What is the OHA Settlement All About? (Your Comments Sought)

Update to March 7 announcement: Read Dr. Jonathan Likeke Scheuer’s response (toward the end of this announcement) to the comment made by Anonymous. Dr. Scheuer is Director, Land Management Hale, Office of Hawaiian Affairs (OHA).

Statement by Representative Maile Shimabukuro
Re HB 266 HD1
Relating to Hawaiian Affairs
March 4, 2008

HB 266 has received a lot of publicity and generated considerable controversy throughout Hawaii. It is commonly categorized as a “ceded lands settlement” bill. This is not an accurate description. It is not a settlement and it involves only part of all ceded lands, ie, the “public trust lands,” since a ceded lands inventory has yet to be completed. Therefore, it is worth taking a moment to outline exactly what the bill in fact does. It is simply a bill—a bill which is a policy statement that proposes to resolve thirty years of uncertainty on how the State should meet its constitutional obligation to transmit revenue to the Office of Hawaiian Affairs (OHA).


The bill re-examines the amount of revenues paid to OHA from the public trust lands for the period November 1978-July 2008. Specifically, it conveys land in Kakaako, Kalaeloa, and Hilo and transfers $13 million in cash to OHA. It also sets OHA’s share of revenues from these lands at $15.1 million for FY 2008-’09—with this same annual amount established as the floor baseline for future determinations by the Legislature. [Note: the $15.1m/year would REPLACE the existing 20% share of what is commonly called “ceded lands revenue” that OHA is currently entitled to.]

The “public land trust” was created from the 1.4 million acres of ceded lands that were returned by the federal government in 1959 when Hawaii became a state under the Admissions Act. Under terms of this act, lands were to be held in trust for five purposes—one of which is for the “betterment of the conditions of native Hawaiians.”

Until 1978 all proceeds from the trust were used only for public education, there being no mechanism in place to direct a portion of the revenues to Hawaiians only. With the creation of OHA by constitutional amendment in 1978, a mechanism now existed, but with no specific figure or formula indicated. This task was left to the Legislature to determine, which it did with a 1980 law designating that 20% of public land trust revenue be turned over to OHA. Rather than solving long-standing uncertainty, the law resulted in further obstacles, including lawsuits and Hawaii Supreme Court decisions. A recent agreement between the Governor and OHA (January 17, 2008)—and now the crossover of House Bill 266 to the Senate—are hopeful developments in a situation that has too long cried out for a solution.

Although it appears that the Legislative and Executive branches of our state government are now on the same page in a work still in progress, there is still some way to go before a true settlement is finalized. Not least among the tasks is to bring more stakeholders in the Hawaiian community—especially OHA critics and opponents—into the dialogue.

One important note is that both the House and Senate have drafted bills that do NOT mirror the “global settlement” of this issue reached in Court between OHA and the State. In particular, the House version does not lock annual payments in at $15m/year, and is not intended to be a “global settlement.” Periodic reports of public trust lands revenues will be used to review whether the $15m should be increased. Further, as with all bills, the public and lawmakers may voice their concerns each year to change, replace, or even repeal the bill. Finally, this bill does not preclude sovereignty advocates from lobbying the federal government regarding self-governance, independence, etc. This bill is focused only on fulfilling the state’s constitutional mandate to pay OHA public trust lands revenue.

[Note: Maile is very interested in hearing your thoughts on this subject. Please share them with her via the comments section, email, etc. She’s looking forward to hearing from you and hopes that a dialogue will help everyone better understand the issues.]

[Posted March 9, 2008 10:18 PM]
See the post by Anonymous in the comment section below.

[Posted March 14, 2008, 5:50 PM]
By Jonathan Scheuer

Aloha Representative,

Your request for an OHA response to the comments on your blog was passed on to me. They appear below my signature block. I hope this helps – mahalo!

Jonathan

Jonathan Likeke Scheuer, Ph.D.
Director
Land Management Hale
Office of Hawaiian Affairs (OHA)
711 Kapi’olani Blvd. Suite 500
Honolulu, Hawai’i 96813
Office: (808) 594-1946
Fax: (808) 594-1865
Email: jonathans@oha.org
Main number (808) 594-1835

Aloha Maile,

Mahalo for passing on the anonymous comment from your blog. Here’s our attempt to answer the questions – and if we misunderstood the questions asked, we hope they will post again and seek clarification. Quotes from their post are in black and our answers below to the questions are in blue.

[Anonymous] …As to the 20% issue, I ask 20% of what. we are overdue an inventory of lands that generates revenue which we are entitled too. The baseline for payment is reasonable; however, as the supreme court indicated, there is no real measure in place to assure what the bases are. lets try to work on this…

[Scheuer] This is the exact issue we are trying to address. OHA is by law entitled to 20% of funds from the lands of the Public Land Trust, but the Legislature has not successfully defined what “funds” means. The proposed legislation would remove the 20% of funds provision and instead put in a base amount of $15.1 Million / year.

As to an inventory — the best recent attempt to account for revenue from ceded lands was passed by the Legislature as Act 178 in 2006. The data is good, but not perfect as it includes some revenue associated with ceded lands that is not truly revenue – such as when a boater renting a harbor slip pays for their electricity costs, which the state then pays to the utility. It also includes revenue that the courts have said can not be paid to OHA, such as the airports.

The data from those reports is publicly available at http://hawaii.gov/dlnr/reports/reports%202008. Look under the heading “Administrative Services Office.”

The House Bill would strengthen the reporting requirements of Act 178, which is a good thing.

[Anonymous] more importantly by the admission of Clyde, the negotiations started 4 years ago, why was the community not included and notified at that time? many questions now are lurking in the air and it all boils down to trust and the rights to represent the hawaiian community.

[Scheuer] This is perhaps the most common comment / question we have received at our 50+ meetings. We know that because of this, the trust of some people in OHA has been damaged. While we continue to believe the negotiations themselves needed to be confidential, OHA could have done more beforehand in holding briefings. Because of the comments we have received, OHA is committed to expanding its outreach going forward.

[Anonymous] also in considering how OHA is providing grants, why is it assumed that OHA is giving a gift? the fact is OHA is obligated to provide support to the beneficiaries. this isn’t a gift it should be kuleana.

[Scheuer] You are correct — OHA does not consider its grants to be gifts; it is a means of fulfilling our kuleana.

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One Response

  1. aloha Maile, thank you for the explanation.  I still have concerns, confustion and questions.  I’m under the impress that a settlement is a settlment of any sort.  once an agreement has been reached, how can you possibily repeal it as the law can be changed, amended and repealed.  If a settlement is like a bill I don’t necessarily think people will take settlements serious. but will use it only for the moment in gaining what they want.  As to the 20% issue, I ask 20% of what.  we are overdue an inventory of lands that generates revenue which we are entitled too.  The baseline for payment is reasonable; however, as the supreme court indicated, there is no real measure in place to assure what the bases are.  lets try to work on this.  as to the relationship with OHA and the community.  at this point no matter what the proposal is as long as it is through OHA the community will doubt its merit.  i think we all can say OHA trustees has violated their responsibility and trust to the people, signing a settlement without notifying the beneficiares isn’t serving on the best interest.  more importantly by the admission of Clyde, the negoiations started 4 years ago, why was the community not included and notified at that time?  many questions now are lurking in the air and it all boils down to trust and the rights to represent the hawaiian community.  also in considering how OHA is providing grants, why is it assumed that OHA is giving a gift? the fact is OHA is obligated to provide support to the beneficiaries.  this isn’t a gift it should be kuleana.

    Like

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