HISTORY OF THE CEDED LAND DISPUTES

From the HONOLULU STAR-BULLETING
Published: September 23, 2001

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Here's a chronological history of the ceded lands in modern Hawaii:

1700: Pre-contact land in Hawaii had religious value to Hawaiians. Chiefs managed the land and granted use rights, but no one owned it.

1840: In an attempt to preserve the traditional land system, the Kingdom of Hawaii created a new constitution that declares that all the islands' lands belong to the chiefs and people in common, with the king as trustee.

1848: Kamehameha III divides land with 245 chiefs, with the king ending up with almost 2.5 million acres and the chiefs 1.5 million acres. Kamehameha III then divides his lands into two portions -- government and crown lands.

1893: Sugar, business and political interests combine to overthrow Queen Liliuokalani and establish a provisional government seeking annexation to the United States. A new Republic of Hawaii takes the King's and government lands, which together are called the public lands.

1896: Congress annexes Hawaii and President McKinley approves it. The republic "cedes" these public lands to the United States, which in turn directs revenues from lands not used by the military to benefit inhabitants of the islands.

1900: Congress passes the Organic Act, which sets up a territorial government with control of the public lands.

1959: Hawaii becomes the 50th state under the Admission Act. Most of the ceded lands are returned to the state, which must hold it as a public trust for five purposes, one being the betterment of conditions of native Hawaiians.

1978: Delegates create the Office of Hawaiian Affairs, which would get a share of the income and proceeds from the sale and use of the public lands. A 20 percent revenue formula is created as a resource for OHA by the state Legislature in 1980.

1983: OHA sues to get 20 percent of a settlement the state reached for an illegal sand-mining operation, and the next year sues to get its share from harbors, Honolulu Airport and other uses of the lands.

1987: The Hawaii Supreme Court responds to the lawsuit by saying uncertainties in the law make it a political question.

1990: Act 304 is created, which sets up a way to negotiate back payments on the ceded land revenue issue. After lengthy negotiations, OHA is paid $134 million in 1993 to cover the period of 1980-1991, but the agreement does not cover "several other matters" OHA claims it is due.

1994: OHA sues the state to get back payments from community hospitals, state affordable housing, duty-free concession leases as well as interest from these past-due revenues.

July 1996: Circuit Judge Daniel Heely rules in favor of OHA's motion. The state appeals, while estimates of the revenue in question range from $200 million to $1.2 billion.

May 1997: The Legislature creates Act 329, which attempts to resolve all ceded land claims through a committee while freezing OHA's ceded land payments at $15.1 million a year for two years. The makeup of the committee is challenged in court, and those efforts fail.

April 1998: The Hawaii Supreme Court hears the dispute and urges both sides to reach an out-of-court settlement. Talks sputter, and by year's end the high court warns the parties to settle or it will do it for them.

Also, Congress in 1998 passes what is known as the "Forgiveness Act," which excuses $28.2 million in payments the state made from the airport fund to OHA as ceded land revenue. Noteworthy is the federal law banning further use of airport-related money to pay claims related to ceded lands.

April 1999: Negotiations end after a split OHA board refuses to accept the state's last offer at $251.3 million.

February 2000: The U.S. Supreme Court rules against OHA in the Rice vs. Cayetano appeal of Big Island rancher Harold "Freddy" Rice, striking down the state's Hawaiians-only requirement to vote in the OHA election. The constitutionality of OHA is put into question.

March 2000: A group of Hawaii residents led by attorney William Burgess files a brief in Hawaii Supreme Court supporting the state's argument in the ceded lands dispute. The group says OHA is unconstitutional because of the Rice decision, the first of a handful of lawsuits filed this year challenging the agency's creation.

September 2001: The Hawaii Supreme Court decides Heely's decision was correct, but since Act 304 contained a severability clause saying it cannot conflict with any federal law, the justices ruled it invalid and mute. The High Court said it conflicts with the federal forgiveness act and says the state Legislature must come up with another formula to calculate revenue payments to OHA.