A federal judge has ruled in favor of the Office of Hawaiian Affairs' policy of assisting all Native Hawaiians, not just those with 50 percent or more Hawaiian blood.

U.S. District Judge Susan Oki Mollway on Friday ruled in favor of OHA trustees and dismissed a lawsuit that claimed OHA could only spend money on Hawaiians of "not less than one-half part" of Hawaiian blood.

The lawsuit was filed by five men, each with 50 percent or more Hawaiian blood, who said OHA has too many beneficiaries and that money from what's known as the Public Land Trust — established under the Hawai'i Admissions Act of 1959, which admitted Hawai'i as a state — can only be used to benefit those who have at least 50 percent Hawaiian blood.

Mollway said in her ruling that "the Admissions Act is not so restrictive."

Earlier, in documents that indicated how she would eventually rule, Mollway wrote: "OHA trustees have broad discretion" in deciding how to better the condition of native Hawaiians.

OHA maintains that its mandate is to assist all Hawaiians, regardless of blood quantum.

Walter Schoettle, attorney for the plaintiffs, yesterday said of the ruling: "It's wrong, and we're going to appeal to the 9th Circuit."

HONOLULU (AP) — A U.S. District Court judge is deciding whether to once again dismiss a lawsuit filed against the Office of Hawaiian Affairs.

Judge Susan Oki Mollway heard arguments yesterday in the case that pits OHA against five Native Hawaiians.

The five are seeking to stop OHA from funding programs for those who have less than 50 percent Hawaiian blood.

They say the state agency breached the public land trust by paying for programs for all Hawaiians, regardless of their blood quantum.

Mollway threw out the case in 2006. But it was reinstated last August by a federal appeals court.

On Friday, Mollway issued an "inclination" statement, indicating she was leaning toward siding with OHA and its motion to dismiss the case.

OHA's attorney said a Native Hawaiian government established by the pending Akaka Bill will have to define its membership.

"That entity would have its rules and its rules will probably have a blood quantum," Klein said.
[...]
Even if most Hawaiians oppose a blood quantum they might be forced to accept it because under the Akaka Bill, the U.S. Department of interior must accept the Hawaiian entity's rules and it might demand a blood quantum similar to most Native American tribes.

Twenty-nine states have asked the U.S. Supreme Court to accept an appeal by Hawaii Attorney General Mark Bennett, who wants the high court to overturn a recent state court decision that prevents Hawaii from selling or transferring ceded lands.
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In that case, the state justices ruled that the 1993 Congressional Apology Resolution prohibits the state from selling, exchanging or transferring any of the more than 1.2 million acres of ceded land until it reaches a settlement with native Hawaiians.

Urging the U.S. justices to hear the case, Washington Attorney General Rob McKenna wrote for his and the other states that the Hawaii Supreme Court "misconstrued" the Apology Resolution.

The Office of Hawaiian Affairs said it will channel $90 million to the state Department of Hawaiian Home Lands in a historic partnership to deliver up to 500 residential lots to Native Hawaiians across the state.

The agreement, unanimously approved by OHA's board yesterday, will about double the production of lots on which Hawaiians can begin to build homes in the next 12 to 18 months.

The Army Corps of Engineers is in the early stages of creating a self-imposed mandate to formally seek out the input of any and all Native Hawaiian groups before it makes decisions on aquatic and watershed permits that could significantly impact the islands and the ocean.

During a scheduled five-hour forum Saturday at Maui Community College, Corps Regulatory Program Manager Farley Watanabe said that the federal government is in the process of revising its regulations for who it must consult during the complicated and often long permitting process.

And the Army Corps wants Native Hawaiian organizations — from nonprofits and state agencies to ohanas, lineal descendants and individuals — to be included in that process for the first time, Watanabe said.

Just days after the end of the legislative session and a failed attempt to reach an agreement over how much ceded-land revenue is owed to the Office of Hawaiian Affairs, the key parties involved appear to again be at loggerheads.

This time the issue is over what should happen next. While Gov. Linda Lingle says her administration stands by the existing proposal, lawmakers and OHA want to go back to the bargaining table.

Lawmakers did not approve an agreement reached between the Lingle administration and OHA that would have given the agency three parcels of land valued at $187 million and $13 million cash, as well as a minimum of $15.1 million in ensuing years.

But in the waning days of the session, legislators tacked onto the state budget a nonbinding proviso requiring the Lingle administration and OHA to resume negotiations on the 30-year-old dispute.

Meanwhile, Lingle on Friday told reporters her staff will not return to the negotiating table with OHA leaders.

Hawaii has a "sovereign right" to sell and transfer lands previously owned by Hawaii's kingdom, the state told the U.S. Supreme Court yesterday in an effort to lift a legal ban on the property deals until claims by native islanders are resolved.

In papers filed in Washington, D.C., state Attorney General Mark Bennett urged the nation's highest court to overturn a Hawaii Supreme Court decision that led to an injunction freezing any transaction of former royal land pending compensation to native Hawaiians.

Bennett contends Hawaii gained the right to manage more than 1.2 million acres of ceded lands, or about 29 percent of the islands' total land area, when it became a state through the Admission Act of 1959. He said the state court's unanimous ruling on Jan. 31 misinterpreted the Apology Resolution, which Congress passed and President Clinton signed into law in 1993 to acknowledge the illegal overthrow of Hawaii's monarchy.

Labeling the apology "symbolic," Bennett disputed the court's 5-0 decision that the resolution serves as a bar on the sale, exchange or transfer of ceded lands by the state.

The state has appealed a major Hawai'i Supreme Court decision that blocks the state from selling or transferring former Hawaiian monarchy lands.

State Attorney General Mark Bennett yesterday filed paperwork in Washington, D.C., asking the U.S. Supreme Court to reverse the unanimous state court decision, issued Jan. 31.

That decision held that the state cannot transfer ownership of 1.4 million acres of former monarchy lands, now called ceded lands, pending resolution of claims by Native Hawaiians to those lands or revenues they produce.

The Hawai'i opinion, written by Chief Justice Ronald Moon, was based in large part on language in a Congressional Apology Resolution passed in 1993 to mark the 100th anniversary of the overthrow of the Hawaiian kingdom.

Moon wrote that the Apology Resolution and related state legislation impose upon the state a "fiduciary duty to preserve the corpus of the public land trust, specifically the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved."

Bennett, however, said the Moon opinion "is based on a wholly incorrect reading of the legal effect of the Apology Resolution" and unfairly blocks the state from "prudently managing" the ceded lands.

The decision "strips the state of its basic sovereign right to control and manage the lands it owns," Bennett said in a news release.

The Hawai'i Supreme Court opinion reversed a lower court ruling from Circuit Judge Sabrina McKenna in a suit filed against the state by the Office of Hawaiian Affairs and four individual plaintiffs of Native Hawaiian ancestry.

Kamehameha Schools is trying to get back as much as $2 million of the $7 million it paid last year to settle a lawsuit that challenged its admissions policy favoring Hawaiian students, according to legal papers filed in federal court in California.

The proposed $200 million Office of Hawaiian Affairs settlement appears dead for this year's legislative session.

Senate President Colleen Hanabusa said yesterday that OHA trustees voted to urge the Legislature to pass a bill directing OHA to spend another year in negotiations.

Another legal challenge to the Office of Hawaiian Affairs was filed yesterday in federal court by six Hawaii residents who contend state funding for the agency discriminates against non-Hawaiians.

The six contend that paying OHA a part of the revenues from ceded lands once held by the Hawaiian monarchy violates the state's trust obligations to all Hawaii residents.

The six non-Hawaiian residents are represented by H. William Burgess, the attorney who filed other challenges to OHA in the past.

It asks for a court order to halt state payments from ceded-land revenues to OHA and a halt to OHA spending that money to support the Akaka Bill pending in Congress. It also suggests that the pending settlement before the state Legislature to resolve past disputed claims by OHA to ceded-land revenues would also violate the rights of non-native Hawaiians.

A key Senate committee yesterday advanced a resolution urging state Auditor Marion Higa to conduct a financial and management audit of the Office of Hawaiian Affairs, following more than three hours of testimony for and against the action.

OHA trustees and state Attorney General Mark Bennett said the sudden introduction of the resolution was punitive and tied to the critical comments they made after three Senate committees rejected a $200 million settlement of ceded land revenues last week.

They also pointed out that Higa is already scheduled to conduct an audit this year, under a statute that mandates such an audit of OHA every four years.

Senators said the suggestion for an audit came from growing calls from constituents who question OHA's expenditures and want more accountability from an agency established to benefit Native Hawaiians.

State senators will consider a measure today calling for a financial and management audit of the Office of Hawaiian Affairs.

The audit would come on the heels of the Senate's rejection last week of an agreement between the state and OHA to settle a 30-year dispute over revenue from land formerly owned by the Hawaiian government.

The settlement would give OHA $200 million in land and cash plus an annual $15.1 million payment. In exchange, OHA would relinquish any claims to revenues from the so-called "ceded lands."

Senate President Colleen Hanabusa said an audit of OHA would give everyone a chance to review the settlement.

"What the (OHA) beneficiaries are asking for, which we in the Senate do not find to be unreasonable, is to say, 'Slow it down a little bit. Let us participate in this. Talk to us.' And so the audit, to me, is an extension of that," said Hanabusa, D-21st (Nanakuli, Makaha).

Opponents of settlement have said it asks Hawaiians to give up too much for too little in return. Many Native Hawaiian leaders also complained they were not consulted on the settlement.

Office of Hawaiian Affairs trustees and Hawai'i Attorney General Mark Bennett yesterday vowed to continue pressing for legislative approval of a $200 million ceded lands settlement this year. But a key senator was skeptical that a resolution could be reached in the remaining six weeks of the Legislature.

"We want to make it clear that we are not giving up," OHA Chairwoman Haunani Apoliona said at a news conference, with five of her eight colleagues flanking her.

But Sen. Jill Tokuda, who chairs the Senate's Agriculture and Hawaiian Affairs Committee, said Tuesday's decision to hold House Bill 266, which contained the settlement offer, speaks for itself.

"I think by holding the measure, that was a pretty definitive message that we do not intend to pass the bill this year," said Tokuda, D-24th (Kailua, Kane'ohe).

Tokuda stressed that she and other senators want the parties to get more feedback from the public, work on the bill and come back next year.

Bennett, the Lingle administration's chief negotiator in settlement talks with OHA, said, "We are going to do everything we can to try to still get this passed in this legislative session."

A proposed $200 million settlement between the Office of Hawaiian Affairs and the state over the use of former monarchy lands appears dead for this session.

Last night, three Senate committees rejected the proposal - the result of four years of negotiations between OHA and the state.

Sens. Jill Tokuda, Brian Taniguchi, Clayton Hee, Mike Gabbard and Russell Kokubun voted to reject the bill, House Bill 266, effectively stopping the measure for this year.

Hee (D, Kahuku-Kaneohe), a former OHA chairman, said that not enough was known about how the state and OHA reached their agreement and how it would benefit the native Hawaiian beneficiaries.

The senators represented the Committees of Water and Land, Agriculture and Hawaiian Affairs, and Judiciary. Yesterday the committees heard more than five hours of mostly negative testimony regarding the bill.

Two Native Hawaiian leaders have joined with Hawaiian activists in calling for state lawmakers to delay passing an agreement that transfers $200 million of land and cash to the Office of Hawaiian Affairs.

Robin Danner, president and chief executive officer of the Council for Native Hawaiian Advancement, and Colin Kippen, executive director of the Native Hawaiian Education Council, said they want more information to be gathered before the settlement is adopted. That probably would mean putting off a decision at least until next year's Legislature convenes in January 2009.

Late yesterday, the Sovereign Councils of the Hawaiian Homelands Assembly also weighed in on the subject. The organization, formerly known as the State Council of Hawaiian Homestead Association, issued a statement saying it "strongly opposes" the agreement reached between OHA and the Lingle administration. The statement said homestead association presidents gathered Saturday to discuss the issue and voted unanimously to oppose the agreement. The group echoed the arguments made by Danner and Kippen.

Meanwhile, a poll conducted on OHA's behalf shows 55 percent of Hawai'i residents believe the Legislature should approve the settlement agreement while 72 percent of Native Hawaiians polled believe it should be passed.
[...]
Danner and Kippen, who are usually allied with OHA on major issues, including their support for the Akaka bill for Native Hawaiian recognition, say they are not convinced this settlement is the best OHA could get.

Supporters of a cultural trademark study to protect Native Hawaiian art say it shows that many local artisans want a program to distinguish authentic artworks and products from fakes and imitations.

But more than a year after release of the $74,300 study, the Office of Hawaiian Affairs has taken no action on its conclusions.

"It's sitting on a shelf gathering dust," said Leighton Chong, a Honolulu intellectual property and patent attorney who gave legal counsel to the study.

Chong said OHA, which paid for the study, is the logical agency to follow up with the study's recommendations because its mandate is to benefit Hawaiians.

"My basic reading is with all the challenges to race-based programs that OHA is dealing with, the cultural trademark program may not be a priority at this time," said Chong. "The Hawaiian community is rather fractious, and there are many different viewpoints. [The study] crumbled under its own weight."

OHA Administrator Clyde Namuo did not respond to requests for comment.

The state House, the Lingle administration and the Office of Hawaiian Affairs now appear to all be on the same page regarding a settlement of a longstanding dispute over ceded [sic] land revenues.

That could leave the fate of the $200 million settlement package in the hands of the 25 members of the state Senate.
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Three House committees yesterday voted to approve House Bill 266, House Draft 2, which OKs the state to hand over three parcels of land valued at $187 million and $13 million in cash to OHA.
[...]
There are two key differences between SB 2733 — the original bill — and HB 266, the bill passed by the three committees yesterday:

  • The House bill states OHA will get a minimum of $15.1 million in future years as its share of ceded land revenues. A biennial report would be submitted from the state Department of Land and Natural Resources, which would analyze the amount of money derived from ceded lands, and the Legislature would determine how much OHA would ultimately get. The original bill calls for a flat $15.1 million annual payment, a key sticking point for some Native Hawaiians.

  • The House bill deletes all references to a "settlement." Caldwell said: "I believe this legislation sets a policy that enables a settlement but does not set the terms of the settlement. We're the policymaking branch of government."

The two sentiments voiced most frequently were that OHA, a state agency, cannot be trusted to fully represent kanaka maoli in negotiations with the state, and that such negotiations represent a tacit acceptance that the state has jurisdiction over the 1.4 million lands in question. (Another 400,000 acres are held by the fed.)

“You’re promoting a fraud,” said one man.

“You’re asking us to be collaborators with the enemy,” said another.

Three committees of the state House of Representatives will collect testimony from the public Saturday on its newly released version of a proposed settlement of disputed land revenue claims by the Office of Hawaiian Affairs against the state.

House Bill 266 keeps intact the bulk of the landmark settlement reached last month between OHA officials and Attorney General Mark Bennett, specifically a package of four parcels of state land valued at $187 million and a one-time cash payment of $13 million.

A key change is that it negates the proposed future annual payments of $15.1 million to OHA, as called for in the OHA-Bennett version and which has been criticized by many because it makes no allowances for inflationary factors. Instead, the House bill calls for an undefined pro rata share.

Saturday's 9 a.m. hearing at the state Capitol auditorium is being held jointly by three House committees: Finance, Judiciary and the Water, Land, Ocean Resources and Hawaiian Affairs.
[...]
On a related note, Native Hawaiians and the public will get two more opportunities before Saturday's hearing to learn about the bill.

OHA is holding an Internet discussion on the proposed settlement from 9 to 11 a.m. tomorrow. Go to www.oha.org/pastdue/index.php for more information.

Meanwhile, a coalition of Native Hawaiian rights groups will hold a panel discussion at 6:30 p.m. tomorrow at the Kamakakuokalani Center for Hawaiian Studies at the University of Hawai'i-Manoa titled "Why the OHA settlement is a bad deal."

Two key state Senate committees yesterday advanced a plan to settle a dispute over ceded land revenues that would have the state give $200 million in land and cash to the Office of Hawaiian Affairs.

But it remained clear that the plan, or some version of a settlement, is still an iffy proposition at the state Capitol, where lawmakers must sign off on any settlement.

Office of Hawaiian Affairs Administrator Clyde Namu'o will present an overview of the recently negotiated Public Lands Trust Settlement at the Native Hawaiian Chamber of Commerce's luncheon meeting Feb. 21.

OHA's land management director, Jonathan Schurer, also will be able to answer questions about the lands being conveyed as part of the settlement, which requires legislative approval.

Registration and networking will begin at 11:30 a.m., with lunch and the program starting at noon. Cost for members is $20 and $25 for nonmembers.

The location is 1451 Queen Emma St. For more information call Pauline Worsham at 951.5373 or e-mail her at pauline@pmwconsult.com. For more information about the event and the NHCC, visit www.nativehawaiian.cc.

More meetings on settlement

The Office of Hawaiian Affairs and the state Attorney General will hold community meetings to discuss the ceded lands settlement:

» Wednesday: at the Waimanalo Library from 7 to 9 p.m.
» Friday: at Pearl City High School from 7 to 9 p.m.
» Saturday: at Maili Elementary School from 7 to 9 p.m.
» Feb. 18: at OHA Kulana Oiwi offices on Molokai from 7 to 9 p.m.

More meetings are being planned. Information gathered in the meetings will be included in a report to the Legislature.

Visit OHA's Web site at www.oha.org/pastdue/ for updates. A "Halawai Punaewele" or electronic meeting is also planned over the Internet on Feb. 22 at the same Web address.

The Hawaii state government's proposed allocation of lands belonging to the Hawaiian Nation must be rejected. The state of Hawaii, as part of the U.S. federal system, has no authority to allocate any land of the sovereign Hawaiian Nation to any party other than the rightful owners.

U.S. Public Law 103-150 (Apology Resolution) of 1993 clarified that the kanaka maoli (native Hawaiians) never relinquished their claims over their national lands to the United States. Even though the Hawaiian Nation was invaded by the United States in 1893 and its government was removed, the Hawaiian Nation, under international law, continues to exist. Only the kanaka maoli and fellow loyal non-kanaka citizens, as continuing members of the Hawaiian Nation, have legal authority to decide on the lands of the Hawaiian Nation. Until the U.S. government ends its illegal occupation of Hawaii, it is obliged to keep intact all the lands it occupies.

The state cannot sell or transfer ceded lands, those formerly owned by the Hawaiian monarchy, until native Hawaiian claims to those lands are resolved, the Hawaii Supreme Court ruled unanimously yesterday.

The ruling does not affect the proposed $200 million settlement over ceded-lands revenues that the Office of Hawaiian Affairs and Gov. Linda Lingle announced earlier this month.

But it does point to the need for a native Hawaiian government to claim compensation or return of the lands that were taken by the U.S. and transferred to the state after the 1893 overthrow of the Hawaiian monarchy, said Office of Hawaiian Affairs Chairwoman Haunani Apoliona.

The Office of Hawaiian Affairs and the state went through more than a decade of negotiations to finally reach the landmark $200 million ceded lands settlement announced Jan. 18, but it has taken just days for lawmakers to raise serious reservations about the agreement.

The settlement, which calls for three large parcels of land to be transferred by the state to OHA along with $13 million cash, must be approved by the state Legislature. The parcels are in Kaka'ako and Kalaeloa on O'ahu, and Hilo on the Big Island.

Even the most critical of lawmakers said they are sincere about wanting to approve a settlement. But from the amount of land and money involved to whether the settlement would leave open the possibility of future claims, the questions being raised are complex, varied and not easily answered.

OHA officials, following criticism that they have not tried to seek input from their Native Hawaiian constituency, are starting a public informational campaign that will include meetings statewide, putting the bill and related information on the Internet and even the unusual step of calling constituents to let them know about the proposal.

If approved by the Legislature, the state will have formally acknowledged it owes land and cash exclusively to Hawaiians, and Hawaiians alone, as their due share of the income the lands have generated over all these years.

It doesn't matter that the amounts are relatively minor. A precedent would have been struck.

As some have already signaled, this agreement takes care of one issue but leaves open the larger matter of whether Hawaiians are owed further compensation for loss of lands because of the 1893 overthrow and later annexation by the United States. That's where the big stakes come into play.

Resolution of those matters will most likely await the emergence of a Hawaiian "government" or political entity, either through the Akaka Hawaiian recognition bill in Congress or through some other, more organic process.

But when that day comes, and if lawmakers approve the Lingle-OHA deal, people will be able to point to 2008 as the moment when government officially recognized (and paid) Hawaiian claims for losses traced to the overthrow of the kingdom.

State leaders are raising questions about the multimillion-dollar settlement between the state and the Office of Hawaiian Affairs over the use of so-called ceded lands.

Lawmakers predicted the settlement will not be liked by native Hawaiians. "I don't think the beneficiaries are going to be pleased with this settlement," said Senate President Colleen Hanabusa.

And former Gov. Ben Cayetano, who had worked for a settlement while he was in office, said the offer he made was a better deal for native Hawaiians.

Whereas, the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government;

A special salary commission seeks public input on proposed pay raises for state Office of Hawaiian Affairs trustees.

Currently a trustee is paid $41,000, and the chairperson is paid $47,000. On Dec. 18, the commission recommended hiking a trustee’s salary to $50,000 and the chairperson’s to $57,000.

Written comments are due to the commission by Jan. 28. They may be mailed to P.O. Box 2433, Ewa Beach 96706 or sent via e-mail to oha.salary.commission@gmail.com.

Draft recommendations also can be found on the OHA Web site at www.OHA.org.

The commission also will accept oral comments at its next scheduled meeting at 2 p.m. Jan. 29 at the Queen Lili’uokalani Children’s Center at 1300 Halona St. on Oahu.

Maui Sen. J. Kalani English, whose district includes Hawaiian communities in Hana and Molokai, said he was “very peeved” that he was not one of the state lawmakers briefed on the proposal. He declined comment until he had the details.

“As one of only two Native Hawaiian senators with one of the largest Hawaiian constituencies, I would say it is a bad omen for them that they did not come and talk to us,” English said Friday.

The state will give the Office of Hawaiian Affairs a package of land and cash worth approximately $200 million to end a long-standing dispute over ceded lands, according to a proposed settlement expected to be announced today.

The settlement would address how much OHA is owed by the state from revenues generated from public lands turned over to the United States by the Republic of Hawai'i in 1898.

The plan must still be approved by the state Legislature. After OHA trustees voted 9-0 to approve the settlement during a closed session yesterday, OHA leaders took the plan to lawmakers at the state Capitol. OHA officials, as well as the office of Gov. Linda Lingle, declined to provide details yesterday pending a news conference today.

Sen. Clayton Hee, D-23rd (Kane'ohe, Kahuku), who was briefed by OHA officials, confirmed that the deal involves about $15 million in cash and an unspecified amount of land that includes acreage in Kaka'ako, Hilo and Kalaeloa. Additionally, the state would continue to pay OHA about $15.1 million annually for ongoing revenues, said Hee, a former OHA trustee.

Hee said the settlement appears to be significantly less than the deal offered in 1999 by then-Gov. Ben Cayetano that would have given OHA about $250 million and approximately 365,000 acres across the state.