Ka Wai Ola - Office of Hawaiian Affairs, Volume 12, Number 9, 1 September 1995 — Sale of ceded land is a breach of trust responsibility [ARTICLE+ILLUSTRATION]

Sale of ceded land is a breach of trust responsibility

by the Rev. Moses K. Keale, Sr. Trustee. Kaua'i and Ni'ihau The Stale has failed in its responsibility to the Hawaiian people! OHA has also failed in its responsibi!ity to the Hawaiian

people. But this failure has not eome without at least a responsible try by this Trustee. When the Public Land Trust was established in 1959, Congress declared that the State shall be responsible to administer the Public Land Trust and ineome from that trust "shall be held by said State as a public trust for the

support of the public schools and other puhlie educational institutions. for the betterment of the condition of the native Hawaiians, ... for the development of farm and improvements, and for the pro-

vis»on of lands for puhlie use." The latest round of illegal actions eonstituting a breach of trust against at least one if not all classes of beneficiaries named in the last paragraph, is the deci sion to sell assets of this Public Trust in a tnanner whieh does not fully compensate the beneficiaries for this land's full and maomum capacity to generate revenue. The Attorney General opines that the State has the right to sell such land for a puMie purpose. I"hat. of course, is only an opinion. The Attorney General does not have the authority to make law (that is reserved to the Legislature) nor does it have the authority to interpret law (that is reserved to the Judiciary). A peculiar conflict of interest has arisen from this opinion. Since the State is the Trustee of the Public Land Trust, and the Attomey General is the legal counsel of the State. who defends the benefīciary if the State breaches its fiduciary responsibihty in the administration of the Public Land Trust? The answer is OHA must defend the beneficiary! It is whal the law

(HRS Chapter 10) states and intended! Since the law is not specific on this matter, I feel the Attomey General must disqualify itself from representing either side of the issue! Clearly, if we assume the state has the

right to sell or dispose of said land, it must do so with full and just compensation to the tmst at full value of the property. That is, at the value of the property based on its highest and best use. To do otherwise is clearly a breach of the state's ftduciary responsibihty. When the state takes land from the tnist to be used for

other statc purposes such as schools, parks, roads, hospitals, it is not unreasonable for the native Hawaiian to expect to be compensated for the use of this land even though they receive benefits through

public usage. Hawaiians are also taxpayers, entitled to these benefits as citizens of this state. We do not ask special treatment but equal and fair treatment. Since the Legislature chose to interpret the

State's responsibility in administering the Public Trust as part of ftve equal divisions or categories, consistency dictates that eaeh division be given equal access to those entitlements. OHA is to receive

20% of the revenue generated by the trust just as eaeh of the other four categories. However, the other categories of beneficiaries also receive use of the Public Trust Lands — an entitlement not extended the native Hawaiians. Either the state should decide to be consistent and offer lands to the native Hawaiians through OHA, or they should compensate the native Hawaiian for 20% of the value of those lands being used by the other four categories of beneficiaries. This is just and proper. Should the state decide to continue to turn a deaf ear to this argument, OHA should initiate a suit to settle this matter in court. Five years have passed since the State announced a partial settlement. No new progress has been initiated. Since there has been no demonstrated action — we MUST resort to resolving this matter in the courts.

The Attorney General does not have the authority to make law (that is reserved to the Legislature) nor does it have the authority to interpret law (that is reserved to the Judiciary).