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Wednesday, March 29, 2000

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Group challenges
paying ceded-land
funds to OHA

They contend the recent
Rice vs. Cayetano ruling
says OHA is unconstitutional

By Pat Omandam


A group of Hawaii residents says the state should not have to pay the Office of Hawaiian Affairs additional ceded-land revenue because the Rice vs. Cayetano ruling says OHA is unconstitutional.

It is the first time last month's U.S. Supreme Court decision has been used in a court argument against funding for native Hawaiians. Many expect it will not be the last.

The group, led by attorney H. William Burgess, filed a motion in Hawaii Supreme Court yesterday to intervene in the ceded-land dispute that some say could cost the state between $300 million and $1.2 billion.

Burgess said the petitioners want the state high court to overturn a 1996 ruling by former Circuit Court Judge Daniel Heely granting OHA past-due revenue from ceded lands. They say the laws that created OHA were based on racial classifications that are forbidden under the U.S. Constitution.

Ideally, the group wants OHA declared invalid and its $375 million trust used by the Department of Education, where it could benefit all the people of Hawaii.

Burgess' wife, Sandra Puanani Burgess, said granting special entitlements to someone because of their race has never been a good idea. Moreover, she's worried many young Hawaiians today are being taught the world owes them a living because of the plight of Hawaiians. Burgess is one-fourth Hawaiian.

"When you think about it, everybody has a chance to make it here," she said. "You start giving special entitlements, it doesn't do any good."

In 1996, Heely ruled the state owed OHA revenue plus interest from ceded lands under state hospitals, the Honolulu Airport and the Waikiki Duty Free Store. The case ended up before the Hawaii Supreme Court, where the justices ordered both sides to reach a settlement. Those talks, however, broke down last April.

H. William Burgess said the Hawaii justices could issue an opinion any day now and could even deny their motion to intervene. They plan further legal action if that happens, he said.

"If they should affirm Heely's decision or if they should do anything that means OHA should continue to exist, then we would then move for the U.S. Supreme Court ... to review the case just like they did in the Rice case," Burgess said.

The petitioners say they represent the silent majority of Hawaii residents. They also contend their voice is needed because the state attorney general's office has a conflict of interest and can't represent the larger community. While the state opposes OHA in this case, it represented OHA in the Rice case.

Petitioner Isaac "Ed" Fishman, a 22-year downtown resident originally from Brooklyn, N.Y., said as a child of the Great Depression he resents anyone "getting something for nothing," and he doesn't believe OHA should exist at all.

Meanwhile, the House Judiciary and Hawaiian Affairs Committee yesterday approved a Senate bill that clarifies only Hawaiians can be OHA trustees. The measure goes before the House for approval.

Lawmakers, however, decided not to include OHA-proposed language in the bill that lets trustees create a private entity to handle the agency's trust until there is a recognized Hawaiian nation.

OHA Special

Rice vs. Cayetano arguments

Rice vs. Cayetano decision

Holo I Mua: Sovereignty Roundtable

E-mail to City Desk

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