Ka Wai Ola - Office of Hawaiian Affairs, Volume 13, Number 1, 1 January 1996 — Hawaiians kūkākūkā on future of ceded lands trust [ARTICLE]

Hawaiians kūkākūkā on future of ceded lands trust

by Patrick Johnston The financial trust that OHA administers has grown enormously in the past few years but restrictions rooted in the 1921 Hawaiian Homes Commission Act (HHCA) make it difficult to spend that money for the benefit of the entire Hawaiian community. The state constitution stipulates that ceded lands revenue — moneys that form the basis for the OHA trust - be used to benefit native Hawaiians as defined in the HHCA. The Congressional act defines "native Hawaiian" as an individual with 50 percent Hawaiian blood or more. However, state revenues have plummeted and increasingly the state is looking to OHA to fund programs it ean no longer afford. A case in point is a recent agreement between OHA and the Department of Land and Natural Resources (DLNR) in whieh OHA said it would pay for the salaries of two staff

members of the DLNR's burial sites program. But under present laws, any use of trust moneys has to pass the litmus test of proving it is being used to support individuals with 50 percent Hawaiian blood or more. In the past, OHA could get around this restriction by having the state provide matching funds for programs serving the Hawaiian community. Recently, with its cupboard bare, the state has been looking for ways to tap the OHA kitty without having to shell out a matching share. In the last legislative session, the house introduced a number of bills that would have affected OHA's share of ceded lands revenue. One aimed to amend the term " 'native Hawaiian' to mean a person who, prior to 1921, has not less that one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778." Another aimed to use a certain percentage

of OHA's ceded lands revenue for capital improvement projects on ceded lands. Neither bill made it through the Legislature but OHA staff and trustees believe similar bills will be introduced in the upcoming legislative session. The future of ceded lands revenue A problem that cannot be ignored in the trust fund debate is the growing Hawaiian population; while the portion of the population that is officially "native Hawaiian" is on the decline, the rest of the Hawaiian community is increasingly substantially. This reality would favor changing the laws so that more Hawaiians could have access to ceded lands revenue. However, while OHA trustees support any efforts to get trust funds working for all Hawaiians, some are apprehensive about any initiative that would allow the state to abandon its support of Hawaiian programs.

The present restrictions on ceded lands revenue use, while not perfect, keep the state honest by forcing it to eome up with some of the funding for Hawaiian programs. Without the restrictions, the state could tell OHA - all in the name of budget cutting - to pay for the program itself or do without. "The state cannot relinquish its fiduciary responsibities," Trustee Frenchy DeSoto said last month. There is also concemed about the divisive nature of the issue within the Hawaiian community. Individuals with 50 percent Hawaiian blood or more tend to oppose any changes to the law; many of those with less than 50 percent would like to see some modifications. The issue is confused by problems surrounding the Hawaiian home lands trust. The land tmst created by the HHCA also only serves Hawaiians of 50 percent blood or more but is largely viewed continued page 16

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as having failed in getting beneficiaries onto homestead land. Native Hawaiians on the homestead waiting list are concemed that a change in the law will further hurt a trust already crippled by broken promises. At a legislative review committee meeting held November 28, chairwoman Frenchy DeSoto invited legislators and representatives ffom most of the major Hawaiian agencies to develop a eommon front against future state attempts to change the ceded lands law, and to discuss ways to use the trust moneys to effectively reach all Hawaiians. "This is an attempt to arm ourselves against the onsiaught that will be coming down against the Hawaiian people," DeSoto said in reference to future ceded lands legislation. She added that her committee would like to develop a position on trust fund use "that is reflective of the community."

OHA government affairs officer Scotty Bowman made it clear at the beginning of the meeting that the issue on the table was OHA trust funds, not home lands. "It is not OHA's intention to suggest or to take, any action whieh will result in a change of the DHHL blood quantum for homestead leases." Manv of those present at the meeting were open to some sort of modification to present laws but rcmained apprehensive about opening up the trust to all Hawaiians. There was eoneem that any drastic change would polarize an already divided community and allow the state to avoid supporting Hawaiian programs. To get around the problem, OHA trastees and some participants suggested that the ideal solution to the problem of serving all Hawaiians was to create a third trast, one with less stringent blood quantum restrictions.

Trustee Kīna'u Kamali'i said the purpose of the trust would not be to take away from those presently entitled but to help all Hawaiians. "We need to eome together as Hawaiians. We need to look at what our future is all about." Kamali'i also brought up the issue of land claims as part of third trust discussions. "We need to go back to the state. They have the land. We have to sit down and discuss the land claims issue as well." Trustee Rowena Akana argued that a new trust could be justified when one considered that OHA is only receiving 20 percent of proprietary revenue from ceded lands, but not sovereign revenue. (Proprietary revenues include fees, rent, or other incomes derived from the use of cede lands. These are distinguished from sovereign revenues whieh are derived through the exercise of sovereign functions like collecting taxes, fees, or tuition.)

This means that technically OHA is only receiving 20 percent of half of ceded lands revenue. Akana believes OHA should go after the 20 percent of sovereign revenues, and use it to create a trust for all Hawaiians. There was general consensus at the end of the meeting that OHA should draft legislation proposing a third trust. As Ka Wai Ola went to press Trustee Kamali'i was working with OHA Land and Natural Resources Officer Linda Delaney and attomey Jon van Dyke in preparing such legislation to present to OHA trastees. Delaney says the legislation would be a "land claims package" whieh wodld include "property and money presented against the state on behalf of all Hawaiians regardless of quantum." If trustees approve the legislation, it would become part of OHA's legislative package and introduced in the upcoming legislative session.