Ka Wai Ola - Office of Hawaiian Affairs, Volume 25, Number 2, 1 February 2008 — A step at a time with focus and disdpline [ARTICLE+ILLUSTRATION]

A step at a time with focus and disdpline

Haunani Apuliuna. MSW Chairpersūn, TrustEE, At-large

Aloha e nā 'ōiwi 'ōlino, nā pulapula a Hāloa, mai Hawai'i a Ni'ihau, puni ke ao mālamalama. Aloha e nā kūpuna kahiko, nāna e ho'oulu mai nei, iā kākou e holopono, a loa'a e ka lei lanakila. Over 30 years, the issue of what portion of the revenues derived from the Puhlie Land Trust pursuant to Article XII, Section 6 of the Hawai 'i S tate Constitution are due to OHA has been a work in progress. History of this issue ranges from vaguely crafted legislation neither clear nor justiciable by the Hawai'i Supreme Court to the 1990 Act defining sovereign and proprietary revenues, whieh was terminated by the Hawai'i Supreme Court following strategic polhieal and legislative intervention. In 1987, the Hawai'i Supreme Court in "Trustees of the Office of Hawaiian Affairs v. Yamasaki" concluded that the issue was a political question. In 1990, the Legislature addressed the political question with the passage of Act 304. In September 2001, in "Office of Hawaiian Affairs v. State of Hawai'i" the Hawai'i Supreme Court ruled that Act 304 was "effectively repealed by its own terms." Fortunately, the Hawai'i Supreme Court opined the obligation as firmly established in our Constitution. The Court stated, "how the State satisfies that constitutional obligation requires policy decisions that are primarily within the authority and expertise of the legislative branch." Nonetheless, armed by this 2001 judgment of the Court, the Cayetano administration ended payments to OHA in July 2001. In 2003, prior to the legislative session, the Lingle administration and the State Attomey General restarted annual payments of approximately $9 million, and the 2003 Legislature authorized back payments to OHA for the annual payments ended by the Cayetano administration in 2001.

Following lengthy negotiations and agreement by OHA and the Executive branch, the 2006 State Legislature passed Act 178, signed on June 7, 2006, that affixed ineome and proceeds from the prorate portion of the Public Land Trust under Article XII, Section 6 of the State Constitution for expenditure by the Office of Hawaiian Affairs from 2005-2006 forward to be $15 million; as well as a one-time payment of $17.5 million for revenues underpaid OHA from July 1, 2001, to June 30, 2005. Act 178 improves accounting by all State departments relating to public trust land revenues. Section 5 says, "not later than January 1 of eaeh year, the department of land and natural resources, with the cooperation of the department of budget and finance and any other state department or agency that uses or manages public lands, shall provide an accounting of all receipts from lands described in section 5(f) of the Admission Act for the prior fiscal year." "With respect to eaeh receipt, the department of land and natural resources shall identify: 1) the total gross amount; 2) the amount transferred to the office of Hawaiian affairs; 3) the amount retained by the State; 4) the account or fund in whieh the amount specified in paragraph (3) was transferred or deposited; 5) the parcel of land subject to section 5(f) of the Admission Act that generated the receipt, whether by tax map key number, department of land and natural resources inventory number, or other recognizable description; and 6) the state department or agency that received the total gross amount identified in paragraph (1). The accounting shall also indicate whether any parcel of land described in section 5(f) of the Admission Act was sold or exchanged in the prior fiscal year and, if so, the amount of consideration that the state received for the respective parcel." In the 2008 Legislature, the Trustees of the Office of Hawaiian Affairs take another deliberate and methodical step toward fair applieation of revenue payments. 39/48 E2

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