Sunday, November 18, 2001

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OHA seeks moratorium
on sale or transfer
of state ceded lands

It wants to use the time to work
with the state to resolve
claims and payments

By Pat Omandam

Two months ago the Hawaii Supreme Court invalidated a state law that gave the Office of Hawaiian Affairs a specific share of revenue from state public trust lands, also known as ceded lands.

Undaunted by that setback, OHA returns to the courtroom Tuesday for another landmark ceded land case, this time, in part, to seek a "time-out" or moratorium on the transfer or sale of any of the state's 1.4 million acres of public trust lands.

The moratorium would give OHA and native Hawaiians time to work with the state to resolve claims over the former kingdom lands and the payments to OHA which are mandated by the state Constitution. OHA also plans to show the court how and why it has claims to these lands, said OHA attorney Sherry Broder.

The Leialii housing project on Maui remains on standby pending
the case between the state and OHA regarding ceded lands.

"OHA seeks to establish that the claims of the native Hawaiian people create a cloud on title and that the state, as a public trustee, cannot convey lands from the ceded land trust to private parties while the claims of the native Hawaiians are unresolved," Broder said.

The 7-year-old case, OHA vs. Housing and Community Development Corp. of Hawaii, will finally get underway Tuesday before state Circuit Judge Sabrina S. McKenna. The lawsuit was triggered by the state's proposed development of two affordable housing projects in the early 1990s -- Leialii in Wahikuli, Lahaina and Laiopua in North Kona, Hawaii.

Both properties sit on ceded lands.

Leialii is a planned 4,813-home project built over a 20-year period on 1,120 acres of land. Laiopua is a master planned community with 4,263 housing units, along with a high school and support infrastructure.

State housing officials say the projects remain on standby pending the case. Infrastructure is in at both sites, and at Laiopua, a few phases of housing as well as the school have been built.

The state, based on a 1995 opinion by former Attorney General Margery Bronster, is expected to argue it has been and remains empowered to sell public trust land. Also, the development of affordable housing, as authorized by the state Legislature, is a public purpose under state law.

"Whether native Hawaiians are entitled to any ceded lands, and if so, whether the state should not sell some or all ceded lands for an indefinite period of time on the possibility that Congress or the Legislature will grant native Hawaiians some ceded lands, are non-justiciable political questions," said attorney John T. Komeiji in court documents.

"Accordingly, all plaintiffs arguments and evidence bearing on these questions -- the alleged wrongs committed by the U.S., native Hawaiian history and the connection between native Hawaiian well-being and land -- are irrelevant and inadmissible in this case," he said.

Komeiji, attorney Patsy H. Kirio and a squad of deputy attorneys general will defend the state's position. Joining Broder are four native Hawaiian plaintiffs represented by attorneys William K. Meheula and Hayden Aluli.

OHA Vice Chairwoman Rowena Akana said the importance of this case is that ceded land revenues, along with OHA's $300 million investment portfolio, make up the agency's revenues. Over the past decade, payments have ranged from $15.7 million in 1995 to $8.2 million last year.

Akana said considerable money for native Hawaiians will be lost if the state is allowed to sell ceded lands to private parties while these claims remain unsettled.

On the other hand, the moratorium could eventually lead to much more revenue for OHA. The lawsuit is similar to one filed by native Alaskans in the late 1960s that led to the 1971 Alaska Native Claims Settlement Act, Broder said.

Shortly after Alaska's statehood in 1959, a dispute arose between native Alaskans and the state government over the issue of aboriginal lands.

A settlement was reached in December 1971. For giving up their aboriginal land claims, native Alaskans received 44 million acres of land and $962.5 million from Congress.

Robin Danner, a Kauai homesteader and longtime Alaska resident, said that settlement was successful, but not perfect. She said it has been studied by other native peoples and is a good model for Hawaiians to study.

"ANCSA was really a social experiment in dealing with aboriginal land titles," said Danner, organizer of the Council on Native Hawaiian Advancement, a native support group.

"There's never been anything really like it prior to that with all of the other 560 tribal governments."

Danner added that any moratorium on ceded lands is a step forward because it raises the awareness and priority of everyone to deal with this land issue. Equally important, she said, is the "human issue" of native Hawaiians as a people and a culture that originates from these islands.

"The history of Alaska will show that what has been good for its native people has been good for all of Alaska. And the same will prove out here in Hawaii," Danner said.

The trial is expected to last three weeks.

Ceded lands dispute history

Here's a chronological look at the dispute between the Office of Hawaiian Affairs and native Hawaiians against the state Housing and Community Development Corp., based on court papers:

>> Feb. 5, 1990: HCDC holds an organizational meeting for Leialii and Laiopua projects.

>> July 1991: OHA seeks 20 percent of the proceeds from the sale of Leialii land from state.

>> May 1992: State Legislature passes Act 318, which creates process for the sale of the Leialii and Laiopua parcels to HCDC from the state Department of Land and Natural Resources. It also determines how much OHA and the state Department of Hawaiian Home Lands should be compensated from the sale.

>> 1993-1994: OHA and DHHL begin talks with state regarding fair market value of Leialii land.

>> February 1994: State decides to transfer Leialii property to HCDC from DLNR before reaching an agreement with OHA on its value. Negotiations continue.

>> July 11, 1994: All sides agree the value of Leialii was $27.8 million.

>> Nov. 4, 1994: OHA refuses payment of $5.5 million for 20 percent of Leialii land because of how payment was calculated. It sues the state, saying the claims on the land by native Hawaiians defeats the public purpose use of the land for affordable housing.

>> Nov. 30, 1994: Title Guaranty of Hawaii refuses to provide title insurance based on the allegations in the complaint.

>> July 17, 1995: Attorney General Margery Bronster issues an opinion saying the state has been and remains empowered to sell public trust lands.

>> Aug. 10, 1995: Gov. Cayetano informs HCDC to proceed with project and tells the attorney general to litigate the case, based on Bronster's opinion.

>> Dec. 15, 1995: State files motion for summary judgment.

>> July 23, 1996: Circuit Court Judge Heely denies state motion for summary judgment.

>> May 1997: Laiopua property transferred to state DHHL to partially satisfy the state's obligation to pay the $600 million settlement with the homelands agency.

>> March 12, 1998: State files second motion for summary judgment in Leialii case.

>> Aug. 27, 1998: Judge Kevin Chang denies state motion.

>> March 16, 1999: Title Guaranty again refuses to issue title insurance based on the allegations in this case.

>> Nov. 20, 2001: Trial to begin before Judge Sabrina S. McKenna.

Office of Hawaiian Affairs

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

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