Hawaii v. OHA: We're all in this together


POSTED: Sunday, April 05, 2009

In between the hand wringing, the finger pointing and protesting after last Tuesday's U.S. Supreme Court decision in Hawaii v. OHA, No. 07-1372, we need to take a deep breath, a step back and reflect on what the court's decision really means. Several major points need to be recognized.

The Office of Hawaiian Affairs filed the lawsuit and started this process that resulted in the Supreme Court's decision. In advising my clients about filing a lawsuit, I tell them there are generally three possible outcomes. You could win, you could lose or you could settle the lawsuit.

After years of neglect by prior governors, the Lingle administration reached a historic settlement with the OHA trustees. After agreeing to the settlement, OHA got an earful from its beneficiaries who weren't consulted and didn't agree to the settlement. As a result, OHA reneged on the settlement and decided to pursue its lawsuit against the state.

Last week's decision was unanimous. Justices from all political perspectives, expansive to strict constructionist, agreed on the reasoning and outcome of the decision. This is important because despite the temptation to blame this decision on “;politics,”; there was nothing political about it. The court's decision was clear, concise and narrow in its application.

The easiest point that the court decided was that the Apology Resolution of Congress was simply an apology without any reparations or binding legal effect. That language was clear from its own text. No surprises there.

The court also decided the legal implications of Hawaii's annexation and statehood. Upon annexation, whether you agree with what happened and how it happened or not, the United States received clear title over former crown lands. Upon statehood, the U.S. government, as a “;cosovereign”; gave clear title over the “;ceded”; lands to our state government. Our state Constitution and laws govern what our state government may do with those lands.

But the most striking part of the decision was contained in the last paragraph. Basically, the court said that we, as the citizens of this state, regardless of heritage, have a role to play in “;an issue that is of great importance to the people of the state.”; In the ongoing debate about Hawaiian sovereignty, it is something that we, all of us, have input into and have the opportunity to participate in.

Many people I know consider the Akaka Bill and the sovereignty issue as unique to the Hawaiian community and have stayed on the sidelines of this debate. In Tuesday's decision, the U.S. Supreme Court, clearly and from opposing political points of view, told us that kind of thinking is wrong. The court is telling us that we're all in this important, exciting and unique political discussion, together. I welcome that opportunity.


Ted Hong is a Hilo attorney. He previously served as Honolulu deputy city prosecutor and as chief labor negotiator during Gov. Linda Lingle's first term.