Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 9, 1 May 2009 — Debate over high court's ceded lands decision continues [ARTICLE]

Debate over high court's ceded lands decision continues

By Liza Simūn and Lisa Asata Ka Wai Ola The Supreme Court's reversal of an earlier ruling by the Hawai'i Supreme Court blocking the sale of former Hawaiian Kingdom lands becomes official this month, triggering debate over whether the remand of the ceded land appeals case bodes well for preserving the corpus of the ceded lands trust. "The remand does not decide the issue of clear title to ceded lands, as the state (administration) had hoped," said William Meheula, attorney for four Native Hawaiians who initiated this protracted legal battle. In 1994, the four individuals and the Office of Hawaiian Affairs filed a lawsuit to stop the state from selling ceded land sales for a development on Maui. Meheula also said the Supreme Court's ruling does not extinguish native claims to

ceded lands, because the high court's decision only addressed the essential question of the appeals case, whieh asked whether the federal resolution apologizing for the overthrow of the Kingdom of Hawai'i stripped the state of its authority to sell or transfer about 1 .2 million acres of former crown lands. In March the U.S. Supreme Court ruled that the state court had erred in relying on the federal Apology Bill in its Ianuary 2008 ruling barring the state from selling or transferring ceded lands until Native Hawaiian claims to the lands are resolved. Meheula said the ruling leaves open the possibility that the state court ean now use state law to reach the same conclusion. The state court ean keep the injunction on ceded land sales stays in plaee, unless it decides otherwise, Meheula added. Meanwhile, state Attorney General Mark Bennett said the Supreme Court's reversal of the state court's decision clarified that the

state retains title to the ceded lands. "The unanimous opinion by the nation's nine justices makes clear the point made throughout the last three administrations that the State of Hawai'i through the Admission Act holds the fee-simple title to the trust lands for the benefit of all Hawai'i including Native Hawaiians," Bennett said. Charles Ka'ai'ai, one of four plaintiffs in the case to stop ceded lands sales, expressed optimism about what the outcome will be out of the Hawai'i Supreme Court." Ka'ai'ai said the state coiut may have overstepped their bounds in using federal law in deciding the case, but at the same time had found basis in state law for stopping the state from alienating ceded lands. "I think that's all they really need to uphold the moratorium they imposed," he said. The Hawai'i court receives the Supreme Court mandate just as lawmakers hammer out details of ceded lands bills during the closing weeks of the legislative session. Rep. Mele Carroll expressed eoneem that a lifting of the injunction leaves no doubt that the state ean sell lands - a possibility she called "frightening" in a written statement, whieh also called on lawmakers to take the opportunity to set policy "to ensure that ceded lands are not sold or transferred until the state fulfills its fiduciary responsibility and moral obligation to native Hawaiians." The state Admission Act requires that revenues from ceded lands be used for two classes of beneficiaries - the general public and Native Hawaiians, and assigns to the state the duty of ceded lands trustee. Carroll, who chairs the Legislative Hawaiian Caucus, fought this session to pass a bill that would have imposed a five year moratorium on ceded lands sales, noting that the state's self-imposed ban is not guaranteed to stay in plaee. "I ean cite many examples where the state has reversed its position, especially in matters related to revenues and funding of programs." The moratorium bill did not gain as mueh traction with lawmakers as another senate that would allow for any resolution proposing a ceded land sale to be stopped by a majority of both houses to disapprove ceded land sales. Critics say the measure weakens protection for the ceded lands trust, because resolutions frequently fail early in the Legislature, thus diminishing the opportunity for public input on a pending sale. The measure was being discussed in conference conunittee as Ka Wai 01 a went to press. Look for updates to the ceded lands situation on oha.org. ■

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