State had no choice on ceded land appeal

THE ISSUE Hawaii is asking the U.S. Supreme Court to overturn a state Supreme Court ruling.

The state Supreme Court's drastic decision in January to block virtually all state-owned land from being sold or transferred needs further review. Attorney General Mark Bennett had no choice but to appeal the ruling to the nation's highest court.

The Lingle administration, including Bennett, has been a strong supporter of Hawaiian sovereignty, and the appeal should not be construed as wavering from that stance. It is aimed at protecting the state from the consequences of a legal ruling that Bennett regards as having "raised grave federalism concerns."

Bennett filed papers with the U.S. Supreme Court this week asking it to overturn the decision by Hawaii's high court, which interpreted the congressional Apology Resolution as requiring the ban on the sale or transfer of state lands once owned by the Hawaiian monarchy. That amounts to 1.2 million acres of former crown land that was taken over by the federal government at annexation and ceded to Hawaii at statehood.

The Office of Hawaiian Affairs' lawsuit challenged the state affordable housing authority's decision to develop 500 acres of ceded land on Maui as residential housing. The state wrote a check for nearly $5.6 million to OHA in compliance with the accepted interpretation of the Admission Act, providing that one-fifth of the benefits from ceded land be dedicated to improving conditions for native Hawaiians. OHA, a state agency, rejected the check, instead taking its parent to court.

In the 1993 joint resolution apologizing for the overthrow of the Hawaiian monarchy a century earlier, Congress called for "a proper foundation for reconciliation between the United States and the native Hawaiian people." In the state Supreme Court's ruling, Chief Justice Ronald Moon wrote that the resolution "dictates that the ceded lands should be preserved" until that reconciliation is achieved, although it does not precisely say that.

Bennett contends that such a barrier surrounding ceded land never was envisioned. He points out that the Admission Act provides that the ceded lands, "together with the proceeds from the sale or other disposition of (ceded) lands and the income therefrom," must be used for five purposes, one of which is the betterment of native Hawaiians -- thus the 20 percent formula.

Reconciliation will occur after Congress approves Sen. Daniel Akaka's Hawaiian sovereignty bill and it is signed into law. The House approved the bill in October but not by enough votes to override an expected presidential veto. The Senate has yet to take action. The state cannot rely on a Democratic victory in November to assure congressional approval and a president's signature.