Ka Wai Ola - Office of Hawaiian Affairs, Volume 12, Number 9, 1 September 1995 — OHA rejects Attorney General opinion [ARTICLE+ILLUSTRATION]

OHA rejects Attorney General opinion

AG Margery Bronster says state ean sell ceded land; OHA says that's for the courts to decide

by Patrick Johnston The Office of Hawaiian Affairs has eome out in strong opposition to an Attorney General opinion that says the state is legally entitled to sell ceded lands. The opinion, issued by state Attorney General Marjery Bronster, argues that the Admission Act and amendments to the

state Constitution allow for the sale of ceded land as long as the proceeds from such a transaction are put back in to the trust.

OHA Board chairman Clayton Hee says Bronster is misinformed and the opinion is an attempt by the state to challenge a lawsuit OHA filed last November against

the Housing Finance and Development Corporation (HFDC) over the sale of ceded land in Lahaina for the Leali'i housing development. OHA's suit, in its origi-

nal form, said HFDC had violated Act 3 1 8, 1992 legislation whieh requires the housing agency to pay OHA a 20 percent share of the fair market value of the Lahaina land based on an appraisal done no more than 90 days before the conveyance of the land. OHA was also using the suit to renew its opposition to Act 318, a bill that allows the state to sell ceded lands at Lahaina and Kealakehe. OHA amended the suit July 14 to seek an injunction on the sale of all ceded land. The amended suit - whieh also includes a number of other Hawaiians as plaintiffs -

argues that the sale of ceded land will erode the public land trust and the native Hawaiian entitlement, and violates the Hawai'i State Constitution and Admission Act. The suit cites Article XII, Section 4 of the Constitution, whieh says ceded lands "shall be held by the state as a public trust for Native Hawaiians and the general publie," as representing key language prohibiting ceded land sales. "We say Article XII, Section 4 of the continued on page 8

Clayton Hee

This painting, titled "Pulelehua 'O Kamehameha," adorns a new poster published by Patrick Ching for Bishop Museum. See story, page 15. Art by Patrick Ching

Attorney General opinion ..-™

state constitution prohibits the sale of ceded land," Hee said in a press conference after Bronster released her opinion. "Unless that portion of the constitution is changed, it (selling ceded land) is not allowed." OHA attomey Sherry Broder adds, "The land is a trust. In our opinion it is not to be sold. ... Her (Bronster's) opinion ignores the source of ceded land and the recent Apology Resolution. ... As long as the claims of native Hawaiians have not been resolved the state should not be selling ceded lands." In her opinion Bronster cites 5(f) of the Admission Act,

whieh states that ceded land "together with the proceeds from the sale or disposition of any such land or ineome therefrom" will be held as a public trust. Section 5(f) also states that one of the five uses of ceded lands should be "for the development of farm and home ownership on as widespread a basis as possible." Home ownership, the opinion argues using a 1978 Hawai'i Supreme Court decision, means fee simple ownership, not leaseholding. Hee said after the press eonference that the question of Leali'i isn't resolved with the Attorney General opinion.

"Even if the state was to rely on the opinion to justify the project the AG says all proceeds should go to the tmst. In fact this is not the case. C. Brewer will make the profits. ... For the Attorney General to say the proceeds retum to the state is to fail to understand the point." Hee added that while the AG talks about putting the proceeds of the sale of ceded land back into the trust, she says nothing about selling the land at fair market value. Hee pointed out that most of the houses would be sold at market rates and that people were mistaken in believing it was an affordable housing pro-

ject. "Leali'i is being disguised as an affordable housing project. But the one making the profit is C. Brewer, not the people." Because ceded land is held in trust for everyone living in Hawai'i, Hee noted that this issue is of importance to all residents, not just Hawaiians. "This is not just a Hawaiian issue. This includes all of the people of Hawai'i because state govemment owns land on behalf of all the people in the state. ... The government lands belong to all the people, not just the Hawaiian people." OHA's Chairman made clear that the Attorney General's

» opinion is just an advisory opinion, and that OHA has chosen "not to take her advice."

"As long as the claims of native Hawaiians have not been resolved the state should not be selling ceded lands." - OHA Counsel Sherry Broder