Nhsc-v1-439

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nhsc-v1-439

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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.

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