Fulfilling the State’s Public Land Trust Revenue Obligations

More than 40 years have passed since the state formally recognized that “twenty percent of all funds derived from the public land trust” must be set aside for the Office of Hawaiian Affairs – specifically to better the conditions of Native Hawaiians.

After decades of litigation and negotiation over the interpretation of this requirement, in 2006, via Act 178, the Legislature set $15.1 million as the interim (temporary) amount that should be transferred annually to OHA.

Act 178 also required state agency reporting to provide data on revenue being generated from the use of Public Land Trust (PLT) lands. Based on independent audits, as well as the state’s own accounting, this “interim” amount falls far short of the 20 percent of PLT revenues to which Native Hawaiians and OHA are entitled.

Public Land Trust Bill Update September 2023

In 2022, Legislature passed Act 226 which increased the payment amount for OHAʻs pro rata share of the PLT revenue. Specifically, the measure:

• Increased OHA’s interim annual pro rata from $15.1 million to $21.5 million, which, while an improvement, is far less than OHA’s request for $78.9 million annually.
• Allocated a one-time payment of $64 million to OHA, which reflected the difference between $21.5 million and the prior allocation of $15.1 million over a period of 10 years.
• Established an OHA-led working group to account for all ceded lands in the PLT inventory and for all income and proceeds from PLT, in order to determine the actual 20% pro rata share.

The working group is comprised of three members appointed by the governor and three members appointed by OHA trustees. Under the leadership of OHA Ka Pouhana Kūikawā/Interim CEO Colin Kippen, the working group continues to meet as of September of 2023.

Public Land Trust Bill Update April 2022

View the statement from OHA Board of Trustees Chair Carmen “Hulu” Lindsey on the House Finance Committee Hearing on the Public Land Trust bill.

Public Land Trust Bill Update 3/30/22

Mahalo for your support on the Public Land Trust (PLT) bills. OHA continues to engage the state on the PLT for what is fair, just, annually due and past due for the betterment of the conditions of Native Hawaiians. The OHA-introduced bill, SB2122 was deferred, leaving SB 2021 SB1 HD1 (HD1) as the only option to enact legislative change on the PLT this session. This bill is waiting for a hearing with the House Finance Committee.

OHA supports the intent of HD1, to increase the pro-rata share of income and proceeds of the PLT, however harmful edits have been made to the bill that need to be corrected to make this bill pono for Native Hawaiians. As a result, on March 29, 2022, the OHA Board of Trustees changed its position on HD1 to COMMENT. OHA strongly opposes language in the bill that amends Hawaiʻi Revised Statutes §10-10.13.5 Use of Public Land Trust Proceeds and changes OHA’s annual share of the income and proceeds of the PLT from:

• 20% of gross receipts from the PLT to
• 20% of “net receipts or $15.1 million whichever is greater.”

The state seeks to wrongfully protect its agency budgets by covering their expenses and development costs first with Native Hawaiian beneficiary monies before transferring a cent to OHA for its programs and services. With this shift to net income, the State fails to uphold its trust obligation and duty to Native Hawaiians in favor of its own budgetary concerns and interests. We implore our legislators to fix this problematic language immediately. It’s not too late to make this bill pono. We need legislators who can demonstrate leadership, accountability, an understanding of the State of Hawaiʻi’s trust responsibilities, and who will do the work to make the amendments outlined below.

OHA proposed that HD1 be amended as follows:

1. Delete Section 2 in its Entirety. OHA STRONGLY OPPOSES any amendments to HRS §10-13.5, which has always been 20% of gross receipts. Additionally, remove all language referring to “net” receipt;
2. Interim Annual Sum. Establish $21.5 million adjusted annually for the consumer price index, as OHA’s interim annual share of the income and proceeds of the Public Land  Trust beginning July 1, 2022;
3. Carry Forward Trust Holding Account. Transfer to OHA the balance of funds contained in the carry forward trust holding account (CFTHA) as of June 30, 2022, projected to be approximately $31 million;
4. Accounting. Require the continued annual accounting of all receipts from ceded lands described in Section 5(f) of the Admission Act; and
5. Working Group. Establish a State of Hawaiʻi/OHA working group as a reasonable first step toward resolving the disputed areas.

Claims. Nothing in the HD1 amendments resolves or settles, or acknowledges the existence of, the claims of Native Hawaiians to the income and proceeds of a pro-rata portion of the PLT under article XII, section 6 of the Hawaiʻi State Constitution.

For decades, OHA has worked to resolve the dispute over the accounting of PLT lands inventory, pursue the 20%  pro-rata share of all income and proceeds from the PLT, and seek fair and just annual payments due and past due. OHA acknowledges that currently there are areas of disagreement with what is rightfully owed. We believe that in the short term, to modestly increase a 16-year-old “interim” number to reflect inflation is fair, and to release the money from the Carry Forward Trust Holding Account (CAFTA) fund is fair and just. Creating a State of Hawaiʻi/OHA working group provides a process and is a step toward resolving some of those areas of disagreement as we seek to hold the state accountable for its trust obligations to Native Hawaiians.

As we wait for the Finance Committee to schedule the hearing of the PLT bill, please take the time to set up an account at www.capitol.hawaii.gov/login/register.aspx, so you can easily submit the testimony (below) when the hearing is scheduled. We will send an email update when the hearing is scheduled. Also, you may set up a bill tracker on the Capitol website.

Mahalo for standing ready to testify on the PLT bill. With your support and the support of legislative leadership, we can make the changes necessary to make SB2021 SD1 HD1 pono for Hawaiians.

SAMPLE TESTIMONY

Aloha mai kākou,

I am submitting my testimony on S.B. 2021 SD1 HD1 for an increase of the pro-rata share of the Public Land Trust (PLT), and in support of 20% of all PLT revenue as what is due to the Office of Hawaiian Affairs (OHA) for Native Hawaiians.

1. I STRONGLY OPPOSE any changes to Hawaiʻi Revised Statutes 10-13.5, which has always been 20% of all funds derived from the PLT as OHA’s pro-rata share.
2. I STRONGLY OPPOSE transferring only the “net” income to OHA, which is not 20% of all funds derived.
3. I SUPPORT an interim increase of $21.5 million adjusted for inflation; as  OHA’s interim annual share of the income and proceeds of the PLT beginning July 1, 2022;
4. I SUPPORT the release of the Carry Forward Trust Holding Account funds, approximately $31 million, to OHA;
5. I SUPPORT the continued transfer of receipts and payments and the establishment of a Working Group to resolve the State of Hawaiʻi/OHA dispute regarding the PLT lands and income and proceeds due.

Please make this situation pono. The State of Hawaiʻi must fulfill its constitutional obligation to Native Hawaiians.

Thank you for this opportunity to testify.

OHA is seeking the commitment of the state to fulfill its PLT obligations to Native Hawaiians.

In order for the state to fulfill its PLT obligations to Native Hawaiians, the following must happen:

1. The state must transfer Native Hawaiians’ full 20% pro-rata share of the gross revenues generated by PLT lands to OHA ($78.9 million annually), in compliance with §HRS 10-13.5, which was codified in 1980 but has never been honored.
2. The state must transfer $638 million in under-paid PLT revenues for the past 10 years (2012-2022) to OHA, as part of its legal and trust obligation to Native Hawaiians.
3. The state must accurately and publicly account for all “ceded” (the former crown and government lands of the Hawaiian Kingdom) lands in the PLT inventory.
4. The state must accurately and publicly account for all income and proceeds generated by and derived from the PLT annually by all its managing departments to ensure that Native Hawaiians receive their legal, rightful share of these monies.

To receive updates on the PLT and other legislative efforts via email, and learn about opportunities to testify at upcoming hearings, sign up via the “Stay Connected” form (at the top of this webpage in the sidebar).

Watch the film “Justice Delayed is Justice Denied”

“Justice Delayed Is Justice Denied” documents the ongoing struggle—to ensure that the State of Hawai‘i fulfills its commitments to the Native Hawaiian people stemming from the loss of their ancestral lands.

The film describes the deep connection between Native Hawaiians and their ancestral lands, and how a portion of these lands were seized from the Hawaiian Kingdom after the overthrow in 1893 and placed in what is today called the Public Land Trust. The state administers this trust and is legally required to provide a portion of revenues from the trust to Native Hawaiians.

Through compelling interviews with former Hawai‘i Gov. John Waihe‘e III, Office of Hawaiian Affairs officials and Native Hawaiian advocates, Justice Delayed Is Justice Denied details the longstanding and complex efforts to ensure that the state fairly pays Native Hawaiians; documents the current shortfall in payments to Native Hawaiians; and shows how Native Hawaiians and their communities would benefit if they received appropriate funding from their ancestral lands.

In the simplest of terms, the film asks, “How do we make it right?”