What Is The Office Of Hawaiian Affairs, Asks Op-Ed. Short Answer: A "Public Agency"

by Robert Thomas, InverseCondemnation, December 20, 2015

An op-ed piece in today's Star-Advertiser by Judge (Ret.) Walter Heen and U. Hawaii lawprof Randy Roth asks "What is OHA?"

For those of you who don't already know, "OHA" is the Office of Hawaiian Affairs, a governmental entity created by the 1978 amendments to the Hawaii Constitution. But what the acronym stands for is not the question they are asking. Rather, they ask whether OHA is a state agency, or is some kind of quasi-governmental trust:

The Hawaii State Constitution has established an Office of Hawaiian Affairs to own and manage property "in trust." The Constitution further provides for an elected board of trustees.

In "Regulating Paradise," University of Hawaii law professor David Callies has described OHA as "operating as a public trust."

In "Who Owns the Crown Lands of Hawaii?", the late Jon Van Dyke pointed out that OHA is "self-governing" and "independent from all branches of government."

A state statute implies that OHA is not a state department or instrumentality of state government by declaring a "duty and responsibility of all state departments and instrumentalities of state government … to cooperate with and assist wherever possible the Office of Hawaiian Affairs."

In short, one could reasonably conclude that OHA is a trust or some other kind of self-governing entity, and not a state agency.

But another statute includes in OHA’s purposes that it serves as a "public agency." And many courts, including the United States Supreme Court, have called OHA a state agency, or treated it as such, at least for selected purposes.

Read the entire piece here (hyperlinks added).

For what it's worth, in our view, OHA is pretty clearly a state agency. Here's why:

• OHA was created by an amendment to the state constitution. We're not sure the people of the State of Hawaii (who ratified the amendments) have the power to create anything other than an instrumentality of government. As a creature of state law, OHA is not sui generis. The drafters of the constitutional amendment made it pretty clear that "independent" and "separate" meant financial independence, like the University of Hawaii: "The committee intends that the Office of Hawaiian Affairs will be independent from the executive branch and all other branches of government although it will assume the status of a state agency. The chairman may be an ex officio member of the governor’s cabinet. The status of the Office of Hawaiian Affairs is to be unique and special… . The committee developed this office based on the model of the University of Hawaii. In particular, the committee desired to use this model so that the office could have maximum control over its budget, assets and personnel. The committee felt that it was important to arrange a method whereby the assets of Hawaiians could be kept separate from the rest of the state treasury." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Standing Committee Rep. No. 59, at 645. 
• As the op-ed points out, the U.S. Supreme Court sure thinks OHA is a state agency. In Rice v. Cayetano, 528 U.S. 495 (2000), the majority opinion referred to OHA as a "state agency" no less than 8 times, and the question of whether OHA elections were state elections was the central question to be resolved. If OHA was not an instrumentality of state government, the decision would very likely have turned out differently, because the Court concluded: "Although it is apparent that OHA has a unique position under state law, it is just as apparent that it remains an arm of the State." As a consequence, the election of OHA trustees could not be race-restricted. Of course, assumptions the U.S. Supreme Court made in one decision about state law may not definitively resolve a question of state law in all instances. But as a practical matter, it would be very difficult for a lesser court to conclude otherwise, at the risk of getting the Court's attention yet again. 
• The statute which implements the constitutional amendment, Haw. Rev. Stat. § 10-1, et seq., provides that OHA shall be "the principal public agency in this State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians[.]" Id. § 10-3. The principal "public agency" -- can't get much more clear than that. Yes, OHA is "independent," but only "independent of the executive branch." Id. § 10-4.

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