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Kaho`olawe

The Public Land Trust, Enforcement of OHA’s Rights, and The Fulfillment of OHA’s Mission To Better the Conditions of Hawaiians. Kaho`olawe. E h ō`ā ` k ā kou i ka lama k ū pono Let us light the torch of justice and reconciliation. Historical Perspective.

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Kaho`olawe

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  1. The Public Land Trust, Enforcement of OHA’s Rights, andThe Fulfillment of OHA’s Mission To Better the Conditions of Hawaiians Kaho`olawe OHA – Public Land Trust

  2. E hō`ā` kākou i ka lama kūpono Let us light the torch of justice and reconciliation Historical Perspective OHA – Public Land Trust

  3. OHA – Public Land Trust

  4. Section 5(f) of the Admission Act states that all lands received by the State & all income and proceeds from their disposition were to be held by the State as a “public trust” for the following five purposes: 1. Support of the public schools & other public educational institutions; 2. Betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended; 3. Development of farm & home ownership on as widespread basis as possible; 4. Making of public improvements; and 5. For the provision of lands for public use. The language of § 5(f) further specifies that the lands & its income shall be used for one or more of the foregoing purposes, and their use for any other purpose is a breach of trust for which suit may be brought by the United States. What are the purposes stated in the Section 5(f) of the Admission Act ? OHA – Public Land Trust

  5. 1978 - HAWAI‘I STATE CONSTITUTION - ARTICLE XII PUBLIC TRUST Section 4. The lands granted to the State of Hawai̒i by § 5(b) of the Admission Act and pursuant to Article XVI, § 7, of the State Constitution, excluding therefrom lands defined as "available lands" by § 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. Const Con 1978 and election Nov 7, 1978 OHA – Public Land Trust

  6. HAWAI‘I STATE CONSTITUTION - ARTICLE XII POWERS OF BOARD OF TRUSTEES Section 6. The board of trustees of OHA 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 § 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 OHA through its executive officer, the administrator of the OHA, who shall be appointed by the board. (emphasis added) Const Con 1978 and election Nov 7, 1978 OHA – Public Land Trust

  7. §10-3 Purpose of the office. The purposes of the office of Hawaiian affairs include: (1) The betterment of conditions of native Hawaiians. A pro rata portion of all funds derived from the public land trust shall be funded in an amount to be determined by the legislature for this purpose, and shall be held and used solely as a public trust for the betterment of the conditions of native Hawaiians. For the purpose of this chapter, the public land trust shall be all proceeds and income from the sale, lease, or other disposition of lands ceded to the U.S. by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or acquired in exchange for lands so ceded, and conveyed to the State of Hawaii by virtue of § 5(b) of the Act of March 18, 1959 (73 Stat. 4, the Admissions Act),excluding therefrom lands . . . (under) section 203 of the Hawaiian Homes Commission Act, 1920, as amended), andall proceeds and income from the sale, lease, or other disposition of lands retained by the U.S. under §§ 5(c) and 5(d) of the Act of March 18, 1959, later conveyed to the State under § 5(e); (emphasis added) The Public Land Trust and Revenues OHA – Public Land Trust

  8. In 1980, the Hawai‘i Legislature determined that OHA should receive 20% of the revenues generated from the ceded lands held in trust by the State of Hawai‘i (Codified as HRS §10-13.5) (Note: The act did not address the specific areas from where the revenue would be sought and paid.) 1980 - Act 273, SLH 1980 OHA – Public Land Trust

  9. HRS §171-18Public land trust – DLNR’s Land Trust. All funds derived from the sale or lease or other disposition of public lands shall be appropriated by the laws of the State; provided that all proceeds and income from the sale, lease, or other disposition of lands ceded to the U.S. by the Republic of Hawai̒i under the joint resolution of annexation, approved July 7, 1898 (30 Stat. 750), or acquired in exchange for lands so ceded, and returned to the State of Hawai̒i by virtue of § 5(b) of the Act of March 18, 1959 (73 Stat. 6), and all proceeds and income from the sale, lease or other disposition of lands retained by the U.S. under §§ 5(c) and 5(d) of the Act and later conveyed to the State under § 5(e) shall be held as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible, for the making of public improvements, and for the provision of lands for public use. [L 1962, c 32, pt of §2; Supp, 103A-18; HRS §171-18] (emphasis added) OHA – Public Land Trust

  10. The exact total acreage of the Public Land Trust held by the State is unclear even today. The Department of Land and Natural Resources (DLNR) and the Auditor have tried to inventory all public lands, but due to the enormity of task, this has not been completed. While in the past, some estimates have approached 2 million acres, according to the consultant hired by the State Auditor, the actual amount may be between 1.2 and 1.4 million acres because some of the parcels have been either double-counted or lumped in with non-ceded lands. (Not included in this total are the approximately 203,000 acres of ceded lands that were spun off and designated as Hawaiian Home lands in 1921 and which are administered by the Department of Hawaiian Home Lands (DHHL). These DHHL lands are set aside specifically for home, agricultural, or pastoral use by people of 50% or more Hawaiian descent and are no longer included in the general discussion of the Public Land Trust.) What is the total acreage of the Public Land Trust? OHA – Public Land Trust

  11. 1983 On September 7, 1983, OHA filed a Complaint for Declaratory and Injunctive Relief against the Attorney General of the State, the Chairman of the BLNR, and the Director of Finance in their official capacities. The suit involved illegal sand-mining on what allegedly is "ceded land," royalty payments received by a private party, and land conveyed to the State in lieu of damages. Papohaku Beach, Molokai OHA – Public Land Trust

  12. 1984 On March 8, 1984, the Trustees filed a second Complaint for Declaratory and Injunctive Relief. The primary relief requested was a declaration that "OHA is and has been entitled since 1978 or 1979 to receive 20% of all of the income and proceeds" derived by the State from "sales, leases or other dispositions of various § 5(f) Trust Lands." In addition, the Trustees sought mandatory injunctive relief enforcing the requested declaratory judgment. Sand Island, Honolulu (Circa 1977) Honolulu International Airport (Aerial View) Aloha Tower Complex, Honolulu OHA – Public Land Trust

  13. The Court consolidated the 1983 and 1984 cases into the OHA v. Yamasaki case. Hawai`i Supreme Court in OHA v. Yamasakidecided that there are no “judicially discoverable and manageable standards” and that what OHA is entitled to must be clarified by the Legislature 1987 OHA – Public Land Trust

  14. 1990 – Act 304, SLH 1990 • After the Yamasaki decision, the Governor’s Office and OHA began negotiations to clarify OHA’s revenues entitlement. In January 1990, sufficient progress had been made to take the first legislative steps towards settlement. • Act 304 appeared to resolve three main issues: • 1. What lands were subject to the trust; • 2. The type of revenue from which OHA should receive a share; and • 3. The formula for deriving past and future income to OHA. The Act mandated that the State negotiate with OHA to determine the amounts due to OHA for use of ceded lands from 1980 through 1991. • (Note: With respect to point 1, Act 304 provided that all § 5(b), 5(e) and PL 88-233 (Conveyance of Certain Surplus Federal Lands in Hawai‘i, 1963) lands, with the exception of Hawaiian Homes trust lands, were subject to the trust, regardless of departmental jurisdiction. This meant that all lands in these categories, whether administered by DLNR, DOT, or any other state department, were subject to the 20% entitlement.) OHA – Public Land Trust

  15. OHA and State reach a partial settlement agreement in the amount of $135.6 million, including interest, for back revenue due to OHA for the years 1980 through 1991 The Act authorized the issuance of a general obligation bond to fund $130 million and appropriated $5 million of general funds. OHA and the State agree in writing that certain issues are unresolved 1993 - ACT 35, SLH 1993 OHA – Public Land Trust

  16. 1994 - 1996 - OHA v. State of Hawaii (I) • 1994: OHA sues the state to get back payments from community hospitals, state affordable housing, duty-free concession leases as well as interest from these past-due revenues. • July 1996: Circuit Judge Daniel Heely rules in favor of OHA's motion. The state appeals, while estimates of the revenue in question range from $200 million to $1.2 billion. Heely decision said State owes 20% on: • Waikiki Duty Free Shop • Public Housing • Hilo Hospital • Investment earnings on unpaid revenue • April 1998: The Supreme Court heard the dispute and urged both sides to reach an out-of-court settlement. Talks sputter, and by year's end the high court warns the parties to settle or it will do it for them. The State and OHA agree to enter into negotiations. OHA – Public Land Trust

  17. May 1997 - Act 329, SLH 1997 Act 329 in essence suspended the terms of Act 304 and set the “income and proceeds” from the pro rata portion of the public land trust to be expended by OHA at $15.1 million for fiscal years 1997-1998 and 1998-1999. The Act also established an 8 member committee to study and make recommendations on “all outstanding and anticipated issues . . . currently or potentially relating to the public land trust” including whether lands should be transferred to OHA in partial or full satisfaction of any past or future obligations under Article XII, § 6 of the Hawai̒i Constitution. The committee was to submit a final report to the Legislature in December 1998, but apparently met only a few times without making any progress and held its final meeting on November 26, 1997. In a November 1998 report, DLNR noted that the inventory had not been completed. OHA – Public Land Trust

  18. 1997 - October 27, 1997 – Forgiveness Act, P.L. 105-66, section 340, Congress passes what is known as the "Forgiveness Act," which excuses $28.2 million in payments the state made from the airport fund to OHA as public land trust revenue. Noteworthy is the federal law banning further use of airport-related money to pay claims related to ceded lands. The Act specifically stated that nothing in it’s terms should be construed to affect trust obligations or state statutes defining the obligations to Native Hawaiians. OHA – Public Land Trust

  19. 1999 April 1999 The State’s “global” settlement offer and a counter offer by the OHA included cash, lands, and required repeal of OHA’s Constitutional and statutory entitlements to further Public Land Trust revenues. This offer and the counter offer to settle the OHA v. State of Hawai‘i (I) case was rejected when a majority of the OHA’s Board of Trustees voted to end negotiations. OHA – Public Land Trust

  20. February 2000 The U.S. Supreme Court rules against OHA in the Rice vs. Cayetano appeal of Big Island rancher Harold "Freddy" Rice, striking down the state's Hawaiians-only requirement to vote in the OHA election. The constitutionality of OHA is put into question. March 2000 A group of Hawai̒i residents led by attorney William Burgess files a brief in Hawai̒i Supreme Court in the OHA v. State of Hawai̒i case contending that OHA is unconstitutional because of the Rice decision, the first of a handful of lawsuits filed during this year challenging the OHA’s creation. 2000 – A Year of Defending OHA’s Existence OHA – Public Land Trust

  21. 2001 - September 12, 2001 Decision of the Office of Hawaiian Affairs v. State of Hawai‘i, 96 Haw. 388 The Hawai̒i Supreme Court decides that the Heely decision was in essence correct and that Act 304 required that airport revenues including concessionaires rent and fees, be paid to OHA. The Court found conflict between the Federal Forgiveness Act and Act 304 requirements that airport revenues be paid to OHA. Act 304 contained a non-severability clause – any provisions held to be in conflict with federal law would invalidated the entire Act. Moreover the clause provided that if Act 304 was found to be invalid, the prior state law, the one found to have no judicially discoverable and manageable standards in the Yamasaki case, was automatically reinstated. Not surprisingly, the court determined that the case presented a non-justiciable political question. Although invalidating Act 304, the Court acknowledged that the State’s obligation to native Hawaiians is firmly established in the Hawai̒i Constitution and concluded, “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.” OHA – Public Land Trust

  22. 2002 - Aftermath of the OHA v. State Decision Immediately after the Court’s decision in 2001, the State stopped all Public Land Trust revenue payments to OHA. In the 2002 session, the Legislature took no action to resolve OHA’s revenue entitlements. OHA – Public Land Trust

  23. 2003 - February 11, 2003 – Executive Order 03-03 Soon after Governor Linda Lingle took office in 2003, she issued Executive Order 03-03 restoring public land trust revenue payments to OHA. Each department was instructed to perform a review of its lands and revenues and determine whether its receipts are for the use of § 5(b), 5(e) or P.L. 88-233 lands (or lands received in exchange for such lands) determine whether any federal or state law precludes any portion of the receipt from being used to better the conditions of native Hawaiians, calculate OHA’s portion, and determine whether transfer to OHA will cause the department to renege on any pre-existing pledge or obligation. The Order also establishes a procedure to transfer funds to OHA. On the Governor’s recommendation, the 2003 Legislature appropriated funds for back payments to OHA in Act 34, S.L.H. 2003 for the revenues that were discontinued by the State after the Supreme Court’s OHA v. State decision. OHA – Public Land Trust

  24. Act 34, SLH 2003 Act 34 was recommended by the Governor for immediate passage in accordance with article VII, § 9 of the Hawai̒i Constitution. The purpose of the Act is to appropriate moneys from the general, & certain special & revolving funds, for transfer and deposit into the OHA trust fund for native Hawaiians. The appropriations represent 20% of the receipts for the use of lands in the Public Land Trust that were not transferred to the OHA but deposited instead into the various funds after the Hawai̒i Supreme Court decided OHA v. State, & state agencies were directed to discontinue transferring 20% of receipts from the Public Land Trust to OHA pursuant to HRS § 10-13.5. In addition to specific sums from specific funds held by various departments, there is appropriated out of the general revenues of the State of Hawai̒i the sum of $2,041,852 or so much thereof as may be necessary for fiscal year 2002-2003 to be deposited into the Public Land Trust proceeds trust fund and used to better the conditions of native Hawaiians.. OHA – Public Land Trust

  25. Legal Issues Related to the Public Land Trust OHA – Public Land Trust

  26. Pending OHA Lawsuits Currently, two lawsuits filed by OHA relating to ceded lands are pending in the Hawai̒i Supreme Court. In Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, S.C. No. 25570 (2003), OHA challenged the HCDCH’s attempted sale of ceded lands, arguing that the State should not sell ceded lands while Native Hawaiian claims to those lands are unsettled. Although this case is still pending with the Supreme Court, DHHL in September 2004, announced that with the blessing of OHA the Villages of Laiopua in Kona, would be tranferred from DLNR to DHHL and the Villages of Leialii in Lahaina were being transferred from HCDCH to DHHL. These properties were the subject of this lawsuit. The transfer of these lands to the Department of Hawaiian Home Lands for purpose of developing new homes for Native Hawaiians serves the direct purpose that the lawsuit has been designed to achieve, namely to protect these lands for Native Hawaiians. In Office of Hawaiian Affairs v. State of Hawaii (II), S.C. No. 26615 (2004), OHA sued to the state to recover an estimated $150 million to $300 million, which OHA believes it had missed out on because the State did not do enough to prevent the 1997 Forgiveness Act or challenge the 1996 U.S. DOT Inspector General memo barring airport payments to OHA. In addition, OHA said that if the state had informed OHA of the memo, OHA itself would have been able to do more to prevent the cessation of airport ceded lands payments. That suit was dismissed in state Circuit Court in 2003, and OHA appealed the ruling. The Supreme Court in its September 2005 ruling affirmed that dismissal. OHA has requested and was granted reconsideration by the Court which is pending. OHA – Public Land Trust

  27. Which Public Trust Generates Revenues for the Office of Hawaiian Affairs? The following laws create public land trusts: Admission Act, Section 5f Hawai‘i State Constitution, Article XII, Section 4 Hawai‘i Revised Statutes, section 171-18 Hawai‘i Revised Statutes, section 10-3 Prepared by the Office of the Staff Attorney Office of Hawaiian Affairs OHA – Public Land Trust

  28. Which Trust: Authority, Trustees, Res, and Beneficiaries Funds Received By OHA Directly From the Trust Authority: Admission Act Section 5f (Creates A Public Land Trust) Trustee: State of Hawai‘i Res: Lands conveyed to State by Admission Act are held in trust for support public schools, other public educational institutions, for the betterment of the conditions of native Hawaiians, for the development of farm & home ownership, for the making of public improvements, & provision of lands for public use. Beneficiaries: Citizens of the State of Hawai‘i None. The Admission Act is not self-executing in that it does not describe a process for disbursement of trust assets to OHA or any beneficiaries. Authority: Hawai‘i Constitution Article XII Section 4 (Creates A Pubic Land Trust) Trustee: State of Hawai‘i Res: The lands granted to the State by Section 5(b) of the Admission Act & pursuant to Art. XVI, Sec. 7, of the State Constitution, excluding therefrom lands defined as "available lands" by Sec. 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians & the general public. Beneficiaries: Citizens of the State of Hawai‘i None. Sec. 4, Art XII of the Hawai‘i Constitution is not self-executing in that it does not describe a process for disbursement of trust assets to OHA or any beneficiaries. Authority: HRS §171-18 (Creates A Public land trust) Trustee: State of Hawai‘i Res: All funds derived from the sale or lease or other disposition of public lands shall be appropriated by the laws of the State; provided that all proceeds & income from the sale, lease, or other disposition of lands ceded to the U.S. by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898, or acquired in exchange for lands so ceded, & returned to the State of Hawaii by virtue of sec. 5(b) of the Act of March 18, 1959, & all proceeds & income from the sale, lease or other disposition of lands retained by the U.S. under sec. 5(c) & 5(d) of the Act & later conveyed to the State under sec. 5(e) shall be held as a public trust for the support of the public schools & other public educational institutions, for the betterment of the conditions of native Hawaiians as defined in the HHCA, 1920, as amended, for the development of farm & home ownership on as widespread a basis as possible, for the making of public improvements, & for the provision of lands for public use. Beneficiaries: Citizens of the State of Hawai‘i None:HRS § 171-18 trust is not self-executing in that it does not describe a process for disbursement of trust assets to OHA or any beneficiaries Authority: HRS §10-3 (Creates A Monetary Trust called the “Public Land Trust”) Trustee: State of Hawai‘i Res: the public land trust shall be all proceeds & income from the sale, lease, or other disposition of lands ceded to the U.S. by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898, or acquired in exchange for lands so ceded, & conveyed to the State by virtue of section 5(b) of the Act of March 18, 1959 (Admissions Act), (excluding therefrom lands & all proceeds & income from the sale, lease, or disposition of lands defined as "available lands" by sec. 203 of the Hawaiian Homes Commission Act, 1920, as amended), & all proceeds & income from the sale, lease, or other disposition of lands retained by the U.S. under sec. 5(c) & 5(d) of the Act of March 18, 1959, later conveyed to the State under sec. 5(e); Beneficiaries: Citizens of the State of Hawai‘i 20%:HRS §10-13.5 requires that "twenty per cent of all funds derived from the public land trust, described in section 10-3, shall be expended by OHA, as defined in section 10-2 . “ So 80% is transferred to the State general treasury & 20% transferred to OHA Native Hawaiian Public Land Trust Fund Authority: Article XII, section 5. Trustees: OHA Trustees “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 . . “ Res: Appropriations; accounts; reports. Income derived from the sale of goods or services & income from lands & property as described in section 10-3, shall be credited to special or other funds; provided that upon the recommendation of OHA, the comptroller shall establish such other separate accounts or special funds for other designated revenues as may be directed by the board or its authorized representative. (HRS §10-13) Beneficiaries: Hawaiians and native Hawaiians 100% Art. XII, Sec. 6 Hawai‘i Constitution. The board of trustees of the OHA shall exercise power as provided by law: to manage & administer the proceeds from the sale or other disposition of the lands, . . . derived from whatever sources for native Hawaiians & Hawaiians, including all income & proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians; . . . OHA – Public Land Trust

  29. Dispelling Myths About Ceded Lands and Public Land Trust • All ceded lands owned by the State of Hawai‘i is in the “public land trust” from which OHA derives revenues. • 2. Lands that are returned to the State of Hawai‘i by the Federal government are no longer considered ceded lands. • 3. Once ceded lands are exchanged for non-ceded lands by the State, revenues from the former ceded lands and exchanged lands are lost forever. • 4. Lands that set aside by the Governor’s executive order loose ceded lands character. • 5. The trust funds OHA receives and spends are “5f” trust funds. • 6. OHA can only spend its trust funds for 50% or more blood quantum Hawaiian beneficiaries. • 7. In order for OHA to spend its trust funds for Hawaiians with less that 50% blood quantum it must match the trust funds with other funds such as general funds from the State. OHA – Public Land Trust

  30. Dispelling Myths About Ceded Lands and Public Land Trust • All ceded lands owned by the State of Hawai‘i is in the “public land trust” from which OHA derives revenues. No, Section 5 of the Admission Act created a system of classifying land. The nine ceded/and nonceded land classification of public lands. 1. “§ 5(a)” - lands owned by the Territory of Hawaii and its subdivisions, immediately prior to statehood, and to which the State succeeded. 2. “§ 5(b)” - lands granted to the State by the U.S. immediately prior to statehood. 3. “§ 5(c)” - lands set aside upon statehood, for the use of the U.S. under any Act of Congress, Executive Order, Presidential Proclamation or Gubernatorial Proclamation and which remained the property of the U.S. “§ 5(d)” - public lands conveyed to the State under § 5(b) of the Admission Act, but immediately prior to statehood, were controlled by the U.S. by permit, license or permission from the Territory of Hawaii and during the 5 years following statehood were set aside by an Act of Congress or Presidential Executive Order for use by the U.S. 5. “§ 5(e)” - public lands owned by the U.S. upon statehood under sections 5(c) or 5(d) of the Admission Act and conveyed to the State within 5 years following statehood. 6. “§ 5(i)” - lands that pertain to the Submerged Lands Act of 1953 and the Outer Continental Shelf Lands Act of 1953, which apply, to the State. 7. “X” - lands acquired by the State after statehood by purchase in fee, condemnation or other means, excluding §§ 5(e) and 5(i) lands and “Y’ and “Z” lands as described below, including fee purchases from the U.S. 8. “Y” - former Federal Fee Lands acquired by the State at Public Benefit Discount and under Federal Property and Administrative Services Act of 1949 and the Surplus Property Act of 1944, as amended by Public Law 80-616. 9. “Z” - public lands owned by the U.S. upon statehood under §§ 5(c) or 5(d) of the Admission Act and conveyed to the State after 21 August 1964 under P.L. 88-233. OHA – Public Land Trust

  31. PUBLIC LAND TRUST Article XII, Section 4. The lands granted to the State of Hawai̒i by § 5(b) of the Admission Act and pursuant to Article XVI, § 7, of the State Constitution, excluding therefrom lands defined as "available lands" by § 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. Const Con 1978 and election Nov 7, 1978 COMPLIANCE WITH TRUST Article XVI, Section 7. Any trust provisions which the Congress shall impose, upon the admission of this State, in respect of the lands patented to the State by the United States or the proceeds and income therefrom, shall be complied with by appropriate legislation. Such legislation shall not diminish or limit the benefits of native Hawaiians under Section 4 of Article XII. [Ren Const Con 1968 and election Nov 5, 1968; ren and am Const Con 1978 and election Nov 7, 1978] Answer: No, the lands ceded to the State upon its admission to the Union consists of more lands than was put into the public land trust via Article XII, Section 4 which mentions § 5(b) lands. We note that Act 304, SLH 1990, made clear that the lands subject to the public land trust are § 5(b), § 5(e) and P.L. 88-233. Recently, the Governor’s Executive Order 03-03 dated February 11, 2003 required that state departments consider revenues from § 5(b), § 5(e) or P.L. 88-233 lands or lands received in exchange for such lands in calculating OHA’s pro rata share of revenues. OHA – Public Land Trust

  32. Dispelling Myths About Ceded Lands and Public Land Trust • Public lands that were formerly Kingdom lands and annexed by the United States and were returned to the State after Statehood are no longer considered “ceded lands” and not part of the “public land trust.” • Answer: False. • Reason: Admission Act § 5(e) states that: “public lands owned by the U.S. upon statehood under sections 5(c) or 5(d) of the Admission Act (lands set aside upon statehood, for the use of the U.S. under any Act of Congress, Executive Order, Presidential Proclamation or Gubernatorial Proclamation and which remained the property of the U.S. and public lands conveyed to the State under § 5(b) of the Admission Act, but immediately prior to statehood, were controlled by the U.S. by permit, license or permission from the Territory of Hawaii and during the 5 years following statehood were set aside by an Act of Congress or Presidential Executive Order for use by the U.S.) and conveyed to the State within 5 years following statehood are part of the public land trust. • Note that PL 88-233 amended section 5(e) to allow return of surplus federal lands. •  Public lands held in trust for people. - Excepting lands set aside for federal purposes, the equitable ownership of public land in Hawaii has always been in its people. Upon admission, trusteeship to such land was transferred to the state, and such land has remained in public trust since that time. State ex rel. Kobayashi v. Zimring, 58 Haw. 106, 566 P.2d 725 (1977). •    "Public trust" construed. - It cannot be said that section 5(f) generally creates a trust which demands the exacting standards of administration that the United States has often imposed upon itself when it is dealing with Native Americans. It would be error to read the words "public trust" to require that the state adopt any particular method and form of management for the ceded lands. Price v. Hawaii, 921 F.2d 950 (9th Cir. 1990), cert. denied, 502 U.S. 967, 112 S. Ct. 436, 116 L. Ed. 2d 455 (1991). • Lands included in the public trust. - Undersection 5(f), the United States conveyed the bulk of its Hawaiian land holdings to the newly formed state, with the instruction that the lands and all property subsequently conveyed by the United States to the state be held by the state as a public trust; the lands which had already been reserved for disposition by the Hawaiian homes commission under the Hawaiian Homes Commission Act of 1920 were included in the section 5(f) trust. Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985), cert. denied, 474 U.S. 1055, 106 S. Ct. 793, 88 L. Ed. 2d 771, reh'g denied, 475 U.S. 1091, 106 S. Ct. 1482, 89 L. Ed. 2d 736 (1986). OHA – Public Land Trust

  33. Dispelling Myths About Ceded Lands and Public Land Trust 3. Once ceded lands are exchanged for non-ceded lands by the State, revenues from the former ceded lands and exchanged lands are lost forever. "Public land trust" unrelated to "homelands." - The "public land trust" created by the Hawaiian Constitution does not include the homelands. Consequently, the trust proceeds granted to the OHA are unrelated to the homelands. Price v. Akaka, 928 F.2d 824 (9th Cir. 1990), cert. denied, 502 U.S. 967, 112 S. Ct. 436, 116 L. Ed. 2d 455 (1991). Federal courts ultimately determine § 5(f) uses. - Although it is not for federal courts to declare that certain methods of holding, managing, and accounting for the ceded lands and income must be followed by the state and its officials, that does not mean that the state can do what it likes with the property and the income. Rather, the federal courts must ultimately determine whether the property has been diverted from section 5(f) purposes. Price v. Hawaii, 921 F.2d 950 (9th Cir. 1990), cert. denied, 502 U.S. 967, 112 S. Ct. 436, 116 L. Ed. 2d 455 (1991). A suit brought to protect the res of the public lands trust, and thereby enforce the mandates of article XII, § 4 of the Hawaii Constitution is appropriate in Hawaii courts. Article XII, § 4 imposes a fiduciary duty on Hawaii's officials to hold ceded lands in accordance with the Hawaii Admission Act § 5(f) trust provisions, and the citizens of the state must have a means to mandate compliance. Therefore, a non-profit membership corporation, whose members are beneficiaries of the public lands trust, may bring suit for the limited purpose of enjoining state officials' breach of trust by disposal of trust assets in violation of the Hawaii constitutional and statutory provisions governing the public lands trust. Pele Defense Fund v. Paty, 73 Haw. 578, 837 P.2d 1247 (1992), cert. denied, 507 U.S. 918, 113 S. Ct. 1277, 122 L. Ed. 2d 671 (1993). Where a request to restore the trust status of former public trust lands by means of a constructive trust was "essentially equivalent" to a nullification of the exchange of those lands and the return of the exchanged lands to the trust res, the effect on the state treasury would have been direct and unavoidable, rather than ancillary, because imposing a constructive trust on lands now held by a private landowner would require that the state compensate the landowner for its property. As a result, environmental defense corporation's claims based on the illegality of the exchange of land were barred by the state's sovereign immunity. Pele Defense Fund v. Paty OHA – Public Land Trust

  34. Applicability of section 5(f). - The OHA trust, into which the OHAs' share of income derived from section 5(f) of this section was placed, was not considered distinct from the trust created by section 5(f) of this section; because the funds were still in state hands, the restrictions found in section 5(f) of this section applied to the use or disposal of the income. Price v. Akaka Standing of native Hawaiian. - The fact that the trustees may, consistent with section 5(f), spend the income for purposes other than to benefit native Hawaiians does not deprive a native Hawaiian of standing to bring his claim. Price v. Akaka A native Hawaiian has standing to seek redress for past violations of section 5(f) even though that redress may not necessarily benefit native Hawaiians. Price v. Akaka  Where plaintiff alleged that the trustees expended the income on purposes other than those listed in section 5(f), he stated a claim to enforce the provisions of section 5(f) of this section. Price v. Akaka Allegation held sufficient. - Complainant did not fail to state a claim when he alleged that trustees of the OHA had expended income derived under section 5(b) of this section on purposes other than those listed in section 5(f) of this section. Price v. Akaka  Complainants alleging that trustees of the OHA were in violation of this section were asserting a federal right under 42 U.S.C. 1983. Price v. Akaka Applicability of definition of "native Hawaiians." The legislature may not, consistent with section 5(f) and Haw. Const., Art. XII, authorize the OHA to use funds derived from the public land trust to better the conditions of "Hawaiians," as defined in § 10-2, as distinguished from "native Hawaiians," as defined in section 5(f). Op. Att'y Gen. No. 83-2 (1983)., 502 U.S. 967, 112 S. Ct. 436, 116 L. Ed. 2d 455 (1991)cert. denied. Proceeds of sale of ceded lands. - Any proceeds of the sale or disposition of ceded lands must be returned to the trust and held by the State for use for one or more of the five purposes set forth in section 5(f)., Op. Att'y Gen. No. 95-03 (1995). OHA – Public Land Trust

  35. Dispelling Myths About Ceded Lands and Public Land Trust • Ceded Lands that are set aside by the Governor’s executive order for private use loose ceded lands character. OHA – Public Land Trust

  36. Dispelling Myths About Ceded Lands and Public Land Trust 5. The trust funds OHA receives from the State and which it spends for beneficiaries are “5f” trust funds. Answer: Not really. The Admission Act section 5f create a land trust. The State of Hawai‘i is the Trustee, the res of the trust is the land placed in trust by section 5 of the Act and the beneficiaries are the citizens of the State of Hawai‘i. The trust is not self-executing in the sense that it does not mention proceeds from the trust and how trust assets or proceeds would be distributed to the trust beneficiaries. The funds received by OHA come from revenues from the portion of Public Land Trust created by Admission Act §§ 5(b) and 5(e). HRS §10-3 Purpose of the office. The purposes of the office of Hawaiian affairs include: . . . .For the purpose of this chapter, the public land trust shall be all proceeds and income from the sale, lease, or other disposition of lands ceded to the U.S. by the Republic of Hawaii under the joint resolution of annexation, approved July 7, 1898, or acquired in exchange for lands so ceded, and conveyed to the State of Hawaii by virtue of § 5(b) of the Admissions Act), (excluding therefrom lands and all proceeds and income from the sale, lease, or disposition of lands defined as "available lands" by § 203 of the Hawaiian Homes Commission Act, 1920, as amended), and all proceeds and income from the sale, lease, or other disposition of lands retained by the U.S. under §§ 5(c) and 5(d) of the Admissions Act later conveyed to the State under § 5(e) Limitation on uses. - Section 5(f) directs unequivocally that the lands conveyed to Hawaii in sectionb5 (b), and the income produced by them, "shall be managed and disposed of for one or more" of five stated purposes. Where the OHA share of "public trust" income derives directly from the section 5(b) lands, section 5(f)'s limitation uses applies to that income. Price v. Akaka, 928 F.2d 824 (9th Cir. 1990), cert. denied, 502 U.S. 967, 112 S. Ct. 436, 116 L. Ed. 2d 455 (1991). OHA – Public Land Trust

  37. Dispelling Myths About Ceded Lands and Public Land Trust • OHA can only spend its trust funds for 50% or more blood quantum Hawaiian beneficiaries. • Answer: Not true POWERS OF BOARD OF TRUSTEES Article XII, Section 6. The board of trustees of the OHA 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 OHA through its executive officer, the administrator of the OHA, who shall be appointed by the board. [Add Const Con 1978 and election Nov 7, 1978] Attorney General Opinion: Receipts derived from ceded lands apportioned for native Hawaiians pursuant to this section and §10-13.5 may be transmitted directly to office of Hawaiian affairs by agencies that collect them, without legislative appropriation. Att. Gen. Op. 03-4. PUBLIC TRUST Article XII, 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. [Add Const Con 1978 and election Nov 7, 1978] (Section imposes fiduciary duty on State of Hawaii's officials to hold ceded lands in accordance with trust provisions of §5(f) of Admission Act; citizens of State must have means to mandate compliance. 73 H. 578, 837 P.2d 1247.) OHA – Public Land Trust

  38. Dispelling Myths About Ceded Lands and Public Land Trust 7. In order for OHA to spend its trust funds for Hawaiians with less that 50% blood quantum it must match the trust funds with other funds such as general funds from the State. OHA – Public Land Trust

  39. MAHALO Na Oiwi Olino This concludes this presentation on the Public Land Trust Pau Hana Slack Key Pau Pilikia OHA – Public Land Trust

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