U.S. Supreme Court Reverses State Court on Ceded Lands

Honolulu Advertiser, March 31, 2009

The Supreme Court ruled today that a congressional resolution apologizing for the overthrow of the Kingdom of Hawaii in 1893 did not strip the state of its authority to sell or transfer about 1.2 million acres of land.

The court’s unanimous decision overturns a ruling by the Hawaii Supreme Court that blocked the sale of land conveyed to Hawaii when it became the 50th state.

After years of legal wrangling, the state court last year halted sales of the so-called “ceded lands” until Native Hawaiian claims to those lands are put to rest. The acreage represents more than a quarter of the Islands.

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“The title to the land had previously been held in absolute fee by the United States and conveyed to the state at statehood and the United States Supreme Court made clear that the Apology Resolution did not affect the rights of the state in any way,” Bennett [Attorney General Mark Bennett] said.

Bennett said Gov. Linda Lingle’s main reason for appealing to the Supreme Court was to clear any cloud on the state’s title and ownership to the ceded lands. “The Supreme Court made that absolutely clear, it couldn’t have been any clearer,” he said.

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Office of Hawaiian Affairs Administrator Clyde Namuo said he is confident that the Hawaii court, when it gets the case back, “will issue the same kind of ruling” barring the state from selling ceded lands except relying not on the Apology Resolution, but state laws that echoed the language of the resolution.

But Bennett said he believes that would be a losing proposition for OHA.

“It’s been our position throughout this case that state law affirmatively not only authorizes but mandates in some cases alienation or transfer” of the ceded lands, he said.

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

The key issue before the U.S. Supreme Court was whether the Apology Resolution, along with subsequent state legislation, can bar the state from selling ceded lands until claims by Native Hawaiians are settled.

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In a 15-page unanimous ruling, the court said: “The Apology Resolution (of 1993) did not strip Hawaii of its sovereign authority to alienate the lands the United States held in absolute fee and granted to the State upon its admission to the Union.”

Ceded lands are the 1.2 million acres of what were crown and government lands owned by the Hawaiian monarchy at the time of the 1893 overthrow.

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The 1959 Admission Act conveyed the 1.2 million acres to the new state in trust to be used for five purposes–one of which is “the betterment of the conditions of native Hawaiians.”

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The key document cited in the lawsuit by OHA and the four individuals was the Apology Resolution adopted by Congress and President Clinton in 1993. The resolution acknowledged and apologized for the U.S. role in the overthrow and expressed support for “reconciliation between the United States and the Native Hawaiian people.”

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But OHA and its supporters say because Native Hawaiians have unresolved claims to those lands, the Hawaii court was right in barring the administration from selling any portions of them until those claims are addressed in a legislative setting.

What had worried OHA and other Native Hawaiian advocates even more is the possibility that the case could lead justices to consider whether Hawaiians-only programs and funding should exist at all.

Supporters of such programs and funding say they are constitutional, arguing that there is a special political relationship between the U.S. and Native Hawaiians, but are nonetheless concerned about the high court debating the difference between that political relationship and a race-based policy.

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[Editor’s Note: The U.S. Supreme Court’s ruling in the case of Hawaii et al. v. Office of Hawaiian Affairs et al. can be read or downloaded as a PDF file here.]

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