Some Hawaiians are overly pessimistic in protesting a move to reverse a court decision that now blocks the state from transferring or selling virtually any state-owned land. The likelihood is that such a ruling would have a brief and limited effect, as the issue of what to do with state lands once owned by the Hawaiian monarchy ultimately - and shortly - should be decided in negotiations between Hawaiians and the state.

When Hawaii became a state, Congress gave it “;title”; to the ceded lands - the 1.2 million acres of crown land taken over by the federal government and amounting to nearly all state-owned land. The only caveat was that the land or income from it be directed at five purposes, one of which was “;betterment of conditions for native Hawaiians.”; Thus, the state provides the Office of Hawaiian Affairs 20 percent of the profits from ceded land.

However, the 1993 Apology Resolution approved by Congress said the ceded land should be “;preserved”; until “;a proper foundation for reconciliation between the United States and the native Hawaiian people”; is achieved. That should occur following enactment of the Hawaiian sovereignty bill, expected early in the next Congress with the support of President-elect Barack Obama.

In February, the state Supreme Court interpreted the Apology Resolution, which as a joint resolution has the force of law, as a ban on the sale or transfer of ceded land. Chief Justice Ronald Moon wrote that the resolution “;dictates that the ceded lands should be preserved pending a reconciliation between the United States and the native Hawaiian people,”; even though it does not explicitly say that.

The state high court implemented that interpretation by blocking the transfer of a Maui plot to the state affordable housing agency, even with the payment of $5.8 million to OHA as one-fifth of the property's value. OHA had rejected the offer and took the state to court, and the U.S. Supreme Court has agreed to hear the case in the current session.

Hawaiian groups protesting the state's position expressed concern that overturning the state court's ruling could go the extra mile in deciding whether OHA unconstitutionally discriminates by giving benefits to Hawaiians only.

The Supreme Court already has ruled that Hawaiians lack the legal standing of American Indian tribes by ruling in 2000 that the Hawaiians-only restriction in voting for OHA trustees was unconstitutional racial discrimination. Enactment of the sovereignty bill sponsored by Sen. Daniel Akaka would settle the issue essentially by giving Hawaiians tribal status.

An absolute freeze on transfer or sale of state lands would hinder important uses of parcels of land for public purposes while waiting for the Akaka Bill to be enacted and ceded land negotiations to go forward.