The Office of Hawaiian Affairs and the state went through more than a decade of negotiations to finally reach the landmark $200 million ceded lands settlement announced Jan. 18, but it has taken just days for lawmakers to raise serious reservations about the agreement.

The settlement, which calls for three large parcels of land to be transferred by the state to OHA along with $13 million cash, must be approved by the state Legislature. The parcels are in Kaka'ako and Kalaeloa on O'ahu, and Hilo on the Big Island.

Even the most critical of lawmakers said they are sincere about wanting to approve a settlement. But from the amount of land and money involved to whether the settlement would leave open the possibility of future claims, the questions being raised are complex, varied and not easily answered.

OHA officials, following criticism that they have not tried to seek input from their Native Hawaiian constituency, are starting a public informational campaign that will include meetings statewide, putting the bill and related information on the Internet and even the unusual step of calling constituents to let them know about the proposal.

House Majority Leader Kirk Caldwell, D-24th (Manoa), was among those who said he wants public input before deciding whether to support the plan.

"We want to hear from the beneficiaries, we want to hear whether they think the settlement seems fair and reasonable," Caldwell said. "Some beneficiaries may think that it's not enough."

Senate President Colleen Hanabusa, D-21st (Nanakuli, Makaha), said she found it troubling that OHA and the administration of Gov. Linda Lingle did not take the proposal to the public before coming to the Legislature.

"The problem I have for the Legislature is how can we explain an agreement to the people when we weren't party to it and we don't know why certain things were agreed to?" Hanabusa said.

CHANGES TO AGREEMENT

One of the key issues raised is whether or not the Legislature can modify or amend portions of the agreement without jeopardizing the settlement. According to the terms of the settlement, any changes can nullify the agreement. But the agreement allows for changes if the state administration and OHA agree.

Sen. Jill Tokuda, D-24th (Kailua, Kane'ohe), who heads the Senate Agriculture and Hawaiian Affairs Committee, said she doesn't think any changes are possible.

"The sense I got was that this is the agreement that was signed by the trustees and the administration," Tokuda said. "I did not get the sense that this was something that was up for negotiation. If that was the intent, we should have been involved over the last three years. That would have made more sense."

But OHA administrator Clyde Namu'o said OHA is willing to entertain amendments to the proposal by lawmakers.

"We agreed with the executive branch that the agreement is the agreement and any changes to the agreement would need to be agreed upon by both OHA and the executive branch," he said. "So if there are amendments to the settlement agreement that both OHA and the executive branch felt were appropriate or acceptable, then that's fine."

Hanabusa, however, said she's also concerned how any attempts to change the bill might affect a settlement that's taken years to negotiate.

"If the legislators attempt to amend this bill, they're going to have to do it fully aware that they could possibly undo the settlement," she said.

Caldwell, who, like Hanabusa is a practicing attorney, said he's also wary about what any amendments might do to the settlement situation.

"Unless there was agreement to the changes, the whole thing collapses," he said. "Now you have the Legislature kind of negotiating with the parties. And it gets very complicated when you're trying to negotiate a settlement in public.

"And I'm not aware of any other situation where the state through the Legislature is negotiating a settlement with two parties."

But Sen. Clayton Hee, D-23rd (Kane'ohe, Kahuku), said the settlement agreement needs to change before he can support it. "I've made it clear (to colleagues) that the Legislature is not a rubber stamp, should not be a rubber stamp," Hee said.

A former OHA board member and one-time chairman, Hee said he believes a settlement is in the best interest of all parties. That said, however, Hee added: "The bill, as is, is not the best, in my opinion, the best product. I believe we can do better — for all parties."

IS DEAL 'WORKABLE'?

Hee is among those who believes an offer made by former Gov. Ben Cayetano and his administration to OHA in 1999 made more sense. Under that scenario, according to both Hee and Cayetano, the state would have paid OHA $301 million in cash and given it 365,000 acres, about 20 percent of all ceded lands in the state.

But a majority of OHA members balked at that settlement because it would have required OHA to lose its right to sue the state for future claims.

Cayetano, in an e-mail, said he believes the Legislature should look at the settlement as a "global or final settlement" taking care of all claims and should "take steps to assure OHA cannot sue the state for future claims. Otherwise, it will never end."

Namu'o, however, said the current agreement settles the dispute over revenues from ceded lands due to OHA from 1978, when OHA was established, through 2008.

Sen. Sam Slom, R-8th (Kahala, Hawai'i Kai), said he has a problem with that. "Of all the things I'm concerned about, I would certainly want an extinguishment of any and all additional future claims, and OHA cannot guarantee that," he said.

Slom said the state Admission Act makes the state obligated to pay a share of ceded land revenues to Native Hawaiians. However, he said, "I think the settlement, in one way is over generous and in another way, I think the problem appears to be OHA."

While OHA is supposed to be the entity that accepts the funds and distributes it back to its beneficiaries, he has a problem with the fact that "OHA does not reflect all of the interest of all of the Native Hawaiians. It seems to be reflective of a certain group of people which also do a lot of infighting ... so an agreement reached between the governor, the administration and OHA may not be a total and workable agreement."

'DEVIL IS IN THE DETAILS'

Several lawmakers said simply that at this point, they're still trying to digest the document and its ramifications — and weigh the pros and cons.

Rep. Hermina Morita, D-14th, (Hanalei, Anahola, Kapa'a), a member of the Legislature's Native Hawaiian Caucus, said she senses trepidation from different quarters. Some people are questioning the need for the state to continue to make a $15.1 million annual payment to OHA when it is receiving more than 200 acres of prime, revenue-generating land valued at $186 million in the settlement. Others, however, are arguing that the annual payment is not enough because it does not take into account any inflationary adjustments.

The $15.1 million is the same amount now being received annually by OHA and is based on the argument that when the federal government transferred 1.4 million acres to the new state of Hawai'i in 1959 to be held in trust, one of the five purposes for which revenues generated from those lands were to be used was "the betterment of conditions of Native Hawaiians."

Some believe that $15.1 million will amount to significantly less than 20 percent of all revenues as the years go by, while others believe revenues generated from the land to be handed over to OHA will more than offset that difference, Morita said.

"We've got to come to a decision and move on," she said. "OHA needs to be off its feet, off and running and responsible for its own actions."

Rep. Mele Carroll, D-13th (E. Maui, Moloka'i, Lana'i), who heads the Native Hawaiian Caucus, said she's happy the state and OHA have reached an agreement of some sort.

"Just the fact that they can come to a decision is a good sign," Carroll said. "But the devil is in the details."

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.