Ka Wai Ola - Office of Hawaiian Affairs, Volume 5, Number 7, 1 July 1988 — A History of Public Land Trust, OHA Entitlement [ARTICLE+ILLUSTRATION]

A History of Public Land Trust, OHA Entitlement

lssues Surrounding OHA 's Qi

By Deborah Lee Ward, Assistant Editor Ka Wai Ola O OHA This is the first in a series of articles on the history of the Hawaii public land trust and the OHA Trust Entitlement. The purpose of this series is to provide an understanding of the issues surrounding OHA's quest for ceded lands revenue as provided by state law, and OHA's initiatives for Hawaiians onee a settlement is achieved. Later articles will examine "The Future of the Public Lands Trust and the OHA Entitlement". Far-reaching actions that may spell major advances for Hawaiian self-determination and increased access to resources for the Hawaiian community are being simultaneously developed in a history-making period of growing political power for Hawaiians. Following the "Year of the Hawaiian," in whieh Hawaiians acknowledged "Ho'olako," enrichment of the race, we eame together at the Aloha Stadium to demonstrate "Ho'olokahi," unity. Now the question is "What next?" The answer must be "Ho'okahi," to be one people united in securing all the entitlements of our unique legal status as the first people of these islands. A partial answer to the question was the landmark pieee of legislation enacted this year by the Legislature granting the "right to sue" whieh provides Hawaiian individuals and organizations with a legal meehanism to sue for breaches of the two state trusts set aside specifically for Hawaiians, namely the OHA ceded land trust and the Hawaiian Home Lands trust. Hope for another significant advance continues as ongoing meetings between a special committee of OHA Trustees and the Governor's Office are held to resolve continuing disagreements about the nature and extent of the OHA entitlement to revenues generated from certain ceded Iands. Successful resolution of these differences may mean a substantial increase in resources available to OHA in money, land or programs that will allow this state agency to fully carry out its mandate to better conditions for all Hawaiians. Understanding the disagreements that must be resolved through the negotiations process is virtually impossible without first knowing the history of the public lands trust and the course OHA has followed in pursuit of this entitlement. History of the Public Lands Trust and the OHA Entitlement What are the "ceded lands"? Ceded lands represent more than 1.7 million acres of former public, crown and government lands originally vested in (owned by) the Kingdom of Hawai'i, that were surrendered — or ceded— to

the U. S. government by the Republic of Hawai'i at annexation in 1898. (Note: the surrender of these lands — without the consent of or compensation to the Hawaiian people — along with earlier illegal acts associated with the overthrow of the Hawaiian nation, forms the basis of claims for federal reparations.) However, the Newlands Resolution of Annexation approved by the U. S. Congress only acknowledged that these ceded lands were being transferred as a trust that, except for lands set aside for national use, was to be "used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." The Organic Act of 1900 whieh set up the framework for the Territory of Hawaii provided that the territorial government would retain control and management of ceded lands, except for those lands "set aside" for the United States by either the Governor's or President's Executive Order. What is the Hawaiian Home Lands T rust? The first recognition of the special relationship between the federal government as trustee of the ceded lands and native Hawaiians as particular beneficiaries eame in 1920. In that year, the passage of the Hawaiian Homes Act set aside almost 200,000 acres of ceded lands for the "rehabilitation of native Hawaiians." (This trust is completely separate from the OHA trust and the Office is prohibited by statute from receiving any ineome from DHHL lands.) What are "public trust lands?" When Hawaii was admitted to statehood in 1959, the federal government returned to the State of Hawaii ownership of the bulk of the ceded lands.

The description and disposition of the ceded lands was detailed in Section 5 of the Admissions Act (see graph). Section 5(f) mandated the State to continue managing the ceded lands trust as a public trust, as was first imposed at annexation. For the first time, this section explicity defined the several purposes of the trust. Among others, they include: bettering the conditions of native Hawaiians (Hawaiians with at least 50 percent quantum Hawaiian blood); and support of public education. What is the OHA Trust? In 1978, a series of State Constitutional amendments ratified by the voters of Hawai'i, expanded implementation of Section 5(f). These changes established the Office of Hawaiian Affairs and recognized a unique OHA trust entitlement. Article XII, Section 4 of the revised constitution, specified that the 1.2 million acres granted to the state by section 5(b) of the Admission Act, excluding the 188,000 acres of Hawaiian Home Lands, were to be held as a public trust for two beneficiaries, native Hawaiians and the general public. A pro rata portion of the proceeds derived from the sale or other disposition of those lands was earmarked for native Hawaiians (those with 50 percent or more Hawaiian blood). The OHA trustees were charged with administering those funds as well as trust revenue for Hawaiians with-less than 50 percent Hawaiian blood. The constitution thus created trusts to benefit both "Hawaiians" and "native Hawaiians". The pro rata portion of the trust ineome designated for native Hawaiians was set at 20 percent by the State legislature in 1980. Article XII of the Constitution does not establish funding for OHA's other class of beneficiaries, the "Hawaiians". Since 1980, the State legislature has been the primary source of funding for "Hawaiians". Although Hawaii Revised Statutes are clear that "20 percent of all funds derived from the public land trust" are to go to OHA for "the betterment of conditions of native Hawaiians", from the beginning, the state administration has excluded revenues generated by trust lands administered by the State Department of Transportation (DOT). The State Department of Land and Natural Resources, charged with the jurisdictional administration of nearly 1.4 million acres of state 5(b) lands, transfers an average of $1.5 million to OHA eaeh year for native Hawaiians. However, the Department of Transportation, whieh administers state harbors and airports, is the largest potential generator of OHA trust ineome. In March of 1983, a Legislative Auditor's draft report on the Public Land Trust concluded that OHA is entitled to ineome produced by a mueh broader category of public lands than it had been receiving.

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