U.S. Supreme Court & Legislative Update


Source: May 2009 Ka Wai Ola o OHA Column

At the writing of this column, 15-days before it goes to print, Senate Bill 1677 is the only surviving bill that would provide any protection to ceded lands from being sold or exchanged.  While it does not provide the complete moratorium that we wanted, it does require a majority vote of both the House and Senate to disapprove the sale or exchange of ceded lands.  It also requires that the community be briefed regarding the location of the lands prior to its sale or exchange.

Unfortunately, State Attorney General Mark Bennett and House Speaker Calvin Say are now holding the bill hostage in an attempt to brow-beat the OHA trustees into dropping our lawsuit to stop any further sale of ceded lands.  SB1677 has been deferred from the final vote on third reading for four days in the House.  Governor Linda Lingle has made it clear that she will not sign the bill unless we drop our case.

Both Lingle and Bennett do not have any interest in doing what is right for Native Hawaiians.  If the Lingle administration truly won the recent Supreme Course case, like Bennett has bragged about in the media, why do they want us to drop the case while it’s being reconsidered by the Hawaii Supreme Court?  Also, if they really don’t intend to sell or exchange any ceded lands in the near future, why won’t they just pass SB1677 instead of threatening to kill it?  So much for the Governor’s commitment to Native Hawaiians.

There is NO reason for OHA to drop the case at this point because the Senate will most likely not accept the House’s changes to SB 1677 and we would just end-up dropping the case for nothing.  And settling the case with the Lingle administration without a moratorium on the sale of ceded lands would only anger our beneficiaries.  We would also be sending the wrong message to the Hawaii Supreme Court.


In its recent decision on March 31, 2009, the U.S. Supreme Court sent the ceded-lands case back to the Hawai‘i Supreme Court for further deliberations.  Many assertions have been made in the media, and I want to clarify all of the misinformation out there.  Here is exactly what the U.S. Supreme Court said:

  1. The federal Apology Resolution did not impose a duty on the State of Hawaii to refrain from selling ceded lands.
  2. OHA had argued that the Hawaii Supreme Court’s ruling relied mainly on state law and only referred to the Apology Resolution for its facts concerning the ongoing reconciliation process.  The U.S. Supreme Court disagreed with OHA and concluded that the Hawaii Supreme Court did in fact rely on the Apology Resolution when it prohibited the sale of ceded lands.
  3. However, the U.S. Supreme Court did recognize that existing state laws could serve as the basis for the Hawaii Supreme Court’s decision to prohibit the sale of ceded lands.
  4. The Court also recognized that the Hawaii State Legislature has the authority to resolve the status of the ceded lands.
  5. They also said that the U.S. Supreme Court didn’t have the authority to decide whether, as a matter of state law, Native Hawaiians have rights related to Ceded Lands.  In other words, they said they don’t have the right, under Hawaii Constitution, to prohibit the sale of ceded lands until the status of those lands is definitively resolved through the state political process.

It is difficult for me to understand how the State Attorney General can claim this decision is a victory for the Lingle administration.  If the Hawaii Supreme Court decides that state law provides an independent basis for the prohibition on the sale of ceded lands, and I am confident they will, there will be no reason for us to go back before the U.S. Supreme Court and this lawsuit will finally come to an end – with OHA and its beneficiaries winning in the end.


In my last article I wrote about Senate Bill 995 and House Bill 901, which attempts to resolve claims and disputes relating to the portion of income and proceeds from the lands of the public land trust for use by OHA between 11/7/1978 and 7/1/2009.  I wrote that I favored the Senate’s version of the bill because it would convey Mauna Kea to OHA, along with several other parcels of land.  The House version did not include Mauna Kea.  At the time of this writing, is seems that HB 901 has died and only SB 995 will survive to the final conferencing stage of the legislative process.

House Settlement Proposal

On March 18, 2009, the House Committee on Hawaiian Affairs amended the Senate’s bill by (1) deleting the conveyance of all parcels to OHA except those in Kaka’ako Makai; and (2) inserting $200,000,000 as the amount owed by the State to OHA.

On March 23, 2009 the joint House Committees on Water, Land, & Ocean Resources and Judiciary amended this bill by deleting the requirement to transfer the management and control of the conveyed parcels to a sovereign native Hawaiian entity upon its recognition by the United States and the State.

Senate Settlement Proposal

On March 27, 2009, the Senate Committee on Water, Land, Agriculture, and Hawaiian Affairs amended the House’s version of the bill by adding language that would allow OHA and the State to reach a “global settlement” of the past and future obligations of the State to Native Hawaiians.  The Committee felt that the proposal made by Governor Ben Cayetano back in March 31, 1999 is a sensible and appropriate approach toward a “global settlement” and that it should be re‑offered to OHA. 

Please note that a global settlement DOES NOT include natural resources, water and gathering rights or any other rights.  The settlement would include both land and money.  In my view, it would be a great opportunity for us to finally have the resources to build a strong nation.

The Senate’s “global settlement” offer includes:  (A) Monetary payment to OHA of $251 million; (B) Conveyance of public lands from the State to OHA equal to twenty per cent of the 1.8 million acres of ceded lands already inventoried; and (C) The suspension of the $15.1 million in annual payments to OHA effective upon a date to be agreed upon in good faith between the State and OHA.

OHA has to make a decision to accept or reject the “global settlement” (which means land & money only – this does not include rights to natural and mineral resources, gathering rights, etc.) and notify the Governor, the President of the Senate and the Speaker of the House of its decision in writing on or before January 1, 2010.  Any failure to properly and timely respond to the “global settlement” offer shall be deemed to be a rejection of the “global settlement.”

If a “global settlement” cannot be reached, Part II of the measure sets forth the Legislature’s approach to alternatively address the issue regarding past obligations only.  The dollar value of $200 million represents the amount agreed to between OHA and Governor Lingle regarding the resources that should be provided for the period between November 7, 1978, and July 1, 2008.  The Committee felt that $200 million for the past obligations is a fair and reasonable payment.

At the discretion of OHA, payment of the $200 million may be accomplished by either:  (A) A $200 million monetary payment; (B) Conveyance of properties in the public land trust with a combined tax assessed value of $200 million; or (C) A combination of cash payments and conveyance of properties totaling $200 million.

If OHA chooses to accept a $200 million monetary payment, it must notify the Governor, the President of the Senate and the Speaker of the House of its decision in writing by January 1, 2010.  Failure of OHA to respond to the Governor, the President of the Senate and the Speaker of the House by January 1, 2010, shall be deemed to be a rejection of OHA ‘ right to accept the $200 million monetary payment option.

The current $15.1 million in annual payments from the State to OHA shall remain uninterrupted for FYs 2009-10 and 2010-11.

In either settlement option, the specific public lands that are to be conveyed by the State to OHA is to be determined by negotiation between the Governor and OHA with reasonable diligence, in good faith, and shall be completed on or before January 1, 2015, unless mutually extended by the State and OHA.  OHA and the Governor’s Office are required to submit a report on the status of the negotiations to the Legislature no later than twenty days prior to the convening of the 2010 Regular Session.


While the legislative session will be over by the time of printing, I still encourage all of you to let your elected officials know that you support Senate’s version of the settlement bill and that you want a complete moratorium on the sale or exchange of ceded lands.  The legislative process is a long one and if the bills fail to pass this year, they will still be alive and will come up again next year.  It is truly unfortunate that some of our elected officials need to be constantly reminded about doing the right thing.  Aloha Ke Akua.