Stop the Selling of Ceded Lands
By Derek Kauanoe
State of Hawaii v. the Office of Hawaiian Affairs is a high-stakes case that is pending at the U.S. Supreme Court that will undoubtedly affect the Native Hawaiian community's claims to the so-called "ceded" lands. Ceded lands are the Crown and Government lands of the Hawaiian Kingdom. Crown lands belonged to the Monarch specifically and the Government lands belonged to the Hawaiian Kingdom government generally.
The Hawaiian Kingdom had three branches of government, the Executive (the Monarch), the Legislature (House of Nobles and Representatives of the People), and the Judiciary (the Hawaiian Kingdom Supreme Court and lower courts). In the 1993 Apology Resolution, Congress recognized that these lands were transferred to the U.S. federal government in 1898 from the Republic of Hawai'i, without the consent of (and without compensation to) the Native Hawaiian people or their lawful government. It is important to realize that these "ceded" lands are often also called "stolen" lands. This case began in 1994 when the Office of Hawaiian Affairs and four individual plaintiffs sought to stop the state from selling ceded lands by filing suit in the state court system.
Nearly fourteen years later, on January 31, 2008, the Hawai'i Supreme Court ruled unanimously that the State of Hawai'i could not sell ceded lands until the unrelinquished claims of Native Hawaiians were resolved. This Hawai'i Supreme Court ruling overturned a lower court ruling. In reaching its decision, the Hawai'i Supreme Court looked at Hawai'i state law (laws passed through the state legislature and case law) and also referred to the 1993 Apology Resolution that provided a factual background for understanding the facts of the ceded lands case. In the Apology Resolution and state legislation, both the federal and state governments recognized that Native Hawaiians have unrelinquished claims.
On April 30, 2008, Hawai'i Attorney General Mark Bennett filed a petition at the U.S. Supreme Court requesting the high court to review the Hawai'i Supreme Court ruling, hoping to have it overturned. In essence, Governor Lingle's Administration hopes to have the authority to sell ceded lands without first having to resolve the unrelinquished claims of Native Hawaiians to those lands.
On October 31, 2008, the Supreme Court accepted to review the case. Oral argument at the U.S. Supreme Court is set for February 25, 2009. The high Court is expected to issue its decision on the case possibly in May or June.
The Lingle Administration's actions in this case have disturbed many in the Native Hawaiian community given Governor Lingle's past support of Native Hawaiians. Upon becoming Governor, she restored ceded lands revenues that were "frozen" by the previous governor. She supported Kamehameha Schools' admissions policy giving preference to Native Hawaiians. Lingle has also lobbied Congress to pass legislation that would protect government programs benefiting Native Hawaiians from legal attacks.
Governor Lingle's desire to be able to sell ceded lands without having to resolve Native Hawaiian claims is inconsistent with her support for Native Hawaiian federal recognition. When Indian tribes have pursued federal recognition, it has not been uncommon for tribes to settle claims with state governments. If the State of Hawai'i is allowed to sell ceded lands, the very thing that Native Hawaiians have claims to, without having to first resolve claims with Native Hawaiians, the State could very well sell all those lands (or a substantial amount of those lands) before Native Hawaiians get to the bargaining table with the state government. This was a very big concern of the Hawai'i Supreme Court. The Hawai'i Supreme Court wanted to make sure that Native Hawaiians were on a level playing field with the State of Hawai'i when the two get to the bargaining table to work out these difficult issues.
What may trouble people living in the Pacific Northwest is the position of the State of Washington. Washington's attorney general filed what is called a "friend of the court brief" (amicus brief) in support of the State of Hawai'i. Twenty-eight other attorneys general signed on to support the brief. Although other states may be concerned about their ability to sell state lands, Hawai'i is unlike all the 48 contiguous states and Alaska. As recognized in the Apology Resolution, the Hawaiian Islands comprised the territory of the Hawaiian Kingdom, a recognized independent sovereign state that was unlawfully overthrown with the help of the U.S. military. Washington's attorney general incorrectly argues, in his friend of the court brief, that the Hawai'i Supreme Court's decision if not reversed could affect title to land that other states received when they became a state. However, unlike other states, the State of Hawai`i's Admission Act specifically subjected its lands to trust obligations in favor of Native Hawaiians. No other state's admission act created trust duties in favor of that state's indigenous residents.
Photo by Roy Alameida
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