The ceded lands dilemma
December 10th, 2008 by David ShapiroEmotions are running so high on Hawaiian-rights issues that it's getting to the unhealthy point where you disagree once and you're an enemy for life.
That's the treatment Gov. Linda Lingle is getting from some activists as a result of her attempts to have the U.S. Supreme Court overturn a Hawai'i Supreme Court freeze on selling any of 1.2 million acres of state ceded lands until Native Hawaiian claims on the land are reconciled.
Lingle promised when she ran for governor to work to make things pono with Hawaiians and has mostly kept the promise.
She's advanced the ball on Hawaiian Homes far beyond what any previous governor had done and has lobbied diligently in Washington for passage of the Akaka bill for Native Hawaiian political recognition despite the problems it has caused her with fellow Republicans.
But no governor can give away the store to the extent Lingle is being asked to do on ceded lands — putting primary public assets into indefinite limbo and limiting the state's ability to deal with pressing priorities such as public education and affordable housing.
The case before the Supreme Court goes back to the beginning of the Cayetano administration, and Lingle's Attorney General Mark Bennett is arguing it pretty much the same way as the previous administration.
The 1959 Admissions Act making Hawai'i a state gave Native Hawaiians a 20-percent stake in the former crown lands ceded to the state, and they've based their claim for more than that on a resolution passed by Congress in 1993 apologizing for the overthrow of the Hawaiian monarchy.
Hawaiian plaintiffs successfully argued before the state Supreme Court that the apology resolution recognized the overthrow as illegal and effectively nullified any clear title to the ceded lands granted the state by the Admissions Act.
But if the apology resolution nullified the part of the Admissions Act relating to ceded lands, couldn't it be argued by logical extension that it also nullified the part of the Admissions Act making Hawai'i a state? Is that really where Congress intended to go?
I look closer at the legalities of the ceded lands battle in my column in the Opinion section of today's Advertiser, "Lingle stance on ceded lands justified."
Tags: Hawaiian rights, Linda Lingle
December 10th, 2008 at 10:02 am
Mr. Shapiro,
With respect to the apology resolution recognizing the overthrow and subsequent land grab as illegal, it's not just that "Hawaiian plaintiffs successfully argued" this. The Supreme Court of the State of Hawai`i has held it to be so, and so it is law in Hawai`i.
Therefore, your characterization of the ceded lands as "primary public assets" is false and specious. The highest court of our state has held that they may not even be public lands. The point isn't to halt the legitimate sale of lands. The point is to halt the sale of land until the dispute is settled.
Common sense would have us determine whether something is ours to sell before we sell it.
--Edward Hu
December 10th, 2008 at 10:16 am
Dave, the Admission Act language is more complicated than perhaps you realize. While it is true that section 5 of the Act provides that the lands "shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use," the language then inconsistently states that "Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide." So the lands are "held in trust" for 5 purposes, but actually can be disposed of for any one (or two, or three) purposes. There is no language in the Admissions Act that requires that 20% of the proceeds be spent on any one of the five purposes. The 20% figure was apparently plucked out of the air because it's 1/5 of the whole, but is not required by the Act but left to the State constitution and legislature.
December 10th, 2008 at 10:40 am
Thanks Edward and Susan for the good comments. I'm not sure it's as simple as Edward thinks or as complicated as Susan thinks, but we'll see when SCOTUS weighs in.
December 10th, 2008 at 12:00 pm
To any and all person’s concerned.
The government of The United States of America, the State of Hawaii, the cities and counties of the State of Hawaii, the Department of Land and Natural Resources, the planning Commissions, Developers, Realtors, Title Companies, Police and all law enforcement.
Whereas:
You are hereby put on notice for all and any act of 1) suppression, 2) oppression, 3) genocide of the Native Hawaiian people of the island’s of Hawaii and for it’s past, present and future generations.
Whereas:
The suppression, oppression and genocide of the Native Hawaiian people, ancestral territory, cultural identity, religious, spiritual, traditional customs, beliefs and practices, social institutions and their ways of life.
Whereas:
Queen Liliuokalani’s letter states, “To avoid any collision of armed force and loss of life, I do this under protest and impelled by said force, yield my authority until such time as the government of The United States shall upon facts being presented, to undo the action of it’s representatives and reinstate me in the authority which I claim as the Constitutional sovereign of the Hawaiian Islands.”
Whereas:
In a message to congress, December 18, 1893, President Grover Cleveland reported fully and accurately on the illegal acts of the conspirators and stated that it is an act of war.
Whereas:
Conspirator, John L. Stevens, referred to in this resolution as The United States’ minister, assigned to the sovereign, independent Kingdom of Hawaii, conspired with a group of non Hawaiian residents of the Kingdom of Hawaii, including citizens of The United States of America to overthrow the indigenous and lawful government of Hawaii.
Whereas:
The facts are here in black and white - who, what, when and why.
Whereas:
The United States Public Law 103-150.107 Stat. 1510, acknowledging the illegal and unlawful suppression, oppression, genocide, the overthrow of the sovereign Hawaiian Kingdom and the injustice against the native Hawaiian peoples.
Whereas:
We are claiming our sovereign right as stated in The United States of America public Law 103-150.107 Stat. 1510.
Whereas:
You shall and will be held responsible and liable in and all public or private capacities for any and all acts of suppression, oppression, genocide and the injustice against the native Hawaiian peoples and all of their lands.
James Alalem
Benjamin D. Nihi
Harry Kaanoi Kaneakua, Jr.
**************************************************************************************
This is the Kingdom of Hawaii.
Everyone knows this is the Kingdom of Hawaii.
Fifteen years ago, in 1993, the United States Congress ratified and signed into law the Apology Resolution; 103-150, 107 stat. 1510, admitting there is no lawful context to the U.S. claims.
Stop acting superficially, for that is perpetuating that which at this time serves no one’s good interests and finally begin reversing the slow genocide that exists here and now! Your present actions are afflicting the Hawaiian elders, men, women, children and the generations to come; their free will, their culture and lands, by these decades of U.S. domination and submission.
I, a kanaka maoli by the grace of God, say to all of you, cease and desist perpetuating the unlawful and superficial status quo at this time!
Let it be known that, we kanaka maoli elders and leaders, are putting you on notice that your acts and actions constitute genocide; defined as, intent to destroy in whole or in part, a nation, ethnicity, race, religion, culture and people as such. We, the kanaka maoli consider the intrusion as genocide; genocide by slow attrition.
Now is the time to take the Apology Resolution “formal statement” in utmost serious fashion. Any further perpetuation of the immoral culture of foreign domination and further colonialism degrades land, water, culture and human life.
The charge of genocide has been declared!
This is not to be taken lightly. Everyone is hereby on notice to end their part in the continuing of this genocide. Leave the Kingdom at this time if that is what is necessary. The so-called colonial State of Hawaii is unlawful and as such has no jurisdiction. The law of 1840 is to be the authority again. It is your responsibility to support the kanaka maoli in all efforts to restore sacred rights to our people.
Aloha and Mahalo Nui Loa,
Benjamin D. Nihi
Harry Kaanoi Kaneakua
James Alalem
ben@manaoha.org
Please respond directly to above email
December 10th, 2008 at 1:06 pm
Mr. Shapiro,
Mahalo for the information of what our governor Linda Lingle has done for the KANAKA MA'OLI, or HAWAIIAN people as we are called today. There is so much more to be done for the KANAKA MA'OLI. We the KANAKA MA'OLI are not asking for a hand out. We are asking for our governor Linda Lingle to make right the wrong done to the KANAKA MA'OLI, by the United States and the State of Hawaii. The Crown Lands was left for the KANAKA MA'OLI, by our KING KAMEHAMEHA, and not for the public use. Then in 1959 this CROWN Lands name was changed to ceded lands, and the State of Hawaii, gives us the KANAKA MA'OLI host people of this land 20% of the monies generated. This is wrong we the KANAKA MA'OLI should get 80% and the State of Hawaii 20% for the publicuse. The State of Hawaii Supreme Court highest in the State of Hawaii has made a decision on this great matter. That decision must stand because it is the law of the State of Hawaii, and must I repeat the highest court of our State of Hawaii. Mahalo & Aloha Pu'mehana, Lancelot Hali, Lincoln
January 13th, 2009 at 3:57 pm
Why are individuals who aren't even Hawaiian signing themselves to letters throughout the State of Hawaii?
Don't these Hawaiian groups check out the koko of their members?
January 13th, 2009 at 4:00 pm
You are so angry about property, yet you probably have not written one letter about Rita Makekau. Is it because you support child abuse, perhaps?