Ka Wai Ola - Office of Hawaiian Affairs, Volume 19, Number 10, 1 October 2002 — Governor admits failure over OHA [ARTICLE+ILLUSTRATION]

Governor admits failure over OHA

Editor's note: This month, Chairperson Haunani Apoliona and Trustee Colette Machado have combined their eolumn space. Aloha mai kakou e nā 'ōiwi o Hawai'i. This 22nd article in a series of 48 revisits Governor Cayetano's Jan. 6, 2002 Honolulu Star-Bulletin interview covered in KWO February 2002, regarding his promise to settle the dispute over ceded lands with the Office of Hawaiian Affairs. Oayetano said, "this is one of my failures. In one of my state of the state addresses, I pledged to try and resolve it before I left. So, I admit failure. I'm not able to do it." The article cited the 1996 decision by Judge Heely that the State owed 20 percent of certain revenues that OHA had sued for in 1 994. The state appealed the Heely decision to the Hawaici Supreme Court whieh heard oral arguments in 1998. The Supreme Courtrecommended negotiations occur between the state and OHA on the Heely matters. The Bulletin article noted that the talks "faltered" in 1999. The Governor called some trustees "greedy." The article reports that Trustees Akana and Clayton Hee elaim that their proposal could ha\fe 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 andcircumstances surrounding the decision of the OHA Board in April 1999. The Star Bulletin Jan. 6, 2002 article " Governor admits failure over OHA " is fraught with inaeeuracies and casts the Governor in a far more favorable light than the facts reflect. Indeed, with assistance from "OHA insiders" (Trustees Hee and Akana and OHA staff Kali Watson) in 1 999, Governor Cayetano desperately tried, unsuccessfully, to "home trade" away onee and for all, past and future claims of Native Hawaiian beneficiaries protected by the Hawaii State Constitution. The Governor characterizes the April 1999 decision by the OHA board as, "some trustees gotgreedy 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, 1 999 minutes of the OH A Board meeting probably relying on the story about the OHA debate from other sources, getting only half the story. The April 27 minutes and OHA Chair Akana's April 1 6 letter presented to the OHA board reveal the "deal" to whieh the majority of Trustees balked — not due to greed — but based on a fiduciaiy duty to OHA beneficiaries. The Governor's comments and those of Hee and Akana, reported in the Star Bulletin article, leave out the following facts abouttheir 1999 negotiations: 1 ) Akana's "one fmal 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 11 calendar days before that fateful OHA board meeting of April 27; 2) One member of the Akana/HeeAVatson negotiating team, Trustee Trask, informed all Trustees by memo April 20 that she opposed the proposed Akana/Hee/ Watson settlement offar with the state. The Trask "objection" is clearly documented; 3) at the April 27 meeting, with 48 hours to go before the Legislature's ad.journment, Akana and Hee pressed Trustees for an agreement to conditions in the Akana lettar even with the absence of the state's response and under the 48 hours time crunch 1999 Legislature sine die. Such a hasty and ill-conceived process for rendering an important decision is incompatible with Trustee obligations of careful and prudent decision making. The 90s OHA-state negotiations for pastdue revenues (for 1980-1990) took approximately 30 months, not 100 days. Trustees Hee andAkana are cited as saying "if OHA accepted the offer" OHA could have brought the native trustto $1 billiontoday. The record is clear however, that the Board of Trustees saw no written offer, counter offer, or concurrence from the State following the April 16, 1999 date ofAkana's letter. The state didnoteveu reply to Akana's April 16 "one fmal effort to settle this case" letter. As far as the $1 billion, this number is pure speculation and sensationalism with no basis in fact and indeed would prove to be "pure fantasy" in view of the markets' recent tanking. There is serious doubt in the

minds of several Trustees that the state would have even delivered paymeut 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 respondedto the

Akana/HeeAVatson 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 "home 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 breathtaking ly close, the Governor, ultimately, failed to forever extinguish Hawaiian claims despite the ardent help of Hee, Akana and Watson. Furthermore, despite the best efforts of Hee and Akana to create hysteria among OHA beneficiaries and Trustees from the uncertainty over the pending mling by the Hawai'i Supreme Court on the Heely decision, the Court's Sept.

12, 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 Court reaffirms that the State still has this pro-rata obligation into the future pumuant to Chapter 10 and the Hawai'i State Constitution. The OHA insiders, Akana, Hee and Watson charged with negotiating with the state on four "unresolved matters" only (from the Heely decision): 1) Waikiki Duty Free receipts, 2) Hilo Hospital patieut receipts, 3) receipts from Hawaih Housing Authority and the Housing Finance and Development Corporation for projects situated on ceded lands, and 4) interest eamed on withheld revenues; mutated and ballooned the package into an alarming "global settlement" deal that if consummated would have gone beyond the parametem of the four items and extinguished the greater past and future claims of Hawaiians to the pro rata share of ceded land revenues. By rejecting the short-sighted settlement proposal by the Akana/HeeAVatson team remaining Trustees prudently preserved Natfre Hawaiian claims for the future. A future that bodes greater promise in this year of 2002 Elections for the Legislature, the Governor and Lieutenant Governor in the rising tide of political activism by Hawaiians. Not withstanding Governor Cayetano's mischaracterization of the failed 1999 settlement reported in the Star Bulletin article, the majority of Trustees who chose to reject the Akana/HeeAVatson settlement and package upheld what is pono, right and just. In the November 2002 elections, Hawaiians and non-Hawaiians must take special care to elect or re-elect those to State office who will uphold the constitutional rights and entitlements to Hawaiians and fulfi.ll the obligations due Hawaiians. In the November 2002 OHA eleetions Hawaiians and non-Hawaiians must take special care in their choices for Trustees, choosing leaders who will not extinguish Hawaiian rights and entitlements in a frantic rush for a few silver dollars. ■

Not withstanding Governor Cayetano 's mischaracterization of the failed 1999 settle - ment reported in the Star Bulletin article, the majority of Trustees who chose to reject the Akana/Hee/Watson set - tlement and package upheld what is pono, right and just.

flS9ISB

Haunani Apoliona, MSW Trustee, At-large

Colette Machado Trustee, Moloka 'i and Lāna 'i