This webpage is a subpage for item #4 in a larger webpage entitled
"Office of Hawaiian Affairs -- Watching the Moves It Makes to Expand the Evil Empire (acquiring huge parcels of land, building a headquarters for its tribal nation, considering purchase of a TV station, etc.). YEAR 2008"
That larger webpage covering all topics for 2008 is at
https://www.angelfire.com/planet/big60/EvilEmpire2008.html
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(4) Hawaii State Supreme Court rules that the State of Hawaii cannot sell ceded lands until the question has been resolved whether or to what extent ethnic Hawaiians and/or OHA own the lands or are entitled to compensation for selling or using them. News media gleefully proclaim the importance of passing Akaka bill so there will be a recognized Native Hawaiian entity to negotiate with. Hawaiian secessionists say neither the State of Hawaii nor OHA have any right to "settle" anything about Hawaii, because all Hawaii (not merely the ceded lands) belongs to descendants of Hawaiian Kingdom subjects (the vast majority of whom are ethnic Hawaiians).
However, another way to resolve the ceded lands claims of ethnic Hawaiians is for the Legislature to rescind the law passed following the state Constitutional Convention of 1978 to provide funding for the newly created OHA by sending OHA 20% of ceded land revenues; and also to amend the state Constitution itself to clarify that all the ceded lands belong to all the people of Hawaii without racial distinction. If the U.S. says in its apology resolution that the U.S. owes something to ethnic Hawaiians, then it should be up to the U.S. to make good on those claims and not to stick the burden onto the backs of the people of Hawaii.
The Hawaii Supreme Court decision can be downloaded as a 93-page pdf file, directly from the Supreme Court website, by clicking here:
http://www.state.hi.us/jud/opinions/sct/2008/25570.pdf
The same decision is also available directly from the Supreme Court website in html format, which is easier to copy/paste. Click here:
http://www.state.hi.us/jud/opinions/sct/2008/25570.htm
Following are news reports and commentaries about the state Supreme Court ruling and its implications for the future.
http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080201/NEWS01/802010374/1001/NEWS01
Honolulu Advertiser, Friday, February 1, 2008
Hawaii court bars state from selling ceded land
By Dan Nakaso
The state cannot sell or transfer the 1.8 million acres of former Hawaiian monarchy lands, known as ceded lands, until the claims of Native Hawaiians to the property have been resolved, the Hawai'i Supreme Court ruled yesterday.
The Supreme Court ruling was a victory for the Office of Hawaiian Affairs.
Sherry Broder, one of the attorneys who argued the case on behalf of OHA, called the ruling "a tremendous victory for the Hawaiian people. I'm very excited about it."
The decision was a defeat for the state, which argued it had the right to sell ceded lands.
"We're disappointed with the decision," state Attorney General Mark Bennett said last night. "It is our belief that the state is and should be able legally to sell ceded lands. ... We think it's legal."
In the case of OHA vs. the Housing and Community Development Corporation of Hawai'i and the state of Hawai'i, the Supreme Court reversed an earlier Circuit Court judgment in favor of HCDCA and the state and ordered the lower court to bar the sale or transfer of ceded lands.
The court's decision cited 1.8 million acres of historical ceded lands. Broder said the amount was 1.4 million acres.
The case began in the mid-1990s when the state transferred parcels of ceded lands to private entrepreneurs on Maui and the Big Island for residential development. In 1995, OHA sought an injunction for the Maui and Big Island parcels, as well as any other ceded lands from the public lands trust.
The Supreme Court's decision yesterday cited generations of critical moments in Hawaiian history, dating to the 1893 overthrow of the Kingdom of Hawai'i and the surrender of crown, government and public lands to the United States; the admission of Hawai'i as a state; the creation of OHA and the public lands trust; and Congress' 1993 Apology Resolution 100 years after the overthrow.
"In our view," the justices held, "the Apology Resolution acknowledges only that unrelinquished claims (by Native Hawaiians) exist and plainly contemplates future reconciliation with the United States and the state with regard to those claims."
The court held that the Apology Resolution and related state legislation "give rise to the state's fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved."
Bennett, the attorney general, and his staff were reviewing the 93-page decision last night and he said it was premature to comment on whether the state may appeal.
RENEWED FOCUS ON BILL
Various entities have been awaiting the court's ruling, Bennett said, but he was not immediately aware of any potential third party land transactions that might be affected.
"We'll have to take a better look at the facts to see what the immediate impact will be," Bennett said.
Bennett said, "We respectfully disagree with the Hawai'i Supreme Court that the Apology Resolution is any way relevant to the question of whether the state has a legal right to sell ... ceded lands. We believe and argued that the law clearly allowed the state to sell ceded lands. That was the contemplation of Congress when it passed the Admissions Act."
The Supreme Court's order for an injunction to bar the sale of the land until claims are resolved places new focus on the stalled Akaka bill in Congress, which could create a third party to resolve claims on the ceded lands, Broder said.
"The next step is having the creation of a Native Hawaiian entity to negotiate with the federal and state governments for the unrelinquished claims for the Hawaiian people," Broder said. "The court is keeping the corpus of the ceded lands intact until any claims can be resolved."
A STOPGAP MEASURE
In its ruling yesterday, the Supreme Court noted that OHA specifically asserted that it is not asking to resolve any claims to ceded lands "but only to protect the trust assets that are in dispute by issuing an injunction barring the sale or transfer of the (ceded) lands."
The court found that OHA merely wanted the court to protect the lands "until the political branches can reach a just solution to this dispute. In fact, the OHA plaintiffs admit that 'the ultimate resolution of the Native Hawaiian claims must be through the political processes, and it is actively engaged in these processes. But this struggle for justice will be futile if the assets in disputes (i.e., the ceded lands) no longer exist when a solution is found.' "
OHA issued a statement last night saying it "is pleased with the favorable opinion by the Hawai'i State Supreme Court in a case with important implications."
OHA attorneys scheduled a press conference for 1:30 p.m. today.
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http://starbulletin.com/2008/02/01/news/story03.html
Honolulu Star-Bulletin, February 1, 2008
High court restricts sale of ceded lands
By Nelson Daranciang
The Hawaii Supreme Court ruled yesterday that the state, as trustee of lands formerly belonging to the Hawaiian monarchy, cannot sell or transfer those ceded lands to third parties until claims of native Hawaiians to those lands are resolved.
Yesterday's 5-0 ruling overturns previous lower court judgments and orders the state Circuit Court to issue an injunction to prevent the state from disposing of ceded lands to third parties.
"That's great news. That's really great news," said Jonathan Osorio, a native Hawaiian trust beneficiary and one of the plaintiffs in the case. "It really reinforces what we were saying all along."
The Office of Hawaiian Affairs and its board of trustees are also plaintiffs in the case.
"This is a landmark decision on behalf of Hawaiians," said Haunani Apoliona, OHA board chairwoman.
State Attorney General Mark Bennett is critical of the ruling.
"I believe the court's determination is wrong," he said. "We are still looking at it and reviewing it. It is disappointing, and on the law, I think, it is incorrect."
The ruling has no effect on the proposed settlement OHA and Gov. Linda Lingle announced earlier this month because the proposal would involve past and current ceded-lands revenue that is in dispute, Apoliona said. Yesterday's ruling, however, keeps intact whatever lands were taken following the 1893 overthrow of the Hawaiian monarchy for native Hawaiians to seek their return or compensation.
"This suggests an urgency for the creation of a native Hawaiian government so it can negotiate with the state and federal governments," Apoliona said.
The case started in 1995 when the plaintiffs filed an injunction to stop the state from transferring ceded lands on Maui and the Big Island from the Department of Land and Natural Resources to the predecessor of the state Housing and Community Development Corporation of Hawaii to develop low-cost housing.
Two years earlier, Congress adopted the Apology Resolution that stated the overthrow of the kingdom of Hawaii was illegal, that the taking of the kingdom lands was without consent or compensation and that the indigenous Hawaiian people never directly relinquished their claims over their national lands to the U.S.
The injunction specifically sought to prevent the transfer of a 500-acre parcel on Maui identified as Leialii.
By the time OHA and the other plaintiffs filed their lawsuit, DLNR had already transferred the land, and the state housing agency had sent OHA a check for 20 percent of the fair market value of the land as its share according to state law.
The state housing agency decided to stop work on the project, but it had already invested $31 million in Leialii for roadways, utilities, lighting poles, sewer hookups and some landscaping.
During the years, the plaintiffs agreed to remove some of the Leialii lands from the dispute so the state could transfer them to the state Department of Hawaiian Home Lands to provide housing for native Hawaiians, Apoliona said.
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http://www.khon2.com/news/government/15128191.html
KHON TV, February 1, 2008
High Court Rules State Cannot Sell Ceded Lands
By Andrew Pereira
The Office of Hawaiian Affairs is hailing a decision by the Hawaii Supreme Court Thursday that prevents the state from selling 1.4 million acres of ceded lands; land that was once controlled by the Hawaiian Kingdom.
The ruling comes more than ten years after the state attempted to sell 1,500 acres of ceded lands on Maui and the Big Island to housing developers. Four native Hawaiians together with the Office of Hawaiian Affairs filed suit in August of 1995 to stop the sale of the lands, but in 2001 a circuit court judge ruled against them.
In its 93 page decision to overturn the lower court's ruling the Hawaii Supreme Court ordered that the initial judgment be vacated and granted the plaintiff's request for an injunction to prevent the state from selling any ceded lands.
"The injunction is a permanent injunction and there's no time limit on it," said OHA attorney Sherry Broder, who argued the case before the state's highest court.
In it's decision justices relied heavily on a 1993 resolution passed by Congress and signed by then President Bill Clinton. The resolution apologized for the overthrow of the Hawaiian Kingdom in 1893, calling it "illegal."
"Essentially the Hawaii Supreme Court has recognized what the apology resolution was setting forth, which is that Hawaiians have unrelinquished claims to the ceded lands," said Broder.
Bill Meheula, the attorney who represented the four native Hawaiians in the lawsuit, cautioned the ruling does not mean ceded lands will be handed over to native Hawaiians.
"This decision does not determine who has a good claim to the ceded lands," said Meheula. "Although we are delighted with this decision it's not going to change the way the state operates its business at all."
Despite the high court ruling the state is still allowed to transfer ceded lands between different government agencies. "Even when lands are transferred to the Department of Hawaiian Homelands the title remains with the state of Hawaii because the Department of Hawaiian Homelands is another state agency," said Broder
Broder said resolving ceded land claims will require native Hawaiians to eventually choose an official government body that represents them as a sovereign people. "In order to have government to government negotiations there would have to be some kind of an entity that the federal government recognized," she said.
OHA Chairperson Haunani Apoliona agreed that in light of the ruling the importance of passing the Native Hawaiian Government Reorganization Act, more commonly known as the Akaka Bill, takes on new importance. "It's about organizing ourselves and bringing together a credible process and ultimately a native entity that will help to resolve these issues."
While there are many disagreements among native Hawaiians about the Akaka Bill and whether it's the best route to self-governance, one of the four plaintiffs who filed suit to stop the sale of ceded lands believes there will eventually be agreement among the native Hawaiian community.
"(Disagreements) we can resolve," said Charles Ka'ai'ai. "We just need to sit down and talk to each other."
Apoliona believes the route to self-governance, either through the Akaka Bill or something else, will be a long and difficult road. However once ceded land claims are resolved she believes the result will be a benefit to everyone in the state.
"I think Hawaii in the end will be a much better place," she said.
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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080202/NEWS23/802020364/1173/NEWS23
Honolulu Advertiser, Saturday, February 2, 2008
Ruling on land offers hope for resolution
By Treena Shapiro
Advertiser Government Writer
Although the Hawai'i Supreme Court has recognized that Native Hawaiians have a claim to former Hawaiian monarchy lands, the real effect of Thursday's ruling won't be felt until a credible Native Hawaiian government is formed, the plaintiffs' attorneys said yesterday.
The ruling bars the state from selling 1.4 million acres of ceded lands — former Hawaiian monarchy lands — until the issue of property rights has been settled by Hawaiians, the state and the federal government, who all have claims, according to the court's decision in the case known as Office of Hawaiian Affairs vs. the Housing and Community Development Corporation of Hawai'i.
While the ruling is a defeat for the state on paper, there are no pending land deals that would be affected, said William Meheula, an attorney for four of the plaintiffs who sued the state for trying to sell parcels on Maui and the Big Island in the 1980s for residential development.
"I think it's going to be business as usual, the status quo," Meheula said.
The ruling prevents the state from selling ceded land to a third party, but the state may still transfer it between departments as long as it retains ownership.
The lawsuit blocked the sale of 500 acres in Lahaina and 1,000 acres in Kona to private residential developers for public housing projects. The state was still able to address some of the housing issues it had been seeking to address by turning the land over to the Department of Hawaiian Home Lands.
One of the plaintiffs in the case, Charles Ka'ai'ai, said there was no doubt in his mind that the state should not be selling the land once owned by Native Hawaiians. "It's the trust lands," he said. "It's the inheritance."
The lawsuit is not related to a $200 million ceded lands settlement between the state and OHA pending before the Legislature to address the issue of revenue generated from the ceded lands.
Still, Office of Hawaiian Affairs Chairwoman Haunani Apoliona said she hopes Thursday's ruling will make lawmakers realize that the Supreme Court does recognize that Hawaiians have a claim to ceded land. The ruling could compel lawmakers to bring the issue "to a timely resolution so OHA can help its beneficiaries right now," Apoliona said.
As for the ceded lands issue addressed by the Supreme Court, an ultimate resolution will not come until Hawaiians form a government that can represent them in negotiations with the state and federal government, OHA said.
Until then, the state just has to hold on to the land to make sure it still exists if it is ever determined that the Native Hawaiians have a right to it, OHA said. In other states, Native Americans have been legally recognized only to discover that the land they might have had a right to had already been sold.
The state generally has about 90 days to decide whether to appeal a Supreme Court decision, and sometimes even longer.
In this particular case, Attorney General Mark Bennett said his office is still looking at the decision and has not yet decided whether to appeal. "All we're doing right now is trying to digest the opinion," Bennett said.
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http://starbulletin.com/2008/02/02/editorial/editorial01.html
Honolulu Star-Bulletin, February 2, 2008
EDITORIAL
High court decision adds urgency to Akaka Bill enactment
THE ISSUE
The state Supreme Court has ruled that the Office of Hawaiian Affairs can't be forced to sell ceded lands while political questions remain.
A state Supreme Court ruling this week blocks the forced sale or transfer of lands once owned by the Hawaiian monarchy "pending final resolution of native Hawaiian claims through the political process." The decision adds urgency to enactment of the Hawaiian sovereignty bill proposed by Sen. Daniel Akaka.
The overturning of a 2002 decision of Circuit Judge Sabrina McKenna leaves in limbo the status of 1.4 million acres of land ceded to the United States following the 1893 overthrow of the kingdom and transferred to the state upon admission. A 1993 congressional resolution apologizing for the overthrow states that native Hawaiians never "directly relinquished their claims" to the ceded lands.
Unlike Senate, House or concurrent resolutions expressing opinions by a single or both chambers of Congress, a joint resolution such as the Apology Resolution carries the force of law upon being signed by the president, in this case by then-President Clinton. Thus, Chief Justice Ronald Moon wrote in the high court's unanimous opinion, the Apology Resolution is "a public law" that must be obeyed.
The resolution "dictates that the ceded lands should be preserved pending a reconciliation between the United States and the native Hawaiian people," Moon wrote. In the meantime, he added, the "unrelinquished claims of native Hawaiians" warrant the land's protection from transfers.
The issue arose after the Legislature agreed in 1992 to compensate the Office of Hawaiian Affairs for parcels of ceded land on Maui and the Big Island to be developed as low-cost housing. OHA agreed to the transfer until the Apology Resolution was enacted in November 1993. The state wrote a $5.8 million check to OHA for compensation, but OHA rejected it and filed suit.
McKenna refused to block the transfer of land for development, ruling that OHA's claims amounted to a political rather than a legal issue to be decided in court. The Supreme Court essentially agreed that the issue is political but ruled that the Apology Resolution "dictates that the ceded lands be preserved" until the political questions are resolved.
The high court cited a 2000 recommendation by the Clinton administration's Justice and Interior departments "that native Hawaiian people should have self-determination over their own affairs within the framework of federal law, as do Native American tribes."
The Akaka bill, which would grant Hawaiians such self-determination, has been approved by the House and awaits Senate action but appears not to be veto-proof in either chamber. President Bush and Sen. John McCain, the Republican presidential frontrunner, oppose the Akaka Bill, while Democratic hopefuls Sens. Barack Obama and Hillary Clinton support it.
The court also cited measures approved by the state Legislature contemplating reconciliation and "monetary reparations" made to Hawaiians for land acquisitions. It also referred to Gov. Linda Lingle's 2003 State of the State pledge to work "with the Hawaiian community to resolve the ceded lands issue once and for all."
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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080203/OPINION01/802030332/1105/OPINION01
Honolulu Advertiser, Sunday, February 3, 2008
EDITORIAL
Hawaii can't avoid duty to resolve Native Hawaiian claims
Reconciliation is always a painful process, but rarely do entire states encounter one sure to be as uncomfortable and prolonged as the settlement of Native Hawaiian claims.
But it seems the best course is to press ahead to achieve that settlement, difficult as that may be. If there's any easy detour around that legal burden, the Hawai'i Supreme Court certainly can't recommend one.
That much seems clear from the high court's recent ruling on a 1994 dispute around lands that once belonged to the Hawaiian kingdom later ceded to the U.S. and the state of Hawai'i. In their decision, the justices found that the state is barred from selling or transferring any of the so-called "ceded lands" until the final settlement of all outstanding Native Hawaiian claims on these lands, which total 1.8 million acres.
The case arose because the state was poised to sell private developers about 500 acres for the Leiali'i and La'iopua projects on Maui and the Big Island, respectively. Four individual plaintiffs of Native Hawaiian descent, joined by the Office of Hawaiian Affairs, filed suit.
The lower court upheld the state's right to sell the land but on appeal, the high court cited the 1993 Apology Resolution and other state legislation underscoring the state's role as trustee for the ceded lands. Among the beneficiaries of that trust are Native Hawaiians and, according to the ruling, the state should not sell or transfer any of the trust lands until negotiations finally settle how much of that land should belong to Native Hawaiians.
The trouble is, there can be no negotiations until a Native Hawaiian government is organized and recognized by the federal government. And that can't happen until the Akaka bill is passed by Congress and signed into law.
Attorneys for the plaintiffs point out that the state never attempted any land deals before or since the Maui and Big Island instances, so the ruling doesn't complicate any ongoing land development projects or deals with the state.
Regardless, the state can't function indefinitely with such a large bank of land it has no power to control. A situation in which the state holds title but lacks the freedom to sell land will become intolerable before long. The state has needs for housing, agriculture and other uses; land swaps, transfers and sales are ways of consolidating tracts so it can be used effectively.
OHA and others who support federal recognition feel encouraged by the possibility of a change in leadership in Washington to a Democratic administration that would back the Akaka bill. However, the reality is that even if the bill passes, there are sure to be legal challenges, further delaying the negotiation and settlement process.
And that means advocates within state government must push the Hawai'i congressional delegation to deliver more support on Capitol Hill. Hawai'i has two of the most senior members in the Senate; Sen. Daniel Inouye, in particular, needs to apply more of that political muscle to this mission.
Closing the book on Hawai'i's turbulent past is essential before the state can tap its resources and focus its attention fully on a future that supports all its people.
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http://starbulletin.com/2008/02/03/editorial/commentary2.html
Honolulu Star-Bulletin, February 3, 2008
Gathering Place [COMMENTARY]
Say no to the transfer of lands of the Hawaiian Nation
by Kekuni Blaisdell
The Hawaii state government's proposed allocation of lands belonging to the Hawaiian Nation must be rejected. The state of Hawaii, as part of the U.S. federal system, has no authority to allocate any land of the sovereign Hawaiian Nation to any party other than the rightful owners.
U.S. Public Law 103-150 (Apology Resolution) of 1993 clarified that the kanaka maoli (native Hawaiians) never relinquished their claims over their national lands to the United States. Even though the Hawaiian Nation was invaded by the United States in 1893 and its government was removed, the Hawaiian Nation, under international law, continues to exist. Only the kanaka maoli and fellow loyal non-kanaka citizens, as continuing members of the Hawaiian Nation, have legal authority to decide on the lands of the Hawaiian Nation. Until the U.S. government ends its illegal occupation of Hawaii, it is obliged to keep intact all the lands it occupies.
The state Office of Hawaiian Affairs cannot be viewed as a legal representative of the Hawaiian Nation, since it was created in 1980 by the illegal state government and the federal government. Thus, members of OHA have allegiance to those two governments, not to the Hawaiian Nation. OHA was created by the U.S. occupier as custodian of certain funds derived from Hawaiian national lands that the occupier allocates, allegedly, for the benefit of the occupied. But OHA cannot be considered a trustee of the lands of the Hawaiian Nation unless OHA were specified by the U.S. federal system to serve as custodian of all occupied lands until the lands are restored to the Hawaiian Nation.
The attempt, since 2000, by Congress to create a Hawaiian nation within the federal system (the Akaka Bill) stands in contradiction to the findings of U.S. PL 103-150 that acknowledges that the United States invaded the Hawaiian Nation in violation of treaties and international law. That public law also acknowledges that the United States, in 1893, suppressed the inherent sovereignty of the kanaka maoli people and deprived them of their right to self-determination. Such findings and admissions indicate that this public law's call for reconciliation on the part of the United States must be addressed through international law, not through U.S. domestic law.
OHA and the state's proposed land and money awards to OHA bring to center stage the reality that the United States remains an occupier and that as such, it is trustee of the Hawaiian national lands until the Hawaiian Nation government is reconstituted and recognized. Attempting to pursue reconciliation through U.S. domestic law maintains the deception that U.S. PL 103-150 uncovers.
If the state government sincerely desires to address the issue of the lands, it must do so through international law, particularly the Law of Occupation, Law of Restitution and Law of Self-Determination. Under the International Law of Occupation, the United States must end its occupation, assist in the restoration of the Hawaiian national government and return all occupied national lands to that government.
Under the International Law of Restitution, the United States must restore the original situation. In the case of the Hawaiian Nation, there are two "original" situations. The first is the original independent Hawaiian Nation that existed in 1893 before the U.S. invaded Hawaii and assured the overthrow of the government of Queen Lili'uokalani.
The second situation existed between 1946 and 1959, when the lands of Hawaii were placed under United Nations supervision as a non-self-governing territory, with the United States designated as the administrative authority. As such, the United States was tasked to prepare the people of the U.S.-occupied Territory of Hawaii, who had not been allowed to exercise their right to self-determination. In 1959, these colonized people were the kanaka maoli and other non-kanaka Hawaiian nationals and their descendants who had not sought U.S. citizenship. Thus, the 1959 fraudulent statehood referendum was not U.N.-supervised and the ballot did not include independence as the primary option for attaining self-determination.
Further, U.S. citizens, who already had exercised their right to self-determination by accepting U.S. citizenship, including U.S. military personnel and other non-Hawaiian nationals, were allowed to vote. The United States then wrongly reported to the United Nations, but not to the people of Hawaii, that a legitimate exercise of self-determination had been conducted. Thereupon, the United Nations duly removed Hawaii from its list of non-self-governing territories because no one in uninformed Hawaii or in the uninformed U.N. General Assembly publicly objected to the invalid voting procedure.
Given the fraudulent 1959 statehood vote, Hawaii, under the U.N. Law of Self-Determination, should remain a U.N. non-self-governing territory until a legitimate exercise of self-determination is conducted.
Kekuni Blaisdell is a member of the Kanaka Maoli Tribunal Komike, a pro-independence Hawaiian sovereignty group.
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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080205/OPINION02/802050305/1108
Honolulu Advertiser, February 5, 2008
Letter to editor
[Hawaii State] SUPREME COURT RULING
Sunday's editorial about the Supreme Court's decision to bar the sale of the ceded lands - the crown and government lands of the Hawaiian kingdom - pointed only to the process of reconciliation and the difficulties of negotiating that reconciliation with the United States and the state of Hawai'i.
From this the writer leaps to the conclusion that only the passage of the Akaka bill can provide a native agency that can negotiate a claim with the state and lead to a settlement that will close "the book on Hawai'i's turbulent past."
I can understand why Hawai'i residents would want this resolved as expeditiously as possible, but as one of the original plaintiffs in this case, I think there are other concerns about the state's control of these lands that are just as important, especially since Hawaiians are not responsible for the theft of their lands nor of the continued denial either of the right to self-determination or the restoration of their national government.
Theft is the most accurate description of the taking of the crown and government lands by the republic in 1894 and the cession of those lands to the United States. The United States did not conquer Hawai'i, but it prevented the kingdom from extinguishing the insurrection in 1893, disregarded its own constitution by assuming an annexation even when it could not secure enough votes for a legal annexation and took possession of lands that the kingdom's legislatures and chiefs had reserved for its monarchs and national well-being before 1850.
Neither the state nor the United States has legal title or moral claim to the ceded lands.
I, too, would like to see a reconciliation, but our people did not create this pilikia and we should not be admonished to hurry through the "settlement" just because it is inconvenient to the state.
Jonathan K. Osorio
Professor and director, Kamakakuokalani Center for Hawaiian Studies, University of Hawai'i-Manoa
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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080206/COLUMNISTS20/802060402/1156/COLUMNISTS20
Honolulu Advertiser, Wednesday, February 6, 2008
Apology bill has the force of law
By Jerry Burris
Advertiser Columnist
In 1993, when Congress (or rather, about five members of an otherwise fairly uninterested U.S. Senate) debated the so-called "Apology bill" for Native Hawaiians, Sen. Daniel Inouye argued it was merely a "simple apology" designed to set the nation's historical facts in order.
What Inouye was focused on were arguments that the Apology bill was the first step toward independence for Hawai'i. Nothing, he said, could be further from the truth.
That may be so. But it is now abundantly clear the Apology bill is far more than a mere token of remorse. It is, according to the state Supreme Court in its Jan. 31 opinion on a lawsuit involving ceded lands, the very law of the land.
Put it this way: The Apology resolution is the controlling law when it comes to ongoing questions about whether the overthrow of the monarchy was illegal, whether Hawaiians are due restitution for that overthrow and whether ceded lands (property that went from the Hawaiian government and crown to the U.S. and then to the state of Hawai'i) should be held in impregnable trust until that restitution debate is settled.
To each point, the legal answer, as declared by our highest court, is "yes."
Now, it is important to note that the court did not attempt to get involved in what restitution should look like. That's a political question.
Hawaiian claims arising out of the overthrow might be settled with a dollar and a hug. But don't count on it. The real game here is land, or constructive use of it.
Opponents of this process argue it is unconstitutional to transfer assets from public control to one specific group on the basis of race. The state Supreme Court didn't get into that. It simply said that, as recognized by federal law (the apology resolution has the force of law, it says), there was once a Hawaiian kingdom that controlled these lands, the kingdom was done away with illegally, and now, something must be done about the matter.
Just what that "something" is is up to the politicians to decide. Gov. Linda Lingle and the state Office of Hawaiian Affairs offer a clue with their proposed settlement of back claims for ceded lands revenues that involves both cash and ceded lands being given to OHA.
At first blush, it seems odd that OHA would argue forcefully against any alienation of ceded lands while at the same time happily taking some out of the trust for its own use. The answer given is that the guiding principle is: No alienation of ceded lands unless they go to us. If it benefits Hawaiians, no harm done.
As the political process moves forward, politicians can no longer claim there is no legal foundation for them to act.
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http://www.hawaiireporter.com/story.aspx?81442161-8317-48a9-abe5-213d1dda257b
Hawaii Reporter, February 6, 2008
Apology Bill, Which Was Passed Under False Pretenses, Now Threatens to Divide Hawaii
By John Corboy
It is a matter of record that supporters of the 1993 "Apology Resolution," insisted that it would never be used as a political document. The ink was barely dry on President Bill Clinton's signature when they disseminated the document far and wide as proof of federal responsibility for the overthrow of the Hawaiian monarchy.
Anyone knowing the history realizes that this is poppycock, yet comes now Chief Justice Moon requiring obedience to this "public law." No joint resolution can convert fiction to fact. Nonsense is still nonsense. What a shame.
The last thing we Hawaiians need is a separate based-raced government in these islands. At the very least, a plebiscite of all Hawaiians, native and non-native, must be conducted before any further efforts are made to divide our neighborhoods by bloodlines.
Just as a reminder, here is a letter - "U.S. Senators Betrayed by Sponsors of Akaka Bill" - written by U.S. Senators Slade Gorton and Hank Brown in 2005 that says they were promised by U.S. Sen. Daniel Inouye that the Apology Resolution would not be used for political purposes and that they feel betrayed because it now is:
The U.S. Senate is poised to sanction the creation of a racially exclusive government by and for Native Hawaiians who satisfy a blood test. The new race-based sovereign that would be summoned into being by the so-called Akaka Bill would operate outside the U.S. Constitution and the nation's most cherished civil rights statutes. Indeed, the champions of the proposed legislation boast that the new Native Hawaiian entity could secede from the Union like the Confederacy, but without the necessity of shelling Fort Sumter.
The Akaka Bill classifies citizens by race, defying the express provisions of the 14th Amendment. It also rests on a betrayal of express commitments made by its sponsors a decade ago, and asserts as true many false statements about the history of Hawaii. It should be defeated.
The Akaka Bill's justification rests substantially on a 1993 Apology Resolution passed by Congress and signed by President Clinton when we were members of the Senate representing the states of Washington and Colorado. (We voted against it.) The Resolution is cited by the Akaka Bill in three places to establish the proposition that the U.S. perpetrated legal or moral wrongs against Native Hawaiians that justify the race-based government the legislation would erect. These citations are a betrayal of the word given to us -- and to the Senate -- in the debate over the Apology Resolution.
We specifically inquired of its proponents whether the Apology would be employed to seek "special status under which persons of Native Hawaiian descent will be given rights or privileges or reparations or land or money communally that are unavailable to other citizens of Hawaii." We were promised on the floor of the Senate by Daniel Inouye, the senior senator from Hawaii and a personage of impeccable integrity, that, "As to the matter of the status of Native Hawaiians ... [t]his resolution has nothing to do with that. ... I can assure my colleague of that." The Akaka Bill repudiates that promise of Sen. Inouye. It invokes the Apology Resolution to justify granting persons of Native Hawaiian descent -- even in minuscule proportion -- political and economic rights and land denied to other citizens of Hawaii. We were unambiguously told that would not be done.
The Apology Resolution distorted historical truths. It falsely claimed that the U.S. participated in the wrongful overthrow of Queen Liliuokalani in 1893. The U.S. remained strictly neutral. It provided neither arms, nor economic assistance, nor diplomatic support to a band of Hawaiian insurgents, who prevailed without firing a single shot, largely because neither the Native Hawaiian numerical majority nor the Queen's own government resisted the end of the Hawaiian Kingdom. The Queen authored her own ouster by planning a coup against the Hawaii Constitution to recapture monarchical powers that had been lost in a strong democratic current. She later confided to Sen. George Hoar that annexation to the U.S. was the best thing that could have happened to Native Hawaiians.
The Resolution falsely asserted that the Kingdom of Hawaii featured a Native Hawaiian government exclusively for Native Hawaiians prior to the 1893 events. In fact, the Kingdom was a splendid fusion of both native and non-native elements in both government and society. The definitive historian of the Kingdom, R.S. Kuykendall, elaborated: "The policy being followed looked to the creation of an Hawaiian state by the fusion of native and foreign ideas and the union of native and foreign personnel, bringing into being an Hawaiian body politic in which all elements, both Polynesian and haole, should work together for the common good under the mild and enlightened rule of an Hawaiian king."
The Apology falsely declared that Native Hawaiians enjoyed inherent sovereignty over Hawaii to the exclusion of non-Native Hawaiians. To the extent sovereignty existed outside the monarch, it reposed equally with all Hawaiians irrespective of ancestry. The Apology falsely maintained that Native Hawaiians never by plebiscite relinquished sovereignty to the U.S. In 1959, Native Hawaiians voted by at least a 2-1 margin for statehood in a plebiscite. Finally, the Apology Resolution and its misbegotten offspring, the Akaka Bill, betray this nation's sacred motto: E Pluribus Unum. They would begin a process of splintering sovereignties in the U.S. for every racial, ethnic, or religious group traumatized by an identity crisis. Movement is already afoot among a few Hispanic Americans to carve out race-based sovereignty from eight western states because the U.S. "wrongfully" defeated Mexico in the Mexican-American war.
The U.S. Constitution scrupulously protects the liberties and freedom of Native Hawaiians. It always has. It always will. Native Hawaiians have never been treated as less than equal by the U.S. Their economic success matches that of non-Native Hawaiians. Intermarriage is the norm. Sen. Inouye himself boasted in 1994 that Hawaii was "one of the greatest examples of a multiethnic society living in relative peace." In other words, E Pluribus Unum is a formula that works. We should not destroy it.
John Corboy MD is a Grassroot Institute of Hawaii Board of Directors Member, an ophthalmic surgeon, the former director of Hawaiian Eye Center, and the president of Hawaiian Eye Foundation, which conducts charitable Pacific medical missions.
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http://starbulletin.com/2008/02/07/editorial/letters.html
Honolulu Star-Bulletin, February 7, 2008
Letter to editor
There are options besides Akaka Bill
In your Feb. 2 editorial the headline talks about the "urgency" of the Akaka Bill now that the U.S. Supreme Court has acknowledged the law (Public Law 103-150, the Apology Bill) and what many Hawaiians have been saying for more than a decade. Unfortunately and incorrectly your newspaper assumes to the public that the Akaka Bill is the only option available. Besides the nation-within-a-nation model (Akaka Bill), there are the options of restoration of the kingdom, compact of free association, independence in any form the people may choose, or remain a state.
The state-created Office of Hawaiian Affairs has been spending millions of dollars pushing the Akaka model for years without offering Hawaiians or the public any education on the other options. A free, fair and open process must begin where Hawaiians have an honest chance to understand all their choices. This is fair because Hawaii was taken illegally, breaking treaties between the United States and the Hawaiian kingdom, international laws and conventions, and even U.S. constitutional law, which states in Article 6 that treaties are the "supreme" law of the land.
Steven Tayama
Waimanalo
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http://www.hawaiireporter.com/story.aspx?51ac5d7b-d989-4281-868f-7ca7f0ce0f6b
Hawaii Reporter, February 7, 2008
Recent Supreme Court Ruling On Royal Ceded Lands Backs Up the Claim that the Hawaiian Kingdom Still Exists
By Leon Siu
At last! The Hawaii Supreme Court issued a decision that the state cannot sell portions of the so-called "ceded lands" because it is unclear whether the State actually owns those lands.
The court cites U.S. PL 103-150 (the Apology Law) as the basis for their decision. This 1993 Apology Law is essentially an admission by the U.S. that it knowingly received stolen goods when it was "ceded" ("fenced") the Hawaiian Kingdom lands by the rebel Republic of Hawaii government in 1898. The U.S. Virtually admitted to stealing the Hawaiian Islands. The thief confessed to the theft!
Although it has taken this long to sink in to the state's legal minds, now the 'cat's out of the bag.' The court’s premise is that the Apology Law amounts to a confession of the illegality of the state's ownership of "ceded lands." It follows then, that the same apology law is also a confession of the illegality of the U.S. and State of Hawaii's jurisdictional claims over these Hawaiian Islands. That means the sovereignty of the Hawaiian Kingdom could not have been (and never was) lawfully extinguished. Thus, though impaired and overwhelmed by a U.S. invasion, the Hawaiian Kingdom still exists! Now isn’t that awkward.
In the 15 years since the Apology was issued, the state and (US) federal courts in Hawaii have vehemently quashed the assertion that the Hawaiian Kingdom still exists and have fiercely prosecuted Hawaiian Nationals (lawfully living in their own country) on trumped up misdemeanors boosted to felonies. In reality Hawaiian Nationals are political prisoners, victims of police and judicial abuses to their civil rights because they dare to profess the fact that they are Hawaiian Citizens.
It is not the Apology that has the force of law, it is the admission that many laws were broken and the sovereignty of a nation was continually violated in the usurpation and prolonged occupation of the Hawaiian Islands.
Therefore, in light of the court's new revelations on the Apology, the state's announced "settlement" with the state/federal puppet agency, called the Office of Hawaiian Affairs, is laughable. Given the circumstances, the only just and righteous "settlement" is to return the lands and governing authority to the lawful Hawaiian Kingdom and its national citizens, not to OHA and its wanna-be Hawaii-Indian Tribe. Malama Pono,
Leon Siu is a local entertainer who can be reached at leon@hits.net
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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080213/COLUMNISTS20/802130377/1104
Honolulu Advertiser, Wednesday, February 13, 2008
Tough questions on ceded lands
By Jerry Burris
Advertiser Columnist
Suddenly, the topic of so-called "ceded lands" is back on the political front burner.
Gov. Linda Lingle and the state Office of Hawaiian Affairs have announced a land-and-cash settlement involving past-due claims from OHA for its share of ceded lands revenue.
And the state Supreme Court made headlines when it ruled that ceded lands cannot be sold or otherwise conveyed until a global settlement is reached with Hawaiians over losses incurred as a result of the overthrow of the monarchy in 1893. That ruling was based on the congressional apology resolution of 1993, which the court says has the force of law.
The resolution concluded the overthrow was illegal and that some kind of "reconciliation" is required. Such reconciliation might involve the use of ceded lands and/or revenue derived from them.
So far, so good. But University of Hawai'i law professor Jon Van Dyke has just come out with a new book that raises fundamental and difficult questions about what those ceded lands really are and who owns them.
The book "Who Owns the Crown Lands of Hawai'i?" (University of Hawai'i Press) challenges the very idea that ceded lands (1.4 million to 1.8 million acres, depending on how you count them) are a single entity that can be dealt with in a single way.
Rather, Van Dyke argues, that included in the overall category of ceded lands (ceded from the Republic of Hawai'i, to be held in trust by the United States, then ceded back to the state of Hawai'i to be held in trust upon statehood) were close to a million acres of "crown" lands, reserved originally for the Hawaiian monarchy and now to be used for the benefit of Hawaiians.
"The Crown Lands — originally 984,000 acres — are now seen by many as the core of the land base for the forthcoming Native Hawaiian Nation," Van Dyke writes.
His argument will make any future political decisions about ceded lands and a future Hawaiian government — should one be created — much more complex and at the same time quite a bit simpler if you go with his thesis.
There are big threshold questions facing Van Dyke's argument. The first is that many, including even some Hawaiians, believe the crown lands, those owned or controlled by the monarchy, ceased to exist as a separate entity when the monarchy ended.
The second is that many argue the federal law ceding the lands back to Hawai'i envisioned them being used to benefit Hawaiians, but only as one of several options — including education — that the state might choose. Thus, there is no mandate in federal law.
A third argument, which Van Dyke generally dismisses, is that the crown lands remain private property and belong to one of several claiming descendants of Hawaiian royalty.
Van Dyke's responses, at the risk of oversimplification, are these: Since the overthrow was illegal, per the apology resolution, the monarchy and its purposes never ceased to exist in any legal sense. And while there are five purposes for the ceded lands, many subsequent federal laws and, critically, the 1978 state Constitutional Convention, recognized a special trust obligation to Hawaiians, he says.
THE MAHELE OF 1848
The crown lands took on a life of their own in the Mahele of 1848, in which Kamehameha III divided the lands of Hawai'i roughly in thirds: One third to the government (think roads, harbors, school sites and the like); one third to the commoners to own and use in fee simple; and one third to the ali'i, the bulk of which was kept by Kauikeaouli for his own use as monarch.
Legal thinking about those lands rapidly shifted, moving from the idea of private personal ownership to that of lands belonging to the crown and whoever was monarch at the time. Van Dyke's account of how this shift occurred makes for fascinating reading.
A QUESTION OF MOTIVE
Was the division a plot by foreigners to set up a system in which they could own or control land? Or was it, as Van Dyke argues, an effort to shift property into private hands so that a foreign takeover of the Islands would not result in total loss of lands by the Hawaiians?
And finally, if the crown lands were to be controlled by the monarch, to what use were they to be put? Van Dyke argues that history, tradition and law say the lands were to be used to benefit the Hawaiian people, as a distinct entity — a form of noblesse oblige.
That explains why the Hawaiian ali'i, when they had no heirs, tended to form royal trusts to benefit Hawaiians, he notes. The most notable, of course, is the Kamehameha Schools (Bishop Estate) trust.
In short, the crown lands remain a resource and base for a revitalized Hawaiian people, he says. Other ceded lands can arguably be used for more general public purposes.
A NEW DIMENSION
Van Dyke's deeply researched argument won't go down easily. Some will say that whatever the history, the facts today are that all ceded lands (government or crown) are now held in trust for the general public good, not for any particular group.
And if the maps included in his book are any indication, transfer of ownership or productive use of the crown lands would generate huge controversy on every island because they encompass vast tracts of now well-used and well-developed property.
So this book hardly will settle the matter. But it adds a new and thought-provoking dimension on a debate that has too often boiled down into simplistic arguments.
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http://www.hawaiireporter.com/story.aspx?f76c96de-1a9e-408b-aed7-63500d0d775a
Hawaii Reporter, February 18, 2008
City's Proposed Rail Will Cross Ceded Lands and That's Not Legal Until Deal Can Be Stuck With New Hawaiian Government, According to the Hawaii Supreme Court
Open Letter to Mayor Hannemann and Honolulu City Council Members
By Kamuela Kuali'i Lindsey
On January 31, 2008, the Hawaii Supreme Court ruled that the State of Hawaii, trustee of the "ceded lands", cannot sell, or otherwise encumber, or hypothecate the "ceded" lands; but instead, must preserve them for the "beneficiaries", native Hawaiians until such time as the reinstated Hawaiian government is formed. (USPL 103-150)
The city's planned fixed rail system goes over ceded lands that must be preserved for the native Hawaiian people and the Hawaiian Kingdom.
Illinois law professor, Dr. Francis Boyle, hired by the State of Hawaii 15 years ago to render an opinion on USPL 103-150 "Apology Bill", confirmed at OHA v. HCDCH, believes that the Apology Bill was and is more than just an apology. The Apology Bill is a finding of fact, conclusion of law and admission against interest.
Now Dr. Boyle believes that the recent opinion by the Supreme Court is an instruction for the State on how to deal with the "ceded" lands, taken from the Kingdom of Hawaii.
Dr. Boyle wrote on February 1, 2008: "Supreme Court of the State of Hawaii has effectively recognized that the Apology Resolution has "clouded" the title to all lands in Hawaii. Generally speaking, loans are ultimately based upon security interests in land, but if the title to the land is "clouded" that creates enormous legal problems for everyone."
Does anyone know where the "ceded" lands are, for certain? Does the State, Title Guarantee, or the outlawed Perfect Title Company know? It appears that over the years, Hawaii "lower courts" were wrong. The lower courts have summarily dismissed as "rubbish" native Hawaiian "sovereignty" and other claims to the ceded land trust.
You cannot buy, sell or build on these lands. A title search and survey of the transit route must be completed. The ceded lands cannot be condemned for public use. The lands around the route must be searched before investors can buy it up.
Kamuela Kuali'i Lindsey, a resident of Honolulu, Hawaii, can be reached at
monets001@hawaii.rr.com
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http://www.hawaiireporter.com/story.aspx?8e0c4a4c-e9ba-4db5-84f9-dd5e7d7f8efa
Hawaii Reporter, February 20, 2008
Guest Commentary
A Call to Arms, Stand With Your Alii
Kamehameha Crown Land Corporation Formed to Forward the Return Hawaii's Government to a Monarchy
By Monica Hatori
We are the Members of the Kamehameha Crown Land Corporation, the direct descendants of the Kamehameha, Lunalilo, and Kalakaua Dynasties, through our direct relationship of our great great grandmother.
The Princess Elizabeth Kekaaniau O’kalanihilaukapu Laanui and her niece and adopted daughter, our great grand mother the Princess Theresa Owana Laanui. Both these Princesses were first cousins to the Kamehameha’s and second cousins to the Kalakua’s.
In light of the recent decision by the Hawaii Supreme Court in stating that the Apology of 1993 has the force of law, it is our intention to petition the Supreme Court for the return of the Kingdom.
It is not enough to say if, but rather when the Supreme Court releases us from these 115 years of occupation, we will begin again where our Moi’ Queen Liliuokalani left off. The Hawaiian Constitution of 1864 will be reestablished. It is at that point that the continuity of our nation will begin anew.
In all honesty, many things will have to happen before this occurs. For one, it will take money to hire attorneys to litigate on our behalf unless we find one to do it pro bono. It will take money to get us to come together as one cohesive Nation.
It may take one year or twenty years to regain our status as a sovereign nation of the world. But more importantly it will take the willingness of you the Hawaiian People to make this heart and gut-wrenching path back to nationhood.
It is our belief that our victory can only come with the RIGHT AND THE MIGHT. Our right as the living heirs of the Kamehameha’s to petition the courts and the force behind the might of the people to accomplish our goals.
The Kamehameha Crown Land Corporation is a non-profit grass-roots entity based in Waianae. We humbly ask that Arm in Arm you join this movement to regain our Kingdom.
We are a single entity. We are not a part of the State of Hawaii Government, Kau Inoa, OHA or any other Sovereignty groups. If our intentions and actions are correct, and we believe they are, then the Akaka Bill is as it should be, moot.
When the Kingdom of Hawaii is returned, then and only then can the Apology Bill of 1993 and Act 359 of the Hawaii State Legislature of the same year, can we finally begin to say the words “Reconciliation” and “Resolution”.
We have set-up an email address for responses to this article. mail to:
KCLCHAWAII@hotmail.com
or write to:
Kamehameha Crown Land Corporation, P.O. Box 4236, Waianae, HI. 96792-7236
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http://starbulletin.com/breaking/breaking.php?id=7030
Honolulu Star-Bulletin, Tuesday, April 29, 2008
BREAKING NEWS, 9:23 AM HST
State appeals ceded lands ruling to U.S. Supreme Court
Star-Bulletin Staff
The state appealed to the U.S. Supreme Court today to overturn a recent Hawaii Supreme Court decision that prevents the state from selling or transferring ceded lands.
Attorney General Mark Bennett announced that a Petition for a Writ of Certiorari was filed with the nation's highest court, asking it to reverse a Jan. 31 decision by the Hawaii court.
Hawaii's Supreme Court had ruled that the Congressional Apology resolution prohibits the state from selling, exchanging or transferring any of the more than 1.2 million acres of ceded land owned by the state until it reaches a political settlement with native Hawaiians on the status of the land. The Apology Resolution passed by Congress in 1993 acknowledges the 100th anniversary of the overthrow of the Kingdom of Hawaii and apologizes for the U.S. role in it.
"I believe that the decision of the Hawaii Supreme Court is based on a wholly incorrect reading of the legal effect of the Apology Resolution, and strips the state of its basic sovereign right to control and manage the lands it owns," Bennett said.
The petition contends that "nothing in the Apology Resolution explicitly or implicitly impairs Hawaii's sovereign right to control or alienate any of the lands it owns."
When Hawaii was annexed by the United States in 1898, lands formerly held by the monarchy were "ceded" to the United States, and later transferred in trust to the state of Hawaii. Bennett argued that the Hawaii court decision bars the state from prudently managing those lands, which account for about 29 percent of Hawaii's total land area and almost all state-owned lands.
The Admission Act states that ceded lands must be used by the state for one or more of five purposes: the support of public education; betterment of conditions of native Hawaiians; the development of farm and home ownership; for public improvements and for the public use of the lands. The petition filed today said that Hawaii law authorizes the sale or transfer of such lands as long as the proceeds are used for those purposes.
Bennett said he expects the U.S. Supreme Court to decide in October whether to hear the case, and if it does, is likely to make a decision by June 2009.
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http://starbulletin.com/2008/04/30/news/story09.html
Honolulu Star-Bulletin, April 30, 2008
Sovereignty cited in ceded land case
By Alexandre Da Silva
Hawaii has a "sovereign right" to sell and transfer lands previously owned by Hawaii's kingdom, the state told the U.S. Supreme Court yesterday in an effort to lift a legal ban on the property deals until claims by native islanders are resolved.
In papers filed in Washington, D.C., state Attorney General Mark Bennett urged the nation's highest court to overturn a Hawaii Supreme Court decision that led to an injunction freezing any transaction of former royal land pending compensation to native Hawaiians.
Bennett contends Hawaii gained the right to manage more than 1.2 million acres of ceded lands, or about 29 percent of the islands' total land area, when it became a state through the Admission Act of 1959. He said the state court's unanimous ruling on Jan. 31 misinterpreted the Apology Resolution, which Congress passed and President Clinton signed into law in 1993 to acknowledge the illegal overthrow of Hawaii's monarchy.
Labeling the apology "symbolic," Bennett disputed the court's 5-0 decision that the resolution serves as a bar on the sale, exchange or transfer of ceded lands by the state.
"This decision takes away from the state a basic attribute of sovereignty," he said. "If Congress did try to do this, we believe it was illegal."
The Office of Hawaiian Affairs, an agency that manages Hawaiian programs and sued the state to block land sales, said it was disappointed about the state's appeal.
"We at OHA still believe that the Hawaii Supreme Court ruled correctly that the state should keep the ceded land trust intact until native Hawaiian claims to these lands are settled," OHA Board of Trustees Chairwoman Haunani Apoliona said in a statement.
OHA attorney Jon Van Dyke called the ruling "well-researched" and said he believes the U.S. Supreme Court is unlikely to take up the case, given that it usually hears just 100 out of 8,000 requests. Also, he said, the high court in 1919 backed a similar land hold on the mainland to allow the Pueblo Indians to pursue their claims, and that land repatriations have also happened in New Zealand with the native Maoris.
"This is an approach that is fully supported in the U.S. and around the world as a way to help resolve the claims of native people," he said. "This is not the end of the road by any means, but it is an extremely important decision reminding everybody here in the islands that we have an unresolved problem that we need to sort out."
The dispute began in 1994, when OHA and four plaintiffs sued to stop the state from transferring ceded lands on Maui and the Big Island from the Department of Land and Natural Resources to the predecessor of the state Housing and Community Development Corp. of Hawaii to develop low-cost housing.
The injunction specifically sought to prevent the transfer of a 500-acre parcel on Maui identified as Leialii.
By the time OHA and the other plaintiffs filed their lawsuit, DLNR had already transferred the land, and the state housing agency had sent OHA a check for 20 percent of the fair market value of the land as its share according to state law.
The state housing agency decided to stop work on the project after investing $31 million in Leialii for roads, utilities, light poles, sewer hookups and landscaping. The plaintiffs agreed to remove some of the Leialii lands from the dispute so the state could transfer them to the state Department of Hawaiian Home Lands to provide housing for native Hawaiians.
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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080430/NEWS20/804300370/1170/LOCALNEWSFRONT
Honolulu Advertiser, Wednesday, April 30, 2008
State trying to regain control of lands
U.S. justices asked to reverse ruling that bars sale of ceded property
By Jim Dooley
The state has appealed a major Hawai'i Supreme Court decision that blocks the state from selling or transferring former Hawaiian monarchy lands.
State Attorney General Mark Bennett yesterday filed paperwork in Washington, D.C., asking the U.S. Supreme Court to reverse the unanimous state court decision, issued Jan. 31.
That decision held that the state cannot transfer ownership of 1.4 million acres of former monarchy lands, now called ceded lands, pending resolution of claims by Native Hawaiians to those lands or revenues they produce.
The Hawai'i opinion, written by Chief Justice Ronald Moon, was based in large part on language in a Congressional Apology Resolution passed in 1993 to mark the 100th anniversary of the overthrow of the Hawaiian kingdom.
Moon wrote that the Apology Resolution and related state legislation impose upon the state a "fiduciary duty to preserve the corpus of the public land trust, specifically the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved."
Bennett, however, said the Moon opinion "is based on a wholly incorrect reading of the legal effect of the Apology Resolution" and unfairly blocks the state from "prudently managing" the ceded lands.
The decision "strips the state of its basic sovereign right to control and manage the lands it owns," Bennett said in a news release.
The Hawai'i Supreme Court opinion reversed a lower court ruling from Circuit Judge Sabrina McKenna in a suit filed against the state by the Office of Hawaiian Affairs and four individual plaintiffs of Native Hawaiian ancestry.
OHA chairwoman Haunani Apoliona said yesterday, "We at OHA still believe that the Hawai'i Supreme Court ruled correctly that the state should keep the ceded land trust intact until Native Hawaiian claims to these lands are settled. We trust the U.S. Supreme Court will not second guess the justices of the Hawai'i Supreme Court."
OHA lawyer Jon Van Dyke called the Moon opinion "well-researched and thoughtfully written," adding that if the U.S. Supreme Court agrees to review the matter "it will rule in our favor."
OHA administrator Clyde Namu'o said that, while he has "great respect for Mark Bennett," he is concerned that "it may be difficult to limit the issues that the (U.S.) Supreme Court looks at."
"It would seem to me that the Supreme Court justices may choose to look closely at the Apology Resolution itself," said Namu'o.
Bennett said that a decision from the high court on whether it will hear the case should be issued by October.
He made three arguments for the court to hear the appeal.
One is that the Moon opinion "has an enormous impact on Hawai'i" by barring state control of the ceded lands, which make up 29 percent of all land in Hawai'i and almost all the land owned by state government.
Second, Bennett said the decision "raises serious constitutional concerns" because the federal government, in transferring the land to the state in the Admissions Act, allowed for the sale or other disposition of property, with proceeds to be used for public schools, betterment of Native Hawaiians and other specific public purposes.
Finally, Bennett said, the Hawai'i Supreme Court opinion was based on federal law, improperly excluding state government from ceded land policy decisions.
Such decisions, he said, "should be made by the executive and legislative branches of the government of the sate of Hawai'i, not by Congress."
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http://www.mauinews.com/page/content.detail/id/503194.html?nav=10
The Maui News, April 30, 2008
A.G. to appeal ruling
Hawaii Supreme Court barred sale of former royal lands
By CHRIS HAMILTON, Staff Writer
WAILUKU — Maui Native Hawaiian rights advocates are not pleased with the state attorney general’s decision Tuesday to appeal to the U.S. Supreme Court a groundbreaking Hawaii Supreme Court ruling that bars the state from selling 1.2 million acres of former royal lands.
Attorney General Mark Bennett announced Tuesday that he will try to overturn the Jan. 31 ruling by the Hawaii Supreme Court. He contends that it is based on a 1993 Apology Resolution by Congress that had symbolic purposes only.
The resolution had the United States apologize for its annexation of monarchy lands in 1898 and for the participation of U.S. military in the overthrow of the independent Hawaiian government in 1893.
“Nothing in the Apology Resolution explicitly or implicitly impairs Hawaii’s sovereign right to control or alienate any of the lands it owns,” Bennett wrote in his petition for a writ of certiorari to the U.S. Supreme Court.
However, retired 2nd Circuit Court judge and Office of Hawaiian Affairs Trustee Boyd Mossman said he doubts that the nation’s highest court will hear such a narrow case. The U.S. Supreme Court receives thousands of petitions each year and typically hears cases with broad, national impacts, he said.
Mossman said it doesn’t surprise him that the state would appeal the decision, which was based on a 1994 lawsuit by four Native Hawaiians blocking a state housing agency from developing and selling about 1,500 acres of ceded lands in Lahaina and Kona.
Still, he and members of the OHA board protested the appeal. OHA, which was created by a state constitutional amendment in 1978, had joined the suit.
“But if it does get heard, and we lose, it would be just another blow to the Hawaiian cause,” Mossman said. “This was an enormously important decision by the state Supreme Court because it preserved the issue of ceded lands until a legal decision about them could be reached.”
Mossman said Bennett’s action is also another reason Congress must move now to support the 2007 Native Hawaiian Reorganization Act, commonly known as the Akaka Bill for its chief sponsor, Hawaii Sen. Daniel Akaka. The measure would give Native Hawaiians federal rights and sovereignty status similar to those of American Indian tribes and allow them to negotiate on a government-to-government basis.
Pia Aluli, one of the original plaintiffs in the suit that opposed the state proposal for the Villages of Leiali‘i housing project, said he is disturbed by the attorney general’s decision.
“I was very happy to hear about the Supreme Court decision because the state was not acting in best interests of Hawaiian people,” said Aluli, a musician and wedding officiant. “Once the inventory is sold, it’s pau. It’s a done deal. We should have the right to determine what we want to do with our land rather than state.
. . . It’s unfortunate that the state chose to appeal.”
Under state law, 20 percent of ceded land revenue is to go into a trust fund supporting OHA and the Department of Hawaiian Home Lands, which administer health, education and other programs to help Native Hawaiians.
The allocation of those revenues has been subject to other ongoing disputes with the state.
But the Hawaii court decision freezes sales, or “alienation,” of ceded lands and will prevent the state from renewing leases as they expire, Mossman said. Once it is decided in a separate court case what entity will oversee the ceded lands, it will take a political solution to fairly distribute lands to Native Hawaiian families, Mossman said.
But ceded lands also make up 29 percent of Hawaii’s total area and almost all the land owned by the state, Bennett noted in a news release.
The state Supreme Court’s decision prevents the state government from prudently managing the public lands for the benefit of all Hawaii citizens, Bennett said.
Aluli said he believes the state is motivated by finances or feeling the pressure of a sagging economy.
Bennett said state law fully authorizes the state to transfer or sell ceded lands. And when the state was admitted into the United States in 1959, the federal legislation gave all the ceded lands to the state, he said. He argued the state Supreme Court made its ruling on a “wholly incorrect reading” of the 1993 Apology Resolution.
In the unanimous opinion, Hawaii Chief Justice Ronald Moon wrote that the Apology Resolution and related state legislation give rise to the state’s responsibility to preserve the land until final resolution of can be reached on unrelinquished claims of Native Hawaiians.
Bennett said he believes that if the U.S. Supreme Court hears the case, it will render a decision by June 2009.
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http://www.inversecondemnation.com/inversecondemnation/2008/04/cert-petition-2.html
** A webpage devoted to the Supreme Court's decision in the Kelo case which said a state or local government can condemn land by eminent domain merely in order to help developers build new improvements which will generate greater property tax for the government.
Cert Petition in Ceded Lands Case
In a very short (17 page) petition, the State of Hawaii has asked the U.S. Supreme Court to review a decision by the Hawaii Supreme Court regarding "ceded lands." The petition argues that by basing its decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, No. 25570 (Jan. 31, 2008) on the "Apology Resolution," the Hawaii Supreme Court "effectively insulated its decision from any political check at the state level," an error only the U.S. Supreme Court can correct. The cert petition is posted here.
The petition was filed filed by heavy-hitter Seth Waxman, a former U.S. Solicitor General, so despite its brevity, it should be taken seriously. It asks the Court to review a single question:
In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for the United States' role in that overthrow. The question here is whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land-29 percent of the total land area of the State and almost all the land owned by the State-unless and until it reaches a political settlement with native Hawaiians about the status of that land.
Petition at (i). The petition notes, but does not focus, on a key point -- the ceded lands are supposed to be held in trust by the State "for the benefit of all citizens of Hawaii ."
First, the practical impact of this decision is enormous: it bars the State from prudently managing, for the benefit of all citizens of Hawaii, more than 1.2 million acres of State-owned land-29 per cent of the total land area of the State and almost all the land owned by the State.
Petition at 11 (emphasis added). This point has been glossed over in recent decisions on ceded lands, and this petition gives the U.S. Supreme Court an opportunity to correct it. The petition obviously does not suggest that the usual route to SCOTUS review -- the "circuit split" -- is present, since the case presents facts and law that are unique, and has not expressly arisen in another case. Instead, it argues that the Hawaii Supreme Court grossly misinterpreted federal law and that there is no other remedy available:
Absent review by this Court, this injunction will continue to hold the State hostage to the Hawaii Supreme Court's deeply flawed analysis of federal law. The error and the injury in this case are unmistakable, and only this Court has the power to correct them. It should exercise that power.
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http://starbulletin.com/2008/05/01/editorial/editorial01.html
Honolulu Star-Bulletin, May 1, 2008
EDITORIAL
OUR OPINION
State had no choice on ceded land appeal
THE ISSUE
Hawaii is asking the U.S. Supreme Court to overturn a state Supreme Court ruling.
The state Supreme Court's drastic decision in January to block virtually all state-owned land from being sold or transferred needs further review. Attorney General Mark Bennett had no choice but to appeal the ruling to the nation's highest court.
The Lingle administration, including Bennett, has been a strong supporter of Hawaiian sovereignty, and the appeal should not be construed as wavering from that stance. It is aimed at protecting the state from the consequences of a legal ruling that Bennett regards as having "raised grave federalism concerns."
Bennett filed papers with the U.S. Supreme Court this week asking it to overturn the decision by Hawaii's high court, which interpreted the congressional Apology Resolution as requiring the ban on the sale or transfer of state lands once owned by the Hawaiian monarchy. That amounts to 1.2 million acres of former crown land that was taken over by the federal government at annexation and ceded to Hawaii at statehood.
The Office of Hawaiian Affairs' lawsuit challenged the state affordable housing authority's decision to develop 500 acres of ceded land on Maui as residential housing. The state wrote a check for nearly $5.6 million to OHA in compliance with the accepted interpretation of the Admission Act, providing that one-fifth of the benefits from ceded land be dedicated to improving conditions for native Hawaiians. OHA, a state agency, rejected the check, instead taking its parent to court.
In the 1993 joint resolution apologizing for the overthrow of the Hawaiian monarchy a century earlier, Congress called for "a proper foundation for reconciliation between the United States and the native Hawaiian people." In the state Supreme Court's ruling, Chief Justice Ronald Moon wrote that the resolution "dictates that the ceded lands should be preserved" until that reconciliation is achieved, although it does not precisely say that.
Bennett contends that such a barrier surrounding ceded land never was envisioned. He points out that the Admission Act provides that the ceded lands, "together with the proceeds from the sale or other disposition of (ceded) lands and the income therefrom," must be used for five purposes, one of which is the betterment of native Hawaiians -- thus the 20 percent formula.
Reconciliation will occur after Congress approves Sen. Daniel Akaka's Hawaiian sovereignty bill and it is signed into law. The House approved the bill in October but not by enough votes to override an expected presidential veto. The Senate has yet to take action. The state cannot rely on a Democratic victory in November to assure congressional approval and a president's signature.
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http://www.hawaiireporter.com/story.aspx?58808fec-1984-435b-9115-0aee73a83215
Hawaii Reporter, May 7, 2008
Setting the Record Straight -- State Ceded Land Appeal to U.S. Supreme Court
By Jimmy Kuroiwa
The Honolulu Star Bulletin May 1, 2008 editorial fail to disclose ceded lands facts on the State’s appeal to the U.S. Supreme Court of the January 31, 2008 Hawaii Supreme Courts decision.
Yes, the Lingle Administration had no choice but to appeal the Hawaii Supreme Courts decision in order to sustain their objective in supporting Hawaiian sovereignty.
The Hawaii's Supreme Court decision, “prohibits the state from selling, exchanging or transferring any of the more than 1.2 million acres of ceded land” (held in trust by the state for the benefit of all citizens of Hawaii) until a political settlement on the ceded lands is reached with native Hawaiians.
The Honolulu Star Bulletin wrote, “1.2 million acres of former crown land” is inaccurate for Hawaiian history acknowledges that Kamehameha III in the Great Mahele of 1845-1848 divided the Kingdom lands to the Konohiki 1.5 million acres, to the Government 1.5 million acres, and to the Crown 1.0 million acres.
Hawaiian ceded lands history recorded that on January 3, 1865 Kamehameha V signed into law, after the Monarchy was deeply debt, to transfer the Crown lands to the Government. The Government floated bonds to raise funds to pay the Kings debts.
The “1865 Act to relieve the Royal Domain from Incumbrances” stated that revenues from the Crown lands after expenses will be paid to the King and that the Crown lands will be placed under Government control thus combining Crown and Government lands.
The Republic of Hawaii ceded the public lands of some 1,800,000 acres (government and crown lands) to the United States in 1898. Then in 1959, the United States returned the same lands (less some 200,000 acres for Hawaiian homes lands, and 328,000 acres for federal parks, military, and other Federal uses) to the State of Hawaii.
In 1909, Queen Liliuokalani sued in the U.S. Court of Claims that she personally owned former crown lands and deserved recompense for the personal loss.
The U.S. Court of Claims ruled against the former Queen on May 16, 1910, and determined that the former crown lands were always considered public lands belonging to the office of the Monarchy under the Kingdom of Hawaii, not the individual person, and the lands became public lands of the Republic of Hawaii once the Monarchy ceased to exist.
The U.S. Senate Committee on Foreign Affairs reported to Congress on February 26, 1894 with a 9–0 vote that the United States peacekeepers that landed during the Hawaiian Revolution of 1893 remained completely neutral and were not complicit in the overthrow of Queen Liliuokalani. The 1993 Apology resolution glosses over this fact and many others. The United States never had anything to apologize for, much less to a single minority racial group of the multi-racial Kingdom of Hawaii.
The Honolulu Star Bulletin reported on the trust responsibility by the State of Hawaii that AG Mark Bennett said that ceded lands, “must be used for five purposes, one of which is the betterment of native Hawaiians – thus the 20 percent formula.” The twenty percent formula was fabricated by the legislature.
The Admissions Act states that, “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 United States.” Nothing in that statement insists that every purpose must be funded in equal fifths, nor even that every purpose must be funded at all.
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http://www.mauinews.com/page/content.detail/id/503532.html?nav=18
Maui News, May 8, 2008
Kingdom lands belong only to Native Hawaiians
Attorney General Mark Bennett is appealing the state Supreme Court’s ruling barring sales of Hawaii kingdom lands until the unrelinquished claim to those lands is resolved. He stated ‘’Nothing in the apology bill explicitly or implicitly impairs Hawaii’s sovereign right to control or alienate any of the lands that it owns.”
The owner was and still is the kingdom of Hawaii as the apology bill points out: “Whereas the Hawaiian people never directly relinquished their claim to their inherent sovereignty as a people or over their national lands to the United States.”
Boyd Mossman, who is pushing the Akaka Bill, stated “Once it is decided in a separate court case what entity will oversee the ceded (kingdom) lands it will take a political solution to fairly distribute lands.” That separate court case involves three elected officials of the Reinstated Kingdom of Hawaii arrested for exercising their government’s inherent right to manage and control Kahoolawe.
The defendants are asking the court to determine the Reinstated Hawaiian Government qualifies as the Native Hawaiian sovereign governing entity referred to in the Akaka Bill. Congress can only create a domestic dependent entity, not a sovereign entity. The Reinstated Kingdom of Hawaii has the inherent to control Hawaiian kingdom lands. A governing entity created by U.S. Congress doesn’t.
Until the political solution Mossman referred to, the recognition that the Reinstated Hawaiian Government represents the lawful owners of Hawaii kingdom lands, the Supreme Court ruling should stand. Keep Hawaiian lands in Hawaiian hands!
Dan Taylor
Haiku
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http://www.inversecondemnation.com/inversecondemnation/2008/06/another-amicus-brief-supporting-cert-in-ceded-lands-case.html
June 06, 2008
Another Amicus Brief Supporting Cert in Ceded Lands Case
The State of Washington and 28 other states and commonwealth have filed an amicus brief in support of the State of Hawaii's petition for a writ of certiorari in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. petition filed Apr. 29, 2008).
http://www.inversecondemnation.com/hawaiiappellate/2008/02/office-of-hawai.html
In that case, the State seeks U.S. Supreme Court review of the decision by the Hawaii Supreme Court in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). In that decision, the Hawaii Supreme Court, relying on the "Apology Resolution," enjoined the State of Hawaii from conveying 1.2 million acres of state-owned land until a political settlement is reach with Native Hawaiians about the status of that land.
The brief of the twenty-nine states asserts:
The Supreme Court of Hawaii misconstrued the 1993 Apology Resolution.... Notwithstanding express language showing that Congress had simply adopted a symbolic apology, the Hawaii court held that the Apology Resolution singled out and diminished the state's title to lands received at statehood. . . . .
The twenty-nine amicus states and commonwealth ask the Court to grant the petition for two reasons. First the rule of law adopted by the Hawaii court conflicts with this Court's holding regarding lands granted to the states. This Court's decisions recognize that land cannot be taken from a state after it is granted at statehood. The Hawaii court's ruling to the contrary is inconsistent with the plan of federalism in the Constitution. Second, the case involves a gross misapplication of federal law to impair the title to the majority of land owned by a sovereign state. A question of federal law of the magnitude presented by this case concerning the legal interests of a sovereign state in its state lands merits the attention of this Court.
Brief at 3-4. The brief is available here.
http://www.inversecondemnation.com/inversecondemnation/files/29_states_amicus_cededlands.pdf
The State of Hawaii's cert petition is here,
http://www.inversecondemnation.com/inversecondemnation/2008/04/cert-petition-2.html
and Pacific Legal Foundation's amicus brief supporting cert is here.
http://www.inversecondemnation.com/inversecondemnation/2008/06/amicus-brief-supporting-cert-in-ceded-lands-case.html
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http://starbulletin.com/2008/06/10/news/story04.html
Honolulu Star-Bulletin, June 10, 2008
29 other states oppose ruling on ceded lands
By B.J. Reyes
Twenty-nine states have joined Hawaii in asking the U.S. Supreme Court to overturn a recent Hawaii high court decision that freezes transactions involving ceded lands until a settlement can be reached with native Hawaiians. Those states are Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Nebraska, New Hampshire, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, Wyoming and the Commonwealth of the Northern Mariana Islands.
In a court brief filed June 5 and written by Washington Attorney General Robert McKenna, the states argue that the Hawaii Supreme Court "misconstrued" the 1993 Apology Resolution, upon which its Jan. 31 ruling was based.
Justices ruled 5-0 that the state cannot sell or transfer ceded lands, about 1.2 million acres formerly owned by the Hawaiian monarchy, until native Hawaiian claims to those lands are resolved, an issue that would have to be decided by Congress.
The new brief contends land cannot be taken away from a state after statehood is granted and that the Hawaii Supreme Court's decision amounts to a "gross misapplication" of federal law.
"A state's ability to survive as a sovereign state is seriously undermined if the title to its lands can be singled out and impaired by the federal government," according to the brief, which restates many of the same arguments made by Hawaii Attorney General Mark Bennett in his appeal to the Supreme Court in April.
The Hawaii court's ruling stems from a 1994 case filed by the Office of Hawaiian Affairs, the agency that manages Hawaiian programs, to stop the state from transferring ceded lands on Maui and the Big Island from the Department of Land and Natural Resources to the predecessor of the state Housing and Community Development Corp. of Hawaii to develop low-cost housing.
In a written statement, the Office of Hawaiian Affairs said it believes the Hawaii Supreme Court "was correct in its analysis that the Apology Resolution confirms that the Hawaiians still have unresolved claims to the lands that were taken from them in 1893 without their consent and without compensation. ...
..."The Hawaii Supreme Court was very careful in its decision and pointed out that the DLNR had been operating under a self-imposed similar type of moratorium," the statement said. "The Apology Resolution is unique to Hawaii."
Bennett and the 29 states argue that the 1993 Apology Resolution, passed by Congress and signed by President Clinton to acknowledge the illegal overthrow of Hawaii's monarchy, was a "symbolic" gesture.
The Office of Hawaiian Affairs is expected to file its response to Bennett's appeal later this summer.
The U.S. Supreme Court likely would have no decision on whether to hear the appeal until after justices return in October from their summer break.
Bennett said "amicus" briefs, such as the one filed by the 29 states, typically are filed after the court decides to hear a case. The timing indicates broad support for Hawaii's position, he said.
"I think that it makes it more likely that the court will hear the case," he said. "The fact that at (this) stage 29 states have said that the power the Hawaii Supreme Court attributed to the Congress -- which is the power to bar Hawaii from selling or otherwise transferring ceded lands -- is a power that the Congress doesn't have, is significant."
In the amicus brief, the states argued to having a vital interest in the case, "because every state admitted to the Union since 1802 has received grants of land owned, prior to statehood, by the federal government."
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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080611/COLUMNISTS20/806110368/1156/LOCALNEWSFRONT
Honolulu Advertiser, Wednesday, June 11, 2008
Nothing is simple in land case
Advertiser Staff [no individual by-line, but the online comment blog clearly identifies the author as Jerry Burris]
Pity the legal eagles working for the state of Hawai'i these days.
On one side, they defend Gov. Linda Lingle's position that Hawaiians are owed a fair settlement for the use of ceded lands, those 1.2 million to 1.6 million acres of former crown and government lands ceded in trust to the state in 1959.
On the other, they are now fighting to reverse a state Supreme Court decision that put a powerful boost behind efforts to get that "fair settlement" resolved. The Hawai'i court in effect put a gun to the head of negotiators by placing a hold on any transfer or sale of ceded lands until a claims dispute with Hawaiians is resolved.
The Hawai'i court said the 1993 federal "Apology Resolution" demands resolution of ceded lands claims and thus nothing should be done with the ceded lands until that happens.
The ruling, while popular with Hawaiian claimants, potentially does serious damage to the state's constitutional right to make use of lands it controls, the state has argued.
And now, some 29 other states have joined Hawai'i in its appeal against the Hawai'i high court ruling before the U.S. Supreme Court. That's a big deal. It says, in effect, that the Hawai'i decision has important constitutional implications for states across the country if allowed to stand.
What's interesting is that the other states really have little formal interest in Hawaiian claims for land or reparations. But they do care mightily about keeping Uncle Sam out of their hair when it comes to making decisions about lands they control.
A key element in the Hawai'i Supreme Court ruling was that the Apology Resolution to Hawaiians has the force and effect of federal law.
That's what has the other states' dander up. They believe firmly the federal government has no right to step in and place restrictions on the use of lands once they are transferred from federal to state control upon a state's entry into the union.
In making that argument, the other states insist the Hawai'i court fundamentally misunderstood federal law. The Apology Resolution, they say, is simply that: an apology. It doesn't have the power to overturn existing federal law and longstanding court rulings.
Supporters of the Hawaiian cause say there is ample precedent; that the courts have allowed land holds elsewhere and around the world when claims by native peoples were in progress.
So this case will have implications far beyond the issue of state versus federal rights to decide what is to be done with certain state lands. It also takes direct aim at the foundation of much of the argument made for restoration of Hawaiian rights and land: the Apology Resolution.
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http://starbulletin.com/2008/06/12/editorial/editorial01.html
Honolulu Star-Bulletin, June 12, 2008, EDITORIAL
Hawaii Supreme Court ruling tampers with federalism
THE ISSUE
Twenty-nine state attorneys general support Hawaii's appeal of a decision that froze the sale or transfer of the state's ceded land.
No other state has former royal lands that were ceded to it, but 29 state attorneys general have joined Hawaii Attorney General Mark Bennett to ask the U.S. Supreme Court to overturn a ruling that blocks the sale or transfer of ceded land. They understand that failure to do so would set a dangerous precedent infringing on states' rights protected under federalist principles.
Ceded lands amount to 1.2 million acres, encompassing nearly all state-owned lands. Hawaii's Supreme Court ruled in January that a 1993 joint resolution by Congress apologizing for the overthrow of the monarchy a century earlier requires that ceded lands be "preserved" until "a proper foundation for reconciliation between the United States and the native Hawaiian people" is achieved.
The Apology Resolution does not exactly say that, but that was the state high court's interpretation. The resolution does say that Hawaiians never "directly relinquished their claims" to the land, implying that the state is de facto custodian of the lands.
A brief by the 29 state lawyers, prepared by Washington Attorney General Rob McKenna, asserts that Congress meant the resolution to be "a symbolic apology" and nothing more. If that had been the intent, Congress would have tailored it as a concurrent resolution. A joint resolution, which is what the Apology Resolution was, has the same force as a bill enacted by Congress and signed into law by the president. In this case, then-President Bill Clinton provided his signature.
"A state's ability to survive as a sovereign state is seriously undermined if the title to its lands can be singled out and impaired by the federal government," McKenna wrote. Indeed, the Admission Act granted the state "title" to the ceded lands, albeit with the conditions that the land or income from it be used for one of five purposes, including "betterment of conditions for native Hawaiians."
On that basis, the state turns over 20 percent of profits from ceded land to the Office of Hawaiian Affairs. The current case arose after OHA balked at the transfer of Maui acreage to the state affordable housing agency, rejecting a check for $5.8 million in compensation, about one-fifth of the property's value in compliance with the five-purpose formula.
Bennett argues in the state's appeal that "the federal government granted title to Hawaii to most of the previously ceded lands (keeping some 350,000 acres) and mandated that these ceded lands be held by Hawaii in public trust." Final reconciliation will occur after Congress passes Sen. Daniel Akaka's Hawaiian sovereignty bill and the next president signs it into law.
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ON OCTOBER 1, 2008 THE U.S. SUPREME COURT GRANTED CERTIORARI. THAT MEANS THE SUPREME COURT WILL HEAR THE CASE, PROBABLY SOMETIME DURING THE CURRENT TERM OF THE COURT WHICH ENDS IN JUNE 2009.
A NEW WEBPAGE WAS CREATED TO PROVIDE COMPLETE BACKGROUND FOR THE CASE AND TO FOLLOW NEWS REPORTS, COMMENTARIES, AND LEGAL DOCUMENTS GOING FORWARD. PLEASE VISIT
http://bigfiles90.angelfire.com/CededNoSell.html
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Send comments or questions to:
Ken_Conklin@yahoo.com
This webpage was a subpage for item #1 in a larger webpage for 2008 entitled
"Office of Hawaiian Affairs -- Watching the Moves It Makes to Expand the Evil Empire (acquiring huge parcels of land, building a headquarters for its tribal nation, considering purchase of a TV station, etc.). YEAR 2008"
That larger webpage covering all topics for 2008 is at
https://www.angelfire.com/planet/big60/EvilEmpire2008.html
OR
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(c) Copyright 2008 Kenneth R. Conklin, Ph.D. All rights reserved