The U.S. Supreme Court in Washington, D.C., where Hawai'i v. OHA was heard in February. - Photo: Supreme Court of the United States

OHA, lawmakers see opportunity in U.S. Supreme Court decision

By Liza Simon and Lisa Asato / Ka Wai Ola Loa

Hawai'i will decide the fate of former Hawaiian Kingdom lands now that the U.S. Supreme Court sent the ceded lands case back to the Hawai'i Supreme Court for further review – sparking both statements of optimism by supporters of preserving the corpus intact as well as a statement by a lawmaker who said it was "frightening" the possibility that ceded lands sales could proceed as soon as the state court formally receives the U.S. Supreme Court ruling in May.

"I think it's a favorable decision," said Charles Ka'ai'ai, one of four individual plaintiffs who along with OHA had sued the state in 1994 to stop it from selling about 1,500 acres of ceded lands on Maui and Hawai'i Island for projects that would have included affordable housing. "I'm optimistic about what the outcome will be out of the Hawai'i Supreme Court."

Ka'ai'ai said the state court may have "overstepped their bounds by using federal law in deciding the case" but at the same time had found basis in state law for stopping the state from alienating ceded lands. "I think that's all they really need to uphold the moratorium they imposed," he said.

On March 31 the U.S. Supreme Court ruled that the state court had erred in relying on the federal Apology Bill in its January 2008 ruling barring the state from selling or transferring ceded lands until Native Hawaiian claims to the lands are resolved. The Apology Bill, which was passed by Congress and signed by then-president Bill Clinton in 1993, apologized for the United State's role in the illegal overthrow of the Hawaiian monarchy.

Jocelyn Doane of Kupu'āina Coalition, which formed to protect the ceded lands after the state appealed the case to the U.S. Supreme Court, said the coalition was pleased that the nation's high court reversed and remanded the decision to the state court. While the "ruling wasn't the best opinion that it could be for Native Hawaiian claims," she said, "it could have been much worse."

The state court "is the most appropriate venue to make the decision in regards to whether the lands should be sold," Doane said, adding: "I personally have confidence that there's sufficient state law to justify and injunction. There have been those, publicly, who disagree with that statement but that's our opinion at this point: there's adequate state law to justify an injunction."

She also said she was disappointed at the high court's downplaying of the Apology bill, which played an important role in starting the healing process for many Native Hawaiians. "I think that's something we need to continue to support – that (the Apology bill) is still a significant message from Congress as well as the president of the United States," she said.

Meanwhile, state Attorney General Mark Bennett said he was pleased with the Supreme Court's reversal of the state court's decision, which "cleared up any cloud on the state's right of ownership or title to the ceded lands." This was the main reason why the Lingle administration appealed the lower court's ruling, Bennett added. "The unanimous opinion by the nation's nine justices makes clear the point made throughout the last three administrations that the State of Hawai'i through the Admission Act holds the fee-simple title to the trust lands for the benefit of all Hawai'i including Native Hawaiians," Bennett said, reiterating that the state has no plans to sell ceded lands.

Bennett echoed Gov. Linda Lingle's comments made earlier this month at a legislative hearing on the state's budget crisis, saying that selling ceded lands during the current soft market conditions would also be a poor financial decision.

Meanwhile, Rep. Mele Carroll said the Supreme Court's lifting of the injunction leaves no doubt that the state can sell lands – a possibility she called "frightening" in a written statement, which also called on lawmakers to take the opportunity to set policy "to ensure that ceded lands are not sold or transferred until the state fulfills its fiduciary responsibility and moral obligation to native Hawaiians." The state Admission Act requires that revenues from ceded lands be used for two classes of beneficiaries – the general public and Native Hawaiians, and assigns to the state the duty of ceded lands trustee.

Carroll, who chairs the Legislative Hawaiian Caucus, is recommending passage of Senate Bill 1085, that would impose a moratorium on ceded lands sales for five years or until the settlement of Native Hawaiian land claims to the lands are reconciled. "A moratorium would give (lawmakers) the benefit of having enough time to put together a working group in order to make sure the community is informed and whatever policy we put together is thorough," Carroll said, adding that the state could lift its voluntarily ban on ceded land sales. "I can cite many examples where the state has reversed its position, especially in matters related to revenues and funding of programs."

Carroll added: "The attorney general has been saying all along we have to protect the value of the trust, but the question is always how do you assess value? You can look at value in terms of how much money you make, or in terms of how many lives you enrich."

Carroll dismissed earlier criticism by Bennett and others that a moratorium could trigger legal challenges related to the guarantee of equal protection under the Constitution. "There is the other side of the story with breach of contract of fiduciary duty to Native Hawaiians leading to lawsuits. But our main duty (in the Legislature) to look at policy in protecting the ceded lands trust – not worry about lawsuits," said Carroll (D-East Maui, Moloka'i).

With the Legislature set to adjourn the first week in May, the moratorium bill has not advanced as quickly as another bill addressing ceded lands sales. Senate bill 1677 would allow for any resolution proposing a ceded land sale to be stopped by a majority of both houses to disapprove ceded land sales. Critics say the measure weakens protection for the ceded lands trust, because resolutions frequently fail early in the Legislature, thus diminishing the opportunity for public input on a pending sale.

"The worst thing that could happen is that the Legislature would pass no (measure) before the end of the session," said Carroll, indicating that supporters of the moratorium may be inclined to look at amending SB 1677 with a possible compromise that would change the disapproval process to legislative majority pre-approval of ceded land sales. "As a legislative body, we can always come back next year and make necessary changes to whatever is in place," she said.

Sen. J. Kalani English (D-Hāna, East Maui, Moloka'i, Lāna'i) agrees that the U.S. Supreme Court ruling boosted the need for Legislature's role in clarifying ceded lands policy. "Basically, (the ruling) did not make a call either way, but said don't use the Apology Resolution to reach a conclusion," said English, adding that it's understandable that parties on opposite sides see an advantage in the case coming back to Hawai'i. The state got the Hawai'i court's injunction overturned for now and OHA should be happy that the ruling was narrow and no additional challenges to Hawaiian entitlement programs became issues in the case, said English.

Sen. Clayton Hee (D-Kahuku, Lā'ie, Ka'a'awa) said the Supreme Court decision delivers no immediate victory for Native Hawaiians because it places another hurdle in the way of settling ceded lands claims after decades of attempts to do so. Hee predicted that once the Hawai'i Supreme Court re-examines the case, "(the court) will punt to the Legislature, as it has always done. So the Legislature can respond responsibly with the moratorium for the purpose of reconciliation (as described in the Akaka Bill)," Hee said, noting that U.S. Sen. Akaka has said Congress is poised to pass the bill and President Obama has said he will sign it.

Meanwhile, Bennett, the attorney general, indicated that he has talked with legislative leaders this session about their proposals related to ceded lands. "Ultimately whatever passes is up to lawmakers, but we think there's room for a (legislative compromise) that would be a way forward without (continued court action)," he said.

Bennett said he believed U.S. Supreme Court ruling was the end of the line for the 15 year-old-case. "It's always been our position that state law allows the sale of ceded lands, but the position of the Hawai'i Supreme Court decision has been that the (U.S.) Apology Resolution trumps state law. Now that trump card has been removed," Bennett said.

In the meantime, OHA and its attorneys appear confident that they will prevail when the case returns to the state's high court. "As we have consistently said for months, this case should never have been taken outside the state of Hawai'i." said OHA Chairperson Haunani Apoliona. "While we would have preferred an outright dismissal of the petition, the result in this case is workable," Apoliona added.

The ruling is workable because while it reversed the Hawai'i Supreme Court's reliance on the federal Apology Resolution, there is "adequate and independent state grounds for a decision such as the one that the Hawai'i Supreme Court made" in its unanimous Jan. 31, 2008, ruling favoring OHA and four individual plaintiffs, said OHA attorney Sherry Broder. She pointed to the state court's reliance on state laws, the state constitution and previous court rulings.

Apoliona, the OHA Chairperson, said OHA trustees aim to "protect these national ands from being extracted and we will do legislatively and judicially all we can to, at the end of the day, arrive at that conclusion."

"Tomorrow's a new day," she said after the U.S. Supreme Court ruling was announced. "It's coming back to the state Supreme Court. We're not done."