LEO 'ELELE - TRUSTEE MESSAGES

Countering some arguments

Vice-Chair Walter M. Heen Trustee, O'ahu

Governor Lingle recently stated that Hawaiians have no legal claim to Hawai'i's ceded lands but only a "moral claim." She did not, however, explain how the moral claim is somehow less than the legal claim. In my estimation, she is asserting a distinction without a difference.

Hawaiians' claim of ownership is based on the fact that the United States violated international law when it conspired with the resident "bandits" to overthrow the sovereign government of the Hawaiian Islands and assume ownership of the crown and government lands. The illegality of that acquisition colors and undermines any claim of ownership by the provisional government, the republic, the United States and the State of Hawai'i.

In any system of modern jurisprudence one cannot claim ownership of illegally obtained property against the claim of the rightful owner. If a thief gives, or sells, you a stolen article you acquire no legal right to refuse to return that article to the rightful owner. Simply put, you cannot get good legal title from a thief. The claims of Native Hawaiians, the lineal descendants of the owners, have a far better claim of ownership than the United States or the State of Hawai'i. And with ownership comes the right of possession.

But some argue that, notwithstanding that basic rule of law, the United States Supreme Court, in an early case involving the transfer of land has stated that when land is transferred to the national government it will not look behind the title to see how that land was acquired. They analogize that decision to our ceded lands situation and say, "Therefore, the State of Hawai'i's claim of legal title is valid." Of course, the United States government has never been willing to submit to the jurisdiction of any international court of justice, so its argument has never been tested against the international law rules relating to government overthrow.

Moreover, there is nothing to prevent the State from saying that, "regardless of that rule, when it comes to the lands of this state, we will look beyond the naked title to see how that title was acquired." In fact, the governor's stance now seems in opposition to her earlier position in which she seemed willing to acknowledge Hawaiians' legal claim.

One can engage in a long debate about "moral" claims, of course. Do they have any effect in law, or should they influence the outcome of a debate over a "legal right?" The governor now seems to be saying that the moral claim of Hawaiians can have no effect on the issue of title to ceded lands. Her statement disregards the fact that much of the law, civil and criminal, that governs our lives is based on moral considerations. Indeed, the entire body of the law of equity is essentially based on moral considerations. "He who seeks equity must do equity" is one of equity's fundamental precepts. And certainly the most respected precept is that, "One who comes into the court of equity must come with clean hands." Courts have never hesitated to apply equity rules in a case where such is required to prevent an obvious injustice.

Whether you consider Hawaiians' claim to ceded lands as being legal or moral, the issue is the centerpiece to reconciliation. There can be no quieting of Hawaiians' claim for justice until the issue is determined, whether on a legal or a moral basis, and the land is divided between the state and a Native Hawaiian government, whether "reorganized" or "reinstated." It appears that either through the Akaka Bill or otherwise the issue is getting closer to resolution.