A number of commentaries have appeared in The Garden Island recently about the ceded lands case in which the state has filed a certiorari petition in the United States Supreme Court seeking to overturn a January 2008 Hawai‘i Supreme Court
A number of commentaries have appeared in The Garden Island recently about the ceded lands case in which the state has filed a certiorari petition in the United States Supreme Court seeking to overturn a January 2008 Hawai‘i Supreme Court decision requiring the state to desist in any efforts to sell part of the ceded lands until claims of native Hawaiian interests have been resolved.
Some history is needed to put the issues involved in perspective. When America acquired Hawai‘i from the Republic of Hawai‘i in 1898 it obtained nearly 2 million acres of land that had been held by the Hawai‘i kingdom as crown lands. These “ceded” lands were conveyed to be used for “inhabitants of Hawai‘i and for other public purposes.”
In 1921, the U. S. Congress adopted the Hawaiian Homes Commissions Act which provided that about 200,000 acres of the conveyed lands were to be applied for use by “native Hawaiians.”
In 1959, when Hawai‘i became a state most of the then remaining lands (about 1.2 million acres) were conveyed to the state to be held as a public trust for five purposes. One of which was “for the betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act.”
In 1978, the Office of Hawaiian Affairs was created by constitutional amendment to better conditions of native Hawaiians and Hawaiians.
In 1993, a state law “interpreted” the 1959 conveyance as requiring that 20 percent of the fair value of the ceded lands intended to be sold by the state for affordable housing use be paid to OHA.
The Hawaiian Homes Commission Act defined “native Hawaiians” as those having 50 percent or greater ancestry from persons living in Hawai‘i before 1778. Hawaiian state law defines “Hawaiians” as persons having some ancestry from before 1778 residents.
Less than 1 percent of Hawai‘i’s current population meets the Hawaiian Homes Commission Act definition. There is no reliable data that definitively identifies the number of Hawaiian residents of some Hawaiian ancestry but estimates of about 25 percent have been made.
In 1993, Congress enacted the native Hawaiian apology resolution expressing regret for the American role in the 1893 overthrow of the Hawaiian Kingdom.
The state argues in its petition for certiorari that the Hawai‘i Supreme Court relied improperly on the 1993 apology resolution to impair the state’s sovereign right to sell or exchange its landed properties until settlement of claims of native Hawaiians to such lands the state contends that nothing in the apology resolution affects the state’s legal rights or obligations in any way. The argument is made that only the Supreme Court can correct the erroneous analysis of federal law made by the state Supreme Court.
The central argument by OHA and the individual plaintiffs is that the Hawai‘i Supreme Court decision was based on questions of state law and that no federal issue is presented for consideration in the state’s petition.
As is often the situation, the briefs by the parties make it appear that they are talking about two different cases.
Amicus curiae briefs were filed in support of the petition by the state by more than 30 states or state entities and by a number of private organizations. There were no amicus briefs filed supporting the position of OHA and the private plaintiffs.
Although the point was not raised in the state’s petition, the amicus brief filed by the Pacific Legal Foundation raises the issue whether without violating the 5th or 14th amendment to the federal constitution the state may discriminate between the beneficiaries of the ceded land trust on the basis of race. While the PLF brief raises a valid and important issue, the failure by the state to include the contention in its brief may mean that the Supreme Court will not reach it in its opinion.
This article has set forth legal details about the pending case, at the risk of complicating the discussion, to identify its parameters and to point out that the underlying issues will not be resolved by the outcome of the case.
The activists who advocate the position of those of Hawaiian ancestry believe that their status was irrevocably diminished by the American annexation of Hawai‘i and they will continue to seek recompense wherever available. Governmental authorities should recognize that conferral of preferences and privileges based on racial criteria cannot be indefinitely maintained.
Our society will be well served in the ultimate analysis only when all citizens are treated equally. Such a result, foreshadowed by the 2000 U. S. Supreme Court decision in Rice v , will, among other matters, entail examining the viability of the Homes Commission Act and the Office of Hawaiian Affairs.
The U. S. Supreme Court has scheduled oral arguments on the petition to be held on Feb. 25.
• Walter Lewis is a resident of Princeville and writes a bi-weekly column for The Garden Island.
