 Politics in Hawaii with Dennis Isaki on Think Tech Hawaii. Today we'll be speaking with Mauna Kea Trask, a fourth generation native Hawaiian attorney on Hawaiian issues. He is a practicing attorney on Kauai in the areas of environmental law and medication, land use, zoning, and entitlements. He's a graduate of Kamehameha School, University of Hawaii Law School, and has been a county attorney, been a prosecuting attorney, worked with a public defender's office, and clerked for judges in the first and fifth circuit courts, among other public service he has served on the Kauai-Nihau Burial Council. Mauna Kea, welcome to Politics in Hawaii. Paul and Dennis, good to see you. Good to see you. Please tell us about your passion on native Hawaiian issues, starting with that. Sure, basically just was raised in it. Given my family's history and involvement in native Hawaiian issues and rights, it was just something that I was raised to do and brought up around. Yeah, I know families that you're on is on the board of trustees. Yeah, so my grandfather was Arthur Kalko-Trask Sr. His brother was Bernard Trask and his daughters, Mililani Hananeke. And I mean, there's all kinds though, multi-generations. You know, picked it up today, my cousins of Big Island like that. Yeah, thanks. You've been associated with the film Fishing Pono. Okay, tell us about that. Oh yeah, that was a film project produced by Terry Tico. And it was just basically about Uncle McPoy-Poy and what he did at Moumomi on Molokai. And there's a small documentary but really explored the good work that he did. And, you know, the Molokai community did in there protecting their resource. Oh, I thought you were going to movie industry or something. I know. Okay, let's go to BHA Child Department of Hawaiian Homeland. I guess we're getting some discussion in the legislature and funding for Hawaiian issues. Can you tell us your thoughts on the Department of Hawaiian Homeland, if they can do things differently, provide more housing? Yeah, definitely. So, you know, as you know, and it's been said throughout this legislative session, there were two main bills that sought to allocate to OHA. They're 20% share of the public land trust revenues. And they're still advocating for that right now. And that's been, you know, the result of decades of litigation and legislation since about the 2000s. And currently I think, you know, actually I got the numbers here if you'll forgive me. Yeah, so annual PLT revenue is about 394 million. So that means OHA share would be 78.9 million. And currently they're receiving 15.1. So out of the 20%, instead they're getting about 3.8. And so that would go to, you know, given to OHA as trustee for the betterment of the Hawaiian people. And then DHHL and OHA, I mean, you know, they're separate agencies, but they are related. OHA, the way I see it, is more of the administrative and financial kind of arm of whatever is the Hawaiian government right now. And DHHL is the land, the corpus and the body. So it would be great if they could work together somehow. And as far as your first question goes, that's a big one. I think, you know, a lot's been written about it and a lot's been discussed. I definitely certainly don't wanna criticize today. That's not why I'm here. But I mean, arguably the Department of Hawaiian Home Lens has had a real hard time since its inception. You know, part of it was to facilitate Hawaiians return to their land, preserving their self-determination, cultural values, and also to, I mean, it was horse trading, right? The Hawai'i Homes Commission Act is a result of Congress. And so you have sugarcane interests at the time were lobbying to keep their land leases and all that kind of, you know, the disputes and history regarding that. So I definitely think DHHL could do more. I don't know if they can, given the current, you know, structure of it, but I don't think that's necessarily the fault of the Department or anyone in particular. It's systemic, I think. Yeah, I think one of the differences with Hawai'i and DHHL is DHHL, at least on the initial last season, they got a 50% blood quantum, right? And Hawai'i, there's no minimum requirement, right? Well, great point. So originally, I think the number was, Prince Kuhi'o wanted 132nd Hawai'i in order to qualify for DHHL and they settled on 50. I know there was a push to make it 100, but I mean, even 1920s, 100 was maybe a couple of Ni'i'au, Molokai, you know? Wa'ini'au maybe. But O'oha is no blood quantum. I think it's more consistent with the native Hawaiian culture and how we view ourselves. And it's just, if you have an ancestor, you can trace the 1777, you know, you're good to go. Yeah, but there's a push to reduce that, right? Was there a resolution or something? Yeah, and for the years, they've been trying to do that. And I think that's good because one of the problems of DHHL may be it's limited reach and extent. Like for me, it's hard to quantify, but let's say I'm around a quarter, so I can't get land. So I have to buy normal property and I pay my mortgage to the bank and all that. I would love to get Hawaiian homelands and pay mortgage that could benefit other native Hawaiians. Maybe I could pay it to DHHL and they could flip it and use it to support other native Hawaiian people and their interests. When you look socioeconomically, Hawaiians are at the bottom of the ladder and poi. And so even beyond that, those Hawaiians that are 50% tend to be even lower, you know? And to build a program, self-sustaining program on that portion of a population that's just been so historically marginalized and subject to injustice, it makes it very difficult to make it work, I think. Yeah, that could be the reason why that 50% lots and non-holy although as developed roads constructed, lands all cleared, utilities put in over five years ago have not been awarded. I understand it's gonna be awarded like real soon now, but it's set for, I think it's about five years. I don't know if it's because of the qualification. If DHHL goes to the home, the land is basically free or a dollar a year, but they get to pay for the houses, right? Yeah, you know, I'm not specifically aware of that. You know what the details are on that project, but yeah, there's a lot of issues that they gotta deal with and it's too bad because there's over 200,000 acres. And I think if the department could figure out how to make it work better, our representative in Congress could assist at that level, you could do huge, there could be huge gains in addressing the housing crisis. You know, a lot of the people without houses and homeless are native wine. And there's land, there's water. I mean, you know, the limits of development is largely water and DHHL has their specific allocation of the public trust. So there's a lot of opportunity there, but not a lot of execution, as a matter of fact. One interesting thing about DHHL properties with regards to the Lassies, the Kauai County Council, they made it so they don't have to pay any real property tax to their wines, so you know, not on the land, not on the, because it's not theirs, but even on the houses, I think the other counties tax their houses, you know. But the thing is, what about the other native wines? 50% or even 100% if they're not on DHHL land, they gotta pay property tax. So that kind of doesn't make sense to, kind of interesting. Oh yeah, I love to pay less tax. No, you know, like they don't have to be if they're over there, but then you got to pay, right? Oh yeah, well, that's the thing. You know, getting into more deep into the sovereignty discussion, you know, with the lands, it's really, it's DHHL's corpus. And so they don't have to follow, I mean, they do require in their own rules, you comply with building codes and county zoning, but they don't have to, they can do their own. But as far as being Hawaiian and getting separate treatment, that can't be done until there's federal recognition, you know, which is a whole nother issue. Yeah, I understand that, but sort of thing, the county, you know, it's a county issue, that, you know, whether they get to pay tax or not. The point is, if you don't, if you're not fortunate enough to get a DHHL lease, then you doubly, I don't know, been alive, but you got to pay tax, right? Oh yeah, well, you know, in that regard, that kind of touches on the Kalima case, right? So that's one of the issues is that if you were otherwise qualified, but you couldn't get property. Yeah. I mean, you had to pay mortgage, you had to pay, you know, like everybody else, because you couldn't have access to land, you're supposed to get a portion of the settlement. I don't know what it is, but they're moving towards that right now. Okay. Okay, what about the, you know, what OHA is working on right now? Yeah, I think, well, they're doing, they're advocating strongly for their 20% at the ledge this year. I did some, I looked at it last night, I think, what is it? SB, there were two, SB 21, 22 and SB 20, 21. SB 20, 21, Senate draft one, House draft two's got legs. And currently it's been, the House sent it back with some amendments, Senate disagree with the amendments and Senate conferees were appointed. So we'll see how that goes. And then OHA for the past couple of years, they've been going through their own kind of re-evaluation and trying to, you know, at least what they say sharpen the program and improve it, which is always good. I mean, we can always do better, you know, in our goals and missions in life. So can you elaborate on those bills that you mentioned? Oh, sure. So yeah, again, going back to the public land trust, so the Hawaiian is supposed to get 20% and they never have gotten it. And so Lingle made a deal back in 2006, I believe they were to get about 15 million a year and it's never changed. So the legislature right now is looking to set that and distribute it. And so right now the current draft of Senate bill 2021, and I'm reading from my notes, so I apologize, but it establishes OHA's pro-rata share of the monies derived from the public land trust, establishes a working group to determine that share of income and the proceeds of the public land trust and back amounts do, and it appropriates funds from the Cary Ford Trust holding account to OHA. And so we'll see where that goes, you know. Okay, so if there's an agreement or legal right to get the money, so why aren't they getting the money from the state? I don't know. Yeah, I don't know, I think, I mean, there's always things, right? That the state has to look at, but and they have to look at everybody. That's part of the difficulty with being wards of the state is Hawaiians are subject to the state legislature. And so if you were to take Hawaiians out of it, maybe it'd be different, maybe it'd be better. Yeah. Okay. Well, one of the questions is, I don't know, Native Hawaiians, like the Native American Indians? Yeah, that's a good question. I mean, yes. I think practically and historically, Native Americans were the indigenous people of the continent of the United States, and the constitution recognizes that Congress shall have the power to make treaties with Native tribes is the term of art. But of course, over time, they're like First Nation people, I think they're called now. And similarly, Native Hawaiians are the indigenous people of Hawai'i, and that is recognized in HRS-10-H, which is state recognition of Native Hawaiians. But there is disagreement. A lot of Native Hawaiians in the Native Hawaiian community do not consider themselves tribes. It was independent sovereign nation. There was agreements and treaties between the Kingdom of Hawai'i and, I mean, numerous European states and America, treaties of friendship, Russiprosty, all this kind of stuff. And that is an important distinction, but I do think that, you know, semantics aside from the 18th and 19th century, Native Hawaiians should be afforded the same recognition as Native Americans. And currently they aren't at the federal level. So I would answer that question specifically. They are, Native Hawaiians are not like Native Americans because Native Americans are recognized. So they can have their land, they got their own police force. They don't deal with the state government. They're separate nations. They're nations within the nation of, you know, America, United States. Okay, we can continue on this. We'll take a short break. Sure, sure. Mauna Kea Tras. Mauna Kea, can you please continue on the federal recognition of Hawaiians? Sure. So yeah, just wrapping up that question, as far as whether Native Hawaiians are just like Native Americans, because of the lack of federal recognition, they are not, I don't think. And that's why you see Native Americans, you know, they define their own tribal status. So you may or may not have to have any blood quantum. A lot of them don't. They have their own property. They can gamble on it if they want. And they really have self-determination and control at the federal level. We don't. And that's why, for example, Rice v. Cayetano, although the state constitution says only Hawaiians can vote in the Ohio election, the Supreme Court said because effectively there's no federal recognition, the Hawaiian only preference is illegal discrimination based on race or other suspect class. So if we were to get federal recognition, we could be recognized as a political class and not a racial one, and we'd be subject to different, we wouldn't be subject to state regulation necessarily. We could define it, but that's the Hawaiian community can the agree on that or really proceed forward with it. So there's difficulties there. Yeah. I recall Clayton, he, at the time he was with Ohio, they went up to Washington to discuss that. And I guess, like you said, they said that everybody gets to vote on an OHA, right? And there's different opinions in federal recognition, even at the Senator Kaka's time, right? Because nothing happened on that. And you mentioned they got different Hawaiian groups or thoughts. You think the, all of me is syndrome? All of me here, the black crab syndrome got anything to do in there? Ah, you're gonna make me in trouble. Real quick, I don't think so. I think that, you know, native Hawaiians are people too. And we're not like any community or population, we don't all agree on everything. I think it's unfair to say so. And so I don't necessarily think it's a, you know, it's a crab in a bucket deal, but I do think that it's kind of a ploy because you look at America, right? It's not purple, it's blue and red, pretty much down the middle and it's getting harder. And so to require Hawaiians to all agree in one position where Americans don't have, or, you know, non-Hawaiians don't have to, maybe that's not the fairest standard, in my opinion. S-H-P-E-D, that has come to light in many projects, in many situations, they've been looked at it from both sides, some guys, the developers said it, gendering things, some guys say, you know, we're not doing enough getting the thoughts on S-H-P-E-D. Yeah, I think, well, first off, I do know people in S-H-P-E-D and I work with them all the time and I'd like to acknowledge that because, you know, I may not be on bias, but I think they do a great job. They're a very limited office, they have limited funding. You maybe got a handful of people that gotta do every single project review statewide, I mean, from big to small, everything. So it's a very difficult job and I don't even know if it's doable given what they have to do. And so they, you know, they do their review, they make their call, I think they make it, you know, the best they can according to their professional training and people will disagree on both sides. It's impossible to make everyone happy. And I think that, you know, it's they do bad news review and projects for entitlements. And the difficult thing is that's where you see a lot of the Hawaiian activism and concerns focus. They go to the planning commission, they go to the LUC. And really, aside from protecting traditional customary rights and ensuring the continuity of those, it's not a venue to talk about Native Hawai'ins already generally the historical injustices or anything. And that's what you see a lot of that. I know you've seen it, you know, I've seen it. And so if you're in that room on that day at that time, you're gonna get caught up in the current and if there's big waves, you're gonna get pounded. Yeah, that, you know, not that I get anything against anybody in there or on the other side and not even with activism, but I've seen to put it like, they got more than one bite at the apple, you know, you do one project, you say, okay, you gotta do this and then they come back and do something else on the same piece of land. Say we want, no, we want more, you know, just a specific example. You split a lot in half, you get to do something. So you get to do an historic easement or something, then you go in and combine it back together. They did say, oh yeah, we'll make it bigger now just because we can. It seems like that sometimes, I don't know. Yeah, that's a good point. And I, you know, when I was at County, I dealt a lot with Hawaiian issues. You know, Mayor Carvalho was very attentive to him. He was very, you know, sympathetic and that's good. I think all policymakers should be. You have to acknowledge what Native Hawaiians have to deal with, both collectively and individually. And I mean, a lot of it has to do with, I think primarily a lot of the Hawaiian activists speak straight from the now. And you know, it's, they feel it in their guts and that's what they're going from. But interestingly enough, I mean, if you look at, you know, those figures in the community that are just beyond questions. So you've got like David Malo, Samuel Kamikop. If you read their books and they say really interesting things about it. So for example, in Kamolele Hawaii, which was written 1835, David Malo, in talking about oral traditions and everything, he says that, you know, we know by experience that the now is the most deceitful of all things. And so, which is really interesting now, especially in social media and really people coming at an emotional level. I guess where I'm going with this is, you know, when a project starts with entitlements, it's maybe five, 10 years until they break ground. And so you have a whole different generation of activism. So I think that's why you see one group being consulted and they get in their input. And then five, 10 years later, you'll see the young, the next generation come up and when the dozers come, they show up. And a lot of that is education, it's training. And I think, you know, if maybe if OHA gets that 20%, they could put that towards educating Hawaiians and civics and teaching them how to, you know, be more savvy in the development process. Because, you know, me and you, I mean, we're from Koi. We were, we went through Eniki. And so when I look at it, if a building goes up, I don't see it as losing anything because hurricane comes going to wipe it out anyway. I mean, you know, we're all one lava flow, one storm away from 1777. So we just got to keep fighting, keep moving on. I remember you saying something like that after flood or something, you know, after we met at Boinea with Merica Vallejo. And I remember you telling the guys, I'll look at this close to the ocean, we'll get wiped out someday. Oh yeah. And you know, his, I mean, traditionally, Hawaiians never own land, right? Our power was access it. And so I don't care who pays a million dollars for the paper, as long as, you know, we got the rights. And so as long as we know them and use them accordingly and responsibly, I think that, you know, we will keep having moves and, you know, the Konani game will go on. Okay, we get only a really short time left. Maybe just a short brief thought on the Kapakai analysis. Yeah, so Kapakai is, you know, it was 2000, what was it? I think it's 2011. Oh, I'm sorry, September 11th, 2000. So the Supreme Court came up with a test to help evaluate how to protect and identify traditional customary rights. So essentially you have to identify whether any rights exist, identify the extent in which they are exercised, identify the extent to which those rights and resources may be affected or impaired by the development and specify feasible action, if any, to be taken to protect those rights. And it's really just trying to figure out how to make that work and practically speaking because basically you're gonna have it come before a commission of, you know, seven to nine laypeople who wanna do the best they can. And it's complicated stuff. You deal with a room of 15 to 30, you know, distraught people who sincerely articulate a concern. You're not gonna take that lightly. And so it's another test to assist. But like anything, I think it's creating its own issues and difficulties. And so we just keep it on, keep doing the best we can. Yeah, I think the county is kinda like putting more emphasis on that now or, you know, looking more into it and having people help more into it. But maybe we're discussing on this later. We're running out of time. So any last words? No, I just thank you so much for the opportunity, Dennis. Happy to speak with you and look forward to it again. Yeah, yeah, we'll continue this. There's a lot more to talk about. Yeah, thanks for your time. Mahalo to our guests, Monopia Trask and Mahalo to the viewers on Think Tech Hawaii. If you'd like to think tech free media shows, please help support this nonprofit platform with a donation. Aloha, a hui hou, malama pono. Thank you so much for watching Think Tech Hawaii. If you like what we do, please like us and click the subscribe button on YouTube and the follow button on Vimeo. You can also follow us on Facebook, Instagram, Twitter and LinkedIn and donate to us at thinktechhawaii.com. Mahalo.