5. (a) Except as provided in subsection (c) of this section, the State of Hawaii and its political subdivisions, as the case may be, shall succeed to the title of the Territory of Hawaii and its subdivisions in those lands and other properties in which the Territory and its subdivisions now hold title.

(b) Except as provided in subsection (c) and (d) of this section, the United States grants to the State of Hawaii, effective upon its admission into the Union, the United States' title to all the public lands and other public property, and to all lands defined as "available lands" by section 203 of the Hawaiian Homes Commission Act, 1920, as amended, within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union. The grant hereby made shall be in lieu of any and all grants provided for new States by provisions of law other than this Act, and such grants shall not extend to the State of Hawaii.

(c) Any lands and other properties that, on the date Hawaii is admitted into the Union, are set aside pursuant to law for the use of the United States under any (1) Act of Congress, (2) Executive order, (3) proclamation of the President, or (4) proclamation of the Governor of Hawaii shall remain the property of the United States subject only to the limitations, if any, imposed under (1), (2), (3), or (4), as the case may be.

(d) Any public lands or other public property that is conveyed to the State of Hawaii by subsection (b) of this section but that, immediately prior to the admission of said State into the Union, is controlled by the United States pursuant to permit, license, or permission, written or verbal, from the Territory of Hawaii or any department thereof may, at any time during the five years following the admission of Hawaii into the Union, be set aside by Act of Congress or by Executive order of the President, made pursuant to law, for the use of the United States, and the lands or property so set aside shall, subject only to valid rights then existing, be the property of the United States. [Am July 12, 1960, Pub L 86-624, 74 Stat 422]

(e) Within five years from the date Hawaii is admitted into the Union, each Federal agency having control over any land or property that is retained by the United States pursuant to subsections (c) and (d) of this section shall report to the President the facts regarding its continued need for such land or property, and if the President determines that the land or property is no longer needed by the United States it shall be conveyed to the State of Hawaii.

(f) The lands granted to the State of Hawaii by subsection (b) of this section and public lands retained by the United States under subsections (c) and (d) and later conveyed to the State under subsection (e), together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States. The schools and other educational institutions supported, in whole or in part out of such public trust shall forever remain under the exclusive control of said State; and no part of the proceeds or income from the lands granted under this Act shall be used for the support of any sectarian or denominational school, college, or university.

(g) As used in this Act, the term "lands and other properties" includes public lands and other public property, and the term "public lands and other public property" means, and is limited to, the lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation approved July 7, 1898 (30 Stat. 750), or that have been acquired in exchange for lands or properties so ceded.

(h) All laws of the United States reserving to the United States the free use or enjoyment of property which vests in or is conveyed to the State of Hawaii or its political subdivisions pursuant to subsection (a), (b), or (e) of this section or reserving the right to alter, amend, or repeal laws relating thereto shall cease to be effective upon the admission of the State of Hawaii into the Union.

(i) The Submerged Lands Act of 1953 (Public Law 31, Eighty-third Congress, first session; 67 Stat. 29) and the Outer Continental Shelf Lands Act of 1953 (Public Law 212, Eighty-third Congress, first session, 67 Stat. 462) shall be applicable to the State of Hawaii, and the said State shall have the same rights as do existing States thereunder.

 

Revised conveyance procedures. Act of December 23, 1963, Pub L 88-233, 77 Stat 472, provides: That (a)(i) whenever after August 21, 1964, any of the public lands and other public property as defined in section 5(g) of Public Law 86-3 (73 Stat. 4, 6), or any lands acquired by the Territory of Hawaii and its subdivisions, which are the property of the United States pursuant to section 5(c) or become the property of the United States pursuant to section 5(d) of Public Law 86-3, except the lands administered pursuant to the Act of August 25, 1916 (39 Stat. 535), as amended, and (ii) whenever any of the lands of the United States on Sand Island, including the reef lands in connection therewith, in the city and county of Honolulu, are determined to be surplus property by the Administrator of General Services (hereinafter referred to as the "Administrator") with the concurrence of the head of the department or agency exercising administration or control over such lands and property, they shall be conveyed to the State of Hawaii by the Administrator subject to the provisions of this Act.

(b) Such lands and property shall be conveyed without monetary consideration, but subject to such other terms and conditions as the Administrator may prescribe: Provided, That, as a condition precedent to the conveyance of such lands, the Administrator shall require payment by the State of Hawaii of the estimated fair market value, as determined by the Administrator, of any buildings, structures, and other improvements erected and made on such lands after they were set aside. In the event that the State of Hawaii does not agree to any payment prescribed by the Administrator, he may remove, relocate, and otherwise dispose of any such buildings, structures, and other improvements under other applicable laws, or if the Administrator determines that they cannot be removed without substantial damage to them or the lands containing them, he may dispose of them and the lands involved under other applicable laws, but, in such cases he shall pay to the State of Hawaii that portion of any proceeds from such disposal which he estimates to be equal to the value of the lands involved. Nothing in this section shall prevent the disposal by the Administrator under other applicable laws of the lands subject to conveyance to the State of Hawaii under this section if the State of Hawaii so chooses.

Sec. 2. Any lands, property, improvements, and proceeds conveyed or paid to the State of Hawaii under section 1 of this Act shall be considered a part of public trust established by section 5(f) of Public Law 86-3, and shall be subject to the terms and conditions of that trust.

 

Note

 

Use of lands in public land trust; payments and accounting requirements. L 2006, c 178.

 

Attorney General Opinions

 

Duty imposed under paragraphs (c) and (e) on federal agency to report on its continued need of land is limited to lands ceded to U.S. upon annexation and does not extend to lands acquired by U.S. thereafter. U.S. Att. Gen. Op. June 12, 1961.

Legislature may not authorize office of Hawaiian affairs to use funds derived from public lands trust to better the conditions of "Hawaiians", as defined in 10-2, HRS, distinguishing from "native Hawaiians" as defined in this section. Att. Gen. Op. 83-2.

Subsection (f) expressly acknowledges that ceded or public trust land may be alienated; proceeds of sale or disposition must be returned to the trust and held by State for use for one or more of five purposes set forth in subsection (f). Att. Gen. Op. 95-3.

Collaboration agreement between University and corporation requiring the University to provide the corporation with environmental samples from diverse habitats may be voidable but not null and void altogether if both the corporation and the University intended that all material come from only ceded lands the State owned. The University could still perform under the contract by collecting material from the lands it owns and by securing a land license so that it could collect materials from the ceded lands the State owns. Att. Gen. Op. 03-3.

Inasmuch as the genetic material or composition of the natural resources and things connected to public lands, including ceded lands, are an integral part of those resources and things, title to biogenetic resources will still be held by State if it has not sold the land. Legal title to biogenetic resources gathered from state public lands will not still be vested in the State if third persons were allowed to remove from public lands the natural resource or thing from which the biogenetic resources were extracted or the State sold or leased title to a parcel of public land without reserving title or retaining control of the resources or things connected to the transferred land, or their biogenetic contents. Att. Gen. Op. 03-3.

Legislature must again determine which income and proceeds from the public land trust lands are to go to the office of Hawaiian affairs (OHA). Until legislature reestablishes a funding mechanism for OHA, Executive Order No. 03-03 is the only mechanism in place for transferring receipts from the use of ceded lands to OHA; receipts from the sale or transfer of biogenetic resources do not qualify for transfer under the order. Att. Gen. Op. 03-3.

The scope of the University's authority to sell or transfer biogenetic resources gathered from ceded lands depends upon how the University acquired the ceded land from which the biogenetic resource originated. The University has complete authority over the lands that are set aside or conveyed to it by the State, and would have limited authority to dispose of biogenetic resources gathered from public lands it leases from the State, or lands that it has permits to use or licenses from which to remove materials. Att. Gen. Op. 03-3.

 

Law Journals and Reviews

 

Hawaii's Ceded Lands, Comment. 3 UH L. Rev. 101.

The Lum Court and Native Hawaiian Rights. 14 UH L. Rev. 377.

Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts. 14 UH L. Rev. 519.

State-Federal Conflict Over Naval Defensive Sea Areas in Hawaii. 14 UH L. Rev. 595.

The Native Hawaiian Trusts Judicial Relief Act: The First Step in an Attempt to Provide Relief. 14 UH L. Rev. 889.

Courts and the Cultural Performance: Native Hawaiians' Uncertain Federal and State Law Rights to Sue. 16 UH L. Rev. 1.

The Akaka Bill: The Native Hawaiians' Race For Federal Recognition. 23 UH L. Rev. 857.

Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual. 24 UH L. Rev. 693.

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

Biopiracy in Paradise?: Fulfilling the Legal Duty to Regulate Bioprospecting in Hawaii. 28 UH L. Rev. 387.

Ke Ala Pono--The Path of Justice: The Moon Court's Native Hawaiian Rights Decisions. 33 UH L. Rev. 447 (2011).

A Modest Proposal for Determining Class Member Damages: Aggregation and Extrapolation in the Kalima v. State Breach of Homelands Trust Class Action. 34 UH L. Rev. 1 (2012).

Demolition of Native Rights and Self Determination: Act 55's Devastating Impact through the Development of Hawaii's Public Lands. 35 UH L. Rev. 297 (2013).

 

Case Notes

 

Hawaii's suit in supreme court, seeking to extend duty to acquired lands, dismissed on ground that U.S. could not be sued without its consent. 373 U.S. 57.

Native Hawaiian group had no private cause of action under Act; section creates federal "right" enforceable under 42 U.S.C. 1983; enforcement of federal-state compact created by section presents federal question. 764 F.2d 623.

Plaintiff alleged that office of Hawaiian affairs trustees were not spending funds pursuant to section. 915 F.2d 469.

Native Hawaiians stated federal claim by alleging that trustees of office of Hawaiian affairs expended income derived from lands conveyed as public trust for purposes other than those permitted under Admission Act. 928 F.2d 824.

Native Hawaiians' claim under 42 U.S.C. 1983 that land parcel was subject to public trust not actionable where private landowners did not act under color of state law. 939 F.2d 702.

OHA trustees entitled to qualified immunity from 42 U.S.C. 1983 claim that trustees violated Admission Act by improperly using 5(f) funds for referendum to define "native Hawaiians". 3 F.3d 1220.

Plaintiff had standing where plaintiff was among class of beneficiaries whose welfare was the object of the action at issue. 3 F.3d 1220.

Act does not impose upon the United States a general fiduciary obligation to bring suit against the State for any particular alleged breach of trust, only a right to bring such action. 45 F.3d 333.

Plaintiffs contended, inter alia, that phrase imposed a duty upon United States to sue State if State breached the trust, and that state defendants had violated and would continue to violate this section by not giving priority to the betterment of native Hawaiians by funding homesteads for them; judgment of district court affirmed, where court denied plaintiffs' motion for summary judgment and dismissed plaintiffs' complaint against all defendants. 183 F.3d 945.

Each native Hawaiian plaintiff, as a beneficiary of the trust created by 5(f), has an individual right to have the trust terms complied with, and therefore can sue under 42 U.S.C. 1983 for violation of that right. 496 F.3d 1027.

Trustees of the office of Hawaiian affairs established as a matter of law that each of the challenged expenditures constituted a "use" "for one or more of the [5(f)] purposes" and that was sufficient to defeat plaintiffs' 42 U.S.C. 1983 claim under federal law for breach of the 5(f) trust; district court's summary judgment in favor of the trustees, affirmed. 616 F.3d 918 (2010).

Under submerged lands act, Hawaii's boundaries extend one marine league. 235 F. Supp. 990.

Plaintiffs' breach of public land trust claims dismissed, where plaintiffs claimed in their [subsection (f)] trust beneficiary capacities that they were being treated differently from a small class of native Hawaiians and did not proceed on the basis of any direct injury. 299 F. Supp. 2d 1090.

Plaintiffs' motion for reconsideration denied, where plaintiffs argued that the court erred in finding that plaintiffs lacked standing to assert claims as beneficiaries of the public land trust created by subsection (f). 299 F. Supp. 2d 1107.

Plaintiffs' Hawaiian home lands lease program claim dismissed, because plaintiffs' claim necessarily involved a challenge to the Admission Act, a challenge that could not be brought by a party with only state taxpayer standing. 299 F. Supp. 2d 1114.

Where plaintiffs contended that Act 359 of 1993 Hawaii legislature (relating to Hawaiian sovereignty), as amended in 1994 and 1996, breached fiduciary duty between State and its citizens, and brought suit under 42 U.S.C. 1983 to enforce subsection (f), on motion for preliminary injunction, plaintiffs not likely to prevail on their 1983 action regarding alleged violation of Admission Act. 941 F. Supp. 1529.

Plaintiffs' suit barred by Eleventh Amendment and prior Ninth Circuit authority, where, inter alia, plaintiffs asked court to compel state defendants to spend 5(f) funds on only one (Hawaiian home lands) of the five purposes provided for in the Admission Act, in order to compensate for past breaches of trust. 996 F. Supp. 989.

Section 4 of Admission Act and subsection (f) create rights enforceable under 42 U.S.C. 1983; plaintiffs had standing to enforce such rights. 996 F. Supp. 989.

New lava lands created by volcanic eruption were within "public lands" the title to which was granted by the federal government to the State upon admission to statehood. 58 H. 106, 566 P.2d 725.

Claim brought under 42 U.S.C. 1983 that exchange of ceded lands by State constituted a breach of trust under subsection (f) was barred by statute of limitations and res judicata. 73 H. 578, 837 P.2d 1247.

Where plaintiff--as a member of the general public and a beneficiary of the public lands trust under article XII, 7 of the Hawaii constitution--made allegations sufficient to show an injury in fact, even though legitimate uses under this section might not necessarily benefit members of the general public, and because a multiplicity of suits could be avoided by allowing plaintiff to sue to enforce the State's compliance with the trust provisions under this section, plaintiff had standing to pursue the claims raised in the suit. 121 H. 324, 219 P.3d 1111 (2009).

 

 

Previous Vol01_Ch0001-0042F Next