Bill Text: HI HCR76 | 2021 | Regular Session | Amended
Bill Title: Requesting The Establishment Of A Working Group To Assess The Status Of Act 14, Special Session Laws Of Hawaii 1995, And The Hawaiian Homes Commission Act Of 1920, As Amended.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2021-04-23 - Resolution adopted in final form. [HCR76 Detail]
Download: Hawaii-2021-HCR76-Amended.html
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HOUSE OF REPRESENTATIVES |
H.C.R. NO. |
76 |
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THIRTY-FIRST LEGISLATURE, 2021 |
S.D. 2 |
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STATE OF HAWAII |
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HOUSE CONCURRENT
RESOLUTION
REQUESTING THE ESTABLISHMENT OF A WORKING GROUP TO ASSESS THE STATUS OF ACT 14, SPECIAL SESSION LAWS OF HAWAII 1995, AND THE HAWAIIAN HOMES COMMISSION ACT OF 1920, AS AMENDED.
WHEREAS, when the United States Congress passed the Hawaiian Homes Commission Act (HHCA) of 1920, as amended and set aside approximately 203,500 acres of public lands as Hawaiian home lands for the rehabilitation of native Hawaiians, the United States reaffirmed the trust responsibility it had assumed toward the native Hawaiian people; and
WHEREAS, currently, approximately 40,000 acres of land are under various homestead leases, and a total of 163,500 acres of land are managed by the land division of the Department of Hawaiian Home Lands (DHHL); and
WHEREAS, when Congress enacted the Hawaii Admission Act in 1959, the State of Hawaii, in compliance with the Admission Act and as a compact between the State and the United States, adopted the HHCA as a law of the State through article XII of the Hawaii State Constitution, affirming the State's fiduciary duty to faithfully administer the HHCA on behalf of native Hawaiian beneficiaries; and
WHEREAS, the Legislature found that thousands of acres of Hawaiian home lands were allegedly used, disposed of, or withdrawn from the trust by territorial or state executive actions in contravention of the HHCA; between 1922 and 1959, the federal government and, later the State, used Hawaiian home lands for purposes not permitted by the trust; and after 1959, the State took over the management and disposition of the Hawaiian home lands and failed to restore the lands to the trust or compensate the trust; and
WHEREAS, in 1982, the Hawaii Supreme Court held in Ahuna v. Department of Hawaiian Home Lands that the Hawaiian Homes Commission must be evaluated using the most exacting fiduciary standards in their assessment of the responsibilities of the Hawaiian Homes Commission and that their trust duties include the obligation to administer the trust solely in the interest of the beneficiary and the use of reasonable skill and care to make trust property productive; and
WHEREAS, beginning in the early 1980s, and in part as a result of the findings of a 1983 joint federal and state task force charged with undertaking a "comprehensive review of every facet of the [HHCA]," the state and federal governments began to take steps to resolve past breaches of trust, including the cancellation of gubernatorial executive orders and proclamations that had taken lands from the trust to be used for other public purposes, allowing trust beneficiaries to restore trust lands and assets, or allowing beneficiaries to seek compensation for damages; and
WHEREAS, in
recognition of these allegations and toward their resolution, the Legislature passed
the Native Hawaiian Trusts Judicial Relief Act (Act 395, Session Laws of Hawaii
1988) (Act 395), codified as chapter 673, Hawaii Revised Statutes, which sought
to provide redress to HHCA beneficiaries by providing for limited waiver of the
State's sovereign immunity to enable beneficiaries of the Hawaiian Home Lands Trust
to bring suits for past breaches of the Trust that occurred between August 21, 1959
and July 1, 1988; and
WHEREAS, the Governor's Action Plan to Address Controversies under the Hawaiian Home Lands Trust and the Public Land Trust (Action Plan) was accepted by the Legislature pursuant to its adoption of S.C.R. No. 185, H.D. 1, Regular Session of 1991; and
WHEREAS, the Action Plan, among other actions, proposed convening a task force of representatives from the DHHL, Department of Land and Natural Resources, Office of State Planning, and Department of the Attorney General to accelerate the review process; however, trust beneficiaries were excluded from participation; and
WHEREAS, the actions of the task force were to include verifying title claims, determining if improper uses were still in existence and whether these uses should be canceled or continued if authorized by the Hawaiian Homes Commission, conducting appraisals and determining appropriate compensation for past and continued use of Hawaiian home lands, and pursuing all avenues for return of lands and compensation from the federal government for wrongful actions; and
WHEREAS, the task force recommended a one-time payment of only $39,000,000 for the state's illegal misuse of 29,633 acres of trust lands since statehood, significantly understating the value of the trust's claims, and conditioned the payment upon DHHL's agreement to waive, on behalf of its beneficiaries, the rights to all uncompensated past and future claims; and
WHEREAS, consequently, a group of native Hawaiian beneficiaries filed suit in Ka‘ai‘ai v. Drake, challenging the validity of the task force's settlement evaluation and the appraisal process used in reaching this determination, in which the First Circuit Court granted the beneficiaries a preliminary injunction, halting the settlement process and appointed an "independent representative" for the trust beneficiaries and ordered a complete reevaluation of the claims; and
WHEREAS, in 1992,
the Legislature approved the resolution of the first set of claims covering
gubernatorial executive orders and proclamations which set aside 29,633 acres
of lands for public uses such as forest reserves, schools, and parks; and
WHEREAS, Act 316, Session Laws of Hawaii 1992, provided $12,000,000 to pay verified claims and provide other means to resolve public use controversies; and
WHEREAS, the Legislature approved further means to resolve verified claims in Act 352, Session Laws of Hawaii 1993, which extended the period within which to pay compensation, continued the authorization of the State to pursue claims against the United States for the federal government's wrongful actions, and authorized land exchanges to resolve alienations of Hawaiian home lands; and
WHEREAS, the reappraisal resulted in a settlement that was affirmed in Act 14, Special Session Laws of Hawaii 1995 (Act 14), to provide for a full settlement of all land claims made on behalf of the Hawaiian Home Lands Trust against the State between August 21, 1959, and July 1, 1988; and
WHEREAS, in Act 14, the Legislature found that due to the difficulty, time, uncertainty, disruption of public purposes, impact to the public land trust and private landowners, and expenses of judicial resolutions of remaining disrupted claims, another approach, which results in the repair of the Hawaiian home lands trust and the final resolution of claims against the State, was necessary and in the best interests of the State and the beneficiaries of the trust; and
WHEREAS, in passing Act 14, the intent of the Legislature was, in part, to: resolve all controversies for the period between August 21, 1959 and July 1, 1988, allowed by Act 395, except those permitted by chapter 674, Hawaii Revised Statutes; resolve all controversies relating to the validity of patents issued after 1920 and prior to July 1, 1988, and affecting any lands covered by or allegedly covered by the HHCA and to all rights arising from or relating to such patents as issued; and make certain other related amendments to chapters 673 and 674, Hawaii Revised Statutes; and
WHEREAS, Act 14 was intended to further the public interest to ensure that claims with respect to the administration of the Hawaiian Home Lands Trust brought pursuant to chapters 673 and 674, Hawaii Revised Statutes were resolved in a fair, complete, and timely manner; and
WHEREAS, the Legislature
also found that to properly utilize Hawaiian home lands, there was a need to establish
a substantial, predictable funding mechanism for DHHL to effectuate the purposes
of the HHCA; to address that need, Act 14 established the Hawaiian Home Lands
Trust Fund; and
WHEREAS, through Act 14, the State was required to make twenty annual deposits of $30,000,000, or their discounted value equivalent, into the trust fund; and
WHEREAS, Act 14 directed that the proceeds deposited into the Hawaiian Home Lands Trust Fund were to be used by the DHHL for capital improvements and other purposes undertaken in furtherance of the HHCA, affirmed DHHL's fiduciary responsibility toward the trust fund, and required DHHL to provide annual financial reports to the Legislature and beneficiaries of the Hawaiian Home Lands Trust; and
WHEREAS, Act 14 contained a specific provision clarifying that payments made pursuant to its provision would not diminish the funds the DHHL is entitled to under article XII, section 1, of the Hawaii State Constitution; and
WHEREAS, Act 14 also required the transfer of various state lands to the DHHL, compensation for all remaining confirmed uncompensated public uses of Hawaiian home lands, and the initiation of a land exchange to remedy uncompensated use of Hawaiian home lands for state roads and highways; and
WHEREAS, with the passage of Act 14, with respect to all controversies that arose between August 21, 1959, and July 1, 1988, excluding individual claims provided for pursuant to chapter 674, Hawaii Revised Statutes, the State withdrew the limited waiver of sovereign immunity permitted by Act 395, thereby forever barring all claims arising between August 21, 1959, and July 1, 1988; and
WHEREAS, Act 14 authorized the transfer of 16,518 acres of state land to DHHL to restore the corpus to its original estimated acreage; and
WHEREAS, the Department of Land and Natural Resources has conveyed 16,298.975 acres to the Hawaiian Homes Commission, of which the 15,742.652 acres are in satisfaction of the requirements of Act 14; and
WHEREAS, over twenty-five years have passed since the enactment of Act 14; despite the assurances of fulfilling homestead obligations to HHCA beneficiaries, the need for affordable housing for beneficiaries remains great; and
WHEREAS, more than two thousand native Hawaiian beneficiaries have died while on the Hawaiian homes waiting list for a home land lease, and twenty-eight thousand beneficiaries currently remain on the list, causing HHCA beneficiaries to languish; and
WHEREAS, the existing status of Act 14 and whether its mandates to provide for a settlement of all state land claims for the benefit of native Hawaiians under the HHCA have been fulfilled are unknown; and
WHEREAS, in 2020, in Kalima v. State, the Hawaii Supreme Court concluded that the State breached its duties as a trustee of the HHCA to keep and render accounts, exercise reasonable care and skill, administer the trust, to make the trust property productive, and failing to correct the ongoing dispossession of trust lands to the significant detriment of the native Hawaiian people for whom the Trust was created and failed to restore those lands to the trust by failing to compensate the trust with the lands' rental value while in use by non-beneficiaries; and
WHEREAS, since the enactment of Act 14, the Department of Interior promulgated regulations under 43 Code of Federal Regulations (CFR) parts 47 and 48, to clarify how the Department of Interior administers certain provisions of the HHCA and the Hawaiian Home Lands Recovery Act with the goal of facilitating the rehabilitation of the native Hawaiian community, including the return of native Hawaiians to the land, consistent with the HHCA, the State of Hawaii Admission Act, and the Hawaiian Home Lands Recovery Act; and
WHEREAS, these regulations seek to clarify the land exchange process for Hawaiian home lands, the documents required for land exchanges, and the respective responsibilities of the Department of the Interior, DHHL, Hawaiian Homes Commission, and other entities engaged in land exchanges of Hawaiian home lands; and
WHEREAS, 43 CFR Parts 47 and 48 provide that the HHCA, Admission Act, and Hawaiian Home Lands Recovery Act defined the three parties involved in reviewing land exchanges involving Hawaiian home lands and proposed amendments to the HHCA; these parties are the federal government (represented by the Secretary of the Interior); State (represented by DHHL and the Hawaiian Homes Commission); and beneficiaries as defined under the HHCA; and
WHEREAS, the Legislature continues to have concerns about the following issues:
(1) Outstanding issues related to Act 14;
(2) Claims made pursuant to chapter 673, Hawaii Revised Statutes, which arose after July 1, 1988; and
(3) The outstanding status of certain elements such as the Mauna Kea Access Road;
now, therefore,
BE IT RESOLVED by the House of Representatives of the Thirty-first Legislature of the State of Hawaii, Regular Session of 2021, the Senate concurring, that the Department of Hawaiian Home Lands and Department of Land and Natural Resources is requested to convene a working group to assess the status of Act 14; and
BE IT FURTHER RESOLVED that the working group is requested to comprise the following members, or their designees:
(1) A representative from the United States Department of the Interior;
(2) The Chairperson of the Board of Land and Natural Resources, who is requested to serve as a co-chair of the task force;
(3) The Chairperson of the Hawaiian Homes Commission, who is requested to serve as a co-chair of the task force;
(4) The Attorney General;
(5) The Chairperson of the Sovereign Council of Hawaiian Homestead Associations, a federally funded defined statewide beneficiary organization;
(6) A representative from a federally defined regional homestead association deemed necessary by the Department of Hawaiian Home Lands; and
(7) Any other members deemed necessary by the working group; and
BE IT FURTHER RESOLVED that the working group is requested to identify:
(1) The requirements of Act 14;
(2) The requirements that have been fulfilled, including when and how they were fulfilled;
(3) Outstanding issues related to Act 14;
(4) The steps necessary to finalize outstanding claims related to Act 14;
(5) Claims pursuant to chapter 673, Hawaii Revised Statutes, which arose after July 1, 1988; and
(6) The annual revenues and expenditures from the Hawaiian Home Lands Trust Fund since 1995; and
BE IT FURTHER RESOLVED that the working group is requested to submit a report of its findings and recommendations, including any proposed legislation, to the Legislature and beneficiaries of the Hawaiian Home Lands Trust no later than twenty days prior to the convening of the Regular Session of 2022; and
BE IT FURTHER RESOLVED that the task force be dissolved on June 30, 2022; and
BE IT FURTHER RESOLVED that certified copies of this Concurrent Resolution be transmitted to the Secretary of the United States Department of the Interior, Governor, Attorney General, Chairperson of the Hawaiian Homes Commission, and Chairperson of the Board of Land and Natural Resources.
Department of Hawaiian Home Lands; Department of Land and Natural Resources; Working Group; Status of Act 14, Special Session Laws of Hawaii 1995
