Ka Wai Ola - Office of Hawaiian Affairs, Volume 18, Number 12, 1 December 2001 — Ceded lands dispute tried [ARTICLE+ILLUSTRATION]

Ceded lands dispute tried

OHA seeks moratorium to stop state from selling off ceded lands By Naomi Sodetani Hawaiians disappointed with the Statc Supreme Court's overturning of the Heely ruling on ceded lands revenue in Sept. now hope for a better outcome as they await another decision on the pivotal question of whether the state ean sell ceded lands. The seven-year case revolves around the state's sale of ceded lands for the Villages of Leiali'i in Lahaina and La'i'ōpua in North Kona. Circuit Judge Sabrina MeKenna presided over the trial scheduled to end Dec. 4 (as of press time). Attorneys for OHA and four native Hawaiian plaintiffs asked the court to bar the sale or transfer of any ceded lands until a settlenient of land claims ean be negotiated. The state is empowered to dispose of ceded lands as it pleases, so long as that serves the public good, argued John Komeiji. the attorney defending ihe Housing and Community Development Corp. of Hawai'i. OHA attorney Sherry Broder said the 1993 Apology Law adopted by Congress on the 100th anniversary of the overthrow of the Hawaiian Kingdom confirmed an illegal taking of lands without compensation. "The claims of the Native Hawaiian people create a cloud on title and the state, as a puhlie trustee, cannot convey lands from the ceded lands trust to private parties," while those claims are unresolved, Broder asserted. The state's attempt to sell ceded lands midstream in federal efforts for reconciliation with the Hawaiian people unconscionably breaches its trustee duty eonferred with the Admissions Act of 1959 and Hawai'i Constitution, See CEDED LANDS on page 4

CEDED LANDS from page 1 1959 and Hawai'i Constitution, Broder said. She said that many other states and countries have imposed moratoriums and resolved property claims filed by indigenous peoples, and the state is also required by internationaI law to do the same. Komeiji dismissed international legal and political issues as "irrelevant" and "speculative." Even if the Akaka Bill on federal recognition passed in Congress, creating a Hawaiian government "could take forever."

The state is "mindful of its trust obligations," Komeiji said. "But tying up land adversely affects other beneficiaries of that trust," the general public. In his opening statement, Komeiji read from a letter from a prospective

Leiali'i homebuyer frustrated with waiting for the case to clear. "This case is not just about Hawaiians. It's not an 'us versus them' suit, in my view," OHA Chairman Clayton Hee stressed. "Public Iands belong to everybody. When the state sells public lands, everybody loses." Moreover, under the guise of assisting affordable housing, Hee said, "the state actually acted as a profiteer" in selling developers of the subdivisions at Leiali'i and La'i'ōpua thousands of acres to build golf courses, industrial parks and shopping centers. Hee called McKenna's expected ruling "a template for the future." "This is the first time a First

Circuit court will consider evidence about the overthrow in a judicial proceeding," said attorney Hayden Aluli. "The case doesn't litigate any claims themselves, but seeks to ensure that when those claims are decided, we'll have a land base on whieh the nation ean survive." Aluli and attorney William Mehe'ula represent four individual Hawaiians, Charles Ka'ai'ai, Jonathan Kamakawiwo'ole Osorio, Pia Thomas Aluli and Keoki Maka Kamaka Ki'ili. OHA filed its lawsuit in 1994 after Earl Anzai, then an attorney advising trustees on legal matters, urged the move to prevent the state from reducing the inventory of public lands. Anzai is now

the state attorney general. When Hawai'i was annexed in 1898, 1.8 million acres of Hawaiian Kingdom lands were "ceded" over to the U.S. go,vernment. When Hawai'i became a state in 1959, the "trust responsibility" to preserve these lands for Hawaiians was transferred from the federal government to the state, Broder said. Today, the state controls 1.4 million acres of ceded lands, including 200,000 acres managed by the Department of Hawaiian Home Lands. 370,000 acres is held by the federal government. OHA seeks "a moratorium until the ceded lands ean be negotiated as part of a settlement for the Hawaiian people," Hee said. On Sept. 12, Hawai'i's Supreme Court scrapped an earlier ruling by Circuit Judge Daniel Heely thought to be a watershed revenue win for OHA. It also invalidated the state's formula for ceded land payments to OHA (formerly, 20 percent of landderived revenues), due to a conflict between state and federal law. "If we lose this, we might just as well jump off the pali (cliff)," said activist Lela Hubbard, who attended the trial. "Because to Hawaiians, land equals heakh, strength, future, our very existence." As the legislative session approaches, legal observers say a win could assist the settlement of ceded land claims, while a loss would give legislators little incentive to tackle the "hot potato" issue in an election year. ■

u This case is not just about Hawaiians. Public lands belong to everybody. When the state sells public !ands, everybody loses. — Chairman Clayton Hee 55

DEFENDING TRUST LANDS — Plaintiff attorneys Hayden Alui, Bill Meheula and Sherry Broder urged Circuit Court Judge Sabrina MeKenna to bar the state from selling ceded lands. OHA Chairman Hee (seated behind), expects the court's ruling to serve as a "template for the future" disposition of public lands.

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