Ruling limited to apology issue
Supreme Court says federal resolution doesn't alter state law

By John Yaukey
Advertiser Washington Bureau
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WASHINGTON — The Supreme Court ruled yesterday that a federal apology for the overthrow of the Hawaiian kingdom in 1893 did not strip the state of its authority to sell or transfer about 1.2 million acres of land.
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The court's unanimous decision overturns a ruling by the Hawai'i Supreme Court that blocked the sale of land that the federal government passed to the state in 1959 when Hawai'i was admitted to the union.

Numerous states backed the Hawai'i state government in its case against the Office of Hawaiian Affairs, which along with four Native Hawaiian individuals sought to block a state housing project being developed on ceded lands.

After protracted legal fighting, the state court last year halted sales of the so-called "ceded lands" — the crown and government lands owned by the Hawaiian monarchy at the time of the 1893 overthrow — until Native Hawaiian claims to those lands are put to rest. The properties represent roughly a quarter of the Islands.

The case now is expected to be sent back to the Hawai'i Supreme Court, which had sided with OHA, but it's not clear what will happen after that.

Yesterday's decision was fairly narrow. In its 15-page unanimous ruling, the Supreme Court determined that the Apology Resolution signed by President Bill Clinton in 1993 did not change the state's legal rights to manage the ceded lands in any way, said state Attorney General Mark Bennett.

But the court could have raised larger issues about the constitutionality of Hawaiians-only programs, and OHA officials were relieved it did not.

The court also could have raised questions about what a government's apology means and how legally binding it is.

This is at the heart of what makes formal apologies so politically contentious.

If more broadly worded, yesterday's ruling could have affected ongoing efforts by some African-Americans to seek compensation — through the avenue of a formal apology — for the damage done by slavery.

State's rights stand

Bennett said he was pleased with the court's decision.

The Supreme Court decided that "the Apology Resolution did not change the state's legal rights in any way," he said.

The administration of Gov. Linda Lingle had asked the court to affirm state control of the lands.

A Justice Department brief argued that the Hawai'i Supreme Court erred in finding that the apology changed federal law regarding the United States' acquisition of the land.

The apology did not strip away the state's authority to "sell, exchange or transfer" the lands, the brief said.

"Instead, Congress opted simply to express regret for the events of a century before," the brief said. The Apology Resolution calls for a "reconciliation between the United States and the Native Hawaiian people."

Lacking that reconciliation, some in the Hawaiian community found yesterday's court decision almost backward.

The ruling acknowledges that Native Hawaiians have never relinquished claims to the land. And until that issue is settled, critics say, the state has no right to dispose of the land.

"Remember that was the court that once found slavery legal, and that was the court that eventually had to find that slavery was illegal," Lilikala Kame'eleihiwa, a professor at the University of Hawai'i-Manoa, said in a statement. "They did so because of the moral outrage of the people."

U.S. Sen. Daniel Akaka, D-Hawai'i, said in a statement: "I will continue to monitor the case as it is taken back up by the state courts. I still believe the best way forward is through direct negotiations between the state and federal governments and a federally recognized Native Hawaiian government. For these issues to be resolved, Native Hawaiians need a seat at the table. Mainland indigenous people have this opportunity and Native Hawaiians deserve the same chance."

Lawsuit's roots

The ruling comes as the Hawai'i congressional delegation seeks to pass long-awaited legislation that would create a process for Native Hawaiian self-governance.

Congress and the White House have never been more receptive to the idea.

But at the same time, lawmakers and President Obama have scarcely ever been more preoccupied — facing a raft of high-priority national issues, from wars to the failing economy and from healthcare reform to the budget.

OHA and four Native Hawaiians sued the state in 1994 to block the sale of some of the land, saying their claims to at least a part of the 1.2 million acres must be resolved before any could be sold or transferred.

The Hawai'i Supreme Court ruled in favor of OHA early this year, blocking the state from selling 1,500 acres on Maui and the Big Island for housing development.

The state has argued all along that its title to the public trust lands is clear and that it can sell or transfer the lands to fulfill the purposes set out in the Hawaii Admission Act that led to statehood.

Those include bettering the welfare of conditions of Native Hawaiians, developing farm and home ownership, and supporting public education.

Advertiser Staff writer Gordon Y.K. Pang contributed to this report. Contact John Yaukey at jyaukey@gannett.com.