Bills seek to define ceded lands policy


POSTED: Wednesday, April 01, 2009

Lawmakers are moving forward with a proposal to clarify state policy on the sale, transfer or other use of ceded lands—those once held by the Hawaiian monarchy—after the U.S. Supreme Court sent a case aimed at defining the issue back to the Hawaii courts for more work.

Both the state and the Office of Hawaiian Affairs, which filed the now-14-year-old lawsuit, claimed victory in the case.

Yesterday's unanimous ruling by the nation's high court overturned a Hawaii Supreme Court ruling that blocked the sale of 1.2 million acres of ceded land. Justices said the Hawaii court “;incorrectly”; applied the 1993 Apology Resolution adopted by Congress in its decision and sent the case back for a ruling under state law.

Legislative leaders said the ruling makes it incumbent upon them to define a clear policy on ceded lands.

“;If, as a Legislature, we believe that there should be a new shift in policy or make it clear what our position is on ceded lands, then that's something we will be addressing,”; said House Majority Leader Blake Oshiro (D, Aiea-Halawa).

Senate Hawaiian Affairs Chairman Clayton Hee (D, Kahuku-Kaneohe) said the move was not surprising.

“;It says that the state Supreme Court needs to look at whatever policy is set by the Legislature,”; Hee said.

One measure already advanced by the Senate is Bill 1085, which calls for a five-year moratorium on the sale or transfer of ceded lands to allow time for Hawaiians to settle claims over the land with the state and federal governments. After five years, sales or transfers would require two-thirds' approval by the Legislature.

The bill has stalled in the House, where members are considering a measure that would only require a majority vote of the Legislature—or two-thirds' votes in either chamber—to reject the sale or exchange of ceded land to a non-state entity.

That proposal, S.B. 1677, is scheduled for a hearing before the House Finance Committee at 3 p.m. today.

Attorney General Mark Bennett said the Lingle administration was unlikely to oppose such legislation.

He noted that under yesterday's U.S. Supreme Court ruling, “;the Legislature still retains—under the Admissions Act—the absolute right to choose to utilize the ceded lands and their revenues for the betterment of the condition of native Hawaiians. ... We believe in the Legislature doing that.”;

Bennett and Gov. Linda Lingle claimed victory with the high court ruling, saying it clearly establishes that the Apology Resolution did not change the state's legal rights in any way and that there is no cloud on the state's fee title.

“;I think it settles an issue that's been up in the air for too many decades,”; Lingle said. “;It's, I think, a definitive commentary on the fact that the state of Hawaii did receive these lands with an unclouded title and that it's best for the state of Hawaii because everybody now recognizes that these lands are owned by the state.”;

The Office of Hawaiian Affairs also claimed victory in the case.

OHA Chairwoman Haunani Apoliona said trustees consider the U.S. Supreme Court decision to be a “;favorable one.”;

“;While we would have preferred an outright dismissal of the petition, the result in this case is workable,”; she said. “;We believe that the U.S. Supreme Court clearly indicated that its decision today is not necessarily the end of the line for this case.”;

She said trustees plan to move forward with attempts to reconcile the issue of ceded lands.

“;Tomorrow's another day,”; she said. “;We're not done.”;

OHA attorney Sherry Broder said trustees plan to argue before the Hawaii Supreme Court in support of a moratorium on the transfer of ceded lands based on state law supporting native rights.

One of the laws cited by Broder is a measure that would eventually turn over ceded lands of Kahoolawe to a sovereign entity recognized as representing native Hawaiians.

Bennett said he hopes to meet with OHA attorneys in the coming weeks to discuss the future of the lawsuit, but he stopped short of referring to the proposed meetings as “;settlement negotiations.”;

“;I would hope that there wouldn't be any preconditions on what we could discuss,”; Bennett said, declining to be more specific. “;I'm not going to discuss in advance in public what I plan to talk to them about in private.”;

Hawaiian groups who supported OHA vowed to keep working to lobby lawmakers to pass the ceded lands legislation.

Derek Kauanoe, a spokesman for the Kupu'aina Coalition, noted that the House and Senate already approved a resolution voicing support of OHA's position.

“;Our goal,”; he said, “;is to be part of the discussion on developing legislation that reflects the public policy of the state of Hawaii that's not inconsistent with Gov. Lingle's prior positions on native Hawaiian legal issues.”;

Lingle supports the Akaka Bill granting native Hawaiians federal recognition similar to that of American Indians.

Abigail Kawananakoa, heir to the Kalakaua dynasty, issued a statement saying the U.S. Supreme Court decision is not a defeat for Hawaiians.

“;The case now returns to the Hawaii State Supreme Court, where it should be,”; she said. “;Now we will fight the Lingle administration with every available resource. Until justice is served, our case is not over.”;


Star-Bulletin reporter Gary T. Kubota contributed to this report.