From: "Sparky Rodrigues"
Sent: Sunday, March 31, 2002 5:13 PM
Subject: EIS Scoping Meetings set...
We need your help. April 9 and 13, 2002. Testimony can be submitted via e-mail. The Army has announced two Scoping Meetings for the Environmental Impact Statement (EIS) for live-fire training at Makua. This is the community meeting where we have a chance to present our concerns and focus the EIS study on what is important. No limits, every subject is open for presentation. Kingdom of Hawaii, Crown and Ceded lands, Sovereignty,
Independence, Land Use, resources, Hawaiians on the Land, Kupuna Kahiko,
health impacts, Clean up issues, social impacts, Malama 'Aina, Aloha 'Aina,
Mo'olelo that is important, all the forms of endangered Hawaiians.
In the past testimony and words given in the Hawaiian Language was
always recorded as "Inaudible". This is still happening in our courts and society today. As part of the Court Settlement, the Army has to provide a court reporter and must be able to record the testimony in Hawaiian or a audio tape recording of the testimony must be transcribed into Hawaiian than translated into English. This may be the first time this has happened. This is for the Record.
I urge you to participate in the Scoping Meetings by providing testimony. If you are able to 'Olelo Hawai'i please do. If English is most comfortable your testimony is very important. If you are able to enlist the support or participation of Youth, Makua and Kupuna, please Kokua.
Know that the Army and supporters of live fire training on the 'Aina will be present in mass and will submit written testimony. The 'Aina is important and needs our help, our mana'o, our voices.
Mahalo for your Kokua. Sparky, Leandra & Ohana.
*** This additional e-mail was sent a few days prior to the Saturday April 13 Makua scoping hearing, but it was too late to be included in the Aloha For All testimony submitted on March 8. Notice that the writer of this e-mail confesses that he cannot speak or write Hawaiian language, but he nevertheless urges his fellow protestors to use Hawaiian if they are capable of it, because “We need to serve notice to these occupation forces, English is our second language.” That claim is clearly bogus. ***
----- Original Message -----
Hi, the EIS Scoping meeting is a key part of our efforts to make an impact
on the Community of Waianae and our 'Aina. In the past the Hawaiian language was NOT considered in any testimony. The federal government
has never acknowledge our language in any court or testimony. Always
documented as inaudible. This EIS process is a real opportunity to Question the Army in our native language. I lack the ability to speak our language so I
will submit testimony in the colonizers language. I'm looking to you to
spread the word and gather those who can 'Olelo Hawai'i. Offer testimony in
the Hawaiian Language for the EIS Scoping process. Answer the questions of our colonial occupation. How the military has impacted our culture,
social-economic condition, the 'Aina, wai, kai... The settlement forces
the Military to accept our language both spoken and written as testimony.
Please participate and include your Hawaiian voice. We need to serve notice
to these occupation forces, English is our second language. Hope to see you and your Ohana on Saturday. Mahalo, Sparky
=================================
(5) HOW MAKUA EIS CAN LEARN FROM A PREVIOUS EIS AT BELLOWS REGARDING CEDED LANDS, RACE-BASED RIGHTS TO ACCESS, AND THE 1993 CONGRESSIONAL APOLOGY RESOLUTION
In 1995 testimony was collected for scoping for an environmental impact statement regarding Bellows Air Force Base in Waimanalo. Although Bellows concerns the Air Force and Makua concerns the Army; and although Bellows is in Waimanalo while Makua is far away on the leeward coast; many of the issues raised by ethnic Hawaiians are the same.
Four important items from the Bellows EIS process are available on the internet as part of the website
What follows are some excerpts from each of those four items, together with the website URL where the entire item can be seen.
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http://aloha4all.org/B-INTR1.HTM
The Bellows Air Force Station Environmental Impact Statement and Hawaiian Claims to the Military's Ceded Lands
The document was principally concerned with various proposed land use changes, including improved recreational facilities, new family housing, expanded Marine Corps training and identification of land which might be released for non-military uses. However, at public "scoping" meetings held during the early stages of planning in order to identify issues which the EIS should address, a number of people (including one member of Hawai'i's Congressional delegation) noted that most of the land at Bellows AFS was "ceded land" and asserted that "Native Hawaiians" (referring generally to persons descended from the inhabitants of the islands before the discovery of Hawai'i by Captain James Cook in 1778) had special rights or interests in these lands. Some commenters asked that Native Hawaiians be given a special voice in decisions about the future of Bellows AFS; others stated that the lands should be immediately "returned" to "Native Hawaiians".
As a result of these comments, the military undertook a detailed study of the chain of title supporting the military's claim to ownership of these lands as well as the claims that Native Hawaiians have special rights or interests in these lands. The chain of title was clear and unremarkable, and showed that all the parcels at Bellows, both the ceded lands and the parcels which had been acquired from prior owners, had passed by proper documentation to the military.
In spite of this, the military went further and sought out whether any basis might exist for the Native Hawaiian claims. In Section 6.6 of the Draft EIS, the military announced its tentative conclusion that there was no merit to these claims, and that at least since the time of the Great Mahele of 1848, "Native Hawaiians", as a group defined by race or ancestry, had no claims of any sort to the lands which would eventually become the ceded lands.
Some of those who submitted comments on the Draft EIS objected to the military's conclusions concerning the Native Hawaiian claims to the ceded lands at Bellows, and their comments were addressed with care in the Final EIS.
Steven Kubota's letter of May 9, 1995 addressed several elements of the Draft EIS; his comments concerning Section 6-6 were as follows: Land title issues in the DEIS completely ignore the ramifications of the US Apology to Native Hawaiians (P.L. 103-150). This is a major omission and an insult to native Hawaiians. The sole argument in the DEIS rests on the U.S. Claims Court decision in 1910 (Liliuokalani v. U.S.) (6-10). The DEIS quotes the court as saying: "The Crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. When the office ceased to exist (emphasis added), they became as other lands of the Sovereignty and passed to the defendants (U.S.) as part and parcel of the public domain." By ignoring the fact that "the office ceased to exist" because of the illegal actions of sugar
planters, descendants of missionaries, financiers and representatives of the US government, the preparers of the DEIS have attempted to discredit the testimonies of the many people who questioned the military's title to Bellows AFS. References to sugar plantations (2-5, 2-6, etc.) omit the fact that the US government admitted to the complicity of representatives of the sugar plantations in the illegal overthrow of the Hawaiian Monarchy. Land title issues should not demean the claims of native Hawaiians and should be re-evaluated in light of the US Apology.
The military responded to these and other comments of Mr. Kubota in a letter from Melvin N. Kaku, Director of the Environmental Planning Division of the Pacific Division, Naval Facilities Engineering Command, dated 26 October
1995. Enclosure (1) to that letter, entitled "Response to Comment 1", consisted of a detailed explanation of the military's position on the Native Hawaiian claims to the military's ceded lands, with references to and quotations from historical and legal documents. It also explained in depth why the Apology Resolution, Public Law 103-150, had no bearing on
the issue.
Mr. Anthony Sang, President of the Waimanalo Hawaiian Homes Association also submitted written testimony which received a detailed response. Mr. Sang's comments are too lengthy to set out here, but they are summarized in Mr. Kaku's letter responding to the comments of Mr. Sang.
After considering these and other comments, the military concluded that its original conclusions were valid, and it republished them, with additional points concerning the Apology Resolution, in Section 6.6 of the Final EIS.
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http://aloha4all.org/B-KUBOTA.HTM
Dear Mr. Kubota:
In your letter of May 9, 1995 you state that the Draft EIS' discussion of land title issues should be reevaluated in light of Congress's legislative apology to native Hawaiiians enacted in P. L. 103-150 (hereinafter referred to as the Resolution). You state further that the Government's reliance on Liliuokalani v. U. S., 48 Ct. Cl. 418 (1910), to support the position that persons of Hawaiian descent have no ownership rights in the ceded lands is unjustified because that case failed to take into consideration that the overthrow of the monarchy was illegal. These issues deserve a detailed response.
The ceded lands at Bellows AFS are part of the former Crown lands of the monarchy. Before addressing each of the points you raise, it may be useful to review the history of the ceded lands, and in particular the Crown lands, in more detail than was done in the Draft EIS.
In preparing the EIS, we researched primary and secondary sources for both the monarchy period and afterward to ascertain the grounds for the belief, as expressed at the scoping sessions, that persons of Hawaiian ancestry have claims to the ceded lands. From our research, the only conclusion which could fairly be drawn was that these beliefs, however honestly held, were not supported by history or law. We examined legal documents of the kingdom such as the Principles Adopted by the Board of Commissioners to Quiet Land Titles, in their Adjudication of Claims Presented to Them. (Laws 1848, p. 81, reprinted in Revised Laws of Hawaii (RLH) 1925, Vol. II, p. 2124, hereinafter referred to as Principles) and decisions of the courts of the kingdom concerning Crown lands. We also reviewed such modern studies as Cannelora's The Origin of Hawaii Land Titles and of the Rights of Native Tenants (1974, hereinafter referred to as Cannelora)
and Jon Chinen's The Great Mahele (1958) and Original Land Titles in Hawaii (1961) which examined in detail the development of real property rights in Hawaii.
These sources show a rapid evolution of the concept of property ownership in the Hawaiian kingdom over the first half of the nineteenth century from a situation in which the king exercised absolute control of the land of the kingdom to one in which control was allocated in a Western model among the King, the government, the chiefs or konohikis and the tenants or common people. This evolution culminated in a series of property divisions generally referred to as the Great Mahele, hereinafter referred to as the Mahele. It included the segregation of the Crown and government lands of the kingdom from the property of private individuals. In so doing, it changed the
nature of property ownership in a way that left no room for any rights in or to the Crown lands other than the private property rights of the monarch.
For accuracy and completeness, the following review of this process is described principally through direct quotations from the above sources, rather than through summaries and paraphrases, and as much as possible from the primary legal documents themselves.
[There follows a lengthy and well-documented description of the Mahele process]
Thus the overall effect of the Mahele was to terminate the shared -ownership, trust-like relationship described in the Constitution of 1840.
Through the Mahele, these diffuse and poorly-defined rights were specified and allocated to individuals, to the King and to the government. Following the Mahele, the chiefs and common people had no property rights in the lands of the King and the government, and no rights to control those lands except as citizens of the Kingdom acting through the structures of government; that is, the ballot box and the political process. There could no longer be any broadly-shared or communal claims to the Crown or government lands.
By the time of the Mahele, many citizens of the kingdom were not of Hawaiian ancestry, and by the 1850's, the kingdom's law generally did not discriminate among subjects of the kingdom on grounds of Hawaiian ancestry. Specifically, there was no differentiation on the basis of ancestry with respect to the rights to vote and to hold property and thus it could no longer be said, in any sense, that persons of Hawaiian descent, by virtue of that descent alone, had rights superior to those of persons of foreign parentage with respect to the lands of the King or the government. Such rights as existed in the citizens of the kingdom to control those lands were attributes of citizenship, not race. When the government of the kingdom changed from a constitutional monarchy to a republic and then to a territorial government of the United States, there was no conceptual change in the relationship of the citizens to the lands of the government. However
"citizens" might be defined and however the franchise might be restricted or expanded, it was citizenship, not ancestry, which gave rights to participate in decisions concerning the Crown and government lands. Citizens of the territory had precisely the same rights and opportunities to control the disposition of lands of the government as citizens of the monarchy; that is, through the ballot box and the political process.
With these facts in mind we turn to the issues you raise in your letter. The first issue is the effect of P. L. 103-150, which is sometimes
referred to as the apology resolution.
A careful reading of the resolution indicates that it is not applicable to the disposition of ceded lands at Bellows AFS. Specifically: The resolution neither recognizes nor creates rights to any of the ceded lands in Native Hawaiians or any other group defined by race or ancestry, and contains the following express disclaimer: Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.
The resolution provides no direction to any individual Federal agency as to any specific implementing action. There is no express instruction with respect to ceded lands, and no instruction or implementing action is implied (as might be the case, for example, if the resolution excused a Federal agency from otherwise-applicable requirements such as those governing management, transfer or disposal of real property).
The executive branch has been silent on the resolution. We have been unable to locate any Presidential or other regulatory guidance as to whether or how Federal agencies should address the resolution or pursue follow-on actions.
Although the resolution terms the revolt against the monarchy "illegal", it makes no similar finding on the annexation of Hawaii by the United States or the cession of land that accompanied that annexation. This is an important point, because while a revolution is almost always illegal under the law of the government revolted against, when the revolution is successful, a new de facto government exists which often becomes the legitimate government of the country, entitled to international recognition and the prerogatives of a lawful sovereign. This took place with the Provisional Government, which was the sole and effective government of Hawaii during the years from 1893 to 1898 and was recognized as such not only by the United States but also by the major world powers.
This conclusion--that the apology resolution has no bearing on Native Hawaii>ian claims of ownership of the ceded lands--is consistent with the observations in the Draft EIS that under the monarchy, persons of Hawaiian descent as a group or class were not recognized as having ownership rights in the Crown or government lands. Since such persons as a racial group never had rights in the ceded lands under the monarchy, the 1893 revolution could not have deprived them of any rights to the ceded lands, and so there would have been no reason for the resolution to address such rights.
It is further noted that the recitations in the resolution are not universally accepted as the truth among Hawaii's citizens, and there has
recently been highly visible public debate on these issues.
In light of the foregoing, the resolution can best be seen as an appeal to Federal agencies whose actions affect persons of Hawaiian ancestry to be alert and sensitive to the special significance of the 1893 revolution for many such persons. For this EIS process, however, such sensitivity is already mandated by the statutes and regulations governing the process, particularly those concerning scoping and subsequent public input. It was precisely the public input during scoping that prompted the thorough examination of the ceded lands issue in the Draft EIS. That would have occurred whether or not the apology resolution had been passed.
Because Congress has not established special procedures (either in P.L. 103-150 or in other laws) specifically for the land use decisions being contemplated for Bellows AFS, Federal agencies must adhere to generally-applicable laws and regulations governing use, administration and disposal of Federal property. The EIS reflects the Government's compliance with these requirements to date with respect to Bellows AFS.
Your letter also questions the validity of the draft EIS's reference to the case of Liliuokalani v. U. S. in the U. S. Court of Claims because that case did not discuss the lawfulness of the 1893 revolution which resulted in acquisition of the Crown lands by the Provisional Government.
As a preliminary matter, it should be noted that the 1893 revolution was not a revolution against the existing system of private property rights. The Crown and government lands were not seized from private persons; they were simply taken over by the Provisional Government because they were governmental assets. The Queen's suit in the Court of Claims was for the validation of claimed private property rights in the Crown lands as they had existed under the kingdom. The Queen conceded in the litigation that the absence of such a private property right would have "rendered the crown lands subject to the usual transmission of title appurtenant to a change of
sovereignty." The Court of Claims, applying the law of the kingdom, ruled that by virtue of the statute of 1865, the Queen did not have such a private property right to the Crown lands.
On the basis of that conclusion, the court ruled that the Queen had not been wrongfully deprived of any interest in the Crown lands when the government changed hands. The ruling would likely have been the same even if the court had addressed the legality issue; from the court's point of view, the revolution, legal or not, did not deprive Liliuokalani of her private property. It is of significance, however, that the Queen's claim was in her own name. She did not appear before the court in the capacity of a trustee or any other type of representative or fiduciary either for the citizens of the kingdom or for persons of Hawaii>ian ancestry. She was asserting her own personal and independent rights.
For all the foregoing reasons, we must reaffirm the conclusions reached in the draft EIS. Whether we look to the statutes of the kingdom and the decisions of its courts (as was done in the draft EIS) or to the statements and behavior of the monarchs themselves in asserting their claims to sole ownership of the crown lands, we must conclude that neither the king nor the legislature of the kingdom nor the kingdom's judiciary believed that persons of Hawaiian ancestry, as such, had any specific or general rights to the Crown lands. We have found no evidence that such rights arose at any time after the ending of the monarchy, and we must therefore conclude that no such rights exist today.
We recognize that this conclusion may be controversial with those who have come to believe differently, and it may be that our analysis will not lay the issue to rest, but the conclusion we have reached is the only one which the available facts permit. Neither our own research nor the public input received at scoping or during the public comment period points in another direction. We have, however, tried to make plain exactly what we considered and how we reached our conclusions, and we invite continuing dialogue on this topic with anyone who may have additional information or points of view to offer.
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http://aloha4all.org/B-Sang.html
Dear Mr. Sang:
Subj: DRAFT ENVIRONMENTAL IMPACT STATEMENT (DEIS) PROPOSED LAND USE AND DEVELOPMENT PLAN BELLOWS AIR FORCE STATION (AFS)
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:
* * *
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: The existing laws of the U.S. relative to public lands shall not apply to such lands in the Hawaiian Islands; but the Congress of the U.S. 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 U.S., or may be assigned for the use of local government, shall be used solely for the benefit of the inhabitants of the Hawaiian Islands.
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: The King conducts His Government for the common good; for the protection, safety, prosperity and happiness of His people; and not for the profit, honor, or private interest of any one man, family, or class of men among his subjects. Therefore, in making laws for the nation, regard shall be had to the protection, interest and welfare not only of the King, the Chiefs, and rulers, but of all the people alike.
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: The lands granted to the State of Hawaii by subsection (b) of this section and public lands retained by the U.S. under subsections (c) and (d) and later conveyed to the state under subsection (e) . . . shall be held by said state as a public trust (1) for the support of the public schools and of the public educational institutions, (2) for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, (3) for the development of farm and home ownership on as widespread a basis as possible, (4) for the making of improvements, and (5) for the provision of lands for public use. Such lands, proceeds and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said state may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the U.S.
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: [I]t would be error to read the words "public trust" to require that the State adopt any particular method and form of management for the ceded lands. All property held by a state is held upon a "public trust". These words alone do not demand that a state deal with its property in any particular manner even if, as a matter of prudence, the people usually require a close accounting by their officials. These words betoken the state's duty to avoid deviating from section 5(f)'s purposes. They betoken nothing more.
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): The rule is well established that no officer or agent of the government has authority to give away the money or property of the U.S. either directly or by the release of vested contractual rights, without adequate legal consideration.
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: It has uniformly been held in the decisions of the courts and in the opinions of the Comptroller and the Attorney General that Article IV, section 3, clause 2 of the Constitution of the U.S. confers on the Congress exclusive jurisdiction to dispose of real or other property of the U.S. Therefore, without express or reasonably implied statutory authorization, the head of a department or agency of the government is powerless to dispose of the property of the U.S.
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 from 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.
* * *
Sincerely,
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http://aloha4all.org/B-EIS6-6.html
Extract from Final EIS for Land Use and Development Plan, Bellows AFS, December 1995
6.6 TITLE ISSUES
Many who offered testimony or wrote letters in response to the scoping notice questioned the military's title to Bellows AFS. They asserted that persons of Hawaiian descent have claims to the land or may be entitled to have some sort of special control over the disposition of these lands. In response to these concerns, a review of the title to these ceded lands was conducted. The possibility that Hawaiians or native Hawaiians (as those terms are used in existing legislation to denote classes defined by race or ancestry) should have special consideration in decisions concerning ceded lands has been carefully evaluated.
The circumstances by which the lands now known as Bellows AFS came into federal ownership are described in Appendix E to this EIS. This report shows that valid legal title to these lands was vested in the United States either by condemnation, by conveyance, or by set-aside of ceded public lands of the Territory.
The claims advanced during the scoping process focused on ceded lands, i.e., the lands known as Crown or government lands during the period of the monarchy, which were ceded (granted) to the United States when Hawaii was annexed to the United States in 1898. The claims seek "return" of these lands to the "Hawaiian people," to "native Hawaiians" or to "Hawaiians." It is noted that the terms "native Hawaiian" and "Hawaiian" are defined in a number of state and federal statutes solely in terms of race or ancestry; that is, as referring to persons descended from inhabitants of the Hawaiian Islands just prior to the discovery of the islands by Captain Cook in 1778. There is no accepted definition of "the Hawaiian people" in state or federal law, but it is assumed for purposes of the discussion below that the term as used during the scoping process referred generally to persons who are either
"native Hawaiians" or "Hawaiians" as otherwise defined by law.
The basis for the claims advanced during scoping was not explained in detail, so the status of the Crown and government lands under the monarchy was reviewed to determine whether any basis for such claims might exist.
As explained in Appendix E, both the Crown and government lands were set apart from the lands under the exclusive control of the king at the time of the Great Mahele. Under the monarchy, the government lands were dedicated to public purposes. The instrument by which Kamehameha III conveyed the lands that would eventually become known as "government lands" stated, with respect to the lands conveyed, that: These lands are to be in the perpetual keeping of the Legislative Council (Nobles and Representatives) or in that of the superintendents of said lands, appointed by them from time to time, and shall be regulated, leased, or sold, in accordance with the will of said Nobles and Representatives, for the good of the Hawaiian Government, and to promote the dignity of the Hawaiian Crown.
The Crown lands were intended for the support of the king in what might be called his official capacity. Any doubt on this point was resolved in 1865, when legislation was enacted making the Crown lands inalienable and forbidding leases for more than 30 years. The preamble to this legislation, after noting the history of the Crown Lands, stated: “And whereas, the history of the lands shows that they were vested in the King for the purpose of maintaining the Royal State and Dignity; and it is therefore disadvantageous to the public interest, that the lands should be alienated, or the said Royal Domain diminished. And whereas, further, during the two late reigns, the said Royal Domain has been greatly diminished, and is now charged with mortgages to secure considerable sums of money; now therefore, ...”
This was followed by the text of the law. Leasing was placed under the control of a body known as the Commissioners of Crown Lands. Bonds were authorized for the purpose of retiring mortgages against the property, and the proceeds of leases, less a portion to be used for discharging the bonds, were made payable to the king. By this statute, the status of the Crown lands as a public resource for the support of the head of the government, rather than the personal property of the King, was confirmed in the law of
the kingdom.
Thus it clearly appears that during the monarchy, both the Crown lands and the government lands were essentially dedicated to governmental purposes. Government benefits were not apportioned by race; indeed, during the later years of the monarchy, many citizens of the kingdom were not of Hawaiian descent, but the government lands appear to have been administered for the benefit of the citizenry as a whole rather than solely for those of Hawaiian ancestry. There is no indication that during the monarchy, any individual (except the king, his wife, and his successors with respect to Crown lands) or any group or category of persons defined by Hawaiian ancestry alone, had any claim to the Crown or government lands. Indeed, even the right of the monarch to dispose of the Crown lands at his will was rejected not only by the courts and the legislature of the kingdom, but ultimately by Kamehameha V himself when he signed the 1865 legislation making the Crown lands inalienable.
Beyond the historical documents themselves, a review of respected historical works discloses no support for a position that during the existence of the kingdom, Crown or government lands were somehow intended only for the benefit of persons of Hawaiian ancestry, except perhaps for the monarch's claim to the Crown lands. With respect to the personal rights of the monarch, it should be noted that Queen Liliuokalani's claim that she held an interest in the Crown lands as her individual property, and was entitled
to compensation from the United States for its loss, was carefully considered and specifically rejected by the U. S. Claims Court in 1910. In that case, entitled Liliuokalani v. U. S., 45 Ct. Cl. 418 (1910), the Queen argued that she held a vested equitable life estate in the Crown lands. After discussing the history of the establishment of the Crown lands, their treatment under the kingdom, and the 1865 legislation that made Crown lands inalienable, the court stated: “The [1848] reservations [of Crown lands] were made to the Crown and not the King as an individual. The Crown lands were the resourceful methods of income to sustain, in part at least, the dignity of the office to which they were inseparably attached. When the office ceased to exist they became as other lands of the Sovereignty and passed to the defendants as part and parcel of the public domain.”
During both the Republic and the Territorial periods, ceded lands were treated as public property and under the Territory, they were explicitly dedicated to public purposes. With the possible exception of the Hawaiian Homes Commission Act, the governing statutes neither acknowledged nor created property rights in any of these lands based on Hawaiian ancestry.
At statehood, the special status of these lands as dedicated to governmental purposes was confirmed by section 5(f) of the Admission Act, which limited the uses of ceded lands to the following: Support of the public schools and other public educational institutions; Betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended; Development of farm and home ownership on as widespread a basis as possible; Making of public improvements; and Provision of lands for public use.
This statute established no requirement that any specific portion of the ceded lands be used for "native Hawaiians," or that any portion of the ceded lands be so used. It simply included such use among those permitted. No property rights were established in any individual or group simply by virtue of Hawaiian ancestry.
Taken together, the foregoing facts indicate that no individual has a legal claim, based on any right of property or historical practice, to any federally retained ceded lands simply by virtue of Hawaiian ancestry. As against any such claim, the government's chain of title, from a purely legal standpoint, is unimpeachable. Even if such a claim might once have existed, it would appear to be barred by the 12-year statute of limitations in the Federal Quiet Title Act.
No other valid basis was offered during the scoping process for the claim that some or all Hawaiians, racially defined, should have special status in determining the disposition of ceded lands, and no such basis has been independently identified. Of course, persons of Hawaiian ancestry, like all members of the community who are or may be affected by the decisions concerning Bellows AFS, have a variety of rights under Federal law to participate in the process leading up to those decisions.
Some questions were raised concerning the applicability to the ceded lands issue of the "apology resolution" enacted as Public Law 103-150 on November 23, 1993. this resolution apologized to "Native Hawaiians" for the U.S. role in the 1893 overthrow of the monarchy. A careful review of this resolution indicates that it is not applicable to the disposition of ceded lands at Bellows AFS. The resolution neither modifies existing rights of the United States to any of the ceded lands nor creates rights in any other person or entity. To the contrary, it contains the following express disclaimer: "Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the government," and the Senate Report on the bill (S. Rep. 103-126) states that "enactment of S.J. Res. 19 will not result in any changes in existing law." More importantly, although the resolution terms the revolt against the monarchy "illegal", it makes no similar finding on the annexation of Hawai'i by the United States or the cession of land that accompanied that annexation. All revolutions are illegal under the law of the government revolted against, but if a revolution is successful, a new de facto government comes into existence that often becomes the legitimate
government of the country, entitled to international recognition and the prerogatives of a lawful sovereign. This took place with the Provisional Government and the Republic that followed it, which was the sole and effective government of Hawai'i during the years 1893 to 1898 and was recognized as such not only by the United States but also by the major world powers. The apology resolution does not state or imply that the acts of this government in ceding the former Crown and government lands to the United states were improper or illegal.
For all of these reasons, the only legal and legitimate course for the DOD in making decisions concerning ceded lands is to treat these lands just like any other lands owned in fee simple by the government, and to afford all
persons, including Hawaiians and native Hawaiians, who may wish to be involved in those decisions the full range of rights provided by law, without discrimination.
Resolving claims that the ceded lands were wrongfully obtained by the United States, and that they should be returned (or compensation provided) to a class defined by race or ancestry, is beyond the scope of this EIS and the discretion committed in this action to the DOD. However, a careful review of historical records and an analysis of recent U.S. Supreme Court cases concerning racial preferences indicate that proponents of such claims may
encounter difficulty in establishing either a sound factual basis for legal relief or a sound constitutional basis for such a remedy.
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Testimony for Makua EIS Scoping hearings
Kenneth R. Conklin, Ph.D.
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From: "Sparky Rodrigues"
Sent: Thursday, April 11, 2002 2:28 PM
Subject: 'Olelo Hawai'i, 4-13 Saturday EIS mtg
http://aloha4all.org
Submitted APRIL 8, 2002
On behalf of myself and Aloha For All
e-mail Ken_Conklin@yahoo.com