U.S. Supreme Court to
hear ceded lands case

OHA, attorneys confident law is on their side

By Lisa Asato / Ka Wai Ola

With oral arguments in a ceded lands case headed for the U.S. Supreme Court likely in January or February, Jonathan Osorio, one of four individual plaintiffs in the 1994 case along with OHA, reaffirmed his belief that the state should not sell ceded lands.

“If the U.S. Supreme Court decides to hear a case, they're going to hear a case, and what we need to do is prepare ourselves,” Osorio said, following the high court's Oct. 1 decision to hear a case regarding the state's ability to sell ceded lands before Native Hawaiians' claims to those lands are resolved. “I have a lot of faith in our attorney, (William) Meheula. And I have faith in the justice of our position. Those lands are ours. Ceded lands are stolen lands.”

Osorio, a professor at the University of Hawai'i's Kamakakūokalani Center for Hawaiian Studies, said he hopes to fly to Washington, D.C., to attend the court's review of the case. Other individual plaintiffs in the case are Pia Thomas Aluli, Charles Ka'ai'ai and Keoki Kamaka Ki'ili.

Earlier this year, the state appealed to the nation's high court, asking it to overturn a unanimous January ruling by the Hawai'i Supreme Court that barred the state from selling ceded lands until Native Hawaiian claims to those lands have been resolved. In its decision, the state Supreme Court relied heavily on the 1993 Apology Resolution, passed by Congress and signed by then-President Bill Clinton – apologizing for the United States' role in the illegal overthrow of the Hawaiian Kingdom in 1893. The case stems from a 1994 lawsuit to stop the sale of two parcels on Maui and Hawai'i Island of about 1,500 acres of ceded lands.

Ceded lands refer to lands taken from the Kingdom of Hawai'i following the overthrow, which eventually made their way into state control. The Admission Act, which admitted Hawai'i as a state, spells out that 1.4 million acres of ceded lands be held in trust by the state for five purposes, including the betterment of the conditions of Native Hawaiians.

“We continue to believe that the Hawai'i Supreme Court ruled correctly,” said OHA Chairperson Haunani Apoliona. “We firmly stand behind the state Supreme Court's opinion, which says the state should keep the ceded land trust intact until Native Hawaiian claims to these lands are settled.” She added, “OHA will continue its tireless efforts to protect and defend the rights and entitlements of its beneficiaries – the Native Hawaiian people.”

A ruling is expected by June 2009.

In a statement issued Oct. 1, state Attorney General Mark Bennett said Congress did not bar the sale of ceded lands in the Apology Bill. “Congress had expressly granted Hawai'i that right in the 1959 Admission Act,” he said.

“Hawai'i's ceded lands are held by the state for the benefit of all of Hawai'i's citizens, and for a number of purposes, including for the betterment of the conditions of native Hawaiians,” Bennett said. “We believe that prudent management of those lands for the benefit of all of Hawai'i's citizens must include, on occasion, the right to sell or exchange land. We hope the United States Supreme Court will return that right to the state of Hawai'i.”

Meanwhile, University of Hawai'i law professor Jon Van Dyke said Native Hawaiians have on their side a 1919 U.S. Supreme Court decision in Lane v. Pueblo of Santa Rosa in which “the U.S. Supreme Court did a comparable thing putting a freeze on disputed lands pending the adjudication of the claims of the native people in Arizona.”

“This is a well-established law,” said Van Dyke, a member of OHA's legal team in this case known as State of Hawai'i v. Office of Hawaiian Affairs, and the author of Who Owns the Crown Lands of Hawai'i?

The U.S. Supreme Court last heard a case involving Native Hawaiians in 2000, when it ruled in favor of Harold Rice, in Rice v. Cayetano, thereby opening up elections for OHA trustees to all Hawai'i residents, not just those of Native Hawaiian ancestry.

An attorney who defended the state and OHA in that case is now the chief justice of the U.S. Supreme Court, said OHA attorney Sherry Broder, referring to Chief Justice John Roberts Jr. But she said neither that nor the makeup of the court reveals much on how the justices might rule on the current case. “I don't think we can second-guess the court before oral arguments are had and decisions are made,” she said, adding that she hopes that this will be “a time that Hawaiians will come together to support the Office of Hawaiian Affairs in its efforts to have the decision of the Hawai'i Supreme Court affirmed.”