Ka Wai Ola - Office of Hawaiian Affairs, Volume 7, Number 4, 1 April 1990 — Mai Wakinekona [ARTICLE+ILLUSTRATION]

Mai Wakinekona

By Paul Alexander Washington, D.C. Counsel for OHA

Congress studies changes to Hawaiian Homes Commission Act

Amendments to the Hawaiian Homestead Commission Act of 1921 were the subject of a March 8 hearing before the U.S. Senate Committee on Energy and Natural Resources in Washington, D.C. lf it became law, the bill (Senate Joint Resolution 154) would provide the consent of the United States to six Acts of the State of Hawai'i to amend the Hawaiian Homes Commission Act. It is rare that the United States has the right to approve or disapprove the legislative actions of one of the 50 sovereign states. The United States has the right because of its obligations to Native Hawaiians under the trust it created in 1921: the Hawaiian Homes Commission (HHC). Under the Hawai'i Admission (Statehood) Act of 1959 the administration of the HHC trust was transferred to the State of Hawai'i. Under Section 4 of the Admission Act, the consent of the United States is required, with certain exceptions, to any amendments to the Hawaiian Homes Commission Act. Senate Joint Resolution 154 represents only the second time that Congress has reviewed amendments to the Hawaiian Homes Commission Act. The six amendments to the laws of Hawai'i are: Act 84, 1986 session, whieh allows the HHC to develop lands for homesteading and ineome generation purposes by contract and agreement with private developers; Act 85, 1986 session, whieh allows the HHC to use its credit as collateral for borrowing from financial institutions and to allow trust funds to serve as a guarantee or reserve for FH A mortgage programs for homesteaders; Act 249, 1986 session, whieh allows consolidation of 15 separate accounts into seven accounts of the HHC;

Act 36, 1987 session, repeals Act 112 (1981) whieh was inconsistent with HHCA amendments previously approved by Congress on the value of improvements on a lease, in an heirship situation, where no eligible heir could inherit the leasehold; Act 75, 1986 session, whieh provides for a new alternative leasing program where the leasehold, as a property interest, could be a basis for financing leasehold improvements. The March hearing focused on three issues: whether all state-enacted amendments should continue to be submitted for federal approval; whether the United States had a trust responsibility with respect to the HHC; and whether Act 75 would permit (even in theory) the leasehold interests to be indefinitely alienated. Sen. Wendell Ford (D. Ky.) chaired the hearing and spoke about the committee's concerns with Act 75. The first witness was Sen. Daniel K. Inouye (D. Hawai'i) who testified then joined the hearing panel. Inouye said that the United States has a trust responsibility to Native Hawaiians whieh is reflected in the HHCA. He also expressed some reservations concerning Act 75. The Department of the Interior representative said all the amendments should be approved and that the department should defer to the judgements of the Hawai'i legislature. The Interior's witness also took exception to the view that the United States has a trust responsibility for the HHCA. Sen. Inouye, through a series of examplequestions, forced the Department's witness to qoncede that the United States has the legal obligation to protect the trust. Chairperson Hoaliku L. Drake of the Hawaiian Homes Commission, accompanied by George Kaeo, Hawaii's deputy attorney general, testified

about all the amendments. She explained eaeh amendment and provided an historic perspective on the HHC and the significant problems it faces in financing the infra-structure and improvements needed to meet the goals of the Homestead program. Act 75 was designed to address financing problems. George Kaeo explained that existing HHC leasing procedures would prevent the problem of leasehold alienation, but acknowledged that the HHC procedures were not specified in Act 75. OHA testified and strongly supported enhancing, not reducing the federal responsibility for the HHC; and also supported continued Congressional oversight over amendments to the HHCA. OHA testified that the United States has a trust responsibility to Native Hawaiians and the August 1989 hearings in Hawai'i demonstrate a need for federal assistance in addressing problems faced by Native Hawaiians. Testimony also noted concerns with Act 75. It is likely that the Senate Energy and Natural Resources Committee will approve the amendments, but may require either conditional approval of Act 75 whereby the HHC is mandated to maintain protective leasing procedures, or may require that specific amendments to Act 75 be passed by the Hawai'i legislature. These hearings are the first stage in the process that will require positive votes in the Senate and the House of Representatives and the approval of the president for Resolution 154 to become law.