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Political and legal landscape changed
Ceded lands fight will go another round in Hawaii's high court

By Jerry Burris
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As a practical matter, the U.S. Supreme Court decision on the fight between the Office of Hawaiian Affairs and the Lingle administration over ceded lands will have little immediate impact. The administration has already said it has no intention to begin selling off ceded lands willy-nilly, no matter what the court rules.

But the ruling does substantially change the legal and political landscape. No longer can supporters of Hawaiian claims arising out of the overthrow of the Hawaiian kingdom in 1893 assert that the so-called federal Apology Resolution of 1993 is the law of the land.

From a federal perspective, the Apology Resolution has been turned back into just that: an apology. If there are Hawaiian claims to be settled, this will have to happen without the weight of federal law behind the claimants. The next step is likely to be litigation seeking to stop any sale of ceded lands under state law concerning Hawaiian claims — forget about the federal apology resolution.

The specifics of the case have to do with the state's sovereign right to sell or otherwise alienate former crown and Hawaiian government lands that were ceded to the state in trust in 1959. OHA convinced the Hawai'i Supreme Court that the state cannot sell or alienate those lands until there is a settlement of Hawaiian claims arising out of the overthrow. The Hawai'i court based its opinion on the 1993 Apology Resolution, which it said created claims that must be resolved before any ceded lands are sold.

Well, yeah, there may be claims against the state of Hawai'i that need to be resolved, the U.S. Supreme Court said. But the Apology Resolution isn't part of the game. In fact, the court said, there are "grave constitutional concerns" with the idea that a simple resolution passed three decades after statehood could cloud the state's right to do what it will with the lands it controls.

"... the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawai'i the authority to resolve an issue that is of great importance to the people of the state," the high court ruled.

It's important to note that the U.S. Supreme Court did not rule one way or another on the issue of Hawaiian claims. In fact, by indirection, it appeared to recognize that there might indeed be such claims. But it indicated that there is nothing in the Apology Resolution that gives the federal courts room to resolve those claims.

That, the Supreme Court appears to say, is for Hawai'i to work out on its own.

Reach Jerry Burris at jrryburris@yahoo.com.


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