The "Haole Koa" Rebellion

ceded lands until a political settlement is reached with Native Hawaiians is questionable since the unanimous decision reached by the Hawaii Supreme Court based its decision not simply on the Apology Resolution as presented by the Hawaii Attorney General Mark Bennett, but rather on three seperate Acts as it states on page 4 of the Brief of Respondents in Opposition document. These three documents: Act 340 (1993), “An Act Relating to the Island of Kaho’olawe,” Act 354 (1993) and Act 359 (1993), “An Act Relating to Hawaiian Sovereignty,” were passed in the spring of 1993 by the Hawaii State Legislature, commemorating the 100th anniversary of the overthrow of the Kingdom of Hawaii. It was only after the State of Hawaii enacted these into law did the U.S. Congress in November 1993, pass a “Joint Resolution recounting the events [relating to the overthrow] in some detail and offer an apology to the native Hawaiian People,” thus the Apology Resolution. If, as the “Question Presented” to the Supreme Court asks, “whether this symbolic [Apology] resolution strips the State of Hawaii of its “state’s right” to sell, exchange, or transfer 1.2 million acres of state land– 29 percent of the total land area of the State and almost all the land owned by the State– unless and until it reaches a political settlement with native Hawaiians about the status of that land,” was really the narrow focus of the appeal, then the U.S. Supreme Court should simply ask that the Hawaii Supreme Court revisit the case without the Apology Resolution. If the “Question Presented” was really the focus of this appeal, the case would then be retried without the Apology Resolution, which based upon the previous documents (Acts 340, 354 and 359), the Hawaii Supreme Court decision would likely remain unchanged. This appeal, being the red herring that it is, should be called the “Haole Koa Rebellion” after the Sagebrush Rebellion. Beginning in 1979, Nevada and other states asserted state title and management authority over the public lands, and challenged the constitutionality of the federal land retention policy. States have not prevailed in litigation on this issue. Bills to change the retention policy were introduced in the 95th, 96th, and 97th Congresses, and again in the 104th and 105th Congresses, but no bills were reported by a committee or saw floor action.1 What the Sagebrush/ “Haole Koa” case threatens is federal land-use policy. This means that the state can mine, drill, privatize development, store nuclear or radioactive waste, essentially use this land for a variety of commercial enterprise. This case is what the Hawaii Supreme Court ruling last year in “OHA vs. Housing and Community Development Corporation of Hawai’i and the State of Hawai’i” ultimately decided. It was a case to develop on public lands trust on Maui. If the Supreme Court rules in favor of the State of Hawai’i, will the ruling then open up the other state’s cases for private development on public lands for example? Could this be the reason why so many of the other states have written an Amicus Brief in support of the Writ of Cert? What the Supreme Court will invariably rule upon, is not whether the Apology Resolution strips Hawaii of its authority to sell, exchange, or transfer 1.2 million acres of ceded land, this Supreme Court will rule upon the constitutionality of whether Congress can, after statehood, “restrain almost all the land granted to a sovereign state.“(p.8 ) In other words, it will rule upon whether Congress has the authority to surrender public lands away from state control– and beyond that, calls into question any authority or control the federal government may have over the public lands within each state. Following on page 9 of the Amicus Brief of the States, it reads: The Hawaii court ruling affects state lands on a scale comparable to [other federalist state’s rights land control cases]… There can be no certainty that a reconciliation process will ever resolve the disputes and claims connected with the United States admitting Hawaii and its people as a sovereign state. The Heritage Foundation, in its website has an article which can be viewed here, called Surplus Federal Property: It’s Time to Sell, which argues for the sale of Federal property, in this case Fort DeRussy. Written in 1982, this is part of a larger Reagan backed initiative to sell federally controlled Public Lands as a way of creating state’s revenue. This was in large part, the agenda of what is called the Sagebrush Rebellion– and you may recall that even Ronald Reagan, upon his election as President called himself a “Sagebrush Rebel” and appointed James Watt, who was vice-chair of the Federal Power Commission to become the Secretary of the Interior, and supported oil and drilling in wilderness areas and refuges, increased offshore drilling and opposed expansion of national parks. Watt also founded the Mountain States Legal Foundation who frequently works with Wilmer Cutler Pickering Hale and Dorr, the legal team representing Attorney General Bennett and the State of Hawaii on this case, and both regularly participate and contibute to the Heritage Foundation. Mountain States Legal Foundation handles litigation on cases relating to property rights and federal land management in the West and is funded by mining, timber and oil interests. Strange that in our new national bankruptcy, the federalist idea of individual states controlling federal lands for creating state revenue should tangentially appear in this Supreme Court case. To what extant the national climate will play on a Supreme Court decision has yet to be seen, but even amidst the chatter of the economy, the war, and the election, the “haole koa rebellion” is beginning. Arnie Saiki Statehood Hawaii/Project Director]]>

3 comments for “The "Haole Koa" Rebellion

  1. Arnie
    February 1, 2009 at 12:59 am

    OHA has appointed Kannon Shanmugam as the Counsel of Record in the State of Hawaii v. OHA case to be heard at the Supreme Court on Feb 25th.
    “After law school, he served as a law clerk to Justice Antonin Scalia on the United States Supreme Court and Judge J. Michael Luttig on the United States Court of Appeals for the Fourth Circuit.”
    Scalia is an advocate of state’s rights– and in this case, he would likely rule in favor of the State of Hawaii.

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