Posted by: austronesia | December 5, 2008

State Taking New Tack in Ceded Lands Battle

State taking new tack in ceded-lands battle

Lingle administration will ask Supreme Court to halt Hawaiian claims

 By Gordon Y.K. Pang
Advertiser Staff Writer

The Lingle administration will argue before the U.S. Supreme Court that Native Hawaiians do not have an ownership claim to land that belonged to the Hawaiian government prior to its overthrow in 1893.

News of the legal brief filed by state Attorney General Mark Bennett on Thursday in the state’s case against the Office of Hawaiian Affairs did not sit well with Native Hawaiians gathered at Central Union Church yesterday for a swearing-in and investiture of OHA trustees.

“It’s a pretty immoral position for the governor to take,” said Bill Meheula, an attorney representing OHA in the case.

At issue are 1.2 million acres of ceded lands once owned by the Hawaiian monarchy which were taken by the provisional Hawaiian government following the overthrow of the monarchy. Those lands were then handed over to the U.S. government when Hawai’i became a U.S. territory, and finally the state of Hawai’i in 1959.

In 1993, the U.S. Congress approved an apology to Native Hawaiians for the federal government’s role in the overthrow of the Kingdom of Hawai’i. The apology, signed into law by President Clinton, called for Congress to support reconciliation between the nation and Native Hawaiians.

“Now the governor is telling all Hawaiians, ‘You don’t have a claim to the ceded lands even though the overthrow was illegal,’ ” Meheula said.

In an e-mailed statement last night, Gov. Linda Lingle’s office said, among other things, that:

# The Hawai’i Supreme Court erred as a matter of law in finding that the 1993 Congressional Apology resolution either changed the legal landscape in any way, clouded the state’s title to the state’s public trust lands, or forbade the state from selling or transferring those lands to fulfill any one or more of the purposes set out in the 1959 Hawaii Admission Act;

# And that as a matter of law, the state’s title to its lands is unchallengeable in the courts.

The state previously had argued that it has the authority to manage the ceded lands, but did not argue for ownership rights, as Bennett’s new brief does, Meheula said.

“They are seeking a ruling from the United States Supreme Court that Native Hawaiians have no claim to the ceded lands,” he said.

The Hawai’i Supreme Court, in a unanimous ruling on Jan. 31, stopped the state from selling or exchanging ceded lands until Hawaiian claims to those lands are resolved. Bennett hopes the U.S. Supreme Court will reverse that ruling, arguing that Hawaiians have no claim to the land, Meheula said.
mounting tension

There has been growing friction between the Native Hawaiian community and the Lingle administration over the ceded lands ownership issue. Last week, several hundred Native Hawaiians protested at the state Capitol against the administration’s decision to appeal the state Supreme Court ruling.

That ruling stemmed from a 1994 lawsuit brought by OHA and four Native Hawaiians against the state seeking to stop the sale of homes that were about to be developed by the state on 1,500 acres of ceded lands on Maui and the Big Island.

Native Hawaiians believe that they have a claim to at least a share of the lands. OHA and the other plaintiffs argued that the 1993 Apology Resolution and subsequent action by the state Legislature effectively bar the state from selling or transferring ceded lands to an outside entity until “unrelinquished claims” regarding compensation for the use of those lands are resolved.

The Hawai’i Supreme Court decided in OHA’s favor and issued an injunction barring the state from selling ceded lands until Hawaiian claims are extinguished.

Bennett’s filing, however, suggests no such claims exist. The brief cites the Newlands Resolution, an 1898 Congressional act that led to Hawai’i’s annexation and the establishment of Hawai’i as a territory.

The Hawai’i Supreme Court “enjoined any sales of the ceded lands on the theory that title might actually belong not to the state, but to ‘the Native Hawaiian people,’ ” the brief said. “But that legal theory runs headlong into the Newlands Resolution, which vests absolute and unreviewable title in the United States; the Organic Act of 1900, which confirms the extinguishment of any Native Hawaiian or other claims to the ceded lands; and the Admission Act of 1959, which transfers to the State the same absolute title previously held by the United States.”

Further, the brief said: “This body of federal law forecloses any competing claims to the ceded lands, such as those respondents present here.”

Said Meheula: “They’re saying that under the Newlands Resolution, regardless of the fact that the overthrow was illegal, and regardless of the statements in the (1993) Apology Resolution (that) the overthrow was illegal and Native Hawaiians have an unrelinquished claim to the ceded lands, that it doesn’t matter. (They’re saying that) the state of Hawai’i and the United States have perfect title.”
OHA’s take

In a statement issued yesterday, OHA said: “Both the state of Hawai’i and the Congress have recognized that the overthrow of the independent Kingdom of Hawai’i was illegal and the taking of the lands of the Hawaiian people was without their consent and without compensation.”

It added: “OHA is very disappointed in the state administration for bringing this appeal and for the arguments made in the brief. OHA believes that selling of the ceded lands during the reconciliation process would constitute bad faith by the state of Hawaii.”

Lilikala Kame’eleihiwa, a professor at the Center for Hawaiian Studies at the University of Hawai’i-Manoa, said it is “ridiculous and outrageous” for the state to claim OHA has no right to ceded lands.

Kame’eleihiwa called for Lingle’s impeachment.

“This is against all the agreements that we’ve had with Gov. Lingle about ceded lands and this is a way to undercut our rights to ceded lands,” Kame’eleihiwa said.
administration’s take

In its e-mailed response, Lingle’s office goes on to say that the state does not argue in its brief that monies and lands conferred upon Native Hawaiians by the Congress and the state Legislature have been sufficient, but rather that the amount and nature of such monies and lands is up to the Congress and the state Legislature to determine, and not the courts.

Under the law, the state’s public trust lands belong to the state, held in trust to benefit all Hawai’i’s people — Native Hawaiian and non-Native Hawaiian alike, the statement said. It is hoped that the U.S. Supreme Court will make clear that Congress did not take from Hawai’i in 1993 any of the rights it granted Hawai’i in 1959, the statement said.

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.

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