THE SENATE                           S.C.R. NO.            113
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                    SENATE  CONCURRENT
                        RESOLUTION

  REQUESTING A STUDY OF THE EXISTING REPRESENTATION FRAMEWORK OF
    THE OFFICE OF HAWAIIAN AFFAIRS AND THE EFFECTS OF THE RICE
    V. CAYETANO DECISION.


 1        WHEREAS, in 1978, the Constitutional Convention of the
 2   State of Hawaii recommended, and in 1978, the electorate
 3   ratified, a constitutional amendment that established the
 4   Office of Hawaiian Affairs (OHA); and
 5   
 6        WHEREAS, OHA was created to be the State agency
 7   responsible for the performance, development, and coordination
 8   of programs and activities relating to the betterment of
 9   conditions of two classes of Hawaiian citizenry, native
10   Hawaiians and Hawaiians; and
11   
12        WHEREAS, to administer the programs and assets of OHA,
13   Article XII, section 5, of the State Constitution required that
14   trustees be elected to govern OHA; and
15   
16        WHEREAS, understanding the unique trust relationship
17   established pursuant to the Hawaiian Homes Commission Act of
18   1920, as amended, and the Admission Act between state and
19   federal governments and the Hawaiian people, and in recognition
20   of Hawaiians' empathy to other Hawaiians, one of the
21   qualifications for being a trustee for OHA was that the trustee
22   be Hawaiian; and
23   
24        WHEREAS, the Hawaii State Constitution also limits the
25   right to vote for the trustees of OHA to Hawaiians; and
26   
27        WHEREAS, State law defines native Hawaiians as descendants
28   of not less than one-half part of the races inhabiting the
29   Hawaiian Islands before 1778, and Hawaiians, a larger class
30   that includes native Hawaiians, as descendants of the peoples
31   inhabiting the Hawaiian Islands in 1778; and
32   
33        WHEREAS, Harold "Freddy" Rice, a citizen without the
34   requisite ancestry to be a Hawaiian under State law, applied to
35   vote in OHA trustee elections; and
36   

 
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 1        WHEREAS, when his application was denied, Mr. Rice sued
 2   the State, claiming that the voting exclusion was invalid under
 3   the Fourteenth and Fifteenth Amendments to the United States
 4   Constitution; and
 5   
 6        WHEREAS, the Federal District court granted the State
 7   summary judgment; and
 8   
 9        WHEREAS, upon appeal, the Ninth Circuit affirmed that
10   Hawaiians, being the group to whom trust obligations run and to
11   whom OHA trustees owe a duty of loyalty, should be the group to
12   decide who the trustees ought to be; and
13   
14        WHEREAS, upon further appeal, on February 23, 2000, the
15   U.S. Supreme Court ruled in Rice v. Cayetano that OHA's voting
16   scheme was a violation of the Fifteenth Amendment because OHA
17   is a state agency; and
18   
19        WHEREAS, the U.S. Supreme Court's decision was narrowly
20   written and did not call into question the constitutionality of
21   OHA or the trust, but only the particular voting mechanism by
22   which the trustees are selected; and
23   
24        WHEREAS, as such, only the issue of electing the trustees
25   of OHA was struck down, leaving the State with the question of
26   how to manage its trust obligations to the Hawaiian people; and
27   
28        WHEREAS, in hearings on the issue before the House of
29   Representatives and the Senate, constituents, and particularly
30   Hawaiians, repeatedly voiced a desire to maintain a system of
31   governance that:
32   
33        (1)  Ensures that OHA trustees be at least part Hawaiian;
34   
35        (2)  Requires OHA trustees to serve full time in their
36             capacity as trustees;
37   
38        (3)  Allows for representation on the OHA board by island;
39             and
40   
41        (4)  Provides for a mechanism by which trustees would be
42             more directly accountable to their constituents;

 
 
 
 
 
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 1   
 2   and
 3   
 4        WHEREAS, for the continuity, stability, and integrity of
 5   OHA, which is beneficial to the trust, its beneficiaries, and
 6   the State as a whole, and in light of the Rice v. Cayetano
 7   decision, the Legislature believes that OHA should be provided
 8   with an opportunity to develop a model of governance to succeed
 9   the existing elected trusteeship model that addresses the
10   concerns of its constituency so that it may fulfill its trust
11   obligations in a manner which OHA and its beneficiaries deem
12   most prudent; now, therefore,
13   
14        BE IT RESOLVED by the Senate of the Twentieth Legislature
15   of the State of Hawaii, Regular Session of 2000, the House of
16   Representatives concurring, that the Office of Hawaiian Affairs
17   is requested to study possible alternative governance models to
18   succeed the existing elected trusteeship model; and
19   
20        BE IT FURTHER RESOLVED that the Office of Hawaiian
21   Affairs' study include, but not be limited to, recommendations
22   on:
23   
24        (1)  How OHA will able to remain sensitive to the needs of
25             Hawaiians and native Hawaiians;
26   
27        (2)  How to ensure that the persons leading OHA in the
28             future will be at least all or part Hawaiian;
29   
30        (3)  Whether future OHA trustees or directors are to serve
31             full time in their capacity as OHA trustees or
32             directors;
33   
34        (4)  How to ensure that representation on the OHA board is
35             fairly and equitably distributed; and
36   
37        (5)  How future trustees or directors of OHA would be more
38             directly accountable to their constituents;
39   
40   and
41   
42        BE IT FURTHER RESOLVED that OHA submit a report on its

 
 
 
 
 
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 1   findings and recommendations to the Legislature not later than
 2   twenty days prior to the convening of the 2001 regular session;
 3   and
 4   
 5        BE IT FURTHER RESOLVED that certified copies of this
 6   Concurrent Resolution be transmitted to the Governor of the
 7   State of Hawaii, the Attorney General, and the Board of
 8   Trustees of OHA.
 9 
10 
11 
12                         OFFERED BY:  ____________________________