THE SENATE                           S.R. NO.              56
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            
                                                             
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                    SENATE  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   
37        WHEREAS, when his application was denied, Mr. Rice sued
38   the State, claiming that the voting exclusion was invalid under
39   the Fourteenth and Fifteenth Amendments to the United States
40   Constitution; and

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

 
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                                  S.R. NO.              56
                                                        
                                                        


 1   the existing elected trusteeship model that addresses the
 2   concerns of its constituency so that it may fulfill its trust
 3   obligations in a manner which OHA and its beneficiaries deem
 4   most prudent; now, therefore,
 5   
 6        BE IT RESOLVED by the Senate of the Twentieth Legislature
 7   of the State of Hawaii, Regular Session of 2000, that the
 8   Office of Hawaiian Affairs is requested to study possible
 9   alternative governance models to succeed the existing elected
10   trusteeship model; and
11   
12        BE IT FURTHER RESOLVED that the Office of Hawaiian
13   Affairs' study include, but not be limited to, recommendations
14   on:
15   
16        (1)  How OHA will able to remain sensitive to the needs of
17             Hawaiians and native Hawaiians;
18   
19        (2)  How to ensure that the persons leading OHA in the
20             future will be at least all or part Hawaiian;
21   
22        (3)  Whether future OHA trustees or directors are to serve
23             full time in their capacity as OHA trustees or
24             directors;
25   
26        (4)  How to ensure that representation on the OHA board is
27             fairly and equitably distributed; and
28   
29        (5)  How future trustees or directors of OHA would be more
30             directly accountable to their constituents;
31   
32   and
33   
34        BE IT FURTHER RESOLVED that OHA submit a report on its
35   findings and recommendations to the Legislature not later than
36   twenty days prior to the convening of the 2001 regular session;
37   and
38   
39        BE IT FURTHER RESOLVED that certified copies of this
40   Resolution be transmitted to the Governor of the State of
41   Hawaii, the Attorney General, and the Board of Trustees of OHA.
42 
43 
44 
45                         OFFERED BY:  ____________________________