In the pre-dawn hours of Feb. 25th, Hawaiians gathered at the Hawai'i state Capitol, dancing and chanting in vigil and protest of the state's U.S. Supreme Court challenge. - Photo: Blaine Fergerstrom

By Liza Simon / Ka Wai Ola Loa

A bill at the heart of an announced plan to end the 15-year-old lawsuit over ceded land sales should provide some level of protection against selling or transferring the lands in the future.

That's some of the reaction to the agreement to bring closure to the case, which made it all the way up to the U.S. Supreme Court on Feb. 25 and which also spurred mass protests by Native Hawaiians who were unhappy that the state administration appealed the case to the highest court in the United States.

The Office of Hawaiian Affairs and three of four individual plaintiffs have reached an agreement with state Attorney General Mark Bennett that would resolve most issues in the legal dispute.

Leaders of the Ali'i Trusts gathered at Mauna 'Ala on Feb. 25th as part of the Kūkulu Kumuhana vigil as Hawai'i v. OHA was heard at the U.S. Supreme Court. - Photo: Blaine Fergerstrom

All parties except for plaintiff Jonathan Osorio have signed on to the agreement; the agreement is contingent upon Gov. Linda Lingle's approval of Senate Bill 1677, which requires a two-thirds majority vote by both chambers of the state legislature before ceded lands can be sold or transferred. The bill also requires that OHA be notified of any proposed sale at the same time the legislature receives a proposal. The bill does not change current state law requiring a legislative disapproval process for exchanges of public and private lands.

If enacted, OHA and all the private plaintiffs with the exception of Osorio would dismiss their claims without prejudice, which means they would retain the right to initiate future litigation on the matter. If plaintiff Osorio proceeds with the case and his claims go forward, OHA and the other three plaintiffs agree not to participate in the lawsuit. Reached by e-mail, Osorio said he was preparing a public statement on the matter, but Ka Wai Ola Loa did not receive it by press time.

In announcing the agreement, OHA Chairperson Haunani Apoliona and Bennett jointly issued a statement saying that despite significant differences in the lawsuit, "This settlement resolves those differences in a way we believe is beneficial to all citizens of Hawai'i." They expressed hope that the settlement would clear the way for concentrating on crucial Native Hawaiian matters – specifically the passage of the Akaka Bill.

Charles Ka'ai'ai, an original plaintiff in the case, said the settlement brought a "sense of closure" to a legal battle. "It was the first time that so much of the ceded lands would have been disposed of in that fashion and we thought it was not appropriate," he said. "There had been other activities regarding sale of ceded lands for schools or use of easements, but that would have been the first time so much was being sold to a private developer and we felt the housing crisis was being used only as a cover-up for a move that was simply not right."

Until the very end state Rep. Mele Carroll pushed for a bill that would impose a five-year moratorium on ceded lands sales. Her effort to revive the bill in the final days of the Legislature was based on principle, she said, well aware that she didn't have the votes to pass it even in committee. In the end, she voted against the adopted version of Senate bill 1677, which would require two-thirds of both houses of the Legislature to approve ceded lands sales. - Photo: Lisa Asato

OHA and the four individual plaintiffs sued the state to stop it from selling about 1,500 acres of ceded lands on Maui and Hawai'i Island to a developer for a commercial project that would have included affordable housing. On Jan. 31, 2008, the Hawai'i Supreme Court prohibited the state from selling or transferring ceded lands, the former crown and government lands of the Kingdom of Hawai'i, to third parties until the unrelinquished claims of the Hawaiian people to those lands are resolved. The U.S. Supreme Court based its decision on the federal Apology Resolution, which apologized for the United States' role in the illegal overthrow of the Hawaiian monarchy, and state law.

Lingle's administration appealed the Hawai'i Supreme Court decision to the U.S. Supreme Court, which heard oral arguments in the case on Feb. 25. Less than a month later, the U.S. Supreme Court issued an opinion saying that the Apology Resolution did not prevent the state selling the lands. But the court also said it did not have authority over state law and remanded the case back to the Hawai'i Supreme Court for further proceedings.

Ka'ai'ai also said that the new bill is long overdue. "I have always felt that our state laws give the legislature the authority to stop the open process for selling ceded lands, but I have to wonder why it took a Supreme Court case to get lawmakers into a realistic discussion on the issue," he said. "What I would like to see now is that this discussion is continued with the public and the lawmakers, so we can look forward to the disposition of lands in relation to the issue of sovereignty."

Ka'ai'ai said he has no regrets about the longstanding litigation. "There is a lot of personal pressure when you go to court, but it relieves the pressure when your belief system and emotions are in line with your actions and you know something you're doing is important to others."

State House Hawaiian Affairs Committee Chairwoman Mele Carroll on May 5 voted against the measure on the House floor along with Reps. Lyla Berg, Faye Hanohano and Maile Shimabukuro. They were the "no" votes in both the House and Senate as the session wrapped up.

Carroll said on the House floor that Native Hawaiians are brought up to understand their roles as stewards of the land to protect it for future generations. Comparing the ceded lands bill to a kapa protecting the lands, she said: "I am not that confident that this legislation will protect our ceded lands from being sold. I see pukas in the kapa."

Carroll, who preferred a five-year moratorium bill on ceded lands sales, said protection of the ceded lands corpus is of utmost importance. "While I appreciate having somewhat of a policy in place, I feel it's not good enough to protect our 'āina, (and) more importantly to protect our trust entirely," said Carroll, who is also the Chairwoman of the Legislative Hawaiian Caucus.

The week before the final floor votes, Senate President Colleen Hanabusa had said that the bill struck a balance between Native Hawaiian concerns for preserving the corpus and concerns that imposing a full moratorium would subject the state to equal protection attacks. She said the bill's requirement of a two-thirds vote of the House and Senate to approve ceded lands sales is a high hurdle to overcome. Of the pending agreement in the court case, she said a motion to dismiss the lawsuit without prejudice "is one of the best resolutions" because it leaves the door open for unrelinquished claims.

Sen. Clayton Hee, a member of the Legislative Hawaiian Caucus, said the settlement follows a course of action that was clearly predictable: "It's no surprise that the Supreme Court would punt to the Legislature and the Legislature agreed on a safety valve to put a seal of approval on any sale of ceded lands. But remember, the over-riding majority in the House and Senate is not Native Hawaiian, so there is still no guarantee that (stopping ceded land sales) will be a priority."

In January, thousands of Hawaiians and supporters marched down Kalākaua Ave. in Waikīkī in protest of the state's push for the right to sell ceded lands. - Photo: Blaine Fergerstrom

Hee added that an additional tool for ensuring the state properly addresses Native Hawaiians' ceded lands claims is to mandate that 20 percent of the seats on the Board of Land and Natural Resources be filled by Native Hawaiians. This would mirror the 20 percent pro rata entitlement of ceded lands revenues guaranteed to Native Hawaiians under section 5 of the state's Admissions Act, Hee said.

The state's appeal triggered heated public demonstrations by Native Hawaiians and supporters concerned that without the state court's injunction the state administration would breach its fiduciary duty as trustee and reduce the corpus of the ceded lands trust made up of 1.2 million acres, including airports and harbors. Though the Lingle administration said it didn't plan to sell any ceded lands, it said the Supreme Court appeal was necessary to clarify whether the federal Apology Resolution stripped the state of clear title to ceded lands.

"There has been a limited amount of comfort in hearing the governor repeating over and over that her administration has no intent to sell ceded lands, but in a year we will have a new governor, so we've been concerned about what will happen in the future, regardless of the current administration's stance," said Derek Kauanoe of the Kupu'āina Coalition, an organization that spearheaded public rallies opposing the Lingle appeals case.

"We would have preferred a moratorium because it specifically reflects an earlier legislative resolution recognizing that Native Hawaiians have the right to work towards reconciliation of unrelinquished claims to crown lands, but SB 1677 at least provides some measure of protection," said Kauanoe, adding, " We have always believed that this case was about an issue best settled by legislative policy, rather than sending it up to federal court."

Attorneys on both sides of the case reached the settlement despite maintaining conflicting interpretations of the Supreme Court opinion. "What we achieved in the Supreme Court is that no court has the ability to recognize claims inconsistent with the state's clear title, but our position was never been that the legislature should never have the ability to change policy (regarding disposition) of ceded lands and the way they are managed under state law," said Bennett, the attorney general, reiterating that the dismissal of the lawsuit would allow more attention to be focused on the Akaka Bill, which is supported by OHA and the Lingle administration.

William Meheula, attorney for the individual plaintiffs, said the U.S. Supreme Court decision is consistent with his position that the Apology Resolution did not in any way change existing state law or fiduciary duty and that there remains in place a body of state law prohibiting sale and transfer of ceded lands. "But if we can resolve this through legislation that will ensure the state carries out its fiduciary duty (on ceded lands), then we have achieved what we set out to with a settlement," he said.

Lisa Asato contributed to this report.