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The Honolulu Advertiser
Posted on: Friday, September 14, 2001

Supreme Court defends timing of OHA ruling

By Yasmin Anwar and Kevin Dayton
Advertiser Staff Writers

In a rare move, Chief Justice Ronald Moon yesterday responded to criticism about the Hawai'i Supreme Court issuing a major decision against the Office of Hawaiian Affairs one day after the worst terrorist attack on American soil.

Moon did not specifically say why the decision was issued Wednesday, but said: "In making the decision to 'hold court' despite the horror and tragedy of the attacks on the World Trade Center and the Pentagon, I was inspired by the resolve of many Americans, as expressed by President Bush, not to be defeated by these acts of terrorism."

Moon issued his statement in the wake of OHA chairwoman Haunani Apoliona's criticism earlier in the day suggesting that the decision could have been delayed for a few days following years of waiting.

The high court on Wednesday dismissed a lawsuit brought by the Office of Hawaiian Affairs in 1994 that sought what it said was ceded land revenues generated from the Waikiki Duty Free Shoppers business and other entities.

OHA had hoped a favorable ruling would pave the way for the state paying the organization hundreds of millions of dollars, but Wednesday's ruling placed a cloud of uncertainty over OHA's longterm financial ability to help Native Hawaiians.

In the unanimous decision written by Moon, the high court dismissed OHA's 1994 lawsuit seeking the revenues. However, the court did affirm the state's constitutional obligation to compensate Native Hawaiians for their historic losses and suggested that the state Legislature find ways to meet that obligation.

Apoliona applauded the portion of the high court's ruling affirming the obligation, but questioned the timing.

"It is upsetting and insensitive that in the wake of a national tragedy like never before that the release of this decision could not have been delayed, for even a short period," Apoliona said. "We have waited years for this decision; another few days or weeks would not have changed matters. Now is the time when we must focus on the lives lost by terrorism.

"There will be time for us to talk with our communities and our Legislature about finding resolution to the unanswered questions raised in the Heely decision. For now, our hearts and minds are focused elsewhere."

In his response, Moon said, "One of America's greatest strengths as a society is our commitment to the rule of law as a way to solve disputes in a peaceful manner and as a way to protect our freedoms. It is important that the courts remain open, hold hearings, issue decisions, and continue its business as a symbol of the American dedication to law and order, especially during times when these important values are under attack."

The high court's decision overturned a 1996 decision by then-Circuit Judge Daniel Heely dealing with ceded lands, which are more than 1.2 million acres that were taken by the United States after annexation and ceded back to Hawai'i during statehood for public benefits, including the betterment of Native Hawaiians.

Heely had ruled that OHA was entitled to revenues from the Duty Free Waikiki store because it was an outlet for the business at the Honolulu International Airport, which partially sits on ceded lands.

Wednesday's ruling placed OHA in a financial limbo and means the Legislature will have to write a new law to determine what the state owes OHA.

The agency has a portfolio that was worth more than $300 million last year, but has suffered losses in the stock market slide.

OHA's big-ticket commitments included a $500,000 low-cost housing venture and a proposal to support the Hawaiian Studies Center at the University of Hawai'i-Manoa for $350,000 annually for five years.

Meanwhile, the ruling came as a relief to Gov. Ben Cayetano, who had predicted Heely's decision — if upheld — would bankrupt the state.

"This ruling offers the state and the Legislature an opportunity to develop a new law that is reasonable and fair to all," Cayetano said.

But Rep. Dennis Arakaki, D-28th (Kalihi Valley, Kam Heights), said he doesn't expect lawmakers to resolve the issue anytime soon. Some will want to wait until the federal government recognizes Native Hawaiians, while others have doubts about what the Hawaiians are actually owed, he said.

Arakaki, who was chairman of the House Hawaiian Affairs Committee from 1994 to 1996, said the sentiment of the House then was the state couldn't possibly afford to pay the kind of money being demanded by OHA. Today, Arakaki said he believes there would be even more resistance to a large new settlement.

"I don't see a willingness to really go forward and provide full compensation for the ceded lands, but I'm hoping that we can get some recognition that there needs to be some compensation," Arakaki said.

House Speaker Calvin Say D-18th (Palolo, St. Louis, Kaimuki) said his general rule is that truly controversial issues take seven to eight years to work their way through the Legislature. He said lawmakers will need time to learn about the OHA and ceded land issue, weigh the trade-offs and rally support for a particular solution.

But Rep. Ed Case D-23rd (Manoa) said lawmakers should move more quickly. "I don't think it should be dragged out, whatever the politics of it might be."

Meanwhile, University of Hawai'i President Evan Dobelle announced yesterday that the UH for the first time could begin across-the-board tuition waivers for Native Hawaiian students and those who fall in the bottom 10-15 percent of the state's economic bracket by 2003.

Following Wednesday's ruling, Dobelle said he wanted to reaffirm the university's commitment to Native Hawaiian students and others least able to afford a college education. His staff has earmarked $1.5 million to immediately fund programs to support access to college and academic excellence for Native Hawaiians.

Advertiser staff writer Jennifer Hiller contributed to this report.