Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 8, 1 August 2009 — New law protects ceded lands from sale [ARTICLE+ILLUSTRATION]

New law protects ceded lands from sale

Gov. Linda Lingle signs bill requiring two-thirds legislative approval

By Liza Simūn Public Affairs Specialist

Abill signed into law by Gov. Linda Lingle adds another layer of protection for ceded lands with a new hurdle that must be cleared before the state ean sell ceded lands, officials said. Gov. Linda Lingle signed into law a bill that would now require two-thirds approval of eaeh house of the State Legislature before any of the state's

1 .2 million acres of ceded lands ean be sold. The law pertaining to transfer of ceded lands remains the same and requires two-thirds legislative disapproval by members of the Senate and House. Senate Bill 1677, signed into law Iuly 13, is also a condition of a settlement agreed to by parties in the Supreme Court appeals case. The new law finalizes a settlement agreement in whieh the Office of Hawaiian Affairs and three of the four individual plaintiffs will dismiss all their claims without prejudice, meaning that their part in this case will terminate, but whieh also means that they could bring a similar action in the future if

they believed it appropriate, with the state able to assert all defenses to any such action. The high court case touched off a rush by OHA and Democratic legislators to craft a bill for a complete moratorium on ceded land sales with the aim of preserving assets of the state's Public Land Trust until Native Hawaiian claims to those lands are resolved. Ceded lands were controlled by the Hawaiian Kingdom at the time of the 1893 overthrow and were later transferred to the state. The lands eomprise ahnost all of the state's landholdings, including harbors, airports and

the University of Hawai'i. After introducing a moratorium measure at the Legislature in January, OHA eventually supported SB 1677, whieh received unanimous Senate approval and a 45-4 majority in the House. "Our goal in filing this lawsuit was to protect the ceded lands," OHA Administrator Clyde Nāmu'o said. "While a full moratorium would have been preferred, we believe the law is a high standard and, therefore, achieves our desired outcome of protecting See CEDED LANDS on page lū

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Nōmu'o

Gov. Lingle

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Osorio

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the lands until the clainis of Native Hawaiians ean be resolved." Legislative Hawaiian Caucus Chairwoman Mele Carroll said, "I still don't agree that any land should be sold until Native Hawaiians have their reconcihation claims met, but at least we have some assurances now." Despite mixed feelings, Carroll said the new law effectively blocks ceded land sales, because "building a two-thirds majority for any legislation requires a great deal of effort and poliīieal will." She also praised a provision in the new law that calls for OHA to receive notification whenever a concurrent resolution for ceded lands sales comes before lawmakers. "This means OHA will go out and meet with beneficiaries and there will be transparency," said Carroll (D-East Maui, Moloka'i, Lāna'i), who opposed SB 1677 and led an effort to keep a Senate mora-

torium bill alive. OHA and four Native Hawaiian plaintiffs in 1994 sued to stop the state from an intended fee-simple sale of ceded lands pending settlement of claims to all lands that belonged to the Hawaiian Kingdom before the overthrow and subsequent annexation by the United States. A unanimous Hawai'i Supreme Court in 2008 ruled in favor of the plaintiffs. The state appealed the decision to the U.S. Supreme Court. On March 31, 2009, the high court sent the case back to the state court, saying that the Hawai'i justices were wrong in relying too heavily on the federal Apology Resolution. In the final days of the Legislature, plaintiff attorney Bill Meheula and Attorney General Mark Bennett agreed that the Legislature, under the new policy defined by SB 1677, could adequately interpret the state's fiduciary duty to Native Hawaiians in relation to ceded lands, as required under the state Admission Act and the state Constitution. Administrator Nāmu'o said now

that SB 1677 is law, "Actions in the Hawai'i Supreme Court ean now move forward. OHA will follow the attorney general's lead in this regard. We believe that dismissing this appeal is in the best interest of the Hawaiian conununity." University of Hawai'i professor Ionathan Osorio, one of the original plaintiffs, is not a party to the new agreement. Osorio argues that the new law continues to make it easy for the state to exchange ceded lands. "In the last few years, there have been some monumental instances of this. The transfer (of ceded lands) requiring a two-thirds disapproval leaves open the strong possibihty that legislation will go through without being contested," said Osorio, calling the transfer process a loophole that makes it possible for government to alienate ceded lands without public oversight. Under the settlement agreement, plaintiffs still retain the right to sue the state over ceded lands. Osorio said that taking action against every ceded

lands sale or transfer would mean a huge investment of money and time. However, he has retained new legal counsel, including Mililani Trask, Malia Gibson and Hayden Aluli. Carroll, the state representative, also criticizes the new law for

keeping the status quo pertaining to transfer of ceded lands. She said that transfers take plaee without public or legislative consultation. She gives the example of a transfer of public parcel for county sewage use that rehes only on a county application process. ■

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Native Hawūiians ond supporters march down Waiki ki's Kala kaua Avenue during the Jan. 1 7, 2009 Ku I Ka Pono march and rally to urge the protection of ceded lands. - Photo: LisoAsoto