Ka Wai Ola - Office of Hawaiian Affairs, Volume 4, Number 7, 1 July 1987 — Why OHA Sues [ARTICLE+ILLUSTRATION]

Why OHA Sues

By Clarence F.T. Ching

Trustee, O'ahu

Does it sometimes feel as if the on-going battle to right the wrongs of 1893 will never end? At one moment the Kingdom of Hawaii was a member of the sovereign nations of the earth, and a moment later, the Kingdom had been reduced to nothing. Well, almost nothing. The attack on our culture had

already begun, and our sovereignty (the ability to make our own decisions) and the crown and government lands were gone. Or were they? After all, in 1893, Queen Lili'uokalani, the last reigning monarch of the Kingdom of Hawaii, was "illegally" overthrown by a group of American residents who employed U.S. Marines from the U.S.S. Boston, an American warship whose loaded guns were trained on the Queen's palaee, in a eoup d'etat. The crown and government lands were "taken" by what was to become the Republic of Hawaii, later to be "ceded" to the United States at the time of annexation in 1898. The sovereignty and lands were not purchased; they were "taken," "ceded," maybe "expropriated," but by whatever disguised term one may want to use, the sovereignty and lands of Hawaii were stolen. Some Hawaiians believe that the lands went directly from the Kingdom to the U.S. to be held in trust for them. They cite the actual document the Queen signed dated January 17, 1893, in whieh she wrote: "That I yield to the superior force of the United States of America . . . until such time as the Government of the United States shall, upon the facts being presented to it, undo the action of its representatives and reinstate me in the authority I elaim as constitutional sovereign." In either case, the U.S. did not purchase Hawaii, but should have held title to the "ceded" lands in trust for the people of Hawaii. This then seems to be the situation in 1959 as the Admission Act eame into being, with the word "trust" actually being used. Section 5(f) of the Act states: "The lands granted to the State of Hawaii . . . and public lands retained by the United States . . . and later conveyed to the State . . . together with the proceeds from the sale or other disposition of any such lands and the ineome therefrom, shall be held by said State as a public trust for the . . . betterment of the conditions of native Hawaiians." Section 6 of Article XII of the State Constitution gives the Board of Trustees of the Office of Hawaiian Affairs the power "to manage and administer the proceeds from the sale or other disposition of the lands, natural resources, minercils and ineome derived from whatever sources for native Hawaiians and Hawaiians, including all ineome and proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians. ..."

Section 4 states that the "lands granted to the State of Hawaii . . . shall be held by the State as a public trust for native Hawaiians and the general public." If the ceded lands is held by the State in trust for native Hawaiians and Hawaiians, how ean the State dispose of these lands through executive orders, trades, exchanges and sales without giving native Hawaiians and Hawaiians, through OHA, their due? Therefore, the Board of Trustees of OHA filed two lawsuits, OHA us. Yamasaki and OHA us. Hong, because this agency was not receiving the full amount of ineome it believed it had coming from the ceded lands, especially not from those lands that had been transferred to the Hawaii State Department of Transportation (DOT). Assuming that the Hawaii Supreme Court would mete out the highest degree of justice, the Board of Trustees, including this Trustee, was hopeful that OHA would be vindicated. We were wrong. The opinion of the Supreme Court this past May 27 skirted the monumental issue by deciding that it could not render such a decision. The Court said that the Hawaii Revised Statutes were in conflict. It pointed out that, on one hand, the Statutes say that: 1) OHA is supposed to get 20 percent of all funds derived from the trust, and, on the other hand, it says: 2) all moneys received by the DOT from rents, fees and other charges shall be paid into the airport revenue fund.

Chief Justice Herman T.F. Lum, and Justices Edward H. Nakamura, Frank D. Padgett, Yoshimi Hayashi and James H. Wakatsuki agreed with eaeh other that the OHA Trustees were seeking a judicial resolution of a "nonjusticiable controversy." In other words, the Court could not settle the problem in a legal kind of way and so it decided to send the controversy to the Legislature. On the basis of the foregoing arguments, the question is, if you were a judge, would you have given more weight to the Hawaii State Constitution or to a questionable statute? Wouldn't it have been easy to eonc!ude that the statute would at least be partly unconstitutional because it restricted OHA from getting its share of funds from a constitutional trust of lands questionably in the hands of the DOT? Finally, the foregoing discussion brings up a tender subject for OHA. We have received criticism from legislators, the governor and the public that OHA is too litigious (we tend to sue too mueh). Remember that as OHA Trustees, we have a fiduciary responsibility to administer the trust for native Hawaiians (and Hawaiians). We have no ehoiee. In order to fulfill the degree of responsibility that we have accepted, we sometimes have to do unpopular things; things that our beneficiaries and others wonder about. Our responsibilities, when our options are exhausted, mandate us to enforce the trust in available ways, including suipg state officers and agencies to get what is legally and rightfully ours.