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The Constitution
of the
State of Hawaii

Incorporating the November 7, 2006 election changes,
and including the annotation.

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Article XII - Hawaiian Affairs

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Sections

1Hawaiian Homes Commission Act
2Acceptance of compact
3Compact adoption; procedures after adoption
4Public trust
5Office of Hawaiian Affairs; establishment of board of trustees
6Powers of board of trustees
7Traditional and customary rights

This article was redesignated from "Article XI Hawaiian Home Lands" to "Article XII Hawaiian Affairs" by Const Con 1978 and election Nov 7, 1978. The former Article XII now appears as Article XIII.

Law Journals and Reviews:

The Constitutionality of the Office of Hawaiian Affairs. 7 UH L. Rev. 63.

The Office of Hawaiian Affairs and the Issue of Sovereign Immunity. 7 UH L. Rev. 95.

The Lum Court and Native Hawaiian Rights. 14 UH L. Rev. 377.

The Native Hawaiian Trusts Judicial Relief Act: The First Step in an Attempt to Provide Relief. 14 UH L. Rev. 889.

The Akaka Bill: The Native Hawaiians' Race For Federal Recognition. 23 UH L. Rev. 857.

Case Notes:

Appellants who claimed that this article and the statutes implementing it violated the equal protection clause of the Fourteenth Amendment because it restricted benefits to only those classified as "native Hawaiians" or "Hawaiians", lacked standing. 342 F.3d 934.

Plaintiff challenging constitutionality of this article insofar as it created Hawaiian homes commission and office of Hawaiian affairs and established native Hawaiian gathering rights, lacked standing, where, inter alia, as to OHA's programs, plaintiff had not suffered injury-in-fact. 188 F. Supp. 2d 1219.

12.1
Hawaiian Homes Commission Act

Anything in this constitution to the contrary notwithstanding, the Hawaiian Homes Commission Act, 1920, enacted by the Congress, as the same has been or may be amended prior to the admission of the State, is hereby adopted as a law of the State, subject to amendment or repeal by the legislature; provided that if and to the extent that the United States shall so require, such law shall be subject to amendment or repeal only with the consent of the United States and in no other manner; provided further that if the United States shall have been provided or shall provide that particular provisions or types of provisions of such Act may be amended in the manner required for ordinary state legislation, such provisions or types of provisions may be so amended. The proceeds and income from Hawaiian home lands shall be used only in accordance with the terms and spirit of such Act. The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law.

Thirty percent of the state receipts derived from the leasing of cultivated sugarcane lands under any provision of law or from water licenses shall be transferred to the native Hawaiian rehabilitation fund, section 213 of the Hawaiian Homes Commission Act, 1920, for the purposes enumerated in that section. Thirty percent of the state receipts derived from the leasing of lands cultivated as sugarcane lands on the effective date of this section shall continue to be so transferred to the native Hawaiian rehabilitation fund whenever such lands are sold, developed, leased, utilized, transferred, set aside or otherwise disposed of for purposes other than the cultivation of sugarcane. There shall be no ceiling established for the aggregate amount transferred into the native Hawaiian rehabilitation fund.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Note:

Reference to "effective date of this section" in last paragraph of section apparently refers to effective date of section as amended November 7, 1978.

Attorney General Opinions:

This and next section may be deleted without consent of Congress. Att. Gen. Op. 68-18.

Law Journals and Reviews:

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

Case Notes:

Plaintiff challenging article XII insofar as it implemented Hawaiian Homes Commission Act lacked standing, where court was unable to redress plaintiff's injury as alleged in any meaningful way, in the absence of the United States as a party to the action. 188 F. Supp. 2d 1219.

Hawaiian Homes Commission Act is part of Hawai'i constitution and does not constitute federal law; thus, federal preemption principles did not apply to case where there was no relevant federal law at issue and conflict between Act and state statute was matter of state constitutional law. 87 H. 91, 952 P.2d 379.

12.2
Acceptance of compact

The State and its people do hereby accept, as a compact with the United States, or as conditions or trust provisions imposed by the United States, relating to the management and disposition of the Hawaiian home lands, the requirement that section 1 hereof be included in this constitution, in whole or in part, it being intended that the Act or acts of the Congress pertaining thereto shall be definitive of the extent and nature of such compact, conditions or trust provisions, as the case may be. The State and its people do further agree and declare that the spirit of the Hawaiian Homes Commission Act looking to the continuance of the Hawaiian homes projects for the further rehabilitation of the Hawaiian race shall be faithfully carried out.  [Ren and am Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

This and preceding section may be deleted without consent of Congress. Att. Gen. Op. 68-18.

Prevents transfer to counties of title to highways on Hawaiian home lands. Att. Gen. Op. 86-15.

Law Journals and Reviews:

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

Case Notes:

In setting aside Hawaiian home lands, federal government undertook trust obligation benefitting aboriginal people. State assumed fiduciary obligation upon being admitted as a state. Commission's considerations gave undue weight to interests of State, county, and citizens or taxpayers generally, thus breaching fiduciary duty. 64 H. 327, 640 P.2d 1161.

12.3
Compact adoption; procedures after adoption

As a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the constitution of this State, as provided in section 7, subsection (b), of the Admission Act, subject to amendment or repeal only with the consent of the United States, and in no other manner; provided that (1) sections 202, 213, 219, 220, 222, 224 and 225 and other provisions relating to administration, and paragraph (2) of section 204, sections 206 and 2l2 and other provisions relating to the powers and duties of officers other than those charged with the administration of such Act, may be amended in the constitution, or in the manner required for state legislation, but the Hawaiian home-loan fund, the Hawaiian home-operating fund and the Hawaiian home-development fund shall not be reduced or impaired by any such amendment, whether made in the constitution or in the manner required for state legislation, and the encumbrances authorized to be placed on Hawaiian home lands by officers other than those charged with the administration of such Act, shall not be increased, except with the consent of the United States; (2) that any amendment to increase the benefits to lessees of Hawaiian home lands may be made in the constitution, or in the manner required for state legislation, but the qualifications of lessees shall not be changed except with the consent of the United States; and (3) that all proceeds and income from the "available lands," as defined by such Act, shall be used only in carrying out the provisions of such Act.  [Add 73 Stat 4 and election June 27, 1959; ren and am Const Con 1978 and election Nov 7, 1978]

Law Journals and Reviews:

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

12.4
Public trust

The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as "available lands" by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public.  [Add Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

Power and authority to generate proceeds from, or power to alienate, lands held in public trust, exist under this section; history of this section indicates that section was intended to reiterate the trust contained in Admission Act. Att. Gen. Op. 95-3.

Law Journals and Reviews:

Courts and the Cultural Performance: Native Hawaiians' Uncertain Federal and State Law Rights to Sue. 16 UH L. Rev. 1.

Case Notes:

Does not violate section 5 of the Admission Act. 921 F.2d 950.

Where plaintiffs claimed standing to challenge the department of Hawaiian home lands (DHHL)/Hawaiian homes commission (HHC) leases as land trust beneficiaries and as state taxpayers, district court properly dismissed all claims against the United States and DHHL/HHC. 423 F.3d 954.

Section imposes fiduciary duty on Hawaii's officials to hold ceded lands in accordance with trust provisions of §5(f) of Admission Act; citizens of State must have means to mandate compliance. 73 H. 578, 837 P.2d 1247.

12.5
Office of Hawaiian Affairs; establishment of board of trustees

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.  [Add Const Con 1978 and election Nov 7, 1978]

Cross References:

Statutory provisions, see chapters 10 and 13D.

Attorney General Opinions:

A voter must qualify as a Hawaiian in his or her own right, not on the basis of the racial descent of the adoptive parents. Att. Gen. Op. 80-6.

The requirement that trustees be Hawaiians is not violative of the equal protection clauses; also the restriction to Hawaiians of the right to vote for trustees is not impermissible. Att. Gen. Op. 80-8.

Law Journals and Reviews:

To Dwell on the Earth in Unity: Rice, Arakaki, and the Growth of Citizenship and Voting Rights in Hawai'i. V HBJ No. 13, at pg. 15.

Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts. 14 UH L. Rev. 519.

Native Hawaiian Entitlement to Sovereignty: An Overview. 17 UH L. Rev. 427.

The California Civil Rights Initiative: Why It's Here, Its Far Reaching Effects, and the Unique Situation in Hawai'i. 22 UH L. Rev. 279.

Matters of Trust: Unanswered Questions After Rice v. Cayetano. 23 UH L. Rev. 363.

The Akaka Bill: The Native Hawaiians' Race For Federal Recognition. 23 UH L. Rev. 857.

Akaka Bill: Native Hawaiians, Legal Realities, and Politics as Usual. 24 UH L. Rev. 693.

Case Notes:

State's electoral restriction enacted a race-based voting qualification; Hawaii's denial of petitioner's right to vote, where petitioner was not a "Hawaiian", was a clear violation of the Fifteenth Amendment to the U.S. Constitution. 528 U.S. 495.

Does not violate section 5 of the Admission Act. 921 F.2d 950.

Limitation of eligibility to be a candidate for office of Hawaiian affairs trustee to Hawaiians invalid under the Fifteenth Amendment and §2 of the Voting Rights Act; plaintiffs lacked standing to challenge the restriction that appointed trustees be Hawaiian. 314 F.3d 1091.

Plaintiff challenging constitutionality of article XII, §§5 and 6 of state constitution and chapter 10, lacked standing, where plaintiff had not suffered any injury-in-fact. 188 F. Supp. 2d 1233.

12.6
Powers of board of trustees

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.  [Add Const Con 1978 and election Nov 7, 1978]

Attorney General Opinions:

Language expressly acknowledges the continued viability of the power to alienate ceded lands, first conferred upon State by §5(f) of Admission Act. Att. Gen. Op. 95-3.

Receipts derived from ceded lands apportioned for native Hawaiians pursuant to this section and §10-13.5 may be transmitted directly to office of Hawaiian affairs by agencies that collect them, without legislative appropriation. Att. Gen. Op. 03-4.

Law Journals and Reviews:

Native Hawaiians, Self-Determination, and the Inadequacy of the State Land Trusts. 14 UH L. Rev. 519.

Native Hawaiian Entitlement to Sovereignty: An Overview. 17 UH L. Rev. 427.

Case Notes:

Plaintiff challenging constitutionality of article XII, §§5 and 6 of state constitution and chapter 10, lacked standing, where plaintiff had not suffered any injury-in-fact. 188 F. Supp. 2d 1233.

12.7
Traditional and customary rights

The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.  [Add Const Con 1978 and election Nov 7, 1978]

Note:

A proposal of the 1978 Constitutional Convention adding a section 7 defining the terms "Hawaiian" and "native Hawaiian" was not validly ratified. Kahalekai v. Doi, 60 H. 324 (1979). In view of the holding, the revisor has deleted the section and renumbered section 8 as section 7 under the authority of Resolution No. 29 of the 1978 Constitutional Convention.

Cross References:

Miscellaneous rights of the people, see chapter 7.

Law Journals and Reviews:

Beach Access: A Public Right? 23 HBJ 65.

Native Hawaiian Cultural Practices Under Threat. I HBJ No. 13, at pg. 1.

Pele Defense Fund v. Paty: Exacerbating the Inherent Conflict Between Hawaiian Native Tenant Access and Gathering Rights and Western Property Rights. 16 UH L. Rev. 207.

Public Access Shoreline Hawaii v. Hawaii County Planning Commission: The Affirmative Duty to Consider the Effect of Development on Native Hawaiian Gathering Rights. 16 UH L. Rev. 303.

The Reassertion of Native Hawaiian Gathering Rights Within the Context of Hawai`i's Western System of Land Tenure. 17 UH L. Rev. 165.

Private Hopes and Public Values in the "Reasonable Beneficial Use" of Hawai`i's Water: Is Balance Possible? 18 UH L. Rev. 1.

Cultures in Conflict in Hawai`i: The Law and Politics of Native Hawaiian Water Rights. 18 UH L. Rev. 71.

Customary Revolutions: The Law of Custom and the Conflict of Traditions in Hawai`i. 20 UH L. Rev. 99.

The Backlash Against PASH: Legislative Attempts To Restrict Native Hawaiian Rights. 20 UH L. Rev. 321.

Loko i`a: A Legal Guide to the Restoration of Native Hawaiian Fishponds Within the Western Paradigm. 24 UH L. Rev. 657.

Native Hawaiian Homestead Water Reservation Rights: Providing Good Living Conditions for Native Hawaiian Homesteaders. 25 UH L. Rev. 85.

Wiping Out the Ban on Surfboards at Point Panic. 27 UH L. Rev. 303.

Case Notes:

Appellants' contention that native Hawaiian rights were exclusive and possessory was unsupported in the law. 76 F.3d 280.

Plaintiff lacked standing to challenge this section, where plaintiff clearly had not suffered any "injury" as a result of the section. 188 F. Supp. 2d 1219.

Native Hawaiian rights protected by section may extend beyond the ahupua`a in which a native Hawaiian resides where such rights have been customarily and traditionally exercised in this manner. 73 H. 578, 837 P.2d 1247.

Descendants of native Hawaiians who inhabited islands prior to 1778 who assert valid customary and traditional Hawaiian rights under §1-1 entitled to protection regardless of their blood quantum. 79 H. 425, 903 P.2d 1246.

Section requires county planning commission to "preserve and protect" reasonable exercise of customary or traditional native Hawaiian rights to the extent feasible when issuing special management area use permits. 79 H. 425, 903 P.2d 1246.

While unreasonable or non-traditional uses of land by non-owner Hawaiians not permitted, western concept of exclusivity as owner's property right not universally applicable in Hawaii; State however retains ability to reconcile competing interests under this section. 79 H. 425, 903 P.2d 1246.

If property is deemed "fully developed", i.e., lands zoned and used for residential purposes with existing dwellings, improvements, and infrastructure, it is always "inconsistent" to permit the practice of traditional and customary native Hawaiian rights on such property. 89 H. 177, 970 P.2d 485.

It is the obligation of the person claiming the exercise of a native Hawaiian right to demonstrate that the right is constitutionally protected. 89 H. 177, 970 P.2d 485.

To establish the existence of a traditional or customary native Hawaiian practice, there must be an adequate foundation in the record connecting the claimed right to a firmly rooted traditional or customary native Hawaiian practice. 89 H. 177, 970 P.2d 485.

Where defendant failed to adduce sufficient evidence to support claim of the exercise of a constitutionally protected native Hawaiian right and knowingly entered landowner's property which was fenced in a manner to exclude others, trial court properly concluded that defendant was unlawfully on property in violation of §708-814(1). 89 H. 177, 970 P.2d 485.

To fulfill its duty to preserve and protect customary and traditional native Hawaiian rights to the extent feasible, the land use commission, in its review of a petition for reclassification of district boundaries, must, at a minimum, make specific findings and conclusions as to the identity and scope of the valued resources, the extent those resources will be affected or impaired by the proposed action, and any feasible action the commission may take to reasonably protect such rights. 94 H. 31, 7 P.3d 1068.

Where land use commission allowed petitioner to direct the manner in which customary and traditional native Hawaiian practices would be preserved and protected by the proposed development, prior to any specific findings and conclusions by the commission as to the effect of the proposed reclassification on such practices, the commission failed to satisfy its statutory and constitutional obligations; in delegating its duty to protect native Hawaiian rights, the commission delegated a non-delegable duty and thereby acted in excess of its authority. 94 H. 31, 7 P.3d 1068.

Where land use commission failed to enter any definitive findings or conclusions as to the extent of the native Hawaiian practitioners' exercise of customary and traditional practices in the subject area nor made any specific findings or conclusions regarding the effects on or the impairment of any uses under this section, or the feasibility of the protection of those uses, the commission, as a matter of law, failed to satisfy its statutory and constitutional obligations. 94 H. 31, 7 P.3d 1068.

Where commission on water resource management refused to permit cross examination of water use applicant's oceanography expert regarding the limu population along the shoreline, in effect precluding the commission from effectively balancing the applicant's proposed private commercial use of water against an enumerated public trust purpose, the commission failed adequately to discharge its public trust duty to protect native Hawaiians' traditional and customary gathering rights, as guaranteed by this section, the Hawaiian Homes Commission Act, §220, and §174C-101. 103 H. 401, 83 P.3d 664.

Where to be entitled to intervention, appellee organization was required to show that gathering of opae was customarily and traditionally practiced on the subject land and that some of organization's native Hawaiian members exercised those rights, the record contained sufficient evidence to establish those requisites; [individual] appellee did not show that appellee's interest was "personal", i.e., that it was clearly distinguishable from that of the general public, where appellee did not assert that appellee or other native Hawaiians had engaged in any activities that might be protected under this section. 79 H. 246 (App.), 900 P.2d 1313.

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Article XII - Hawaiian Affairs

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