The Hawaiian independence organization MANA is asking the community to raise a Hawaiian flag on Feb. 24 and 25 to show its unity in opposition to the pending U.S. Supreme Court hearing of a ceded lands case. – Photo: Blaine Fergerstrom

A day in court puts
native rights on trial

U.S. Supreme Court to hear
ceded lands case next week

See also: Kūkulu Kumuhana, kākou!

By Liza Simon / Ka Wai Ola Loa

ON FEB. 25, the U.S. Supreme Court will hear the question of whether the State of Hawai'i has the authority to sell any of the $1.2 million acres that once belonged to the Hawaiian Kingdom – the so-called ceded lands that comprise nearly one-third of the archipelago's total land mass. The case references more than a century of case law and federal and state legislation. But the case's ramifications are as clear as they are alarming to many Native Hawaiians. "It puts things into relief and helps us see what the landscape is – in terms of recognizing that the state wants to extinguish native rights related to the reconciliation of ceded lands," said Ikaika Hussey of MANA, an organization that supports Hawaiian independence.

As a symbol of protest and solidarity, Hussey is asking people to display Hawaiian flags for two days starting Feb. 24, the eve of the appeal in Washington, D.C. In many areas of Hawaiian rights – notably the Akaka Bill, Hussey's stand has opposed OHA's and diverged from that of other Hawaiian groups, but Hussey believes the ceded lands appeal warrants a full-court press. "One thing about the case is that it is a unifying force for all Hawaiians," said Hussey. "We recognize that Hawaiians have a collective interest in stopping a trend of attacking crown lands. We as a people need to stay positive to heed the call of Queen Kapi'olani to kūlia i ka nu'u – strive for the highest."

Ikaika Hussey of the Hawaiian independence organization MANA is asking the community to raise a Hawaiian flag on Feb. 24 and 25 to show its unity in opposition to the pending U.S. Supreme Court hearing of a ceded lands case. – Photo: Blaine Fergerstrom

Hussey's call to action is in step with efforts of many others, including a Feb. 25 vigil organized by Hawaiian rights group 'Īlio'ulaokalani Coalition, with sponsorship by OHA, at the state Capitol from 4 a.m. to 4 p.m. Timed to coincide with the moment that the nine justices will be entering their courtroom 8,000 miles away, event organizers have issued an open call to hālau to prepare to dance and chant to bring the dimension of cultural expression to bear on a moment that they see as having the biggest impact for Native Hawaiians.

Kaho'onei Panoke of 'Īlio'ulaokalani Coalition said the overriding concern is what would happen to the Native Hawaiian voice if the state prevails in the U.S. Supreme Court. "Would there be a process for us to come to the table and negotiate those lands," he asked. "Is the process a clear process?"

For Hawaiians, losing ceded lands is like losing one's identity, he said, comparing the situation to the ti leaf plant in which leaves, representing land, have been stripped away one by one to be handed out to those it doesn't belong to – leaving only the stalk for Native Hawaiians. "As those lands begin to diminish, so does the nation of Hawai'i," he said, adding that people should stop using the term "ceded lands" and instead refer to them as "stolen lands."

"If we start using proper vocabulary, then I think people would get it," he said.

Case background: breach of trust or special interest?

State of Hawai'i v. Office of Hawaiian Affairs, as the case to be reviewed by the nation's highest court is known, stems from Gov. Linda Lingle's administration's dispute of a 2008 unanimous decision by its own Supreme Court, which said the state has a fiduciary duty to protect the ceded lands from sale or transfer until unrelinquished ceded lands claims of Native Hawaiians can be settled through the political process. The administration will argue that the state Supreme Court decision stripped state authority in determining use of ceded lands and clouded the state's title to those same lands. Attorneys for OHA and four plaintiffs will take the position that the administration's interpretation of the state Supreme Court decision is erroneous and that the 2008 decision written by Chief Justice Ronald Moon instead rested firmly on factual findings in state and federal laws, which say the dispute over ceded lands is rooted in the state's reconciliation commitment to Native Hawaiians – an ongoing state matter, further suggesting that the U.S. Supreme Court simply drop the state administration's appeal.

'The lifting of the injunction will not only unreasonably interfere with the reconciliation process, but will result – again – in the loss of land,' wrote Princess Abigail Kawānanakoa, a direct heir to the Kalākaua dynasty, in an amicus brief filed on behalf of OHA and the four plaintiffs. – Photo: Blaine Fergerstrom

The state's criticism focuses mainly on the Hawai'i Supreme Court's references to the1993 Congressional Apology Resolution, a law that said that the U.S. overthrow of the Kingdom of Hawai'i was wrong, because "Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands, either through the Kingdom of Hawai'i or through a plebiscite or referendum." In a Honolulu Advertiser editorial piece, state Attorney General Mark Bennett wrote that the resolution undermines the 1959 Admission Act and the Hawai'i Constitution. He went on to state that the Native Hawaiian claims interfere with general public uses of the land for "development of farm and home ownership on as widespread a basis as possible." Furthermore, as Gov. Linda Lingle did in her State of the State address, Bennett makes it a point in his article to mention that the state's interest in ceded lands administration for the general public was exemplified by the actions of the only Native Hawaiian elected state governor – John Waihe'e, who had proposed to sell 1,500 acres of ceded lands in Lahaina and Kona for the purpose of constructing housing, including affordable housing.

Ironically, in a dueling editorial published alongside Bennett's, the former governor countered that the state "Supreme Court's decision interpreting federal law (e.g: the Apology Resolution) dealing with a subject unique to Hawai'i in a manner consistent with Hawai'i law is not undermining our sovereignty; it is exercising it." In other words, he asserts that the Apology Resolution did not change the terms of Hawai'i statehood – as Bennett contends; rather it reiterated those terms, including the Admission Act's requirement that the state administer the ceded lands for five trust purposes, including "the betterment of the conditions of Native Hawaiians." The obligation was upheld by delegates to the state Constitutional Convention, who clarified that the ceded land trust had two beneficiaries – the general public and Native Hawaiians. They said that their singling out of the indigenous people for benefits was intended to right the wrongs suffered since the arrival of Westerners had brought deadly disease epidemics, economic disparities and political marginalization that didn't exist before in the Hawaiian Islands. Crown lands ceded from the Republic of Hawai'i to the United States and finally to Hawai'i at statehood could be used to simultaneously improve the common good and the lives of Kanaka Maoli.

Legacy of litigation paves the way to the Supreme Court

The framers of the state Constitution likely did not foresee that their naming of two beneficiaries would be somehow turned into a legal divide and more than a decade of litigation that has led directly to the Feb. 25 Supreme Court appeal, but this is what has happened.

In 1994, as Gov. Waihe'e's proposed sale of ceded lands in Lahaina was on track, OHA and four plaintiffs sued the state to stop the sale. In 2002, a circuit court judge ruled against the Hawaiian plaintiffs in favor of the state. In 2008, the Hawai'i Supreme Court reversed that decision and issued an injunction against any sale of ceded lands, recognizing that Native Hawaiian claims were as yet unresolved. The court explained, "the state as trustee must adhere to the high fiduciary duties," including "the obligation that the trustee deal impartially when there is more than one beneficiary."

The news of the 2008 decision came just as the state and OHA announced negotiation of a partial settlement of ceded lands revenue due to OHA. Though the settlement was later rejected by the state Senate, the Lingle administration's efforts were hailed as firm support for Hawaiian rights and for OHA, the semiautonomous state agency that carries out the ceded lands trust-related mission of bettering the conditions of Native Hawaiians.

State Attorney General Mark Bennett and former Gov. John Waihe'e wrote dueling editorials on the ceded lands issue in the Honolulu Advertiser. Bennett said that the state's management of ceded lands for the general public – not just Native Hawaiians – was exemplified by Waihe'e, Hawai'i's only Native Hawaiian governor, who had proposed the sale of 1,500 acres of ceded lands in Lahaina and Kona for the purpose of constructing affordable housing. Waihe'e wrote that the state Supreme Court's interpretation of the federal Apology Resolution 'dealing with a subject unique to Hawai'i in a manner consistent with Hawai'i law is not undermining our sovereignty; it is exercising it.' – Photos: Blaine Fergerstrom

Many today are troubled by the seeming inconsistency in the administration's characterization of its own Supreme Court ruling as being friendly to Native Hawaiians at a cost to the general public. A widespread reaction says the state's move hits indigenous people where it hurts the most – in their relationship with the 'āina. "The lifting of the injunction will not only unreasonably interfere with the reconciliation process, but will result – again – in the loss of land," wrote Princess Abigail Kawānanakoa, a direct heir to the Kalākaua dynasty, in an amicus brief filed on behalf of OHA and the four plaintiffs. "Without the land there can be no reconciliation. Beginning with the Mahele the land has been lost to foreigners. The people of Hawai'i in 1865 had the foresight to render the Crown lands inalienable because not only was the land for the people but because there was the realization that the loss of the land – regardless of whether paid for – would undermine the foundation of what it means to be Hawaiian. To the Hawaiians, land is … sacred providing both physical and spiritual sustenance."

Part of Lingle's contention in her State of the State address in January was that her administration has no interest in selling fee simple parcels of ceded lands, suggesting respect for the concept of 'āina as benefiting the common good. This gets a skeptical review from MANA's Ikaika Hussey, who depicts the state's upcoming appeals case as the most visible approach to a more subtle and ongoing erosion of native stewardship on other fronts, including, he said, recent state crackdowns on cultural gatherers and fishermen as well as the stayed Kahana Valley evictions. Hussey said he believes the state is driven by interests to privatize lands, evidenced by the lack of state control to the historical divvying up of island real estate by the military and plantation ownership. "If (responsibility to) the general public interest is really the state's priority, we should be asking how many affordable housing projects has the administration created?" Hussey asked rhetorically.

State Attorney General Mark Bennett and Gov. Linda Lingle have vigorously maintained in public that their appeal will not stop reconciliation efforts from taking place in the legislative and executive branches of state government. They have, instead, characterized the prohibition on ceded land sales as a great economic injustice to the common good of all state residents, saying the ban makes it harder for the state to sell bonds that routinely pay for public works projects. However, according to a Fitch Report in late 2008, the state has a favorable AA bond rating "based on sound financial operations." With prohibition in place on ceded land sales, the report calls into question any correlation between the reconciliation of Native Hawaiian land claims and poorly performing state government bonds.

Looking ahead to a big day in court

Just what the Supreme Court will decide is uncertain, but at least three specific scenarios are causing concern for legal experts in Native Hawaiian rights: By far, the most serious concern is that the court would agree with the state appeal's characterization of Native Hawaiian claims to ceded lands as being limited to a moral claim, and not a legal one. This would eviscerate any legal claim and also negate the weight that years of legislation have given to historic injustices of the overthrow and annexation, which provide a context not only for Hawaiian trust benefits but for recognition of native self-determination or sovereignty – a goal for many in the Native Hawaiian community. A Supreme Court opinion allowing the sale of ceded lands would also weaken Native Hawaiians' bargaining power in future negotiation for resolving these claims, according to the web site of Kupu'āina Coalition.

University of Hawai'i law professors Jon Van Dyke and Melody MacKenzie, also members of OHA's legal team in the appeals case, praise the soundness of the state Supreme Court decision for recognizing in its ruling: "Obviously, without an injunction, any ceded lands alienation from the public lands trust will be lost and will not be available for future reconciliation efforts."

Kaho'onei Panoke of 'Īlio'ulaokalani Coalition said the overriding concern is what would happen to the Native Hawaiian voice if the state prevails in the U.S. Supreme Court. 'Would there be a process for us to come to the table and negotiate those lands,' he asked. 'Is the process a clear process?' – Photo: Blaine Fergerstrom

In a Honolulu Advertiser editorial, MacKenzie and Van Dyke go on to write that the state Supreme Court acted equitably in leaving the details of reconciliation up to the people of Hawai'i: "Although (the state Supreme Court) declined to rule on the ultimate claims of Native Hawaiians to the ceded lands, the court has protected the lands from dissipation until a political resolution can be achieved," they wrote.

Nine friend-of-the-court briefs filed on behalf of OHA in the appeals case mention Hawai'i's unique – if not turbulent, relationship with the United States in urging the nine justices to step aside to let decision-making come from the people who will most be affected by any outcome: "This case is about reparatory justice. What's at stake in this case is whether a state, through its people, will live up to its commitment to reconciliation under law to heal the continuing wounds of historic wrongs," said Susan Serrano, referring to an amicus brief that she co-authored with attorney Eric Yamamoto, filed by the Equal Justice Society and the Japanese American Citizens League.

Wiping out Hawaiian legal claims to ceded lands could also have the effect of foreclosing on the Office of Hawaiian Affairs mission. Under the authority of the state Constitution, the OHA trust fund provides for programs and grants targeted to benefit the state's native population in education, health, economic development, native rights, land and governance. The OHA trust funds consist of a pro rata share of revenue from the use of ceded lands, including: vast expanses of parks, airports and campuses within the University of Hawai'i system. A 2006 legislative bill enacted into law by the Lingle administration guarantees OHA $15.1 a year in revenue from ceded lands. Once again, with this move, Lingle was credited for her compassionate disposition toward Native Hawaiians, especially because the previous governor, Ben Cayetano, had frozen ceded lands revenue due to OHA. Still to be worked out amid ongoing controversy is a formula for back payments due OHA.

Another concern is that the Supreme Court appeal could damage reconciliation efforts if the Supreme Court – even in an opinion favorable to OHA, goes beyond the immediate scope of the case. Discounting this possibility in a January news conference, Lingle said, "The state's petition to the court has been narrowly written to address the very narrow issue of whether we have received clear title from the federal government for the ceded lands."

But attorneys for OHA are prepared to argue that a large portion of the administration's brief, in fact, asks the court to decide the larger question of whether a state ban on the sale of public land can be overridden by federal statutes. The OHA brief characterizes this as "thereby engaging in a classic bait and switch, by attracting the Court's attention on one question and then seeking a decision from the Court on others. That tactic should be seen for what it is: a brazen effort to disempower the Hawai'i Supreme Court, which petitioners evidently view as an unfriendly forum in which to litigate state-law issues concerning the status of the ceded lands." The bait-and-switch tactic could be seen in the 1996 Rice v. Cayetano case, which challenged whether OHA elections could be limited to people of Hawaiian ancestry. At issue was the use of state funding for a political contest limited to Hawaiian participation, but the ruling treaded into other territory in commenting that ancestry and racial classifications could be synonymous –language that future courts might draw upon in determining that the underlying structure of indigenous programs is not political, but racial.

This leads into another possible blow to Hawaiian rights that could come out of the appeals case: the assertion that racial bias underlies public and private Native Hawaiian programs has been at the heart of many court challenges to OHA and Kamehameha Schools and it is the contention of three of the seven amicus briefs filed in the appeals case on behalf of the state. At issue are constitutional amendments that guarantee protection of equal rights for all citizens.

For the most part, Hawaiian rights have been able to withstand these challenges. "Much depends on the philosophical proclivities of the justices themselves. For Native Hawaiians and their supporters, there's cause for concern because conservatives on the Court are hostile to affirmative action programs, an attitude which extends as well to legal recognition of native sovereignty," said Carl Christensen, a visiting professor at the William S. Richardson University of Hawai'i School of Law and former staff attorney with the Native Hawaiian Legal Corp. Christiansen noted it bodes well for Hawaiian rights that neither the state nor the U.S. Solicitor General joined in the amicus briefs' argument where equal Protection claims are at issue.

Daphne Barbee-Wooten, a Honolulu attorney who has specialized in civil rights law, says race-based challenges to Native Hawaiian programs "are clearly a distortion of the intent of the 5th and 14th amendments, which were created to prevent the disenfranchisement of African-Americans, who were being treated as slaves and property." She added, "I don't see the Native Hawaiian claims to ceded lands in any way analogous to the same oppressive circumstances." – Photo: Blaine Fergerstrom

But this is still the Bush Supreme Court that will be reviewing the appeals case. Some contend that the nine justices – two of whom were appointed by then-President George Bush, have had success in imposing a conservative agenda on the nation's judicial branch. "This was exemplified in the fact that the first legislation signed by President Obama was the Lily Ledbetter Act, which reversed a Bush Supreme Court judgment against equal pay for women," said Daphne Barbee-Wooten, a Honolulu attorney who has specialized in civil rights law.

Barbee-Wooten said race-based challenges to Native Hawaiian programs "are clearly a distortion of the intent of the 5th and 14th amendments, which were created to prevent the disenfranchisement of African-Americans, who were being treated as slaves and property." She added, "I don't see the Native Hawaiian claims to ceded lands in any way analogous to the same oppressive circumstances."

Moreover, the equal protection claims face an uphill legal battle against case law in any effort to dismantle native rights. The landmark 1974 Morton v. Mancari case supported a preferential hiring of Native Americans within the Bureau of Indian Affairs (BIA) and carved out an exception to the equal protection clauses of the Constitution, which was cited even at the 1978 Constitutional Convention as a legal precedent for equal opportunity programs for indigenous groups. "In Morton v. Mancari, the court said that the hiring Native Americans by the BIA was not racially discriminatory, because the move was designed to further tribal self-government, previously recognized under provisions of Congress," said Christiansen. The ruling gave more authority to the courts to recognize that indigenous peoples have a political affiliation that pre-dates the coming of Westerners. Common racial descent was not the common denominator of a tribal group; sovereign government could be recognized as the superseding factor.

There are those who believe that case law is not enough to shield Hawaiian rights from the challenge inherent in the ceded lands appeal. They believe the passage of the Akaka Bill would position Hawaiian more clearly as a political entity not subject to the strict scrutiny of the equal protection clause. Then there are those who equate federal recognition with a foreclosure on sovereignty and native self-determination. And there are those who working on passage of a legislative moratorium on ceded land sales, a move which they believe will in the eyes of the Supreme Court judges bolster the assertion that along with keeping Hawaiian lands in Hawaiian hands, Hawai'i state policy is best crafted by state lawmakers.

One thing is for certain come Feb. 25, whether individuals in any of these camps are raising flags or chanting in symbolic unity at the state Capitol vigil, they will have their eyes turned to Washington, D.C., to witness a pivotal chapter open in native rights.