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State, OHA argue over ceded lands before U.S. Supreme Court

Advertiser Staff and News Services
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Haunani Apoliona, chairwoman of the Office of Hawaiian Affairs,and
Hawaii Attorney General Mark Bennett spoke after the Supreme Court heard
arguments today about control over the sale or transfer of ceded lands.
Gannett, Stephen J Boitano

Kannon Shanmugam, attorney for the Office of Hawaiian Affairs and
Haunani Apoliona, chairwoman of the Office of Hawaiian Affairs speak
after the Supreme Court heard arguments on former Hawaiian monarchy
lands on Wednesday, Feb. 25, 2009 in Washington
Gannett, Stephen J Boitano

WASHINGTON — Hawaii Attorney General Mark Bennett asked the U.S. Supreme Court today to overturn a state court decision blocking the state from selling or transferring any of 1.2 million acres of former Hawaiian monarchy lands it manages.

The court is expected to issue an opinion in the case before its term ends on June 30.

The case pits the state against the Office of Hawaiian Affairs.

The Hawaii Supreme Court ruled last year the state could not sell the land, known as ceded lands, until Native Hawaiian claims of ownership are resolved. The Hawaii court opinion was based in large part on a 1993 congressional resolution apologizing for the overthrow of the Kingdom of Hawaii in 1893 and related state legislation.

Bennett stressed two points. First, the resolution marking the 100th anniversary of the overthrow was an apology that did not change who had proper title to the lands in question.

"It was, as the sponsor said at the time, a simple apology, and no more," Bennett said.

But he also urged the court to go a step further and confirm the state's sovereign authority over the land. Several justices voiced a reluctance to do so.

"Why is it necessary? Why isn't it sufficient just to say that this resolution has no substantive effect, period?" asked Justice Ruth Bader Ginsburg.

Kannon K. Shanmugam, who represented OHA, discounted the apology resolution's effect on the state court's decision. He said that state law created the fiduciary duty ensuring that interests of Native Hawaiians were properly addressed.

The state court made clear that it was relying on the apology resolution only for the acknowledgment that Native Hawaiians had unresolved claims, he said.

Ginsburg didn't seem to agree, though.

She said the Hawaii Supreme Court stated that its decision was "dictated by" the apology resolution. Those representing Native Hawaiians in the legal battle were "treating it now as sort of window dressing, icing on the cake, really didn't matter."

Shanmugam replied it was more than window dressing. The resolution confirmed the factual predicate that lands were illegally taken away. But he said the original lawsuit only focused on state law.

Ginsburg said she was concerned that the state court used the federal law as its basis for its decision, and that it used the federal law as a crutch. "What that does is it removes it from the Hawaii political process," she said.

While some of the justices seemed to agree that the court should only address the effect of the apology resolution, Justice Antonin Scalia suggested that the court address who had proper ownership of the ceded land, as Bennett had urged.

"As I read federal law, it extinguished all property rights in these lands," Scalia said. If the Hawaii Supreme Court is now finding that Native Hawaiians have an ownership interest in the property, "it seems to me that is a flat contradiction of federal law, and probably is an issue that we ought to address in this opinion," he said.

Shanmugan said that all OHA wanted was an injunction to protect the lands in question until claims could be resolved through the political process. He estimated that about 240,000 people in Hawaii identify themselves as Native Hawaiians, out of a population of about 1.2 million people.

Some legal analysts say a ruling against the state of Hawaii could set a precedent for other native populations to make claims to lands they once inhabited.

In their questioning of the attorneys, the justices seemed to accept the state's argument that the resolution did not change the law, which gave the state title to the lands, Bennett said after the arguments.

"It also sounded like when pressed, the attorney for (OHA) acknowledged that," Bennett said.

Haunani Apoliona, OHA chairwoman, said she found it "very hard to tell" where the justices were going with their questions.

"There were a lot of questions," she said. "Some of the questions were ones we were hoping would be asked. Now we just have to wait."

A number of people from Hawaii braved sub-freezing temperatures today to stand in line outside the court to get a seat in the courtroom.

Leinaala Lopes, who was born and raised in the Maunalaha Valley, and her husband Wilfred flew in to hear the arguments because they were concerned about the state getting control of their home which sits on ceded lands.

"Our people have lived on this land from before (King) Kamehameha even conquered the island," she said. "All these years that our people have lived on this land, they were always threatened with being kicked off."

Lopes said she was concerned that if the court ruled in favor of the state, she and her family would lose their land, which they now lease.

"This would be the one way the state could get rid of us," she said.

Debbie Lau Okamura and Sylvia Young, both of Honolulu, were in D.C. for a conference and joined more than 100 people outside the Supreme Court.

They arrived at the steps of the court around 7 a.m. wearing bright red sweaters, a color which Okamura said symbolizes both her Hawaiian blood and the blood shed over the overthrow of the Kingdom of Hawaii.

"This is such a critical issue felt by so many people," said Okamura, a member of I Mua Group and the Hawaiian Civic Club of Honolulu, both of which filed a brief in support of OHA.

Around 8 a.m., the two women sat in the Supreme Court cafeteria having breakfast and hot drinks, and warming up.

"I felt that since we were in D.C., it was so critical to be here," said Okamura, a graduate of Kamehameha Schools. "Coming from Hawaii ... we can (be) the physical representation of this issue. ... We represent all those who couldn't make it."

While some Native Hawaiians were inside listening to the oral arguments, musician Liko Martin, who grew up in Waikiki, and four others prayed and spoke on behalf of the descendants of King Kamehameha on the steps of the Supreme Court building.

They held photos of homeless Hawaiians living on the beach away from the tourist attractions. They said the Native Hawaiians have been stripped of their land despite the fact that the royal family never gave up control of its property to the state or federal governments.

"Hawaii is not part of the United States of America," said Martin, who wrote the iconic song "Waimanalo Blues," which laments the loss of Hawaiian lands to commercialism.

The Associated Press contributed to this report.

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