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Ceded lands ruling creates quick need for sovereignty


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POSTED: Wednesday, April 01, 2009

THE U.S. Supreme Court's rejection of claims that a congressional apology for the overthrow of the Hawaiian monarchy prohibits public land transfers in Hawaii will return the case to state courts. The ruling should expedite enactment of Hawaiian sovereignty legislation to allow negotiations of land issues to proceed.

The high court's unanimous ruling that the congressional Apology Resolution of 1993 does not block sales or transfers of ceded lands was not surprising. The 1.2 million acres of former crown land taken over by the federal government and ceded to Hawaii at statehood encompasses 29 percent of Hawaii's land and virtually all of state-owned land.

When the state tried to develop affordable housing on 500 acres of ceded land on Maui, the Office of Hawaiian Affairs rejected a check of nearly $5.6 million. The offer was in compliance with the Admission Act's provision that the benefits from ceded land be dedicated, in part, to improving conditions for native Hawaiians.

The state Supreme Court ruled last year that the Apology Resolution “;dictates that the ceded lands should be preserved”; until “;a proper foundation for reconciliation”; of land issues between the state and native Hawaiians can be resolved. That will occur after a Hawaiian entity is established following enactment of a Hawaiian sovereignty bill sponsored by Sen. Daniel Akaka.

However, the federal high court pointed out that the state court was relying on “;whereas”; clauses in the preamble to the Apology Resolution, which “;cannot bear the weight”; that the Hawaii court placed on them. Even if they could, Justice Samuel Alito wrote in the court's opinion, the resolution “;reveals no indication”; that the resolution was intended to amend or repeal the 1959 transfer to the state of land that had been held “;in absolute fee”; by the United States.

When the case arrives back in Hawaii's courts, state law will be cited. It could include a Senate-approved freeze on ceded land transfers now pending in the House.

But that could pose other problems. In opposing the bill, Attorney General Mark Bennett testified that such a moratorium on land transfers “;raises the potential for additional federal court lawsuits.”; Foremost would be a challenge that it would violate the 14th Amendment protection against racial discrimination.

The U.S. Supreme Court ruled in 2000 that the Hawaiians-only voting provision in elections of OHA trustees was unconstitutionally discriminatory. The ruling is bound to be cited in challenging a land-transfer moratorium intended for the ultimate benefit of Hawaiians.

That is why enactment of the Akaka Bill is necessary, since it would give Hawaiians the same tribal status as indigenous peoples on the mainland, overcoming challenges alleging racial discrimination.