Report Title:

Hawaiian Homes; Self Governance; Succession

 

Description:

Exempts the descendants of native Hawaiian individuals who received a homestead lease pursuant to the Acts of 1934 and 1952 referenced in section 209(a) from the blood requirements to succeed to homestead lease in the same manner that non-native Hawaiians are currently exempt. Authorizes community-based self determination on Hawaiian home lands. (SD1)

 

THE SENATE

S.B. NO.

1102

TWENTY-FIRST LEGISLATURE, 2001

S.D. 1

STATE OF HAWAII

  

 

A BILL FOR AN ACT

 

RELATING TO THE HAWAIIAN HOMES COMMISSION ACT, 1920, AS AMENDED.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the Congress of the United States and the State of Hawaii support the desire of the Native Hawaiian people for greater self-governance and self-determination. Toward this end, the legislature further finds that:

(1) The United States Constitution vests Congress with broad authority to address the condition of the indigenous, native people of the United States, including the native people of the State of Hawaii;

(2) Public Law 106-569, subtitle, the "Hawaiian Homelands Homeownership Act of 2000" provides that the United States recognized and reaffirmed that:

(A) Native Hawaiians have a cultural, historic, and land-based link to the indigenous people who exercised sovereignty over the Hawaiian Islands, and that group has never relinquished its claims to sovereignty or its sovereign lands;

(B) Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to whom the United States has established a trust relationship;

(C) Congress has also delegated broad authority to administer a portion of the Federal trust responsibility to the State of Hawaii;

(D) The political status of Native Hawaiians is comparable to that of American Indians and Alaska Natives; and

(E) The aboriginal, indigenous people of the United States have:

(i) A continuing right to autonomy in their internal affairs; and

(ii) An ongoing right of self-determination and self-governance that has never been extinguished;

(3) The federal government indicated in its October 23, 2000 report, From Mauka to Makai: The River of Justice Must Flow Freely, Report on the Reconciliation Process Between the Federal Government and Native Hawaiians, that "the Native Hawaiian people continue to maintain a distinct community and certain governmental structures and they desire to increase their control over their own affairs and institutions. As a matter of justice and equity, this Report recommends that the Native Hawaiian people should have self-determination over their own affairs within the framework of Federal law, as do Native American tribes";

(4) In the area of housing, Public Law 106-159, further expresses the United States recognition and reaffirmation of "the political relationship with the Native Hawaiian people through:

(A) The enactment of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et seq.) which set aside approximately 200,000 acres of public lands that became known as Hawaiian Home Lands in the Territory of Hawaii that had been ceded to the United States for homesteading by Native Hawaiians in order to rehabilitate a landless and dying people;

(B) The enactment of the Act entitled "An Act to provide for the admission of the State of Hawaii into the Union", approved on March 18, 1959 (73 Stat. 4)

(i) By ceding to the State of Hawaii title to the public lands formerly held by the United States, and mandating that those lands be held in public trust, for the betterment of the conditions of Native Hawaiians, as that term is defined in section 201 of the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et. seq.); and

(ii) By transferring the United States responsibility for the administration of Hawaiian Home Lands to the State of Hawaii, but retaining authority to enforce the trust, including the exclusive right of the United States to consent to any actions affecting the lands which compromise the corpus of the trust and any amendments to the Hawaiian Homes Commission Act, 1920 (42 Stat. 108 et. seq.), enacted by the legislature of the State of Hawaii affecting the beneficiaries under the Act;

(5) The legislature during the regular session of 2000, adopted House Concurrent Resolution No. 41, S.D. 1, requesting that the federal government "recognize an official political relationship between the United States government and the Native Hawaiian people"; and that "the United States Congress and the President articulate and implement a federal policy of Native Hawaiian self-government with a distinct, unique, and special trust relationship..." The legislature further "supports the sovereign rights of Native Hawaiians and recognizes the need to develop a government-to-government relationship between a Native Hawaiian nation and the United States";

(6) The Hawaiian Homes Commission Act, 1920, as amended, has assisted the Native Hawaiian people in maintaining distinct native communities on Hawaiian home lands. These communities provide the Hawaiian people with an important foundation that has fostered and perpetuated the Hawaiian language, culture, and traditions;

(7) The beneficiaries of the Hawaiian home lands trust individually and collectively through their representative organizations including homestead community associations and the State Council of Hawaiian Homestead Associations have expressed a strong desire for greater self-determination and self-governance over their own affairs.

The purpose of this Act is to promote increased self-governance by Hawaiian homestead community organizations over the affairs of their distinct native communities on Hawaiian home lands as an important step toward establishing a government-to-government relationship with the federal government.

SECTION 2. The Hawaiian Homes Commission Act, 1920, as amended, is amended by adding two new sections to be appropriately designated and to read as follows:

"§      Federal reaffirmation. The United States and State of Hawaii hereby reaffirm and recognize that:

(1) The native Hawaiian people are a distinct native, indigenous people who have maintained their own language, culture, and traditions, and have established Hawaiian home lands areas protected under federal and state law;

(2) The United States has a unique trust responsibility to promote the welfare of the aboriginal, indigenous people of the State, and the federal government has delegated broad authority to act for their betterment; and

(3) The aboriginal, indigenous people of the State retain their inherent sovereign authority and their right to organize for their common welfare. It is appropriate that the expression of self-determination and self-governance begin at the most basic community level as a step toward the reorganization of a governing body.

§      Community based self-determination on Hawaiian home lands. (a) It is the policy of the department of Hawaiian home lands to promote the empowerment of democratically-elected Hawaiian homestead community self-governance organizations.

In furtherance of this policy, the State, with the consent of the Congress of the United States, may delegate to a democratically-elected organization representing a Hawaiian homestead community or communities the authorities delegated to the State by the United States relating to the administration of the Hawaiian Homes Commission Act, 1920, as amended. The Congress of the United States and the State acknowledge this delegation as a step toward achieving the eventual outcome of a government-to-government relationship between the aboriginal, indigenous people of the State and the federal government.

The department of Hawaiian home lands may establish an intergovernmental working relationship with a democratically-elected Hawaiian homestead community self-governance organization to promote community welfare. The selection of authorities to be delegated shall be left to the Hawaiian homes commission’s discretion.

(b) The department of Hawaiian home lands may establish criteria to determine whether a Hawaiian homestead community organization is eligible for delegation. Only one organization per homestead community shall be selected for delegation. Criteria for eligibility shall include but not be limited to the following:

(1) The organization and its leadership is a bona fide representative body of all homestead lessees and qualified successors of the homestead community;

(2) The organization is governed by free and fair elections; and

(3) The organization demonstrates sufficient capacity to implement the authorities that are delegated.

(c) The department of Hawaiian home lands may contract with and delegate authority to a Hawaiian homestead self-governance organization to perform governmental services for the homestead community represented by that homestead organization. Any such contract shall include a requirement that the government service shall be performed at a level and quality comparable to the services that would otherwise be provided by the department.

(d) The department of Hawaiian home lands is authorized to adopt rules to implement this section."

SECTION 3. Section 209 of the Hawaiian Homes Commission Act, 1920, as amended, is amended by amending subsection (a) to read as follows:

"(a) Upon the death of the lessee, the lessee's interest in the tract or tracts and the improvements thereon, including growing crops and aquacultural stock (either on the tract or in any collective contract or program to which the lessee is a party by virtue of the lessee's interest in the tract or tracts), shall vest in the relatives of the decedent as provided in this paragraph. From the following relatives of the lessee who are (1) at least one-quarter Hawaiian, husband, wife, children, or grandchildren, or (2) native Hawaiian, father and mother, widows or widowers of the children, brothers and sisters, widows or widowers of the brothers and sisters, or nieces and nephews, -- the lessee shall designate the person or persons to whom the lessee directs the lessee's interest in the tract or tracts to vest upon the lessee's death. The Hawaiian blood requirements shall not apply to the descendants of those who [are not native Hawaiians but who] were entitled to the leased lands under section 3 of the Act of May 16, 1934 (48 Stat. 777, 779), as amended, or under section 3 of the Act of July 9, 1952 (66 Stat. 511, 513). In all cases that person or persons need not be eighteen years of age. The designation shall be in writing, may be specified at the time of execution of the lease with a right in the lessee in similar manner to change the beneficiary at any time and shall be filed with the department and approved by the department in order to be effective to vest the interests in the successor or successors so named.

In case of the death of any lessee, except as hereinabove provided, who has failed to specify a successor or successors as approved by the department, the department may select from only the following qualified relatives of the decedent:

(1) Husband or wife; or

(2) If there is no husband or wife, then the children; or

(3) If there is no husband, wife, or child, then the grandchildren; or

(4) If there is no husband, wife, child, or grandchild, then from the following relatives of the lessee who are native Hawaiian: father and mother, widows or widowers of the children, brothers and sisters, widows or widowers of the brothers and sisters, or nieces and nephews.

The rights to the use and occupancy of the tract or tracts may be made effective as of the date of the death of the lessee.

In the case of the death of a lessee leaving no designated successor or successors, husband, wife, children, grandchildren, or relative qualified to be a lessee of Hawaiian home lands, the land subject to the lease shall resume its status as unleased Hawaiian home lands and the department is authorized to lease the land to a native Hawaiian as provided in this Act.

Upon the death of a lessee who has not designated a successor and who leaves a spouse not qualified to succeed to the lease or children not qualified to succeed to the lease, or upon the death of a lessee leaving no relative qualified to be a lessee of Hawaiian home lands, or the cancellation of a lease by the department, or the surrender of a lease by the lessee, the department shall appraise the value of all the improvements and growing crops or improvements and aquacultural stock, as the case may be, and shall pay to the nonqualified spouse or the nonqualified children as the lessee shall have designated prior to the lessee's death, or to the legal representative of the deceased lessee, or to the previous lessee, as the case may be, the value thereof, less any indebtedness to the department, or for taxes, or for any other indebtedness the payment of which has been assured by the department, owed by the deceased lessee or the previous lessee. These payments shall be made out of the Hawaiian home loan fund and shall be considered an advance therefrom and shall be repaid by the successor or successors to the tract involved. If available cash in the Hawaiian home loan fund is insufficient to make these payments, payments may be advanced from the Hawaiian home general loan fund and shall be repaid by the successor or successors to the tract involved; provided that any repayment for advances made from the Hawaiian home general loan fund shall be at the interest rate established by the department for loans made from the Hawaiian home general loan fund."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval; provided that section 2 shall take effect upon the consent of Congress.