Sovereignty cited in ceded land case
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.
