Take a Stand on Ceded Lands

I received this email from our classmate, Pauahi Thompson Nichols last week. This is a huge issue for all of us, especially the "50% er's" (like me), who are the main beneficiaries of the trust set up by Congress (thank you Betty Yap Lau for pointing that out). Benny

(For more information, go to www.StopSellingCededLands.com. Please circulate this e-mail widely. Mahalo.)

Aloha kakou,

On Saturday January 17, 2009, there will be march and rally against the State of Hawai'i's ongoing attempt to sell the lands which rightfully belonged to the Hawaiian Kingdom at annexation. These lands do not belong to the State of Hawai'i nor to the federal government, but rather they are held in trust for Native Hawaiians for several purposes, including "the betterment of the condition of Native Hawaiians (1959 Statehood Admissions Act).

Make no mistake, selling lands that rightfully belonged to the Hawaiian Kingdom will not benefit kanaka maoli. The Hawai'i Supreme Court acknowledged this in its pono January 2008 decision, citing the Apology Resolution as grounds for preventing further sale of "ceded" crown lands until all claims to those lands are resolved. While Governor Lingle and her staff argue that they are simply trying to clear up a minor legal issue of title to these lands, the ramifications of this legal maneuver are far-reaching...

Already those who seek to dismantle all programs and resources dedicated to the preservation of Native Hawaiians have seized this opportunity to propagate their revisionist Hawaiian history in the national media. Here is a sampling of their egregious statements (see bolded language in particular): "The state and Grassroots Institute of Hawai'i believe the Newlands Resolution of 1898 (the law annexing the Republic of Hawaii to the U.S.), as well as the statehood vote and Admission Act of 1959 and subsequent federal legislation address and effectively dismiss any claims Native Hawaiians may have had." (see this link for the full article -http://www.hawaiireporter.com/story.aspx?a318d495-dcab-4772-862f-00cb4de5b351)

This situation is URGENT. The Supreme Court is scheduled to hear the State's petition on February 26, 2009. Please spread this e-mail far and wide, and please consider the following 3 concrete actions which you can take to prevent further taking of our lands:

MARCH AND RALLY

On Saturday, January 17, 2009, please wear red shirts and meet at Kapi'olani Park (corner of Saratoga and Kalakaua) for a march (10am) and rally (11:30am). Go to www.StopSellingCededLands.com for all the information you will need.

FAST AND PRAY

Thursday, February 26, 2009 is the day the U.S. Supreme Court will hear the State's petition to overturn the Hawai'i Supreme Court's pono ruling unless the State withdraws its petition first. I URGE US TO FAST AND PRAY AS A PEOPLE. Together, let's beseech Ke Akua to preserve our people by preserving our crown lands. Wherever you live (in the islands or abroad), please consider sacrificing one, two or all of your meals on Thursday February 26, 2009 in order to humble ourselves and seek His blessing and protection.

Some valuable Scriptures to help you better understand the Biblical basis for fasting in times like these:

FAST FOR DIRECTION (Ezra 8:21, 23, 31) - "I proclaimed a fast...that we might humble ourselves before God, to seek from Him a straight way for ourselves, our children, and all our goods."

FAST FOR PROTECTION (2 Chronicles 20:1-30) where three nations were coming against Judah to destroy them. King Jehoshaphat, the king of Judah, proclaimed a fast for the whole nation and they asked the Lord what they should do. God heard their prayer and their fast and gave the people prophetic direction.

FAST FOR REPENTANCE AND CONFESSION (Acts 9:3-9) where the apostle Paul was confronted by a resurrected Jesus. He responded by fasting and praying in repentance for persecuting the early church and dishonoring Jesus as the true Son of God.

EDUCATE AND COMMUNICATE

I've attached a recent Honolulu Advertiser article at the end of this e-mail which is a very concise description of the legal support for our position as Native Hawaiians. We cannot risk another decision like Rice v. Cayetano from a U.S. Supreme Court which is not fully educated about the unique history of Hawai'i nor fully sensitized to the plight of the aboriginal peoples' of Hawai'i to survive in our homeland. Please take every opportunity to educate yourself (see www.StopSellingCededLands.com) and to communicate with others on this vital matter. It's time for us to wake up, and to wake others up. 'E holopono me ka lokahi!!!

Me ke aloha pumehana o 'Iesu Cristo,

Noelani Jai

Noelani@HawaiiansUnite.com

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December 28, 2008

State court correct in protecting ceded lands

By Jon M. Van Dyke and Melody Kapilialoha MacKenzie

In January 2008, our Hawai'i Supreme Court issued a unanimous decision, authored by Chief Justice Ronald Moon, holding that the state is prohibited from selling or transferring any of the 1.2 million acres of "ceded" lands until the unrelinquished claims of Native Hawaiians to those lands have been resolved through the political process.

Gov. Linda Lingle's administration has criticized this decision and has sought review from the United States Supreme Court, but its criticism and those of others have missed a crucial element of the decision — the state's trust duty to administer the ceded lands for the benefit of both Native Hawaiians and the general public.

The "ceded" lands are those lands that had been the Crown Lands and Government Lands during the Kingdom of Hawai'i and were later "ceded" by the Republic of Hawai'i to the United States as part of the 1898 annexation. These lands were never added to the public lands of the United States and have always been held in trust. In the 1959 Statehood Admission Act, the state accepted responsibility for administering the ceded lands for five trust purposes, including "the betterment of the conditions of Native Hawaiians." The Admission Act required the lands to be managed and disposed of "in such manner as the constitution and laws" of the state of Hawai'i may provide.

In 1978, the people of Hawai'i amended the state Constitution to state clearly that these lands were to be held as a public trust for two trust beneficiaries — Native Hawaiians and the general public.

Although much attention has been focused on the Hawai'i Supreme Court's interpretation of the 1993 Congressional Apology Resolution, it is really the court's reliance on Hawai'i trust law that led to its ultimate conclusion. In examining relevant law — including the Admission Act, the state Constitution, and earlier Hawai'i cases — our Supreme Court found that the state of Hawai'i has a fiduciary duty to Native Hawaiians in relation to the ceded lands. The court said that "the state, as trustee, must adhere to high fiduciary duties normally owed by a trustee to its beneficiaries." These duties include, the court explained, "the obligation that the trustee deal impartially when there is more than one beneficiary."

The Hawai'i Supreme Court found that the facts recounted in the Apology Resolution and similar state legislation put the state, as trustee of the ceded lands, on notice that Native Hawaiians have unresolved claims to the ceded lands. The court concluded that although the Apology Resolution and similar state legislation do not require that ceded lands be turned over to the Native Hawaiian people, they do recognize that Native Hawaiians have unrelinquished claims to the lands. Thus, transfer of the ceded lands by the state to third parties would amount to a breach of trust by favoring the interests of one beneficiary — the general public — over the interests of the other beneficiary — Native Hawaiians.

In this light, the Hawai'i Court's determination that "the Apology Resolution and related state legislation, give rise to the state's fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved," makes absolute sense.

In deciding whether an injunction was appropriate, the court stated: "Obviously, without an injunction, any ceded lands alienated from the public lands trust will be lost and will not be available for the future reconciliation efforts." Importantly, the court recognized that monetary compensation in lieu of the lands themselves would be inadequate given the inextricable link between Native Hawaiians and their land. The court thus called for a moratorium on the transfer of these lands "pending final resolution of Native Hawaiian claims through the political process." (Emphasis added.) Similar moratoria have been issued in Alaska while the claims of Alaska natives were being sorted out, in New Zealand while a process to resolve the Maori claims was being established, and in Arizona to protect lands claimed by the Pueblo Indians.

Recently, the Lingle administration filed its brief in the U. S. Supreme Court which argues that Native Hawaiians have no legal claim to the ceded lands. This position is inconsistent with the Apology Resolution, similar state legislation, and the proposed Akaka Bill, all of which recognize that the overthrow of the Kingdom of Hawai'i was illegal and that the Native Hawaiian people have unresolved claims to the lands. The administration has also incorrectly asserted that the Hawai'i Supreme Court found that the state does not have good title to the ceded lands. In fact, the opinion expressly stayed away from that issue and explained that "the issue of Native Hawaiian title to the ceded lands will be addressed through the political process."

Clearly, our Supreme Court looked at both the legal and equitable issues involved in this case and sought to strike a balance. Although it 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. As the court stated:

"In this case, Congress, the Hawai'i state Legislature, the parties, and the trial court all recognize (1) the cultural importance of the land to Native Hawaiians, (2) that the ceded lands were illegally taken from the Native Hawaiian monarchy, (3) that future reconciliation between the state and the Native Hawaiian people is contemplated, and (4) once any ceded lands are alienated from the public land trust, they will be gone forever."

The Hawai'i Supreme Court's decision is firmly based on Hawai'i's Constitution, statutes and case law, and our state's highest court correctly interpreted Hawai'i trust law to reach both a legally correct and morally just decision.


Jon M. Van Dyke teaches constitutional law and international law at the University of Hawai'i-Manoa's William S. Richardson School of Law and is the author of "Who Owns the Crown Lands of Hawai'i?" Melody Kapilialoha MacKenzie is an assistant professor at the William S. Richardson School of Law, where she teaches Native Hawaiian Law courses and is the author of the "Native Hawaiian Rights Handbook." In their private capacities, Van Dyke and MacKenzie are part of the team of lawyers representing the Office of Hawaiian Affairs in the State v. OHA case now pending before the United States Supreme Court. They wrote this commentary for The Advertiser.