By: OHA TRUSTEE ROWENA AKANA
Source: November 2009 Ka Wai Ola o OHA Column
On July 15, 2009, OHA, three individual Native Hawaiian Plaintiffs, and the State jointly filed a motion to dismiss the 14-year-old OHA v. HHFDC case, which involves a tract of former crown (ceded) land on Maui, now known as the “Leiali’i parcel.” OHA sued the state to stop the state from selling the ceded land. Fellow plaintiff Professor Jonathan Kamakawiwo’ole Osorio was the only plaintiff who did not join the motion to dismiss the case.
OHA only agreed to dismiss the 14-year-old case after Act 176 (2009) became law after this past legislative session. The new law will make it extremely difficult for the state to sell ceded lands. While Act 176 is not as all inclusive as a full moratorium, it nonetheless provides a high bar for the sale of any ceded lands.
There is now a process for the state to follow to get permission to sell ceded lands. Act 176 assures that Native Hawaiians will have many opportunities to participate in that process, including community meetings. There is also a higher standard of 2/3 legislative vote (of each house) for any ceded lands to be sold.
While OHA simply asked that the case be dismissed without prejudice, the State, represented by Attorney General (AG) Mark Bennett, filed a Motion to Dismiss that went much further.
AG Bennett argued that Professor Osorio does not have standing because he is not a Native Hawaiian as defined by the term is used in § 5(f) of the Admission Act and Art. XII, § 4 of the Hawaii Constitution. OHA does not agree with this and explained to the AG that this type of argument should not be made. However, the AG did not change his position. The danger with making this argument in this case is that even if the Hawaii Supreme Court does not dismiss Professor Osorio’s claim on standing grounds, other people may use these statements against OHA and the State in other cases.
OHA also does not agree with the assertions made by AG Bennett that the “Newlands Resolution” gave all of our lands to the United States. AG Bennett wrote that:
- “Pursuant to the Newlands Resolution, the Republic of Hawaii ‘cede[d] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind’ and further ‘cede[d] and transfer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian islands, together with every right and appurtenance thereunto appertaining’ (hereinafter ceded lands). Ibid. The Newlands Resolution further provided that all ‘property and rights in the ceded lands ‘are vested in the United States of America.’”
- “The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in ‘absolute fee’ under that resolution.”
- “The Newlands Resolution and subsequent federal enactments foreclose any theory that native Hawaiians may have legal title or claims to the ceded lands that must necessarily (or can) be protected by injunction.”
- “In the Newlands Resolution, Congress extinguished any such title or claims as a matter of federal law, by accepting the Republic of Hawaii’s cession of these lands and by vesting absolute title to (and ownership of) these lands in the United States.” (NOTE: They of course do not mention that the Republic of Hawaii was an illegal government that had no right to cede any lands.)
- “The Newlands Resolution annexed Hawaii to the United States. It recognized the Republic of Hawaii, accepted the cession ‘and transfer to the United States [of] the absolute fee and ownership of all public, Government [and] Crown lands, and declared that all ‘property and rights’ in the ceded lands had become ‘vested in the United States of America.’”
- “Congress thereafter confirmed that the United States had assumed perfect title to the ceded lands and could use or dispose of them as it deemed appropriate.”
On August 6, 2009, Professor Osorio submitted a Memorandum in Opposition to the motion to dismiss the case. In it, Professor Osorio asserts that:
- OHA “has breached its fiduciary duty to beneficiaries by abandoning the lawsuit.”
- That “[u]ndisputedly, the ideologies of race and eugenics are the genesis of the 1920 Hawaiian Homes Commission Act’s division of the Native Hawaiian people into those of 50% blood or more Hawaiian blood, and those without… It would appear the State’s memorandum that those ideological constructs necessary to reduce the number of potential beneficiaries are alive and well.”
- That during the many years of litigation, there has never been a distinction between Native Hawaiians and that is and should be the law of this case.
- That the Akaka bill will pass and the State will use arguments similar to the ones in this case to contend that Native Hawaiians have no claims to the ceded lands and that a “dismissal in this case will undermine the legal and historical bases upon which Native Hawaiians will rely in those negotiations.”
My hope is that the above information will help to clarify all of the different positions regarding the OHA v. HHFDC case. The State and Osorio have made very negative statements against each other in the media. OHA has not been involved in the “name-calling” other than refuting Osorio’s accusation that OHA breached its fiduciary duty. OHA’s continuing position is to dismiss the case without prejudice.
The danger in Professor Osorio continuing this case is the possibility that the Hawaii Supreme Court might rule that he has no standing to pursue this case because he does not have a 50% native Hawaiian blood quantum. This would seriously damage all of the progress that has been made to establish that there is no difference in a 50% blood quantum Hawaiian and those of us with less that 50%. Until the next time. Aloha pumehana.