HCR285

WHEREAS, in Trustees of the Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 737 P.2d 446 (1987), the Hawaii Supreme Court concluded that the issue of what constitutes the Office of Hawaiian Affairs' pro rata portion of all the income and proceeds derived from the public land trust pursuant to Article XII, Section 6 of the Hawaii Constitution, is a political question for the Legislature to determine; and

WHEREAS, in response to the Yamasaki decision, the Legislature enacted Act 304, Session Laws of Hawaii 1990, to clarify the extent and scope of the State's constitutional obligation to provide a portion of the funds derived from the public land trust to the Office of Hawaiian Affairs; and

WHEREAS, on September 12, 2001, the Hawaii Supreme Court ruled in Office of Hawaiian Affairs v. State of Hawaii, 96 Haw. 388, 31 P.3d 901 (2001), that Act 304 was effectively repealed by its own terms, so that once again, it was necessary for the Legislature to specify what portion of which funds, from which lands the Office of Hawaiian Affairs was to receive under the State Constitution; and

WHEREAS, in its decision, the Supreme Court affirmed the ruling in Yamasaki, observing:

[T]he State's obligation to native Hawaiians is firmly established in our constitution. How the State satisfies that constitutional obligation requires policy decisions that are primarily within the authority and expertise of the legislative branch. As such, it is incumbent upon the legislature to enact legislation that gives effect to the right of native Hawaiians to benefit from the ceded lands trust. See Haw. Const. art. XVI, §7. . . we trust that the legislature will re-examine the State's constitutional obligation to native Hawaiians and the purpose of HRS §10-13.5 and enact legislation that most effectively and responsibly meets those obligations. (Office of Hawaiian Affairs v. State of Hawai‘i, 96 Haw. at 401, 31 P.3d at 914 [citations omitted; emphasis in original]); and

WHEREAS, the Hawaii Supreme Court affirmed the Yamasaki decision again in 2006 (OHA v. State of Hawaii, 110 Haw. 338; 133 P.3d 767 (2006)) and reiterated the legislative obligation to native Hawaiians; and

WHEREAS, in Act 178, Session Laws of Hawaii 2006, the Legislature stated in section 2:

Notwithstanding the provisions of chapter 10, Hawai‘i Revised Statutes, including section 10-13.5, Hawai‘i Revised Statutes, and until further action is taken by the legislature for this purpose, the income and proceeds from the pro rata portion of the public land trust under article XII, section 6, of the state constitution for expenditure by the office of Hawaiian affairs for the betterment of the conditions of native Hawaiians for each fiscal year beginning with fiscal year 2005-2006 shall be $15,100,000; and

WHEREAS, Act 178 stated in section 4:

There is appropriated out of the general revenues of the State of Hawai‘i the sum of $17,500,000 or so much thereof as may be necessary for fiscal year 2005-2006 to pay to the office of Hawaiian affairs amounts received from the use of lands in the public land trust that the legislature has determined were underpaid between July 1, 2001, through June 30, 2005 . . .; and

WHEREAS, Act 178 stated in section 7:

Nothing in [Act 178] shall resolve or settle, or be deemed to acknowledge the existence of, the claims of native Hawaiians to the income and proceeds of a pro rata portion of the public land trust under article XII, section 6, of the state constitution; and

WHEREAS, Act 178 effectuated most of the agreement that the Office of Hawaiian Affairs and the executive branch reached after more than a year of negotiations; and

WHEREAS, as Act 178 represented only part of the work to be completed, the Office of Hawaiian Affairs and the executive branch have moved ahead with additional negotiations; and

WHEREAS, the Legislature believes that it is in the best interests of the Office of Hawaiian Affairs, its beneficiaries, the State and all citizens of Hawaii that a fair and just settlement be attained; now, therefore,

BE IT RESOLVED by the House of Representatives of the Twenty-fourth Legislature of the State of Hawaii, Regular Session of 2007, the Senate concurring, that the Office of Hawaiian Affairs and the executive branch are encouraged to continue their negotiations and to try to agree upon a proposal to settle all outstanding differences regarding claims of the Office of Hawaiian Affairs to income and proceeds from the public land trust; and

BE IT FURTHER RESOLVED that if the Office of Hawaiian Affairs and the executive branch are able to reach a settlement, they are requested to jointly prepare a report outlining the settlement proposal and describing the key elements of what would be a fair, just, and permanent settlement of the claims of the Office of Hawaiian Affairs to income and proceeds from the public land trust; and

BE IT FURTHER RESOLVED that in crafting any proposed settlement, the parties are urged to be realistic, thoughtful, thorough, reasonable, and creative so as to enhance the prospects of an enduring settlement; and

BE IT FURTHER RESOLVED that it is requested that any report include, to the extent the parties believe it relevant, the following, as well as such other matter the parties believe ought to be included:

(1) The legal foundation for the State's obligation to allocate a pro rata portion of the income and proceeds from the public land trust to the Office of Hawaiian Affairs;

(2) A narrative history and summarized chronology of the efforts to implement and satisfy this obligation, for example the laws enacted, the litigation pursued, the past and current negotiations undertaken, and all amounts previously paid;

(3) Proposed key elements of any settlement, between the Office of Hawaiian Affairs and the State, of the claims of the Office of Hawaiian Affairs to income and proceeds from the public land trust, including, as appropriate, a mixture of cash to be paid to the Office of Hawaiian Affairs, state real estate to be conveyed to the Office of Hawaiian Affairs, and entitlements, which may, but do not necessarily include:

(a) The total dollar value of any proposed settlement;

(b) A process by which real estate can be identified and transferred in fee simple to the Office of Hawaiian Affairs;

(d) Entitlements, if any, proposed to be accorded as part of the settlement;

(e) The impact, if any, upon the State's financial picture and bond rating;

(f) Language concerning waivers and other underlying prerequisites and conditions for the proposed settlement; and

(g) Recommended actions to implement the settlement, and, if appropriate, proposed enabling legislation; and

BE IT FURTHER RESOLVED that if there is a settlement, the parties are requested to prepare a report and submit it to the Legislature not later than twenty days prior to the convening of the Regular Session of 2008; and

BE IT FURTHER RESOLVED that the Office of Hawaiian Affairs, as it determines in its best judgment, is requested to adequately inform its beneficiaries of its progress in carrying out this Concurrent Resolution; and

BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Governor, the President of the Senate, the Speaker of the House of Representatives, the Chairperson of the Board of Trustees of the Office of Hawaiian Affairs, the Attorney General, and the Chairperson of the Board of Land and Natural Resources.

	OFFERED BY:	_____________________________

Report Title:

OHA; Public Land Trust

HOUSE OF REPRESENTATIVES	H.C.R. NO.	285
TWENTY-FOURTH LEGISLATURE, 2007
STATE OF HAWAII