Tag: Leiali’i

Setting the record straight about the sale of ceded lands

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.

State of Hawai’i v. OHA: Showdown in Washington, D.C.

By: TRUSTEE ROWENA AKANA

Source: March 2009 Ka Wai Ola o OHA Column

`Ano`ai kakou…  In 1994, OHA joined Pia Thomas Aluli, Jonathan Kamakawiwo’ole Osorio, Charles Ka’ai’ai and Keoki Kamaka Ki’ili in suing the State of Hawai’i to prevent it from selling ceded lands.  At that time, the State was about to sell nearly 500 acres in Lāhaina in a project called Leiali’i and another 1,000 acres in Kona in a project referred to as La’i’ōpua.  The lawsuit argued that the State, as trustee of the ceded land trust, should not sell ceded lands until Native Hawaiian claims to ceded lands had been resolved.

In 2002, Circuit Judge Sabrina McKenna ruled in favor of the State and held that the State was authorized under the Admission Act to sell ceded lands.  Then, in January, 2008, the Hawai’i Supreme Court, in a unanimous decision, reversed the lower court decision, and held that in light of the Apology Resolution and similar State legislation, the State possessed a fiduciary duty to preserve the corpus of the Public Land Trust, specifically, the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved.

The Lingle administration appealed to the U.S. Supreme Court and in October of 2008, the court said it would hear the case.  OHA has asked the Lingle administration to withdraw its appeal to the U.S. Supreme Court, but they refused to budge.  Oral arguments before the court in Washington, D.C., are scheduled for February 25, 2009.

The Supreme Court will specifically look at whether the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893, Overthrow of the Kingdom of Hawaii strips the State of Hawaii of its authority to sell lands ceded to it by the federal government until it reaches a political settlement with the Native Hawaiians about the status of those lands.

The stakes could not be higher for us since the U.S. Supreme Court could rule that all ceded lands are the property of the State of Hawaii and end up undermining all Native Hawaiian programs and assets as well as the legal basis for federal recognition.

What could possibly be motivating Governor Lingle to want to sell ceded lands?  Why can’t she just offer 99-year leases like the provisional and territorial governments after the overthrow?  A cynical person might conclude that it must have something to do with her political career.  It’s also not hard to imagine that the urgent move to sell ceded lands is probably motivated by developers who are promising great things for her political future.

It is also shameful that the State of Hawaii has to rely on native lands in order to continue operating.  It has been far too easy for this state to rob our native resources to balance its budget.

Thankfully, OHA will not be alone in Washington.  Among those filing legal briefs in opposition to the Lingle administration’s appeal are:  Abigail Kawananakoa, former Gov. John Waihee, former Hawai’i Supreme Court Chief Justice William Richardson, Senate President Colleen Hanabusa, the entire Hawai’i congressional delegation, the Equal Justice Society, the Japanese American Citizens League, and the National Congress of American Indians.

Most of the briefs ask the U.S. Supreme Court to not hear the case, arguing that it is better to deal with the issue at the state level.  Others argued that the court shouldn’t get involved since there wouldn’t be a substantial federal impact.  The briefs also argue that the Hawai’i courts did not say that the Apology Resolution itself provided us with any rights or claims, but it did recognize that we have unrelinquished claims over the ceded lands and that it foresaw our future reconciliation of those claims with the state and federal governments.

Abigail Kawananakoa wrote that “The State of Hawai’i has trust obligations to Native Hawaiians that are in the process of being reconciled by the nonjudicial branches of government.  The trust and moral obligations of the State of Hawai’i arise from Hawai’i’s complex history.”

Equal Justice Society and Japanese American Citizens League wrote that since the U.S. has admitted that the 1893 overthrow was illegal, “the ceded lands hold unique cultural, spiritual and political significance for the Native Hawaiian people — they are not fungible or replaceable.”

The U.S. solicitor general and attorneys general for 29 states have filed briefs in support of Governor Lingle’s position.  The briefs argue that the Hawai’i Supreme Court misinterpreted the Apology Resolution and that preventing a state from selling, transferring or exchanging state lands would hurt not only the state but also all of its citizens.

The Native Hawaiian Caucus of the Hawaii State Legislature is trying to head-off the U.S. Supreme Court’s February 25th hearing by quickly passing a law that would stop all sales of ceded lands.  Senate President Hanabusa has even proposed a compromise that would allow the sale of ceded lands, but only with the approval of two-thirds vote of both the State House and State Senate.

All of the OHA trustees have been encouraged to attend the oral arguments and I am planning to attend.  I have no doubt that we will prevail because I believe the US Supreme Court will clearly see that the Governor Lingle’s claims are not only historically wrong but also morally bankrupt.  Aloha Ke Akua.

Clouded Title Begs for Moratorium

By Trustee Rowena Akana
August 28, 1995

The apology resolution signed by Congress and President Clinton directs the Federal government to come to terms with the “ramifications” of the overthrow of Queen Liliuokalani. Among those “ramifications” are questions of the ownership and management of the former Crown Lands. From the overthrow in 1893, until the recent opinion by state Attorney General Margery S. Bronster authorizing the sale of public trust lands, each new link of the chain binding title of the ceded lands to the State of Hawaii binds the state to a legal fiction. Attorney Hayden Aluli is right to warn “buyer beware,” for a variety of legal and historical reasons.

The 1893 overthrow broke an 1849 treaty of “perpetual peace and amity” between the United States and the Kingdom of Hawaii. The landing of 162 fully armed marines with field artillery by Minister Stevens violated article six of the United States constitution, which states that “treaties shall be supreme law of the land.” President Cleveland and leading members of his administration clearly recognized that the Provisional Government had no existence beyond that granted by Minister Stevens, acting in his official capacity. Secretary of State Gresham concluded that “the legitimate government was in full possession and control of the palace, the barracks and the police station” when Minister Stevens recognized the paper government of Sanford Dole and Lorrin Thurston.

Queen Liliuokalani yielded authority to the United States, not to the Provisional Government. Most likely, she anticipated a repeat of 1843 when the Hawaiian sovereign temporarily yielded power to an overzealous British representative, whose government firmly disavowed his actions immediately upon learning of them and reinstated the King to his full power. Because at no time did the Queen yield to the Provisional Government, the islands remained under the temporary jurisdiction of the United States, invalidating the claims of the Provisional Government that Federal orders to reinstate Queen Liliuokalani equalled an “inadmissible interference in the domestic affairs of Hawaii.”

The Republic of Hawaii never became sovereign either. In spite of feeble attempts to dress the Republic of Hawaii in the trappings on constitutional and democratic legitimacy, they never achieved a status of sovereign consistent with international law. When President Dole convened a Constitutional Convention in 1894, he took the precaution of personally appointing a majority of the 37 delegates by himself. Candidates for the remaining slots, as well as all voters, had to take an oath of allegiance to the Provisional Government and not to the Queen. Less than 20% of previously qualified voters bothered to participate in this election, indicating a far narrower base of popular support than that called for by international law.

A principle of international law know as the “unequal treaty doctrine” states that treaties imposed on weaker states by stronger ones with coercion and the threat of force are voidable according to international law, as defined in such documents as the Covenant of the League of Nations, the Charter of the United Nations and the Vienna Convention on the Law of Treaties. According to this idea, the Newlands Resolution annexing Hawaii is a violation of international law.

The Court of Claims ruled against Queen Liliuokalani in the case of Liliuokalani v. United States thwarting her attempt to recover the Crown Lands. If, as the court ruled, title to the ceded lands vested with the office of the sovereign and not with the person, then the highly suspect transfer of political power makes their title all the less secure, and would imply that the entire body of lands remain recoverable by a reinstated sovereign Hawaiian government.

The many legal and historical events listed above are just some of the reasons that title to the ceded lands remains highly clouded today. Even if, for the purposes of argument, the state is considered to hold secure title as trustees of the ceded lands, the history of the implementation of Public Land Trust responsibilities is not a happy one. Countless examples can be found of breach of the trust provisions laid out in the Newlands Resolution, the Organic Act, the Hawaiian Homes Commission Act, the Admission Act and the 1978 amendments to the State Constitution that came out of the Constitutional Convention.

We all know the unfortunate attitude of the executive branch towards ceded land entitlements and what a burden Governor Cayetano thinks they place on the state. A pending court case on the Leiali’i housing development near Lahaina will soon reveal the attitude of the judicial branch as well. We also know, from the introduction of Representative Say’s bill to end ceded land revenues to the Office of Hawaiian Affairs and from the early demise of two bills proposing a limited moratorium on the sale and lease of ceded lands, that the legislative branch is not too keen on entitlements either. The time has come for everyone interested in preserving the integrity of the ceded lands to urge their legislators to move a moratorium bill next year, until questions of legal title and the relationship of the lands to a future sovereign entity are finally settled.