Tag: Organic Act

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.

Entitlements

By: Trustee Rowena Akana
December 11, 1998

In his inaugural speech on December 7th, Governor Cayetano made a pledge to the Hawaiian community, “…And I pledge here and now that I will leave no stone unturned in settling the state’s differences with OHA over ceded lands. Before the end of my term we will reach a settlement which is fair and just to all, Hawaiian and non-Hawaiian.”

In the short time that I have been the Chairman of the Board of Trustees, I’ve made it clear that one of my priorities is to seek what is fair for our people. We’ve waited much too long for the State and Federal governments to lend credibility to their words. I am hopeful that the governor’s words are not empty words to be added to the pile of rhetoric dating back to the annexation in 1898, when 1.8 million acres of government and crown lands were taken. A Joint Resolution of Annexation provided that money from the ceded lands would be used solely for the benefit of the inhabitants of the Hawaiian Islands. Since that time we have waited for them to make these words credible. Hawaiians can no longer afford to wait for the governments to keep their words. It should be clear to everyone by now that unless we make things happen, waiting cannot be one of our options.

The Organic Act which established Hawaii as a U.S. Territory, also provided that ceded lands would be used for the benefit of the inhabitants of the Hawaiian Islands.

As we work toward achieving fairness from the State in negotiations on the Heely rulings, we must be equal partners in these negotiations.

Some suggest that compromise is the key. I whole-heartedly agree. OHA and its beneficiaries have compromised. That’s why we receive only 20 percent of proprietary revenues instead of 100 percent. That’s why the state forced Act 329 upon the Hawaiians. An Act which capped OHA’s revenue at $15 million for two years, while the state worked out its fiscal problems. The cap expires on June 30, 1999. The State is not any closer to any real negotiating numbers than they were two years ago. How serious do you suppose they are in negotiating a settlement with OHA? Some public comments made by the Governor are troubling. He said he was very comfortable with the $15 million cap. Also troubling is the fact that Calvin Say, (the new speaker of the house) had decided not to name a Hawaiian Affairs Committee because, he said it wasn’t important enough! The biggest issue facing the legislature is the ceded land claims! Calvin Say has put Hawaiian Affairs in the hands of the Judiciary Chair (Ed Case, Rep. Manoa). This is the committee that will hear Hawaiian bills and have the ability to change the laws of the land. They want to make sure that they create a bill that will statutorily stand up to muster. So in one fell swoop, they can destroy OHA and the 20% revenue share of cash entitlements. This maneuver is so blatant that the house leadership is confident that they can wipe us out.

I am happy to see that the Governor is publicly moving his position from not being able to afford what OHA is claiming to be its rightful share of revenues from ceded lands to a position of settling our differences.

In advocating for Hawaiian ceded lands and entitlements, OHA must put its best team together to represent us. People who are akamai and experienced. Recently, the Board of Trustees approved a team consisting of myself and Trustees Clayton Hee and Mililani Trask as primary team members.

We trustees must have you alongside us as we journey to our eventual and rightful end: Justice. From now on, it will take all Hawaiians to stave off the attack.