Ceded lands fight will go another round in Hawaii's high court
Case tossed back to Hawaii justices, who get final word

By Gordon Y.K. Pang
Advertiser Staff Writer
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Native Hawaiian leaders insisted yesterday the state can still be barred from selling ceded lands despite a U.S. Supreme Court ruling to the contrary.

State Attorney General Mark Bennett said the court's unanimous decision made it "absolutely clear" the state may use ceded lands as it sees fit for the benefit of all state residents.

But the Office of Hawaiian Affairs and other Native Hawaiian groups said they will continue to press their argument that no ceded lands should be sold or otherwise transferred until claims to those lands by Native Hawaiians are resolved.

At issue is the fate of approximately 1.2 million acres of ceded lands, those lands that were under the control of the Hawaiian monarchy when it was overthrown in 1893.

The U.S. Supreme Court said the Hawai'i Supreme Court erred when it stopped the state from selling ceded lands until Native Hawaiian claims to those lands can be resolved. The state court had cited, as the basis of its decision, a 1993 resolution passed by the U.S. Congress apologizing for the overthrow of the Hawaiian monarchy.

The federal court ruled yesterday that the Apology Resolution is not a law and should not have been the basis for the state court's decision.

The Office of Hawaiian Affairs and other Native Hawaiian groups hope to persuade the state Supreme Court to reinstate its ban on the sale of ceded lands, but this time base it on state laws instead of the 1993 Apology Resolution.

"OHA will now focus on persuading the Hawai'i Supreme Court that it should reaffirm the injunction that it ordered in last year's opinion as a matter of state law," said OHA Chairwoman Haunani Apoliona.

The case in question was brought by four individual Native Hawaiians and OHA against the state and sought to stop the development of two state-sponsored affordable housing projects on ceded lands. The Native Hawaiians argued that the ceded lands should be kept whole until the claims are resolved.

The Hawai'i Supreme Court last year overturned a lower court's ruling against OHA and the four individuals. That set the stage for the state attorney general's appeal to the U.S. Supreme Court, claiming the local court's decision cast a legal cloud on the state's authority over the lands.

In ruling yesterday, the U.S. Supreme Court sent the case back to the lower court "for further proceedings not inconsistent with this opinion."
What's next

Both the state administration and OHA claimed victory.

The state attorney general said he believes the issue is over.

"As a result of this decision, there cannot be a new ruling barring the state from transferring ceded lands," Bennett said. "We would absolutely argue that under state law the state has the absolute right to transfer ceded lands under procedures set up by the Legislature."

Gov. Linda Lingle, who said the state has no immediate intent to sell ceded lands, also applauded the decision.

"We think the decision is a good one for all the people and for future generations, to make clear that while the Native Hawaiian people have a moral claim as it relates to ceded lands, and we've always respected that and worked with them on those moral claims, that they don't have a legal claim and that the Apology Resolution did not give them a legal claim to those lands," she said.

What happens now is up to the Hawai'i Supreme Court, which must decide whether to simply reverse its decision to ban sale of ceded lands or reissue its opinion in OHA's favor, citing only state laws.

Attorneys for OHA and the individuals believe they can still pull out a victory. While the Apology Resolution can no longer be used as a reason for a moratorium, said OHA attorney Sherry Broder, there have been state actions in the judicial, administrative and legislative realms that point to a move toward reconciliation that would provide ample reason for a moratorium.

Judicially, the courts have ruled that Kaho'olawe is to be held in trust until a Hawaiian nation is formed, and has also upheld the rights of Native Hawaiians to hunt and gather on private lands, and to access the shoreline, Broder said. Administratively, even Lingle has had a "de facto moratorium" by voluntarily not selling or transferring lands, she said.

Broder said that, in sum, those actions constitute "steps being taken along the road to reconciliation." The Hawai'i Supreme Court, in agreeing to a moratorium, "sought to level the playing field and allow the reconciliation effort to go forward," she said.
Legislative action

Attorney General Bennett said state law is clear in allowing the sale of ceded land. "The Admission Act allows for the sale (of ceded lands), state law allows for the sale, the state Constitution allows for the sale," he said. "If we have to make those points again before the state supreme court, we will."

State Senate President Colleen Hanabusa, who co-authored a brief supporting OHA in the U.S. Supreme Court case, said she thinks the Hawai'i court may ask the two sides to once again state their positions minus the Apology Resolution.

"I don't think it's going to go away," Hanabusa said.

The Democratic leaderships in both the state Senate and House have made it clear that they support OHA's position. Besides adopting resolutions urging the governor to drop the U.S. Supreme Court appeal, the state lawmakers have also proposed bills that would either place a moratorium on the sale of ceded lands, or require that two-thirds of state lawmakers approve any sale of either ceded lands or any state lands.

Those bills are still alive.

Hanabusa said Senate leadership prefers a two-thirds approval process. "We believe that these lands should be sold only under very extraordinary circumstances," she said.