Lingle moves forward with U.S. Supreme Court hearing on “ceded” lands

Travis Quezon
Hawaiian Sovereignty

Related Osorio: "These are our lands, our responsibility"

In a show of solidarity, hundreds of demonstrators wearing red T-shirts gathered on Monday in front of the Queen Lili'uokalani statue fronting the Hawai'i State Capitol. Signs reading "Lingle: withdraw now" and "Save ceded lands" urged Gov. Linda Lingle to reconsider going forward with an appeal to the U.S. Supreme Court to overturn a January 2008 decision by the Hawai'i Supreme Court, which granted an injunction against the state from selling ceded lands from the public lands trust until the claims of Native Hawaiians to those lands have been resolved.

Gov. Linda Lingle said in a statement that she would not withdraw the state's appeal to the U.S. Supreme Court because she did not believe a Congressional apology to Native Hawaiians in 1993 overturned land rights granted to the state when it was created in 1959.

"Hawai'i's public trust lands were transferred to the state by United States Congress in trust for the benefit of all the people of Hawai'i," Lingle said, "and, therefore, the State of Hawai'i has the right and the obligation to use those lands for the public purposes specified in the Admission Act and State law—for the benefit of all Hawai'i's citizens. That can include at times, selling or transferring the lands, such as what the Waihee Administration and the state Legislature sought to do to promote affordable housing on Maui.

"I supported the appeal to the United States Supreme Court because I believe the Congress did not take from the State in 1993 the rights it gave the State in 1959. I believe the United States Supreme Court will agree and will confirm Hawai'i's rights granted to it in the Admission Act of 1959. As the Governor of all Hawai'i's people, Native Hawaiian and non-Native Hawaiian alike, I could not in good conscience seek to withdraw our appeal to the United States Supreme Court and will not do so."

In opposition to the state, the Office of Hawaiian Affairs, who filed the initial lawsuit in 1994 to argue that the state did not hold good title to public trust lands, aims to see that the 2008 decision to suspend the selling of ceded lands is preserved.

"This case now headed to the U.S. Supreme Court is of grave concern," OHA Board Chairperson Haunani Apoliona said. "We firmly stand behind the state Supreme Court's opinion, which says the state should keep the ceded land trust intact until Native Hawaiian claims to these lands are settled."

"We firmly stand behind the state Supreme Court's opinion, which says the state should keep the ceded land trust intact until Native Hawaiian claims to these lands are settled," Haunani Apoliona said.

OHA was created in a 1978 Constitutional Convention in part to manage the proceeds from lands ceded by the Kingdom of Hawai'i following its overthrow by the United States.

In its lawsuit, OHA argued that "any transfer of ceded lands by the state to third parties would amount to a breach of trust" and did not ensure the interests of Native Hawaiians to those lands. In 2002, a trial court ruled that the state did have the power to sell ceded lands to private residential developers.

Earlier this year, the Hawai'i Supreme Court overruled the trial court's decision, also ordering that there be an injunction to prevent the state from selling ceded lands from the public trust.

The Hawai'i Supreme Court cited the apology resolution, known as 103d Congress Joint Resolution 19, in its decision.

"In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawai'i, Congress acknowledged and apologized for the U.S. role."

The apology resolution stated that the Congress "on the occasion of the 100th anniversary of the illegal overthrow of the Kingdom of Hawai'i on January 17, 1893, acknowledges the historical significance of this event which resulted in the suppression of the inherent sovereignty of the Native Hawaiian People."

The Congress also expressed its commitment to reverse the ramifications of the overthrow of the Kingdom of Hawai'i in order to provide a proper foundation for reconciliation between the United States and Native Hawaiians.

Following the Hawai'i Supreme Court's overruling, Hawai'i Attorney General Mark Bennett, who believed that the apology resolution should be construed as strictly symbolic, asked the U.S. Supreme Court to hear the case.

In October 2008, the U.S. Supreme Court accepted the case for review.

With Lingle adamant in supporting another hearing of the ceded lands case, it will now be up to the the highest court in the land to answer the following question:

"In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawai'i, Congress acknowledged and apologized for the United States' role in that overthrow. The question here is whether this symbolic resolution strips Hawai'i of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land—29 percent of the total land area of the State and almost all the land owned by the State—unless and until it reaches a political settlement with Native Hawaiians about the status of that land."