Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 3, 1 March 2009 — State of Hawaiʻi v. OHA: Showdown in Washington, D.C. [ARTICLE+ILLUSTRATION]

State of Hawaiʻi v. OHA: Showdown in Washington, D.C.

£ k no'ai kakou... /\ In 1994, OHA joined Pia Thomas Aluli, J. A.Ionathan 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 thne, the State was about to sell nearly 500 acres in Lahaina 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 clauns to ceded lands had been resolved. In 2002, Circuit Iudge Sabrina MeKenna 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 Puhlie 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., were scheduled for Leb. 25, 2009. The Supreme Court will specifically look at whether the Joint Resolution to acknowledge the 100th anniversary of the Jan. 17, 1893, overthrow of the Kingdom of Hawai'i strips the State of Hawai'i of its authority to sell lands ceded to it by the federal govermnent until it reaches a polhieal 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 Hawai'i and end up undermining all Native Hawaiian programs and assets as well as the legal basis for federal recognition. What could possibly be motivating Govemor 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 pohheal 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 poliheal future. It is also shameful that the State of Hawai'i has to rely on native lands in order to eonhnue operating. It

has been far too easy for this state to rob our native resources to halanee 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, fonner Hawai'i Supreme Court Chief Justice William Richardson, Senate President Colleen Hanabusa, the entire Hawai'i congressional delegation, the Equal Justice Society, the Japanese Anierican 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 umelinquished claims over the ceded lands and that it foresaw our future reconciliation of those claims with the state and federal govemments. 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 govermnent. The trust and moral obligations of the State of Hawai'i arise from Hawai'i's complex history." Equal Justice Society and Japanese Anierican Citizens League wrote that since the U.S. has admitted that the 1893 overthrow was illegal, "the ceded lands hold unique cultural, spiritual and polhieal significance for the Native Hawaiian people - they are not fungible or replaceable." The U.S. solicitor general and attomeys general for 29 states have filed briefs in support of Govemor 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 Hawai'i State Legislature is tryiug to head off the U.S. Supreme Court's Leb. 25 heariug by quickly passiug 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 U.S. Supreme Court will clearly see that the Govemor Lingle's claims are not only historically wrong but also morally bankrupt. Aloha Ke Akua. For more information on important Hawaiian issues, eheek out Trustee Akana's web site at rowenaakanaorg. S

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