SETTLEMENT DETAILS

The settlement called for OHA to receive from the state three parcels of land in Hilo, Kaka'ako and Kalaeloa, with a collective assessed value of $187 million, and $13 million cash. With a trust fund valued at about $400 million, the deal would in essence increase OHA's holdings by 50 percent.

The money is used for a host of programs and services designed to benefit Hawaiians, including funding for Hawaiian immersion charter schools, business and education loans, landbanking culturally rich properties, and its controversial lobbying for a federal recognition act in Congress.

In exchange, OHA would have signed away any rights by Hawaiians to past or future claims to ceded land revenues.

Many who testified at legislative hearings and community meetings regarding the settlement proposal argued that what would be given up was too much, particularly the provision that any right to make future claims be relinquished. Some suggested that it would be unreasonable to bargain away rights and revenues that could not yet even be imagined.

That argument made an impression on Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha).

OHA officials "need to discuss this with their beneficiaries because it is their rights being affected," Hanabusa said. "In essence, it's cutting their future benefits."

OHA officials privately acknowledged that giving up future claims was something the state pushed in the settlement. In OHA's early April proposal to begin talks again in the interim, there was no mention of future claims.

Key senators who put down the original settlement bill all pointed to the lack of consultation with native Hawaiians as a reason for their decision.

A slew of Hawaiian homesteaders and their supporters who testified in mid-March reminded lawmakers that language in both the Hawaiian Homes Commission Act of 1920-21 and the state Admissions Act of 1959 directed a share of ceded land revenues, also known as public land trust revenues, to go to "the betterment of conditions of native Hawaiians," defined with a small "n" by the federal government as those with 50 percent or more Hawaiian blood.

That reopened a long-running debate about OHA's obligation to those with 50 percent or more Hawaiian blood. A majority of its $400 million trust has come from the ceded land revenues and interest generated from those revenues. In recent years, less than 10 percent of its annual revenues, about $3 million, actually comes from state general funds not tied to ceded land revenues and interest.

Homesteaders and their supporters say that's a good reason why they should have been better informed, and had a say, in the settlement negotiations.

WHO BENEFITS

OHA administrator Namu'o said the agency's philosophy has been that anything that benefits all Hawaiians benefits 50 percent Hawaiians.

OHA believes there are an estimated 400,000 Hawaiians nationwide, about 250,000 of whom live in Hawai'i. There are believed to be about 50,000 to 80,000 native Hawaiians and less than 5,000 pure Hawaiians.

For a while, OHA had a loan program only for homesteaders. That has since ended, but native Hawaiians can still apply for home improvement loans through other programs open to all Hawaiians, Namu'o said.

"I'm not disputing that part of our mission here is to help the 50 percenters," Namu'o said. "I think our approach is we satisfy both the Admissions Act and the state Constitution."

But Hanabusa, whose district is comprised largely of the Wai'anae Coast, which contains the largest percentage of Hawaiian homesteaders in the state, believes the 50 percent Hawaiians have a legitimate point.

OHA was created by the 1978 Constitutional Convention, and later approved by voters, as the receptacle for ceded land revenues, also known as public trust funds. Its "vision and mission" statement was worded in a way intended to address all segments of the Hawaiian community:

"The mix of trust funds, earmarked for Hawaiians of at least 50 percent blood quantum, and general funds, provided annually by the Legislature, allows OHA to serve Hawaiians of any blood quantum."

"I think the co-mingling is very questionable for any purpose," said Hanabusa, who chaired the Senate Hawaiian Affairs Committee for six years before becoming Senate president.

The issue of how, or to what degree, OHA meets its obligation to native Hawaiians is also the subject of the Day v. Apoliona lawsuit, which challenges the agency's authority to use ceded land revenues for those who do not have at least 50 percent Hawaiian blood. (See accompanying story.)

OPPOSITION TO THE DEAL

Critics of the settlement also took issue with the three parcels that were to be given to OHA, suggesting that they are not prime properties. They also said that the 110 acres in Kalaeloa may contain toxic material, an allegation that state and OHA officials have denied repeatedly.

Sen. Clayton Hee, D-23rd (Kahuku, Kane'ohe), said he opposes the settlement because neither the state nor OHA has provided the details about how the parties arrived at the settlement amount and the parcels chosen.

Hee, a former OHA trustee, believes his former colleagues could have and should have bargained for a better deal from the state.

Sen. Russell Kokubun, who also voted against the settlement agreement, said there needs to be a much larger discussion on what types of lands OHA should receive from the state.

Kokubun, D-2nd (S. Hilo, Puna, Ka'u), whose district also includes large populations of native Hawaiians including Maku'u and Keaukaha-Pana'ewa, said the beneficiaries should play a bigger role in deciding which lands should be part of the settlement.

"When they (OHA and the state) made their selection on those three parcels of land, that came out of nowhere," Kokubun said. "I don't know how they evaluated and determined those were to be the pieces. I think there are certainly other productive lands that need to be considered."

For instance, the state could even help facilitate an exchange of a parcel such as the Big Island's Waipi'o Valley, a culturally significant area for Hawaiians, which is owned primarily by Bishop Museum, Kokubun said. Mauna Kea could also be discussed, he said.

Another possibility might be an entire ahupua'a system such as the region of Manuka in the Ka'u district of the Big Island, Kokubun said.

"There's value there that goes way beyond the commercial appraised value," he said.