Report Title:

Constitutional Amendments; Hawaiian Autonomy Trust; Abolish OHA

 

Description:

Proposes amendments to the Hawaii Constitution to authorize the creation of a Hawaiian autonomy trust, which will be a private nonprofit corporation composed of Hawaiians and initially elected by Hawaiians. Abolishes the office of Hawaiian affairs and transfers the assets controlled by that office to the trust.

 

THE SENATE

S.B. NO.

2565

TWENTY-FIRST LEGISLATURE, 2002

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

Proposing amendments to the hawaii constitution RELATING TO the abolition of the office of hawaiian affairs and THE ESTABLISHMENT OF A HAWAIIAN AUTONOMY TRUST.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that Hawaiians have paid a high price as a people for the coming of other ethnic groups to their islands. Disease has decimated their people, their system of land tenure was removed, and their government was overthrown in an act for which the United States government has apologized.

In an effort to assist the Hawaiians as a group, various programs were enacted to assist them, including the Hawaiian Homes Commission Act, 1920, which was enacted by Congress to provide Hawaiians with homes or farms at a nominal lease, and the office of Hawaiian affairs, which was adopted by the voters of Hawaii after the constitutional convention of 1978 for the betterment of Hawaiians and native Hawaiians.

It was understood by the people of Hawaii that these programs were implemented to put the Hawaiian people back on an equal footing as a group, not to elevate them above the rest of the population. However, native Hawaiian entitlements have come under increasing attack in recent years.

For example, the United States Supreme Court, in the case of Rice v. Cayetano, opened voting for the office of Hawaiian affairs to all voters, not only Hawaiians. Subsequently, the federal court decision in Arakaki v. State opened the position of office of Hawaiian affairs' trustees to candidates from all ethnic backgrounds.

While the legislature cannot alter these federal court decisions, it can recognize that a threat to the Hawaiian people exists as long as Hawaiian assets are held in governmental hands. The legislature finds that the Hawaiian people are capable of handling their trust assets in a responsible way and that the State no longer needs to serve as an intermediary between Hawaiians and their assets. A continued dependence by Hawaiian people on others prevents the development of their full potential as a people.

The legislature finds that the Hawaiians' wardship relationship with the State must be replaced by a relationship based on self-sufficiency and control over their own assets. The legislature further finds that the future of the native Hawaiian people lies in the immediate resolution of these complex legal, political, and social issues to the greatest extent possible.

The purpose of this Act is therefore for the State to divest itself of its responsibilities for the office of Hawaiian affairs and to place these responsibilities directly in the hands of their Hawaiian beneficiaries. Accordingly, this Act proposes amendments to the Constitution of the State of Hawaii to abolish the office of Hawaiian affairs and transfer the assets, rights, duties, and obligations of that office to a private, nonprofit corporation to be known as the Hawaiian autonomy trust.

This newly created trust will hold all of the assets and be legally responsible for all of the liabilities presently held by the office of Hawaiian affairs, thereby removing these assets and liabilities from the political arena. The initial board of trustees shall be elected by state residents of Hawaiian ancestry, while subsequent board members shall be selected on the basis of their knowledge, skill, and experience in relevant areas, as provided by law, by those board members who are serving at the time a vacancy occurs. The trust beneficiaries are to be persons of Hawaiian and native Hawaiian ancestry.

This Act, however, does not divest the State of responsibilities for Hawaiian home lands, since the legislature believes that the disposition of those responsibilities must first come from the federal government. While the primary remedy will be at the federal level, however, the legislature nevertheless believes that the State should take this first step to ensure that the State Constitution, laws, and policies regarding and impacting native Hawaiians continue to be properly implemented.

SECTION 2. The Constitution of the State of Hawai`i is amended by adding a new section to Article XII to be appropriately designated and to read:

"HAWAIIAN AUTONOMY TRUST; TRANSFER OF ASSETS

Section . The State hereby authorizes the transfer by the State of its assets, rights, duties and obligations owing to the Hawaiian population of this State under the office of Hawaiian affairs to a private nonprofit trust, the Hawaiian autonomy trust, created as provided by law. The Hawaiian autonomy trust shall assume the assets, rights, duties and obligations of the office of Hawaiian affairs. Upon this transfer, the State shall no longer be involved with or responsible for these assets, rights, duties and obligations.

The Hawaiian autonomy trust shall be a private corporate entity and shall not be a sovereign governmental entity. The trust shall have all of the rights, title, interest, duties and obligations, as established by law, including any appurtenant authority associated with those rights, title, interest, duties and obligations. The trustees of the Hawaiian autonomy trust shall be elected by Hawaiian residents of this State; provided that successors to the initially elected board of trustees shall be appointed on the basis of their knowledge, skill, and experience in relevant areas, by the members of the board of trustees who are serving at the time a vacancy occurs. The beneficiaries of this trust shall be persons of Hawaiian and native Hawaiian ancestry.

As used in this section:

"Hawaiian" means a person descended by blood from any of the races inhabiting the Hawaiian islands prior to 1778.

"Native Hawaiian" has the same meaning as defined in the Hawaiian Homes Commission Act, 1920."

SECTION 3. The Constitution of the State of Hawai`i is amended by adding a new section to Article XVIII to be appropriately designated and to read:

"EFFECTIVE DATE FOR HAWAIIAN AUTONOMY TRUST

Section . The legislature shall provide for the statutory amendments to implement the Hawaiian autonomy trust as created by Article XII, Section     , on or before the first general election following ratification of the amendments to Article XII, Section ."

SECTION 4. Article 12, sections 5 and 6, of the Constitution of the State of Hawaii, are repealed.

["OFFICE OF HAWAIIAN AFFAIRS; ESTABLISHMENT OF

BOARD OF TRUSTEES

Section 5. There is hereby established an Office of Hawaiian Affairs. The Office of Hawaiian Affairs shall hold title to all the real and personal property now or hereafter set aside or conveyed to it which shall be held in trust for native Hawaiians and Hawaiians. There shall be a board of trustees for the Office of Hawaiian Affairs elected by qualified voters who are Hawaiians, as provided by law. The board members shall be Hawaiians. There shall be not less than nine members of the board of trustees; provided that each of the following Islands have one representative: Oahu, Kauai, Maui, Molokai and Hawaii. The board shall select a chairperson from its members.

POWERS OF BOARD OF TRUSTEES

Section 6. The board of trustees of the Office of Hawaiian Affairs shall exercise power as provided by law: to manage and administer the proceeds from the sale or other disposition of the lands, natural resources, minerals and income derived from whatever sources for native Hawaiians and Hawaiians, including all income and proceeds from that pro rata portion of the trust referred to in section 4 of this article for native Hawaiians; to formulate policy relating to affairs of native Hawaiians and Hawaiians; and to exercise control over real and personal property set aside by state, federal or private sources and transferred to the board for native Hawaiians and Hawaiians. The board shall have the power to exercise control over the Office of Hawaiian Affairs through its executive officer, the administrator of the Office of Hawaiian Affairs, who shall be appointed by the board."]

SECTION 5. Article XVIII, section 8, of the Constitution of the State of Hawai`i is repealed.

["EFFECTIVE DATE FOR OFFICE OF HAWAIIAN AFFAIRS

Section 8. The legislature shall provide for the implementation of the amendments to Article XII in Sections 5 and 6 on or before the first general election following ratification of the amendments to Article XII in Sections 5 and 6."]

SECTION 6. The question to be printed on the ballot shall be as follows:

"Shall the office of Hawaiian affairs be abolished, and the assets, rights, duties, and obligations of that office be transferred to a private nonprofit corporation to be known as the Hawaiian autonomy trust, whose trustees shall be initially elected by state residents of Hawaiian ancestry and subsequently appointed by the members of the board of trustees who are serving at the time a vacancy occurs, and whose beneficiaries shall be persons of Hawaiian and native Hawaiian ancestry?"

SECTION 7. Constitutional material to be repealed is bracketed and stricken. New constitutional material is underscored.

SECTION 8. This amendment shall take effect upon compliance with article XVII, section 3, of the Constitution of the State of Hawaii.

INTRODUCED BY:

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