OHA Chairperson Haunani Apoliona said. "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." - Photo: Blaine Fergerstrom

Native Hawaiians protest state's U.S. Supreme appeal over ceded land sales

A rally is planned to coincide with Obama's December visit

By T. Ilihia Gionson / Ka Wai Ola Loa

As a U.S. Supreme Court case looms that will decide the fate of the state's right to sell ceded lands before Native Hawaiian claims to those lands are resolved, Kānaka Maoli are taking to the street to fight for their rights.

On the heels of a rally at the state Capitol in November November – and the state’s filing a brief challenging Native Hawaiian ownership claim to those lands on Dec. 4 – a protest is planned for 10 a.m. to 4 p.m. on Friday, Dec. 26, on Beretania Street fronting Washington Place and the state Capitol.

The picket is being organized "to bring awareness to Lingle's immoral claim that the state has the right to sell and/or transfer Hawaiian ceded lands," said organizer Vicky Holt Takamine in an e-mail. "We'd like to get a few hundred people out to picket. We're hoping to draw media attention while Obama is here for his vacation," Holt Takamine said, referring to Barack Obama, the president-elect, who will be visiting the Islands during the holidays.

Another march and rally is scheduled for Jan. 17, 2009, through Waikīkī to Kapi'olani Park. Updates will be posted on oha.org as they become available.

UH law student Derek Kauanoe, one of the organizers of the November 24 Capitol rally, is surrounded by supporters. - Photo: Blaine Fergerstrom

The uproar stems from a 1994 court case in which OHA and four individual plaintiffs – Pia Thomas Aluli, Jonathan Kamakawiwo'ole Osorio, Charles Ka'ai'ai and Keoki Kamaka Ki'ili – sued to prevent the state from selling 1,500 acres of ceded lands in Lāhaina, Maui, and Kona, Hawai'i.

The state prevailed in Circuit Court in 2002. But the Hawai'i Supreme Court disagreed. In its January 2008 ruling, Chief Justice Ronald Moon said, "We believe… that the Apology Resolution … and the related state legislation, give rise to the state's fiduciary duty to preserve the corpus of the public land trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians have been resolved."

In April, the state appealed the ruling to the U.S. Supreme Court, which is expected to hear the case in February. Many in the Native Hawaiian community have called upon Gov. Linda Lingle to withdraw the state's appeal.

"We'd like to get a few hundred people out to picket. We're hoping to draw media attention while Obama is here for his vacation" on Dec. 26, Vicky Holt Takamine said, referring to Barack Obama, the president-elect, who will be visiting the Islands during the holidays. - Photo: Blaine Fergerstrom

"This case now headed to the U.S. Supreme Court is of grave concern," OHA Chairperson Haunani Apoliona said. "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."

The state says that the ceded lands, given to the state at statehood, are fully owned by the state and that there are no other claims to the land that can be resolved in court.

"We have never argued, and do not now argue, that there are not strong moral claims that can be asserted," Lingle said in a statement issued Dec. 6. "But we have argued since the inception of this lawsuit that the only forum that can consider such claims is one that encompasses legislative actions."

The uproar stems from a 1994 court case in which OHA and four individual plaintiffs – Pia Thomas Aluli, Jonathan Kamakawiwo'ole Osorio, seen here, Charles Ka'ai'ai and Keoki Kamaka Ki'ili – sued to prevent the state from selling 1,500 acres of ceded lands in Lāhaina, Maui, and Kona, Hawai'i.- Photo: Blaine Fergerstrom

On the morning of the Nov. 24 rally at the state Capitol, which was organized by the Kupu'āina Coalition to urge Lingle to withdraw the appeal, Lingle said that her administration remains committed to Native Hawaiian programs, but she would not withdraw the state's appeal to the U.S. Supreme Court.

"I supported the appeal to the United States Supreme Court because I believe the Congress did not take from the state in 1993 the rights it gave the state in 1959," the statement said, referring to the 1993 Apology Resolution, which apologized for the United States' role in the illegal overthrow of the Hawaiian Kingdom, and the 1959 Admission Act, which transferred the ceded lands to the state.

"As the governor of all Hawai'i's people, Native Hawaiian and non-Native Hawaiian alike, I could not in good conscience seek to withdraw our appeal to the United States Supreme Court and will not do so," she said.

The ceded lands are 1.2 million acres of former Hawaiian government land ceded to the state as part of the 1959 Admission Act. Ceded lands comprise almost all of the state's land holdings. Revenues from the use of the Public Land Trust, as the body of land has come to be known, go to five purposes, one of which is the betterment of conditions of native Hawaiians through the programs of the Office of Hawaiian Affairs.

Another protest is planned for 10 a.m. to 4 p.m. on Friday, Dec. 26, on Beretania Street fronting Washington Place and the state Capitol. - Photo: Blaine Fergerstrom

Lingle and state Attorney General Mark Bennett said that the case would not affect a proposed settlement for past-due revenues owed to OHA by the state. The measure was defeated in the state Legislature last session but is expected to be reintroduced this session.

Bennett noted that 29 states filed so-called friend of the court briefs supporting the state of Hawai'i's appeal to the Supreme Court because they also received their lands – which they hold in trust – from the U.S. government through an admission act or resolution of admission. And those states also want to ensure that a state's land rights can't be taken away by an apology resolution or act of Congress, he said.

He also said it was "extremely unlikely" that the U.S. Supreme Court would also address race-based programs in its ruling in the ceded lands case. "The issue of the legality or constitutionality of (race-based programs) is not germane to that legal issue," he said.

Kupu'āina member Derek Kauanoe said the ramifications were worrisome. "The truth of the matter is this appeal has the potential to address much more," he said. "Intentions aside, we need to look at the potential impacts of this appeal, which are dangerous and unnecessary."

Shad Kāne of Nākoa o Pālehua said the ceded lands issue is integral to Native Hawaiians' being. "It's important to understand the connection of the land, our ancestors, and us," he said. "We depend on the land for everything." Food comes from the land, he said, and "food consumption is a sacred function. Many foods are kinolau of our gods. That's why land is so important."

"Lots of people have lost that basic understanding, Kāne said.

Lisa Asato contributed to this article.