NHSC State Of Hawaii's Responses To Native Hawaiians' Unique Needs
- 1 State Of Hawaii's Responses To Native Hawaiians' Unique Needs
- 2 STATE OF HAWAII'S RESPONSES TO NATIVE HAWAIIAN'S UNIQUE NEEDS
State Of Hawaii's Responses To Native Hawaiians' Unique Needs
The State of Hawaii has undertaken a number of steps to meet the unique needs of native Hawaiians. These include acquisition and disposition of revenue pursuant to Section 5(f) of the Statehood Admission Act (48 U.S.C. prec. §491 (P.L. 86-3)); establishment of the Office of Hawaiian Affairs (Act 273, 1980 Legislative Session, codified at Haw. (Rev. Stat. §10- 13.5); and establishment of State programs specifically for native Hawaiians through other departments of the State government.
A. ACQUISITION AND DISPOSITION OF REVENUE PURSUANT TO SECTION 5(f) OF THE ADMISSION ACT */
In 1959, Hawaii was admitted to the union as a state. 1/ The special status of Hawaii's public lands was recognized and the intent to return those lands to Hawaii made clear in Hawaii's Admission Act. These lands, formerly the Crown and Government lands, had been ceded to the United States at annexation. In an unprecedented action, the Federal Government relinquished title to most of the ceded lands held at the time of statehood. 2/
Section 5 of the Admission Act provides the key to understanding Hawaii's ceded lands and the State's responsibilities in relation to those lands. Section 5(a) names the State as successor in title to lands and properties held by the territory. 3/ Section 5(b) then declares that:
- ...[e]xcept as provided in subsection (c) and (d) of this section, the United States grants to the State of Hawaii, effective upon its admission into the Union, the United States' title to all the public lands and other property, and to all lands defined as "available lands" by section 203 of the Hawaiian Homes Commission Act, 1920, as amended, within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union. 4/
Section 5(g) of the Act defines public lands and other public property as the "lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation...or that have been acquired in exchange for lands or properties so ceded." 5/
Specifically excepted from the section 5(b) grant were ceded lands that had been set aside for federal use pursuant to an act of Congress, executive order, presidential proclamation, or gubernatorial proclamation. 6/ Section 5(c) of the Admission Act provided that such lands should remain the property of the United States.
*/ Material for this section is taken directly from Melody MacKenzie, Sovereignty and Land: Honoring the Hawaiian Native Claim, pp. 45-53. Footnotes have been renumbered and where necessary specify earlier references. They are otherwise unchanged. Some comments received by the Commission stated that the Native Hawaiians Study Commission Draft Report did not address the ceded lands matter; this chapter, which remains unchanged from the Draft Report, fully responds to those comments.
Section 5(d) of the Act dealt with other exempted lands. It allowed the Federal Government to set aside, within five years, any ceded lands it was using under permit, license, or permission of the territory immediately prior to statehood. Once set aside those lands would also remain the property of the United States. 7/
Section 5(e) required each federal agency in Hawaii having control of land or property retained by the Federal Government under section 5(c) or 5(d) to:
- ...report to the President the facts regarding its continued need for such land or property, and if the President determined that the land or property is no longer needed by the United States, it shall be conveyed [sic] to the State of Hawaii. 8/
This provision, however, set a five-year deadline for reporting and conveying lands to the State. After August 21, 1964, five years from the date on which Hawaii formally entered the Union, title to ceded lands retained by the Federal Government would vest permanently in the United States.
The final major subsection of section 5 sets forth the State's responsibilities in connection with ceded lands. Section 5(f) requires the State to hold all ceded lands returned under Sections (b) and (e), together with the proceeds from their sale or other disposition and the income therefrom:
- ...as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible, for the making of public improvements, and for the provision of lands for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States. 9/
Return of Federally Controlled Lands=
At the time of statehood, 287,078.44 acres of Hawaii's public lands had been set aside for the Federal Government. Although section 5(c) of the Admission Act allowed the Federal Government to retain set-aside lands, section 5(e) established a mechanism for conveying some of those lands to the new State. State officials had high hopes for return of substantial portions of federally-held lands, but as Section 5(e)'s five-year deadline approached, only 595.41 acres had been returned. 10/
Furthermore, section 5(d) of the Admission Act allowed the Federal Government to set aside, within five years, lands it was using under lease, permit, or license immediately prior to statehood. Prior to statehood, the Federal Government had permits and licenses on 117,412.74 acres of land. Virtually all of these lands were retained under the Federal Government's control. 87,236.557 acres of land were set aside pursuant to section 5(d) while another 30,176.18 acres were leased to the Federal Government for 65 years at nominal cost. 11/ A 1969 report on Hawaii's public lands described the situation as follows:
- Soon after statehood it became apparent that the Defense Department had no intention of immediately giving up control of any of this land, and that this
- would quite likely be the final position of the executive branch. Faced with this prospect, Hawaii's Democratic congressional delegation pressed hard for some concessions, but was largely unsuccessful. Serious action by the United States Government was put off until the summer of 1964, when staff members from the Bureau of the Budget went to Honolulu to "negotiate" with Governor Burns regarding this land. The position of the government was uncomplicated. The bulk of the land, 87,236 acres, was definitely to be "set aside" while the remainder of the land was to be leased to the federal government for 65 years at the nominal charge of $1.00 for each lease. These leases were in fact offered as a kind of concession, for the alternative, as the federal negotiators made clear, would be the "setting aside" of this land as well. The State of Hawaii was clearly bargaining from a position of weakness, and was forced to agree to these terms. 12/
Some of Hawaii's political leaders objected to the five-year deadline set on the return of land that had been set aside for Federal Government use. 13/ They contended that Hawaii had a unique claim on these lands and property since they were originally given to the United States by the Republic and were held as a kind of "trust" for the people of Hawaii. As a result, on December 23, 1963, Congress passed Public Law 88-233, a reconveyancing act, effectively amending section 5(e) of the Admission Act. l4/ P.L. 88-233 abolished section 5(e)'s five-year deadline and extended, without limitation, the possibility of the Federal Government relinquishing title, without cost to the State, to section 5(c) and 5(d) ceded lands. However, all lands that had been set aside for national parks (approximately 227,972 acres) became the fee simple property of the Federal Government. Thus, under the provisions of P.L. 88-233 approximately 58,510 acres of land under the section 5(c) category and 87,236 acres under the section 5(d) category, totaling 145,746 acres, became eligible for return to the State of Hawaii at any time. Since 1964, however, less than 500 acres of land have been returned under the reconveyancing act's provisions. 15/
State Responsibilities in Relation to Ceded Lands
Section 5(f) of the Admission Act requires the State to hold the ceded lands, their proceeds, and income as a public trust for any one of five trust purposes:
- (a) Support of public schools and other public educational institutions;
- (b) Betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended;
- (c) Development of farm and home ownership on as widespread a basis as possible;
- (d) Making of public improvements; and
- (e) Provision of lands for public use.
Section 5(f) also provides that the use of the ceded lands, their proceeds, and income for any purposes other than those enumerated "shall constitute a breach of trust for which suit may be brought by the United States." 16/
Since statehood, the Department of Land and Natural Resources (DLNR) has
been charged with the receipt and administration of the public land trust established by this section of the Admission Act. 17/ However, a 1979 audit of the DLNR indicated that the trust has not been administered in conformance with the Admission Act. 18/ The DLNR has failed to properly dispose of the revenue and income from the public land trust. Hawaii Revised Statutes, section 171-18, the implementation legislation for section 5(f) of the Admission Act, established a public land trust fund for the receipt of funds derived from the sale, lease, or other disposition of ceded lands. 19/ Hawaii Revised Statutes section 171-19, created a separate fund, the special land and development fund, for all proceeds from the disposition of non-ceded lands (lands which the State may have acquired by condemnation, purchase or other means). 20/ This second fund was established for the maintenance and development of all public lands. These two funds were intended to serve different purposes. Monies deposited in the public land trust fund were to come from the disposition of ceded lands and were to be expended in a manner consistent with the directions of section 5(f) of the Admission Act. Monies deposited in the special land and development fund were to come from the disposition of non-ceded lands (lands not subject to the section 5(f) trust) and were to be expended to maintain and develop all public lands.
However, since statehood, DLNR has failed to make this distinction between the two funds and instead has deposited monies from the leases of all public lands into the public land trust fund and monies from the sale of all public lands into the special land ana development fund. 21/ Thus, in depositing money in the two funds, the distinction between ceded lands (lands subject to the section 5(f) trust) and non-ceded lands (lands not subject to the 5(f) trust) has been ignored; instead, monies have been deposited on the basis of a lease/sale dichotomy.
The reason given for the failure to conform to the mandate of § 5(f) of the Admission Act is even more disturbing. No inventory of public lands exists and the DLNR has been unable to distinguish between ceded and non-ceded public lands. 22/ A recent article on Hawaii's ceded lands observed that:
- In fact, between statehood and 1979, no attempt had been made by the Department to compile a comprehensive inventory of the state's public lands, much less one distinguishing between its ceded and non-ceded portions. Notwithstanding the difficulty of assembling such an inventory given the deficiencies in existing records, it is still curious, in light of the requirements of the section 5( f ) , that such an inventory does not exist at the present time. 23/
That same article concluded that the absence of an inventory and the confusion of funds have impeded the administration of the section 5(f) public trust in several ways. 24/ First, because the DLNR cannot use the ceded/non-ceded distinction in recording receipts, there is no way of knowing the accuracy of its figures for each fund or of determining which monies belong to which fund. Since most of the income from public lands is derived from ceded lands, this failure to distinguish ceded and non-ceded lands has probably worked to the disadvantage of the public land trust fund. Secondly, the wrongful deposits may have resulted in expenditures of public trust monies for the purposes of the special land and development fund and vice versa. However, it is impossible to know the extent to which the expenditures may have been wrongfully applied until a
comprehensive inventory is completed. Likewise, until an inventory is completed, the total amount of monies available for section 5(f) trust purposes cannot be determined. Finally, because section 5(f) requires the State to hold ceded lands separately in trust, the State's failure to identify ceded lands, like a private trustee's failure to identify and segregate trust assets, constitutes an independent breach of its 5(f) obligations.
B. THE OFFICE OF HAWAIIAN AFFAIRS */
Until the 1978 Constitutional Convention, little attention had been focused on section 5(f) of the Admission Act and its trust language. At the Convention, however, members of the Hawaiian Affairs Committee sought to clarify and implement the Admission Act's trust language as it relates to native Hawaiians. 25/ As a result three new sections were added to the Constitution.
The first section specified that the lands granted to the State by Section 5(b) of the Admission Act (with the exception of the Hawaiian Homes Commission Act's "available lands") were held by the State as a public trust for native Hawaiians and the general public. 26/ The second section established an Office of Hawaiian Affairs (OHA), to be governed by a nine-member board of trustees, which would hold title to all real or personal property set aside or conveyed to it as a trust for native Hawaiians and Hawaiians. 27/ A final section set forth the power of the board of trustees and made it clear that included within the property that OHA was to hold in trust would be a pro rata portion of the income and proceeds from the lands granted to the State by section 5(b) of the Admission Act. 28/ (An additional section defined the terms Hawaiian and native Hawaiian, but the Hawaii Supreme Court subsequently determined that this section had not been validly ratified in the 1978 general election. 29/)
Although OHA was established to serve all [native] Hawaiians, it is clear from the OHA amendment and the relevant committee reports 30/ that the Constitutional Convention structured OHA as the trust entity to receive and administer the share of the public land trust funds designated for the betterment of the conditions of native Hawaiians [as defined] under the Admission Act. The definition of native Hawaiian in section 5(f) of the Admission Act is tied to the definition of native Hawaiian under the Hawaiian Homes Commission Act. Benefits under the Hawaiian Homes Commission Act are limited to those with fifty percent or more aboriginal blood. 31/ Thus, although the OHA amendment names two beneficiaries of the OHA trust—native Hawaiians (those with fifty percent or more aboriginal blood) and Hawaiians (those with any quantum of aboriginal blood)--OHA is restricted to utilizing its public land trust funds solely for the benefit of its native Hawaiian [50 percent blood quantum] beneficiaries.
The Admission Act left to State law the allocation of the public land trust proceeds and income amonq the five trust purposes. 32/ While the
*/ Material for this section was taken directly from MacKenzie, Sovereignty and Land, pp. 53-56. Footnotes have been renumbered and where necessary specify earlier references, but are otherwise unchanged. Definitional clarifications to make this section consistent with the remainder of the Report have been added in brackets.
OHA constitutional provision stated that a pro rata share of the proceeds and income should be directed to OHA, the amendment did not define that pro rata share. That determination was left to the State legislature and in 1980, after lengthy discussion, OHA's pro rata share was set at twenty percent. 33/
Securing a pro rata portion of the public land trust fund for native Hawaiians [50 percent blood quantum) was a primary motive for establishing the Office of Hawaiian Affairs. Of equal importance, however, were the objectives of providing all [native] Hawaiians with the right to choose their leaders through the elective process and providing a vehicle for selfgovernment and self-determination. The high level of voter participation in the 1980 OHA elections indicates that those objectives are supported by the [native] Hawaiian people. 34/
OHA is a unique entity combining features of both a public trust and government agency. Under Hawaii law, OHA is a separate state agency, independent of the executive branch. 35/ Its independence is assured by its primary funding mechanism (the public land trust fund), its control over internal affais, its ability to acquire and manage property, its power to enter into contracts and leases, and the elective process by which the Board of Trustees is chosen. 36/ At the same time, OHA also acts as a trustee in administering its funds for the benefit of native Hawaiians and Hawaiians. OHA's statutory purposes 37/ include:
- 1. Promoting the betterment of conditions of all [native] Hawaiians;
- 2. Serving as the principal public agency in the State responsible for the performance, development and coordination of program and activities relating to [native] Hawaiians, with the exception of the Hawaiian Homes Program;
- 3. Assessing the policies and practices of other agencies impacting on native Hawaiians [50 percent blood quantum] and [native] Hawaiians;
- 4. Conducting advocacy efforts for native Hawaiians [50 percent blood quantum] and [native] Hawaiians;
- 5. Applying for, receiving, and disbursing grants and donations from all sources for native Hawaiians [50 percent blood quantun] and [native] Hawaiians; and
- 6. Serving as a receptacle for reparations from the Federal Government.
C. OTHER STATE GOVERNMENT PROGRAMS
Other existing State programs for education, health, and other needs of the native Hawaiians, as well as other state residents, are described in Part I of this Report.
STATE OF HAWAII'S RESPONSES TO NATIVE HAWAIIAN'S UNIQUE NEEDS
1/ Admission Act of March 18, 1959, 735 Stat. 4.
2/ Hawaii's Ceded Lands, 3 U.H.L.R., 101, 102 (1981) [herein cited as "Ceded Lands"].
3/ Admission Act, supra, at §5(a).
4/ Ibid. at §5(b).
5/ Ibid. at §5(g).
6/ Ibid. at §5(c).
7/ Ibid. at §5(d).
8/ Ibid. at §5(e).
9/ Ibid. at §5(f).
10/ Ibid., R. Horowitz, Public Lands Policy in Hawaii; an Historical Analysis (Legislative Reference Report No. 5, 1969), pp. 70-71.
11/ Ibid. p. 75.
13/ See discussion in Ibid., pp. 72-72.
14/ Pub. Law. No. 88-233, 77 Stat. 242 (December 23, 1963).
15/ Interview with Jack Kaguni, formerly of the Land Management Division of the Hawaii Department of Land and Natural Resources.
16/ Admission Act, supra, at § 5(f).
17/ The DLNR is charged with managing all of Hawaii's public lands. See generally, HRS Chap. 171, and HRS $26-15 and note 86, infra.
18/ A Report to the Governor and the Legislature of the State of Hawaii, submitted by the Leg slative Auditor of the State of Hawaii, Audit Report No. 79-1 (January 1979) [hereinafter cited as "Audit").
19/ HRS §171-18 provides: Public land trust. All funds derived from the sale or lease or other disposition of public lands shall be appropriated by the laws of the State; provided, that all lands ceded to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or acquired in exchange for lands so ceded, and returned to the State of Hawaii by virtue of section 5(b) of the Act of March 18, 1959 (73 Stat. 6), and all proceeds and income from the sale, lease or other disposition of lands retained by the United States under sections 5(c) and 5(d) of the Act and later conveyed to the State under section 5(e) shall be held as a public trust for the support of the public schools and other public education institutions , for the betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible, for the making of public improvements, and for the provision of lands for public use. (L 1962, c 32, pt of §2; Supp, §103A- 181).
20/ HRS §171-19 authorizes the land board to use the special land and development fund for the following purposes:
- (1) To reimburse the general fund of the State for advancements heretofore or hereafter made therefrom, which are required to be reimbursed from the proceeds of sales, leases, licenses, or permits derived from public lands;
- (2) For the incidental maintenance of all lands under the control and management of the board, including the repair of the improvements thereon, not to exceed $100,000 in any fiscal year;
- (3) To repurchase any land, including improvements thereon, in exercise by the board of any right of repurchase specifically reserved in any patent, deed, lease, or other documents or as provided by law;
- (4) For the payment of all appraisal fees; provided, that all such reimbursable fees collected by the board shall be deposited in the fund;
- (5) For the payment of publication notices as required under this chapter, provided that all or a portion of the expenditures may be charged to the purchaser or lessee of public lands or any interest therein under rules and regulations adopted by the board;
- (6) For the planning and construction of roads and trails along state rights-of-way not to exceed $5,000 in any fiscal year;
- (7) For the payment to private land developer or developers who have contracted with the board for development of public lands under the provisions of section 171-60.
21/ Audit, pp. 32-33.
22/ Ibid. at 35.
23/ Ceded Lands, pp. 142-143.
25/ The State has channeled the majority of the public land trust funds toward public education.
26/ State Constitution, Art. XII, §4: PUBLIC TRUST. The lands granted to the State of Hawaii by Sec.ion 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as "available lands" by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public. (Add Const. Con. 1978 and election Nov. 7, 1978).
27/ Ibid., §5: OFFICE OF HAWAIIAN AFFAIRS; ESTABLISHMENT OF BOARD OF TRUSTEES. There is hereby established an Office of Hawaiian Affairs. The Office of Hawaiian Affairs shall hold title to all the real and personal property now or hereafter set aside or conveyed to it which shall be held in trust for native Hawaiians and Hawaiians, as provided by law. The board members shall be Hawaiians. There shall be not less than nine members of the board of trustees; provided that each of the following Islands have one representative: Oahu, Kauai, Maui, Molokai and Hawaii. The board shall elect a chairperson from its members. (Add Const. Con. 1978 and election Nov. 7, 197b).
28/ Ibid. §6. POWER OF BOARD OF TRUSTEES. The board of trustees of the Office of Hawaiian Affairs shall exercise power as provided by law: to manage and administer the proceeds from the sale or other disposition of the lands, natural resources, minerals and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds referred to in section 4 of this article for native Hawaiians; to formulate policy relating to affairs of native Hawaiians and Hawaiians; and to exercise control over real and personal property set aside by state, federal or private sources and transferred to the board for native Hawaiians and Hawaiians. The board shall have the power to exercise control over the Office of Hawaiian Affairs through its executive officer, the administrator of the Office of Hawaiian Affairs, who shall be appointed by the board. (Add Const. Con. 1978 and election Nov. 7, 1978).
29/ The definitional section in the proposed amendment defined Hawaiian as "any descendant of the races inhabiting the Hawaiian Islands, previous to 1778" and native Hawaiians as "descendants of not less than one-half of the blood of races inhabiting the Hawaiian Islands previous to 1778 as defined by the Hawaiian Homes Commission Act, 1920, as amended or may be amended." 1978 Constitutional Convention Proposal No. 13, R.D.2, S.l. Kahalekai v. Doi, 60 Haw. 324, 590 P. 2d 543 (1979), held that this section was not validly ratified.
30/ Constitutional Convention of 1978, Committee on Hawaiian Affairs Standing Comm. Report No. 59 and Committee of the Whole.Report No. 13.
31/ See Hawaiian Hones Commission Act7_42 Stat. 108.
32/ Admission Act, supra at §5(f).
33/ Act 273, 1980 Legislative Session, codified at Haw. Rev. Stat. §10-13.5.
34/ In the 1980 election, 54,083 Hawaiians registered to vote in the OHA elections representing over 80 percent of the total estimated eligible Hawaiian voters. 78.9 percent of these registered voters cast ballots in the OHA election.
35/ Haw. Rev. Stat. §10-4.
36/ Ibid. sets forth the powers of the OHA trustees.
37/ Ibid at §10-3.