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Friday, March 17, 2000

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OHA board
abandons proposal
to fund its own
separate elections

OHA is told that as long as
it is a state agency, funding
won't matter

Cayetano says he sought to protect
OHA from the trustees

By Pat Omandam


The Office of Hawaiian Affairs has ruled out paying for its own board elections, as some have suggested, as a way to get around the U.S. Supreme Court opinion that the state-sponsored elections were unconstitutional.

Retired Hawaii Supreme Court Justice Robert Klein, who is providing legal counsel for OHA on this case, told trustees funding is not the reason the court overturned the Hawaiians-only voting restriction.

"As long as OHA is considered a state agency, whose elected officials are state officials, then it doesn't matter if OHA pays for those elections," Klein said. "Nonetheless, OHA will still be considered under the umbrella of the state."

Instead of funding its own elections, the OHA board approved two draft bills yesterday to create a private entity to which they can transfer their trust assets until a sovereign Hawaiian nation is recognized by the federal government.

OHA Chairman Clayton Hee said after the Rice decision, members of the state House and Senate asked OHA how they should respond to the ruling. Hee said the proposed legislation approved by the board is a reasonable approach to keeping the spirit and intent of the delegates to the 1978 state Constitutional Convention, which created OHA.

"Let me just also add that these proposals are not intended to even suggest that the Office of Hawaiian Affairs should be the sovereign government of the Nation of Hawaii," Hee said. "That is not the intent of these proposals."

Trustee A. Frenchy DeSoto said that if OHA evolves into a private entity, the beneficiaries will have an even more direct voice into how the trust assets are governed. Desoto, who headed the Constitutional Convention Committee on Hawaiian Affairs 22 years ago, said delegates then agreed Hawaiians should be the "steersmen and paddlers of their own canoe."

"This evolution is where we're at at this point in time," DeSoto said.

Trustee Colette Machado said the legitimacy of OHA is a serious consideration. Even if Hawaiian candidates continue to be elected in open OHA elections, they would have a different constituency than those of present trustees because voters will be Hawaiian and non-Hawaiian.

"One can easily envision a gradual but radical change in the direction OHA might take," Machado said. "In addition, OHA would be undermined as the point organization for Hawaiian affairs in the state."

But it's not clear if Gov. Ben Cayetano would sign a bill to turn OHA into a private entity. Cayetano said on Wednesday he doubts the effectiveness of changing OHA to a private organization. And he doesn't know if OHA can be protected by the legislature passing a law.

"For OHA's status to be protected, it has to be done through the federal, not state government," Cayetano said.

"This is all a complicated legal question that hasn't been answered yet. I am not sure if the Legislature is driven by the emotional tenor of the times or by hard study of the issues," he said.

Both draft bills were approved by OHA's legislative committee last week. Due to the urgency, OHA distributed copies of the proposal to lawmakers before the full board was able to vote on it.

Trustees, however, first decided to field questions on the measures in a 45-minute closed session yesterday, raising objections from the media and the audience about whether the move was legal since it did not involve litigation or personnel matters.

Klein responded the answers he provided to the board on the draft bills were subject to attorney-client privilege, but he was willing to discuss them in open session if the board waived that right. It did not.

One of the two proposals would allow trustees to create a transition plan for OHA that would be considered before a special joint legislative committee.

The other would give OHA the authority to create a private entity if it is needed to carry on its trust obligations for Hawaiians.

Gov. Ben Cayetano Says change in his OHA
stance stems from friendship with Hee

Cayetano says he
sought to protect OHA
from the trustees

By Rosemarie Bernardo


Gov. Ben Cayetano said he is not anti-Hawaiian as some Hawaiian leaders have called him.

And he said his initial thought after the Rice v. Cayetano court ruling was to protect the Office of Hawaiian Affairs trust "from the trustees."

Speaking to journalism students from the University of Hawaii at Manoa yesterday, Cayetano said his change of position in seeking the removal of all but one OHA trustee is the result of his longtime friendship with OHA Chairman Clayton Hee.

"I know that if he said something, I could rely on his word," said Cayetano. "I don't have that assurance with others."

"My friendship with Clayton goes a long way back."

"It would've been difficult for me to discuss these things with Rowena Akana or Frenchy DeSoto, both who have accused me of being anti-Hawaiian." The governor said he disagrees with their accusation. Akana and DeSoto could not be reached for comment last night.

On Feb. 23, the U.S. Supreme Court voted against allowing only people with Native Hawaiian blood to vote in the OHA elections.

Legal advisers who argued the case told him the court ruling invalidated the OHA trustees' positions, Cayetano said. "The positions were vacant."

He and Hee talked, then agreed to ask the Hawaii Supreme Court for an opinion on the trustees and whether the governor has the authority to fill any vacancies.

Bullet U.S. Public Law 103-150
Bullet OHA Ceded Lands Ruling
Bullet Rice vs. Cayetano
Bullet U.S. Supreme Court strikes down OHA elections
Bullet Office of Hawaiian Affairs

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