LEO 'ELELE - TRUSTEE MESSAGES

Justice and 'ceded lands'

Robert K. Lindsey, Jr. Trustee, Hawai'i

We want to thank Dr. Kamana Beamer for allowing us to use a letter he authored and featured in the Honolulu Star-Bulletin related to the Ceded Lands case, which we are anxiously awaiting a decision on from the U.S. Supreme Court. There are elements in the letter which will forever hold true. Beamer is a Mellon-Hawai'i post-doctoral fellow who earned his Ph.D. in geography from the University of Hawai'i at Mānoa.

Gov. Linda Lingle used her recent "State of the State" address to defend her position in appealing a state Supreme Court case that halted the sale of "ceded lands," or what is often referred to as the former crown and government lands of the Hawaiian kingdom. The U.S. Supreme Court heard arguments Feb. 25 on the administration's appeal of the Hawai'i high court ruling that the state cannot sell or transfer ceded lands until native Hawaiian claims are settled.

She has said that the issue her administration is trying to address is "whether or not the state has clear title to the land that was transferred by the federal government after statehood."

This article speaks to the issue of clear title to the Hawaiian Kingdom crown and government lands as well as the facade of integrity which this administration is attempting to portray in carrying this case forward.

• Legal title to the lands of the Hawaiian Kingdom was first addressed in the kingdom's Constitution of 1840 where it states that all the lands from one end of the islands to the other belonged to the king as well as "the alii (chiefs) and the kanaka (native Hawaiian people) in common."

Therefore, the first Constitution of the Hawaiian Kingdom established the concept that the lands of the kingdom were vested in three classes: the king (or government), the chiefs and the native Hawaiian people. The Mahele of 1848 recognized the vested rights of these three classes to land through awarding original certificates of title to chiefs as well as establishing the government and crown lands, while placing in each and every title the clause of their lands being "Subject to the Rights of Native Tenants" (koe na'e ke kuleana o nā kānaka).

Hawaiian Kingdom land tenure is not synonymous with American land tenure, and in fact is established through two differing legal systems. Under kingdom law, native Hawaiians have a kuleana or vested right to portions of the crown and government lands. That the currently right-leaning U.S. Supreme Court could recognize this is doubtful.

Furthermore, attempting to make the case an issue of title without addressing the overthrow of the kingdom and the illegal actions of representatives of the U.S. government as stated in even U.S. law and evidenced by the "Apology Resolution"; the "annexation" of the islands through domestic joint resolution rather than an internationally binding treaty, which was resisted through petitions by Hawaiian nationals of the time; how the "Republic of Hawai'i" acquired clear and valid title being that any claim it has to the crown and government lands rests on it being installed to power by the United States, is dishonest at best.

• The issue of morals will not go away through the actions of the U.S. Supreme Court. While every portion of the "ceded lands" carries a genealogy of injustice accented with loss and stained in antagonism, they also carry a clause of being "Subject to the Rights of Native Tenants."

I cannot overstate the gravity of the situation. Like Lingle, I call "upon all who cherish what is the essence of Hawai'i," those Hawaiian and not, those who sang long ago sweet Hawaiian songs as keiki in our schools, but whose melodies still echo in our hearts, those who value justice and righteous struggle, to reject the present course of the governor, to contact your local representative asking them to pass state legislation that prevents the sale of any portion of the "ceded lands." Hawai'i as we know it "can't afford business as usual."

'O au nō me ka ha'aha'a.