Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 2, 1 February 1988 — Office of Hawaiian Affairs: Dreams and Dilemmas [ARTICLE+ILLUSTRATION]

Office of Hawaiian Affairs: Dreams and Dilemmas

Editor's Note: The following story was published in a special Ho'olokahi Hawaiian Unity Day issue o/Ka Wai Ola O OHA whieh was distributed Jan. 23 at Aloha Stadium. Because of the preuailing interest on the ceded lands issue and because of Miss Delaney's intensiue research into the matter, we are repeating the story herefor the benefit of those who missed it. Miss Delaney will continue to focus on land matters affecting the Hawaiian community and the Office of Hawaiian Affairs in upcoming issues. By Linda Kawai'ono Delaney Land Officer "Ke aloha o ko kakou 'aina 'oia ka mana ku pa'a." The love of our land is the power for us to stand fast. The year 1988 marks the 10th anniversary of the creation of the Office of Hawaiian Affairs (OHA). Forged at the State Constitutional Convention of 1978, the dream of OHA was to set the example of how historical wrongs and resulting social disadvantages experienced by the Hawaiian people could be recognized and addressed— not by gestures of pity, but by acts of justice. Several principles were essential to this dream. FIRST, STATE RECOGNITION OF NATIVE HAWAIIAN STATUS The creation of OHA clearly established State recognition of the unique legal status of Hawaiians. As developed over two centuries of American Constitutional thought and precedent, the "first peoples" of the United States — Amenean Indians, Alaskan Eskimos and Aleuts, and Native Hawaiians — enjoy special privileges and entitlements based, not on race, but on a recognition of the fundamental !osses of land and sovereignty whieh were suffered when "first people" became Americans through conquest rather than ehoiee. SECOND, FINANCIAL INDEPENDENCE AND CONTROL This recognition of status was re-enforced by federal provisions in the 1959 Admissions Act for Hawai'i whieh allowed the State to use certain public lands and revenues "for the betterment of Native Hawaiians." This section, popularly known as the 5(f) trust clause, outlined the Congressional-ly-approved "rules" whieh the State was to follow ifi the proper management of the lands — and the ineome generated by those lands — whieh were being returned in fee simple title to the new state from the national government. The affected lands, described in Section 5(b) of the Admissions Act, were the bulk of the property "ceded" or surrendered to the United States at the time of annexation in 1898. Nearly 1.8million acres of land were transferred at the turn of the century. With admission, about 1.4 million acres were returned to the new State of Hawai'i. As described in the State Constitution, OHA was to receive a pro rata share of the ineome from these 5(b) lands. In 1981, the State Legislature set this share at 20 percent of the revenue collected from the use of these lands. Thus, OHA was provided by law with a constant source of funding based solely on Native Hawaiian status. In this way, OHA became a virtual "fourth branch of government." THIRD, SELF-DETERMINATION As provided in the State Constitution, policies and programs at OHA were to be determined by a nine-member Board of Trustees elected solely from and by adult Hawaiians. Through them, the Hawaiian people would decide our own goals, set priorities and determine the use of eommunal resources. The Office of Hawaiian Affairs embodied the best expression of Hawaiian self-governance and unity since the armed destruction of the Kingdom of Hawai'i in 1893. The frustration of the last eight years for OHA and the Hawaiian people, however, is that the dream of justice ean become a waking nightmare. Although OHA reflected the aspirations and rights of the Hawaiian people — critical areas of

self-determination and trust management are not under Hawaiian control. Wherever this gap in empowerment occurs, there is a significant diminishment of potential justice. In fact, a new level of injustice is experienced. The source of these crippling limitations, not surprisingly, are in the imperfect or incomplete formulahon of the guiding principles. In effect, the dream is also the dilemma. THE DILEMMA OF WHO IS A NATIVE HAWAIIAN? All federal legislation enacted since 1974, has defined "Native Hawaiian" to mean "any individual whose ancestors were natives of the area whieh consisted of the Hawaiian Islands prior to 1778." This definition requires Hawaiian ancestry — but does not distinguish between the rights and entitlements of a pure-Hawaiian tutu and her one-quarter Hawaiian mo'opuna. For example, this definition is used by Alu Like Ine. to determine qualification for federal jobs training programs administered by that private agency. Kamehameha Schools abides by this definition in its school admissions program. And the anticipated federal Native Hawaiian Health and Education bills also incorporate this definition. OHA, however, is currently restrained — aecording to a State Attomey General's opinion — by the language of the Admissions Act whieh notes that the trust may be used only "for the betterment of native Hawaiians, as defined in the Hawaiian Homes Act of 1920, as amended." The Hawaiian Homes Act definition — imposed almost 70 years ago by Congress and contrary to testimony presented by Hawaiians of the time — states that "native Hawaiian means any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands prior to 1778." Running counter to all traditional Native Hawaiian cultural values — blood now acts to divide rather than to join the Hawaiian people. And counter to the principles of status recognition and self-determination — the decision to either retain or to abandon this blood division is not explicitly given to the Hawaiian people to decide.

For OHA, charged to represent, serve and better the conditions of all Hawaiians regardless of blood quantum, there is a profound limitation in the ability to fulfill this mission. The trust monies may only be used for those who are 50 percent or more Hawaiian. Funds for Hawaiians of less than one-half — the overwhelming majority of the beneficiary group — must be solicited from and at the will of the State Legislature. The greater harm, however, is the profound separation of the Hawaiian people as one family , of the damage to the sense of 'ohana, described by Mary Kawena Puku'i, as the source: " ... of unity, shared inuoluement, and shared responsibility. It is mutual interdependence and mutual help. It is emotional support, giuen and receiued. It is solidarity and cohesiueness. It is loue — often; it is loyalty — always. It is all this, encompassed by the joined links of blood ..." WHO DEFINES AND ENFORCES THE OHA TRUST? Constitutional description and State statutory implementation of the OHA trust seems simple. The Office is to receive 20 percent of the revenues from the 5(b) lands — with the express sole exception of Hawaiian Home Lands — held and managed by the State of Hawai'i. For example, if $10 million is generated from leases, rents or permits for the use of these lands, then OHA is to automatically receive $2 million as its pro rata share. Nowhere in the Constitution or in Chapter 10 of the Hawai'i Revised Statutes (the enabling legislation whieh describes OHA in detail) is any property or ineome — except Hawaiian Homes — exempt from this trust obligation. Beginning in 1981, however, only the Department of Land and Natural Resources complied with the trust. Charged with the jurisdictional administration of nearly 1.4 million acres of State 5(b) lands, DLNR routinely transfers an average of $1.5 million annually to OHA. Refusing to observe the trust was the State Department of Transportation (SDOT). With jurisdiction over less than 300,000 acres, the depart•See Dreams, page 3

Airport and Sand lsland facilities are among ceded lands in question.

•Dreams, from page 2 ment is the major generator of trust ineome by virtue of its airport and harbors divisions. In response, OHA sued SDOT. The stakes were high. According to a recent SDOT report, the Airport Revenue Fund alone is projected to general $166 million in this fiscal year. Funds derived directly from land use — landing fees, airport use charges and concession fees — total $121 million. The potential ineome to OHA just from airports, figured as 20 percent of the gross receipts and narrowed only to land-related revenue — would be in excess of $24 million annually. What was the basis for SDOT's refusal? In another section of State law describing the operation of the State Department of Transportation, it is legislatively mandated that the SDOT must be self-supporting. Thus transportation fees and concession contracts have been set to meet the operating costs of the department, and to raise the money needed to pay outstanding bonded indebtedness related to construction costs. SDOT maintained that this earlier legal requirement pre-empted the OHA entitlement. Typically, when laws seem to be in conflict — courts will rule that the newer statute must be enforced. By that standard, the OHA share — demanded by the higher law of the State Constitution as well — should have held sway. Unfortunately, late last year both the State and U.S. Supreme Courts decided not to decide the OHA suit against DOT.

Whieh is where we are now. Rejected by the courts. And told to seek not justice through the courts, but a political solution through negotiation with the Governor's office and the State Legislature. WHAT DO HAWAIIANS WANT? The final dilemma is the heart of the dream. For years Hawaiians demanded the right and the power to decide their own affairs. To manage their own assets. To take responsibility and be held accountable for their collective lives. This urge for self-determination often takes the form of protest: landings on Kaho'olawe, the occupation of Lyman Field in Hilo, physically asserting claims to land at Makapu'u. But through OHA, Hawaiians have been provided with the opportunity to develop our own principles of governance. Not to stand on the outside shouting; but to eome in, sit down and work out a solution, a program, an accomplishment. This challenge is not presented only to OHA. It is a challenge to all Hawaiians. Politics is a process of numbers. Of organization and commitment. It is a challenge for maturity, and creativity. The first steps to resolving the dilemmas and living the dream are being taken today. Ho'olokahi. Come together. Unify in eommon cause and with one heart. Onipa'a. Stand together. United and with one mind. Ho'olahui. One heart. One mind. One people.

Across from Sand lsland is Aloha Tower whieh is another ceded lands occupant.