Transfers responsibilities for the Hawaiian home lands and OHA to a private trust, the Native Hawaiian Trust.

A BILL FOR AN ACT

SECTION 1. No Hawaiians, no Hawai`i: this popular slogan sums up the truism that Hawai`i is more than a beautiful spot on the planet. Hawai`i is a state of mind, an attitude of aloha, and a culture that reaches out to embrace differences. All of the other ethnic groups that have traveled here recognize the debt owed to the Hawaiian people, who set the tone for the respectful spirit that pervades interactions among the varied ethnic groups in the State, and the many intermarriages that reflect the ultimate expression of the Aloha Spirit.

The Hawaiians paid a high price as a people for the coming of other ethnic groups to their island, however. Disease decimated their people, their system of land tenure was removed, and their government was overthrown in an act for which the United States government has apologized. In an effort to assist the Hawaiians as a group, programs were enacted to help them out. One of these was the Hawaiian Homes Commission Act, 1920, which was enacted by Congress to provide Hawaiians with homes or farms at a nominal lease. Another was the office of Hawaiian affairs, which was adopted by the voters of Hawai`i after the constitutional convention of 1978 for the betterment of Hawaiians and native Hawaiians. It was understood by the people of Hawai`i that these programs were implemented to put the Hawaiian people back on an equal footing as a group, not to elevate them above the rest of the population.

These well-deserved entitlements have come under attack in recent years. The United States Supreme Court, in the case of Rice v. Cayetano, opened voting for the office of Hawaiian affairs to all voters, not just Hawaiians. Close on the heels of Rice, the federal court decision in Arakaki v. State opened the position of office of Hawaiian affairs' trustees to candidates from all ethnic backgrounds. The most recent federal case, Barrett v. State, seeks to destroy the Hawaiian home lands program, prohibit the office of Hawaiian affairs, and ban the traditional and customary rights of Hawaiians exercised for subsistence, cultural, and religious purposes. These cases attack Hawaiians and Hawaiian assets because they are being held by the State.

The legislature cannot alter the filing of these cases in federal court, but it can recognize that a threat to the Hawaiian people exists as long as Hawaiian assets are held in governmental hands. The legislature finds that the Hawaiian people are capable of handling their trust assets in a responsible way and that the State no longer needs to serve as an intermediary between Hawaiians and their assets. A continued dependence by Hawaiian people on others prevents the development of their full potential as a people. The wardship relationship with the State must be replaced by a relationship based on self-sufficiency and control over their own assets.

The purpose of this Act is for the State to divest itself of responsibilities for the Hawaiian home lands and the office of Hawaiian affairs and place these responsibilities directly in the hands of their Hawaiian beneficiaries.

PART I

SECTION 2. The Constitution of the State of Hawai`i is amended by adding two new sections to be appropriately designated and to read as follows:

"NATIVE HAWAIIAN TRUST; AUTHORIZATION

Section . The State hereby authorizes the transfer by the State of its trust responsibilities relating to the Hawaiian Homes Commission Act and the office of Hawaiian affairs to a private non-profit corporation, the Native Hawaiian Trust, created as provided by law. The Native Hawaiian Trust shall assume the rights and responsibilities of the former office of Hawaiian affairs and the former department of Hawaiian home lands except as provided by law, as well as any other rights and responsibilities that may be transferred to it by the State by law.

The Native Hawaiian Trust shall be a corporate entity and shall not be a sovereign governmental entity. It shall have only the rights and responsibilities as established by law, including any appurtenant authority associated with those rights and responsibilities.

The beneficiaries of this trust shall be persons of Hawaiian blood. "Hawaiian blood" means a person descended by blood from any of the races inhabiting the Hawaiian Island prior to 1778. Unless changed by the Native Hawaiian Trust board to exclude persons with a blood quantum below a minimum level not to exceed one-half Hawaiian as provided by law, all persons of Hawaiian blood shall be the beneficiaries of the Native Hawaiian Trust.

Section . The responsibilities accepted by the State under the Hawaiian Homes Commission Act, 1920, pursuant to compact with the United States of America, as provided by state law and upon the consent of the United States, are transferred to the Native Hawaiian Trust."

SECTION 3. Article XII, section 1, of the Constitution of the State of Hawai`i is amended to read as follows:

"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 be 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.] the State's responsibilities under the Hawaiian Homes Commission Act, 1920, shall be transferred to the Native Hawaiian Trust for administration and implementation, as provided by law."

SECTION 4. Article 12, section 4, of the Constitution of the State of Hawai`i is amended to read as follows:

"PUBLIC TRUST

Section 4. The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as "available lands" by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held [by the State as a public trust for native Hawaiians and the general public.] as follows: eighty percent shall be held as a public trust for the general public, and twenty percent shall be transferred to the Native Hawaiian Trust in fulfillment of the State's obligation for the betterment of native Hawaiians under section 5(f) of the Admission Act."

SECTION 5. Article 12, section 2, of the Constitution of the State of Hawai`i is repealed.

["ACCEPTANCE OF COMPACT

Section 2. The State and its people do hereby accept, as a compact with the United States, or as conditions or trust provisions imposed by the United States, relating to the management and disposition of the Hawaiian home lands, the requirement that section 1 hereof be included in this constitution, in whole or in part, it being intended that the Act or acts of the Congress pertaining thereto shall be definitive of the extent and nature of such compact, conditions or trust provisions, as the case may be. The State and its people do further agree and declare that the spirit of the Hawaiian Homes Commission Act looking to the continuance of the Hawaiian homes projects for the further rehabilitation of the Hawaiian race shall be faithfully carried out."]

SECTION 6. Article 12, section 3, of the Constitution of the State of Hawai`i is repealed.

["COMPACT ADOPTION; PROCEDURES AFTER ADOPTION

Section 3. As a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the constitution of this State, as provided in section 7, subsection (b), of the Admission Act, subject to amendment or repeal only with the consent of the United States, and in no other manner; provided that (1) sections 202, 213, 219, 220, 222, 224 and 225 and other provisions relating to administration, and paragraph (2) of section 204, sections 206 and 2l2 and other provisions relating to the powers and duties of officers other than those charged with the administration of such Act, may be amended in the constitution, or in the manner required for state legislation, but the Hawaiian home-loan fund, the Hawaiian home-operating fund and the Hawaiian home-development fund shall not be reduced or impaired by any such amendment, whether made in the constitution or in the manner required for state legislation, and the encumbrances authorized to be placed on Hawaiian home lands by officers other than those charged with the administration of such Act, shall not be increased, except with the consent of the United States; (2) that any amendment to increase the benefits to lessees of Hawaiian home lands may be made in the constitution, or in the manner required for state legislation, but the qualifications of lessees shall not be changed except with the consent of the United States; and (3) that all proceeds and income from the "available lands," as defined by such Act, shall be used only in carrying out the provisions of such Act."]

SECTION 7. Article XII, sections 5 and 6, of the Constitution of the State of Hawai`i are repealed.

["OFFICE OF HAWAIIAN AFFAIRS; ESTABLISHMENT OF

Section 5. There is hereby established an Office of Hawaiian Affairs. The Office of Hawaiian Affairs shall hold title to all the real and personal property now or hereafter set aside or conveyed to it which shall be held in trust for native Hawaiians and Hawaiians. There shall be a board of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians, as provided by law. The board members shall be Hawaiians. There shall be not less than nine members of the board of trustees; provided that each of the following Islands have one representative: Oahu, Kauai, Maui, Molokai and Hawaii. The board shall select a chairperson from its members.

Section 6. The board of trustees of the Office of Hawaiian Affairs shall exercise power as provided by law: to manage and administer the proceeds from the sale or other disposition of the 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 4 of this article for native Hawaiians; to formulate policy relating to affairs of native Hawaiians and Hawaiians; and to exercise control over real and personal property set aside by state, federal or private sources and transferred to the board for native Hawaiians and Hawaiians. The board shall have the power to exercise control over the Office of Hawaiian Affairs through its executive officer, the administrator of the Office of Hawaiian Affairs, who shall be appointed by the board."]

SECTION 8. Article XVIII, section 8, of the Constitution of the State of Hawai`i is repealed.

["EFFECTIVE DATE FOR OFFICE OF HAWAIIAN AFFAIRS

Section 8. The legislature shall provide for the implementation of the amendments to Article XII in Sections 5 and 6 on or before the first general election following ratification of the amendments to Article XII in Sections 5 and 6."]

SECTION 9. The Hawaiian Homes Commission Act, 1920, is hereby repealed.

PART II

SECTION 10. The office of Hawaiian affairs shall invite Hawaiian organizations to form a working group to develop a private charitable trust, the Native Hawaiian Trust, to take over the responsibilities defined in this Act. The first meeting of the working group shall be open to the public and shall invite representatives from the State Council of Hawaiian Homestead Associations, the Association of Hawaiian Civic Clubs, Ka Lahui Hawai'i, and 'Ilio'ulaokalani. Representatives shall be invited from the Hawaiian community on all islands. The working group shall select its own chairperson.

After the initial meeting convened by the office of Hawaiian affairs, the working group shall plan its own agenda and meetings. The working group may close its meetings to the general public. The office of Hawaiian affairs shall be allowed to participate in the working group and may extend meeting room space and clerical staff assistance to aid the working group upon request by the working group.

Upon finalization of the plan for the Native Hawaiian Trust, the working group shall present the trust structure, including officers and board members, to the Hawaiian community for input and comments. In order to pass on its trust responsibilities in an appropriate manner to the trust, the State must find that a preponderance of the comments and input are favorable to the creation of the trust.

SECTION 11. There is appropriated out of the general revenues of the State of Hawaii the sum of $10,000, or so much thereof as may be necessary for fiscal year 2001-2002, for the initial convening of the working group by the office of Hawaiian affairs. The funds appropriated shall include moneys for publicity and for travel expenses for representatives of all islands.

SECTION 12. The sum appropriated shall be expended by the office of Hawaiian affairs for the purposes of this Act.

PART III

SECTION 13. On approval of this Act, all funds, accounts, debts owed and owing, and financial responsibilities of the office of Hawaiian affairs and the Hawaiian homes commission shall be transferred to the Native Hawaiian Trust.

SECTION 14. The question to be printed on the ballot shall be as follows:

SECTION 15. Upon this Act taking effect as provided in section 17, the legislative reference bureau shall prepare proposed legislation for submission at the next regular session of the legislature to make the appropriate conforming amendments to the Hawaii Revised Statutes.

SECTION 16. Constitutional material to be repealed is bracketed and stricken. New constitutional material is underscored.

SECTION 17. Sections 11, 12, and 15 of this Act shall take effect on July 1, 2001. The remainder of this Act shall take effect: