Report Title:

OHA; Interim Revenues and Administration

 

Description:

Provides for interim revenues for fiscal year 2002-2003 of $17,000,000. Provides definition of public land trust. Requires OHA to submit an annual report to the Legislature. (SD1)

 

THE SENATE

S.B. NO.

2476

TWENTY-FIRST LEGISLATURE, 2002

S.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO THE OFFICE OF HAWAIIAN AFFAIRS.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the injustice and wrongfulness of historical events surrounding Hawaii remain deeply felt by native Hawaiians, the original sovereign people of the State, as well as other members of the public. The legislature recognizes that there has always been broad support among all the people of Hawaii that the State should effect a lasting reconciliation with native Hawaiians which gives proper acknowledgment to past events, reaffirms the State's special trust relationship with the native Hawaiian people, and moves Hawaii forward on these issues.

The legislature further finds that throughout its history, the people of Hawaii have, through public acts of legislation, constitutional enactment, and other means, made substantial progress toward permanent reconciliation and fulfillment of its trust relationship to native Hawaiians. The constitutional creation of the office of Hawaiian affairs and the allocation of funding out of the public land trust established by section 5(f) of the Admission Act are prime examples of achievement in this area. A purpose of this Act is to renew the momentum created by these public acts, through executive and legislative action in conjunction with the people of Hawaii, toward a comprehensive, just, and lasting resolution.

The legislature finds that there are many complex issues and substantial ambiguities requiring resolution which surround the management and disposition of public trust lands and the proceeds and income therefrom relating to the State's trust obligations to native Hawaiians. These existing or foreseeable controversies notwithstanding, the legislature finds that the recent result of Office of Hawaiian Affairs v. State of Hawaii, 96 Haw. 388, 31 P.3d 901 (2001), compels it to give immediate effect to the purposes of article XII, sections 4 and 6, of the state constitution, so that it may continue to implement the State's trust relationship to native Hawaiians through the office of Hawaiian affairs. The legislature further recognizes and affirms the reasoning of the Hawaii supreme court that the State's obligation to native Hawaiians is firmly established in the state constitution, and that it is incumbent upon the legislature to enact legislation that gives effect to the right of native Hawaiians to benefit from the ceded lands trust.

The legislature finds that it remains in the public interest that existing ambiguities related to this matter be clarified and controversies resolved, and that legislative intent relating to the State's formal trust obligations to native Hawaiians be reaffirmed. The legislature further considers it imperative that the office of Hawaiian affairs be immediately assured an adequate level of funding to accomplish its mission under the law. The legislature has previously addressed the issue of providing interim revenues to the office of Hawaiian affairs on a limited basis in Act 329, Session Laws of Hawaii 1997.

The legislature finds that it is in the public interest that continued efforts to resolve the relevant issues, including reinstating a funding mechanism for the office of Hawaiian affairs clearly within and under the control of the executive and legislative branches of the state government, are essentially political questions with the spirit of the supreme court of Hawaii's opinion in Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 446 (1987) and Office of Hawaiian Affairs v. State of Hawaii, 96 Haw. 388, 31 P.3d 901 (2001).

The purpose of this Act is to address the findings above and implement the public interests stated within by providing interim measures to ensure that adequate income and proceeds from a portion of the public trust continue to be available to the office of Hawaiian affairs for the betterment of native Hawaiians, taking such other actions as are necessary to effectuate fully the legislature's intent.

SECTION 2. Chapter 10, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§10- Annual report; use of land trust proceeds. The office of Hawaiian affairs shall submit an annual report to the governor and the legislature not less than thirty days before the convening of each regular session. The report shall describe the use of the public land trust proceeds for the betterment of the conditions of the native Hawaiians and provide detailed information, including, but not limited to, the following:

(1) Statements of statewide objectives and program objectives;

(2) Program plans that describe the programs that implement the statewide objectives and program objectives;

(3) Program performance reports that assess the effectiveness in attaining the objectives;

(4) Program costs; and

(5) Long-range financial plans."

SECTION 3. Section 10-2, Hawaii Revised Statutes, is amended to read as follows:

"§10-2 Definitions. In this chapter, if not inconsistent with the context:

"Administrator" means the administrator of the office of Hawaiian affairs[;].

"Beneficiary of the public trust entrusted upon the office" means native Hawaiians and Hawaiians[;].

"Board" means the board of trustees[;].

"Hawaiian" means any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii[;].

"Native Hawaiian" means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii[;].

"Office" means the office of Hawaiian affairs.

"Public land trust" means those lands:

(1) Which were 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 which were conveyed to the State of Hawaii by virtue of section 5(b) of the Act of March 18, 1959 (73 Stat. 4, the Admission Act), (excluding therefrom lands and all proceeds and income from the sale, lease, or disposition of lands defined as "available lands" by section 203 of the Hawaiian Homes Commission Act, 1920, as amended);

(2) Retained by the United States under sections 5(c) and 5(d) of the Act of March 18, 1959, and later conveyed to the State under section 5(e) of the Act of March 18, 1959; and

(3) Which were ceded to and retained by the United States under section 5(c) and 5(d) of the Act of March 18, 1959 and later conveyed to the State pursuant to the Act of December 23, 1963 (P.L. 88-233, 77 Stat. 472)."

SECTION 4. Section 10-3, Hawaii Revised Statutes, is amended to read as follows:

"§10-3 Purpose of the office. The purposes of the office of Hawaiian affairs include:

(1) The betterment of conditions of native Hawaiians. A [pro rata] portion of all funds derived from the public land trust shall be funded in an amount to be determined by the legislature for this purpose, and shall be held and used solely as a public trust for the betterment of the conditions of native Hawaiians. For the purpose of this chapter, the public land trust shall be all proceeds and income from the sale, lease, or other disposition of 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 conveyed to the State of Hawaii by virtue of section 5(b) of the Act of March 18, 1959 (73 Stat. 4, the Admissions Act), (excluding therefrom lands and all proceeds and income from the sale, lease, or disposition of lands defined as "available lands" by section 203 of the Hawaiian Homes Commission Act, 1920, as amended), 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 of March 18, 1959, later conveyed to the State under section 5(e);

(2) The betterment of conditions of Hawaiians;

(3) Serving as the principal public agency in this State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians; except that the Hawaiian Homes Commission Act, 1920, as amended, shall be administered by the Hawaiian homes commission;

(4) Assessing the policies and practices of other agencies impacting on native Hawaiians and Hawaiians, and conducting advocacy efforts for native Hawaiians and Hawaiians;

(5) Applying for, receiving, and disbursing, grants and donations from all sources for native Hawaiian and Hawaiian programs and services; and

(6) Serving as a receptacle for reparations."

SECTION 5. Section 10-5, Hawaii Revised Statutes, is amended to read as follows:

"§10-5 Board of trustees; powers and duties. The board shall have the power in accordance with law to:

(1) Manage, invest, and administer the proceeds from the sale or other disposition of lands, natural resources, minerals, and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that [pro rata] portion of the trust referred to in section 10-3[, of this chapter];

(2) Exercise control over real and personal property set aside to the office by the State of Hawaii, the United States of America, or any private sources, and transferred to the office for native Hawaiians and Hawaiians;

(3) Collect, receive, deposit, withdraw, and invest money and property on behalf of the office;

(4) Formulate policy relating to the affairs of native Hawaiians and Hawaiians, provided that such policy shall not diminish or limit the benefits of native Hawaiians under article XII, section 4, of the state Constitution;

(5) Otherwise act as a trustee as provided by law;

(6) Delegate to the administrator, its officers and employees such powers and duties as may be proper for the performance of the powers and duties vested in the board;

(7) Provide grants to public or private agencies for pilot projects, demonstrations, or both, where such projects or demonstrations fulfill criteria established by the board;

(8) Make available technical and financial assistance and advisory services to any agency or private organization for native Hawaiian and Hawaiian programs, and for other functions pertinent to the purposes of the office of Hawaiian affairs. Financial assistance may be rendered through contractual arrangements as may be agreed upon by the board and any such agency or organization; and

(9) Adopt and use a common seal by which all official acts shall be authenticated."

SECTION 6. Section 10-13.3, Hawaii Revised Statutes, is amended to read as follows:

"[[]§10-13.3[]] Interim revenue. Notwithstanding the definition of revenue contained in this chapter and the provisions of section 10-13.5, and notwithstanding any claimed invalidity of Act 304, Session Laws of Hawaii 1990, the income and proceeds from the pro rata portion of the public land trust under article XII, section 6 of the state constitution for expenditure by the office of Hawaiian affairs for the betterment of the conditions of native Hawaiians for [each of] fiscal year [1997-1998 and fiscal year 1998-1999 shall be $15,100,000.] 2002-2003 shall be $17,000,000."

SECTION 7. Section 10-13.5, Hawaii Revised Statutes, is amended to read as follows:

"§10-13.5 Use of public land trust proceeds. Twenty per cent of all funds derived from the public land trust[, described in section 10-3,] shall be expended by the office[,as defined in section 10-2,] for the purposes of this chapter."

SECTION 8. There is appropriated out of the general revenues of the State of Hawaii the sum of $17,000,000, or so much thereof as may be necessary for fiscal year 2002-2003, for the betterment of the conditions of native Hawaiians as provided for in this Act.

SECTION 9. The sum appropriated shall be expended by the office of Hawaiian affairs for the purposes of this Act.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect on July 1, 2002.