Ceded lands
settlement must not
overlook rest of usTurning over so much traditionally
By H. William Burgess
'public' money to a small group is unfair
and may be unconstitutionalIn the negotiations between government and Hawaiians regarding ceded lands, there's another voice that must be heard: The rest of us who call Hawaii home must demand justice.
In Rowena Akana's Dec. 25 View Point column, "Hawaiians must demand justice," she speaks of achieving "fairness" and says OHA has compromised. "That's why we receive only 20 percent of proprietary revenues instead of 100 percent," she wrote.
First, as to fairness -- is it fair to take money that used to benefit the children of all races who attend Hawaii's public schools and give it to a bureaucracy for the exclusive benefit of a small group of people of one race?
Until 1978, the state's practice was to channel the proceeds and income of the ceded lands by and large to the Department of Education. Now the net income and more from the ceded lands is all going to OHA. None goes to the public schools.
OHA is required to use all money it receives from the ceded lands for the betterment of "native Hawaiians," as defined in the Hawaiian Homes Commission Act (i.e. those of 50 percent or more Hawaiian blood).
Yet there are fewer than 81,000 such persons now living here. Considering the available evidence, the actual number of those of 50 percent or more Hawaiian blood would probably be between 20,000 and 50,000.
Whether the actual number is 20,000 or 81,000 or somewhere in between, should public school children -- including the approximately 20 percent of public school students who are of Hawaiian ancestry -- be deprived of funds to benefit so few?
All children in Hawaii, whatever their ancestry, should be given equal opportunity to the best possible public education. If fairness was the guideline, all the net income from the ceded lands would again go to public education.
No single ethnic group was ever entitled to all or any specific part of the revenues from the ceded lands.
Akana cites the 1898 Joint Resolution of Annexation and the 1900 Organic Act, but neither of these acts set aside exclusively for those of Hawaiian ancestry any of the ceded lands or their revenues.
To the contrary, they required that all revenues from or proceeds of the ceded lands "shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes."
In 1898, about 40 percent of the inhabitants of Hawaii were of Hawaiian ancestry and the remaining 60 percent were of other ancestry.
In 1959, when Hawaii became a state, the ownership of the ceded lands (except for those retained by the United States for military bases, national parks and similar public purposes) was transferred back to Hawaii's government.
None of these lands were "stolen" from or taken without compensation to the Hawaiian people. They were government lands then and they are government lands now.
Neither the Annexation Act nor the Organic Act nor the 1959 Admission Act required that all or any part of the revenues or proceeds of the ceded lands be given to Hawaiians or any other racial or ethnic group.
Even when Hawaii was a kingdom, none of the public lands was ever owned by individual Hawaiians. None of the revenues or proceeds from these public lands was ever earmarked solely for those of Hawaiian or any other ancestry.
Although the form of Hawaii's government changed a number of times since 1865, these public lands remained and still are government lands dedicated to the needs of all the islands' people.
OHA is probably unconstitutional. Although it has not, at least up to now, been directly challenged in court, the Office of Hawaiian Affairs and the legislation implementing it are probably invalid under the U.S. Constitution because they violate the principle that all citizens, regardless of race or ancestry, are entitled to equal protection of the laws.
These programs likewise are in conflict with both the Hawaii Bill of Rights, which provides that no person shall be denied the equal protection of the laws because of race or ancestry, and the aloha spirit.
Thus, OHA's position is not a "compromise." It is a "to the hilt" demand for far more than Hawaiians, as a separate racial group, had historically.
To the extent that the state accedes to its demands, it will be at the expense of all other racial groups in the state and will violate the aloha spirit and the great principle of both American democracy and the Hawaii Bill of Rights -- that no person shall be denied equal protection of the laws because of race or ancestry.
H. William Burgess is an attorney who practiced law
in Hawaii for 35 years before retiring in 1994.
