Legislative Hawaiian Caucus

We attended the legislative Hawaiian caucus meeting today. It was moved from the original room, to room 309. The people asked to speak at the caucus meeting were the Attorney General Mark Bennett and attorney Sherry Broder.




It was interesting. The following legislators were in attendance:
Rep. Mele Carroll
Sen. Kalani English
Sen. Clayton Hee
Rep. Scott Saiki
Rep. Chris Lee
Rep. James Tokioka
Rep. Jessica Wooley
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Rep. Tom Brower
Rep. Pono Chong
Rep. Faye Hanohano
Sen. Brickwood Galuteria
Rep. Sylvia Luke
Rep. Della Au Bellatti
Rep. Sharon E Har
Sen. Michelle Kidani


The caucus meeting was good to attend because it allowed us to somewhat gauge what some legislators thoughts are on the "ceded" lands issue and the need to place a moratorium on the sale of "ceded" lands..

Our legislators asked very difficult questions to both the Attorney General Mark Bennett and Sherry Broder.


One question that was asked by Senator Kalani English was, "If the legislature adopts a policy in favor of moratorium, does that change things? How does that affect your case Mark Bennett?"


Generally Mark Bennett's response, (according to the notes I took) was that a state-passed moratorium does actually
change things. Mark Bennett emphasized his opinion, that the Office of Hawaiian Affairs introduced legislation to moot case so that the Supreme Court doesn’t reach the merits of the case. Mark Bennett's belief is that state-enacted legislation doesn’t moot out the case. Mark Bennett explained that if the legislature passed such a statute and it became law, the next day, (or so) those who oppose Hawaiian programs and continually sue the state, ("people we [Mark Bennett] have fended off) would then claim that the passage of this statute would put the State of Hawai'i in breach of the Admission Act.

Mark Bennett continued to explain his opinion and said that the reason the Lingle Administration has been able to fend off suits in the past is because people who are suing, claiming trust itself is illegal, cannot make that argument unless they join the US as a defendant.

Mark Bennett expressed his confidence in the idea that if our state legislature were to pass a moratorium law protecting the ceded lands from being sold until the unrelinquished claims of Native Hawaiians were resolved, that such a law would provoke people like Bill Burgess to file lawsuits charging that the state has breached its fiduciary duty to them as non-Hawaiian beneficiaries to the public land trust. Interestingly enough Mark Bennett said that if the Office of Hawaiian Affairs, or its attorneys who drafted the proposed bill would not do not, then those attorneys should be willing to put in writing that for the legislature that such proposed bill/legislation would not open up lawsuits against the state.

One reason why this was interesting was because Mark Bennett never acknowledged that, if he wins this case at the U.S. Supreme Court, that people (like Bill Burgess) would later sue the State of Hawai'i for breach of fiduciary duty.

Some people in attendance were concerned that perhaps Mark Bennett was resorting to a "fear tactic" to get the legislature to not pass a moratorium law.


To this, Representative Della Au Bellati posed the question, "Is the presumption that a moratorium on the sale of ceded lands only benefits Native Hawaiians? Can't a moratorium on the sale of ceded lands be a benefit to everybody."

Mark Bennett's response was something along the lines of, him believing that there are other possible challenges. Mark Bennett then also included in his statements, "I don’t think it’s in the state’s interst for me to detail all the potential challenges here to provide a roadmap as to how to proceed with lawsuits."

Mark Bennett said he identified potential problems with proposed OHA moratorium bill, but that he didn't think it’s in anybody’s interest for him to detail all the problems.

That might have been gratuitous of Mark Bennett (to not provide a roadmap for other lawsuits), but Rep. Della Au Bellatti responded that, "a moratorium could be good for everybody. This is something that we’ll have for discussion as a legislature. The notion that we’d be setting ourselves up for federal lawsuits, as a fear tactic, should not prevent us from exploring things as a policy options."


Senator Michelle Kidani, also asked a very interesting question, "Since you have taken an oath to uphold the laws of our State, if we pass a law that places a moratorium on the sale of ceded lands, would you cease your case at the Supreme Court?"


Mark Bennett's first response was something like, "I don't think the law would say to cease and desist the case."

Senator Kidani then responded very quickly, "But, the moratorium bill would then be a law, would you uphold that law?"

Unfortunately, my notes don't indicate what Mark's response was, but perhaps people can follow up with him on that. This raises a question though as to whether a moratorium bill is enough. Should a bill or resolution directing the the Attorney General to cease and desist be introduced? It would be interesting to see how something like that turns out.


The caucus meeting was about 90 minutes long and started at 4:30pm. At the end, when it was over, Senator Clayton Hee announced that the four Hawaiian state senators would introduce moratorium legislation to protect the "ceded" lands.


Okay. Well it's late and it's time to go to sleep. We're meeting with legislators again tomorrow (Friday) morning, and we have stuff to do.

Malama pono and mahalo for your support.