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Mr. Blaz. Thank you. I enjoyed your testimony very much. Mr. TRASK. Senator. The CHAIRMAN. Yes, sir? Mr. TRASK. May I suggest, assuming that the Pacific missile range facility is Hawaiian Homes Commission land, as it is, the territory of Hawaii 20, 40, 50 years ago transferred this land to the army for free. They haven't paid a dime since then.

I don't know why the attorney general or anybody in the Federal will return this income, which is about one-half of a million dollars, for the facilities there.

The CHAIRMAN. Mr. Trask, the attorney general's office and my-

Mr. TRASK. Or why this committee-not the missile range, but the State has taken over the Hawaiian Homes Commission lands of the park at the end of the road.

The CHAIRMAN. We will make a list of all those lands that were allegedly transferred illegally.

Mr. TRASK. I wonder why hasn't the attorney general recognized that fact and given them money for the housing of these Hawaiians. These people have got to be housed.

The CHAIRMAN. That's why we're here.
Mr. TRASK. Thank you. [Applause.]

The CHAIRMAN. Now we have Ms. Melody MacKenzie, an attorney for the Native Hawaiian Legal Corporation.


ATTORNEY, NATIVE HAWAIIAN LEGAL CORPORATION Ms. MACKENZIE. Thank you, Mr. Senator, representatives. Thank you for inviting us to testify this afternoon.

I'm Melody Kapilialoha MacKenzie, a senior staff attorney with the Native Hawaiian Legal Corporation. I've asked Alan Murakami, our litigation director, to sit in with me this afternoon.

First of all, we'd like to say it is rare that our office agrees with the attorney general of the State. (Laughter.]

This afternoon we agreed with most of what he has said. There are a few issues, though, that we would like to discuss in further detail. First of all, the attorney general has indicated that the relationship between the Native Hawaiian people and the Federal Government, the formal relationship, began at the time of the Joint Resolution of annexation. While that may be true, I think it's well recognized in the Hawaiian community, and we have argued strongly, that the relationship really arises from the events of the 1893 overthrow of the monarchy and American participation in the overthrow of that monarchy, direct intervention in the internal affairs of a sovereign nation.

So, as opposed to the comments of the attorney general, we would say that relationship actually begins a lot earlier.

The CHAIRMAN. I agree with you. However, unfortunately, the commission that was appointed by President Reagan came out with a different finding.

Ms. MACKENZIE. Well, you know, their finding, as we all know, has been debated extensively. Their finding was that while the United States agents were involved in the overthrow, the United

be a dibility that we and it het the

States, because it did not act officially, that there is no congressional or overt presidential action. Those acts could not be deemed the responsibility of the United States Government. We would argue otherwise. We have done so before this committee, I think, at another point in time.

The CHAIRMAN. I agree with you. Ms. MACKENZIE. Second, we would like to agree with the attorney general with regard to the Lualualei situation. Our office filed an amicus brief on behalf of six Hawaiian Native clients who are qualified beneficiaries who are on the waiting list on Oahu.

The lands of Lualualei composed one-fifth of the homestead lands on Oahu. There are now over 9,000 people on the waiting list for those Oahu lands, so they are very important.

In our amicus brief, in which we sided with the State, we argued that the Federal Government was, in effect, a co-trustee with the State and, therefore, had a higher duty to give notice to the Native Hawaiian beneficiaries, the Hawaiian Homes Commission, and the State that they were claiming that land.

Unfortunately, on appeal in the Ninth Circuit, the Ninth Circuit Court held that the effect of the trust relationship had no bearing on the running of the statute of limitations. So, as Mr. Price has suggested, we would be strongly in favor of some amendment to the statute of limitations.

We would also suggest maybe some direct action-which would be a direct exchange of lands of comparable value and comparable accessibility that could be effectuated. Another possibility is the United States Navy and it's being used as a naval ammunition and storage area right now—that the U.S. Navy relinquish title to that area in recognition of the trust responsibilities. Those are two direct ways that this committee could effect the Hawaiian Homes Commission trust.

Second, we would like to address some of the issues that have been raised with regard to the State trust responsibility. While Mr. Price has spoken extensively about the Federal trust responsibility, we think it's our duty today to point out some of the breaches of the State trust responsibility.

Two of those also involve the Federal Government. One of them is the lease of 295 acres at Humu'ula Mauka on the Big Island, 295 acres leased to the Federal Government as part of the Pohakuloa training center for $1 for 65 years. This lease began at the time of statehood. It is Hawaiian home lands. So that is another specific area where the State, through the DLNR at that time, we feel breached a trust responsibility to make the trust lands productive, to manage them in a reasonable, prudent way.

The second area that's also leased to the Federal Government is right here on Kauai, roughly 25 acres at Kekaha, also leased for $1 for the term of 65 years. So these are two specific areas that we think this committee could work on with Congress and probably with the State.

My understanding is at the time of statehood, the State felt that it was in a bit of a pinch; that if the State did not agree to these kinds of long-term leases of what were then State ceded lands and Hawaiian home lands, the Federal Government threatened to keep

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prost responsibilite would likeernment to

them under various provisions of the Admissions Act. So the State did end up leasing those lands.

We feel that the trust responsibility at this time calls for both the State and the Federal Government to take action on that.

Another area we would like to address with regard to the State trust responsibility has to do with funding of the Hawaiian homes program. Now you've received a lot of testimony in the past and probably will in the next week with regard to funding. There have been some improvements recently. As Mr. Price noted and others have noted, recently the State legislature did agree to provide funding for the Department of Hawaiian Home Lands. Ninetyeight positions were funded on the department staff for the 19901991 biennium, I think.

And, also, there was an appropriation of $50.7 million in CIP. Unfortunately, 92 percent of that $50.7 million is going to be in revenue bond financing. What that means is the department will eventually have to pay that back if they choose to use that authority for bond financing. So that puts them, we believe, in the conflict, the conflict being that in order to generate revenues, they will again have to lease their lands to the highest bidder.

The problem has always been that the department has had to generate incomes for operating expenses, and this means that in some instances they put the interest of generating income over the interest of the beneficiaries and getting the beneficiaries onto the land.

Now in 1978 the State constitutional amendment was amended to provide that the State legislature shall provide funds for the operating of the department, shall provide funds for homesteading lots. That has not happened to date except in the last 2 years.

We believe that this is a direct contravention of State law; that the legislature has directly contravened State law. In essence, the State has broken the law. It's not an enforceable law because, as you probably know, it raises a separation of powers issue. In other words, if a Native Hawaiian beneficiary attempted to sue the legislature in order to force them to fund the Hawaiian homes program, they would be thrown out of court under the separation of powers doctrine.

So, it is a problem of enforcement. The remedy to some extent is there. The remedy is for the legislature to fulfill its fiduciary responsibility.

I've pretty much abandoned my formal testimony this afternoon in order to address some of the issues raised by Mr. Price, and specifically point out the breaches that our office has encountered in our work.

The CHAIRMAN. Do you have a list of all of those breaches? Ms. MACKENZIE. I don't think that anyone has a list of all those breaches. As you know and as Mr. Price mentioned, the legislature in 1988 enacted the State Right-To-Sue Act. Part of that process is allowing the Governor within the next three years to survey those breaches to determine, at least on the State end, what the cost would be in order to remedy such breaches and then to present them to the legislature.

So, right now I think the Office of Hawaiian Affairs as well as our office is attempting to compile as much information on that as possible. But what we would suggest as probably a longer-term kind of solution is to look at State ceded lands, Hawaiian Home Commission lands and the Federal lands and start beginning to identify those areas where homesteaders have a real chance of making it as homesteaders and effectuate some land exchanges, supplement the lands that the Homes Commission already has in order to get the beneficiaries onto the lands.

Now in doing that kind of a survey of all the lands and determining which really are the best for homesteading, you have to take into consideration the beneficiary needs on each island and the different kinds of beneficiary needs there are. Each island is very different.

On Oahu, of course, most of what we're looking at is residential, but on the neighbor islands that's slightly different.

Also, in surveying those kinds of lands, you have to be sure that the ceded lands that were in use would not undercut the funding of the Office of Hawaiian Affairs, the 20-percent share that Native Hawaiians receive through that vehicle.

As Mr. Burgess pointed out earlier today, there has been an instance of that where one repair, one effort to repair a breach resulted in the detriment of another Hawaiian trust.

That's the kind of avenue that our office would advocate. Our ultimate vision is self-governance and, within that self- governance, a land base consisting of Hawaiian homelands, portions of the State ceded lands trust, portions of the Federal lands. That's an ultimate vision that we have, but, as we work toward that vision, we see that there are concrete steps that can be taken to improve the record of Federal and State trusteeship. We would ask the committees' cooperation in doing so.

Thank you.
[Prepared statement of Ms. MacKenzie appears in appendix.]
The CHAIRMAN. Thank you very much, Ms. MacKenzie.

Since the Admissions Act makes it very clear that the United States Government has the responsibility of monitoring the activities of the State government as it relates to the trust. If there are any breaches, we have the right to sue or the obligation to sue.

In order to carry out our responsibilities, we have to know what is considered breach here. Ms. MACKENZIE. That's quite true.

The CHAIRMAN. Can you submit to us a list setting forth the date of this breach and the authority of the transfer, say the executive order? Ms. MACKENZIE. We can do that to the best of our ability. The CHAIRMAN. And a description of this breach?

Ms. MACKENZIE. Yes; we can do that to the best of our ability, but, as I indicated, some of the breaches are not breaches that are readily recognized. It's not as easy as an executive order or a proclamation withdrawing Hawaiian home lands. You understand that.

But with that caveat, of course, we can provide that information.

The CHAIRMAN. Thank you very much, Ms. MacKenzie. [Applause.)

Mr. AKAKA. I'm interested in your remarks about the Republic of Hawaii which came into which was established after 1893. In

your research, have you found that any trust relationship of that government with the Hawaiian people?

Ms. MACKENZIE. With the Republic of Hawaii?
Mr. AKAKA. Yes.
Ms. MACKENZIE. In my research I haven't--

Mr. AKAKA. You also implied that it was supported by American-

Ms. MACKENZIE. Interests, yes.
Mr. AKAKA [continuing]. Entities.

Mr. AKAKA. That interests me. I hope that you will be able to enlighten us more about that segment of our history.

Ms. MACKENZIE. Okay. Well, as the Representative is well aware, at the time of the overthrow the U.S. Minister to Hawaii, Mr. Stevens, was very much in favor of annexation, had met with annexationists, and called Federal troops, American troops, ashore at the critical point. He placed those troops near the government building far away from areas of American property.

The premise under which he called those American troops into Honolulu was that he was calling them to protect American interests and American property, but where he stationed them was across from the palace next to the government building.

Within a very short period of time, the annexationists-within a period of one day the annexationists had declared that the legitimate government, the kingdom, was overthrown, and from the steps of the government building they read a proclamation to that effect.

At the same time American troops were standing right there, ostensibly taking neither side, but to the Hawaiians it certainly looked as though there was American force behind the actions of the annexationists. Before Queen Liliuokalani surrendered-and I use that word loosely “surrendered”—Minister Stevens had already recognized the provisional government.

When she surrendered, she surrendered not to the annexationists, but to the superior authority of the United States because she believed—and I think justifiably so—that this effort was supported wholeheartedly by American agents in Hawaii at the time.

Mr. AKAKA. Do you have any findings that there was any taking of lands away from the Hawaiians during that brief time by the provisional government or the Republic

Ms. MACKENZIE. I think not on an individual basis. There was no confiscation of what was known as private property. There was certainly a confiscation of the crown and the government lands, and specifically in the 1894 constitution of the Republic the crown lands were confiscated and made part of the public lands. Those, of course, form the corpus of the ceded lands trust as well as the lands from which Hawaiian home lands were carved.

Mr. AKAKA. Thank you very much. Mr. Blaz. I was absent for a second, so I may have missed a portion of your testimony. I understand that county governments may levy taxes on lessees of Hawaiian home lands. Given the extraordinary circumstances of the Native Hawaiian home lands, the entire scope of it, has it ever been challenged?

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