TWENTY percent is a key number in negotiations between the Office of Hawaiian Affairs and the State of Hawaii to determine OHA's share of revenues from state lands that once belonged to the Hawaiian monarchy. OHA's share of
First of two articles
ceded land revenuesTwenty per cent of what? Why 20 percent? Both answers are controversial and important. The state already is committed to pay significant amounts of money to OHA. Because of legislative slackness it doesn't know how much.
Laws passed in 1980 and 1990 and a circuit judge's decision in 1996 set up the fight. It is so difficult that the state Supreme Court, which in the past has plunged into fights it wasn't even invited into, has shown a desire to duck this one.
It suggested negotiation, but with a Dec. 1 deadline. The OHA and state administrations of "Frenchy" DeSoto and Governor Cayetano have agreed to do just that. But negotiators can delay reporting back until after the Nov. 3 election for governor and five of the nine OHA trustee seats, including DeSoto's.
Here's some background: In setting up OHA in 1980 in accord with state Constitution amendments of 1978, the Legislature decided on 20 percent as OHA's fair share of revenues from the ceded lands of over one million acres. The 1959 Statehood Act lists five uses for such revenues: (1) Public education, (2) betterment of the condition of native Hawaiians (defined as of 50 percent or more blood quantum), (3) development of farms and home ownership, (4) public improvements and (5) public use.
Fifty percent Hawaiians now number less than 50,000 of our 1.2 million people but if people with even small Hawaiian blood quantums are added, part-Hawaiians are about one-fifth of the population. All Hawaiians, of course, share in money spent for the other four purposes.
In floor debate, Sen. Dennis O'Connor said there is nothing in the law to say the percentage can't be changed, even from year to year. Rep. Kinau Kamalii suggested 30 percent but overwhelming majorities approved 20 percent.
The Senate Ways and Means chairman, Ben Cayetano (now governor), and his co-manager of the bill, Neil Abercrombie (now congressman), went along with the 20 percent. Abercrombie warned, however, that the bill had terms in it, demanded by the House, that might make it unconstitutional.
The bill was declared unconstitutionally vague. Legislators went back to the drawing board in 1990. They passed Act 304. It retained the 20 percent figure but was very sloppy on how to figure it. The state proposed a narrow interpretation, OHA a broad one that a 1997 House committee report says went far beyond legislative intent.
Circuit Judge Daniel Heely held for an interpretation so broad he went beyond land rent and awarded OHA 20 percent of all revenues derived from such land, even including 20 percent of revenues from Duty Free Shoppers' Waikiki store, which involves no ceded land but ships through the airport.
THE Heely ruling is budget-busting for the state. Its enormity may already be having a negative effect on the state's credit rating and borrowing costs. The flawed law itself runs up against a federal mandate that all airport revenues be used to support the airport system or federal subsidy will be cancelled.
Can the genie be put back in the bottle? We have to hope so. There already is talk of getting away entirely from the troublesome 20 percent formula. In negotiations OHA has the lower court ruling and the flawed 1990 law on its side. On the state's side is the danger of a public backlash if the Hawaiian demands become too burdensome. "Cool head main thing" seems like a good rule for all concerned.
NEXT: Ways to pay
A.A. Smyser is the contributing editor
and former editor of the the Star-Bulletin
His column runs Tuesday and Thursday.