Victory was claimed by those on both sides of the ceded lands dispute Tuesday after the U.S. Supreme Court ruled that a congressional resolution apologizing for the overthrow of the Hawaiian kingdom in 1893 didn't strip the state of its authority over 1.2 million acres of former crown lands.
The court's unanimous decision overturned a ruling by the Hawaii Supreme Court that relied on Congress' 1993 Apology Resolution to block the sale of land conveyed to Hawaii when it became the 50th state. The high court returned the issue to the Hawaii Supreme Court for further action.
Native Hawaiian activists and state Office of Hawaiian Affairs trustees maintained that they were pleased with the decision because it places the case firmly back in the hands of the state.
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BOYD MOSSMAN
Maui OHA Trustee
The major difference is that OHA cannot rely on Congress' 1993 Apology Resolution in its arguments, said retired 2nd Circuit Court judge and Maui OHA Trustee Boyd Mossman. He added that he wasn't surprised by the U.S. Supreme Court ruling since a resolution is not a law.
"My own personal opinion is that the result shouldn't be any different without the Apology Resolution," Mossman said.
OHA stands a very good chance of succeeding based on numerous state laws, resolutions, and court decisions and other precedents that support its stance, he said.
In the meantime, Mossman and others said the state could sell off ceded land parcels, but that most likely won't happen before the state Supreme Court makes a final decision. Any ceded land sales or transfers would be politically unpopular for the state's Republican administration, which hopes to have Lt. Gov. James "Duke" Aiona succeed Gov. Linda Lingle, longtime Native Hawaiian activists said Tuesday.
But state Attorney General Mark Bennett, who had appealed the state Supreme Court's Jan 21, 2008, decision to the U.S. Supreme Court, said the decision means that the state has control over ceded lands.
"The title to the land had previously been held in absolute fee by the United States and conveyed to the state at statehood, and the United States Supreme Court made clear that the Apology Resolution did not affect the rights of the state in any way," Bennett said.
Bennett successfully argued that nothing in the Apology Resolution explicitly or implicitly impairs Hawaii's sovereign right to control the land it owns.
"The Supreme Court made that absolutely clear, it couldn't have been any clearer," Bennett said.
Bennett said that he and Lingle's main reason for appealing to the U.S. Supreme Court was to clear up any cloud on the state's title and ownership to the ceded lands.
State Republican Party Chairman Willes Lee said Lingle has argued that the state executive branch has the authority to sell or transfer ceded lands, "as it is written in the 1959 (state) Admissions Act."
The Hawaii Supreme Court's ruling placed an injunction against the sale or transfer of ceded land, including 151,779 acres in Maui County. Statewide, ceded lands make up more than a quarter of the islands and billions of dollars in real estate.
"This decision puts the whole case back to where it was," Mossman said.
"All they ruled was that the Hawaii decision was invalid and therefore have to reconsider everything that was written, and it cannot refer to the federal justification of the Apology Resolution."
Mossman added that he believes that a final decision by the state Supreme Court shouldn't take too long because the justices already have most of the arguments before them.
State Rep. Mele Carroll, whose district includes East Maui, Molokai and Lanai, said there is hope with legislation pending at the state Capitol to protect ceded lands until a sovereign Hawaiian government is organized. She said that at least the U.S. Supreme Court did not rule in Bennett's favor and sent the case back to the state to decide. She said it's really Hawaii's kuleana, or responsibility.
Carroll said several acts passed by the Legislature in the past, which were cited in the current lawsuit, say the state first has a fiduciary responsibility to Native Hawaiians. She said the lands should not be sold until Native Hawaiians have their own reconciliation process with the state and decide whether to relinquish their family claims to lands.
"And you must remember that many believe these lands were stolen," she said.
The lawsuit was filed in 1994 by OHA and four Native Hawaiian individuals seeking to stop the sale of ceded lands to developers for two state-sponsored affordable housing projects begun by former Gov. John Waihee. Creating housing opportunities for Hawaii residents is also among the five purposes listed by the Admission Act.
But Bennett said he thinks it would be a losing proposition for OHA to rely on its previous legal arguments.
"It's been our position throughout this case that state law affirmatively not only authorizes but mandates in some cases alienation or transfer" of the ceded lands, he said.
The state "Admission Act allows for the sale (of ceded lands), state law allows for the sale, the state Constitution allows for the sale," Bennett said. "If we have to make those points again before the state Supreme Court, we will."
On another front, Native Hawaiians also remain optimistic about the passage of U.S. Sen. Daniel Akaka's Native Hawaiian Government Reorganization Act of 2009.
The Akaka Bill, as it has come to be known, has been before Congress for nine years. However, supporters now believe more than ever that the self-governance act has its best chance of success after receiving the endorsement of Hawaii-born President Barack Obama.
The latest version of the Akaka Bill was introduced Feb. 4 in both chambers of Congress. Senate Bill 381 would do a number of things, including provide a process for Native Hawaiians to attain self-determination and self-governance; enable Native Hawaiians to be recognized officially as the indigenous people of the Hawaiian archipelago; and affirm a trust relationship of Native Hawaiians and their eventual governing entity with the U.S. government.
As far as state legislation goes to protect ceded lands, a bill that called for a full moratorium on land transactions died in committee without being heard. But Carroll said it could still be recalled, brought to the floor for a vote or added as an amendment to another bill.
She appeared to hold out more faith for Senate Bill 1677, which will be heard today in the House Finance Committee.
That bill would require two-thirds approval from the Legislature for individual resolutions on the sale or transfer of any ceded lands, she said.
State Sen. J. Kalani English, whose district covers Upcountry, East Maui, Lanai and Molokai, co-authored the Senate bill and called the U.S. Supreme Court's decision a wonderful opportunity for the Legislature to set policy for ceded lands.
"The decision puts the question of ceded lands back in our hands; and that's what we want and we need," English said. "We don't want this decided outside of Hawaii."
Molokai Native Hawaiian activist Walter Ritte Jr. agreed, saying that the farther such decisions are made away from Hawaii, the less control the people have over them.
The Rev. Tasha Kama, a Maui Native Hawaiian activist, said it's best to keep this issue here in Hawaii where the players understand its background and know what's fair and what's at stake in the future, she said.
Kama also supported the Legislature putting some teeth into legislation to protect ceded lands. She also asked people to call and send e-mail to their lawmakers.
The U.S. Supreme Court's 15-page unanimous ruling can be downloaded online at www.supremecourtus.gov/opinions/08slipopinion.html.
* Chris Hamilton can be reached at chamilton@mauinews.com. The Associated?Press contributed to this report.
