Ka Wai Ola - Office of Hawaiian Affairs, Volume 28, Number 7, 1 July 2010 — OHA urges court to intervene on past-due revenues [ARTICLE]

OHA urges court to intervene on past-due revenues

By Jennifer Armstrong KaWai Ola OHA has asked the Hawai'i Supreme Court to eompel the Legislature to act on the issue of past-due revenue claims, and the court has said it will issue a ruling by July 14. In a petition filed June 2 for a writ of mandamus, OHA requested that the state Supreme Court eall on the Legislature to settle these claims during the 2011 legislative session. The Hawai'i Supreme Court ruled twice before mandating the Legislature to address these claims, but these obligations were not adhered to after proposals submitted by OHA during the last three legislative sessions were rejected. Revenues owed to OHA are for the state's use of ceded lands such as state airports, state hospitals and Hawai'i Housing Authority and Hawai'i Housing Finance and Development Corp. projects. "As a means of last resort,

OHA reluctantly files this petition," said Clyde Nāmu'o, OHA Chief Executive Officer. "OHA has a fiduciary duty to its beneficiaries and must move forward to resolve these past-due claims that are necessary to serving the best interests of Native Hawaiians." These past-due claims were not resolved in a

1993 partial settlement made between OHA and the state after the Legislature approved a $130 million settlement for past-due amounts plus interest. Therefore, in 1994, OHA filed its first lawsuit for those amounts, whieh resulted in two Hawai'i Supreme Court decisions in 2001

and 2006 acknowledging that the state's obligation to OHA was firmly established in the state Constitution and ordering the Legislature to address these claims. In 2008, OHA and the Lingle administration again entered into a settlement agreement that resolved these claims for $200 million payable in land and cash. However, the Legislature has yet to move the agreement through. In the 2010 session, lawmakers again rejected a revised proposal that would have deferred payments until 2015 to give the state time to recover from the hnaneial crisis. "The stalling of this legislation ultimately hurts the beneficiaries that OHA exists to serve," said Nāmu'o. "The Legislature's position to hold off on these claims is contrary to the Hawai'i Constitution, Hawai'i statutes and the state's fiduciary duties owed to Native Hawaiians." The Hawai'i Supreme Court's ruling in both the 2001 and 2006 cases held that "it is incumbent upon the legislature to enact legislation that gives effect to

the right of Native Hawaiians to benefit from the ceded lands trust" and if it does not do so, "the judiciary is vested with the responsibility to ensure that trustees, whether puhlie or private, uphold their fiduciary duties." ■