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.