Comment: OHA needs to hear its beneficiaries before making deals with the State

Jon Osorio

The State of Hawaiʻi is proposing to settle a past-due payment of $200 million owed to the Office of Hawaiian Affairs (OHA) with the transfer of about 25 acres of commercial real estate in Kakaʻako. There are a number of difficult issues involved with this transaction that really demand our attention. To begin with, all transactions involving so-called public lands by the State and any State agencies are violations of Hawaiian Kingdom law. The crown and government lands of the Hawaiian Kingdom are the property of Hawaiian nationals and the heirs to the Crown. Possession of these lands by the United States is a theft and nothing more. 

However, since I do not see the United States immediately relinquishing its illegal hold on our lāhui and our ʻāina, I believe we need to look for ways to protect the lands from alienation. One approach is to place the lands under the protection of a Hawaiian agency, which hopefully would hold on to these lands for the future. The question is: Should OHA be that agency?

First, OHA has been duly constituted for this purpose by the 1978 Hawaiʻi Constitution. I doubt that the State of Hawaiʻi is willing, at this point, to turn lands over to any other agency than those recognized by State and/or federal laws. I also believe that OHA is bound by its obligations to its beneficiaries (which include those who, like me, are beneficiaries because of the absence of our legitimate government) to be sure that it gets all of the resources to which it is entitled. The State owes back revenues to OHA and it should pay, so long as OHA exists. Since those revenues are supposed to accrue to the Hawaiian beneficiaries, it makes no sense to deny this settlement simply on the grounds that OHA is not the Hawaiian Kingdom. But that leads to the second question: Is OHA capable of managing these resources?

Three years ago, when a similar proposal was made to OHA, I opposed the plan because of the specific properties that were considered for the transfer, namely some hotel properties in Hilo and Puna. Many observers including my father, a developer and realtor in Hilo, expressed concern about the financial state of those properties and that acquisition by OHA would be a disaster for the agency. I was also irritated by the public “consultation” that OHA employed—inviting a few hundred of us to the Japanese Cultural Center for a lunch and some well prepared PowerPoints on what a great deal we were getting.

This time, it would be a good idea for OHA to actually consult its constituents, and as broadly as possible.

Although the properties under consideration may be much more lucrative, it is time for OHA’s beneficiaries to weigh in about whether we think that our trustees should be getting deeper into the property management business. Hopefully our trustees will take the time to listen. One question that we should ask is whether we would prefer good agricultural lands and a program that will put some of our people back to work in cultivation and other culturally desirable ways.

Let us be clear that the State is seeking ways to capitalize on Hawaiian lands.

But I have a deeper concern about this proposal than whether it will be remunerative. I am also worried that this is the opening the Governor is seeking to a “final settlement” of land and perhaps cash with a Hawaiian agency that will allow the State to consider a portion—perhaps a large portion—of the “ceded lands” its own property. Let us be clear that the State is seeking ways to capitalize on Hawaiian lands. Whether through outright sale, exchange, or by utilizing the Public Land Development Corporation set up last year through Legislative Act 55, the Legislature, like the Governor, is anxious to remove as many legal restraints from its use of “ceded lands” as it can. 

Given that two years ago, the Legislature actually considered a bill to sell off the top of Mauna Kea for . 7 billion dollars (the approximate amount of the State budget deficit) rather than do the hard work of managing the multi-billion dollar telescope site, the public should be wary of government plans for the “ceded lands,” especially when those plans do not appear to include broad public consultation nor any kind of plan for the future of the State’s economy.

Prior experience tells us that the State will enter into partnerships with developers and will trample on environmental requirements (Superferry); labor laws (Aloun Farms); and good business sense (Act 221). I think that until the Legislature and the Governor can actually produce a sound plan for Hawaii’s economic future, it is a good idea to tie their hands as much as possible when it comes to our Kingdomʻs Crown and Government lands. 

And without being over-critical of OHA, they need to be very careful about being willing to take on these assets, unless they possess the resources to manage them properly. I hope the agency understands that the best possible scenario for the Governor and the State Legislature is to configure a final settlement with a “Hawaiian governing entity” (HGE) that turns over part of the lands (20 percent?) to the HGE in return for ownership of the rest. What really frightens me is that the negotiated “settlement” with the Native Hawaiians will leave us with a fraction of the “ceded lands” and total responsibility for administering the Hawaiian Homestead Lands as well as the rehabilitation of Kahoʻolawe. 

I have much less of a problem with a land settlement for the back revenues that are due to the Office of Hawaiian Affairs than I do with our leaders supporting federal recognition. But OHA must not head into these arrangements with the State without the free, prior, and informed consent of its constituents. In other words, I want to know what the agency’s plans are and I would like to see a competent, independent evaluator assess those plans.

We need to be very deliberate about what we do as a people and, like it or not, OHA has to be a part of our plans, at least for the present. How the agency deals with the proposal to settle the back payment claims will tell us beneficiaries everything we need to know about whether they can be relied upon to really manage our assets as we rebuild our nation.