by Andrew Walden

Anti-Telescope activism sponsored by the State of Hawaii Office of Hawaiian Affairs begins shortly after OHA’s 1999 decision to reject a Cayetano-administration proposal to ‘settle’ Native Hawaiian ‘Ceded Lands’ claims and a subsequent 2001 State Supreme Court decision determining that any settlement would be a political question to be determined by the Legislature, not a legal question to be settled in the courts.

The timeline shows OHA has chosen greenmail – on Mauna Kea and throughout the state -- as a strategy in the hope of getting a better deal.  This is what is meant when the Associated Press reports: “Native Hawaiians say telescope represents bigger struggle.”  

Two decades later, the Hawaii economy is shaped by OHA rent-seeking and the result is higher land and development costs resulting in a lack of affordable housing and limited small business opportunities.  Rent-seeking has created a society of haves and have nots squeezing out the middle class.   

(The history contrasts sharply with that of Alaska, where settlement of Native claims in the early 1970s paved the way for joint prosperity.)

Here’s how Governor Ben Cayetano described the problem in the January 6, 2002, Star-Bulletin:

…In April 1999, OHA had a chance to settle with the state for $251.3 million, but a majority of the nine trustees voted instead to end negotiations because the settlement contained language they believe extinguished OHA entitlements and waived the agency's right to litigate on past breaches of the ceded land trust.

Akana and OHA Chairman Clayton Hee say the board should have accepted the offer, which could have brought OHA's native trust close to $1 billion today.

Cayetano says some trustees got greedy then because they felt they had a legal advantage over the state….

David Shapiro, September 19, 2001 explains, “OHA Shot itself in the Foot:”

…The state Supreme Court's ruling against the Office of Hawaiian Affairs in the ceded-lands case is a crushing blow to OHA that leaves Hawaiians feeling betrayed again by powerful interests hostile to native rights.

But unlike previous hurts suffered by Hawaiians since the overthrow of their monarchy in 1893, this wound was mostly self-inflicted.

OHA trustees could have negotiated a fair deal with the state on ceded lands two years ago, but they grossly overplayed their hand and walked away from talks — foolishly leaving their fate to a court that had warned them to settle.

Now they must go back to the Legislature and start anew the process of setting OHA's share of revenues from ceded lands — former government and crown lands now held in trust by the state.

OHA likely will find lawmakers unsympathetic in an election-year economy that will be reeling from the fallout of last week's terrorist attacks.

Support for OHA is waning not only among legislators, but also among voters who have watched endlessly squabbling trustees do little to benefit Hawaiians with the abundant resources they already control from earlier deals with the state. That's another self-inflicted wound.

Most in Hawai'i acknowledge an obligation to our native people, many of whom have not adapted easily to the Western culture that was forced on them. The constitutional amendment creating OHA in 1978 had broad public support, as have Hawaiian drives for sovereignty and cash reparations.

But the public is frustrated that we're really no closer than we were 20 years ago to defining a workable sovereignty or a level of financial support that would be reasonable. Hawaiians fiercely disagree among themselves.

OHA was created in a robust economy that was still booming when the state in 1993 paid the first $130 million in ceded-land claims to the agency. But by 1996, when OHA won a lower-court victory for additional claims that could have totaled $1.2 billion, Hawai'i's economy was in serious decline.

Such a payout would have left the state bankrupt.

In 1999, the state offered OHA $250 million and ownership of revenue-producing lands to settle the claims, but bickering trustees turned it down — ignoring the strong advice of Chief Justice Ronald Moon to settle out of court and the ominous act of Congress to forbid use of airport money to pay OHA claims….

The $1.2B lower court ruling created pressure for a settlement, but OHA did not settle.  This contrasts sharply with the case of Alaska where a 1960s land freeze created pressure to bring about a settlement of Native Claims.

OHA’s choice was diabolical—but not irrational.  Alaskan Natives are still benefitting from the settlement.  OHA insiders and their cronies benefit from the destructiveness—at the expense of everyone else including average native Hawaiians. 

In a 2008 commentary published in West Hawaii Today, OHA’s point person on Mauna Kea issues, Kealoha Pisciotta, explains how, in 2001, her organization Mauna Kea -Anaina Hou, along with the Royal Order of Kamehameha, developed a demand for $50M—just from the telescopes: 

Some claim Hawaiian activists offer no economic alternatives to building the giant Thirty Meter Telescope on Mauna Kea. This is incorrect. First, Mauna Kea is comprised entirely of "ceded lands." All ceded lands are held in trust for Native Hawaiians and the general public. This condition was imposed by Congress in the Statehood Act to deal with the fact the U.S. had no legal title or lawful claims to Hawaii. Therefore, when Hawaiians don't get their 20 percent, the public is generally is not getting its 80 percent.

State law requires the collection of "fair market" lease rent for the use of these lands. It is unlawful for the governments and corporations operating on Mauna Kea to pay only $1 per year in lease rent.

Seven years ago (ie 2001—ED), my organization and the Royal Order of Kamehameha I prepared an "economic proposal" to assist the state with the telescope rent issue. The report, "Mauna Kea the Temple: Protecting the Sacred Resource," was sent to lawmakers, the Board of Land and Natural Resources, the University of Hawaii and many others. Our report suggests the state charge the observatories, collectively, about $50 million per year. It suggests the $50 million be earmarked for, among other things, historic preservation, conservation, aquatics and enforcement divisions, the university (for student tuition waivers and stipends for all, including Native Hawaiians), the Charter School Alliance and the Office of Hawaii Affairs for kupuna health and housing.

If the state had been charging the observatories lease rent all these years as the law requires, major state and educational programs would have received hundreds of millions of dollars by now. Instead, students attending UH literally pay more just to park than some of the richest nations pay to use Mauna Kea.

The rent is past due now and it should be paid without further development

Pisciotta’s demand was soon matched by an OHA lawsuit and some barely concealed greenmail from then-Trustee Clayton Hee who had his own idea what the telescopes should be paying.  According to the Star-Bulletin, April 23, 2002:

“Earlier this year, former OHA Chairman Clayton Hee proposed NASA pay Hawaiians $20 million in endowments for using the Mauna Kea telescopes.”

By the way—if Mauna Kea is ‘sacred’ how can it be for rent?

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Related: Native Claims: How Alaska Found a Settlement