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OHA demands the 2009 Legislature pass a bill placing a moratorium on the sale of any parcel of ceded lands until such time as ethnic Hawaiians and the State have agreed on how the ceded lands are to be divided between themselves.

In 2009 OHA is demanding that the Legislature pass a bill to prohiit the sale of any parcels of ceded lands until such time as an agreement has been reached between ethnic Hawaiians and the State regarding how the ceded lands should be divided between ethnic Hawaiians and the State. OHA's demand for this legislation it closely tied to the lawsuit pending in the U.S. Supreme Court. The idea is that if the Court rules against OHA on OHA's claim that the apology resolution requires such a moratorium, then the Legislature can pass such a moratorium under its own authority.

To read about the Supreme Court ceded lands case, go to:
Selling the Ceded Lands -- The Hawaii Supreme Court ruled that the State cannot sell ceded lands without permission from ethnic Hawaiians; but the State appealed to the U.S. Supreme Court which agreed to decide the case.

OHA website, news release

OHA bill seeks moratorium on sale of ceded lands
Written by Public Information Office
Monday, 12 January 2009

Download PDF of this release

Download PDF of Chairperson Haunani Apoliona's remarks

Download PDF of the bill OHA will submit

Listen to MP3 audio of the news conference

** Ken Conklin's note: During audio tape, OHA renews its request for State to withdraw appeal from SCOTUS. Toward the end of the audio tape, there is discussion of the Newlands Resolution, and of the fact that Newlands was not mentioned in State's request for certiorari but mentioned extensively in State's brief on the merits. Broder says they hope that after OHA files its brief, then when State files its reply brief, State will somehow ask SCOTUS to forget about Newlands. Amazing! OHA hopes State will reconsider the whole appeal, but even if it feels it must go forward with appeal, then please, State, gut your own arguments.

** Continuing with OHA press release

HONOLULU – The Office of Hawaiian Affairs announced today it has drafted a bill for introduction to the 2009 session of the state Legislature that will enact public policy for a moratorium on the sale and exchange of ceded lands.

The decision by OHA Trustees to move forward with this legislation emerged following the state administration's appeal to the U.S. Supreme Court of the unanimous ruling by the Hawai'i Supreme Court that prevents ceded lands from being sold or transferred until the "unrelinquished claims" of Native Hawaiians to those lands are settled.

"We continue to believe that the Justices of the Hawai'i Supreme Court ruled correctly and this bill is the legislative vehicle to implement the decision of the state's highest court," said OHA Trustee Haunani Apoliona, Chairperson of the OHA Board of Trustees. "This legislation is a means of maintaining the status quo and ensuring that the Public Lands Trust is preserved in order to ensure a fair and just settlement leading to reconciliation with the Native Hawaiian people."

Under the bill, the state would be prohibited from the fee simple sale of lands in the Public Land Trust that were: Ceded to the United States by the Republic of Hawai'i in 1898. Acquired in exchange for lands so ceded, and granted to the State of Hawai'i by the Admission Act of 1959. Retained by the United States under the Admission Act of 1959 and later conveyed to the State in 1964.

The prohibition would also apply to the exchange of these lands for private lands.

While the bill prevents the sale of the lands, it would allow for transfer of lands between state agencies and allow for the state to lease the lands, for a true public purpose.

In 1994, OHA and four individual plaintiffs – Pia Thomas Aluli, Jonathan Kamakawiwo'ole Osorio, Charles Ka'ai'ai and Keoki Kamaka Ki'ili – sued to prevent the State of Hawai'i from selling ceded lands.

At that time, the State was ready to sell about 500 acres in Lāhaina in a project called Leiali'i and another 1,000 acres in Kona in a project referred to as La'i'ōpua.

The lawsuit alleged that the State as trustee of the ceded land trust should not sell ceded lands pending resolution of Native Hawaiian claims to ceded lands.

In 2002, Circuit Judge Sabrina McKenna entered judgment in favor of the State and held that the State was authorized under the Admission Act to sell ceded lands.

In January, 2008, The Hawai'i Supreme Court, in a unanimous decision, reversed the lower court decision, and held that in light of the Apology Resolution and similar State legislation, the State possessed a fiduciary duty to preserve the corpus of the Public Land Trust, specifically, the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved.

The state administration appealed to the U.S. Supreme Court and in October, the court said it would hear the case. The state filed its opening brief last month and OHA's brief is due Jan. 21. Oral arguments before the court in Washington, D.C., is scheduled for Feb. 25.

"This case, now on appeal before the U.S. Supreme Court, is of grave concern," Apoliona said. "This appeal could very well provide the Justices of the U.S. Supreme Court an opportunity to undermine all Native Hawaiian programs and assets as well as the legal basis for Native Hawaiian federal recognition. A far-reaching decision by the U.S. Supreme Court could affect OHA's ability to carry out its mission of bettering the conditions of Native Hawaiians."

Apoliona said that OHA has requested and continues to request that the state administration withdraw its appeal to the U.S. Supreme Court. "While we understand the State's need to assert its own interests, it is imperative that the State concurrently fulfill its Trust duties and obligations to Native Hawaiians regarding our Trust lands and rights as native indigenous people. We look to the Legislature to assist in this regard."

"Preservation of the land trust will enable Native Hawaiians to continue down the path toward self-determination in order to reach a fair and just outcome with respect to the unrelinquished claims to these lands of the Native Hawaiian people," she said.

Crystal Kua
Director of Communications
Public Information Office
Office of Hawaiian Affairs
P: 808.594.1983| C: 808.265.9308
F: 808.594-0267

Honolulu Advertiser, Tuesday, January 13, 2009

OHA looks for some backup
It wants to enlist state legislators' aid in court battle over ceded lands

By Gordon Y.K. Pang

Leaders of the Office of Hawaiian Affairs want to enlist the state Legislature in its U.S. Supreme Court fight against the Lingle administration over ceded lands.

OHA board Chairwoman Haunani Apoliona yesterday said she and her colleagues will lobby lawmakers to pass a bill that would impose a moratorium on the sale of ceded lands until the "unrelinquished claims" of Native Hawaiians to those lands are settled.

Such a moratorium would mirror the language of a January 2008 Hawai'i Supreme Court decision that ordered the state not to sell or transfer ceded lands until claims by Hawaiians to those lands are resolved.

The Lingle administration appealed the decision to the U.S. Supreme Court, which has agreed to consider the case and will hear oral arguments in late February.

"This legislation is a means to maintain the status quo to ensure that the public lands trust is maintained and preserved in anticipation of a meaningful, fair and just reconciliation process with the Native Hawaiian people," Apoliona said.

Ceded lands are the 1.2 million acres once owned by the Hawaiian government and subsequently taken over by the United States as a result of the 1898 annexation.

Those lands were then passed to the state and designated for five purposes, including — but not exclusively for — the betterment of Native Hawaiians. They make up the bulk of state-owned lands and are 29 percent of the state's land area.

OHA attorney Sherry Broder said she believes a moratorium passed by the Legislature would help OHA's case. "Right now, really what we have is a conflict between two branches of government," Broder said.

OHA administrator Clyde Namu'o said several lawmakers in both the House and the Senate are expected to introduce their own versions of a moratorium bill.

House Speaker Calvin Say, through a spokeswoman, said he had not yet seen the OHA bill and is taking a wait-and-see attitude on whether House leadership would support such a measure.

Senate President Colleen Hanabusa could not be reached for comment.

Sen. Clayton Hee, D-23rd (Kahuku, Kane'ohe), who heads the Hawaiian Affairs committee, said he expected to introduce his own legislation supporting the Hawai'i Supreme Court decision. Hee said Hanabusa, long a supporter of Hawaiian rights issues, has indicated to him that she will do the same.

At her own press conference yesterday on an unrelated issue, Gov. Linda Lingle declined to comment on OHA's proposal. "I haven't seen the bill yet," Lingle said. "So I'll have to wait until I see it."

Apoliona said OHA has been grateful to Lingle for her support of Native Hawaiian issues in the past, including the restarting of payments to OHA for a share of the revenues derived from the use of ceded lands. But OHA wants to stop the administration's appeal because it "could very well provide the justices of the Supreme Court an opportunity to undermine all Native Hawaiian programs and assets as well as undermine the legal basis for Native Hawaiian federal recognition," she said.

Bennett, in previous interviews, has insisted that the administration is bound to fight the Hawai'i court decision because the case clouds the state's title to ceded lands. Any claims Hawaiians have to the lands should not be argued in a courtroom, but in negotiations among the state, the U.S. government and a Native Hawaiian governing entity, Bennett said. Hawaiians may have a moral claim to ceded lands but they do not have a legal one, he said.

The original lawsuit, brought by four Native Hawaiians and the Office of Hawaiian Affairs in 1994, sought to temporarily halt the sale of about 1,500 acres in Lahaina and Kona to private interests to pay for affordable-housing projects for moderate- and low-income families, regardless of whether they have Hawaiian blood, until Hawaiian claims to the lands had been resolved.

Honolulu Star-Bulletin, Jan 13, 2009

OHA wants ban on ceded-land sales

By Richard Borreca

The Office of Hawaiian Affairs is hoping to get support from the state Legislature to stop the state from selling or exchanging ceded lands until native Hawaiian land claims have been settled.

The state will argue before the U.S. Supreme Court next month that the state should be able to sell or transfer land that it controls, even if it is ceded land that formerly belonged to the Hawaiian kingdom.

OHA trustees said yesterday that they would ask for legislation that would support a state Supreme Court ruling forbidding the state from selling any of the state's 1.2 million acres of ceded lands.

"We continue to believe that the justices of the Hawaii Supreme Court ruled correctly, and this bill is the legislative vehicle to implement the decision," OHA Chairwoman Haunani Apoliona said.

Sen. Clayton Hee, chairman of the Hawaiian Affairs Committee, said he is also considering similar legislation and expects support from other legislative leaders.

"The Senate president (Colleen Hanabusa) is also going to have a proposal; we will hold a hearing and then, if there is support, consolidate the ideas into one bill," Hee said.

The proposal, Apoliona said, would prevent the sale of the ceded lands, but it would not stop the state from transferring ceded lands between state agencies or stop the state from leasing ceded lands.

Maui News, January 13, 2009

OHA bill seeks to bar the sale of ceded lands

By AUDREY McAVOY, The Associated Press

HONOLULU - Democratic lawmakers and the state Office of Hawaiian Affairs on Monday said they were working on legislation to block the state from selling or exchanging lands that once belonged to the Hawaiian monarchy until Native Hawaiian claims to those lands are resolved.

The move brings lawmakers into a debate that has so far pitted Gov. Linda Lingle against the state Supreme Court.

The court last January ruled the state may not sell or exchange such lands until outstanding Hawaiian claims are addressed. Lingle's administration appealed the decision to the U.S. Supreme Court.

The nation's highest court is due to hear arguments in the case Feb. 25.

The Office of Hawaiian Affairs has drafted a bill it will submit to lawmakers.

Sen. Clayton Hee, chairman of the Water, Land, Agriculture and Hawaiian Affairs Committee, said he expected state senators to propose their own versions of the legislation. Hee, D-Kahuku-Kaneohe, said lawmakers are likely to move swiftly to make the Legislature's voice heard. ''It would identify the executive branch as being out of step with the legislative and judicial branches of government,'' Hee said.

Georgette Deemer, a spokeswoman for House Democrats, said House Speaker Calvin Say was waiting to see the bill before taking a position. Say wasn't aware of separate legislation being submitted to the House, Deemer said.

Sherry Broder, OHA attorney, said she believes any ceded land sales moratorium passed by lawmakers would stand even if the U.S. Supreme Court overturns the state Supreme Court and rules in favor of the governor. Broder said the question before the U.S. Supreme Court was limited to whether the state Supreme Court could deny the state the authority to sell the ceded lands. A high court ruling therefore wouldn't affect legislation barring such land sales.

Lingle told reporters Monday she wouldn't have any reaction to OHA's proposed legislation until she has a chance to read it.

Haunani Apoliona, chairwoman of the Office of Hawaiian Affairs, said the governor's legal appeal may hurt OHA's ability to carry out programs for the benefit of Native Hawaiians. It may also interfere with OHA's efforts to secure federal recognition for Native Hawaiians with the so-called Akaka bill, Apoliona said. ''It's very risky and dangerous, potentially terminal, for a case like this to go before the U.S. Supreme Court in view of the previous positions they've taken on not only Native Hawaiian interests but other native interests,'' Apoliona told reporters.

Apoliona referred to the 2000 U.S. Supreme Court decision in Rice v. Cayetano. That ruling said a state law allowing only Hawaiians to vote for OHA officers amounted to unconstitutional racial discrimination.

At issue are 1.2 million acres of ceded lands once owned by the Hawaiian monarchy. The lands were taken by the provisional Hawaii government following the 1893 U.S.-backed overthrow of the monarchy. The lands were handed to the federal government when Hawaii became a U.S. territory five years later, and then to the state of Hawaii at the time of statehood in 1959.

Honolulu Advertiser Commentator Blog
by David Shapiro, January 13, 2009

Keep status quo on ceded lands

The Office of Hawaiian Affairs is asking the Legislature for a moratorium on the sale of state ceded lands, and it might be a good stopgap measure to give legal and political tangles over Hawaiian native rights a chance to resolve.

The U.S. Supreme Court is scheduled to hear arguments next month on whether the ceded lands — former crown lands transferred to the state as part of the 1959 Admissions Act — are frozen until Hawaiian claims to the land are settled.

The Hawai’i Supreme Court ruled last year that the lands can’t be sold until the Hawaiian claims are resolved, citing the 1993 congressional resolution apologizing for the U.S. role in the overthrow of the Hawaiian monarchy.

But some 30 states have joined Hawai’i in urging the federal high court to overturn the state ruling, arguing that the apology resolution never intended to cloud state title to the lands.

Separately, incoming President Barack Obama and the resurgent Democratic Congress are just starting to address the Akaka bill for native Hawaiian recognition, which could provide the legal basis for settling the Hawaiian claims.

With so many issues in the air, emotions running high and no significant transfers of ceded lands planned, the Legislature could calm the situation by doing as OHA asks and maintaining the status quo until the path forward is clarified.

Hawaii Reporter, February 4, 2009

Bills in the Legislature Will Interfere With the State's Right to Sell Any Parcels of Ceded Lands

By Kenneth R. Conklin, Ph.D.

There are several bills in the Legislature that would completely prohibit the State of Hawaii from selling any parcels of the ceded lands, or impose a rule that any such sale would require a 2/3 vote in the Legislature. About 95% of all the public lands of Hawaii are ceded lands, so such a prohibition would seriously damage the ability of the State to manage our lands.

For example, the lawsuit that caused all the fuss and awaits oral arguments in the U.S. Supreme Court on February 25 concerns the State's attempt to sell some land to a private developer to build low-income housing. The history of that lawsuit, all principal briefs and amicus briefs on both sides, and a compilation of news reports and commentaries, can be found at

Various organizations, most notably OHA, have insisted that ethnic Hawaiians as a group have a claim on the ceded lands. They say this claim needs to be negotiated and settled before any of the lands should be sold. They say we should wait for the Akaka bill to pass so that the resulting Akaka tribe can negotiate a settlement with the State to carve up the public lands of Hawaii.

Some of the bills now in the Legislature regarding the ceded lands are House bills HB184, HB902, HB1667, HB1805, and their matching Senate bills SB475, SB476, SB1085, SB1677. The text of any bill can be found by putting the bill number into the search window on the Legislature's webpage at

I have submitted testimony on all those bills. Here is some of that testimony.


Before briefly recalling the history, let me remind you that if you do not believe Hawaii is legally and morally a part of the United States, then you must immediately resign your position in the Legislature. Before you could run as a candidate or be seated, you were required to take an oath including "I will support and defend the Constitution of the United States." There's no room for quibbling here.

Hawaiian sovereignty activists claim that the revolution of 1893 that overthrew the monarchy was "illegal." They claim that the presence of 162 U.S. peacekeepers constituted an armed invasion (like China invading Tibet or Germany invading Poland), and that the U.S. apology resolution of 1893 is a confession of a crime under international law. They claim the annexation of 1898 was illegal (for many reasons, all bogus). They claim the Statehood vote of 1959 was illegal. They claim the apology resolution of 1993 is a confession of a crime under international law which requires the U.S. to withdraw from Hawaii and provide huge reparations for 116 years of belligerent military occupation of the Hawaiian indigenous homeland.

My dear Legislator, if you believe any of those things you should immediately resign. You are violating your oath of office if you give credence to any of those assertions and, giving the benefit of the doubt to them, you then pass legislation that basically says "here's what we must do just in case this is true." You must stand firm, in public, in front of God and your fellow citizens, and you must say "I am proud to be an American, I have no doubt that Hawaii is the 50th State of the United States, and I will never support any legislation based on any doubt of that or which would in any way violate the U.S. Constitution."

Here are a few places where you can get more information about specific topics addressed above:

Historical Issues Related to Hawaiian Sovereignty -- Revolution (Overthrow of monarchy), Annexation, Statehood, Indigenous Status, Hawaiian Language Ban, Ceded Lands, Etc. This is a webpage whose purpose is to provide links to other webpages on specific historical topics.

What Does the United States Owe to Native Hawaiians? Two reports commissioned by Congress contain the answers (Morgan Report of 1894 about the revolution of 1893, and Native Hawaiians Study Commission report of 1983). Links to the full text of both reports, which are many hundreds of pages and well-documented.

The 1993 apology resolution is filled with factual errors and distortions. Constitutional law scholar, attorney Bruce Fein, wrote a monograph which includes extensive, point-by-point refutation of it. See "Hawaii Divided Against Itself Cannot Stand" at

Following the creation of the Republic of Hawaii in July 1894 by publication of its Constitution, there were Emperors, Kings, Queens, and Presidents of 20 nations on 4 continents who personally signed official letters recognizing the Republic as the rightful government of Hawaii de jure. Photos of the original letters in the state archives, plus Liliuokalani's letter of abdication and oath of loyalty to the Republic, can all be seen at

Lili'uokalani Loses A Big One (The Crown Lands) -- Liliuokalani v. United States, 45 Ct. Cl. 418 (1910)


The Crown lands originally were set aside in the Mahele (1838) as the King's private property. But in 1865 the Kingdom Legislature passed a law to take government ownership of the crown lands in return for the government's issuance of bonds to pay off a mortgage the King had placed on the crown lands, which mortgage was in danger of foreclosure; and the King happily signed that law.

From that point forward the crown lands were merged with the government lands and became jointly the "public lands" except that the income from the crown lands was set aside by statute for the purpose of financing the official functions of the head of state (at that time the King). After the revolution there was no more monarch, so the "crown land" revenues went to support the functions of government in the same way as the old "government land" revenues.

Please note that throughout the history of the Kingdom of Hawaii there was never any racial set-aside of any lands communally for native Hawaiians as a group. There were crown lands, government lands, and private lands; but there were never any "Native Hawaiian" lands.

In 1909 ex-queen Lili'uokalani filed a lawsuit in the U.S. Court of Claims demanding money for herself as compensation for the "confiscation" of "her" crown lands resulting from the annexation. In 1910 the court ruled that Liliuokalani had never personally owned the crown lands and therefore was not entitled to any compensation. Today's Hawaiian activists would do well to note that their hero Lili'uokalani never asserted that the ceded lands belonged communally to ethnic Hawaiians; and if she had won her lawsuit the money would have been paid to her personally and not to ethnic Hawaiians communally.


Section 5(f) says ceded land revenues can be spent for ANY ONE OR MORE of 5 purposes. One of those purposes is public education; and for the first 20 years of statehood virtually all the ceded land revenues was given to the public schools. Since 26% of the school children were ethnic Hawaiians, therefore ethnic Hawaiians received 26% of the ceded land revenues without any explicit racial set-aside.

One of the five purposes identified in section 5(f) is "for the betterment of native Hawaiians as defined in the Hawaii Homes Commission Act of 1921." The reason for including that among the 5 purposes was to allow ceded land revenues to be used to support the Hawaiian Homesteads, which are restricted to Hawaiians of at least 50% native blood quantum.

It may well be that HHCA of 1921 was unconstitutional. It is likely that section 5(f) of the Admission Act is unconstitutional to the extent that it is construed as giving the State of Hawaii permission to violate the 14th Amendment by setting aside some or all of the ceded land revenues to be used for a racially exclusionary purpose.

In any case, the racial set-aside apparently allowed under section 5(f) is exclusively for Hawaiians of 50% native blood quantum, and does not require or even contemplate any racial set-aside for all "one-drop" Hawaiians (the class eligible to sign up for Kau Inoa and join the much-anticipated Akaka tribe).

It is ludicrous to imagine that "Hawaiians" or "Native Hawaiians" as a group (as defined by statute according to the one-drop rule) have any legal or moral claim to the ceded lands. There are no legal or moral race-based claims which needs to be resolved before parcels of ceded lands can be sold. The only way such claims might be established is if you, the Legislature, decide to create such claims. Please don't do that. Just say no.


I believe the single most important issue facing Hawai'i in the foreseeable future is the imminent and continuing threat that the lands, resources, government and people of Hawai'i will be divided along racial lines.

The Legislature has repeatedly passed resolutions favoring the Akaka bill to create a racially exclusionary government empowered to negotiate with YOU, the legislators. It is expected that you will give away massive amounts of land, money, and jurisdictional authority.

Numerous bills in the Legislature in recent years have tried to implement massive give-aways even before the tribe is created, and before any negotiations have started. That's absurd! No responsible negotiator gives away important concessions before the opponents even arrive at the table.

Please read "Hawaiian Apartheid: Racial Separatism and Ethnic Nationalism in the Aloha State" at


The Legislature in session this year cannot bind any Legislatures of future years. Any future Legislature could, by simple majority vote, repeal this 2/3 requirement and make its own decision whether to sell ceded lands and by what voting process to authorize such a sale. The only way to bind future Legislatures is to pass a Constitutional amendment.

Also, there is something terribly unbalanced about this proposal, because it prohibits the state or any of its agencies from selling any ceded lands without a 2/3 vote, but it does not impose any restriction on the state transferring public lands to the control of OHA or to the control of a future Akaka tribe aka "Native Hawaiian Governing Entity."

I find it legally unconstitutional and morally reprehensible for the State of Hawaii, or any of its agencies, to give any public lands to any government or private entity which practices racial discrimination or exclusion, even if such racial discrimination occurs under the euphemism of "indigenous people." Therefore, if you choose to pass this bill despite the fact that you cannot bind future Legislatures, then please at least amend this bill to add the following language in the appropriate place (or words to this effect):

The State of Hawaii, and any of its agencies, are hereby prohibited from selling or giving away or leasing any of the public lands of Hawaii (including the ceded lands) to any government or private agency or institution which practices racial discrimination or racial exclusion, including providing benefits or services to beneficiaries who are restricted according to race, gender, or national origin.

This is a guest editorial. Send comments or questions to:

KHON2 TV, February 4, 2009

House Committee of Hawaiian Affairs Votes in Favor of Hawaiian Ceded Lands Bill

By Kirk Matthews

The House committee on Hawaiian Affairs held the hearing on four bills, all calling for a moratorium on the sale of ceded lands. The timing of the legislation is important because the U.S. Supreme Court takes up the case later this month. The Attorney General is arguing against the moratorium. "The first point being that it just doesn't make sense as a policy matter to completely ban all sales or exchanges no matter how beneficial they could be to Hawaii's people and no matter how important they are," said Attorney General Mark Bennett.

Hawaii's Supreme Court has already ruled against the sale or exchange of ceded lands but in doing so, said public policy should not be formed by the court. "That the courts should not ultimately make that decision. They're important policy decisions that should be made by the political branches of the government, this legislature and the governor working together," said Constitutional Law Professor Jon Van Dyke.

The Office of Hawaiian Affairs is vocal in favor of a moratorium. "OHA could only support a total moratorium on the sale or alienation of ceded lands. We could not possibly support other legislation that talks about a two-thirds majority of the house and the senate that would permit the sale of ceded lands," said Clyde Namuo of the Office of Hawaiian Affairs. Namuo said the moratorium would not last forever, only until native Hawaiians are self-governing. "Our desire is that self determination for native Hawaiians be advanced and that the creation of a native Hawaiian government entity be created whether it is pursuant to the Akaka bill or not."

But that is not going to happen before the Supreme Court takes up the ceded lands case. That's scheduled for February 25th. There is some debate about whether a moratorium would have an impact on the Supreme Court decision.

"We'd like to see this thing move quickly because we want to try to have something positioned for the us. supreme court hearing," said State Senator Russell Kokubun.

This afternoon, the Committee on Hawaiian Affairs voted unanimously in favor of the bill. The proposal still needs to be approved by three more committees before a full house vote.

Honolulu Advertiser, Thursday, February 5, 2009

Bills to restrict ceded land sales advance
They're designed to halt Lingle's appeal of state high court ruling

By Gordon Y.K. Pang

Bills that would bar the state from selling or exchanging ceded lands moved out of their first committees in separate actions before the House and Senate yesterday.

So, too, did a bill that would require the approval of two-thirds of both houses of the Legislature before a state administration could sell ceded lands, an idea conceived by Senate majority Democrats.

All the measures, which are still in the early stages of the approval process, are designed to stem an appeal by the Lingle administration to the U.S. Supreme Court of a Hawai'i State Supreme Court ruling that bars the state from selling or transferring ceded lands until claims by Native Hawaiians to those lands are resolved.

The U.S. Supreme Court is scheduled to hear oral arguments Feb. 25.

During yesterday morning's House Hawaiian Affairs Committee meeting, state Attorney General Mark Bennett reiterated the state's position that it is obligated to reassert that the state has clear and unambiguous ownership to the lands in the wake of the 1993 Apology Resolution passed by the U.S. Congress. That resolution acknowledged the U.S. role in the overthrow of the Hawaiian monarchy and that Native Hawaiians have unrelinquished claims.

But the Office of Hawaiian Affairs, which brought the original lawsuit against the state for attempting to sell houses and commercial properties on a development on ceded lands, were joined by a variety of Native Hawaiian leaders in testifying that if the state's appeal is successful the consequences could be dire and would create a ripple effect against Native Hawaiian programs.

Many who opposed the state's argument said they were unhappy with the legal analysis by Bennett, who has previously said that Hawaiians may have a moral but not a legal right to the lands.

"If we don't own the land, you don't have the ability to do anything with them," Bennett said, reiterating that the Admission Act giving Hawai'i statehood transmitted the lands for five purposes, two of them being the promotion of home ownership opportunities and benefitting Native Hawaiians. "We own these lands, the Congress gave them to us."

Even OHA administrator Clyde Namu'o, who usually shows very little emotion, said he now understands why Hawaiians he deals with can get so angry. "Sitting here today and listening to this discussion, I finally got it," Namu'o said. "This is really way beyond just the legal issues ... this is an issue of fairness and justice. For us to sit here, as Native Hawaiians, and hear that we should just allow all the lands taken from the Native Hawaiians, to now have that validated by the Supreme Court, I find that so troubling."

On the Senate side, the Committee on Water, Land and Hawaiian Affairs passed an amended bill that would have the moratorium in place for a designated five years, allow the sale of remnant lands during that time, and require a two-thirds vote of both legislative houses following the moratorium.

The committee, in a joint session with the Committee on Judiciary and Government Operations, also moved out the Senate majority's bill which does not contain a moratorium but requires a two-thirds vote of both houses before any ceded lands sale or transfer. That bill was opposed by OHA. Bennett offered comments, but took no position on it.

In the House, the Hawaiian Affairs Committee moved out three bills calling for a moratorium and a fourth calling for a two-thirds majority approval for landfills.

Ceded lands are the 1.2 million acres once owned by the Hawaiian government and subsequently taken over by the United States as a result of the 1898 annexation. The lands were then passed to the state and designated for five purposes, including — but not exclusively limited to — the betterment of Native Hawaiians. They make up the bulk of state-owned lands and are 29 percent of the state's total land area.

The Maui News, February 5, 2009, Letters to Editor
and also
Honolulu Advertiser, February 6, 2009, Letters to Editor

Democrats stand behind Hawaiian land rights

The Hawai'i Democratic Party made justice for Native Hawaiians a key part of its platform, passing the resolution "Support for Native Hawaiians" at the 2008 state convention. See

It is the belief of the Democratic Party of Hawaii that the unique spiritual and cultural connection of Native Hawaiians to the land and waters is a fundamental principal of socioeconomic justice in Hawaii.

For that reason, the Democratic Party is a strong advocate of the inherent constitutional claims and rights of Native Hawaiians regarding the so-called "ceded lands."

It is paramount that Native Hawaiian claims to ceded lands be resolved equitably and expeditiously. Clearly, the Hawaii Supreme Court has supported Native Hawaiian claims by stating that the historical record of Hawaii from the overthrow of the legitimate government of Hawaii in 1893 leading up to and including the apology resolution passed by the U.S. Congress in 1993 acknowledges that unrelinquished Native Hawaiian claims exist and plainly contemplates future reconciliation with the United States and the state of Hawaii with regard to those claims.

It is essential to the quest for justice and reconciliation of our Native Hawaiian and broader community that the administration of Gov. Linda Lingle honor the state Supreme Court decision and the will of Native Hawaiians. Consequently, the Hawai'i Democratic Party strongly supports the moratorium on further sale or transfer of those lands until a satisfactory final resolution of land claims is reached.

Lance W. Holter, Chairman
Maui Democratic Party

Maui News, February 12, 2009

Lands bills ‘shelved’ by House leadership
Panel chairman: No hearing on measures in near future

By HERBERT A. SAMPLE, The Associated Press

HONOLULU - The leadership of the state House of Representatives is blocking further consideration of bills sought by Native Hawaiians that would restrict or ban the state from selling former monarchy lands, several legislators asserted Wednesday.

Reps. Scott Saiki, Mele Carroll and Faye Hanohano, all Democrats, said it appears that House Speaker Calvin Say does not want the bills to progress, perhaps until after the U.S. Supreme Court rules on a pending case that centers on whether the state has the unfettered authority to sell or exchange the lands.

''I'm concerned,'' said Carroll, a Native Hawaiian, who represents East Maui, Lanai and Molokai, and who chairs the House Hawaiian Affairs Committee. ''This is a concern of so many of our public that it should never be shelved. This is where I differ in how the leadership has handled this situation.''

Saiki said the chairman of House Water, Land and Ocean Resources Committee, where the three bills are waiting after winning approval from Carroll's panel last week, has indicated that there will be no hearing on the measures any time soon.

''The question is why,'' said Saiki, of Moiliili-McCully, a leader of a group of dissident House Democrats who have pushed changes in House procedures and policy direction. ''It should be the Hawaii Legislature and not the Supreme Court that makes the call on this.''

Saiki suggested that the dissident Democrats could attempt a parliamentary maneuver to pull the bills onto the House floor.

The chairman of the water committee, Rep. Ken Ito, did not respond to a request for comment. A call for comment from Say was referred to House Majority Leader Blake Oshiro, who said that because the bills were referred to four committees, there is no way to complete the legislative process in time for the Supreme Court's oral arguments Feb. 25.

Say decides which committees need to take up bills.

''We're not sure if (the bills) will be good or bad for Native Hawaiians or the state,'' said Oshiro, a Democrat from Aiea-Halawa.

Oshiro noted that Attorney General Mark Bennett has said that enactment of the bills could generate more lawsuits.

On the other hand, Native Hawaiian advocates contend that enactment would send a strong signal to the court that the Legislature disagrees with the legal stance taken by Bennett and Gov. Linda Lingle, and that it instead supports the position taken by the Office of Hawaiian Affairs.

Given the conflicts, Oshiro added, the House should wait until the Senate sends over its versions of the measures, which are likely to require fewer committee hearings, Oshiro added. ''Then we'll know what the Senate position is and we'll only need one hearing on the bill, and then we can make a deliberative decision,'' he said.

But Rep. Faye Hanohano, D-Pahoa-Kalapana, said that ''doesn't make sense because we would have been pushing ours out at the same time.''

Two of the three measures Carroll's committee approved last week would bar the state from selling or otherwise disposing of 1.2 million acres of ceded lands for some period of time. The third bill allows the governor to sell or transfer the land but requires a two-thirds majority of both houses of the Legislature to approve the actions.

Since the committee passed the bills, no further hearings have been scheduled in the other panels to which they were referred - Ito's water committee, as well as the Judiciary and Finance committees.

Carroll said she asked Ito when his panel would hear the measures, and Ito replied that he'd have to check with Say. Carroll added that some of her constituents were told by the speaker that he wants to wait until the court rules.

That and his absence from a friend-of-the-court brief signed by Senate President Colleen Hanabusa and Hawaii's congressional delegation supporting the Office of Hawaiian Affairs has led her constituents to question Say's allegiance, Carroll said.

The conclusion her constituents have reached is that ''he's siding with the governor. So that's why he's blocking the votes.''

Honolulu Advertiser, Friday, May 1, 2009

Measure sets conditions for selling ceded lands
Governor would need broad support from House, Senate

By Gordon Y.K. Pang

Hawai'i's governor would need to obtain approval from two-thirds of each house of the Legislature before selling any state lands, under a bill agreed to by House and Senate leaders in conference committee yesterday.

Senate Bill 1677 is designed to resolve a longstanding dispute between the Office of Hawaiian Affairs and the state administration over the sale of ceded lands.

OHA and other Native Hawaiian interests want to bar the state from selling ceded lands — 1.2 million acres that were under the control of the Hawaiian government at the time of the 1893 overthrow — until claims by Native Hawaiians to those lands are resolved. Those lands were subsequently transferred to the state with the 1959 Admission Act.

The Lingle administration, as did the Cayetano administration before it, said it has no plans to sell any ceded lands but argued that barring the state from being able to do so hinders its ability to function.

At the center of the dispute is a 1994 lawsuit filed by OHA and four individual Native Hawaiians that has gone all the way to the U.S. Supreme Court. The Hawai'i Supreme Court sided with OHA and imposed a moratorium in a Jan. 31, 2008, ruling. But on March 31 this year, the U.S. Supreme Court ruled that the Hawai'i court erred in relying on the Apology Resolution of 1993 as the legal basis for the moratorium and remanded the case back to the Hawai'i court.

While Attorney General Mark Bennett has disagreed with attorneys for OHA and the four individuals over what the Hawai'i court is to do next, both sides have stated they would prefer the case be dropped if a compromise can be reached at the Legislature.

OHA Administrator Clyde Namu'o said in a prepared statement: "Based on the passage of the bill we are hopeful that a settlement in the ceded lands matter can be reached."

Bennett yesterday declined comment.

Sen. Clayton Hee, D-23rd (Kane'ohe, Kahuku), and Rep. Mele Carroll, D-13th (E. Maui, Moloka'i, Lana'i), who chair the Hawaiian Affairs committees in their respective houses, said they expect the plan to be approved by the Senate and House next week.

Carroll said she would have preferred a full moratorium.

In a related matter, House and Senate members continued to work on House Bill 995, which would allow OHA and the state to settle the issue of how much the agency should receive as its share of the revenues generated from the use of ceded lands. OHA has been receiving $15.1 million annually in recent years.

Hee has been pushing for language that would allow OHA the option to accept either a settlement to resolve revenues from past years only, or a broader package for both past and future revenues.

The past-revenue settlement would allow OHA to accept a $200 million cash-and-land package with the properties to be selected from a wide-ranging "menu" in the bill. OHA would still receive $15.1 million annually until the future revenues issue is resolved.

The broader package option would allow OHA to accept $251 million in cash and 20 percent of the 1.2 million acres to be determined in negotiations between OHA and the administration.

Carroll said she is "close" to supporting Hee's plan.

Namu'o, meanwhile, said a majority of the trustees "agrees with the concept that it's probably worth exploring." Attorney William Meheula has been asked to help come up with language that the trustees can agree on, he said.

Parties stressed that any settlement is not being viewed as a "global settlement" or one that would address claims made by OHA or other Native Hawaiian interests stemming from the 1893 overthrow.

Honolulu Star-Bulletin, May 1, 2009

Bill demands legislative OK for ceded-land sales
Lawyers say a clear policy is needed to settle an OHA lawsuit

By B.J. Reyes

State lawmakers advanced a proposal yesterday that would require legislative approval for the sale of any ceded lands — those once held by the Hawaiian monarchy — but it was unclear what effect the policy would have on the lawsuit that sought to block any such transactions.

During testimony on the proposal, Senate Bill 1677, attorneys indicated that a clear legislative policy on ceded lands would be needed for a settlement in the lawsuit brought by the Office of Hawaiian Affairs.

The lawsuit, filed in 1994, sought to stop the transfer of 1.2 million acres of ceded lands to developers for affordable-housing projects, and the Hawaii Supreme Court sided with OHA, blocking the sale. On March 31 the U.S. Supreme Court unanimously overturned that ruling and sent it back to the Hawaii court, but attorneys said they hoped to work out a settlement.

"Based on the passage of the bill, we are hopeful that a settlement in the ceded lands matter can be reached," OHA Administrator Clyde Namuo said yesterday in an e-mailed statement. "There are a few more matters which need to be worked out before we can make an official announcement."

Attorney General Mark Bennett declined comment.

Meanwhile, under SB 1677 the sale of any state-held land would require two-thirds' approval in both the House (34 of 51 members) and the Senate (17 of 25 members).

State Rep. Mele Carroll, House Hawaiian Affairs chairwoman, had sought a full moratorium on all transactions involving ceded lands until native Hawaiian claims can be settled, but accepted the compromise with Senate negotiators working on the bill.

"I guess you could say it was a success in the sense that the policy needs two-thirds' majority of approval, which is not very easy to do," said Carroll (D, Lanai-Molokai).

Carroll voted in favor of the compromise version of the bill "with reservations," an indication that she still had some concerns. "When an inventory (of land) has not taken place, it's truly hard to justify, for me, that policy," she said. "For me, if the dispute is not actually resolved, how can you still have an opportunity or process to sell land?"

Gov. Linda Lingle has said the state has no plans to sell any ceded lands, but contends that the state should have title to the land and reserve the right to sell.

The proposal now faces a floor vote next week in each chamber before going to Lingle for consideration.


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Go to webpage -- Selling the Ceded Lands -- The Hawaii Supreme Court ruled that the State cannot sell ceded lands without permission from ethnic Hawaiians; but the State appealed to the U.S. Supreme Court which agreed to decide the case.


Go back to -- Office of Hawaiian Affairs -- Watching the Moves It Makes in 2009 to Expand the Evil Empire. YEAR 2009



(c) Copyright 2009 Kenneth R. Conklin, Ph.D. All rights reserved