"Immoral" and "stolen property" were the heated catchwords several attendees frequently shouted to state Attorney General Mark Bennett Wednesday night at a "Ceded Lands Case" forum hosted at the University of Hawai'i's law school.
The Kupu'āina Coalition "Ceded" Lands Case Information Forum allowed Atty. General Bennett and a number of other influential panelists to publicly discuss their positions on the Lingle administration's recent appeal to the U.S. Supreme Court. The appeal seeks to overturn the state Supreme Court's ruling on OHA v. HCDCH in January last year, a ruling which effectively prevents the state from selling crown and government lands taken during the overthrow of the Hawaiian kingdom until Hawaiian claims to those lands are settled. The Supreme Court is expected to rule on the case this summer.
Joining the Attorney General were Office of Hawaiian Affairs (OHA) attorney Bill Meheula, former state Deputy Attorney William Tam, state senator Clayton Hee, and former governor John Waihe'e.
Comments arose from the packed lecture hall almost immediately after Mr. Bennett began his oral arguments on behalf of the state.
"Why do you say ceded lands? It should be stolen lands," an attendee shouted.
Mr. Bennett continued and explained the Lingle administration's claim that the state Supreme Court, in making its decision, wrongly interpreted the Apology Resolution enacted by Congress in 1993. He said that the Apology Resolution does not, and should not, strip the powers given to the state upon admission into the union and through various acts of Congress.
"It is immoral. Drop the lawsuit," shouted an attendee from the seat-filled room as several snickers erupted from the crowd.
"The Hawaiian people have a moral claim to the land, but not a legal one," Mr. Bennett said. "These decisions are committed to the discretion of Congress, whether or not it is immoral."
"It is immoral," another person shouted.
Bill Meheula, an attorney representing OHA in the case, says that the Apology Resolution infers that the state has no power to sell the ceded lands until issues of ownership are resolved. "The title to the ceded lands should be settled through the political process because Hawaiians have never relinquished their lands."
He also contended that, according to the Admissions Act of 1959, the state is bound by its duty to use the ceded lands for "the betterment of the conditions of Native Hawaiians."
"Legally, the state has the power to sell, but it goes against its fiduciary duties," he said.
Keli'i Collier, a UH graduate student, heatedly asked Bennett to explain if the United States could legally take over countries like Iraq, and, to take the issue closer to home, a nation like Tonga.
Bennett responded that if the people in a country wanted to become a part the United States, then, through various political processes, it could be done.
Others weigh in
Former Deputy Attorney General William Tam, who says he is personally neutral on the issue, offered another approach whereby the state would go through several steps before being able to sell the land.
An early step would be an evaluation of whether there was a less drastic resolution to selling the land. And if the land needed to be sold, Tam suggests that the state could buy lands of equal worth to balance out the loss. A more drawn-out process like this "sets up a method of dialogue," he said, that would remove the need for a ruling on this case.
Mr. Tam says that the US Supreme Court would favor the state. "The Supreme Court is concerned with civil rights history," he said, adding that misconstrued analogies to segregation sometimes do not paint a flattering picture in regards to Native Hawaiian issues.
"They judge cases like gangsters," an attendee shouted.
But state senator Clayton Hee agreed with Tam.
"Based on my experience in politics, the chances of Bennett prevailing is automatic," he said. "We should be prepared for a loss at the Supreme Court."
Hee said the probable ruling would catalyze attacks on other Hawaiian programs like OHA, for which he is a former trustee. "The momentum of the rhetoric of people like Bill Burgess is gaining … we need to look at other ways to short the un-regressing assault on Native Hawaiians."
According to former governor John Waihe'e, the state's appeal to the U.S. Supreme Court is a first. "I know of no other instance of a state appealing its own position," he said. "You [the state] appeal your own interpretation of the law?"
And he says the fact that a federal court will decide this issue, with all its personal history, is wrong. "We're asking an outsider to decide something in the state … it doesn't make sense," he said.
Waihe'e said he believes the state still has a moral obligation to the Hawaiian people: "Don't challenge something that is part of your moral fabric."
During an intermission, Andre Perez, a vocal proponent for Hawaiian sovereignty, said the Hawaiian community and its supporters already know the attorney general's position, and "for those actively seeking justice, Mr. Bennett is a dead end."
"Don't waste your time with this forum," he said. "We need to come together. We can put down our differences and gain power. We can build a lahui and get back to a nation."