University of Hawaii School of Law Library - Jon Van Dyke Archives Collection

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1 1978 Constitutional Convention Standing Comm. Rep!. No. 59 from the Comm. on Hawaiian Affairs, I Proceedings of the Constitutional Convention, p , discusses the blood quantum issue and concludes that "the time has come to include all native Hawaiians, regardless of blood quantum, for the number of descendants is increasing. This qualification has proved to be a factor in dividing the Hawaiian community - mothers and fathers from their children, cousins from cousins, friends from friends. Moreover, the removal ofa blood qualification will be in line with the current policy of the federal govemment to extend benefits for Hawaiians to all Hawaiians regardless of blood quantum." The Comm. goes on from there to eventually conclude that "a rationale that may have had legitimacy in 1920 has now become outmoded." See also Comm. of the Whole Rept. No. 13, I Proceedings of the Constitutional Convention, p. 1018, towards the middle of the page two full paragraphs beginning with "Members were impressed... " Committee of the Whole debates, [ Proceedings of the Constitutional Convention, p : p. 457 second full paragraph, discussing the need to "unite" all Hawaiian people. p. 459 comments by Delegate Peterson p. 459, comments by Delegate Kaapu who notes that OHA "may additionally receive appropriations from the legislature, but under those conditions it would be subject to such provisions as the legislature would make." p , comments by Chair that the "bust will embrace all. However, Hawaiians under the Hawa ii an Homes Commission Act will still continue with the things that they are entitled to or under the Organic Act or the act set up by the U.S. Congress." Act 196, implementing constitutional provisions creating OHA, reviewed committee reports and floor debates Senate Standing Comm. Rep!. No. 784 from the Comm. on judiciary discusses the public trust for Native Hawaiians and Hawaiians and states: Your committee notes that the Admission Act does expressly state that one of the five public trust purposes is the " betterment of the condition of native Hawaiians." In that regard, a pro rata apportionment of such funs allocated for that public trust purpose must, by definition, be used for the "betterment of conditions of native Hawaiians." Conversely, such pro rata portion Of( the section 5(t) public trust is not available for use by the Office of Hawaiian Affairs for the "betterment of conditions" of the larger group, "Hawaiians." Your Committee observes, however, that such restriction need not apply to any other? appropriation that the legislature may make. (1979 Legislative Session, Senate Joumal, p ) Act 273, sets OHA share of public land trust at 20% and appropriates general funds, reviewed committee reports a nd floor debates Section 2 of Act 273 appropriates $ 100,000 for "defraying any and all costs of establishment and opertions of the Office of Hawaiian Affairs and the oeprations which pertain to section [0-3(2)

2 Hawaii Revised Statutes." HRS 10-3(2) lists "The betterment of conditions of Hawaiians" as one ofoha's purposes. Sen. Dennis O'Conner, Judiciary Chair, in floor debate on H.B. 1853, explains that there are two sections of the relevant bill, the first section dealing w/funds from the public land trust for Native Hawaiians, defined as those with 50% or more Hawaiian blood. He goes on to state "The second section of this Act provides the sum of $100,000 for the establishment and operation of the Office of Hawaiian Affairs and operations which pertain to Section 10-3(2) of the Hawaii Revised Statutes. Section 10-3(2) has to do with Hawaiians who are not native Hawaiians; therefore, who are less than 50%. This appropriation, together with the other appropriation of $125,000 of last year when this original OHA bill was passed, should certainly suffice for most of the operations of this office for the first six months of its existence." (1980 Legislative Sess., Senate Journal p. 682.) Act 9, Special Session, OHA Appropriations, reviewed comm. reports and floor debates for H.B. 66, vetoed by governor because of procedural flaw, re-enacted as Act 9. Section 3 of Act 9-S states, "The appropriation made in section 2 of this Act shall be matched on a one-to-one basis by the office of Hawaiian affairs." House Standing Comm. Report No. 204 from the Comm. on Water, Land Use, Development and Hawaiian Affairs states that moneys from the public land trust may be used to benefit "native Hawaiians" only. "The Office of Hawaiian Affairs on the other hand, has responsibilities for Hawaiians as well. The appropriation request is, in fact, to pay for the "other Hawaiians" share ofoha's administrative costs - - to be matched by that agency's own income." (1981 Legislative Sess., House Journal p ) In floor debates in the House on H.B. 66, Rep. Kina'u Kamali'i expressed concern over the proposal to fund "only half of the administrative costs of the office from the general revenues and to use the other half from the twenty percent pro rata portion of the trust lands." She believed that general funds, rather than trust funds, should be used to fund all administrative expenses ofoha. (1981 Legislative Sess., House Journal p ) Act 195, OHA Appropriations, reviewed committee reports and floor debates Section 4 of Act 195 states, "The appropriation made in section 2 of this Act shall be matched on a one-to-one basis by the office of Hawaiian affairs." House Standing Comm. Rept. No from Comm. on Finance notes that OHA's budget request incorporated the idea that the State General Fund should pay for all of OHA' s "nonprogram" costs and that administrative costs are not the responsibility of the trust fund. The rationale for the idea was that "because the State created the agency, it should bear the financial burden." The committee soundly rejected the idea, stating: "It is the opinion of your Committee that the basic thesis for the idea should not be accepted. In the absence of any legal authority or mandate, and unless it can be shown that the 2 /

3 administrative expenditures referred to do not benefit native Hawaiians, OHA should be treated like any other agency created by the State." (1982 Legislative Sess., House Journal p ) Act 202, ORA Supplemental Appropriations, reviewed committee reports and floor debates Section 3 of Act 202 contains a proviso, which states, "provided that in expending the moneys appropriated in this Act, expenditures shall be matched by the office of Hawaiian affairs." House Standing Comm. Rept. No. 171 from the Comm. on Water, Land Use, Development and Hawaiian Affairs again rejects the notion that OHA's administrative costs should be paid from general funds and quotes from the 1982 Comm. Rept No (see above). The report states, "Your Committee endorses the wording in this bill which requires matching. It should be emphasized that OHA programs are not initiated by the State and that the State participates in OHA's program funding because of its non-native Hawaiian beneficiaries." (1983 Legislative Sess., House Journal p. 909.) In Senate floor debates on the bill, Sen. Duke Kawasaki (who originally voted against Chap. 10 on constitutional grounds) voted against OHA's general fund appropriation arguing it was unconstitutional and stated "It just seems to me that someday, there's going to be some smart lawyer taking the whole issue to the U.S. Supreme Court, and I certainly feel that perhaps the constitutionality of appropriating from the General Funds of the State of Hawaii, appropriations to be used by the Office of Hawaiian Affairs, will be struck down by the U.S. Supreme Court." (1983 Legislative Sess., Senate Journal p. 377.) no supplemental appropriations Act 193, ORA Appropriations, reviewed committee reports only Section 5 of Act 193 contains a proviso, which states, "provided that in expending the general funds appropriated in this Act, expenditures shall be matched by the special funds of the office of Hawaiian affairs." House Standing Comm. Rept. No. 93 from the Comm. on Water, Land Use, Development and Hawaiian Affairs states: "General fund supplements are necessary to pennit OHA to serve non-native Hawaiians as well as native Hawaiians. This, in tum, is the result of a legal opinion which says, in effect, that OHA's land trust income may not be expended to benefit non-native Hawaiians." (1985 Legislative Sess., House Journal p ) In this same committee report, the committee rejects a proposal that general fund moneys appropriated to OHA should be held in trust in a revolving fund. "Your Committee, in evaluating the proposal, is of the opinion that the idea... cannot be accepted. Firstly, general fund budget appropriations are intended for a specified period. To make such appropriations permanent makes a mockery of the budget process. Secondly, budget appropriations are made only after programs are evaluated and the kind and scope of activities are reviewed and approved.... Lastly, general fund budget appropriations are intended to 3

4 finance certain activities which benefit non-native Hawaiians just as OHA's revenues are intended to benefit native Hawaiians only. To permit general fund moneys to be kept by OHA for its general purposes, as proposed, would be a violation of the intent to distinguish between the two kinds of moneys and their uses." (1985 Legislative Sess., House Journal p ) In House Standing Comm. Rept. No. 627, the Comm. on Finance also rejected the notion that OHA should keep general fund appropriations in a trust similar to holding ceded lands revenue in trust and adopted the view expressed in Comm. Rept. No. 93. (1985 Legislative Sess., House Journal p ) no supplemental appropriation Act 218, OHA Appropriations, reviewed committee reports only Senate Standing Comm. Rept. No from the Comm. on Ways and Means rejects OHA's proposal that all "B" costs (other current expenses) be funded by general funds and instead splits those costs equally between the special fund (trust moneys) and general funds. (1987 Legislative Sess., Senate Journal p ) Act 376, OHA Supplemental Appropriation, reviewed committee reports only Nothing of note regarding general fund appropriations for Hawaiians except a one line statement in Conference Comm. Rept. No. 199 that "your Committee has provided funds for OHA to work with other agencies to develop programs aimed at improving the health and welfare of Hawaiian and Native Hawaiian children." (1988 Legislative Sess., Senate Journal p. 666.) Act 303, OHA Appropriation, reviewed committee reports only Section 9 of Act 303 appropriates funds to establish a Governor's task force to develop a master plan to coordinate provision of public and private services to Hawaiian and native Hawaiian population; Section 12 appropriates funds to establish Papa Ola Lokahi to develop a Native Hawaiian (no blood quantum) comprehensive health care master plan. Nothing of note regarding general fund appropriations for Hawaiians except a few lines in Conference Comm. Rept. No. 107: "Your Committee recognizes the need for OHA to address the health problems and health needs of Hawaiians by providing funds to create and organization to be known as "Papa Ola Lokahi" the purpose of which is to develop a Native Hawaiian (no blood quantum) comprehensive health care master plan. Public Law calls for an estimated $19,600,000 offederal funds to be expended over a four year period for a major Hawaiian health care program." (See Section 12 of Act 303.) This report also notes that the Comm. is providing funds for the draft legislation and supporting documentation for reparations and for OHA to plan and develop a proposal to resolve controversies related to the Hawaiian home lands trust and native Hawaiian public trust. (1989 Legislative Sess., House Journal p ) 4

5 Act 113, OHA Supplemental Appropriation; Act 304, ceded lands settlement, reviewed legislative reports and floor debates for both acts. Act 113 and committee reports and floor debates do not contain anything new, except a requirement mentioned in House Standing Comm. Rept. No that a method be developed to distinguish NHLC's native Hawaiian clients from Hawaiian clients so that funding can be provided from the proper source. This section was not in the final bill enacted as Act 113. Section 1 of Act 304 states, inter alia: "This Act addresses only the native Hawaiian beneficiary. Discussions are still occurring regarding the provision of benefits to the Hawaiian beneficiary under the public trust entrusted upon the office of Hawaiian Affairs. The legislature finds that there is no evidence to support payment of any past due revenues to Hawaiians as beneficiaries under the public land trust entrusted upon the office of Hawaiian affairs." Conf. Comm. Report No. 91 on Act 304 states: "Your committee notes that the proposed settlement is on behalf of native Hawaiians only and leaves open for future negotiations the question of entitlements for Hawaiians with less than fifty per cent blood quantum and the question of establishing a separate trust fund to benefit all Hawaiians regardless of blood quantum." (1990 Legislative Sess., Senate Journal p. 801) There is similar language in Sen. Comm. Report No from the Comm. on Housing and Hawaiian Programs (1990 Legislative Sess., Senate Journal p. 1151) and in Sen. Comm. Report No from the Comm. on Ways and Means (1990 Legislative Sess., Senate Journal p. 1253) Act 301, OHA Appropriations, reviewed committee reports only Section 11 and 12 appropriate funds for the Sovereignty Advisory Council although section 12 appropriations can only be used if there are matching federal funds Nothing of note regarding general fund appropriations for Hawaiians except a few lines in Conference Comm. Rept. No. 77: "The health and social conditions of Hawaiians is of the utmost importance to your Committee. As a result, funds have been provided for OHA to work with other agencies to collect and print data on Hawaiian health and implement a strategy on the dissemination of this information. As the indigenous people of an island state, Hawaiains have been addressing the issue of sovereignty for a long time. Recognizing the importance of Hawaiians to be afforded opportunities to enhance their well-being, our Committee has provided funds for the development of several sovereignty models and for implementation of a marketing plan for these models on a national and international level." (1991 Legislative Sess., Senate Journal p. 783.) Act 302, OHA Supplemental Appropriations, reviewed committee reports only Nothing of note regarding general fund appropriations for Hawaiians except that Conf. Comm. Rept. No. 146 in discussing OHA's programs and services consistently refers to OHA's obligations to native Hawaiians and Hawaiians in the areas of health, education, housing and heritage preservation. 5

6 (1992 Legislative Sess., House Journal p. 875.) Act 276, OHA Appropriations, reviewed committee reports only Nothing of note regarding general fund appropriations for Hawaiians except that in House Standing Comm. Rept. No. 804, the Committee on Finance notes the 100 tl1 anniversary of the US overthrow of the Hawaiian kingdom and states: "As we commemorate the legacy of Queen Liliuokalani and the Hawaiian kingdom and solemnly observe the 100th anniversary of the overthrow of the kingdom of Hawaii, your Committee pledges its continued support tot he Hawaiian community to address the injustices of the past." (1993 Legislative Session, House Journal p ) Similar statements are found in Senate Standing Comm. Rept. No from the Comm. on Ways and Means (1993 Legislative Session, Senate Journal p. 1241). In Conf. Comm. Rept. No. 220, the language is more forceful, stating: "In considering the operating budget of the Office of Hawaiian Affairs (OHA), your Committee was aware of several significant factors that are pervasive throughout the State. Of particular importance were the events leading to the centennial observation of the overthrow of the sovereign Hawaiian kingdom in 1893, the centennial observance itself, the subsequent calls for action, and continued resolve concerning solutions to past and present injustices suffered by the Hawaiian Community. The Legislature's support of the centennial observation and associated activities leading to and following the observation demonstrates the Legislature's continued commitment to resolve issues concerning Hawaiians and Native Hawaiians." (1993 Legislative Session, Senate Journal p. 820) Act 253, OHA Supplemental Appropriations, reviewed committee reports only In Conf. Comm. Rept. No. 139, OHA is taken to task about its use of special (trust) funds. The Committee states: "In reviewing the budget request, certain discrepancies and inconsistencies in the use of these special funds were evident. While OHA maintains that their operational expenses must be equally funded with general funds and special funds to serve both Native Hawaiian and Hawaiian constituents, OHA does not adhere to this practice. Rather, OHA has used special funds at their discretion to increase staff, expand office space leased and increase salaries for their employees." The Committee went on to attribute this situation to OHA' s lack of guidelines for the use of special funds. "Thus, it is unclear at this time which areas should appropriately be funded solely with special funds and which areas should appropriately be funded equally with special funds and general funds. Without these guidelines, a consistent, cohesive budget cannot be developed." (1994 Legislative Session, Senate Journal p.752.) Act 19, Special Session, OHA Appropriations, reviewed comm. reports for HB 1780, vetoed by governor because of procedural flaw, re-enacted as Act 19. In Conf. Comm. Rept. No. 121, OHA is again taken to task for "misuse" of its trust moneys in the past to "create staff postiions that were not authorized by the Legislature. Subsequent to the 6

7 unauthorized creation of these positions, OHA came to the Legislature for matching general funds to sustain these positions. For these reasons, OHA's current request for matching general funds is denied." (1995 Legislative Session, House Journal p.1017.) Similar language is found in Senate Standing Comm. Rept. No from the Comm. on Ways and Means (1995 Legislative Session, Senate Journal p.1328.) Act 176, OHA Supplemental Appropriations, reviewed committee reports only Conf. Comm. Rept. No. 107 notes that OHA didn't submit any proposed revisions to its budget, but fiscal conditions have changed. The Comm. felt that "because OHA does provide services to individuals not meeting the blood quantum requirement, using the trust to wholly fund these positions would be inappropriate at this time. After review, your Committee felt that OHA could increase its share of the funding of some positions from fifty percent trust funded to seventy-five percent trust funded. This measure reflects this revised funding schedule." (1996 Legislative Session, Senate Journal p. 794.) Act 240, OHA Appropriations, and Act 329 (reaction to Heely ruling, setting specific amt. for OHA public land trust funds), reviewed committee reports only There is nothing in the committee reports for either of these acts that specifically discuss general fund appropriations. Act 423 does contain some general language in Section 1: "The legislature finds that the events of history relating to Hawaiian and Native Hawaiians, including those set forth in Public Law (November 23, 1993), continue to contribute to a deep sense of injustice among many Native Hawaiians and others. The legislature recognizes that the lasting reconciliation so desired by all people of Hawaii is possible only if it fairly acknowledges the past while moving into Hawaii's future." The rest of the findings section contains similar platitudes but it's really focused on the ceded lands revenues, not general funds No supplemental appropriation Act 147, OHA Appropriations, reviewed committee reports only Nothing of note regarding general fund appropriations for Hawaiians except that Senate Standing Comm. Rept. No from the Senate Comm. on Ways and Means changed past practice by appropriating only general funds and not trust funds. "This will enable the Office of Hawaiian Affairs to serve Hawaiians who do not meet the blood quantum standard to qualify as native Hawaiians while recognizing that the trust funds should be under the sole control of the Trustees of the Office of Hawaiian Affairs." (1999 Legislative Session, Senate Journal p ) However, Conf. Comm. Rept. No. 143 makes no mention of this new practice so it is unlikely that it was adopted and Act 147 appears to be similar to appropriation acts for other years No supplemental appropriation Act 2, Special Sess. 1, OHA Appropriations, reviewed comm. reports and floor debates for HB 1100, vetoed by governor because of procedural flaw, re-enacted as Act 2. 7

8 There is nothing of note in committee reports or floor debate (really there was no floor debate!) House Standing Comm. Report No. 874 fj'oiti the Comm. on Finance states: "Until the native Hawaiian ri ght of self-determination is fomlerly [sic] recognized by the federal government, your Committee will support OHA and will oppose any further attempts by outside parties to limit native Hawaiian entitlement programs. It is in this spirit and with this intent that your Committee reviewed the budget." (2001 Legislative Sess., House Journal p ) No supplemental appropriation Act 34 Section 2 of Act 34 states, "The purpose of this Act is to appropriate moneys from the general, and certain special and revolving funds, for transfer and deposit into the office of Hawaiian affairs trust fund for native Hawaiians." This section also acknowledges that these funds were di scontinued after the decision in OHA v. State. House Standing Comm. Rept. No. 606 from Committee on Finance also notes that the appropriation to OHA is "interim compensation for the loss of income from revenue derived by the State from lands in the public land trust." Senate Standing Comm. Rept. No from Committee on Ways and Means also contains some good language. "Your Committee finds that the State is willing to accept its constitutional obligation regardihg the use of the public land trust. Your Committee also finds that the appropriations in J thi s bill will fulfill the State's constitutional obligation to native Hawaiians for thi s interim period." H.B. 1300, H.D. 2, S.D. 2, C.D. I, relating to the Budget of the Office of Hawaiian Affairs was transmitted to the Governor on May 2, 2003, but has not yet been acted upon. 8