Difference between revisions of "Template:Nhsc-v1-439"

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Line 12: Line 12:
 
constitutes an independent breach of
 
constitutes an independent breach of
 
its 5(f) obligations.
 
its 5(f) obligations.
B. THE OFFICE OF HAWAIIAN AFFAIRS */
+
 
 +
===B. THE OFFICE OF HAWAIIAN AFFAIRS <u>{{*}}</u>/===
 
Until the 1978 Constitutional
 
Until the 1978 Constitutional
 
Convention, little attention had been
 
Convention, little attention had been
Line 21: Line 22:
 
to clarify and implement the Admission
 
to clarify and implement the Admission
 
Act's trust language as it relates to
 
Act's trust language as it relates to
native Hawaiians. 25/ As a result
+
native Hawaiians. <u>25</u>/ As a result
 
three new sections were added to the
 
three new sections were added to the
 
Constitution.
 
Constitution.
 +
 
The first section specified that
 
The first section specified that
 
the lands granted to the State by
 
the lands granted to the State by
Line 31: Line 33:
 
lands") were held by the State as a
 
lands") were held by the State as a
 
public trust for native Hawaiians and
 
public trust for native Hawaiians and
the general public. 26/ The second
+
the general public. <u>26</u>/ The second
 
section established an Office of
 
section established an Office of
 
Hawaiian Affairs (OHA), to be
 
Hawaiian Affairs (OHA), to be
_V 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.
 
 
governed by a nine-member board of
 
governed by a nine-member board of
 
trustees, which would hold title to
 
trustees, which would hold title to
 
all real or personal property set
 
all real or personal property set
 
aside or conveyed to it as a trust for
 
aside or conveyed to it as a trust for
native Hawaiians and Hawaiians. 27/ A
+
native Hawaiians and Hawaiians. <u>27</u>/ A
 
final section set forth the power of
 
final section set forth the power of
 
the board of trustees and made it
 
the board of trustees and made it
 
clear that included within the
 
clear that included within the
 
property that OHA was to hold in trust
 
property that OHA was to hold in trust
would be a pro rata portion of the
+
would be a <u>pro rata</u> portion of the
 
income and proceeds from the lands
 
income and proceeds from the lands
 
granted to the State by section 5(b)
 
granted to the State by section 5(b)
of the Admission Act. 28/ (An
+
of the Admission Act. <u>28</u>/ (An
 
additional section defined the terms
 
additional section defined the terms
 
Hawaiian and native Hawaiian, but the
 
Hawaiian and native Hawaiian, but the
Line 62: Line 54:
 
determined that this section had not
 
determined that this section had not
 
been validly ratified in the 1978
 
been validly ratified in the 1978
general election. 29/)
+
general election. <u>29</u>/)
 +
 
 
Although OHA was established to
 
Although OHA was established to
 
serve all [native] Hawaiians, it is
 
serve all [native] Hawaiians, it is
 
clear from the OHA amendment and the
 
clear from the OHA amendment and the
relevant committee reports 30/ that
+
relevant committee reports <u>30</u>/ that
 
the Constitutional Convention
 
the Constitutional Convention
 
structured OHA as the trust entity to
 
structured OHA as the trust entity to
Line 81: Line 74:
 
Commission Act are limited to those
 
Commission Act are limited to those
 
with fifty percent or more aboriginal
 
with fifty percent or more aboriginal
blood. 31/ Thus, although the OHA
+
blood. <u>31</u>/ Thus, although the OHA
 
amendment names two beneficiaries of
 
amendment names two beneficiaries of
 
the OHA trust—native Hawaiians (those
 
the OHA trust—native Hawaiians (those
 
with fifty percent or more aboriginal
 
with fifty percent or more aboriginal
 
blood) and Hawaiians (those with any
 
blood) and Hawaiians (those with any
quantum of aboriginal blood)--OHA is ,
+
quantum of aboriginal blood)--OHA is
 
restricted to utilizing its public
 
restricted to utilizing its public
 
land trust funds solely for the
 
land trust funds solely for the
 
benefit of its native Hawaiian [50
 
benefit of its native Hawaiian [50
 
percent blood quantum] beneficiaries.
 
percent blood quantum] beneficiaries.
 +
 
The Admission Act left to State law
 
The Admission Act left to State law
 
the allocation of the public land
 
the allocation of the public land
 
trust proceeds and income amonq the
 
trust proceeds and income amonq the
five trust purposes. 32/ While the
+
five trust purposes. <u>32</u>/ While the
439
+
{{break}}
 +
<u>*</u>/ Material for this section was
 +
taken directly from MacKenzie,
 +
<u>Sovereignty and Land</u>, 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.
 +
{{p|439}}

Latest revision as of 14:36, 21 June 2006

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.

-p439-