RESOLUTION

WHEREAS, the native Hawaiian people have paid a high price for the coming of other ethnic groups to their islands. Disease has 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; and

WHEREAS, various programs were enacted to assist Hawaiians and recognize the special status of native Hawaiian people, including the Hawaiian Homes Commission Act of 1920, which was enacted to provide native Hawaiians of fifty per cent or more native Hawaiian blood with long-term leases of residential, farm, and agricultural lots with homes or farms to rehabilitate native Hawaiians; and

WHEREAS, the purpose of the Hawaiian Homes Commission Act, as set forth in section 1 of Act 349, Session Laws of Hawaii 1990, specifies that in recognition of the solemn trust created by the Hawaiian Homes Commission Act, and the historical government to government relationship between the United States and the Kingdom of Hawaii, the United States and the State of Hawaii acknowledge the trust established under that Act and affirm their fiduciary duty to faithfully administer the provisions of that Act; and

WHEREAS, to further the solemn trust created by the Hawaiian Homes Commission Act, the Legislature passed Act 302, Session Laws of Hawaii 2001, to re-affirm the relationship through the Hawaiian Homes Commission Act and delegate powers to the beneficiaries; and

WHEREAS, the Hawaii Homes Commission Act held in trust for native Hawaiian homesteading about two hundred thousand of the 1.75 million acres of "ceded" government lands; and

WHEREAS, in 1959, with the passage of the Hawaii Admission Act, as part of the statehood compact, Hawaiian lands previously held in trust by the United States passed to the trusteeship of Hawaii. In compliance with the statehood compact, the State of Hawaii established the Department of Hawaiian Home Lands directed by the Hawaiian Homes Commission, as part of the state executive branch, which is responsible for administering the homelands program; and

WHEREAS, however, native Hawaiians were subsequently deprived of much of the benefits of the land trusts created by law. Problems arising from poor soil, lack of irrigation water, and infrastructural improvements made farming and homesteading difficult; and

WHEREAS, despite the Hawaiian Homes Commission Act, which specifically provides that the Governor does not have the power to dispose of trust lands by executive order or proclamation, Hawaii's governors have issued executive orders transferring thousands of acres of Hawaiian home lands for general public purposes without compensation to the trust; and

WHEREAS, although most of the executive orders were canceled in 1984 after litigation, the Hawaiian Homes Commission subsequently conveyed much of that land back to the agencies that had been using the land pursuant to executive order; and

WHEREAS, historically, the Department of Hawaiian Home Lands resorted to leasing out most of the lands to non­beneficiaries to pay its administrative costs. Of the rents that were collected from the leasing out of trust lands, nearly all of the money went towards the Department's administrative costs; and

WHEREAS, this practice of leasing trust lands to non-beneficiaries has created a conflict of interest: the commissioners and other department officials must choose between making land available to homesteading beneficiaries or leasing the land to non-Hawaiians, thus assuring that at least their salaries will be paid; and

WHEREAS, these leases therefore are not entered into because they are a prudent investment of the trust beneficiaries' property, as the trust arrangement requires; instead, they are entered into because the Legislature has failed to adequately fund the Hawaiian home lands program; and

WHEREAS, the State owes conflicting duties to the native Hawaiian people, under the Admission Act and the 1978 constitutional amendments, and also to the public under its broadest institutional mandate; and

WHEREAS, the Hawaii Supreme Court and the federal-state task force on the Hawaiian Homes Commission Act (convened in 1980 to address the Hawaiian Homes Commission Act program's effectiveness and future implementation of the Hawaiian Homes Commission Act) have instructed the State not to allow public needs to influence its decisions in administering Hawaiian home lands. However, conflict of interest is inevitable, and failure is inherent in the Hawaiian homes program as the State strives to serve the public needs; and

WHEREAS, the ceded lands trust has also failed to provide an adequate resource base for native Hawaiians because of mismanagement by the state Department of Land and Natural Resources. Like the Department of Hawaiian Home Lands, the Department of Land and Natural Resources has failed to keep an accurate accounting of the actual acreage in the ceded lands trust; and

WHEREAS, in addition, although the Department of Land and Natural Resources has been required by statute to segregate moneys obtained through conveyance of ceded lands from moneys received from other public lands, it has not done so. Thus, proceeds from the sale or lease of ceded lands, part of which should have accrued to the benefit of native Hawaiians, were commingled with general public funds from non-ceded public lands; and

WHEREAS, divisiveness and mismanagement in the system has resulted in approximately seventeen thousand individuals waiting for housing on Hawaiian home lands; some have been on the wait list for forty years and many others on the list have died while waiting; and

WHEREAS, there is an urgent need to resolve these and other legal issues relating to the empowerment of Hawaiian home lands beneficiaries and thereby ensure equal housing opportunities to people of Hawaiian ancestry; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-second Legislature of the State of Hawaii, Regular Session of 2003, the Senate concurring, that the Attorney General is requested to issue a definitive legal opinion to clarify the status of beneficiaries under the Hawaiian Homes Commission Act to ensure equal housing opportunities to people of Hawaiian ancestry in an efficient and affordable manner; and

BE IT FURTHER RESOLVED that, as part of this clarification, the Attorney General is requested to review the legal relationships between the different agencies involved and other legal issues as appropriate, including:

1. The legal intent of the Hawaiian Homes Commission Act, as amended, to rehabilitate native Hawaiians;
2. The State's responsibility as defined in section 4 of the Admission Act;
3. The legal intent of sections 1, 2, 3, and 4 of Article XII of the State Constitution;
4. The self-determination intent of the Native American Housing and Self-Determination Act administered through the United States Department of Housing and Urban Development and the Department of Hawaiian Home Lands; and
5. The empowerment of the beneficiaries of the Hawaiian Homes Commission Act to end federal and state wardship;

and

BE IT FURTHER RESOLVED that the Attorney General is requested to report findings and recommendations, including any proposed implementing legislation, to the Legislature no later than twenty days before the convening of the Regular Session of 2004; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Attorney General, the Chairperson of the Hawaiian Homes Commission, and the Chairperson of the Board of Land and Natural Resources.

Report Title:

Hawaiian Homes Commission Act; Attorney General Clarification