Hawaii’s World

By A.A. Smyser

Thursday, May 6, 1999

OHA’s claims
for ceded land

IT seemed too good to believe that the state and the Office of Hawaiian Affairs were marching toward an early settlement of OHA's claims for revenues from lands once held by the Hawaiian monarchy. And it was.

OHA's decision to quit negotiating and pick up its pending claim before the state Supreme Court opens a can of worms the court wanted to duck.

It opens up the possibility of a narrow decision based on a sloppy piece of legislation enacted in 1990. A lower court interpreted the law as giving away the store to OHA. The Legislature has tried to repudiate it, but it will be the issue before the court.

An earlier pro-Hawaiian decision by the court, known by the acronym PASH, put anti-development clouds over all undeveloped and underdeveloped lands. The court said Hawaiians have a very broad right to sue for access to them to carry out traditional customs and usage. These rights are undefined, however, as to any particular piece of property. Developers thus spend their millions elsewhere rather than be ensnared in years of litigation in Hawaii.

Governor Cayetano has talked of a "global settlement" with OHA. He means one that will be accepted by all parties as settling the 1893 overthrow claims once and for all.

OHA trustees Rowena Akana (chairwoman), Clayton Hee (former chairman) and Hannah Springer were willing to continue negotiating but five others said no. A sixth wasn't present.

"Close to agreement" is not accurate to define the situation prior to the break-off. But at least the playing field was defined.

The state was offering $251 million cash. OHA was holding out for more than $300 million. Also on the table were possible public land grants to OHA in lieu of cash. The word was they could go as high as 200,000 acres and include some prime properties.

Coupled with more than 200,000 acres under Hawaiian Home Lands Department control, a trust of Kahoolawe Island's nearly 30,000 acres, and added to the Bernice Pauahi Bishop Estate's 450,000 acres, also designated to benefit Hawaiians, more than one-fifth of all the land in the state would then be managed for the benefit of Hawaiians.

They share, too, in all other public land usages.

Both sides had accepted, as with New Zealand's settlements with its Maoris, Polynesian cousins of Hawaiians, that private lands would not be involved. New Zealand aims to settle old grievances without creating new ones. Staying away from private lands is a key element.

By going back to the state Supreme Court with its claim, OHA also moves any settlement closer to a potentially explosive national deadline. The U.S. Supreme Court will rule by June next year whether OHA's voter roll, limited to persons of Hawaiian blood, is permissible under the U.S. Constitution. Two lower federal courts said it is. But the Supreme Court accepts few cases for review. It wouldn't have accepted this one unless several justices had concerns.

Not to be forgotten is that Congress in the 1959 statehood act indicated a share of the ceded land revenues should benefit Hawaiians, still defined as persons with 50 percent Hawaiian blood quantum. This number assuredly is less than half of the estimated 200,000 or so people with the single drop of Hawaiian blood required to register to vote with OHA. Stormy weather ahead.

A.A. Smyser is the contributing editor
and former editor of the the Star-Bulletin
His column runs Tuesday and Thursday.

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