Battle over ceded lands


POSTED: Sunday, February 22, 2009

The quest by native Hawaiians to settle their claims to the lands that once belonged to the Hawaiian monarchy underlies the case scheduled to be heard on Wednesday by the U.S. Supreme Court.

The case, which has drawn nationwide interest, pits Gov. Linda Lingle's administration against the Office of Hawaiian Affairs over 1.2 million acres or about 29 percent of all land in Hawaii.

State Attorney General Mark Bennett contends that the state should have unfettered discretion to sell or transfer those lands on behalf of not only native Hawaiians, but also the public.

But OHA and its supporters want the lands kept with the state as a source of the settlement for native Hawaiians who believe the lands were illegally transferred to the United States when Hawaii was annexed in 1898 and then handed over to the state upon statehood in 1959.

On the surface, the case deals with the state's ability to sell ceded lands, which currently may be a moot issue since Gov. Lingle has said the state does not have plans to sell or transfer the lands.

But whichever way the justices rule will likely affect the bargaining positions by the state as well as native Hawaiians in reaching the elusive settlement of their claims.

The Supreme Court justices set a one-hour hearing scheduled to begin at 5 a.m. Hawaii time. The justices won't immediately rule but are expected to render their decision by this summer.

The hearing will be the latest milestone in the nearly 14-year-old court case involving the state's attempt to transfer some 500 acres on Maui to a state agency to develop affordable housing.

OHA objected and filed a lawsuit seeking to block the transfer or sale of ceded lands, citing the 1993 Apology Resolution in which Congress apologized to native Hawaiians for the 1893 overthrow of the Hawaiian monarchy.

In January last year, the Hawaii Supreme Court unanimously ruled in OHA's favor. The court held that the Apology Resolution and state legislation “;give rise to the state's fiduciary duty”; to preserve the ceded lands until “;the unrelinquished claims of the native Hawaiians have been resolved.”;

The state Supreme Court's holding is what the state is seeking to overturn.

But native Hawaiian groups fear that the U.S. Supreme Court might go beyond whether the state can sell the lands and declare that the state has unfettered rights to the ceded lands that would undermine native Hawaiian claims to the property.

Native Hawaiian groups also believe that if OHA prevails and the ban is left intact, they would be in a better bargaining position for a settlement because the state would be hamstrung with the restriction on sales and transfers.

Clyde Namuo, OHA executive director, said such an outcome would give “;leverage for the native Hawaiian community”; and also preserve the land as a source for the settlement.

But if the ban is lifted, the state would be a “;better position”; and won't have the added incentive to reach a settlement because its lands would no longer be encumbered by a legal cloud, according to Namuo.

The biggest fear, Namuo said, is that the U.S. Supreme Court would declare that the state holds clear title to the lands and make comments that suggest native Hawaiians do not have any legal claims, a suggestion that could be used in other court challenges to native Hawaiian programs.

“;A far-reaching decision by the U.S. Supreme Court could affect OHA's ability to carry out its mission of bettering the conditions of native Hawaiians,”; OHA Chairwoman Haunani Apoliona said.

Bennett, who will be arguing the state's case before the justices, declined to comment on the impact of any ruling until it is issued.

But he said he thinks it's unlikely that the justices will go beyond the Hawaii Supreme Court's ruling. He said all the parties agree the other issues were not raised in the case.

It's all but impossible to know which way the nine justices will rule.

The last time the court decided an issue involving OHA was in 2000 when it dealt the agency a setback. In the Rice vs. Cayetano case, the justices struck down by a 7-2 vote the restriction that limited voting for OHA trustees to native Hawaiians.

Since then, former President George W. Bush appointed John Roberts as chief justice and associate justice Sam Alito to what is considered a conservative-leaning court. The liberal block consists of a minority of four justices, including the two — John Paul Stevens and Ruth Ginsberg — who dissented in the Rice case.

“;It's absolutely an uphill battle,”; Namuo said about OHA's chances.

But he said that in the past months, “;the more our attorneys have delved into the case, the more confident they are that we do have a shot”; in persuading the justices to essentially leave intact the Hawaii Supreme Court's holding.

Bennett believes the state should win because “;the (Hawaii) Supreme Court found that a congressional resolution of apology changed the legal landscape and barred the state from exercising the rights it had, and in fact the Apology Resolution did no such thing.”;

He said the Honolulu Airport, the University of Hawaii, state harbors and most public buildings, parks and natural reserves are on ceded lands.

“;It's important to have the principle that the state does have good title to public lands and does have the right to use them for the benefit of all the people of Hawaii, including the betterment of the conditions of native Hawaiians, which is one of the purposes specified in the Admissions Act (which transferred the ceded lands from the federal government to the state),”; Bennett said.

But affirming the state's good title to the land goes beyond what the state originally argued in convincing the justices to hear the case, according to OHA lawyers. The initial argument was that the Apology Resolution did not take away the state's authority to sell the lands, the lawyers said.

William Meheula, lawyer for four native Hawaiians who along with OHA challenged the land transfer and sales, said they obtained a “;limited but legally correct”; ruling from the state's highest court.

“;Our congressional delegation, most of our state legislators and the Hawaiian people understand this,”; he said. “;However, Gov. Lingle has pursued this appeal to deliberately attempt to weaken the native Hawaiian claim to the lands that were stolen from the Hawaiian kingdom.”;

Bennett said the governor believed the state court's decision needed to be appealed because it was harmful to the state and she wanted to uphold the state's authority to transfer or sell the lands.

“;We think it's important for the Supreme Court of the United States to affirm that,”; he said.

Meheula said the hope is that the U.S. Supreme Court will ”;see through the governor's smokescreen”; and not issue a ruling that would jeopardize native Hawaiian claims to the land.



Gov. Linda Lingle's administration is asking the U.S. Supreme Court to overturn a Hawaii Supreme Court decision on Jan. 31, 2008. Here is a snapshot of the case.


Hawaii Supreme Court

In a 5-0 decision, Chief Justice Ronald Moon wrote that the state cannot sell or transfer an estimated 1.2 million acres of ceded lands held in trust by the state until native Hawaiian claims to the lands are resolved. The decision was that the 1993 Apology Resolution by Congress and state laws establish the state's fiduciary duty to preserve the lands until the resolution of the native Hawaiian claims. The court granted an injunction halting any sale or transfer until the resolution.


State of Hawaii

Argument: The state should have clear legal title to the ceded lands for the benefit of all the people of the islands. The Hawaii Supreme Court misinterpreted the Apology Resolution, which was “;a statement of regret.”; It does not change previous laws that includes the U.S. government getting clear title to the lands upon Hawaii's annexation in 1898 and the transfer of those lands to the state upon statehood in 1959.

Request: The U.S. Supreme Court should set aside the Hawaii court's ruling banning sales and transfer and order the Hawaii court to dissolve the injunction.


OHA and four native Hawaiians

Argument: The Hawaii court relied on state laws and the Apology Resolution for its factual findings that native Hawaiians have “;unrelinquished claims”; to ceded lands. The Hawaii justices also recognized that the state constitution mandates that the state hold ceded lands in trust “;for native Hawaiians and the general public.”; It would be a breach of the state's fiduciary duty to sell or transfer the lands until the claims by native Hawaiians, who are among the beneficiaries of the lands, are resolved.

Request: The U.S. Supreme Court should dismiss the state's petition challenging the Hawaii Supreme Court decision.



The U.S. Supreme Court case involving the Hawaii Supreme Court's ruling on ceded lands has drawn nationwide attention. Gov. Linda Lingle's administration wants the justices to overturn the state court's decision halting the transfer or sale of ceded lands until native Hawaiian claims to the lands are resolved. The Office of Hawaiian Affairs defends the state court's decision. Friends-of-the-court briefs for both the state and OHA have been filed with the U.S. Supreme Court.



Groups that support the state's position:

» U.S. government

» Thirty-two other states — Alabama, Alaska, Arizona, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Nebraska, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Utah, Vermont, Washington, Wyoming

» Center for Constitutional Jurisprudence

» Pacific Legal Foundation, the CATO Institute, Center for Equal Opportunity

» Mountain States Legal Foundation

» Grassroots Institute of Hawaii, Southeastern Legal Foundation Inc.


Groups and individuals who oppose the state's position:

» Alaska Federation of Natives Inc.

» Equal Justice Society, Japanese American Citizens League

» Abigail Kinoiki Kekaulike Kawananakoa

» National Congress of American Indians

» Hawaii congressional delegation — Sens. Daniel Inouye and Daniel Akaka, Reps. Neil Abercrombie and Mazie Hirono

» Former Gov. John Waihee, former Chief Justice William Richardson, Senate President Colleen Hanabusa

» Native Hawaiian Legal Corp., Association of Hawaiian Civil Clubs, Hawaii Maoli, Native Hawaiian Chamber of Commerce, 'Ilio'ulaokalani Coalition, Council for Native Hawaiian Advancement, I Mua Group

» Asian American Justice Center, National Coalition for Asian Pacific American Community Development Inc., Organization of Chinese Americans Inc., Asian Law Caucus, Asian American Institute, Asian and Pacific Islander American Health Forum, Asian Pacific American Legal Center

» Sovereign Councils of the Hawaiian Homelands Assembly, Na A Ahuhiwa, Native Hawaiian Bar Association, Hui Kako o Aina Ho o Pulapula, Ahahui O Hawaii

» Native Hawaiians Samuel L. Kealoha Jr., Virgil Emmitt Day Jr., Patrick Kahawaiolaa, Josiah L. Hoohuli, Mel Hoomanawanui