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Ceded Lands Belong to All the People of Hawai’i; There Should Be No Racial Allocation of Ceded Lands or Their Revenues



(c) Copyright 2002 - 2004, Kenneth R. Conklin, Ph.D. All rights reserved


There is no historical, legal, or moral justification for race-based claims to ownership of ceded lands or to the revenues they generate. History, law, and morality all favor using the ceded lands to benefit all Hawai'i's people equally.

Here are the points to be covered: (1) What are the ceded lands? (2) Did ethnic Hawaiians ever have special rights to own the ceded lands or receive revenue from them? (3) Does the Legislature have any obligation to make a racial allocation of ceded lands or revenues? (4) Indeed, does the Legislature have any right to make such a racial allocation? (5) What purpose would be served by doing so? (6) If the Native Hawaiian Recognition bill passes, the federal government will be taking responsibility for ethnic Hawaiian entitlement programs. States generally leave the funding of Indian programs to the federal government. Therefore, it is unwise to establish any permanent flow of State of Hawai'i government resources to a group which might become a federally recognized tribe engaged in adversarial legal battles against the State of Hawai'i.

People who do not have much time and want an overview of the issues might like to read a letter sent to the Legislature in January 2003:
http://www.angelfire.com/hi2/hawaiiansovereignty/cedelandlegltr2003.html

HERE ARE SUMMARIES OF EACH MAIN POINT. EXTENSIVE REFERENCES AND TECHNICAL DETAILS ARE PROVIDED AFTER THE SUMMARIES.


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(1) What are the ceded lands?

The ceded lands include the government and crown lands that were established in the Mahele of 1848 by King Kauikeaouli Kamehameha III. The crown lands were initially regarded as the King's own lands, but as time went by it became clear that the crown lands were owned by the government to provide revenue to support the head of state in his official capacity for national pride, ceremonial activity, and international travel and diplomacy. By the time the monarchy was overthrown the crown lands were virtually indistinguishable from government lands, as shown by a later legal decision in a lawsuit by the ex-queen against the United States. The Annexation, Organic Act, and Statehood Act all treated the government and crown lands under the single category of ceded lands. A fascinating history of land ownership in Hawai'i is Chapter 9 of Thurston Twigg-Smith's book Hawaiian Sovereignty; Do the Facts Matter? (Honolulu, HI: Goodale Publishing, 1998). Mr. Twigg-Smith gave permission to post his entire book, including historical photos, on this website. Download it free of charge, at::
http://bigfiles90.angelfire.com/HawnSovDoFactsMatterTTS.pdf


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(2) Did any racial group ever have special rights to own the ceded lands or receive revenue from them?

In the Kingdom, just as now, government lands were owned by the government and used for roads, harbors, schools, hospitals, parks, and other public purposes that benefitted all residents regardless of race or citizenship. Ethnic Hawaiians had no special racial rights to own private land, nor to control government land, nor to live on or derive benefits from crown lands. Since there were no race-based rights to the government or crown lands before the monarchy was overthrown and before those lands were ceded to the United States, there is no justification for special rights after Annexation or after Statehood, and there is no justification for claims for race-based land-related reparations for the overthrow of the monarchy. A fascinating history of land ownership in Hawai'i is Chapter 9 of Thurston Twigg-Smith's book Hawaiian Sovereignty: Do the Facts Matter? Mr. Twigg-Smith gave permission to post his entire book, including historical photos, on this website. Download it free of charge, at
http://bigfiles90.angelfire.com/HawnSovDoFactsMatterTTS.pdf

The concept of special rights for indigenous people was never asserted by the monarchs or the majority of high-ranking ali'i, who eagerly abandoned whatever indigeneity they may have had in favor of adopting Christianity, written language, private property, constitutional democracy and the rule of law. The clearly established social contract was that newcomers from Europe and America were welcomed as full partners with equal voting rights and property rights, in return for their massive investment of money, expertise, and labor. Asians were brought in as contract laborers, and often stayed in Hawai'i as farmers or entrepreneurs when their labor contracts expired; but Asians were almost entirely excluded from political power by tacit agreement between Hawaiians and whites throughout the Kingdom and the early Territorial period. Today all racial groups have equal rights in Hawai'i (except that some ethnic Hawaiians claim superior rights and often seem to succeed in getting them!).


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(3) Does the Legislature have any obligation to make a racial allocation of ceded lands or revenues? (Annexation, Statehood, 5(f) provisions, Hawai'i Constitution, OHA's creation, subsequent lawsuits)

During the Kingdom and Republic periods, ethnic Hawaiians had no race-based rights to either the government or crown lands, or to the income those lands produced. At annexation, those lands were ceded to the United States to be held in trust for all Hawai'i's people, while revenues "shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes" -- there was no race-based allocation for ethnic Hawaiians. See details later about ex-queen Lili'uokalani's 1910 lawsuit against the United States, demanding compensation for the crown lands ceded at Annexation.

In the Statehood Admission Act of 1959, the U.S. retained some of the ceded lands for national parks and military bases (which benefit all Hawai'i's people equally), while returning most of the ceded lands back to the ownership of the new State of Hawai'i. Section 5(f) of the Admission Act lists five purposes for which ceded land revenues can be used. The Admission Act very clearly says revenues can be used for ANY ONE OR MORE of those five purposes. Only one of those purposes includes any racial language, and says revenues MAY be used (but are not required to be used) for the betterment of native Hawaiians as defined in the Hawaiian Homes Commission Act of 1921 (50% blood quantum). The reason for including "betterment of native Hawaiians" as defined in HHCA of 1921 was undoubtedly to make it clear that part or all of the ceded land revenues could be used for the Hawaiian homelands established under that law. Nothing in the Admission Act authorizes the State of Hawai'i to create anything like OHA, nor to use ceded land revenue for ethnic Hawaiians having less than 50% blood quantum.

It is doubtful whether the U.S. government has the right to give the State of Hawai'i permission to use ceded land revenues for a racial group, which would violate the 14th Amendment equal protection clause.

But even if such permission can legally be granted, it would only ALLOW the State to make a racial allocation but would NOT REQUIRE the State to do so. For the first 20 years of Statehood, 1959-1979, virtually all the ceded land revenues were used for public education, which meant that native Hawaiians received benefits in proportion to their share of the population, just like all other citizens. That 20-year history of no racial allocation shows that it was legal for the State to distribute ceded land revenues without any racial allocation, especially since that 20-year time period came immediately after Statehood when any improper action by the new State of Hawai'i in carrying out any obligations under the Admission Act would surely have drawn the attention of the U.S. government. Furthermore, OHA has never claimed any "back rent" is owed to native Hawaiians for the period 1959-1979 -- such a claim would be ludicrous. Ethnic Hawaiians do not own the ceded lands. The State of Hawai'i does not owe rent for the use of its own lands for public purposes which benefit all Hawai'i's people, including ethnic Hawaiians.

OHA was invented at the Hawai'i Constitutional Convention of 1979. When the Con-Con proposals were offered for ratification in an election, all the changes were approved by the voters (with blank ballots counting as "yes" votes under the rules then prevailing). But the specific OHA proposal (along with DHHL) received the lowest approval rating among all the proposals, at barely over 50%. Soon thereafter the Hawai'i Supreme Court (Kahalekai v. Doi) struck down the definitions of "Hawaiian" and "native Hawaiian" contained in the OHA amendment. The Court ruled that these racially exclusionary definitions were material and had not been properly disclosed to the voters. That court decision, if not altered, would have left OHA in existence, but open to everyone without racial restriction on voting for trustees, candidacy for trustees, and the ability to receive benefits. Unfortunately the Legislature at its next session made a bad decision to re-establish the racial definitions, despite misgivings about them. No Constitutional Convention has been held since then, and OHA campaigned vigorously against a ballot question in 1998 to call such a convention. OHA knows it does not enjoy public support; indeed, OHA occasionally pays for advertising campaigns with expensive TV, radio, and newspaper ads for the sole purpose of promoting "brand recognition" or favorable public opinion. OHA also spends millions on lawsuits to extract more money from the State of Hawai'i, and to lobby for legislation in Hawai'i and in Washington to protect "entitlements" and to get more money.

It is entirely up to the Legislature whether to appriopriate any tax dollars or allocate any ceded land revenues to OHA. There is nothing in the Hawai'i Constitution to specify how OHA shall be funded. It was the Legislature which revived OHA following the Supreme Court invalidation of it, and it was the Legislature which passed a bill to give 20% of ceded land revenues to OHA. It is the Legislature which should take responsibility and repeal its mistakes of the past, rather than forcing expensive civil rights lawsuits where the taxpayers end up paying attorneys' fees and expenses for both sides when the State loses.

Even if the Legislature decides that the existence of 5 enumerated purposes for ceded land revenues implies a 20% share for ethnic Hawaiians, it must be remembered that Hawaiians comprise about 20% of our population and will therefore receive 20% of government expenditures without any special legislation being needed. If a special 20% share were appropriated for OHA, that would be on top of the 20% share ethnic Hawaiians would automatically get through normal race-neutral expenditures. That would be shortchanging 80% of our people. If you rob Peter to pay Paul, Paul will be very happy; but Peter will get angry, vote offending legislators out of office, and file lawsuits when he finds out what has been done to him.

Through either negligence or deliberate subterfuge, the figure of 20% has come to be interpreted as 20% of gross revenue rather than 20% of net income after expenses. Airports, harbors, schools, public housing, and public hospitals require enormous capital investment and operating expenses. Yet OHA's 20% share of gross revenue would come off the top from all the money taken in by those agencies, without regard to capital and operating expenses. In most cases, the net income from government operations on ceded lands is actually negative. Perhaps OHA should pay its fair share of debt service and operating expenses. Perhaps OHA should be sent a bill for all the services Hawaiians receive from the State's general fund expenditures -- especially the services OHA should be providing but neglects in order to invest $300 Million in the stock market.

Suppose you give a beggar on the street a dollar on Monday, Tuesday, and Wednesday; and then you pass by without giving him anything on Thursday. Wouldn't it seem improper and perhaps frightening if that beggar chased after you demanding "his" Thursday dollar on the grounds that your generosity of the previous three days has established a "trust relationship" with him?

It is pure nonsense to say that the State of Hawai'i "owes" "rent" to OHA for the state's use of ceded lands. If the Legislature has the power to appropriate tax dollars for OHA or to allocate ceded land revenues to OHA or to set a percentage of revenues for OHA, then the Legislature also has the power NOT to do so. The Legislature has no obligation to give money to OHA.

Through a series of lawsuits, settlements, and administrative agreements, the State of Hawai'i has already given or pledged hundreds of millions of dollars to OHA and DHHL. Under Judge Heely's decision of 1996, estimates of the State's additional "debt" ranged as high as $1.2 Billion. The State allegedly offered to settle for $250 Million plus 300 million acres, but a greedy OHA refused the offer. A major reason why OHA refused was because the settlement would have been a "global" one, containing language that it was a final settlement and extinguishing any further ceded land claims. OHA wants to be able to sue the State constantly! Finally, on September 12, 2001 the Hawai'i Supreme Court handed down its decision invalidating Act 304 of 1990, invalidating Judge Heely's decision, and dismissing OHA's ceded lands lawsuit. Under that Supreme Court decision, the State has no further obligation to pay any ceded land revenues to OHA unless the Legislature takes action; and in 2002 the Legislature chose to take no action. The Legislature should continue to be so wise in the future!

In 1995 a federal agency gave careful, extended consideration to claims that ethnic Hawaiians have special rights to own or set policy for use of ceded lands. An environmental impact statement was required when Bellows Air Force Station proposed to do a construction project. Claims were aggressively asserted based on the apology bill, the alleged illegality of the overthrow and annexation, and language in the Organic Act (annexation) and the Statehood Admissions Act (section 5(f)). All such claims were totally rejected, with extensive analysis and documentation. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/bellows.html

On December 5, 2002 state Circuit Judge Sabrina McKenna handed down a decision in the case OHA, Aluli, Osorio, et. al. v. State of Hawai'i et. al., CIVIL NO. 94-4207 (SSM). The Honolulu Star-Bulletin and Honolulu Advertiser newspapers of December 6, 2002 reported the decision, as summarized below. See:
http://starbulletin.com/2002/12/06/news/story1.html
and
http://the.honoluluadvertiser.com/article/2002/Dec/06/ln/ln06a.html

According to Star-Bulletin, Judge McKenna "denied a request by the Office of Hawaiian Affairs for a moratorium on the sale of ceded lands. McKenna also ruled that the sale of these lands is not a breach of trust and does not violate the state Constitution. In the 107-page opinion McKenna said the state has the legal authority and sovereign immunity to sell public-trust or ceded lands. The judge added that the creation of OHA and other changes in 1978 to the state Constitution do not alter this power. McKenna said the case involved fundamental issues concerning ceded lands and the trust responsibilities of the state in relation to the native Hawaiian people." The decision explicitly took account of "the distinct possibility of the creation and recognition of a sovereign Hawaiian government, [and] that the state, as trustee of the ceded-lands trust, owes a high standard of fiduciary duty to the beneficiaries of the ceded-lands trust." The decision also took account of the alleged illegality of the overthrow of the Hawaiian Kingdom, the alleged historical injustices affecting Native Hawaiians, and the 1993 apology bill. Bill Meheula, attorney for a group of individual plaintiffs in the case, had argued that the apology bill was a confession by the United States that it had taken the ceded lands illegally, and therefore the title to the ceded lands is clouded. Sherry Broder, attorney for OHA, also argued that international law protects the propertry rights of indigenous people. But John Komeiji, a private attorney hired by the state, successfully argued that the state's laws and constitution take priority over an alleged international law declaration regarding the rights of indigenous people, both because that declaration is only in draft form unapproved by the United Nations and also because the declaration was never endorsed by the United States. Judge McKenna also disagreed with the plaintiff's argument that Native Hawaiian land rights are comparable to and should be given the same treatment as Native American claims.


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(4) Does the Legislature have any right to make a racial allocation of ceded land revenues if it wishes to do so?

The answer is no, because of the equal protection clause of the 14th Amendment of the U.S. Constitution. In the Admission Act the U.S. specifies 5 purposes for ceded land revenues, allowing the revenues to be used for any one or more of them. Since one of those 5 purposes is "the betterment of native Hawaiians as defined in the Hawaiian Homes Commission Act of 1921," the U.S. appears to give permission to the State of Hawai'i to make a racial allocation of ceded land revenues. But the U.S. does not have the right to give a State permission to do something which violates the U.S. Constitution. It is also questionable whether the land trust established at Annexation in 1898 to benefit all Hawai'i's inhabitants can be changed in 1959 by attaching strings to the return of the land. Furthermore, according to the equal footing doctrine, all states enter the union on an equal footing, which would seem to mean that the strings can have no force or effect. See further details later, regarding the requirements that must be met before a government agency is allowed to engage in racial favoritism or discrimination.


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(5) What purpose would be served by making a racial allocation of ceded lands or their revenues?

The Hawaiian grievance industry portrays ethnic Hawaiians as poor and downtrodden, with the worst statistics for poverty, disease, drug abuse, incarceration, homelessness, and family dysfunction; therefore, Hawaiians should be entitled to special government handouts. But of course there are two major problems with this rationale. First, not all Hawaiians are needy -- some (indeed, many) are quite wealthy. It is a form of racial profiling and prejudice to stigmatize people as having undesirable personal characteristics merely because of their race. Second, many people with no Hawaiian blood are very needy, and should receive government help even though they lack the magic blood. Government benefits should be given to needy people for only one reason -- because they are needy, not because of their race. It is both unconstitutional and immoral for a government of all the people to place one racial group ahead of all others who need government assistance.

Hawaiian activists say the issue is self-determination. That seems to mean that ethnic Hawaiians should be able to exercise political power based on race. Hawaiians who need government help should go to agencies controlled by ethnic Hawaiians, while people with no Hawaiian blood cannot go to those institutions. Such an attitude is reminiscent of "whites only" signs on Mississippi drinking fountains, or "separate but equal" dining cars on passenger trains. For example, OHA was established to provide benefits only to ethnic Hawaiians, and only Hawaiians could vote for trustees or serve as trustees. But in the Rice decision the U.S. Supreme Court ruled that it is unconstitutional to have racially exclusionary voting for OHA trustees; and in Arakaki #1 the U.S. District Court in Honolulu ruled that it is unconstitutional to have racially exclusionary candidacy for OHA trustees. The Barrett and Carroll lawsuits attacked the racial restriction on who can receive benefits from OHA; and although those lawsuits were dismissed on technical grounds regarding lack of standing of the plaintiffs, the underlying issues remain undecided until plaintiffs with standing file suit. In Arakaki #2, a multiracial group of taxpayers have been ruled to have standing to complain about tax dollars being spent for racially exclusionary programs. The judge has ruled that as taxpayers they do not have standing to complain about non-tax ceded land revenues; but as Legislators you know that government revenue diverted from the general fund to serve a special purpose must either be replaced by tax dollars or else general services must be cut.

"Self-determination", as used by Hawaiian activists, means racial separatism and balkanization. It means carving up Hawai'i into racial enclaves. All Hawai'i's people have self-determination collectively. That self-determination was exercised in the Statehood plebiscite of 1959 where 94% of all voters said "yes" to Statehood -- a clear majority of every racial group including Hawaiians. Our collective self-determination continues to be exercised when we vote every two years. Should the Confederate States have been allowed to secede and form an independent nation as an exercise in self-determination? Should black Americans be allowed to form their own nation of New Africa? Should the "indigenous" people descended from at least one Aztec ancestor, living in those States that were formerly part of Mexico, be allowed to establish their own nation of Aztlan? Hawai'i Legislators need to think very carefully whether to encourage apartheid in Hawai'i. Making a racial allocation of ceded lands, or of ceded land revenues, puts us on a path to Bosnia, Rwanda, Zimbabwe, and Fiji.


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(6) If the Akaka bill (Native Hawaiian Recognition bill) passes, the federal government will be taking responsibility for ethnic Hawaiian entitlement programs. States generally leave the funding of Indian programs to the federal government. Therefore, it is unwise to establish any permanent flow of State of Hawai'i government resources to a group which might become a federally recognized tribe engaged in adversarial legal battles against the State of Hawai'i.

Those Legislators who support the Akaka bill are contradicting themselves if they also support establishing a permanent flow of ceded land revenues to OHA. Let the federal government pay for Hawaiian entitlement programs as it does with other recognized Indian tribes. Also, those who support the Akaka bill should not be supporting any handing over of ceded land ownership or decision-making power to OHA. If the Akaka bill passes there will then be negotiations over land among the federal government, the State of Hawai'i, and the new federally recognized Native Hawaiian governing entity. Those negotiations will be very difficult and contentious. Jurisdictional disputes will plague both the State of Hawai'i and the new tribal government for many decades, especially because the "tribal lands" will be sprinkled throughout the area now known as the State of Hawai'i. Kanakaland would certainly include all the Hawaiian Homelands, and possibly include numerous portions of the "ceded lands" currently owned by the State, and perhaps also the lands owned by Bishop Estate (Kamehameha Schools). The State of Hawai'i needs to keep its options open, and not give away valuable resources before negotiations even begin. If lands that now belong to all Hawai'i's people are to be handed over to a racially exclusionary group of only some of our people, we need our Legislature to be a strong defender of the rights of all our people.

There are important reasons why the Akaka bill should be opposed. Since this essay is about the ceded lands issue and not the Akaka bill, the points in opposition to the Akaka bill should be left for a different discussion. For a quick introduction, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/medianotes.html

For lengthy, detailed analysis, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/OpposeAkakaBill.html


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EXPANDED EXPLANATIONS AND REFERENCES:

REMINDER OF IMPORTANT 1995 BELLOWS ENVIRONMENTAL IMPACT STATEMENT:

In 1995 a federal agency gave careful, extended consideration to claims that ethnic Hawaiians have special rights to own or set policy for use of ceded lands. An environmental impact statement was required when Bellows Air Force Station proposed to do a construction project. Claims were aggressively asserted based on the apology bill, the alleged illegality of the overthrow and annexation, and language in the Organic Act (annexation) and the Statehood Admissions Act (section 5(f)). All such claims were totally rejected, with extensive analysis and documentation. See:
http://www.angelfire.com/hi2/hawaiiansovereignty/bellows.html

REMINDER: A fascinating history of land ownership in Hawai'i is Chapter 9 of Thurston Twigg-Smith's book Hawaiian Sovereignty; Do the Facts Matter? This material includes a review of the Mahele process, how private land got separated from government and crown lands, why the process was fair to ethnic Hawaiians, how crown lands became virtually indistinguishable from government lands, how the ceding of public lands to the U.S. at Annexation did not produce any theft of land, and why ethnic Hawaiians have no racial claim to ceded lands. Mr. Twigg-Smith gave permission to post his entire book, including historical photos, on this website. Download it free of charge, at::
http://bigfiles90.angelfire.com/HawnSovDoFactsMatterTTS.pdf


LIST OF TOPICS FOR EXPANDED EXPLANATIONS AND REFERENCES, in this order:

CROWN LANDS BECAME GOVERNMENT PROPERTY DURING THE KINGDOM, AND TODAY THERE IS NO DIFFERENCE BETWEEN CROWN LANDS AND GOVERNMENT LANDS

PEOPLE WITH NO HAWAIIAN BLOOD WERE FULL PARTNERS IN THE KINGDOM WITH VOTING RIGHTS, PROPERTY RIGHTS, AND HIGH GOVERNMENT POSITIONS AS LEGISLATORS, JUDGES, AND CABINET MEMBERS. THUS, THE GOVERNMENT AND CROWN LANDS DID NOT BELONG TO ANY ONE RACIAL GROUP. ANYONE BORN IN HAWAI'I, PLUS EVERY IMMIGRANT WHO CHOSE TO GET NATURALIZED, WAS A SUBJECT OF THE KINGDOM WITH RIGHTS EQUAL TO THOSE OF THE NATIVES (demands for special "indigenous rights" today are contrary to the wishes of the beloved ancestors and the legal precedents they established).

AT ANNEXATION IN 1898 THE CEDED LANDS WERE TO BE HELD IN TRUST FOR ALL THE INHABITANTS OF HAWAI'I (NO RACIAL DESIGNATIONS), ONLY 30% OF WHOM HAD ANY HAWAIIAN BLOOD

AT STATEHOOD IN 1959 THE U.S. GAVE BACK MOST OF THE CEDED LANDS TO HAWAI'I, GIVING PERMISSION (PROBABLY UNCONSTITUTIONAL) TO THE STATE TO MAKE A RACIAL ALLOCATION OF CEDED LAND REVENUES (ONLY) TO HAWAIIANS WITH 50% BLOOD QUANTUM, BUT NOT REQUIRING HAWAI'I TO MAKE ANY RACIAL ALLOCATION AT ALL. HAWAI'I RESPONDED BY GIVING ALL CEDED LAND REVENUES TO THE PUBLIC SCHOOLS FROM 1959-1979, THEREBY BENEFITTING ALL CITIZENS, INCLUDING NATIVE HAWAIIANS, WITH NO RACE-SPECIFIC ALLOCATION

AT STATEHOOD IN 1959 THE U.S. GAVE BACK MOST OF THE CEDED LANDS TO HAWAI'I, GIVING PERMISSION (PROBABLY UNCONSTITUTIONAL) TO THE STATE TO MAKE A RACIAL ALLOCATION OF CEDED LAND REVENUES (ONLY) TO HAWAIIANS WITH 50% BLOOD QUANTUM, BUT NOT REQUIRING HAWAI'I TO MAKE ANY RACIAL ALLOCATION AT ALL. HAWAI'I RESPONDED BY GIVING ALL CEDED LAND REVENUES TO THE PUBLIC SCHOOLS FROM 1959-1979, THEREBY BENEFITTING ALL CITIZENS, INCLUDING NATIVE HAWAIIANS, WITH NO RACE-SPECIFIC ALLOCATION

A GOVERNMENT PROGRAM CANNOT LEGALLY DISCRIMINATE FOR OR AGAINST ANY RACIAL GROUP UNLESS THE PROGRAM SURVIVES STRICT SCRUTINY, MEANING THAT IT MUST BE NARROWLY TAILORED (DIRECTLY FOCUSED AND TEMPORARY) TO MEET A COMPELLING GOVERNMENT INTEREST

OHA'S 20% SHARE OF GROSS REVENUE TURNS OUT TO BE MORE THAN 100% OF NET INCOME FROM CEDED LANDS; AND EVEN IF IT WERE HELD TO 20% OF NET INCOME, NATIVE HAWAIIANS WOULD GET THAT ON TOP OF THE 20% THEY WOULD NORMALLY RECEIVE BY BEING 20% OF THE POPULATION.

SOME ETHNIC HAWAIIANS CLAIM THEY ARE OWED REPARATIONS FOR THE OVERTHROW OF THE MONARCHY, OR FOR THE CEDING OF LANDS AT ANNEXATION. BUT THERE IS NO HISTORICAL, LEGAL, OR MORAL JUSTIFICATION FOR SUCH A CLAIM.

FOR A HISTORY OF THE CEDED LANDS CASE AND AN ANALYSIS OF IT: see an article in the Hawai'i Bar Journal by H. William Burgess and Sandra Puanani Burgess. FOR DETAILED LEGAL ARGUMENTS CONCERNING THE CEDED LANDS, see also a MOTION TO INTERVENE, MEMO IN SUPPORT, AND LEGAL BRIEF filed in the ceded lands case by a multiracial group of 23 citizens, plus an analysis of the RICE V. CAYETANO DECISION.

FOR LEGAL ARGUMENTS CONCERNING WHY OHA IS UNCONSTITUTIONAL, SEE DOCUMENTS FILED IN THE ARAKAKI #2 LAWSUIT NOW ONGOING.

Each of these items will now be covered in the order listed above.


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CROWN LANDS BECAME GOVERNMENT PROPERTY DURING THE KINGDOM, AND TODAY THERE IS NO DIFFERENCE BETWEEN CROWN LANDS AND GOVERNMENT LANDS

In 1865, after the King had mortgaged the crown lands to pay off gambling debts and support a lavish lifestyle, he was in danger of losing them through foreclosure. The legislature passed a law to issue government bonds to pay off the mortgages and to prohibit the King from selling or mortgaging those lands. Thus, the government took ownership and control of the crown lands through an act of the Legislature, signed by a grateful King.

Further evidence that the crown lands belonged to the government is the fact that when a King died the crown lands were passed to the next monarch and not to the dead king's personal heirs, even when the Kamehameha dynasty ended and a king from a different family was elected (Lunalilo), and then again when the next king was from a still different family (Kalakaua).

Further evidence that the crown lands belonged to the government and not to the monarch is contained in the findings of the court that ruled against ex-queen Lili'uokalani in her lawsuit against the United States in 1910. Lili'uokalani had claimed that the crown lands belonged to her personally, and she was entitled to compensation from the United States for the ceding of those lands at the time of annexation. The court ruled against her on the basis of Hawaiian Kingdom law, showing that the land had never belonged to her personally. The Lili'uokalani lawsuit is also interesting because by claiming the land belonged to her personally, this champion of the ethnic Hawaiians denied that the land belonged to Hawaiians as a racial group. Finally, the court ruling includes important language from the legislative act of 1865, and the treaty of annexation offered by the Republic of Hawai'i in 1897 which was accepted by joint resolution of Congress in 1898, and language from the Organic Act of 1900; all of which proves that the crown land is no longer legally distinguishable from the government land, and that the crown land was rightfully the property of the Republic, then the United States, and then the State. For the complete court decision in the 1910 crown lands lawsuit, including the valuable appendices mentioned above, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/liliucrownlands.html


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PEOPLE WITH NO HAWAIIAN BLOOD WERE FULL PARTNERS IN THE KINGDOM WITH VOTING RIGHTS, PROPERTY RIGHTS, AND HIGH GOVERNMENT POSITIONS AS LEGISLATORS, JUDGES, AND CABINET MEMBERS. THUS, THE GOVERNMENT AND CROWN LANDS DID NOT BELONG TO ANY ONE RACIAL GROUP. ANYONE BORN IN HAWAI'I, PLUS EVERY IMMIGRANT WHO CHOSE TO GET NATURALIZED, WAS A SUBJECT OF THE KINGDOM WITH RIGHTS EQUAL TO THOSE OF THE NATIVES (demands for special "indigenous rights" today are contrary to the wishes of the beloved ancestors and the legal precedents they established).

In 1840 King Kauikeaouli Kamehameha III proclaimed the first Constitution. Other Constitutions were established in 1852, 1864, and 1887. Under all four Kingdom Constitutions, ethnic Hawaiians never had any racially-determined superior voting rights or land rights. White and Asian immigrants were allowed to take a loyalty oath and become subjects of the Kingdom with rights equal to those of the natives. Foreigners who did not become naturalized subjects were sometimes allowed to obtain "denization" papers which entitled them to vote while retaining their citizenship in their countries of origin. All persons born in Hawai'i were subjects of the Hawaiian Kingdom who, upon reaching maturity, would have full voting rights and property rights on the same basis as the natives, although Asians were disenfranchised under the last Constitution at the wish of both Hawaiian and white leaders.
http://www.angelfire.com/hi2/hawaiiansovereignty/HanifinCitizen.html

People with no Hawaiian blood held many positions in the Kingdom governments, including substantial numbers of elected and appointed members of both houses of the Legislature. The vast majority of cabinet members and judges throughout the Kingdom, freely appointed by the sovereign monarchs and confirmed by the predominantly ethnic-Hawaiian Legislature, had no Hawaiian blood. Indeed, long before there was a Constitution, Englishman John Young was named by Kamehameha the Conqueror to be Governor of his home island of Hawai'i, and Young married into Kamehameha's family and became grandfather to Queen Emma. Thus, people with no Hawaiian blood were full partners in the Kingdom, as a result of decisions made by sovereign Kings and Hawaiian-dominated Legislatures exercising self-determination on behalf of their people.
http://www.angelfire.com/hi2/hawaiiansovereignty/fullpartners.html


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AT ANNEXATION IN 1898 THE CEDED LANDS WERE TO BE HELD IN TRUST FOR ALL THE INHABITANTS OF HAWAI'I (NO RACIAL DESIGNATIONS), ONLY 30% OF WHOM HAD ANY HAWAIIAN BLOOD

In the Annexation of 1898, the Republic of Hawai'i ceded to the United States all the land which it controlled, in return for numerous conditions demanded by the Republic of Hawai'i, including these three: (a) every citizen of the former Kingdom of Hawai'i or the current Republic of Hawai'i would become a United States citizen; (b) the U.S. compensated the people of Hawai'i by agreeing to pay off the debts of the Republic (most of which were debts from the Kingdom), and thereby paid more than the probable market value of all the ceded lands at that time; and (c) the U.S. agreed not to simply take over ownership of the ceded lands, but to hold them in trust for the people of Hawai'i, and the income from the ceded lands "shall be used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes". Note that there was no racial earmarking of the ceded lands or their revenues -- the ceded lands were placed into a trust to benefit all the inhabitants of Hawai'i. And in 1898, only about 30% of the inhabitants had any Hawaiian blood at all (Native Hawaiian Databook).


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AT STATEHOOD IN 1959 THE U.S. GAVE BACK MOST OF THE CEDED LANDS TO HAWAI'I, GIVING PERMISSION (PROBABLY UNCONSTITUTIONAL) TO THE STATE TO MAKE A RACIAL ALLOCATION OF CEDED LAND REVENUES (ONLY) TO HAWAIIANS WITH 50% BLOOD QUANTUM, BUT NOT REQUIRING HAWAI'I TO MAKE ANY RACIAL ALLOCATION AT ALL. HAWAI'I RESPONDED BY GIVING ALL CEDED LAND REVENUES TO THE PUBLIC SCHOOLS FROM 1959-1979, THEREBY BENEFITTING ALL CITIZENS, INCLUDING NATIVE HAWAIIANS, WITH NO RACE-SPECIFIC ALLOCATION

In section 5 (f) of the statehood Admission Act of 1959, the U.S. returned ceded lands to Hawai'i to be owned by Hawai'i "as a public trust" for "one or more" of five purposes: (except for national parks, military bases and other land retained by the federal government): (1) "for the support of public schools and other public educational institutions", (2) "for the betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act" (i.e., 50% or more blood quantum), (3) "for the development of farm and home ownership", (4) "for the making of public improvements" and (5) "for the provision of lands for public use".

The most important thing to notice in the language of section 5(f) is that the ceded lands can be used for any one or more of the five enumerated purposes. There is no requirement that any of the ceded land revenues be set aside for the racial category of native Hawaiians. Indeed, for the first 20 years of Statehood, from 1959-1979, virtually 100% of ceded land revenues went to support the public schools. Clearly, it would be legal under section 5(f) to do that again -- designate all the ceded land revenues to go to public education. Such an allocation would result in ethnic Hawaiians receiving about 26% of ceded land revenues, since Hawaiian children make up about 26% of the school children. Thus, by sending 100% of ceded land revenues to the public schools, ethnic Hawaiians would get 26% of ceded land revenues, which is more than the 20% share formerly given to OHA, and without any unconstitutional racial designation.

Another important thing to notice in the language of section 5(f) is that the second purpose which identifies "betterment of the conditions of native Hawaiians" specifically restricts that to Hawaiians whose blood quantum is 50% or more. There is absolutely no provision in the Admission Act for ethnic Hawaiians of less than 50% blood quantum. So, even under the theory that the naming of the five purposes enumerated should be interpreted to mean a 20% share for each purpose, the entire 20% share for "betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act" would be allocated only to the approximately 5% of Hawai'i's population who have 50% Hawaiian blood quantum. There is no language at all to indicate any obligation to the great majority of ethnic Hawaiians who have low blood quantum. But as noted above, there is really no obligation to any racial group at all, since the language of section 5(f) clearly states that ceded land revenues can be spent for any one or more of the five purposes; and for 20 years it was customary and traditional to spend all the ceded land revenues for the one purpose of public education which benefitted all racial groups equally in proportion to their percentage of the population.


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A GOVERNMENT PROGRAM CANNOT LEGALLY DISCRIMINATE FOR OR AGAINST ANY RACIAL GROUP UNLESS THE PROGRAM SURVIVES STRICT SCRUTINY, MEANING THAT IT MUST BE NARROWLY TAILORED (DIRECTLY FOCUSED AND TEMPORARY) TO MEET A COMPELLING GOVERNMENT INTEREST

Government programs cannot favor one race while excluding others, unless they survive strict scrutiny; meaning that such a program must be narrowly tailored to meet a compelling government interest. The only government interest that has been found to be sufficiently compelling up to the present time to justify government racial discrimination is to remedy the present effects of past government discrimination. For example, a police department which formerly discriminated against black job applicants might be required to favor black applicants until the proportion of black employees is in line with the proportion of black people in the community; or a city which formerly segregated its schools by gerrymandering attendance districts might be required to use school busing to achieve desegregation. But such programs must be narrowly tailored, which means (among other things) that it must be a temporary program which can be expected to end when the present effects of past discrimination have been sufficiently mitigated. In Hawai'i it has never been claimed that racial discrimination against Hawaians would require a remedy of racially-designated ceded land revenues, nor would such a claim be plausible. Furthermore, the allocation of ceded land revenues sought by OHA is regarded as a permanent political arrangement, for a permanent goal of self-determination in addition to economic betterment; thus, it cannot pass the test of being narrowly tailored.


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OHA'S 20% SHARE OF GROSS REVENUE TURNS OUT TO BE MORE THAN 100% OF NET INCOME FROM CEDED LANDS; AND EVEN IF IT WERE HELD TO 20% OF NET INCOME, NATIVE HAWAIIANS WOULD GET THAT ON TOP OF THE 20% THEY WOULD NORMALLY RECEIVE BY BEING 20% OF THE POPULATION.

In actual practice, the "20 percent" allocation of ceded land revenue to OHA turns out to be more than 100%. That's because the 20% figure is regarded as 20% of gross revenue, rather than 20% of net income. There are huge capital and operating expenses involved in airports, harbors, public housing, public hospitals, universities, etc. OHA demands 20% of the gross revenue from operating them, while taxpayers must pay all the bills both for building and for operating them. Indeed, public housing, public hospitals, and universities run at a loss. So, in actual practice OHA would end up taking far more than the entire net income after expenses.

An easy way to understand this point is this: if OHA is supposed to get 20% of ceded land revenue on the theory that "betterment of the conditions of native Hawaiians" is one of five purposes for ceded land revenues, then every dollar the State gives to OHA should be matched by a dollar for each of the other four enumerated purposes. If the State were to negotiate a settlement with OHA of $250 million plus 300,000 acres of land, then the public schools should also be given $250 million plus 300,000 acres; and also each of the other three purposes of farm and home ownership, the making of public improvements, and the provision of lands for public use. OHA argues that according to trust law, when there are five named beneficiaries they all must be treated fairly and equally, and they all have rights to be consulted about the disposition of trust assets. If that is true, then all the beneficiaries of the ceded lands trust (the entire population of Hawai'i) have a right to complain and to sue for damages if OHA gets a settlement which is denied to the other beneficiaries. Furthermore, ethnic Hawaiians comprise about 20% of the population. Thus, in the normal course of government expenditures to benefit the public at large, ethnic Hawaiians would automatically receive about 20% of all government revenues including ceded land revenues. To earmark an additional 20% specifically for that racial group would result in that one group getting 40% of the benefits, which is clearly disproportional and violates the rights of the other beneficiaries of the ceded lands trust.


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SOME ETHNIC HAWAIIANS CLAIM THEY ARE OWED REPARATIONS FOR THE OVERTHROW OF THE MONARCHY, OR FOR THE CEDING OF LANDS AT ANNEXATION. BUT THERE IS NO HISTORICAL, LEGAL, OR MORAL JUSTIFICATION FOR SUCH A CLAIM.

See a detailed, thoroughly documented analysis of Hawaiian reparations by attorney Patrick Hanifin:
http://www.angelfire.com/hi2/hawaiiansovereignty/hanifinreparations.html

See also a detailed analysis of 29 false and twisted historical and legal claims often asserted when legislation is proposed on behalf of the Hawaiian grievance industry:
http://www.angelfire.com/hi2/hawaiiansovereignty/S1929.html


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FOR A HISTORY OF THE CEDED LANDS CASE AND AN ANALYSIS OF IT, including footnotes providing legal citations to important cases, see an article in the Hawai'i Bar Journal by H. William Burgess and Sandra Puanani Burgess:
http://www.angelfire.com/hi2/hawaiiansovereignty/burgesscededhbj0701.html

There are detailed legal arguments included in documents filed in an attempt to intervene in the ceded lands lawsuit. On March 28, 2000 a multi-racial group of 23 citizens of Hawaii MOVED TO INTERVENE in OHA v. State in the Hawaii Supreme Court. Their MEMO IN SUPPORT charges the State Attorney General has a conflict of interest because he represents the interests of OHA in the Rice case. Their PROPOSED BRIEF challenges the validity of OHA itself based on the RICE DECISION.


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FOR A RECENT ANALYSIS OF WHY OHA IS UNCONSTITUTIONAL, SEE

Arakaki v. Cayetano -- also known informally as Arakaki #2 -- A multiethnic group of 16 Hawai'i citizens (including 3 ethnic hawaiians) file suit March 4, 2002 challenging the Constitutionality of both the Office of Hawaiian Affairs and the Hawaiian Homes Commission Act. This large webpage includes a press release, timeline of the ceded lands dispute, and major legal documents filed in the Arakaki #2 lawsuit.
http://www.angelfire.com/hi2/hawaiiansovereignty/arakaki2ohadhhl.html


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