Setting the record straight about the sale of ceded lands


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.


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.

Who is behind the Latest Lawsuit Against the OHA and the DHHL

By Rowena Akana
May 2002

Source: Ka Wai Ola o OHA

In my last Ka Wai Ola article, I wrote about the latest case against OHA: Arakaki v. Cayetano. Our readers and beneficiaries should be aware of exactly who is behind this lawsuit and what their mission is.

The plaintiffs in the case are: Earl F. Arakaki, Evelyn C. Arakaki, Edward U. Bugarin, Sandra Puanani BURGESS, wife of attorney William Burgess who is one of the lawyers filing this suit, Patricia A. Carroll, Robert M. Chapman, Brian L. Clarke, Michael Y. Garcia, Roger Grantham, Toby M. Kravet, James I. Kuroiwa, Jr., Frances M. Nichols, Donna Malia Scaff, Jack H. Scaff, Allen H. Teshima, and Thurston Twigg-Smith.

The most infamous plaintiff is Mr. Twigg-Smith who is still trying to change his ancestral past. What is the motivation for this case and who is funding these cases? Look at the list of plaintiffs, who among them has the finances to continue this legal assault; who among them has continued as his ancestors did to try to make extinct the native people of our islands? At the core of this issue is the fight to control our lands. Mr. Twigg-Smith’s attorney sums it up clearly when he said “we want to sink these two ships” (OHA and DHHL)

In a letter to the editor on March 22, 2002 to the Honolulu Advertiser written by Professor Jonathan K. Osorio of the University of Hawaii at Manoa, he wrote:

“It’s ironic that one of the plaintiffs in this case is Thurston Twigg-Smith, former publisher and owner of your newspaper and the grandson of Lorrin Thurston, who, in 1887, drafted the first race-based constitution in the kingdom’s history, which immediately deprived hundreds of Chinese citizens of the right to vote and created special voting privileges for the wealthy.

“The plaintiffs want fairness right this moment and care nothing of the mockery made of democracy and fairness by the ancestors of Twigg-Smith and Freddy Rice, who led the illegal takeover of the kingdom. How odd that these two should now lead the fight to end Hawaiian ‘entitlements’.”

This latest case requests the court to find and declare that the provisions which create OHA and the Hawaiian Homes Commission Act are unconstitutional. It is important to note that some of the litigants in these cases have written frivolous articles in the newspapers using terms like “race-based” and “taxpayers’ dollars” to incite the community. these people have not done their homework. Ceded land revenues are NOT taxpayer dollars. And for the record, Hawaiians never heard of the word “racist” until foreigners came here and brought their prejudices with them. there is no word in the Hawaiian language that describes a “racist.” I also believe that in our fair state of Hawaii, we have shown the world that all nationalities can coexist and live harmoniously with each ogther. I am certain that William Burgess’ opinions are not shared by the general community. Hawaii is unique not just because of its climate, but most especially for its people.

Again, we must not grow weary of these lawsuits–we must continue to show up en masse and voice our opinions on our entitlements. We must continue our fight on the Federal level as well and support the Akaka bill, SB 2899, the first bill introduced in the Fall of 2000 by the Indian Affairs Committee. This bill continues to carry the support of the Hawaiian people and community leaders who had great impact on the language of the bill itself. I urge all of you who support Hawaiian sovereignty to write to the Hawaiian delegation and to ask them to support SB 2899, the Bill of the People.