by Andrew Walden
Will OHA Trustees sign a contract to violate the Rice v Cayetano decision?
In their February, 2000 decision, the US Supreme Court held the State of Hawaii may not bar voters from participating in elections on the basis of race. But, at their January 8, 2015 meeting, OHA Trustees were asked to do precisely that.
According to the minutes, Dr J Kuhio Assam, Executive Director of Lunalilo Trust, "joined by Pauline Namuo and Gerry Miyamoto of 'Ahahui Ka'ahumanu, Kealoha Ballesteros of Hale O Na Ali'i, and their legal counsel William Meheula" told Trustees they had formed "Na'i Aupuni" a "consortium" intending to "draft the contract with OHA" and in turn "award contracts".*
The Consortium was apparently formed by a process of elimination. Queried by Trustee Hulu Lindsey as to why the Royal Order of Kamehameha was not participating, "Dr. Assam responded that the initial call from OHA went out over 6-9 months ago, with most of the Ali 'i Trusts represented, as well as the benevolent societies, and the Civic Clubs. Through discussions by each of the organizations, a decision was made not to participate."
The Civic Clubs voted at Convention last fall to support the Hawaiian Kingdom, not a fake Indian tribe. Then the HCC leadership formed what is apparently a competing 'Consortium' led by the Danner sisters' Council on Native Hawaiian Advancement. An HCC Investigating Committee has since ruled that the HCC participation in the Danner "Consortium" is "Null and Void."
The Meheula Consortium plan is to organize a fake Hawaiian Indian Tribe while pretending that neither their Consortium nor OHA has anything to do with it. As OHA 'Governance Manager' Derek Kauanoe explains: "The Consortium merely facilitates the process, meaning it does not conduct the election, does not facilitate the convention, and does not conduct the referendum."
This complete abandonment of fiscal responsibility is being pitched as a way of avoiding Rice v Cayetano. Of course the real reason is to continue where Kanaiolowalu left off--disbursing more millions from the OHA Trust to the usual cronies.
Trustee Peter Apo, "noted that he still has a lot of concerns with the relationship trails between OHA, the Consortium, and the third party vendors. He believes all roads will lead to the money, which comes from OHA. He does not know what to do about it, but he fears that there will be a challenge...."
Just as with Kanaiolowalu, the money will flow along "relationship trails" if Consortium funding is approved by Trustees. Minutes of the January 8, meeting mention:
- "the initial $1.9 million allocated to the Consortium"
- "$400,000 above the initial $1.9 million"
- "$3 million allocated with a portion being held internally by administration"
- "a $3 million total budget"
- "approximately $600,000 has already been spent on media and other expenses"
- "$1,870,000 ... with only the costs of the contracted services"
- "the $400,000 budget detail...."
- "the Ad Hoc planning committee determined the budget, which was passed on March 6, 2014"
The next day OHA CEO Kamana'o Crabbe sent Trustees a memo outlining a $2.3M budget he said was available to meet the "unofficial request of the future consortium for an operating budget."
Perhaps reading from the crony dreambook, "(OHA) Corporate Counsel (Ernest) Kimoto advised the Board that they must be very careful and not step over the line by directing Na'i Aupuni to do or desist from certain activities. They will have total discretion on how they will manage their task, as will be sounded in their contract. He brought it up because it may subject us to a state action attack should those that feel contrary to OHA's work regarding Na'i Aupuni choose to bring litigation. He advises against discussions that direct Na'i Aupuni...."
Na'i Aupuni counsel Bill Meheula told trustees: "...one of the challenges is that it takes a lot of money to hold an election, an aha, and then have a ratification vote. Because the money is coming from OHA, a state entity, the entire process can be challenged under the US or state constitution. Native Hawaiians who do not feel it is a fair process could also challenge. That is why they have to look at creating an independent process; they will propose in their contract with OHA that the Consortium members will pledge that they will not have anything to do with the outcome of what happens at the aha and that all of their consultants and vendors make the same pledge. They will ask OHA to agree not to play any part in controlling what they do, once the funds are given through the fiscal sponsor. Philosophically, it goes against what they are trying to do when he is asked to answer a question or commit to doing something one way. The Consortium members have not done enough work with vendors to be able to answer detailed questions yet. Once they have their contract with OHA, they will be able to get everyone on the same page when they hire vendors."
Trustee Haunani Apoliona "stated that she believes approving or providing a grant to someone directly from OHA would cause major trouble according to what she understands from the legal side. So that is not an option and she knows that is what staff is trying to figure out. That would lock OHA in poorly and things could go down the tubes." Apoliona later states she "sees this as an opportunity to move OHA to a place that is arm-length because of the state actor issue."
The "state actor issue" is Rice v Cayetano.
And how will OHA be avoiding "providing a grant to someone directly"?
Dr. Assam has the answer: "Na'i Aupuni will work with OHA to get funds and to have independence on decision-making. He added that decisions regarding delegates and participation in the aha will not necessarily be made by Na'i Aupuni. They anticipate that when they put out the RFP, the contractors doing apportionment and election will be asked to involve the broadest participation possible ... which will be included in the evaluations of the RFPs."
Na'i Aupuni won't be told what to do by OHA. And the contractors won't be told what to do by Na'i Aupuni.
"Mr. Meheula estimated that a contract between OHA and Na'i Aupuni could be ready in as soon as two weeks."
Eight days after Crabbe's $2.3M memo was written, the CNHA announced formation of its competing "Consortium."
*Experience with Kanaiolowalu "contracts":
Pauline Namuo is the wife of Clyde Namuo, Executive Director of the Kanaiolowalu Native Hawaiian Roll Commission and recipient of $3,511.91 plus salary and benefits from the NHRC.
Hale O Na Ali'i leader Marilyn Khan received $10,000 in a single check from NHRC.
BREG: Na'i Aupuni
Minutes: OHA Board of Trustees January 8, 2015
Related: OHA Hides Secret Budget from Legislators: $2.3M for 'Consortium' to Push Fake Indian Tribe