Ka Wai Ola - Office of Hawaiian Affairs, Volume 13, Number 3, 1 March 1996 — Destroying the trust [ARTICLE+ILLUSTRATION]

Destroying the trust

by Kma'u Boyd Kamali'i Trustee-at-large The Cayetano administration and the Department of the Attomey General are pursuing an unconscionable attempt to destroy the OHA trust. Dishonestly ealling their effort a "clarification" of the revenues due the trust and her beneficiaries, AG Margery Bronster is offering amendments whieh violate the negotiated settlement of 1 990. The Office of the Govemor and the

Office of Hawaiian Affairs negotiated for twenty eight months to reach the accords formalized in Act 304 (SLH, 1990). Beyond clarifying what lands and what activities were subject to the 20 percent pro rata due OHA, this settlement described a fundamental distinction between "sovereign" and "proprietary" incomes. OHA would receive its entitlement from "proprietary incomes," but would not receive any ineome from revenues generated from the exercise of

sovereign powers by the state. Simply, OHA would receive a 20 percent share of those revenues linked to the ownership and use of land. These revenues included rents, leas-

es, licenses, and a share of the ineome from businesses operating on the land. However, those incomes generated from a sovereign exercise — taxation, poliee, or justice powers — would not be subject to the OHA trust.

The easier way to see this distinction is to ask

whether an individual private land owner could collect such revenues or not. Thus. it is obvious that a landowner ean collect rent, but cannot impose an excise tax on businesses located on his land. Such a private landowner ean — as does Queen's Medical Center or Leahi Hospital — eollect medial or patients fees. These incomes are not sovereign, but proprietary in nature. Yet the AG's bill would exclude these incomes. The same is true of mooring fees at public or private marinas or landing fees at public or private airports. These incomes are directly attached to ownership of the land, not govemmental exercise. Again, the AG's bill would exclude these incomes. To exempt these incomes violates the settlement agreed upon and implemented in 1990. And would cost the tmst millions of

dollars eaeh year. The other insidious provision of the AG's amendments is that OHA's trust would be calculated on the proprietary ineome available after a

I deduction of outstanding bond or other indebtedness payments. At least a private business attempts to make a profit. It's a questionable assumption in Hawai'i that the state operI ates at a loss or, at best, a break-even proposition in its

dealings. Thus, such a forI mula would be a negative outcome, and nothing would

be left to pay the rent. We need to remind the govemor and his AG of two points. First, Hawaiians are taxpayers. We pay our share towards government improvements in the same manner and to the same degree that every other citizen in Hawai'i pays. Second, and more significantly, Hawaiians have paid a disproportionate share, the so-called public lands transferred to the state by the Admission Act trace to the resolution of annexation, and rest on the illegal actions and thefts resulting from the overthrow of the Kingdom in 1893. No one paid for the lands. They were stolen from the Hawaiian people. If the Attomey General wishes to work on a clarification of the tmst — let me strongly urge that our efforts and energies be directed at forging a comprehensive settlement of land claims whieh would benefit all Hawaiians, regardless of blood quantum. Anything less is a betrayal.