Bill Text: HI SB996 | 2010 | Regular Session | Introduced

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Bill Title: Office of Hawaiian Affairs; Ceded Lands

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2009-05-11 - Carried over to 2010 Regular Session. [SB996 Detail]

Download: Hawaii-2010-SB996-Introduced.html

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Report Title:

Office of Hawaiian Affairs; Ceded Lands

 

Description:

Prohibits the disposition in fee simple of ceded lands.

 

THE SENATE	S.B. NO.	996
TWENTY-FIFTH LEGISLATURE, 2009
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to lands controlled by the state.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     Section 1.  In 1978, the Constitution of the State of Hawai`i was amended to include article XII, sections 4, 5, and 6, which established the office of Hawaiian affairs and its board of trustees. 

     Sections 4, 5, and 6 of the state constitution provide:

     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.

     SECTION 5.  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.  There shall be a board of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians, as provided by law.  The board members shall be Hawaiians.  There shall be not less than nine members of the board of trustees; provided that each of the following Islands have one representative:  Oahu, Kauai, Maui, Molokai and Hawaii.  The board shall select a chairperson from its members.

     SECTION 6.  The board of trustees of the Office of Hawaiian Affairs 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 Office of Hawaiian Affairs through its executive officer, the administrator of the Office of Hawaiian Affairs, who shall be appointed by the board.

     In Act 354, Session Laws of Hawaii 1993, the legislature stated:

Until the provisional government was recognized by John L. Stevens, the Kingdom of Hawaii was recognized as an independent nation by the United States, France, and Great Britain.  Many native Hawaiians and others view the overthrow of 1893 and subsequent actions by the United States, such as supporting establishment of the provisional government and later the Republic of Hawaii, the designation of the crown and government lands as public lands, annexation, and the ceding of public lands to the federal government without the consent of native Hawaiians, as illegal.  Because the actions taken by the United States were viewed as illegal and done without the consent of native Hawaiians, many native Hawaiians feel there is a valid legal claim for reparations.  Many native Hawaiians believe that the lands taken without their consent should be returned and if not, monetary reparations made, and that they should have the right to sovereignty, or the right to self-determination and self-government as do other native American peoples.

The legislature has also acknowledged that the actions by the United States were illegal and immoral, and pledges its continued support to the native Hawaiian community by taking steps to promote the restoration of the rights and dignity of native Hawaiians.

     In Act 359, Session Laws of Hawaii 1993, the legislature stated:

     (4)  Throughout the 19th century and until 1893, the United States:

         (A)  Recognized the independence of the Hawaiian Nation;

         (B)  Extended full and complete diplomatic recognition to the Hawaiian government; and

         (C)  Entered into treaties with the Hawaiian government to govern commerce and navigation in 1826, 1842, 1849, 1875 and 1887;

. . . .

     (6)  In pursuit of that conspiracy, the United States Minister and the naval representative of the United States caused armed forces of the United States to invade the sovereign Hawaiian Nation in support of the overthrow of the indigenous and lawful government, and the United States Minister thereupon extended diplomatic recognition to a provisional government formed by the conspirators without the consent of the native Hawaiian people or the lawful Government of Hawaii in violation of treaties between the two nations and of international law;

. . . .

     (9)  In 1898, Hawaii was annexed to the United States through the Newlands Resolution without the consent of or compensation to the indigenous people of Hawaii or their sovereign government.  As a result, the indigenous people of Hawaii were denied the mechanism for expression of their inherent sovereignty through self-government and self-determination, their lands and their ocean resources.

     In 1993, Congress passed Public Law 103-150, the Apology Resolution, which stated:

Whereas, from 1826 until 1893, the United States recognized the independence of the Kingdom of Hawaii, extended full and complete diplomatic recognition to the Hawaiian Government, and entered into treaties and conventions with the Hawaiian monarchs to govern commerce and navigation in 1826, 1842, 1849, 1875, and 1887;

Whereas, on July 4, 1894, the Provisional Government declared itself to be the Republic of Hawaii;

Whereas, through the Newlands Resolution, the self-declared Republic of Hawaii ceded sovereignty over the Hawaiian Islands to the United States;

Whereas, the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government;

Whereas the Congress, through the Newlands Resolution, ratified the cession, annexed Hawaii as part of the United States, and vested title to the lands in Hawaii in the United States;

Whereas the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum;

. . . .

SECTION 1. ACKNOWLEDGMENT AND APOLOGY.

The Congress –

     (1)  On the occasion of the 100th anniversary of the illegal overthrow of the Kingdom of Hawaii on January 17, 1893, acknowledges the historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian people;

. . . .

     (3)  Apologizes to Native Hawaiians on behalf of the people of the United States for the overthrow of the Kingdom of Hawaii on January 17, 1893 with the participation of agents and citizens of the United States, and the deprivation of the rights of Native Hawaiians to self-determination;

     (4)  Expresses its commitment to acknowledge the ramifications of the overthrow of the Kingdom of Hawaii, in order to provide a proper foundation for reconciliation between the United States and the Native Hawaiian people; and

     (5)  Urges the President of the United States to also acknowledge the ramifications of the overthrow of the Kingdom of Hawaii and to support reconciliation efforts between the United States and the Native Hawaiian people.

     In 1993, the legislature also adopted House Concurrent Resolution No. 179 that included almost all of the parts of the Apology Resolution including the finding that: "Whereas the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum".

     In 1997, the legislature enacted Act 329, Session Laws of Hawaii 1997, which stated:

The legislature finds that the events of history relating to Hawaii and Native Hawaiians, including those set forth in [the Apology Resolution] continue to contribute today to a deep sense of injustice among many Native Hawaiians and others.  The legislature recognizes that the lasting reconciliation so desired by all people of Hawaii is possible only if it fairly acknowledges the past while moving into Hawaii's future.

The legislature further finds that over the last few decades, the people of Hawaii through amendments to their state constitution, the acts of their legislature, and other means, have moved substantially toward this permanent reconciliation. Foremost among these achievements have been the creation of the [O]ffice of Hawaiian [A]ffairs and the allocation by legislative action to the [O]ffice of Hawaiian [A]ffairs of substantial funds out of a portion of the public land[s] trust established by section 5(f) of the Admission Act.  The overriding purpose of this Act is to continue this momentum, through further executive and legislative action in conjunction with the people of Hawaii, toward a comprehensive, just, and lasting resolution.

In 2001, S. 746, the federal legislation commonly referred to as the "Akaka Bill" was passed out of the Senate Committee on Indian Affairs.  Senate Committee Report No. 107-66, on the Akaka Bill explains that its purpose "is to authorize a process for the reorganization of a Native Hawaiian government and to provide for the recognition of the Native Hawaiian government by the United States for the purpose of carrying on a government-to-government relationship."  The Akaka Bill, authorizes the federal government to negotiate with the State and the reorganized native Hawaiian government for a transfer of land and resources to a native Hawaiian government.  The native Hawaiian government would thus have a land base and resources and a status similar to that of other native peoples in the United States.  The Committee Report on the Akaka Bill explains that "it is the Committee's intent that the references to 'land, resources, and assets dedicated to [n]ative Hawaiian use' include, but not be limited to lands set aside under the Hawaiian Homes Commission Act and ceded lands."

In 2007, H.R. 505, the latest version of the Akaka Bill, passed the U.S. House of Representatives.  Section 8 of H.R. 505 also includes a provision authorizing the United States and State of Hawai‘i to "enter into negotiations with the Native Hawaiian governing entity designed to lead to an agreement addressing such matters as the transfer of lands, natural resources, and other assets, and the protection of existing rights related to such lands or resources[;]."

In January 2008, the Hawai`i supreme court in Office of Hawaiian Affairs v. Housing And Community Development Corporation Of Hawai‘i, 117 Hawai'i 174, 177 P.3d 884 (2008) (OHA v. HCDCH), enjoined the State from selling or otherwise transferring to third parties any ceded lands from the public lands trust until the claims of the native Hawaiian people to the ceded lands have been resolved.  The plaintiffs in the OHA v. HCDCH case and the legislature agree that based on the language of the OHA v. HCDCH decision, the Hawaii supreme court intended that the injunction would remain in place until the native Hawaiian claim to the ceded lands is resolved unless, prior to any such resolution, the legislature no longer desires reconciliation between the State and the native Hawaiian people.  In other words, if prior to any resolution, the legislature no longer desired reconciliation, regardless of the Apology Resolution, the injunction would no longer be appropriate.

In October 2008, the United States Supreme Court granted the State’s petition for certiorari in the OHA v. HCDCH case.

The legislature supports this Act as a means of preserving the status quo and ensuring that the public lands trust is preserved in order to ensure a fair and just settlement leading to reconciliation with the native Hawaiian people.

     SECTION 2.  Chapter 171, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

     "§171-A  Sale of lands in the public land trust.  Notwithstanding any law to the contrary, no sale in fee simple shall be made of:

     (1)  Lands ceded to the United States 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 granted to the State of Hawaii by virtue of section 5(b) of the Admission Act of 1959; or

     (2)  Lands retained by the United States under section 5(c) and (d) of the Admission Act of 1959 and later conveyed to the State under section 5(e) or under the Act of December 23, 1964 (Pub. Law 88-233, 77 Stat. 472).

     §171-B  Exchange of lands in the public land trust for private land.  (a)  Notwithstanding any law to the contrary, no exchange shall be made of:

     (1)  Lands ceded to the United States 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 granted to the State of Hawaii by virtue of section 5(b) of the Admission Act of 1959; or

     (2)  Lands retained by the United States under section 5(c) and (d) of the Admission Act of 1959 and later conveyed to the State under section 5(e) or under the Act of December 23, 1964 (Pub. Law 88-233, 77 Stat. 472)."

     SECTION 3.  Section 171-13, Hawaii Revised Statutes, is amended to read as follows:

     "§171-13  Disposition of public lands.  Except as otherwise provided by law and subject to other provisions of this chapter, the board may:

     (1)  Dispose of public land in fee simple, by lease, lease with option to purchase, license, or permit[; and], except dispositions that result in or may result in alienation of the fee of lands:

         (A)  Ceded to the United States 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 granted to the State of Hawaii by virtue of section 5(b) of the Admission Act of 1959; or

         (B)  Lands retained by the United States under section 5(c) and (d) of the Admission Act of 1959 and later conveyed to the State under section 5(e) or under the Act of December 23, 1964 (Pub. Law 88-233, 77 Stat. 472), are subject to sections 171-A and 171-B; and

     (2)  Grant easement by direct negotiation or otherwise for particular purposes in perpetuity on such terms as may be set by the board, subject to reverter to the State upon termination or abandonment of the specific purpose for which it was granted, provided the sale price of such easement shall be determined pursuant to section 171-17(b).

No person shall be eligible to purchase or lease public lands, or to be granted a license, permit, or easement covering public lands, who has had during the five years preceding the date of disposition a previous sale, lease, license, permit, or easement covering public lands cancelled for failure to satisfy the terms and conditions thereof."

     SECTION 4.  This Act does not affect the state practice of transferring remnants, and issuing licenses, permits, easements and leases.

     SECTION 5.  This Act shall remain in effect until the claims of the native Hawaiian people to the public land trust lands have been resolved or until the legislature finds that the State no longer supports reconciliation between the State and the native Hawaiian people.

     SECTION 6.  In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________
	By Request