Reply to Letter from Tony Sang, from Bellows EIS 1995

Dear Mr. Sang: 

Thank you for your written testimony of May 9, 1995, regarding the DEIS for the above referenced action. Our responses to your comments are as follows:

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Comment: It is not accurate, as stated in section 2.4.5, that ceded lands used by the Department of Defense (DOD) remain in fee simple federal ownership. The Joint Resolution of Annexation and the Admissions Act recognize the unique status of Hawaii's ceded lands, which are not to be treated as other public lands. The organic act and Admissions Act go to great lengths to establish native Hawaiians as specific beneficiaries and to provide for native Hawaiians out of proceeds from ceded lands. "The issues of recognition of trust land and trust responsibility raised in Section 6.6 of the DEIS are central to the opposition of this community association to the current plans for Bellows AFS. . ."

Response: The points you raise focus on the time after the overthrow of the monarchy and address the effect of United States (U.S.) laws on the rights of persons of Hawaiian ancestry with respect to the ceded lands. We examined the documents of the time to see whether persons of Hawaiian ancestry were given rights which might support the claims made at the scoping session and at hearings on the DEIS.

a. You first question the statement in the DEIS that after statehood, the ceded lands remained in Federal fee simple ownership. You refer to P. L. 88-233 as a promise by the federal government to return ceded lands to the State and you note this as a distinction in title.

b. Technically, P. L. 88-233 should not be viewed as a promise, although we do not believe the issue will arise in the case of Bellows AFS. By that statute, Congress merely establishes a routine means of disposing of surplus ceded lands which is different from the routine means prescribed for lands which are not ceded lands. Both methods of disposal limit the options of the disposal agency according to the category of land which is being disposed of. However, neither statute limits the options or affects the title of the U.S.; that is, neither statute limits the right of Congress, which has the ultimate authority to determine how Federal property is disposed of, to change the disposal rules for any given parcel of land. Since the U.S. has fee simple absolute title to the ceded lands, a change in the disposal rules would not be a "taking" of anyone's rights or a violation of any obligation. In the case of the 170 acres proposed for release at Bellows, however, this distinction should make no difference, since there is no plan to dispose of these lands except through the normal process for ceded lands.

c. You also point to the following language from the Joint Resolution of Annexation as creating a unique status for ceded lands:

d. You conclude that this language is one of many indications that Congress intended these lands to be "trust lands". You then cite Section 5(b) of the Admissions Act, by which the U.S. granted to the State of Hawaii (SOH) its title to the public lands (with certain exceptions).

e. We agree that Congress did in fact, through the Organic Act, place the ceded lands under a regime different from that provided by Federal law for public lands in the other states and territories. The ceded lands in Hawaii were indeed reserved for public purposes, although we have been unable to conclude that the ceded lands were placed under any sort of trust beyond the general fiduciary responsibilities which any governmental entity would have for the property entrusted to it for use and administration.

f. We must, however, disagree with your testimony insofar as it asserts that the ceded lands, under either the Territory or the SOH, were specially reserved or targeted for persons of Hawaiian ancestry. As you point out, the Joint Resolution of Annexation speaks only of using these lands for "the benefit of the inhabitants of the Hawaiian Islands". We have found no evidence that the term "inhabitants" has any racial or ethnic connotation. The dictionary definition indicates otherwise: Webster's Ninth New Collegiate Dictionary defines "inhabitant" as "one that occupies a particular place regularly, routinely, or for a period of time" and defines "inhabit" as meaning "to occupy as a place of settled residence or habitat". Black's Law Dictionary (Fifth Edition) defines "inhabitant" as "[o]ne who resides actually and permanently in a given place, and has his domicile there". This race-neutral definition appears to reflect the actual practice during Territorial times, and we have found no grounds to believe that Congress had any other meaning in mind when it used that term.

g. Such an interpretation is also consistent with the practice under the monarchy, when citizens of both Hawaiian and non-Hawaiian ancestry had equal rights. Equality of citizens is clear from the sections on citizenship of the 1846 Joint Resolution of the Hawaiian Legislature entitled "An Act to Organize the Executive Department of the Hawaiian Islands", Chapter V, Article I, Sections III and VIII. It is also strikingly plain in the Constitution of 1852, Article 14, which provided:

h. We must also disagree with your position that Section 5(f) of the Admission Act "distinguishes native Hawaiians from any other beneficiaries" of the public trust and "expressly provides that ceded lands are to be used for the 'betterment of the conditions of native Hawaiians'". Section 5(f) does list "the betterment of the conditions of native Hawaiians" (defined as 50% or more Hawaiian blood by reference to the Hawaiian Homes Commission Act of 1920) as one permissible use of the proceeds of the ceded lands, but section 5(f) does not require that all or any part of the proceeds of the ceded lands be used for that one of the enumerated public uses for these proceeds. Section 5(f) specifically states:

i. By the terms of the statute itself, the ceded lands and the proceeds and income from them could be lawfully used entirely for education, or entirely for the development of farm and home ownership, and not in any measure for the betterment of the condition of native Hawaiians. The SOH has chosen to provide a portion of the income from the ceded lands for the betterment of native Hawaiians, but this is the State's option, not the State's duty. This very issue was presented to the U.S. Court of Appeals for the Ninth Circuit in the case of Price v. Hawaii, 921 F.2d 950 (9th cir., 1990), which stated at page 955:

j. Of course, it must be noted that even if Section 5(f) were read to impose specific obligations on the State to apportion a part of the proceeds from the ceded lands to native Hawaiian support, no corresponding obligation would limit the Federal government. By the words of the statute itself, the trust is imposed on the State; the Federal government may enforce the state's trust obligations, but it is not bound by them.

k. The foregoing compels the conclusion that persons of Hawaiian ancestry did not and do not have rights of any sort, solely by virtue of that ancestry, in or to the ceded lands. It remains to consider whether persons of Hawaiian ancestry could be granted such rights at this time as part of DoD's decision-making with respect to Bellows AFS.

l. No such action could be taken by any agency in the Executive Branch of the Federal government without special legislation. For example, in response to a request by Congressman Tom DeLay on behalf of a constituent seeking an increase in rent for property rented to the U.S. Postal Service, the Comptroller General stated (Unpublished opinion B-238430, April 4, 1990):

m. Since persons of Hawaiian ancestry do not have existing rights in the ceded lands, any action of an executive agency acknowledging or creating such rights would constitute a gift of Government property. Disposals of Government real property are rigidly controlled by statute. The exclusive authority of Congress over disposals of Federal property is unequivocally affirmed by the Comptroller General, with multiple citations to judicial precedent, in MATTER OF: Immigration and Naturalization Service--Lease-back arrangement to pay for renovations to detention facility (B-221011, February 25, 1986, 65 Comp. Gen. 339:

n. With narrow exceptions not pertinent here, (for example, the granting of leases, licenses and easements), a DoD agency has no general authority to dispose of real property under its jurisdiction. The Federal Property and Administrative Services Act of 1949, as amended, 40 U.S.C. 471ff, permits disposal of property outside the Government only when that property is surplus to the needs of the Government--that is, no longer needed either by the agency originally using it or any other agency of the Government (see 40 U.S.C. 484). Such disposals occur only after the agency responsible for the lands has reported them as surplus to the General Services Agency, which then becomes responsible for the disposal action. Any disposal of surplus lands at Bellows AFS would be accomplished under appropriate statutory authority, depending on whether those lands are ceded or not. Any other disposal of surplus lands would require express authorization from Congress.

o. Thus any grant of rights in the ceded lands to persons of Hawaiian ancestry would have to come from Congress. That body, however, may find that its ability to grant such rights to a group whose members are defined purely by race is limited by the recent U. S. Supreme Court case of Adarand Constructors v. Federico Pena. That case holds that racially-based distinctions in Federal decisions must survive a test of "strict scrutiny"; that they are permissible only when the Government can show a "compelling interest" to be served; and that any remedy must be "narrowly tailored" to correct specific past wrongs. For Congress to lawfully give persons of Hawaiian descent preferential rights to the ceded lands or their proceeds, it would have to demonstrate that some wrong (probably of constitutional magnitude) that such an action would redress. However, since persons of Hawaiian ancestry, as such, never had any rights in or to the ceded lands, and since the ceded lands are still used (as they were under the monarchy) for the benefit of all the persons of the Hawaiian Islands, it would be difficult to show that any remedy is needed, particularly a racially oriented one. The broader complaints that the overthrow of the monarchy was "illegal," as stated in the apology resolution (P.L. 103-150), could hardly suffice to justify race-oriented remedial action by Congress since persons of Hawaiian ancestry had no more rights to the ceded lands before the revolution than afterward. Perhaps more importantly, if there was any wrong done by the overthrow of the monarchy, the wronged parties would have to include at least all the citizens of the kingdom, and perhaps all the permanent residents of the kingdom. Many of the persons in each of these categories were not of Hawaiian ancestry. Since any such wrong would have no racial link, it would be extraordinarily difficult under the Adarand test to justify a race-linked remedy.

p. In summary, the evidence we have been able to discover shows that as a result of the actions of the king and legislature during the monarchy period, persons of Hawaiian ancestry have no valid claim to the ceded lands deriving frm ancestry, descent or race.

q. We are fully aware that this conclusion contradicts conventional understanding of the issue, and we are fully open to considering any evidence that supports that conventional understanding. On the basis of what we have seen to date, however, we cannot agree that such rights exist.

Revisions to DEIS: none.

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Sincerely,