Tuesday, April 20, 1999

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OHA right to sue
hampers talks

Cayetano says a settlement
over ceded land revenues
looks doubtful

Protests held at island airports

By Pat Omandam


To sue or not to sue.

That is the major hang-up between the state and the Office of Hawaiian Affairs in their talks to settle past due revenues from certain areas of ceded lands, says state chief negotiator Sam Callejo.

With two weeks to go before the end of the 1999 legislative session, Gov. Ben Cayetano yesterday said he doesn't believe the state and OHA can reach an agreement in time for lawmakers to debate it during conference committee meetings in the next two weeks.

Cayetano said an impasse is OHA's refusal to agree not to file future lawsuits against the state. The state in 1988 waived its sovereign immunity against lawsuits that deal with the Hawaiian Home Lands trust or the public land trust, allowing Hawaiians and Hawaiian agencies the right to sue the state over claims of breach of trust.

But Cayetano yesterday said OHA must agree to settle all claims once and for all - what he calls a global settlement - as well as refrain from filing further lawsuits against the state. He warned if OHA continues to litigate, then the state should revoke its permission to be sued, something that would require legislative approval.

"We are trying to get OHA to understand the need for us to do this," Cayetano said.

"And we're trying to get OHA to understand one reason it is being able to sue the state is because the state gave its permission. I think we need to work together and reach some kind of a common ground so we can settle this matter," he said.

Callejo yesterday confirmed the sovereignty immunity issue is on the bargaining table and remains the major sticking point in the negotiations. Still, the state is working hard to meet next Friday's legislative deadline, said Callejo, Cayetano's chief of staff.

"There's always hope," he said. "You know how things go to the 11th hour and everybody scrambles around."

OHA may consider an agreement not to sue for certain past claims reached in a settlement, but it won't agree never again to sue the state, says Kali Watson, OHA legal counsel.

Watson, familiar with the sovereign immunity laws as former head of the Department of Hawaiian Home Lands, says the right to sue allows Hawaiian beneficiaries an opportunity to seek recourse in the judicial system.

While litigation is not always in the best interest, sometimes it is necessary, especially given the historic perspective of native Hawaiians, he said.

"I think it would be unfair to tie the hands of our future beneficiaries to the future by eliminating this safety mechanism," Watson said.

"Hopefully, the governor can appreciate that. That has been the only way both DHHL and OHA have been able to get redress to some of the wrongs that have been committed, not only by the state but by the federal government," he said.

Jon M. Van Dyke, a University of Hawaii law professor and an OHA legal consultant, said it would be hard for the agency to accept the proposal because it has a fiduciary duty to represent Hawaiians vigorously.

The ability to go to court is an important one, especially if there is a situation where the state is reneging on its duties, he said.

"If you don't have the right to sue, well, what does that mean?" Van Dyke said.

"Problems fester. Issues remain unresolved. Ambiguities remain. Courts are there to serve that purpose," he said.

Watson said OHA has put another settlement offer on the table and hopes the state will respond this week. He said the offer is fair and addresses all the issues put before the state.

OHA Chairwoman Rowena Akana is in Washington, D.C., to meet with prospective attorneys to prepare for the Rice vs. Cayetano appeal. The U.S. Supreme Court will hear that appeal of a lower court decision upholding Hawaiians-only election of OHA candidates. She returns Saturday.

OHA vs. state

Here are the lawsuits against the state filed by the Office of Hawaiian Affairs since 1988, the year the state waived its immunity against litigation for public land trust issues and allowed native Hawaiians the right to sue the state:

Bullet Hawaii Finance Development Corp.: In 1993, OHA filed a lawsuit for a moratorium on any sale of ceded lands by the state until the issue of Hawaiian claims is resolved. Awaiting trial.

Bullet State of Hawaii: In 1994, OHA filed a lawsuit over revenues from four areas of ceded lands when it was unable to settle with the state.

Bullet July 1996: Judge ruled OHA can sue the state for ceded land revenues from housing sales and rentals, Hilo Hospital patient services, off-site Duty Free Shoppers and interest income.

Bullet April 1998: Hawaii Supreme Court heard the state's appeal of that judge's decision and urged both sides to settle out of court. Last December, the justices warned OHA and the state to expedite talks or the court will issue an opinion. Negotiations have been ongoing since.

Source: Office of Hawaiian Affairs

Protests held at island airports

By Gary T. Kubota
Maui correspondent


WAILUKU -- Holding protest signs with statements such as "Stop Ripoffs," native Hawaiians gathered at airports on neighbor islands to demand payment of their share of state ceded land revenues.

"Pay us back so we can take care of ourselves," said Patty Nishiyama, a native Hawaiian and retired Maui teacher. "Here we are Hawaiians begging to have Hawaiian programs and education."

Protest sites included Hilo and Keahole airports on the Big Island and the Kahului Airport on Maui.

Native Hawaiians, including about a dozen at Kahului, said the state has not paid them 20 percent of all revenues derived from activities on ceded lands, as agreed by the state Legislature in 1990.

The Office of Hawaiian Affairs estimates the payment for ceded land revenues total about $30 million annually, said OHA information officer Ryan Mielke.

Under an agreement with the state and OHA, the payments have been reduced to $15.1 million for the past two years, Mielke said.

Protesters say it's depriving native Hawaiians of educational and economic opportunities. "It's economic genocide," said Edwin Lindsey, a retired schoolteacher and leader of Na Kupuna O Maui.

Lindsey said revenues could be applied toward giving scholarships to native Hawaiians and supporting native Hawaiian language immersion programs.

Lindsey wants the state to account for the revenues from ceded lands.

He also criticized the state with moving forward with Kahului Airport expansion into more ceded lands, without resolving the debt owed native Hawaiians.

Na Kupuna member James Tanaka, 83, said all the people in Hawaii should be supporting the Hawaiians and giving them the "aloha" they have given others.

January '97
OHA Ceded Lands Ruling

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