After a year of turmoil, OHA faces more trials
By Yasmin Anwar
Advertiser Staff Writer
No one was rocked more by aftershocks from February’s U.S. Supreme Court ruling in Rice vs. Cayetano than the nine trustees of the Office of Hawaiian Affairs.
Within hours of the high court decision to invalidate OHA’s Hawaiian-only elections, Gov. Ben Cayetano - who had pledged to defend the unique state agency’s voting restriction - threatened to remove "dysfunctional" trustees on grounds that they had been elected in an unconstitutional process.
Six months later the governor moved to make good on that threat. Some trustees held on to their board seats; others lost them amid the turmoil of an ouster petition, resignations, legal challenges, the non-Hawaiian vote and internal board power struggles that made 2000 the stormiest year in OHA’s 22-year history.
"We’ve been swimming upstream all the way, and it’s not over yet," said OHA trustee Haunani Apoliona, who was re-elected Nov. 7 after an intense campaign before being chosen the new board’s chairwoman.
As the new year unfolds, trustees face even more legal challenges and political skirmishes. A key issue on the horizon is the standoff with Cayetano over a debt for hundreds of millions of dollars in unpaid public land trust revenues earmarked for the betterment of Native Hawaiians.
And later this month, hearings are set to begin in a case some lawyers are calling "Rice Part II," in which Honolulu resident Patrick Barrett is challenging Article 12 of the Hawai‘i Constitution as unconstitutional. The section established OHA, adopted the federal Hawaiian Homes Commission Act and laid the foundation for native gathering rights on private property.
"It’s a direct broadside hit on OHA and Hawaiian Homes, and its going to be litigated in the next year and we’re all preparing for it," said Raynard Soon, chairman of the state Department of Hawaiian Home Lands.
One potential shield against pending legal challenges to Hawaiian entitlements is U.S. Sen. Daniel Akaka’s Native Hawaiian recognition bill, created in response to the Rice ruling, which is expected to be resurrected this session in the 107th Congress.
Before it was announced Dec. 13 that the measure had died in the Senate as the 106th Congress drew to a close, many had high hopes the bill was the answer to their prayers.
Engineered to protect federal funding of Hawaiian programs from the legal fallout of the Rice decision, the measure could eventually bring Hawaiians in line with scores of American Indian and Alaska Native tribes. Akaka, D-Hawai‘i, has vowed to continue to fight for the measure in the next session.
Even before hopes were dashed that the Akaka bill would become law in 2000, Frenchy DeSoto, a founding member of OHA, said Hawaiians would be foolhardy to put too much faith in the measure.
"It’ll stop the lawsuits, but it cannot address all the needs of our people," said DeSoto, 73, who lost her bid for re-election in November.
Until Hawaiians establish a governing body, OHA remains the primary state agency administering programs to improve the conditions of Native Hawaiians using revenues from ceded lands - some 1.8 million acres of crown lands seized by the United States after annexation and returned to the state in 1959 for the public benefit, including the betterment of Native Hawaiians.
How well OHA does that job depends on the ability of its trustees to defend the agency from external efforts to undermine it. Already trustees anticipate bills in the state Legislature that will seek to lessen the state’s financial obligation to OHA.
That obligation was first spelled out in the 1959 state Admission Act. But there was no agency to administer ceded land revenues until 1978, when Democratic stalwarts DeSoto, Bill Paty and John Waihe‘e who went on to become governor, led the effort to create OHA.
Turmoil traced to Rice
In 1996, Harold "Freddy" Rice, a Big Island rancher and fifth-generation Hawai‘i resident, sued the state after he was banned from voting in an OHA election. U.S. District Judge David Ezra dismissed the case, and the 9th Circuit Court of Appeals in San Francisco upheld Ezra’s decision.
Early in 1999 the U.S. Supreme Court agreed to accept Rice’s appeal, putting an unofficial freeze on legal issues involving Hawaiian entitlements. Under the leadership of Rowena Akana, OHA trustees began assembling a high-powered legal team to present a friend-of-the-court brief in defense of their Hawaiian-only election structure. But Supreme Court justices in Washington gave indications on Oct. 6, 1999, of grave concerns about the constitutionality of OHA’s voting scheme.
An impending ruling in the Rice vs. Cayetano case loomed over OHA like a black cloud as 2000 began. But first came another OHA leadership change, as Clayton Hee, the longest-standing chairman, unseated Akana to regain leadership of the board.
When the Supreme Court issued its Rice ruling on Feb. 23, Hee speculated that it would not have major repercussions. "We thought we had a tumor, but it’s actually just a cyst," he said at the time.
Honolulu attorney H. William Burgess, an opponent to Hawaiian entitlements, expressed a more apocalyptic interpretation.
"It’s the beginning of the end for OHA and a lot of other things," he said. "In the eyes of the government, we’re all one race here. It’s America."
With counsel from Attorney General Earl Anzai, Cayetano threatened to remove OHA trustees on grounds that they had been elected in an unconstitutional vote.
Meanwhile, on Capitol Hill, Akaka began drafting federal legislation to protect Hawaiian entitlements. The first draft of the bill was introduced in July and went through several changes following input from lawyers, activists, politicians and others.
A month later, retired Boston math teacher Kenneth Conklin and a dozen other non-Hawaiians sued the state, contending that non-Hawaiians should be able to run for the OHA Board of Trustees.
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| Protesters outside Washington Place in September demonstrate against Gov. Ben Cayetano, who appointed replacements for Office of Hawaiian Affairs trustees. The governor said the trustees had been elected unconstitutionally. Cayetano acted after the U.S. Supreme Court ruled that OHA’s Hawaiians-only elections violated the 15th amendment to the U.S. Constitution.
Gregory Yamamoto • The Honolulu Advertiser |
Trustees suffer fallout
In late August and September, all the tentacles that had sprouted from the Rice decision started to tangle.
Congressional hearings on the Akaka bill started in Honolulu, with critics charging that the bill would sell short the Hawaiian struggle for total independence, turning them into "Indians."
Amid the brouhaha, the Hawai‘i Supreme Court issued a ruling agreeing with Cayetano’s contention that trustees had been elected under the unconstitutional Hawaiian-only law, but said the governor would have to petition for their removal in Circuit Court.
As Attorney General Earl Anzai began preparations to file such a petition, OHA trustees debated how to protect themselves from the gubernatorial ouster. As they ran short on ideas, some actually suggested that they resign en masse and then reappoint one another with a majority vote.
Hee, a longtime friend of Cayetano, traveled between the OHA board room and the governor’s office, weighing the options. Anzai’s position was that if trustees with time left in their terms did not resign by the deadline to notify the state Office of Elections of vacant seats, they would be ineligible to run for re-election.
In a gesture of solidarity - and inevitability for some - all nine trustees resigned in September.
In her resignation speech, Mililani Trask, a trustee and strident Hawaiian nationalist, charged that Hee had cut a deal with the governor to be reappointed to the board. Hee dismissed her accusations.
Cayetano appoints board
Three days later Cayetano announced his first five replacements, and Hee was swiftly elected chairman of an interim board made up of Big Island trustee Hannah Springer, former OHA adminstrator Dante Carpenter, former UH Regent Gladys Brandt and Ni‘ihau-born Hawaiian language-immersion advocate Ilei Beniamina.
The governor’s move to control the OHA appointments angered the Hawaiian community, and high-profile activists including Haunani-Kay Trask and Lilikala Kame‘eleihiwa of the University of Hawaii-Manoa demonstrated outside his Washington Place home.
At week’s end, Cayetano announced his final four appointments: Moloka‘i trustee Colette Machado, former Hawaiian Home Lands commissioner Nani Brandt, singer Nalani Olds and non-Hawaiian Maui entrepreneur Charles Ota. The interim board was complete.
Meanwhile, 96 people filed to run for OHA’s nine vacant seats - including more than a dozen non-Hawaiians - bolstered by a preliminary court injunction barring chief election officer Dwayne Yoshina from preventing non-Hawaiians from filing candidacy papers. On Sept. 19, U.S. District Judge Helen Gillmor made the injunction permanent.
On Oct. 2, Republican U.S. Senate candidate John Carroll, an opponent of Akaka and outspoken critic of his bill, filed a federal lawsuit contending that OHA money is used for racially discriminatory purposes.
The next day, Barrett, a disabled Honolulu resident, filed a federal lawsuit challenging the constitutionality of Article 12 of the Hawai‘i Constitution. The section created OHA, adopted the federal Hawaiian Homes Commission Act, and provided the foundation for native gathering rights on private property. His attorney is Goemans, who had represented Rice.
Non-Hawaiian election
Meanwhile, campaigns for the most diverse OHA election in history got under way, with slogans ranging from "Keep OHA Hawaiian" to "Aloha for All." Various organizations called for boycotts or urged people to vote only for Hawaiians.
In the Nov. 7 election, Ota, a decorated veteran of the 442nd Regimental Combat Team, became the only non-Hawaiian elected to the OHA board after spending $50,000 on TV and radio commercials that used the "Go for Broke" slogan.
An eclectic new OHA board emerged after the ballots were tallied, reuniting members of opposing factions and bringing newcomers into the mix. Hee, Machado, Apoliona, Akana and Cataluna were returned to their seats. DeSoto, Trask, Springer and Louis Hao were defeated.
New to the board are Big Island singer Linda Dela Cruz, former Bishop Estate trustee Oswald Stender and John Waihe‘e IV, son of the former Hawai‘i governor.
Even when it seemed the dust had settled, one last glitch emerged.
A half-hour after they were scheduled to be sworn in to office on Nov. 28, trustees got word that Kaui Amsterdam, who finished second to last in the race for the four-year at-large seat, was contesting the OHA election on grounds the non-Hawaiian vote did not reflect the will of the Hawaiian people.
"It’s just another challenge thrown into the battle of OHA in 2000," Apoliona said.
Trustees eventually took their oaths of office three weeks later, on Dec. 20, after the Hawai‘i Supreme Court threw out Amsterdam’s challenge. In his speech at a grand investiture ceremony, Hee warned that OHA would have to change in the face of potentially devastating legal challenges.
"The state of Hawai‘i, the Department of Hawaiian Home Lands and OHA must prepare itself for a long and costly court battle, which to no one’s surprise may well end before the United States Supreme Court some day, just as the Rice case did," he said.
