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eligible for Hawaiian home lands. The lands that were made available were lands that were not in sugar cultivation.
Soon after the Joint Resolution of annexation was signed, the U.S. military was successful in getting the President to issue an Executive order suspending all public land transactions in Hawaii. This order was followed by a series of other Executive orders which set aside substantial acreage for military use. In one order alone, over 15,000 acres of land on Oahu was taken for Federal use.
By the time Hawaii became a State in 1959, over 287,078 acres of Hawaii public land had been set aside for Federal Government use. More than 227,972 of these acres became national park lands, with the remainder going to the Department of Defense. In addition, the Federal Government obtained permits and licenses for an additional 117,412 acres of land and acquired the fee interest in 28,234 acres through purchase or condemnation.
In 1959, Hawaii was then admitted as a State. In the Hawaii Admissions Act, the special status of Hawaii's public lands was recognized and the Federal Government relinquished title to most of the crown and government lands it held at the time of statehood.
It is section 5 of the Admissions Act which provides the key to understanding Hawaii's ceded lands and the State's responsibility in relation to these lands. The statute guaranteed the State of Hawaii title to all public lands and other property, all available lands under the Hawaiian Homes Commission Act, and any lands which had been acquired in exchange for those properties.
Lands specifically set aside for the use by the Federal Government by an act of Congress or an Executive order were exempted and remained the property of the United States.
The act also provided that the Federal Government could set aside, within 5 years of statehood, any ceded lands that it was using under permit, license, or permission of the territory immediately prior to statehood. Once set aside, these lands would also become the property of the United States. While the act allowed the President to convey unneeded lands back to the State, it set a 5-year deadline on this authority and vested title in the United States to all lands which were not returned.
Section 5 of the Admissions Act also set forth the State responsibilities in connection with ceded lands. The State was to hold all ceded lands, including the proceeds from their sale or disposition and the income they generated, as a public trust for five purposes, among which is the betterment of conditions of Native Hawaiians, and the United States reserved the right to sue to enforce this trust.
At the time of statehood, 280,078 acres of land had been set aside for the Federal Government and, as of 1964, only 595 acres had been returned. In addition, the 117,412 acres on which the Federal Government had permits or licenses were retained under Federal Government control.
In 1963, Congress enacted Public Law 88-233 which abolished the 5-year deadline on land returns for all but national park land, which then constituted approximately 227,972 acres. Despite the good intentions of this law, less than 500 acres of land had been returned since its enactment. Even today, Federal properties which are considered surplus are generally sold by the United States. We tion that has arisen today is, Does the Federal Government have a continuing trustee relationship to this trust or did the trustee relationship end at statehood, as the Solicitor General of the United States has claimed it did?"
Our position is, no, the Federal Government has a continuing trust obligation, and that trust obligation is derived from a couple of areas. One, what they said to the State of Hawaii is, first off, take this trust in the shape we're giving it to you and, by the way, you can't change the Hawaiian Homes Commission Act without us going along with it.
Second, we're the ones who have to enforce this trust. So they gave us this entity and they sat for thirty or forty years and didn't do anything. They didn't give any guidance as to how it was supposed to be enforced. The State clearly at this point in time did things they probably shouldn't have done, but the Federal Government was supposed to be there watching. It didn't do it.
Again, there are a number of people to blame, but that's not the way to get the solution on the table. In the recent years, and particularly since Governor Waihe'e took office, a number of things have happened.
There have been first-time appropriations for the Hawaiian Homes Commission. There has been the EOs have been rescinded a few years ago. Again, it's true that all this land has not been transferred back, and that's an area that has to be explored.
There's been a right-to-sue bill passed which is a limited right to sue. That does give a remedy where a right is involved.
There have been efforts by the State to improve the condition and to repair the trust. To our knowledge, there has been no effort by the Federal Government to do the same. Indeed, I harken back to the Lualualei case where, instead of coming forward on the issue, they basically ducked behind a technicality.
In conclusion, Mr. Chairman, again this is a question for those in different positions than the lawyers, but I certainly would urge this committee to look at this as something that must be done, and will take legislation to do. It will take money to do, and to work with the State and the beneficiaries to keep it out of the courts as best as possible, because with the lawyers come the delays. I think only in that fashion are we going to get to the bottom of this and get a solution that's fair for everybody.
Thank you, Mr. Chairman.
The CHAIRMAN. In the event the court determines that there is a breach of trust and there are identifiable damages involved, who should receive the damages?
Mr. PRICE. It is the position of my office, Senator, that—and this gets into right to sue, but I'll just in a moment explain where we're coming from. We feel that if there are damages recovered, that the money should go back in to repair the trust, as opposed to going in someone's pocket; and, to be very honest with you, into some lawyer's pocket.
If we keep picking away at the corpus of this trust and the money keeps going out the window, we're going to continually face the problems of repairing the trust sooner or later. The right-to-sue
As I sat there and listened to testimonies being given today, sir, if I may take the liberty to talk to you straight from the na'ausome of the information that you received today, we have been asking for for 9 years.
The level of frustration in our community is so high. We have been abused, mistreated, manipulated. We are now being forced to fight each other over the the crumbs and arguing over methology, and that maybe okay. But the tears I have is what a waste of time. How many more layers of bureaucratic garbage do we have to go through to make a point that our people are like other people but not tribes? There is no model for us. We collectively have to develop this nation that we want. All of us must have input into the structure.
What belongs to my people—I witness on a daily basis the strug. gles of my people with drugs. They refuse to assimilate totally. I needed to tell you that, Senator, because in my heart you have done this for us at long, long last, and I'm sorry I lost it. I'm really sorry.
But the struggling-it's popular now to Hua Kukae because of the level of frustration, and we accept that. You know what it is to try to lead and people go against you.
Our lands are very spiritual. The foundation of our culture is ripped asunder by the U.S. Government with the continual bombing of Makua and Kaho'olawe.
Our people cannot be put together in a basket like any other people. Our spiritual ties to the aina-without that, we're dead; we're dead as a people.
I love you, sir, and I declare that openly and publicly, for allowing us to come to you and with your strong commitment to resolve this problem for my people. I hope to live long enough to see that future Hawaiians are a happy race and not a burdened race.
Mahalo io oe apau.
The CHAIRMAN. There is nothing wrong with sharing your frus-
MAN, OFFICE OF HAWAIIAN AFFAIRS, AND MEMBER, BOARD
My name is Rodney Burgess, vice chairman of OHA and one of three trustees who have held office since the inception of OHA in 1980. I have chaired the Land and Resource Committee at OHA during our formative years and have had direct jurisdiction over our land claims quest, obviously not so successful. This includes pursuit of a Hawaii constitutional provision and Hawaii State law that is supposed to fund OHA at 20 percent of all income on State ceded lands.
Before I elaborate upon that, however, it is imperative that you understand the plight of our people since the overthrow of our queen and the illegal taking of our lands. Our nation, which once flourished with over 400,000 people, had diminished to a mere 40,000 people by the early 1900's. Foreign diseases and mass displacement of families who were stripped of their home lands, their culture, and their pride had taken a serious toll. The perception of foreigners, who were now in charge of all political decisions which impacted upon our fast-dwindling numbers, was that soon the Hawaiian would be totally assimilated into their society, a victim of the melting pot concept.
That's the origin of the political decision to divide the Hawaiian people and limit the 1920 Hawaiian Homes Act beneficiaries to those possessing at least 50 percent Hawaiian blood quantum in spite of the objections raised by Hawaii's Delegate Prince Kuhio.
The attitude of the time was that within a few generations the 50 percent Hawaiian would fade away and the mere 200,000 acres of trust lands would again become the property of the U.S. or the sugar plantations, the dominant political forces of the time. I guess we fooled them.
Furthermore, the ability of the Hawaiian to unite into a viable political unit was effectively suppressed by this history of removing the people from the land and the arbitrary division of the Hawaiian people. Hawaiian organizations, civic clubs, societies, community groups sprouted up in an attempt to preserve the culture and to unite the people once again. First they separated us from the land and then they separated us from each other, mother from daughter, father from son, as a result of this blood quantum requirement.
Time goes on. From statehood in 1959 and for 20 long years, no income nor lands were set aside for their intended beneficiaries, as described in the Admissions Act. At no time has the Federal Government or the State government prepared a proper inventory of our lands.
From 1893, the overthrow of our kingdom, until 1980, the formation of OHA, there was no united political voice of the Hawaiian people.
The constitutional convention in 1978 was a milestone in Hawaiian history. It provided the very first opportunity for the Hawaiian people to elect its own leaders who would lead them back to their lands and protect and enhance their very rich and proud cultural heritage.
The enthusiasm was overwhelming and, as stated earlier, in a few short months nearly 50,000 people of Hawaiian ancestry registered to vote in the first elections. As Frenchy has stated, those numbers have grown and we're now at 63,000.
While the powers vested to this office by chapter 10 of the Hawaii revised statutes are very broad, the ability to formulate and structure a viable ency was hindered from the very onset by a lack of funding. It sounds just like the Hawaiian homes situation.
The OHA trustees had rightfully expected to receive 20 percent of all revenue and income from the 1.4 million acres of State ceded lands, income we estimated to be in excess of $20 million a year. We were astonished to find that:
First, receipts of only $1.2 million a year were received, and only on those lands administered by the Department of Lands and Natural Resources. Not one cent of revenue from the airports was received by OHA or from any other agency, including the counties and other State agencies.
Second, the State legislature, led by the house majority, had decided that the OHA operating budget be matched dollar for dollar with funds from the ceded land trust, rather than mandatory full appropriation for operating costs, as the Department of Hawaiian Homes is presently funded.
Third, no inventory existed of ceded lands, both at the Federal and State levels.
Numerous dispositions of ceded lands had occurred to county governments and to other State agencies such as the Department of Education, the Hawaiian Housing Authority, et cetera.
Last, the State administration refused to enforce the provisions of the 20 percent State ceded lands entitlement.
After many attempts at negotiation, we were instructed by thenGovernor George Ariyoshi to file what he labels a "friendly suit" against the State and, in particular, against the Department of Transportation to get a judicial ruling.
Having no other recourse and following the Governor's directive, OHA proceeded to hire attorneys and prepare its case. OHA filed suit in State courts March 1984.
To our surprise, the State's defense against our entitlement claims was that OHA was an unconstitutional entity and, therefore, not entitled to collect any revenue on behalf of the Hawaiians.
The CHAIRMAN. Come again? [Laughter.]
Mr. BURGESS. The State's defense, which I brought a copy of the headlines, Senator-maybe you could send my briefcase back there—was that our office was unconstitutional and, therefore, not entitled to collect any revenue. They were defended by the attorney general in court at those hearings, at which I was present.
It was 20 years of work of us Hawaiians, first to amend the constitution of the State to allow for our office; second, ratification by all of Hawaii's people as to its formation, including the non-Hawaiian; and the subsequent passing of State law which entitles OHA to 20 percent was now being questioned by the administration of this State.
After numerous briefs and arguments, the case was taken to the Hawaii State supreme court—this was after he sat on it for 2 years—which held, the State supreme court did, that a political decision—that this was a political decision, rather, which should be resolved by the State legislature.
At this time we were completely shocked because we have done a complete cycle. Now we're back at the latest measure that authorized us to receive the 20 percent to begin with.
We're still being told that OHA cannot receive the statutory 20 percent of airport revenues of approximately $180 million per year. We do point out, however, that Federal transportation funds, especially at airport and harbor facilities, are provided to the State with conditions restricting the use of the income generated.
For example, landing fees at Honolulu International Airport are income from 5(b) lands and subject to the OHA trust. However, we have been told by the State that Federal law now prohibits the setting of these fees or the sharing of these moneys for anything but offsetting construction costs at the airport. Such provisions in Fed