ADM 0005 ANNOTATIONS

Revised conveyance procedures. Act of December 23, 1963, Pub L 88-233, 77 Stat 472, provides: That (a)(i) whenever after August 21, 1964, any of the public lands and other public property as defined in section 5(g) of Public Law 86-3 (73 Stat. 4, 6), or any lands acquired by the Territory of Hawaii and its subdivisions, which are the property of the United States pursuant to section 5(c) or become the property of the United States pursuant to section 5(d) of Public Law 86-3, except the lands administered pursuant to the Act of August 25, 1916 (39 Stat. 535), as amended, and (ii) whenever any of the lands of the United States on Sand Island, including the reef lands in connection therewith, in the city and county of Honolulu, are determined to be surplus property by the Administrator of General Services (hereinafter referred to as the "Administrator") with the concurrence of the head of the department or agency exercising administration or control over such lands and property, they shall be conveyed to the State of Hawaii by the Administrator subject to the provisions of this Act.

(b) Such lands and property shall be conveyed without monetary consideration, but subject to such other terms and conditions as the Administrator may prescribe: Provided, That, as a condition precedent to the conveyance of such lands, the Administrator shall require payment by the State of Hawaii of the estimated fair market value, as determined by the Administrator, of any buildings, structures, and other improvements erected and made on such lands after they were set aside. In the event that the State of Hawaii does not agree to any payment prescribed by the Administrator, he may remove, relocate, and otherwise dispose of any such buildings, structures, and other improvements under other applicable laws, or if the Administrator determines that they cannot be removed without substantial damage to them or the lands containing them, he may dispose of them and the lands involved under other applicable laws, but, in such cases he shall pay to the State of Hawaii that portion of any proceeds from such disposal which he estimates to be equal to the value of the lands involved. Nothing in this section shall prevent the disposal by the Administrator under other applicable laws of the lands subject to conveyance to the State of Hawaii under this section if the State of Hawaii so chooses.

Sec. 2. Any lands, property, improvements, and proceeds conveyed or paid to the State of Hawaii under section 1 of this Act shall be considered a part of public trust established by section 5(f) of Public Law 86-3, and shall be subject to the terms and conditions of that trust.

Duty imposed under paragraphs (c) and (e) on federal agency to report on its continued need of land is limited to lands ceded to U.S. upon annexation and does not extend to lands acquired by U.S. thereafter. U.S. Att. Gen. Op. June 12, 1961.

Legislature may not authorize office of Hawaiian affairs to use funds derived from public lands trust to better the conditions of "Hawaiians", as defined in section 10-2, HRS, distinguishing from "native Hawaiians" as defined in this section. Att. Gen. Op. 83-2.

Subsection (f) expressly acknowledges that ceded or public trust land may be alienated; proceeds of sale or disposition must be returned to the trust and held by State for use for one or more of five purposes set forth in subsection (f). Att. Gen. Op. 95-3.

Collaboration agreement between University and corporation requiring the University to provide the corporation with environmental samples from diverse habitats may be voidable but not null and void altogether if both the corporation and the University intended that all material come from only ceded lands the State owned. The University could still perform under the contract by collecting material from the lands it owns and by securing a land license so that it could collect materials from the ceded lands the State owns. Att. Gen. Op. 03-3.

Inasmuch as the genetic material or composition of the natural resources and things connected to public lands, including ceded lands, are an integral part of those resources and things, title to biogenetic resources will still be held by State if it has not sold the land. Legal title to biogenetic resources gathered from state public lands will not still be vested in the State if third persons were allowed to remove from public lands the natural resource or thing from which the biogenetic resources were extracted or the State sold or leased title to a parcel of public land without reserving title or retaining control of the resources or things connected to the transferred land, or their biogenetic contents. Att. Gen. Op. 03-3.

Legislature must again determine which income and proceeds from the public land trust lands are to go to the office of Hawaiian affairs (OHA). Until legislature reestablishes a funding mechanism for OHA, Executive Order No. 03-03 is the only mechanism in place for transferring receipts from the use of ceded lands to OHA; receipts from the sale or transfer of biogenetic resources do not qualify for transfer under the order. Att. Gen. Op. 03-3.

The scope of the University's authority to sell or transfer biogenetic resources gathered from ceded lands depends upon how the University acquired the ceded land from which the biogenetic resource originated. The University has complete authority over the lands that are set aside or conveyed to it by the State, and would have limited authority to dispose of biogenetic resources gathered from public lands it leases from the State, or lands that it has permits to use or licenses from which to remove materials. Att. Gen. Op. 03-3.

Hawaii's Ceded Lands, Comment. 3 UH L. Rev. 101.

The Lum Court and Native Hawaiian Rights. 14 UH L. Rev. 377.

Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts. 14 UH L. Rev. 519.

State-Federal Conflict Over Naval Defensive Sea Areas in Hawai'i. 14 UH L. Rev. 595.

The Native Hawaiian Trusts Judicial Relief Act: The First Step in an Attempt to Provide Relief. 14 UH L. Rev. 889.

Courts and the Cultural Performance: Native Hawaiians' Uncertain Federal and State Law Rights to Sue. 16 UH L. Rev. 1.

The Akaka Bill: The Native Hawaiians' Race For Federal Recognition. 23 UH L. Rev. 857.

Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual. 24 UH L. Rev. 693.

Hawaii's suit in supreme court, seeking to extend duty to acquired lands, dismissed on ground that U.S. could not be sued without its consent. 373 U.S. 57.

Native Hawaiian group had no private cause of action under Act; section creates federal "right" enforceable under 42 U.S.C. §1983; enforcement of federal-state compact created by section presents federal question. 764 F.2d 623.

Plaintiff alleged that office of Hawaiian affairs trustees were not spending funds pursuant to section. 915 F.2d 469.

Native Hawaiians stated federal claim by alleging that trustees of office of Hawaiian affairs expended income derived from lands conveyed as public trust for purposes other than those permitted under Admission Act. 928 F.2d 824.

Native Hawaiians' claim under 42 U.S.C. §1983 that land parcel was subject to public trust not actionable where private landowners did not act under color of state law. 939 F.2d 702.

OHA trustees entitled to qualified immunity from 42 U.S.C. §1983 claim that trustees violated Admission Act by improperly using §5(f) funds for referendum to define "native Hawaiians". 3 F.3d 1220.

Plaintiff had standing where plaintiff was among class of beneficiaries whose welfare was the object of the action at issue. 3 F.3d 1220.

Act does not impose upon the United States a general fiduciary obligation to bring suit against the State for any particular alleged breach of trust, only a right to bring such action. 45 F.3d 333.

Plaintiffs contended, inter alia, that phrase imposed a duty upon United States to sue State if State breached the trust, and that state defendants had violated and would continue to violate this section by not giving priority to the betterment of native Hawaiians by funding homesteads for them; judgment of district court affirmed, where court denied plaintiffs' motion for summary judgment and dismissed plaintiffs' complaint against all defendants. 183 F.3d 945.

Under submerged lands act, Hawaii's boundaries extend one marine league. 235 F. Supp. 990.

Where plaintiffs contended that Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, breached fiduciary duty between State and its citizens, and brought suit under 42 U.S.C. §1983 to enforce subsection (f), on motion for preliminary injunction, plaintiffs not likely to prevail on their §1983 action regarding alleged violation of Admission Act. 941 F. Supp. 1529.

Plaintiffs' suit barred by Eleventh Amendment and prior Ninth Circuit authority, where, inter alia, plaintiffs asked court to compel state defendants to spend §5(f) funds on only one (Hawaiian home lands) of the five purposes provided for in the Admission Act, in order to compensate for past breaches of trust. 996 F. Supp. 989.

Section 4 of Admission Act and subsection (f) create rights enforceable under 42 U.S.C. §1983; plaintiffs had standing to enforce such rights. 996 F. Supp. 989.

New lava lands created by volcanic eruption were within "public lands" the title to which was granted by the federal government to the State upon admission to statehood. 58 H. 106, 566 P.2d 725.

Claim brought under 42 U.S.C. §1983 that exchange of ceded lands by State constituted a breach of trust under subsection (f) was barred by statute of limitations and res judicata. 73 H. 578, 837 P.2d 1247.