a better kaua‘i – The question of ceded lands

Last month The Garden Island published on its Forum page a sequence of letters on issues relating to the lands ceded after the end of the Hawaiian Kingdom in 1893.

A retired University of Hawaii professor presented his views that the Republic of Hawaii was a de jure government after the abdication of Queen Liliuokalani and entitled to convey the public lands in exchange for its debts in its 1898 annexation by America and that such lands now belong to the state and its people and not to a racial group.

In response, letters appeared on succeeding days accusing the professor of being an ill, “piggish man” and that his piece was “ranting” by contending the overthrow of the Hawaiian Kingdom was legitimate, and thus native Hawaiian claims were invalid.

The ceded lands issue is important and it is a pity that it cannot be addressed without vitriolic ad hominem rancor.

The ceded lands consist of about 1.8 million acres that were owned by the Hawaiian government at the time of its annexation in 1898. The lands were ceded to the United States with the commitment that all revenues and proceeds “shall be used for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.”

In 1959 when Hawai‘i became a state, the lands were transferred by the federal government to the state with the direction that the lands be held as a public trust for five purposes, one of which was the betterment of conditions for native Hawaiians. The conveyance did not require any allocation of the revenues to any specific purpose and until 1978 the avails of the lands were given to the Department of Education.

In 1978 the Office of Hawaiian Affairs was created, and in 1980 the state Legislature enacted a law providing that 20 percent of the revenues derived from the lands would be paid to OHA. By this action a segment of the funds would be for the benefit of a racial group consisting of a small percentage of the population. It was arguably a violation of the trust obligation created in the 1898 annexation that the revenues would be for all of the now about 1.1 million inhabitants of the islands.

In 1990 the Legislature compounded the violation issue by enacting a clarifying law that is interpreted as providing that the 20 percent of revenues payable to OHA would consist of the “gross income” from the lands. Under trust law principles beneficiaries share in net income, not gross income.

In 2000 the United States Supreme Court in the Rice v. Cayetano case struck down a racial-based requirement for OHA voting and other subsequent cases have challenged Hawaiian laws based on racial criteria. In 2008 the state Supreme Court enjoined disposition of ceded lands until the OHA claims issues are resolved. The state has announced its intention to appeal that decision.

The cross currents arising from the events summarized above leave the status and future for the distribution of the revenues and proceeds of the ceded lands highly uncertain. The contentions, though, are familiar. Supporters of the native Hawaiians contend that the ceded lands did not belong to the people but only to their ethnic group and say that the 1893 overthrow was illegal and unjust and the present day ethnic Hawaiians are entitled to preferential treatment because of it. Their argument has an emotional appeal but is flawed logically. There is no international forum that has the standing to adjudicate whether governmental changes are lawful. The right to perpetuate governmental power is not an inherent one. A government rules all of the population of the area. In democracies it depends on the will of the people. In 1893 those of Polynesian ethnicity comprised about 30 percent of the population of the islands. The actual overthrow occurred, in part, because the dynasty queen was attempting to regain powers removed by the 1887 constitution. If the overthrow had not occurred at the time and in the manner it did, it is probable that a similar result would have happened. A race-oriented regime does not often survive when the racial group is only a minority. The 19th- and 20th-century toppling of colonial states where the controlling group was only a minority of the population are cases in point. It also can be questioned whether it is appropriate that a current population should provide compensation for events that arose more than 100 years earlier and in which they had no participation. There are in addition the principles of the United States Constitution that were enunciated in the Rice case that equal protection of the laws for all citizens basically precludes giving racial preferences.

In general, the proceeds from government-owned properties should inure to the benefit of the whole population, and this would seem to be required by the terms of the 1898 conveyance. At this time the persons meeting the 50 percent or greater blood limit in the Hawaii Homelands law comprise only about 5 percent of the Hawaiian population.

Many people are sympathetic to them because of the economic, health and other problems they have endured. It is an intriguing question of public policy whether those factors should be determinative in the ceded lands context. It is likely that it will take an extended time for the question to be finally resolved.

• Walter Lewis is a resident of Princeville and writes a bi-weekly column for The Garden Island.