies and mission-driven decisions. After observed positive outcomes and the resulting stability the BOT extended ADM's contractual time frame to 2012. • Adopted (Feb. 13, 2002) priority mission and goals for OHA and developed and implemented OHA Strategic Plan for 2002-2007, with an extension to 2008-2009, and initiated the Managing For Results (MFR) paradigm Strategic Plan for 2010-2016. • Reorganized internal organizahonal structure and systems ranging from: initiating Hale divisions replaced for 2010-2016 by Line of Business divisions; refining PPBS

budgeting systems; upgrading computer and records management systems, etc. • Revised/updated operational and policy manuals for clarity, documented current practices, refined forms/procedures in written and electronic format with plans for an increasingly "paperless" operations. • BOT established policies improved findings and outcomes acknowledged by the State Legislative Auditor's reports for 2000, 2004, 2008. • Revised BOT standing eommittee structure from five to two: 2000-2002 (ProgramManagement; Legislative/Government Affairs; Land; Policy & Planning; Budget & Finance); 2003 to date (BAE - Beneficiary Advocacy & Empowerment Committee and ARM - Asset & Resource Management Committee.) Productivity and timely Board actions are achieved through recommendations from these two standing committees on whieh all nine Trustees sit. Board and Committee Leadership remaining stable from 2000 to the present. • Initiated on April 8, 2003, a new investment policy process using the "manager of managers" approach with Goldman Sachs and Frank Russell as investment portfolio managers with periodic and prudent amendment to OHA investment policies and procedures. B . Initiated successful advocacy for passage of the Native Hawaiian Government Reorganization Act and prepared for rebuilding of systems and recovery of resources and assets for meaningful Native Hawaiian self-governance and selfsufficiency. 1. Demonstrated responsible and culturally based Native Hawaiian advocacy and contributions within a multicultural Hawai'i society. • Established in 2003 OHA's Washington, D.C., Bureau. Through its Washington, D.C., Bureau, the Governance division and other staff activities, OHA has educated policymakers and federal agencies

about Native Hawaiians and gained support for OHA's efforts nationally: established memoranda of agreements, resolutions of support and collaborative relations with national indigenous and numerous ethnic groups, public and private agencies, profit and nonprofit organizations and individuals across the United States and Paeihe nations. OHA has become more visible in the U.S. capital and in the halls of Congress. Information on Hawaiian history and issues has been more broadly disseminated in the nation's capital. OHA's D.C. Bureau facilitated establishment of the Ke Ali'i Maka'āinana Hawaiian Civic Club, of the AOHCC. 2. Recovered Resources and Assets For Self-Governance and Self-Sufficiency • Achieved ceded lands revenue increases through continuous Native Hawaiian advocacy. • In 2003, the Hawai'i State Legislature through Act 34, agreed to increase annual transfers to OHA from zero to $9.5 million for the State's use of ceded lands. • In 2006, Act 178 was passed by the Legislature that provided $17.5 million in backpayment from July 200 1 to June 2005 and approved increasing annual transfers to OHA from $9.5 million to $15.1 million for the State's use of ceded lands. Act 178 also required that DLNR "shall provide an accounting of all receipts from lands described in section 5(f) of the Admission Act for the prior fiscal year." • Restructured the Native Hawaiian Trust Fund ("Trust Fund"), valued at $255 million at 2003 ineephon, to streamline the management and oversight process, whieh resulted in a peak 74 percent

gain in portfolio value just prior to the hnaneial crisis and market downtown. The OHA Trust Fund investments, along with countless others, suffered significant setbacks during the hnaneial crisis that began in 2008. Despite the stress in the economy, OHA managed to outperform its peer institutional public funds, endowments and foundations coming out of the downturn and has continued to fund grants and programs for our community. At present in this recovery period, the Trust Fund operates at a 61 percent value increase since the 2003 inception. • Earned increased prominence for protecting Hawai'i's natural resources and environment through acquisition of significant land and property while ensuring responsible resource management and regulations whieh are culturally and environmentally pono. Specifically, the acquisition of 26,000 acres of pristine conservation forest lands of Wao Kele o Puna on Hawai'i island (2005) and 1,800 acres of Waimea Valley Park on O'ahu (2006) for approximately $2.9 million of

a total $14 million sale in partnership with

State Department of Land and Natural Resources, the U.S. Army, and City and | County of Honolulu to protect into oeroetuitv these

Native Hawaiian lands achieving edu-

cational goals and ensuring archeological and cultural wellbeing. • Advocated successfully for protection of Nā Wai 'Ehā water

resources in Maui County. • Supported successful legislation from 2007-2009 to exempt kuleana lands from real property taxes in Hawai'i, Maui, O'ahu and Kaua'i counties. • Assisted in coordinating statewide community input meetings and participated in inaugural U.S. Department of Defense training to produce protocols for consulting with Native Hawaiians on armed forces projects statewide. In 2010, OHA completed year five of Department of Defense consultation. • Adopted in 2006 OHA's Land Management and Real Estate Policy and in 2007 approved OHA Real Estate Strategy whieh, in part, enabled careful scrutiny by staff of proposed property transfers for OHA's Negotiating Team recommendations to BOT decisionmaking on ceded land matters. • Authorized on Dec. 8, 2006, OHA's participation in Northwestern Hawaiian Islands Marine Nahonal Monument management. Also, after Presidential Proclamation of June 2006 designated the

area, OHA participated in the renamin2 in March

2007 of the area

Papahānaumokuākea gains world recognilionin 2010,Photo: Courtesy of NOM - Copyright James Watt

as Papahanau-

mokuakea Manne National Monument

and successfully advocated approval of Papahānaumokuākea as a UNESCO World Heritage site, in Brasilia, Brazil, July 2010. OHA continues to advocate for OHA's

[ 30 YEARS }—

FUNDING AM0UNTS T0 STATE AGENCIES ANP UH STATE $2,493,701 $2,366,451 $4,473,903 $799,535 $3,343,216 $4,241,014 UH $1,033,370 $913,873 $1,264,579 $1,651,580 $2,158,398 $1,511,870 TOTAL $3,527,071 $3,280,324 $5,738,482 $2,451,115 $5,501,614 $5,752,884

Please nole in the table above, OHA has provided a noteworthy amount of funding to State agencies, including the University of Hawai'i. We have attempted to address identified needs as our resources permitted.

inclusion as a Co-Trustee for Papahānaumokuākea . 3. Invested significant resources in community building and preparation for emergence of Native Hawaiian governing entity. • Strengthened collaboration and mutual support with the other Native Hawaiian puhlie trust, the Department of Hawaiian Home Lands, through BOT approval of: pilot project for bond guarantees for home replacements (2005); DHHL Home Owners Assistance Program (2007); and after three years of discussions, on June 4, 2008, OHA Trustees approved up to $90 million in loan guarantee (debt service of $3 million a year for 30 years) to DHHL for development of housing and regional plans for homesteaders. OHA payments to DHHL to date total $6 million. • BOT terminated Operation 'Ohana in 2002 and replaced it with the OHA Hawaiian Registry, 27,681 persons. • Encouraged the development of KAU INOA Native Hawaiian registration efforts, with nearly 109,000 registered, as a major step toward building a Native Hawaiian governing entity and facilitating community development toward self-determination. • Supported from 2004 through 2006 convening of meetings of a Native Hawaiian Coalition "to establish a process that would provide people with a mechanism for achieving self governance through self-determination." This provided iniīial community input on suggested steps to rebuilding a nation. • Established the Consumer Micro-Loan Program for emergencies, whieh has assisted 285 recipients with more than $1,385,000. • Initiated the Native Hawaiian Revolving Loan Fund in 1989 to improve access and expedite assistance to Native applicants for business, home improvements and education. • Redesigned in 2007 OHA's Native Hawaiian Revolving Loan Fund as Mālama Loan Program

with approval by federal grantor Administration for Native Americans to enahle easier and faster access to more beneficiaries for businesses, home improvements and education. Since 1989, 1,219 recipients have been assisted for a total of $36.9 million. • Invested in the Native Hawaiian community by funding grants to community-based projects and initiatives in the effort to build capacity and success for our beneficiaries through education, health, human services, eeonomie development and diverse areas. Increased amounts over the decade, from $ 1,095,589 in 2003 and $ 10,678,750 in 2009 resulting in a cumulative total of over $61.5 million, with the 2010 total yet to be completed for the decade. Obtained in 2008 federal government designation as a Hawai'i Procurement Technology Assistance Center. • Provided in 2008 approximately $2.2 million to the Bishop Museum for restoration of Hawaiian Hall. • Provided $150,000 (2005) to King William Charles Lunalilo

Home for the Kūpuna Continuing Care Assurance Program to serve elderly Native Hawaiians and $150,000 (2010) for restoration/renovation of King Lunalilo's tomb. • Provided a total of $1 million during 2006-2008 to Kawaiaha'o Church for renovations to its historic structure and surroundings for a community service facility. • BOT approved on Jan. 14, 2008, capitalization of Hi'ilei Aloha LLC (Limited Liability Corporation) to manage OHA projects on Kaua'i, O'ahu and Hawai'i islands, such as Hi'ipoi LLC (Makaweli Poi Factory), Hi'ipaka LLC (Waimea Valley). Additional OHA LLC are being established. • Advocated and supported from 1996-2010, efforts for congressional enactment of the Native Hawaiian Government Reorganization Act (NHGRA) introduced by the Hawai'i Congressional Delegation in various forms as: S. 2899/H.R.4904 (2000); S. 746/HR 617 (2001); S.344 (2003-4); S.147/ HR 309 (2005); S. 3064 (2006); S.

310/HR 505 (2007-2008); S. 1011/ HR 2314(2009-2010). C. Provided strong financial support to several State Agencies and the University of Hawai'i in responding to Native Hawaiian needs for services and programs. • State agencies provided OHA funding support include: DHHL, DOE, DOH, DAGS, Hawai'i State Hospital and Hawaiian Tourism Authority, as well as the University of Hawai'i. • During the past six years OHA has provided $26,251,490 in funding to a number of State of Hawai'i agencies and the University of Hawai'i. See table on page 23. D. Significant legal challenges against OHA and Native Hawaiians were met by encouraging judicial outcomes. Appropriate research and legal strategies were initiated for transition to nationhood and long-term outcomes for Native Hawaiians and future generations. During the last 10 years, there have been milestone legal decisions, court proclamations and negotiated settlements. OHA was also named as a defendant in 118 kuleana quiet title actions pursuant to HRS §560:2-105.5 (Escheat of kuleana lands). Numerous significant legal decisions, whieh merit further discussion, follow helow: • Election of Office of Hawaiian Affairs Trustees must be open to all Hawai'i voters, not only Native Hawaiians, in eomplianee with the 15th amendment of the U.S. Constitution. (U.S. Supreme Court - Feb. 23, 2000) Reference: Rice v. Cayetano, 528 US 495, 120 S. Ct. 1044 (2000). • OHA Trustees have not breached their fiduciary trust responsibilities on "use" for one or more section 5(f) purposes. Reference: Day, etal. v. Apoliona, et al, No. 08-16704; D.C. No.l:05-CV-00649, SOMBMK (9th Cir., July 26, 2010). • OHA expenditures for support of the Akaka Bill and other programs (Native Hawaiian Legal Corp., ALU LIKE, ine. and Nā Pua No'eau are consistent with federal

law. Reference: Day, et al. v. Apoliona, et al., No. 08-16704; D.C. No.l:05-CV-00649, SOM-BMK (9th Cir., July 26, 2010). • OHA's federal trust obligation validates that the OHA Trustees have broad discretion and latitude in determining use of its Puhlie Land Trust funds. Reference: Day, et al. v. Apoīiona, et al, No. 08-16704; D.C. No.l:05-CV-00649, SOMBMK (9th Cir., July 26, 2010). • The court asserted its earlier proclamation that it is incumbent upon the State Legislature to enact legislation that gives effect to the right of Native Hawaiians to benefit from the ceded land trust, and OHA should look to the Legislature for relief. (Hawai'i Supreme Court - April 2006) Reference: Office of Hawaiian Affairs v. State ofHawai 'i (II) 1 10 Hawai'i at 363, 133 P.3d at 792 (2006). • A negotiated settlement in November 2008 between OHA and U.S. Army includes procedures to facilitate a meaningful consultation between OHA and the Army concerning the identification, evaluation and protection of Native Hawaiian cultural resources affected by Stryker Brigade Combat Team (SBCT) transformation-related activities (lawsuit filed on filed Nov. 14, 2006, lawsuit dismissed Nov. 5, 2008;). Reference: Office ofHawaiianAffairsv. Gates, etal, CivilNo. 06-00610. U.S. District Court, District of Hawai'i. • Plaintiffs asked the Court to declare that OHA and HRS Chapter 10 as unconstitutional, that DHHL is unconstitutional, that funds held by OHA and DHHL revert to State general funds as state property, and that all funds whieh revert to the general fund ean be used at the discretion of the Governor. The hnal outcome in the (OHA I) case was the Court's decision, whieh did not permit taxpayer standing to be used as a basis for bringing a federal lawsuit with those claims. Reference: Arakaki v. Cayetano, aka Amkaki v. Lingle, 477 F.3d 1048 (9th Circuit, Feb. 9, 2007). • OHA sought payment from State of Hawai'i's pro-rata share of

— { LOOKING TO OHA'S FUTURE THROUGH THE LENS OF THE PAST ]

<Jtl| iiiiiia IK

Public Land Trust revenues from contested sources not settled in the 1993 Memorandum of Agreement. In light of the Forgiveness Act, Act 304 was repealed. Reference: 0ffice of Hawaiian Affairs v. State, 96 Hawai'i 388, 31 P.3d 901 (September, 2001) ("OHA I" filed Jan. 14, 1994). • A restraining order and preliminary injunction against OHA expending its funds was sought by the plaintiffs. The Court deemed the lawsuit "completely frivolous" on July 1, 2008, and dismissed the case. Reference: Kuroiwa v. Linela Lingle, et al. Civil No. 08-0153 JMSKSC. U.S. District Court, District of Hawai'i (filed April 3, 2008). • Plaintiff John Carroll and Plaintiff Patrick Barrett sought to enjoin the State of Hawai'i and the Office of Hawaiian Affairs from expending OHA funds. Cases were consolidated "sub nom" Carroll v Nakatani. The Court ruled that plaintiff had no standing and affirmed on Sept. 2, 2003. Referenee: Carroll v. Nakatani, 342 F.3d 934 (9th Cir. Sept. 2, 2003) (filed Oct. 2 and Oct. 3, 2000). • Office of Hawaiian Affairs asked the Court to require an EIS (Environmental Impact Statement) for the six outrigger telescopes for the Keckproject onMauna Kea and sought declaratory and injunctive relief. The Court found the existing EA (Environmental Assessment) insufficient and ruled in favor of OHA, Aug. 29, 2003. NASA voluntarily prepared an EIS. OHA responded during the comment period and NASA responded to comments in its final EIS. Referenee: Office of Hawaiian Affairs v. 0'Keefe (NASA) et al, Civil No. 02-00227 SOM-BMA. U.S. District Court, District of Hawai'i (filed April 22, 2002). • OHA sued to enjoin Housing and Finance Development Corp. (now Housing Community Development Corp. of Hawai'i) from sale of ceded lands until claims of Native Hawaiians are resolved j by the government. Also, former 1 crown lands "Leali'i Parcel," whieh HFDC received

approval to remove from section 5(D trust. The Hawai'i Supreme Court held that OH A prevailed by showing that "Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands whieh were taken without consent or compensation and whieh the native Hawaiian people are determined to preserve, develop and transmit to future generations." The U.S. Supreme Court held that the Apology Resolution could not be read to "create a retroactive 'cloud' on the title [of the ceded lands] that Congress granted to the State of Hawai'i in 1959." However, the Court found that it "had no authority to decide questions of Hawaiian (i.e. state) law or to provide redress for past wrongs except as provided for by federal law." OHA agreed to settlement of the case with the State by agreeing to passage by the State Legislature of S.B. 1677, S.D. 1, later signed into law by Gov. Linda Lingle as Act 176 on July 13, 2009. Reference: State of Hawai'i et al. v. Office of Hawaiian Affairs et al, 129 S.Ct. 1436 (2009). • The Board of Education (BOE) and OH A in May 2000 entered into an agreement to settle the lawsuit brought by OHA on behalf of Kula Kaiapuni - Hawaiian Language Immersion Program. Terms of the agreement called for the DOE to increase funding Hawaiian language programs from $800,000 to $1 million annually for five years. OHA was to provide matching funds on a 1 : 2 ratio basis ( $400,000 to $500,000 a year) for five years. Also, the DOE was to provide OHA with Ananeial and program reports for monitoring and evaluation purposes for the five years. Referenee: Office of Hawaiian Affairs, et al. v. DeDartment

of Education, et al, Civil No. 1CC 85-0-002970,

U.S. District Court, District of

Hawai'i. • Contested case hearing was initiated involving eoneem over establishment of Interim In-stream Flow Standards to restore flow to fourMaui streams: Waiehu Stream, Waihe'e Stream, 'īao River and Waikapū Stream - collectively called "Nā Wai 'Ehā." OHA intervention was granted June 20, 2006. Commission on Water Resource Management Decision and Order issuedJune 10, 2010. OHAfiledits Notice of Appeal on July 12, 2010, as did Community groups. CWRM requested and received an extension of time to transmit the Record on Appeal, with the new deadline being Oct. 11, 2010. Reference: 'īao Ground Water Management Area High-Level Source Water Use Pennil Applications and Petition to Amend Interim Instream Flow Standards of Waihe 'e, Waiehu, 'īao & Waikapū Streams Contested Case Hearing ("IIFS Case")\ Case No. CCH-MA-06-01 Commission on Water Resource Management, State of Hawai'i (filed June 25, 2004). • Petition was filed contesting the Board of Land and Natural Resources (DLNR) proposed sale of 65-year lease at public auction of water rights for the use of "Blue Hole" diversions and portions of water transmission system, Llhu'eKoloa Forest Reserve (Wailuā Section) filed Dec. 10, 2004. OHA started settlement negotiations in June 2005 with applicant Kaua'i Island Utility Cooperative (KIUC). MOA executed in November 2006 with specified conditions. Matter is pending KIUC's satisfying those conditions so OHA has not withdrawn its petition for a contested case. Reference: no case number. • Contested case hearing was initiated on Moloka'i in 1977 regarding a petition for a new well at Kamiloloa affecting adjoining

aquifers vened

OHA interon the

decit h e mis-

sion by C o m - sion on

Water Resource Management (CWRM); appealed it to Supreme Court of Hawai'i. The Court issued decision in 2004 that recognized and protected water rights of Native Hawaiians, extended protections previously affirmed in the 2000 Waiāhole Ditch Case. The Supreme Court ruled against CWRM citing the new well would interfere with rights of DHHL to develop water sources for the island of Moloka'i in the future and the CWRM erred in issuing a water permit to the Moloka'i Ranch. Reference: In re: Wai Ola O Moloka'i īne., 103 Hawai'i, 83 P. 3d 664 (2004). Legal challenges throughout the past three decades have been formidable. More are anticipated. We intend to prevail. C0NCLUSI0N The next decade ahead looks nromisin2 but ehallenaina for

H a w a i ' i N a t i v e Hawaiian eommu- i

T h e

nity and Office of Hawaiian Affairs mark a point in our history that requires many more experienced, well-informed, ethical, committed, action-oriented, community-minded "do-ers" in service, not self-service. Intended outcomes demand diligent, disciplined, innovative, valuesdriven, mutually respectful leaders and participants. No single person ean be credited for OHA's achievements and no single person ean be credited for future results; it is a eollective effort. Yet, OHA functioning at its highest level of excellence and accountability ean serve as a premier tool for the Hawaiian cause. Mahalo nui loa to all who have manifested their love for Hawai'i nei through their unselfish, strong support for OHA's mission. Speeial thanks goes to OHA's Board of Trustees, Administration, staff and volunteers who are responsible for our continuing progress and who will be important to the future of Native Hawaiians and all Hawai'i nei. We look forward to all citizens of Hawai'i joining together in building a better Hawai'i for generations to eome. ■

ln January 2009, Ihousands of Hawaiians and supporters marched down Kalākaua Avenue in Waikīkī in protest of the state's push for the right to sell ceded lands. - Photo: KWOArchives

Below: NASA voluntarily prepared an Environmental lmpact Statement after OHA asked the Court to require one for six outrigger telescopes for the Keek project on Mauna Kea. - Photo: KWO archives