HCR285 HD1

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 issues involving the pro rata portion of all the income and proceeds derived from the public land trust arising from Article XII, section 6 of the Hawaii State Constitution to be managed and administered by the Office of Hawaiian Affairs (OHA) are "of a peculiarly political nature and therefore not meet for judicial determination"; and

WHEREAS, in response to the Yamasaki decision, the Legislature enacted Act 304, Session Laws of Hawaii 1990, to:

(1) Clarify the lands comprising the public land trust under Chapter 10, Hawaii Revised Statutes;

(2) Clarify the revenues derived from the public land trust, which shall be considered to establish the amount of funding to OHA for the purpose of the betterment of the conditions of native Hawaiians; and

(3) Provide for a process to determine the actual amounts payable to OHA under the clarified standards enacted and for the formulation of a plan for payment of that sum ...;

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ruled in Office of Hawaiian Affairs v. State of Hawaii, 96 Haw. 388, 31 P.3d 901 (2001), that Act 304 was effectively repealed by its own terms, so that once again, it was necessary for the Legislature to determine how best to fulfill the State's constitutional obligations to native Hawaiians; 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 ... [W]e 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. (OHA v. State, 96 Haw. at 401, 31 P.3d at 914 (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 constitutional obligation to native Hawaiians; and

WHEREAS, the Hawaii Supreme Court, in these cases, specifically designated the Legislature as the appropriate governmental branch to carry out the State's constitutional obligation to native Hawaiians by enacting legislation to give effect to the right of native Hawaiians to benefit from the ceded lands trust; and

WHEREAS, due to:

(1) The lack of complete and accurate information regarding the ceded lands comprising the public land trust res;

(2) The lack of complete and accurate information regarding the revenues derived from the public land trust;

(3) The complexity of the numerous legal and fiscal issues; and

(4) The effect of the legal and fiscal issues on all parties concerned with the use and distribution of revenues generated from ceded lands,

the enormity of the undertaking is overwhelming, as recognized by the court in Yamasaki, and crafting any legislation to determine the appropriate boundaries of the trust is a significant responsibility, even for the Legislature; 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 OHA and the Executive Branch are requested to continue to discuss proposals regarding the income and proceeds from the public land trust and submit to the Legislature no later than 20 days prior to the convening of the Regular Session of 2008, a joint report of suggestions and recommendations on how the Legislature can best facilitate the State's constitutional obligation to native Hawaiians; and

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

(1) All amounts previously paid to OHA in trust for the benefit of native Hawaiians;

(2) Recommended actions that are fair, practical, and feasible to implement the State's constitutional obligation to native Hawaiians;

(3) The reasoning behind and basis for the recommendations; and

(4) Proposed legislation;

and

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

Report Title:

OHA; Public Land Trust

HOUSE OF REPRESENTATIVES	H.C.R. NO.	285
TWENTY-FOURTH LEGISLATURE, 2007		H.D. 1
STATE OF HAWAII