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Hawaiian caucus facing setback

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By Gordon Y.K. Pang
Advertiser Staff Writer

State legislators in the Native Hawaiian Caucus may face an uphill battle persuading a majority of the House and Senate to agree to a moratorium barring the sale of ceded lands, bucking an appeal before the U.S. Supreme Court brought by Gov. Linda Lingle and Attorney General Mark Bennett.

While the Hawaiian caucus has made the plan its priority, the moratorium is not among the stated priorities of either the House or Senate majority caucuses, and Senate President Colleen Hanabusa said the Senate majority is instead introducing a compromise plan.

Rep. Mele Carroll, D-13th (E. Maui, Moloka'i, Lana'i), said caucus members voted 17-1 to support a moratorium.

Such an action would be used as ammunition against the Lingle administration's argument to overturn the Hawai'i Supreme Court's decision barring the sale or transfer of ceded lands until Native Hawaiian claims to those lands are resolved.

The U.S. Supreme Court is scheduled to hear arguments on Feb. 25.


Caucus members, cognizant that neither Senate nor House leadership have voiced support for a moratorium, urged Native Hawaiian leaders in attendance at a press conference yesterday to lobby hard to ensure its passage.

"Our work is not over yet," said Carroll, who also chairs the House Hawaiian Affairs Committee.

Bennett, in arguing that the Hawai'i court's decision should be overturned, has argued that the unsettled claims cloud the state's title and therefore negatively affects the state's bond rating.

Caucus members addressed both points yesterday.

"The Hawai'i Supreme Court never held that the Apology (Resolution) clouded the state's title," Carroll said. Instead, she said, "the court did say ... that the issue of Native Hawaiian title to the ceded lands would be addressed through the political process."

Carroll pointed out that the state has committed to reconciliation with Native Hawaiians in its support of creating a process for Native Hawaiian federal recognition through the Akaka bill, and that the state has had a voluntary moratorium in the meantime.

Sen. Clayton Hee, D-23rd (Kane'ohe, Kahuku), said the administration's claims that the state's bond rating is affected by the Apology Resolution's call for a settlement are untrue.

Hee pointed to a press release issued by the governor's office in December referencing the state's high bond ratings with three major rating companies.

"It is crystal clear that the so-called cloud on ceded lands has nothing to do with the bond rating," he said.

Because the governor has stated that the administration has no immediate intent to sell ceded lands, a moratorium should not impact the state outside of the lawsuit, Hee said.

Hee said the caucus hopes to influence the U.S. Supreme Court by pitting two branches of government — the Hawai'i Judiciary and the Legislature — against the third, the Lingle administration.


OHA leaders had offered up a proposed moratorium bill of their own but Hee said the caucus went with its own version because it is "less direct" although "philosophically it is very similar."

While the Hawai'i Supreme Court decision states no sale or transfer of ceded lands should take place until Native Hawaiian claims are resolved, the caucus bill does not mention any qualifiers that would end a moratorium.

Lingle could not be reached to comment on either of the plans yesterday. But on several occasions in recent days, she has stated that lawmakers seeking to pass legislation for a moratorium validates the state's position that it has jurisdiction over state lands.

Hanabusa said the Senate majority caucus is preparing a bill that would require both houses of the Legislature to approve any sale or transfer of ceded lands by a two-thirds majority vote.

A majority of Democratic senators believe such a proposal would be preferable to an outright moratorium.

"Many had a concern whether a complete moratorium would tie the government's hands," Hanabusa said. "Though there's no one really advocating the sale of the lands, there is a sense that in order for government to function, government must have that alternative."

Hanabusa said she wants the two-thirds approval bill to be fast-tracked through the Legislature so that the governor can consider stopping the appeal before the Supreme Court hearing date. But doing so would require the assistance of the House leadership, she said.

House Speaker Calvin Say, in response to an online question while appearing in The Advertiser's weekly Hot Seat chat, said the House majority has not yet taken a position on the moratorium.

"Personally I would take a go slow approach because it has significant ramifications," Say said. "We don't want any negative, unintended consequences if we act too hastily."

Representatives from an array of Native Hawaiian organizations were at yesterday's press conference to support the moratorium.

Last weekend, several thousand marched and held a rally in Waikiki in opposition to the administration's appeal.

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.

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