HAWAIIAN STATEHOOD ACT-SCOPE OF DUTY TO REPORT ON PROPERTY RETAINED BY THE UNITED STATES

Section 5(e) of the Hawaiian Statehood Act (March 18, 1959, Public Law 86-3, 73 Stat. 4, 5), as amended, imposes on each Federal agency having control over any land or property retained by the United States in the State of Hawaii pursuant to sections 5 (c) and (d) of that act, the duty to report to the President on its continued need for such land or property. This duty is limited to "public lands and public property," i.e., to the lands and property that were ceded to the United States by the Republic of Hawaii at the time of its annexation. The duty to report does not extend to any land or property thereafter acquired by the United States. This conclusion is supported by the structure of the section, its legislative history, and the traditional use of the term "set aside” in connection with Hawaii.

The interpretation of a statute by a committee of one House of Congress is of little probative value where the corresponding committee of the other House refuses to concur in that interpretation, and if the interpretation is not enacted into law.

The Attorney General will not answer questions which are hypothetical in nature or the solution of which depends upon facts which have not been made available to him.

THE PRESIDENT.

JUNE 12, 1961.

MY DEAR MR. PRESIDENT: I have the honor to comply with a request of President Eisenhower for an opinion interpreting section 5 of the Hawaii Statehood Act, Public Law 86-3, 73 Stat. 4, 5, 48 U.S.C. (Supp. II), c. 3, Note. The pertinent parts of the section are set forth in an appendix to this opinion.

Section 5 relates to the transfer of certain publicly owned property located in the Hawaiian Islands to the new State and its political subdivisions. Subsection (e) of section 5 deals with the property retained by the United States pur

suant to the other provisions of the section. It provides that, within five years after Hawaii is admitted into the Union, each Federal agency controlling such property shall report to the President regarding its continued need for such property, "and if the President determines that the land or property is no longer needed by the United States it shall be conveyed to the State of Hawaii." Technically, the questions upon which my opinion has been requested relate only to the interpretation of the mandatory reporting requirement. However, that interpretation will, in effect, also decide what land or property the President has statutory authority to convey to the State of Hawaii upon a finding that it is surplus.

Section 5 is technical and complicated legislation, an understanding of which requires a description of the various types of Federal and territorial property rights existing in Hawaii prior to statehood. The property owned by the United States in Hawaii at the time that State was admitted into the Union in 1959, fell into two basic categories. First: The property ceded to, and acquired by, the United States pursuant to the Joint Resolution providing for the annexation of the Hawaiian Islands, approved on July 7, 1898 (30 Stat. 750),1 or property exchanged for lands so ceded. Section 5(g) of the Hawaii Statehood Act refers to this property as "public lands and other public property." In the interest of brevity I shall refer to it as "ceded property." Second: The property acquired by the United States by means other than by the Joint Resolution of July 7, 1898.

1 Pursuant to this Joint Resolution, the United States accepted the cession by the Government of Hawaii of "the absolute fee and ownership of all public, Government or Crown lands, public buildings, or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining."

3 Section 5(g) provides:

"As used in this Act, the term 'lands and other properties' includes public lands and other public property, and the term 'public lands and other public property' means, and is limited to, the lands and properties that were ceded to the United States by the Republic of Hawaii under the joint resolution of annexation approved July 7, 1898 (30 Stat. 750), or that have been acquired in exchange for lands or properties so ceded."

Most of that property was obtained after annexation by way of purchase or condemnation. This property is referred to herein as "afteracquired property" of the United States.

The ceded property is divided into two subgroups, viz., the ceded property which has been "set aside" for the use of the United States, and that which has not been so "set aside." This distinction, and the phrase "set aside," go back to the Joint Resolution of July 7, 1898, by which the United States "accepted" the absolute fee and ownership of the ceded property (supra, n. 1), and provided, in substance, that the existing laws of the United States governing public lands should not apply to Hawaii; that special laws should be enacted for the management and disposition of this property; and that the income derived from it should be used only for the benefit of the inhabitants of Hawaii for educational and other public purposes, except with respect to such property "as may be used or occupied for the civil, military or naval purposes of the United States."

This portion of the Joint Resolution was implemented by section 91 of the Organic Act of Hawaii of April 30, 1900 (31 Stat. 159, 48 U.S.C. 511), pursuant to which “*** the public property ceded and transferred to the United States by the Republic of Hawaii under the joint resolution of annexation, approved July seventh, eighteen hundred and ninety-eight, shall be and remain in the possession, use, and control of the government of the Territory of Hawaii, and shall be maintained, managed, and cared for by it, at its own expense, until otherwise provided for by Congress, or taken for the uses and purposes of the United States by direction of the President or of the governor of Hawaii ***" [Italics supplied.] Pursuant to a uniform legislative,*

'Joint Resolution of July 7, 1898, 30 Stat. 750, 48 U.S.C. 661: "The existing laws of the United States relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the United States shall enact special laws for their management and disposition: Provided, That all revenue from or proceeds of the same, except as regards such part thereof as may be used or occupied for the civil, military, or naval purposes of the United States, or may be assigned for the use of the local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.”

4

'Cf. H. Rept. 831, 77th Cong., 1st sess., pp. 1-2; S. Rept. 576, 77th Cong., 1st sess., pp. 1–2.

judicial, and executive usage, ceded property "taken for the uses and purposes of the United States" under this authority has been called "set aside."

The United States has not, however, retained title to all the ceded property which has not been "set aside." Section 91 of the Organic Act, supra, permitted ceded property which was utilized for certain enumerated public purposes to be conveyed or transferred by direction of the President to the Territory. In turn, the Territory could transfer its title to such conveyed property to "any city, county, or other political subdivision thereof, or the University of Hawaii" by direction of the Governor when authorized by the legislature.

In summary, at the time Hawaii became a State, the United States owned the following classes of property in Hawaii: Afteracquired property, ceded property which had been set aside, and that part of the ceded property which had neither been set aside nor conveyed to the Territory of Hawaii. The United States held merely the naked title to the last type of property, since, pursuant to section 91 of the Organic Act of Hawaii (supra), the possession, use, and control remained with the Territory of Hawaii.

The Territory of Hawaii owned two classes of property. It owned the ceded property, the title to which had been transferred to the Territory by direction of the President pursuant to section 91 of the Organic Act. It also owned nonceded property, acquired by it after annexation, presumably by purchase, condemnation, etc., which will be referred to as "territorial afteracquired property." This territorial afteracquired property could be set aside by the Governor for the uses and purposes of the United States pursuant to a 1941 amendment of section 73 (q) of the Organic Act of Hawaii (48 U.S.C. 677)."

* United States v. Marks, 187 F. 2d 724, 730 (C.A. 9, 1951). See, e.g., Executive Order No. 2464, of September 29, 1916. 'Cf. H. Rept. 831, 77th Cong., 1st sess., pp. 1-2, and S. Rept. 576, 77th Cong., 1st sess., pp. 1-2: "Senate Concurrent Resolution No. 11 of the Legislature of Hawaii, adopted April 19, 1941, sets forth that the Hawaii Organic Act providing for taking of lands for the uses and purposes of the United States has been held as applying only to the public property ceded and transferred to the United States by the Republic of Hawaii under the joint resolution of annexation, adopted July 7, 1898. The purpose of this bill is to amend section 73, sub