More join ceded lands fight

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By Gordon Y.K. Pang
Advertiser Staff Writer

Civil rights groups, a former governor, a retired state chief justice and a descendant of Hawaiian royalty were among those filing legal briefs in opposition to the Lingle administration's appeal to the U.S. Supreme Court of a state Supreme Court decision barring Hawai'i from selling ceded lands.

Yesterday was the deadline for parties to file briefs in support of the position taken by the state Office of Hawaiian Affairs and four Native Hawaiians, which first filed suit against the state in the early 1990s seeking to halt the sale of ceded lands until claims by Native Hawaiians to those lands are settled.

Among those filing briefs: Abigail Kawananakoa, the great-grandniece of King David Kalakaua and Queen Kapi'olani; a trio consisting of former Gov. John Waihee, former Hawai'i Supreme Court Chief Justice William Richardson and current Senate President Colleen Hana- busa; the Hawai'i congressional delegation; the San Francisco-based Equal Justice Society and the Japanese American Citizens League; and the National Congress of American Indians.

The Hawai'i Supreme Court reaffirmed a lower court's decision, and the state wants the U.S. Supreme Court to overturn it. Oral arguments are scheduled for Feb. 25.

The Lingle administration last month had seven briefs filed in support of its position.

Bennett has said that the state is simply seeking to re-establish its claim to title of the 1.2 million acres, which comprise 29 percent of the total land area of the state and nearly all the land owned by the state.

But OHA and the four individuals, as well as their supporters, say that the Congressional Apology Resolution of 1993 requires the state to freeze all sales, exchanges or transfers pending a settlement of Native Hawaiian claims to ceded lands.

Most of the briefs filed on behalf of OHA and the individuals call on the justices to reject hearing the case, arguing that it is an issue best dealt with at the state level.

Waihee, Richardson and Hanabusa, in their brief, argue that the U.S. Supreme Court has no jurisdiction because the state's decision "does not present a substantial federal question."

They said the Hawai'i court did not hold that the Apology Resolution itself provided OHA with any rights or claims, but instead concluded that the factual findings in the resolution recognized "that Native Hawaiians have unrelinquished claims over the ceded lands and contemplate native Hawaiians' future reconciliation with the state and federal governments as to those claims."

"The State of Hawai'i has trust obligations to Native Hawaiians that are in the process of being reconciled by the nonjudicial branches of government," Ka-wananakoa said in her filing. "The trust and moral obligations of the State of Hawai'i arise from Hawai'i's complex history."

Because the U.S. has admitted that the 1893 overthrow was illegal, "the ceded lands hold unique cultural, spiritual and political significance for the Native Hawaiian people — they are not fungible or replaceable," said the brief filed on behalf of the Equal Justice Society and Japanese American Citizens League.

Briefs in support of the Lingle administration's position included one filed by the U.S. solicitor general and attorneys general for 29 states. That brief argued that the Hawai'i court misinterpreted the Apology Resolution.

Restraining a state from selling, transferring or exchanging state lands "would cause incalculable harm to a state and to the state citizens who benefit from the use and management of state lands," the brief said.

The Native Hawaiian Caucus of the state Legislature is trying to stave off the U.S. Supreme Court hearing by attempting to push through a moratorium on the sale of ceded lands. Hana- busa, meanwhile, has offered up a compromise position that would require a two-thirds vote of both houses of the Legislature before ceded lands could be sold.

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