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Let Akaka Bill reconcile ceded lands issue


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POSTED: Thursday, May 07, 2009

A dispute about ownership of Hawaiian ceded lands that went all the way to the U.S. Supreme Court has resulted in a settlement that should have been reached long ago. The final resolution of the issue should be achieved in negotiations resulting from enactment of U.S. Sen. Daniel Akaka's Hawaiian sovereignty bill.

The high court ruled unanimously in March that the congressional Apology Resolution of 1993 for the overthrow of the monarchy does not block sales or transfers of former crown land that was taken over by the federal government and ceded to Hawaii at statehood.

Intrinsic to the settlement between the state and the Office of Hawaiian Affairs, the chief plaintiff in the case, is the Legislature's enactment of Senate Bill 1677 that provides for a freeze on land transfers unless approved by a two-thirds vote of both chambers. Such a land-transfer vote is not foreseen.

Gov. Linda Lingle should sign the bill into law, having agreed that decisions about state lands are “;absolutely in the Legislature's authority.”; Her administration has no wish to sell or transfer any parcel of the 1.2 million acres, which encompass 29 percent of Hawaii's land and virtually all of state-owned land.

The state under the Cayetano administration had planned to develop 500 acres of ceded land on Maui as residential housing. OHA rejected a compensating check for nearly $5.6 million, about 20 percent of the land's value, and challenged the land transfer. The Admission Act of 1959 provides that one-fifth of benefits from ceded land be dedicated to improving conditions for native Hawaiians.

The federal high court overruled the state Supreme Court's ruling that the Apology Resolution calls for the preservation of ceded lands until “;a proper foundation for reconciliation”; can resolve the issue of property claims. However, the reconciliation still should be provided by the Akaka Bill; the last two congressional elections and President Barack Obama's endorsement virtually assure its enactment.

Without the settlement, the federal high court's ruling would have returned the case to the state courts, where OHA would have maintained rights according to state statutes, as suggested by the federal justices. The issue of whether those laws are unconstitutionally discriminatory would have been argued at that level. The issue will be eliminated only after the Akaka Bill provides Hawaiians the same tribal status as indigenous peoples on the mainland.

In creating a framework for a native Hawaiian government, the Akaka Bill would authorize it to enter into negotiations with the state and federal governments. The issue of claims to ceded lands, including the validity of the Admission Act's provision, is certain to be at the top of the agenda.