ARTICLE XII

 

HAWAIIAN AFFAIRS

 

Note

 

  This article was redesignated from "Article XI Hawaiian Home Lands" to "Article XII Hawaiian Affairs" by Const Con 1978 and election Nov 7, 1978.  The former Article XII now appears as Article XIII.

 

Law Journals and Reviews

 

  The Constitutionality of the Office of Hawaiian Affairs.  7 UH L. Rev. 63.

  The Office of Hawaiian Affairs and the Issue of Sovereign Immunity.  7 UH L. Rev. 95.

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

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

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

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

 

Case Notes

 

  Appellants who claimed that this article and the statutes implementing it violated the equal protection clause of the Fourteenth Amendment because it restricted benefits to only those classified as "native Hawaiians" or "Hawaiians", lacked standing.  342 F.3d 934.

  Plaintiff challenging constitutionality of this article insofar as it created Hawaiian homes commission and office of Hawaiian affairs and established native Hawaiian gathering rights, lacked standing, where, inter alia, as to OHA's programs, plaintiff had not suffered injury-in-fact.  188 F. Supp. 2d 1219.

  Where none of the six factors set forth in Trustees of the Office of Hawaiian Affairs v. Yamasaki were present in the case, the question of the legislature making sufficient funds available to the department of Hawaiian home lands was justiciable and therefore not a political question.  124 H. 437 (App.), 246 P.3d 369.

 

HAWAIIAN HOMES COMMISSION ACT

 

     Section 1.  Anything in this constitution to the contrary notwithstanding, the Hawaiian Homes Commission Act, 1920, enacted by the Congress, as the same has been or may be amended prior to the admission of the State, is hereby adopted as a law of the State, subject to amendment or repeal by the legislature; provided that if and to the extent that the United States shall so require, such law shall be subject to amendment or repeal only with the consent of the United States and in no other manner; provided further that if the United States shall have been provided or shall provide that particular provisions or types of provisions of such Act may be amended in the manner required for ordinary state legislation, such provisions or types of provisions may be so amended.  The proceeds and income from Hawaiian home lands shall be used only in accordance with the terms and spirit of such Act.  The legislature shall make sufficient sums available for the following purposes:  (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law.

     Thirty percent of the state receipts derived from the leasing of cultivated sugarcane lands under any provision of law or from water licenses shall be transferred to the native Hawaiian rehabilitation fund, section 213 of the Hawaiian Homes Commission Act, 1920, for the purposes enumerated in that section.  Thirty percent of the state receipts derived from the leasing of lands cultivated as sugarcane lands on the effective date of this section shall continue to be so transferred to the native Hawaiian rehabilitation fund whenever such lands are sold, developed, leased, utilized, transferred, set aside or otherwise disposed of for purposes other than the cultivation of sugarcane.  There shall be no ceiling established for the aggregate amount transferred into the native Hawaiian rehabilitation fund. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Note

 

  Reference to "effective date of this section" in last paragraph of section probably refers to effective date of section as amended November 7, 1978.

 

Attorney General Opinions

 

  This and next section may be deleted without consent of Congress.  Att. Gen. Op. 68-18.

  Allocating royalties from geothermal developments on department of Hawaiian home lands (DHHL) lands to the board of land and natural resources or the counties violated §4 of the Admission Act and article XII, §3 and this section of the Hawaii constitution.  It is clear from the Admission Act and the Hawaii constitution that the State has an obligation to manage such resources on Hawaiian home lands for the benefit of native Hawaiians pursuant to the Hawaiian Homes Commission Act (HHCA).  Allocation of royalties from geothermal developments on DHHL lands to entities other than DHHL would be violations of both the Admission Act and the Hawaii constitution because those proceeds would not be available to DHHL to carry out the terms and conditions of the HHCA.  Att. Gen. Op. 14-1.

 

Law Journals and Reviews

 

  Native Hawaiian Homestead Water Reservation Rights:  Providing Good Living Conditions for Native Hawaiian Homesteaders.  25 UH L. Rev. 85.

  A Modest Proposal for Determining Class Member Damages:  Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action.  34 UH L. Rev. 1 (2012).

 

Case Notes

 

  Plaintiff challenging article XII insofar as it implemented Hawaiian Homes Commission Act lacked standing, where court was unable to redress plaintiff's injury as alleged in any meaningful way, in the absence of the United States as a party to the action.  188 F. Supp. 2d 1219.

  Hawaiian Homes Commission Act is part of Hawai'i constitution and does not constitute federal law; thus, federal preemption principles did not apply to case where there was no relevant federal law at issue and conflict between Act and state statute was matter of state constitutional law.  87 H. 91, 952 P.2d 379.

  The 1978 constitutional convention history provided judicially discoverable and manageable standards, as well as initial policy determinations, as to what would constitute "sufficient sums" for department of Hawaiian home lands' administrative and operating expenses only; therefore, judicial determination of "sufficient sums" as to that purpose under this section was not barred as a nonjusticiable political question.  127 H. 185, 277 P.3d 279 (2012).

  This section and the 1978 constitutional convention history do not shed light on what would constitute "sufficient sums" for (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; and (3) rehabilitation projects; therefore, the political question doctrine barred judicial determination of what would constitute "sufficient sums" for those purposes under this section.  127 H. 185, 277 P.3d 279 (2012).

  There was no clear waiver of sovereign immunity based on plaintiffs' claims regarding defendant State and state officials' violation of plaintiffs' constitutional duties under this section; there exists no authority entitling a prevailing party to attorneys' fees under the private attorney general doctrine where sovereign immunity did not preclude an underlying declaratory and/or injunctive relief claim that the State violated the Hawaii constitution.  130 H. 162, 307 P.3d 142 (2013).

  Where none of the six factors set forth in Trustees of the Office of Hawaiian Affairs v. Yamasaki were present in the case, the question of the legislature making sufficient funds available to the department of Hawaiian home lands was justiciable and therefore not a political question.  124 H. 437 (App.), 246 P.3d 369 (2011).