Ka Wai Ola - Office of Hawaiian Affairs, Volume 28, Number 1, 1 January 2011 — NATIVE HAWAIIAN » NEWS | FEATURES | EVENTS OHA gears up for legislative session [ARTICLE+ILLUSTRATION]

NATIVE HAWAIIAN » NEWS | FEATURES | EVENTS OHA gears up for legislative session

By Lisa Asato When the state Legislature convenes in January, OHA will put forth a package of bills

that may not be llashy but would significantly improve the Native Hawaiian community, by creating requirements for cultural impact assessments; establishing tuition waivers for Native Hawaiian students attending all University of Hawai'i campuses; and creating training for officials with puhlie trust duties to Native Hawaiians, among other measures. "It's not a flashy package, but it's a solid one that will help us support Native Hawaiian interests and help the state make better decisions when it comes to Native Hawaiian issues," said Jobie Masagatani, OHA Puhlie Policy Manager. OHA's package of nine measures, whieh has been approved by the Board of Trustees, will be introduced when the session opens Jan. 19. Here is a look at the measures: PAST-DUE REVENUES OHA strives this session to have the Legislature settle the past-due revenues owed to OHA by the state for its use of ceded lands. The courts have directed the Legislature to address the matter, but a $200 million settlement agreement between the Lingle administration and OHA was not approved by the Legislature, despite efforts during the past three years. Newly elected Gov. Neil Abercrombie has said a settlement is overdue and that his

good working relationship with state lawmakers will work in favor toward a settlement. STATE SALES 0F PUBLIC LANDS Another bill would amend Act 176, whieh requires two-thirds approval by both chambers of the legislature before state agencies ean sell or gift puhlie land - including ceded land. The amendments would require more information for

proposed lands sales by the state and give OHA more time to review them. The information would include whether the land is ceded, how that determination was made, and specify its location, size and reason for being sold. State agencies would also have to notify OHA of any proposed sales or gifting of lands six months before the legislative session begins to give it ample time for review. Act 176, passed in 2009, settled a 15-year-old lawsuit in whieh OHA

and four individuals sought to prevent the state from alienating ceded lands until the Native — Hawaiian people's claims to those lands have been resolved. "The bill is important because it is essential to protect the ceded

lands - the lands that were crown and government lands during the Kingdom - from being sold or transferred prior to the settlement of the claims of the Native Hawaiians," said UH law Professor Jon Van Dyke, author of the book Who Owns the Crown Lands of Hawai'i? "It is frequently difficult to determine whether specific lands are

ceded lands, so this bill would shift the burden to the government agency to establish that the lands being proposed for transfer are not ceded lands, and would provide adequate time for OHA and other groups to evaluate the evidence presented to support that determination - and to challenge the determination if the evidence seems inadequate."

He added, "It's a very good and important bill to make sure the lands important to Hawaiians are in fact protected from , , | ||l

being dissipated until claims of the Native Hawaiian people are resolved." CRIMINAL JUSTICE SYSTEM OHA will also propose the establishment of a temporary task force to address the findings and recommendations of OHA's 2010 study The Disparate Treatment ofNative Hawaiians in the Criminal Justice System. The task force would be comprised of the OHA CEO, State Attorney General, the Administrator of the Adult Client Services Branch of the First Circuit, the Director of the Puhlie Safety Department, a Circuit Court Judge appointed by the Chief Justice of the state

Supreme Court and a county Poliee Chief. Because the study found that the disparate treatment accumulates as Native Hawaiians progress through the system, task members would make recommendations on laws, if any, that could be updated in order to reduce entry of all ethnicities into the state's criminal justice system. "We're lookina at an increase in Native

Hawaiians as they go further along in the criminal justice system, so if we cut if off at the source, it will reduce that increase," said Jeff Kent, OHA Puhlie Policy Advocate. "It's not saying people

who commit crimes shouldn't be punished. But

certain 1 a w s o n

www.oha.org/kwo | kwo@OHA.org

"It s avery good and important bill to make sure the lands important to Hawaiians are in fact protected from being dissipated until claims of the Native Hawaiian people are resolved." — UH law Professor Jon Van Dyke, describing OHAs bill that would amend ACT 176

LEGISLATURE

the books need to be updated, because they don't necessarily reflect what truly is a criminal act. That would be something for the task force to discuss and share their ideas on." An example, he said, would be when several years ago traffic ticket violations were downgraded from being a criminal issue to a civil violation. "If there are other laws like that, we'd like to take a look that," he said, adding that any change in law would affect all ethnicities not just Native Hawaiians. "Any improvement to the systembecause of the greater number of Native Hawaiians, is going to greatly benefit OHA beneficiaries first." CULTURAL IMPACT A88E88MENĪ8 In 2000, Act 50 amended Hawai'i's laws to require that all environmental impact statements include an assessment of a project's impacts on cultural practices. However, no regulatory requirements were adopted to specify exactly what should be included in a eultural impact assessments (CIA). "As a result, we've seen vast differences among CIAs, from thorough to lackluster," said Sterling Wong, OHA Senior Policy Advocate. OHA's bill would define a "eultural impact assessment" as "a document that discloses the effects of a proposed action on native Hawaiian cultural practices and sites." It also outlines requirements of a CIA, such as identifying eultural practices, addressing how the project's impact on those practices would be mitigated, and requiring at least one puhlie meeting in the community of the proposed project. The bill would also give OHA approval authority over CIAs. TRAINING F0R OFFICIALS This bill would require training for councils, boards and commissions that have authority over trust assets for whieh Native Hawaiians are a beneficiary. Training would cover Native Hawaiian traditional and customary rights, Native Hawaiian natural resource protection and access rights, and the state's obligations under the puhlie trust. "This is a really proactive step to

protect and restore our natural and cultural resources," said Kapua Sproat, an Assistant Professor at the UH law school's Ka Huli Ao Center for Excellence in Native Hawaiian Law and environmental law. "This will impact issues before the Water Commission, Land Board, before a host of agencies," she added. "Oftentimes many of these decisions are impacted by political, eeonomie or other forces, but at least now the decision makers won't have any excuse if they decide to ignore the law because they have had the training." "I don't expect this will solve all the problems that we have, but it will be an important first step - something necessary and long overdue. It's great to see OHA stepping up to the plate to fill this gap." OHA's legislative package also includes the following bills: > UH luilion waivers The bill would provide for a full tuition waiver for Native Hawaiian students attending any of the campuses within the University of Hawai'i system. > Budget bill - The budget bill for July 1, 2011 to June 30, 2013, would request about $2.5 million per year, the same amount that was approved for eaeh of the two previous fiscal years. The request includes funds for three budget provisos for social services, educational enrichment programs and legal services and representation. >Native Hawaiian Government Reorganization Act iinpleinenlalion This resolution asks the State Legislative Reference Bureau to conduct a study to identify state laws that may need to be amended after passage of the Native Hawaiian Government Reorganization Act and upon federal recognition of the Native Hawaiian governing entity. > SHPD review authority This proposal ensures that all state and county project permits go to the Sate Historic Preservation Division and would provide SHPD with the authority to determine whieh projects pose a high risk of disturbing historic sites. ■