Ka Wai Ola - Office of Hawaiian Affairs, Volume 19, Number 2, 1 February 2002 — Governor admits failure over OHA: a response to Star Bulletin's Jan. 6 article [ARTICLE+ILLUSTRATION]

Governor admits failure over OHA: a response to Star Bulletin's Jan. 6 article

Editor's note: Trustees Apoliona and Machado have combined their columns this monīh. Usual alphabetizing of articles following the chair and vice chair has been altered.

Aloha mai kākou e nā 'ōiwi o Hawai'i, This 15th article in a series of 48 focuses on a January 2002 Honolulu Star Bulletin article, On Sun,, Jan, 6, 2002, the Honolulu Star Bulletin published an interview with Gov, Cayetano regarding his two terms as governor, Regarding his promise to settle the dispute over ceded lands with the Office of Hawaiian Affairs, he said, "this is one of my failures, īn one of my state of the state addresses, I pledged to try and resolve it before I left, So, I admit failure, ī'm not able to do it," The article cites the 1996 decision by Judge Heely that the state owed 20 percent of certain revenues that OHA had sued for in 1994. The state appealed the Heely decision to the Hawai'i Supreme Court whieh heard oral arguments in 1998, The Supreme Court recommended negotiations occur between the state and OHA on the Heely matters, The Bulletin notes that the talks "faltered" in 1999. The Governor is reported to have called some trustees "greedy," The article reports that Akana and OHA Chairman Clayton Hee elaim that their proposal could have brought OHA's native trust "close to $1 billion today," There are specific facts left out by the comments of the governor, Trustees Hee and,Akana. The following, for the record, provides a more balanced, fair, and accurate accounting of facts and circumstances surrounding the decision of the OHA Board in 1999. The Star Bulletin Jan, 6 article, "Governor admits failure over OHA" is fraught with inaccuracies and casts the governor in a far more favorable light than the actual record reflects, īndeed, with assistance from "OHA insiders" (Trustees Hee and Akana and OHA staff Kali Watson) in 1999, Gov, Cayetano desperately tried, unsuccessfully, to "horse trade" away onee and for all, past and future claims of Native Hawaiian beneficiaries protected by the Hawai'i State Constitution, The Governor characterizes the April 1999 decision by the OHA board as, "some

trustees got greedy because they felt they had legal advantage over the state," Unfortunately, such a statement by the chief executive of the state about other elected officials - OHA Trustees - is false, disrespectful, and disingenuous, Obviously he never read the April 27, 1999 minutes of the Board meeting and relied on the story about the OHA debate from other sources, getting only half the story.

The official April 27 minutes and OHA then-Chair Akana's April 16 letter presented to the OHA board reveal the "deal" to whieh the majority of Trustees balked - not due to greed, but based on a fiduciary duty to OHA beneficiaries, The governor's comments and those of Hee and Akana, reported in the Star Bulletin article, leave out the fol-

lowing facts about their negotiations: 1) the Akana "one final offer to settle this case" letter of April 16, was never acknowledged by the other negotiating party - the Governor or Sam Callejo - even though the state had it for approximately 1 1 calendar days before the April 27,1999 OHA board meeting; 2) one member of the Akana/Hee/Watson negotiating team, Trustee Trask, informed all Trustees by memo that she opposed the proposed Akana/Hee/Watson settlement offer with the state, The Trask "objection" is well documented; 3) Akana and Hee pressed Trustees for an agreement to conditions in the Akana letter in the absence of the state's response and in a 48-hour time crunch before the end of the 1999 Legislature, Such a hasty and ill-conceived process for rendering an important decision is incompatible with Trustee obligations of careful and prudent decision making, The 90's OHA-state negotiations for past due revenues (for 1980-1990) took approximately 30 months, not 100 days, Trustees Hee and ,Akana are cited as saying "if OHA accepted the offer" OHA could have brought the native trust to $1 billion today, The record is clear, however, that the Board of Trustees saw no written offer from the state following the April 16, 1999 date of Akana's letter, The state did not even reply to Akana's April 16 letter, "one final effort to settle this case," As far as the $1 billion, this number is pure speculation and sensationalism and has no basis in fact, There is serious doubt in the minds of several Trustees that the state would have even delivered payment on the two annual amounts in Akana's letter because: 1) even mutually agreed upon revenues due have been only partially paid and historically OHA has had to pursue legal avenues to recover state payments; 2) the state has not settled its long overdue debt to OHA beneficiaries for the sale of the Elliott Street property, and, as

stated earlier; 3) the state never responded to the Akana/Hee/Watson April 16, 1999 terms, in any event, On the other hand, had the majority of Trustees agreed to the Hee/Akana/Watson settlement , OHA Trustees would have "horse traded" and agreed up front to: 1) bar all claims for a pro rata share of trust revenues arising on or before July 1, 1999; 2) a partitioning of lands for two years during whieh time OHA would suspend law suits; 3) the repeal of Act 304 and Chapter 10 following the partitioning, exercising a "contingent repeal" of Act 304 and Chapter 10; 4) waive claims to any future Heely payments, and 5) the dismissal of all suits against the state, Although he eame breathtakingly close, the governor, ultimately failed to forever extinguish Hawaiian claims despite the ardent help of "OHA insiders" Akana/Hee/Watson in 1999. Furthermore, despite the best efforts of Hee and ,Akana to create hysteria among OHA beneficiaries and Trustees from the uncertainty over the pending ruling by the Hawai'i Supreme Court on the Heely decision, the Court's September 2001 decision actually vindicated the existence of the OHA claims, The pro rata payments due from the state up to the time of the repeal of Act 304 remain due and payable, and the state still has this pro-rata obligation into the future pursuant to Chapter 10 and the Hawai'i State Constitution, Native Hawaiian claims for the future remain intact because the majority of Trustees prudently rejected the short-sighted settlement proposal of Ak an a/H eefW ats on , Not withstanding Governor Cayetano's mischaracterization of the failed settlement reported in the Star Bulletin article, the majority of Trustees who chose to reject the Akana/Hee/Watson settlement and package upheld what is pono, right and just, Future governors and legislators are urged to do the same, ■

The Star Bulletin Jan. 6 article, "Covernor admits failure over OHA" is fraught with inaccuracies ancJ casts the governor in a far more favorable light than the actua/ record reflects. Indeed, with assistance from "OHA insiders" (Trustees Hee and Akana and former OHA staff Kali Watson) in 1999, Cov. Cayetano desperately tried, unsuccessfully, to "horse trade" away onee and for all, past and future claims of Native Hawaiian beneficiaries protected by the Hawai'i State Constitution.

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Haunani Apoliona, MSW Trusfee,, At-large

Colette Machado Ln^lee, Moloka'i anei Lāna'i