H. William Burgess and his wife, Sandra Burgess - Photo courtesy of Ken Conklin
H. William Burgess and his wife, Sandra Burgess - Photo courtesy of Ken Conklin

BY MALIA ZIMMERMAN – Hawaii attorney H. William Burgess is challenging the state’s decision to transfer 10 parcels of land from the state of Hawaii to a state agency, the Office of Hawaiian Affairs (OHA).

The Hawaii Legislature and Gov. Neil Abercrombie teamed up to broker the deal with the Office of Hawaiian Affairs during the 2012 legislative session. The plan is an effort to settle claims against the state by the Office of Hawaiian Affairs over control of ceded lands left by Hawaiian royalty. The property, valued at $200 million, is centrally located waterfront land in the Kakaako-Makai area of Honolulu.

Native Hawaiian state agencies such as the Department of Hawaiian Home Lands and OHA, as well as private organizations including the Hawaiian Civic Clubs, the Sovereign Councils of the Hawaiian Home Lands Assembly, Council for Native Hawaiian Advancement and Kamehameha Schools, teamed up to push through the legislation to ensure the transfer.

OHA Chairperson Colette Machado in April called the deal “historic” and pledged the arrangement will benefit the entire community.

But Burgess and his supporters said in a letter to the governor that the lands should not be used by just one agency for one particular race (in this case Native Hawaiians), but should instead benefit all Hawaii residents. (Letter to Governor re- Kakaako transfer)

Burgess maintains the ceded lands, which were given to the state, belong to all citizens of Hawaii and cannot be given away to one group in violation of the 14th amendment.

Burgess and his clients, who have filed other legal challenges to Hawaiians-only programs and benefits, are threatening to take the state to court unless the Hawaii Supreme Court addresses the Federal Question of “whether the Act violates The Equal Protection clause or other provisions of the Constitution or civil rights laws of the Unites States or the fiduciary duties of the trustees of the State of Hawaii.”

“Since the trust funds continue to be held for all the people of Hawaii so long as the funds are in the hands of OHA, the OHA Trustees have a fiduciary duty to all the people that conflicts with their interest in bettering the conditions of native Hawaiian and Hawaiian beneficiaries at the expense of the other beneficiaries,” Burgess said.

Burgess argues the Act “would put the State of Hawaii, as trustee of the Ceded Lands Trust, even more deeply into the position where its interest in distributing trust funds and trust property to OHA for the betterment of native Hawaiian beneficiaries conflicts with its fiduciary duty to the rest of the beneficiaries.”

Gov. Neil Abercrombie said: “All bills passed by the Legislature are evaluated and scrutinized to ensure they are reasonable public policies, embody sound fiscal management and have proper legal standing.  I am confident any bill I have signed meets these requirements.”

Joshua A. Wisch, Special Assistant to the Attorney General, said he could not comment on the content of Burgess’ letter: “While I can confirm that we have received Mr. Burgess’s letter, at this time there’s nothing more we have to add.”

Burgess said the landmark case Rice v. Cayetano, which was settled about 12 years ago, “rejected Hawaii’s efforts to provide racially discriminatory benefits to its ‘Native Hawaiian’ citizens. … Yet that discrimination continues undeterred.”

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