Monday, February 24, 2020
Hawai'i Free Press

Current Articles | Archives

Monday, December 21, 2015
What Is The Office Of Hawaiian Affairs?
By Robert Thomas @ 6:01 PM :: 3990 Views :: OHA

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.



TEXT "follow HawaiiFreePress" to 40404

Register to Vote


808 Silent Majority

808 State Update AM940


ACA Signups Hawaii



Alliance Defending Freedom

Aloha Life Advocates

Aloha Pregnancy Care Center

American Council of Trustees and Alumni

American Mothers of Hawaii



Antonio Gramsci Reading List

A Place for Women in Waipio

Astronomy Hawaii

Audit The Rail

Ballotpedia Hawaii

Better Hawaii 

Blaisdell Memorial Project

Broken Trust 

Build More Hawaiian Homes Working Group

CAFR Hawaii

Castaway Conservative

Children's Alliance Hawaii

Children's Rights Institute

Christian Homeschoolers of Hawaii

Citizens for Recall

Cliff Slater's Second Opinion

Coffee Break

CSIS Pacific Forum

DAR Hawaii

DVids Hawaii

E Hana Kakou Kelii Akina

E Māua Ola i Moku o Keawe

Farmers For Choice Hawaii


Fix Oahu!

Follow the Money Hawaii

Frank in Hawaii

Front Page Magazine

Frontline: The Fixers

Genetic Literacy Project

Get Off Your Butts!

God, Freedom, America

Grassroot Institute

Hawaii Aganst Assisted Suicide

Hawaii Aquarium Fish Report

Hawaii Aviation Preservation Society

Hawaii Catholic TV

Hawaii Christian Coalition

Hawaii Cigar Association

Hawaii Coalition Against Legalized Gambling

Hawaii ConCon Info

Hawaii Credit Union Watch

Hawaii Crime Victims' Rights

Hawaii Crop Improvement Association

Hawaii Debt Clock

Hawaii Defending Marriage

Hawaii Defense Foundation

Hawaii Families for Educational Choice

Hawaii Family Advocates

Hawaii Family Forum

Hawaii Farmers and Ranchers United

Hawaii Farmer's Daughter

Hawaii Federalist Society

Hawaii Federation of Republican Women

Hawaii Firearm Community

Hawaii Fishermen's Alliance

Hawaii Future Project

Hawaii Gathering of Eagles

Hawaii History Blog

Hawaii Homeschool Association

Hawaii Jihadi Trial

Hawaii March for Life

Hawaii Meth Project

Hawaii's Partnership for Appropriate & Compassionate Care

Hawaii Public Charter School Network

Hawaii Rifle Association

Hawaii Right to Life -- Big Island

Hawaii Right to Life -- Oahu

Hawaii Shield Law Coalition

Hawaii Shippers Council

Hawaii Smokers Alliance

Hawaii State Data Lab

Hawaii Together

Heritage Foundation

HI Coalition Against Legalized Gambling



Hiram Fong Papers

Homeschool Legal Defense Hawaii

Honolulu Homeless Crisis

Honolulu Navy League

Honolulu Traffic

Horns of Jericho Blog

House Minority Blog

House Republican Caucus YouTube


Hump Day Report

I Vote Hawaii

If Hawaii News

Imua TMT

Inouye-Kwock, NYT 1992

Inside the Nature Conservancy

Inverse Condemnation

Investigative Project on Terrorism

Iowa Meets Maui

Jackson v Abercrombie

Jihad Watch

Judgepedia Hawaii

July 4 in Hawaii

Kahle v New Hope

Kakaako Cares

Kau TEA Party

Kauai Co GOP

Keep Hawaii's Heroes


Land and Power in Hawaii

Legislative Committee Analysis Tool

Lessons in Firearm Education

Lingle Years

Malulani Foundation

Managed Care Matters -- Hawaii

Malama Pregnancy Center of Maui

Mauna Kea Recreational Users Group

Middle East Forum--The Legal Project

Mililani Conservatives for Change

Military Home Educators' Network Oahu

Missile Defense Advocacy

MIS Veterans Hawaii

Muslim Brotherhood in America

NAMI Hawaii


National Christian Foundation Hawaii

National Parents Org Hawaii

National Wind Watch

New Zeal

NFIB Hawaii News

No GMO Means No Aloha

Northwest Economic Policy Seminar

Not Dead Yet, Hawaii

Now What I Really Think

NRA-ILA Hawaii

Oahu Alternative Transport

ObamaCare Abortion Hawaii


OHA Lies

Opt Out Today

Pacific Aviation Museum

Patients Rights Council Hawaii

PEACE Hawaii

People vs Machine

Pritchett Cartoons 

Pro-GMO Hawaii


Rental by Owner Awareness Assn

Republican Party -- Hawaii State

Research Institute for Hawaii USA

Rick Hamada Show

RJ Rummel

Robotics Organizing Committee

School Choice in Hawaii

SIFE Remington

SIFE W. Oahu 

Sink the Jones Act

Smart About Marijuana--Hawaii

St Marianne Cope

State Budget Solutions Hawaii

State Policy Network

Statehood for Guam

Tax Foundation of Hawaii

The Harriet Tubman Agenda

The Long War Journal

The Real Hanabusa

Time Out Honolulu

Trustee Akina KWO Columns

Truth About Trade & Technology - Hawaii

UCC Truths

Union Members Know Your Rights

US Tax Foundation Hawaii Info

Valor in the Pacific

VAREP Honolulu

West Maui Taxpayers Association

What Natalie Thinks

Whole Life Hawaii