I am referring to Public Access Shoreline Hawaii v. County of Hawaii Planning Commission, or the PASH decision, in which Judge Robert Klein held that our "legitimate traditional and customary practices must be protected," and to OHA v. State of Hawaii in which Judge Dan Heely defined an augmented basis for OHA's ceded lands revenues. And I say almost convinced us because of two bills recently referred out of committee this legislative session.
The provisions of Senate Bill 8, which would have gutted PASH, are, for this session, history thanks to a massive show of force by the very people the bill's authors were claiming to benefit. The companion bill in the House had already died in its sleep, Rep. Ed Case, chairman of the Hawaiian Affairs Committee, having decided the better part of valor would be to defer it indefinitely. Then Case, a descendant of missionaries, determined to live up to the injustices perpetrated by his ancestors, got down to the serious business of voiding the Circuit Court decision in OHA v. State of Hawaii House Bill 2207.
This monstrous piece of legislation, which revokes language in the Constitution, the Admissions Act, and Act 304, begins with a discussion of how wrongheaded Judge Heely was in misreading the Legislature's intent when he ruled in OHA's favor. Unlike the bill that would have nullified PASH, this one got no public hearing at all.
Like PASH, however, it is couched in terms of doing a big favor for everyone, especially OHA.
"It is in the public interest," the measure reads (not to mention Case's interest given the clientele his law firm represents), "that existing ambiguities be clarified, judicial misinterpretations of legislative intent be corrected, immediate threats to the state's overall financial condition be mitigated, the ability of the state to carry out its sovereign functions be preserved, and a mechanism for the resolution of all outstanding issues between the state and the Office of Hawaiian Affairs outside of the litigation process and which involves representatives of both be provided."
Case would pull all that off through a ceded lands inventory compiled in the state's favor by the Department of Land and Natural Resources, a basis that excludes many lucrative sources of income, fixed income to OHA far below the currently mandated 20 percent of ceded land revenues, among other mechanisms designed ultimately to reduce Hawaiian entitlements.
Case seriously needs a lesson in contemporary U.S. history. As a feature of statehood, the lands currently referred to as ceded were conveyed back to the state by the federal government in trust for the Hawaiian people. For some 20 years, the state barely acknowledged its fiduciary duty to us. This pattern of dereliction continued even when the state Constitution was redrafted and state statutes were enacted to provide for partial compliance with this duty.
I emphasize the word partial because the current system provides for the Hawaiian people to receive only a 20 percent share of one type of revenue these lands yields. OHA had to take the state to court to obtain a modicum of compliance with a duty ignored since 1959. Now it not only balks at obeying a subsequent court order, but wants to overturn it after the fact -- not through any process of appeals but by providing that House Bill 2207 be applied to the judge's decision retroactively.
The law does not look favorably on retroactivity and Case, in spite of his concern that future meetings between the state and OHA take place somewhere other than in court, fully expects OHA to challenge this bill. The bill's unbelievably amateurish Section 10 seems to presume we will be successful in our attack since it starts off with the clause, "Even if the retroactive effect is held invalid..." The bill then goes on to provide that its statement of the intent of Act 304 is correct no matter what.
In other words, it remains retroactive, even if a court says it's not. While I happen to agree with Case that OHA will prevail in any challenge (including to Section 10), I believe that its most vulnerable feature is not its retroactivity but its fundamental injustice.
But don't expect House Bill 2207 to die quietly. House Speaker Joe Souki is behind it and so is Calvin Say, chairman of the House Finance Committee, whose committee members, for the most part, couldn't be bothered with the hearing on this bill. This is a bill that saw the light of day for one reason: The state cannot pay OHA because it has been squandering the money meant for the Hawaiian people.
If ours were a private trust, instead of a public one, such irresponsibility would not be tolerated. Imagine a well-intentioned uncle setting up a trust for his nieces and nephews with their stepfather authorized to administer it. Not a court in the country would allow the stepfather to reduce payments to his beneficiaries while he used their trust income to pay his own expenses as well as the debts he ran up living beyond his means.
Our stepfather/state is just as outrageous, if not worse. "I can't pay you," the state is trying to