Ka Wai Ola - Office of Hawaiian Affairs, Volume 20, Number 05, 1 May 2003 — 'Good faith' and 'bad faith' efforts impacting Hawaiians illustrated by state government [ARTICLE+ILLUSTRATION]

'Good faith' and 'bad faith' efforts impacting Hawaiians illustrated by state government

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Haunani Apoliona, MSW Trustee, At-large

Aloha nui e nā 'ōiwi 'ōlino. Between Feb. 11 and Apnl 23, 2003, OHA beneficiaries and all of Hawai'i witnessed two examples of governmental actions best characterized as "good faith" and "bad faith" efforts impacting Hawaiians. Example of 2003 "good faith" action: the Feb. 11 Executive Order 03-03 that restored the transfer of ceded land revenue payments to OHA, payments whieh had been abruptly terminated by former Gov. Cayetano from July 2001. On Feb. 12, Governor Lingle transferred $2,800,417 of the total "undisputed" $12,353,391 due from the state to OHA for the period July 1, 2001 to December 2002, and requested by letter to Senate and House leadership the passage of House Bill 1307 to provide for payment of the remaining $9,552,974. The 2003 Legislature, by unanimous final floor votes of the full Senate and the full House before Apiil 11, 2003, approved HB 1307 HD1 SD1 with its required amounts and on for the Governor's signature Wed., Apiil 23, 2003. The joint effort of our Executive Branch and Legislative

Branch of government, working collaboratively in "good faith" for the betterment of OHA beneficiaries, has made "pono" the "pono 'ole" act by one man. Example of 2003 "bad faith" action: Act 304, enacted in 1990 implemented a partial settlement of disputes between OHA and the State of Hawai'i concerning revenues derived from the Public Land Trust. On Sept. 12, 2001, the Supreme Court found that provisions of Act 304 by its own terms conflicted with federal law and was effectively repealed. The Court provided guidance to OHA and the State Legislature concerning the issue of Public Land Trust revenues, by stating, "given the disposition of this case, and the context of its complexity, we would do a disservice to all parties involved if we did not acknowledge that the state's obligation to native Hawaiians is firmly established in our constitution. How the state satisfies that constitutional obligation requires policy decisions that are primarily within the authority and expertise of the legislative branch. As such, it is

incumbent upon the legislature to enact legislation that gives effect to the right of native Hawaiians to benefit from the ceded lands trust" . . "as we continue to struggle with giving effect to that enactment, we trust that the legislature will re-examine the State's constitutional obligation to native Hawaiians and the purpose of HRS 10-13.5 and enact legislation that most effectively and responsibly meets those obligations." In 2002, OHA introduced measures to aid the Legislature in its obligation to restore the transfer of ceded land revenues to OHA, passage failed. In 2003, OHA again introduced measures to aid enactment of the elements of former Act 304, absent of the previously conflicting language of Section 16. Senate Bill 1151, passed Senate Judiciary and Hawaiian Affairs Committee and the Senate Ways and Means Committee, and the full Senate, UNAMENDED. The House Committee on Water, Land and Hawaiian Affairs, amended SB 1151 with an HD1 intending to send the mea ure to Conference. However, an HD2 was introduced

and heard by House Finance on April 2, 2003. Hundreds of testimonies, presented in person and by fax, joined with OHA trustees, the Governor's office, and ommunity members across the state īn opposition to HD2. OHA said, "HD2 would permit the state to divert unfairly a substantial portion of the Public Land Trust proceeds away from one of the Trust's mtended beneficiaries. It amounts to a breach of the trust relationship between the state and Native Hawaiians." Passage of SB 1151 was the objective sought by OHA. Apnl 2, 2003, 9 p.m., House Finance voted to "HOLD" the Bill thereby in "bad faith" killing OHA's second successive year's effort to aid the Legislature "to clarify what lands comprise the Public Land Trust under Chapter 10, Hawai'i Revised Statutes; and to clarify those revenues derived from the Public Land Trust whieh shall be transferred to the Office of Hawaiian Affairs for the purpose of the betterment of conditions of native Hawaiians, as defined in Chapter 10", HRS Auē! 30/48. m