Office of Hawaiian Affairs trustees Boyd Mossman, left, Colette Machado and Board Chair Haunani Apoliona march down Kalakaua Ave. on the 116th anniversary of the overthrow of the Hawaiian Kingdom in 1893. Behind them, in blue OHA shirts are Administrator Clyde Namu'o and his wife, Pauline. They joined thousands of marchers in protesting the State of Hawai'i's U.S. Supreme Court bid to allow the state to sell former kingdom lands. Photo: Blaine Fergerstrom

Collective voices to urge Lingle to drop ceded lands appeal

Organizer hopes for 50,000 to march and rally

By Lisa Asato / Ka Wai Ola

The streets of Waikīkī will turn into a sea of red on Saturday, if Kaho'onei Panoke gets his way – a sea of red T-shirts, that is – and signs and Hawaiian flags and a hoped-for 35,000 to 50,000 pairs of marching feet.

"I think the momentum is surging quickly with the ads that we've put in the paper, the response from the public has been very heavy," said Panoke, executive director of 'Īlio'ulaokalani Coalition, which is organizing Saturday's Kū i ka Pono March and Rally to continue to urge Gov. Linda Lingle to withdraw the state's appeal to the U.S. Supreme Court over its ability to sell ceded lands, which are lands formerly held by the Hawaiian government. The court will hear the case Feb. 25 and issue its decision by July.

Saturday's 10 a.m. march will travel down Kalākaua Avenue from Saratoga Road to Kapi'olani Park, where the rally is scheduled to start at 11:30 p.m. Speakers and entertainers will share the stage, including Jon Osorio, a plaintiff in the ceded lands case, Sudden Rush, Mililani Trask, Kū Kahakalau, OHA Chairperson Haunani Apoliona, Manu Kaiama, Bumpy Kanahele and Lilikalā Kame'eleihiwa.

"We have a well-balanced group of speakers. Also, Native Hawaiian organizations will be at the park to distribute information and talk to people about the case," Panoke said, adding that attorneys from the Native Hawaiian Bar Association and Native Hawaiian Legal Corp. will be on hand to answer questions.

The case stems from a 1994 case filed by OHA and four individual plaintiffs who sought to stop the state from selling a total of 1,500 acres of ceded lands in Maui and Hawai'i Island. A 2002 Circuit Court ruling found in favor of the state, but on appeal the Hawai'i Supreme Court in January 2008 ruled in favor of the plaintiffs. In its unanimous ruling barring the state from selling ceded lands until Native Hawaiian claims to those lands are resolved, the Hawai'i Supreme Court relied on state and case law and the Apology Bill, which was passed by Congress and signed by then-President Bill Clinton, that apologized for the United States' role in the illegal overthrow of the Hawaiian government.

Urging legislative action

Last weekend, the Kupu'āina Coalition, which is helping to organize the march and rally, started canvassing homesteads in Papākolea, Waimānalo, Wai'anae and Kapolei, to distribute fliers and encourage people to attend the rally and learn how to get involved in the legislative process. "We didn't get to go to all the houses; we're (still) going to try and canvass as much as we can," said Davis Price, a leading member of the coalition. "I think just having a large number of people there … (will) send a message to the legislators that this is on the map and it's important for the people, and the legislators need to address it."

Lawmakers are taking heed. At a Jan. 7 panel discussion on ceded lands at the University of Hawai'i law school, state Sen. Clayton Hee said there were already two or three legislative proposals addressing the issue and "there probably will be several more." (OHA also announced its bill this week, see story in this issue of Ka Wai Ola Loa.)

Hee brought two of the proposals to the hearing. One would require an adoption of a concurrent resolution by a two-thirds majority vote of the House and Senate in order for the state to sell or exchange ceded lands, and the other – "a more frontal approach to this issue before us" – would ban the sale and exchange of ceded lands, said Hee, chairman of the Senate Water, Land, Agriculture and Hawaiian Affairs Committee. He said a veto override would probably be needed to pass either bill, particularly the second.

Hee shared a panel with former Gov. John Waihe'e and Bill Tam, who specializes in land and natural resources law. The panel was in agreement that the pursuit of the case to the highest court in the land wasn't in anyone's best interest.

"It's a family dispute," Waihe'e said, referring to state matters having already been decided by the state Supreme Court. "The Supreme Court made that ruling. You see? In its own sovereignty," Waihe'e said. "And now having settled this matter as a state issue, we are going to ask an outsider to tell us how to interpret law in the State of Hawai'i."

How is challenging a state decision in the U.S. Supreme Court upholding the sovereignty of the State of Hawai'i? he asked, apparently addressing Attorney General Mark Bennett, who was seated in the audience, to which the audience applauded.

Speaking earlier to the audience, Bennett said, "We believe fundamentally the Hawai'i Supreme Court misinterpreted federal law, which is why the U.S. Supreme Court has jurisdiction in this case, and why they chose to hear it."

"Moreover, we argued and we were joined in this argument by a friend-of-the-court brief (filed) by 32 out of the 49 states – red states and blue states alike, which said not only did Congress not (change the legal rights or obligations of the state), but that Congress does not have the right to take from the State of Hawai'i in 1993 the rights that it gave to the State of Hawai'i in 1959."

Bennett was referring to the 1993 Apology Bill and the 1959 Admission Act, which transferred 1.2 million acres of former Hawaiian government lands, or ceded lands, to the state to hold in trust for five purposes, including the betterment of the conditions of Native Hawaiians.

Addressing concerns that the court could consider larger constitutional issues of race-based programs, Bennett said: "We are working our hardest along with OHA to make sure that doesn't happen." He said two other cases pending in the 9th Circuit Court of Appeals should be of greater concern, Day vs. Apoliona and Kuroiwa vs. Lingle. "This case doesn't present that risk, but Day vs. Apoliona does, and I would respectfully suggest that if there's any case that ought to be dropped because it creates a risk of a 14th amendment decision by the U.S. Supreme Court, it is that case by Native Hawaiians of 50 percent or more blood quantum against the Office of Hawaiian Affairs and this state." The Kuroiwa case, he said, was "brought by opponents of all programs that benefit Native Hawaiians."

Saturday's march and rally is the third in a string of public calls for action in the case. On Nov. 24, Kupu'āina Coalition organized a rally attracting more than 400 people to the Capitol urging Lingle to withdraw the appeal. On Dec. 26, about 100 people gathered at the Capitol and Washington Place, hoping to bring the issue to the attention of President-elect Barack Obama, who was vacationing in Kailua. The rally attracted groups like the Royal Order of Kamehameha I, whose leader flew over from Maui for the event, Hawaiian Independence Alliance, American Friends Service Committee, 'Īlio'ulaokalani Coalition, Association of Hawaiian Civic Clubs and individuals including Frenchy De Soto.

Panoke said people should make an effort to come out on Saturday because "we need to express to the governor and the attorney general that we are not going to go away. We're here to stay. We believe this is a problem that we should discuss here at home and not in Washington, D.C., in an environment hostile to natives."

He added: "As far as I'm concerned, (Lingle) still has time. She can still withdraw the appeal, and hopefully she will get the message after this weekend's march and rally. We're giving her time to do what is right for the native people of Hawai'i. And if she doesn't then we'll just take the next step," he said, declining to elaborate.

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