Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 3, 1 March 1990 Edition 02 — OHA-STATE AGREEMENT: FIRST [ARTICLE+ILLUSTRATION]

OHA-STATE AGREEMENT: FIRST

The followlng report summarizes the efforts of the Committee on State Ceded Lands Entitlements, as given to the full Board of Trustees on February 8. 1990. Committee members include trustees Rod Burgess and Frenchy DeSoto, co<hairmen. MoanlkealaAkaka, ClarenceChing, ManuKahaiali'i and Moses Keale. OHA staff support was provided by Administrator Richard Paglinawan , Deputy Administrator Stanley Lum and Land Officer Linda Delaney.

l is our privilege to present the report of the Board Committee on State Ceded Lands Entitlements. This Committee is authorized by the Chairman and Board of T rustees to meet with representatives of the governor's office. As charged by both the OHA board and Governor John Waihee, we are to jointly address the long-standing controversies surrounding the state publie trust obligations to the Office of Hawaiian Affairs. This process of determining both the past due and future trust entitlements of OHA was required by: 1 . Continuing disputes between the state and the OHA concerning the application of the 20-percent-of-income entitlement formula to certain public lands, whieh had forced OHA to sue the state Department of Transportation (DOT) for enforcement of the trust:

2. A state Supreme Court ruling whieh held that the courts could not decide the OHA case against DOT because the questions of entitlement were political issues requiring legislative clarification: and 3. The procedural mandate contained in Section 5 of the Native Hawaiian and Hawaiian Judicial Relief Act (usually called the "Right-to-Sue" law), whieh sets forth a mechanism calling on the govemor to present a proposal for legislative action in the hope that certain significant Hawaiian trust issues ean be resolved without resorting to the long and expensive process of bringing suit in court. Although eaeh of these events had a part in shaping the need for coming to a resolution, the success of this process was and is only possible with a "good faith" attitude and determination by everyone concemed — the board, the govemor, the Legislature, the citizens of Hawai'i, and the Hawaiian people — to seek and to support what is legal and fair to all. Our only regret is that this work is not finished. The darifications of the Chapter 10 trust — as it is to be applied to resolve the past entitlement due and the future application of the trust mandate — addresses

only the native Hawaiian beneficiaries of 50 percent or more Hawaiian blood. The legal definition and implementation of the Hawaiian tmst to benefit all Hawaiians regardless of blood quantum is not complete. This Hawaiian trust will be completed later this year. OHA's dedication and determination to achieve this goal of a full and rightful future entitlement for all Hawaiians, however, demands that we must first keep and make whole the existing trust for native Hawaiians. Only in this way ean we assure the integrity of law, maintain our present fiduciary duties and rebuild the foundations of trust among ourselves as Hawaiians and with all the people of Hawai'i.

Legal Basis of OHA Trust Entitlement In 1978, the voters of Hawai'i ratified a series of amendments to the state constitution. Among the changes approved were Sections 4, 5, and 6 of a new Article XII titled Hawaiian Affairs. By the will of all the people, a new Office of Hawaiian Affairs was established and mandated to work for the betterment of conditions of native Hawaiians and Hawaiians. Also created at this time were new public trusts to help fund the office and its work. The legislature was to implement a pro rata or percentage of ineome from certain public lands as trust entitlements to OHA for its beneficiaries. Beginning in 1979, the state Legislature acted to implement the OHA constitutional amendments throughstatutorylaw. Overaperiodofthreeyears, this implementation was achieved and became Chapter 10 of the Hawaii Revised Statutes. Among these provisions was the adoption of two definitions of beneficiaries - native Hawaiians of 50 percent or more blood and a separate definition for all Hawaiians regardless of their percentage of blood.

Finally, in 1980, the Legislature acted to implement the native Hawaiian tmst and approved a 20-percent share of all the ineome from the 5(b) and (e) public lands as the entitlement. No statutory provision has ever been made to address our Hawaiian beneficiaries. j lnstead, as a budgetary practice, the Legislature chose . » whieh programs within the OHA budget would be 1 supported by matching general fund appropriations as the "Hawaiian" share. The native Hawaiian trust formula of 20-f)ercent of ineome, and the identification of 5(b) and (e) public lands as the source of where this money is to be derived, are traceable to the terms and history of the Hawai'i Statehood or Admission Act of 1959. When admitted, the state received title to nearly 1.4 million acres of federal land. Section 5 of the Admission Act describes the disposition of all public lands — both federal and state properties — in a series of alphabetized paragraphs.

Section 5(b) transferred title to all land not retained by the federal govemment to the state. Included among these transfers were the submerged lands and the fee title to the congressionalIy created Hawaiian Home Lands trust properties. These lands — with the explicit exclusion of the separate "available lands" definition of the Hawaiian Homes trust — are the 5(b) lands named in Chapter 10. Section 5(e) of the Act set up a five-year property review and possible retum of additional federal land to the state if such properties were declared surplus. The lands returned during this time are now known as the 5(e) lands. Central to the scope and nature of the lands being retumed to the State is the description of public trust impressed on these lands and described in Section 5(f). This section acts as a waming to the state that these lands, their disposition and any proceeds from or for their use, may only be used for enumerated public purposes. Among the five general public purposes listed are the "betterment of the conditions of native Hawaiians." The pro rata native Hawaiian tmst enacted by the Legislature repeats the idea that as one of five purposes a 20-percent entitlement to ineome is consistent.

What cannot be over-emphasized in reviewing the Iegal basis for the OHA trust entitlements, is that we are working within the confines of a state trust. The basis or legal linkage for the transfer of lands to the state and ; the 5(f) tmst ean be found in the terms of the "Resolution of Annexation" adopted in 1898 — and the Organic Act of 1900. In no way should or ean these provisions be eonfused with the deep harms inflicted on the Hawaiian people by the events of 1 893 , and the overthrow of the Kingdom of Hawai'i with the assistance of armed American troops and agents. These claims for stolen

These maps of the five principal Hawaiian Islands show the approximate location of state, federal and Hawaiian Home Lands. This agreement covers only those former crown, puhlie and government lands now under the control of the state, as designated in Section 5 of the Admissions Act (see bold paragraph, below). The state constitution, and Chapter 10 of Hawai'i Revised Statutes, provide that OHA is to receive a pro rata portion of ineome and proceeds from all lands described in Section 5(b) and (e), and the "Z" lands.