Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 3, 1 March 1987 — OHA Keeps Hectic Pace at Legislative Hearings [ARTICLE+ILLUSTRATION]

OHA Keeps Hectic Pace at Legislative Hearings

Chairman. Administrator. Staff Verv Visible

"What is good for Hawaiians is good for Hawaii. And what is good for Hawaii is good for Hawaiians." This was the message delivered by Office of Hawaiian Affairs Board of T rustees Chairman Moses K. Keale Sr. in testimony presented to the H*ouse Finance Committee on OHA's budgetary overview of the 1987-89 biennium. Keale, along with OHA Administrator Kamaki A. Kanahele III and senior and program officers, have been keeping a hectic and active paee at the current session of the Hawaii State Legislature in presenting testimony and being available for questioning on an assortment of legislation OHA is supporting. Another important testimony given by Keale, Kanahele and staff was on House Bill 37 regarding Native Hawaiian and Hawaiian Right to Sue, cqmmonly referred to as the Right to Sue bill. Rep. Daniel Kihano is chairman of the House Finance Committee and Hawaii Rep. Andrew Levin heads the Water, Land Use, Eeonomie Development and Hawaiian Affairs Committee. At the budgetary review hearing, Keale shared the fo!lowing thoughts with the committee: "As most of you know, OHA has had its share of problems. We are the youngest of all state agencies. Our mandate and mission— the betterment of the condition of native Hawaiians — is both complex and easily misunderstood. To help us in doing our job better, OHA commissioned a management audit whieh was completed last December. The Board of Trustees is in the process of implementing many of the recommendations contained in that report. In that way, we intend to strengthen the policymaking of the Board, to foster a more efficient operation of the office and to improve our ability of responding to the needs and concerns of our Hawaiian beneficiaries. We ask for your patience, understanding and guidanee in this process. As OHA has struggled to find the right and best ways of fulfilling our mission, we have made mistakes. These mistakes were errors of judgment, not of bad faith. But it has deeply troubled me that some people have used such errors to question the very basis of OHA. To many, the idea that native Hawaiians have rights and privileges whieh are not shared by the entire eommunity apears somehow illegal and against the whole idea of equal opportunity whieh is the very foundation of our Democratic societv.

What must always be kept in mind is that such rights and entitlements are not racia! in character, but a reflection of American justice. In a series of Supreme Court rulings spanning nearly two centuries, such rights and entitlements have been upheld because native Americans share two eommon experiences. First, our ancestors live in what is now the United States before any Westerners arrived. And second, that our lands were Iost and our culture and people adversely affected by contact. It is OHA's mission to identify and to better those conditions whieh resulted from that historical harm. And to do so in a manner consistent with native Hawaiian values, trust principles and law. We cannot do this job alone.We need your help and support. That is why we are here." On HB 37, Keale said he was in favor of the right of native Hawaiian and Hawaiian beneficiaries to sue in court to protect and enforce the Hawaiian Homes and OHA trusts. He explained that changes incorporatedin the new version of the bil! answer concerns raised by former Gov. George R. Ariyoshi when he vetoed the bill last year. The OHA chairman a!so referred to the elaim of sovereign immunity by the state in OHA's suit against the Department of Transportation and the eoneem expressed by some people that the Department ofHawaiian Home Lands or OHA would suddenly be flooded by suits "and unable to do anything but defend ourselves if this bill were enacted."

On the matter of sovereign immunity, Keale said he did not believe this defense will be upheld in OHA's case. "It is also important to note that this bill explicitly forbids its application to any case now pending in court," he observed. "Thus," he explained, "there is no impact from this bill on the DOT suit." Regarding the second eoneem, Keale pointed out that OHA has direct experience on the issue. Chapter 10, Section 16, he noted, already allows beneficiaries to sue the office in its corporate name and — in a fundamental departure from the protections granted other state officers — also allows for suit against individual trustees for violations of fiduciary responsibility. "As a result;" the OHA chairman explained, "the of-

fice has been involved in adversarial suits brought by beneficiaries. We have not found these cases to be destructive of OHA's purpose or of the trust mandate." Keale concluded: "Instead, we continue to urge broadening this beneficiary right to sue as an essential part of our mission. Native Hawaiians and Hawaiians are not children — we and they will not initiate legal action in a reckless or irresponsible manner. Rather, as beneficiaries with a direct interest in the integrity of the trusts and the fulfillment of the trust purposes, we expect any such suits to reflect a mature eoncern for both safe-guarding and implementing the trusts."

This is one of the many committees the Office of Hawaiian Affairs has presented its budgetary testimony. It is the Senate Committee on Housing, Hawaiian Programs and Natural Resources. Administrator Kamaki A. Kanahele III, left, and OH A Board Chairman Moses K. Keale Sr. are making their resentation before Senators Patsy T: Young, James Aki and Malama Solomon. Aki is chairman of the committee while Sen. Solomon is vice chairperson.