Ka Wai Ola - Office of Hawaiian Affairs, Volume 18, Number 3, 1 March 2001 — OHA testimony opposing HB 1360 [ARTICLE+ILLUSTRATION]

OHA testimony opposing HB 1360

As the Chairperson of OHA's Legislative and Government Affairs Committee, I am delighted to provide an update on the House Committee on Judiciary and Hawaiian Ajfairs, led by Chairman Eric Hamakawa and Vice

Chairman Blake Oshiro. On Feb. 13, in an unprecedented manner, the committee held HB 1360. I have included in its entirety, the testimony that the Office of Hawaiian Affairs submitted. Aloha Chairperson Hamakawa,

Vice Chair Oshiro, and members of the House committee on Judiciary and Hawaiian Affairs. I am Colette Machado, Chair of OHA's Legislative and Governmental Affairs Committee (LAGA). On Feb. 8, OHA's Board of Trustee

voted to oppose HB 1360, RELATING TO THE NATIVE HAWAIIAN TRUST. Accordingly, OHA opposes and urges the committees to hold the bill. See MACHADO on page 7

Colette Machado

Trustee, Moloka'i & Lāna'i

MACHADO from page 6 We understand that the bill's purpose is to transfer the responsibilities for the Hawaiian Home

Lands and OHA to a private trust, the Native Hawaiian Trust (NHT). The intent of creating NHT to benefit and empower native Hawaiians and Hawaiians is laudable. However, beforethere is creation, there is the clear textual destruction and disassembly of programs, rights, liahilities, and responsibilities, etc. due to Native Hawaiians and Hawaiians under As ihe Chairperson of OHA 's Legis/ative and Government Affairs Committee, I am delighted to provide an update on the House Committee on Judiciary and Hawaiian Affairs, led by Chairman Eric Hamakawa and Vice Chairman Blake Oshiro. On Feb. 13,

in an unprecedented manner, the committee held HB 1360. I have included in its entirety, the lestimony that ihe Office of Hawaiian Affairs submitted. Aloha Chairperson Hamakawa,

Vice Chair Oshiro, and members of the House committee on Judiciary and Hawaiian Affairs. I am Colette Machado, Chair of OHA's Legislative and Governmental

Affairs Committee (LAGA). On existing laws. This bill is very effective in destroying, disassembling, and terminating the programs, rights, liabilities, and responsibilities, etc. due to Native Hawaiians and Hawaiians under existing laws. This bill is very effective in destroying, disassembling, and terminating the legal authority as well as programs and functions of OHA and DHHL. This is done without a true assessment or inventory of what rights, liahilities, responsibilities, etc. are truly due to native Hawaiians or Hawaiians, and what needs to be done by NHT to ensure that no less service is

given to the beneficiaries. The bill is ineffective in its attempts to create an appropriate entity to undertake, implement, and protect the interests of Native

Hawaiians and Hawaiian beneficiaries, and leaves them instead with more uncertainty. The creation of the new entity NHT raises many open questions relating to important issues such as: • What is concretely created by this bill beyond the authorization for NHT? • What is the scope of powers of NHT? • Will OHA and DHHL-type programs and functions be undertaken? There is no explicit textual guidance to the guide scope, administration, or implementation of the purposes of the trust; etc. because there is: • No verbal commitment to undertaking any of the former agencies functions • No set date for resumption of functions. • No specifying whieh functions will be resumed or undertaken by NHT • No commitment to having the public be part of the process of NHT, except to ratify after the fact by a preponderance of positive comments over negative comments. • No commitment to continue pressing for the benefits and rights due Hawaiians, such claims and negotiations for ceded land revenues • Only implicit commitment to undertake the 5(f) obligation - betterment of Hawaiians, but overall very little guidance derived in terms of actual implementation or direct textual commitment to benefit Hawaiian

beneficiaries. The bill raises many complex legal issues and raises the shadow of muUiple legal challenges related to, among others: • State delegation of its trust responsibilities to NHT; • Potential conflict of interest issues for OHA convening and participating in the working group; • Transfer of power from the agencies to NHT issues; • "Flow of benefits" issues; • Trust law issues; • State and federal equal protection issues; • Beneficiary standing to sue issues; • The claims of Hawaiians who are non-residents. In conclusion, today we urge the committees to hold HB 1360 because it is jyemature to undertake such a drastic action that leaves Hawaiian interests with greater uncertainty. The action proposed by this bill is flawed for many reasons, but primarily because it does not contemplate all foreseeable outcomes, problems, and complex issues raised, nor recognize the full negative implications that this bill could have on programs, rights, liabilities, and responsibilities, etc. due to Native Hawaiians and Hawaiians under existing laws. Thank you for the opportunity to testify in opposition of this measure. ■

The action proposed by this bill is flawed for many reasons, but primarily because it does not contemplate all foreseeable outcomes, problems, and complex issues raised, nor recognize the full negative implications that this biU could have on programs, rights, liabilities , and responsibilities, etc. due to Native Hawaiians and Hawaiians under existing laws.