High court restricts sale of ceded lands

The state cannot sell or transfer ceded lands, those formerly owned by the Hawaiian monarchy, until native Hawaiian claims to those lands are resolved, the Hawaii Supreme Court ruled unanimously yesterday.

The ruling does not affect the proposed $200 million settlement over ceded-lands revenues that the Office of Hawaiian Affairs and Gov. Linda Lingle announced earlier this month.

But it does point to the need for a native Hawaiian government to claim compensation or return of the lands that were taken by the U.S. and transferred to the state after the 1893 overthrow of the Hawaiian monarchy, said Office of Hawaiian Affairs Chairwoman Haunani Apoliona.

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The Hawaii Supreme Court ruled yesterday that the state, as trustee of lands formerly belonging to the Hawaiian monarchy, cannot sell or transfer those ceded lands to third parties until claims of native Hawaiians to those lands are resolved.

Yesterday's 5-0 ruling overturns previous lower court judgments and orders the state Circuit Court to issue an injunction to prevent the state from disposing of ceded lands to third parties.

"That's great news. That's really great news," said Jonathan Osorio, a native Hawaiian trust beneficiary and one of the plaintiffs in the case. "It really reinforces what we were saying all along."

The Office of Hawaiian Affairs and its board of trustees are also plaintiffs in the case.

"This is a landmark decision on behalf of Hawaiians," said Haunani Apoliona, OHA board chairwoman.

State Attorney General Mark Bennett is critical of the ruling.

"I believe the court's determination is wrong," he said. "We are still looking at it and reviewing it. It is disappointing, and on the law, I think, it is incorrect."

The ruling has no effect on the proposed settlement OHA and Gov. Linda Lingle announced earlier this month because the proposal would involve past and current ceded-lands revenue that is in dispute, Apoliona said. Yesterday's ruling, however, keeps intact whatever lands were taken following the 1893 overthrow of the Hawaiian monarchy for native Hawaiians to seek their return or compensation.

"This suggests an urgency for the creation of a native Hawaiian government so it can negotiate with the state and federal governments," Apoliona said.

The case started in 1995 when the plaintiffs filed an injunction to stop the state from transferring ceded lands on Maui and the Big Island from the Department of Land and Natural Resources to the predecessor of the state Housing and Community Development Corporation of Hawaii to develop low-cost housing.

Two years earlier, Congress adopted the Apology Resolution that stated the overthrow of the kingdom of Hawaii was illegal, that the taking of the kingdom lands was without consent or compensation and that the indigenous Hawaiian people never directly relinquished their claims over their national lands to the U.S.

The injunction specifically sought to prevent the transfer of a 500-acre parcel on Maui identified as Leialii.

By the time OHA and the other plaintiffs filed their lawsuit, DLNR had already transferred the land, and the state housing agency had sent OHA a check for 20 percent of the fair market value of the land as its share according to state law.

The state housing agency decided to stop work on the project, but it had already invested $31 million in Leialii for roadways, utilities, lighting poles, sewer hookups and some landscaping.

During the years, the plaintiffs agreed to remove some of the Leialii lands from the dispute so the state could transfer them to the state Department of Hawaiian Home Lands to provide housing for native Hawaiians, Apoliona said.