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Ceded land case should lead to fair allocation


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POSTED: Friday, February 27, 2009

Justices of the U.S. Supreme Court gave every indication through their questioning of lawyers this week that they will overturn the state high court's freeze on the transfer or sale of ceded lands by the state. What looks to be an end to the 14-year court battle should lead to fair negotiations following establishment of Hawaiian sovereignty.

In last year's decision banning the state's transfer of lands that were ceded back to the state when it was admitted to the union, Hawaii Chief Justice Ronald Moon wrote that the 1993 joint resolution by Congress apologizing for the overthrow of the kingdom “;dictates that the ceded lands should be preserved”; until reconciliation is achieved.

The Apology Resolution says nothing of the kind. “;Now I have read this Apology Resolution about six times, and I certainly didn't see anything like that,”; remarked Justice Stephen Breyer. Justice Ruth Bader Ginsburg said Hawaii's Supreme Court used the Apology Resolution as a federal “;crutch”; in the absence of any state directive.

Describing the word “;dictates”; as “;very fear language,”; Ginsburg questioned whether the Apology Resolution “;is distinguishable in any way”; from President Gerald Ford's 1976 proclamation that the World War II internment of Japanese-Americans was “;wrong.”; That proclamation “;had no substantive effect, “; she noted, until Congress passed legislation providing compensation to internees in 1988.

Ginsburg and Breyer are part of the court's liberal bloc considered to be most sympathetic with Hawaiian claims. Ginsburg cast one of the two dissenting votes in the court's 2000 ruling that struck down the Office of Hawaiian Affairs' Hawaiians-only voting for OHA trustees.

State Attorney General Mark Bennett was correct in telling the justices that “;perfect title”; to the 1.2 million acres of land was transferred to the federal government upon annexation and then ceded to the state in 1959. However, the Admission Act provided that ceded lands and derivative income must be devoted to five purposes, one of which is the betterment native Hawaiians.

In compliance with that provision, the state wrote a check to OHA in 1995 for nearly $5.6 million, one-fifth of the value of 500 acres of ceded land on Maui to be developed as residential housing. OHA rejected the check for the land and filed the lawsuit that was the subject of Wednesday's argument before the Supreme Court.

With the expected enactment of Sen. Daniel Akaka's bill to observe Hawaiian sovereignty and subsequent creation of a Hawaiian sovereign entity on the horizon, OHA hopes for a ruling to provide leverage in negotiations over land ownership. Adherence to the spirit of the Admission Act alone should give it the leverage that is needed for a fair settlement of land and its value.