—Brief for Petitioners, State of Hawai'i, et al. v. Office of Hawaiian Affairs, et al., p. 45, citing Tee-Hit-Ton Indians, 348 U.S. at 281-282.
On selling ceded lands
The brief filed by Attorney General Mark Bennett in the state's appeal to the U.S. Supreme Court from transferring or selling ceded lands has caused much anger among Hawaiians. The appeal seeks to overturn a Hawai'i Supreme Court ruling temporarily barring the state from transferring or selling ceded lands. A reading of the brief illustrates the state's acknowledgement that while wrongs have been committed against Native Hawaiians in the past, history is no protection against the superior power of the government to steal, coerce and oppress.
It should strike people as ironic that a Governor who helped to make "Shaloha" a byword of Jewish identification with Hawai'i—as a place of diversity and acceptance and a place where Jewish people belonging to the synagogue community, Temple Emanu-El, might "pursue social justice"—could take responsibility for an administrative statement that quite plainly and banally states that Hawaiians, while having a moral right to their lands, do not have a legal right to the ownership of those lands.
There is nothing mystical in the official brief; no hiding on the part of the claimants who are its architects. Here are some plain speaking quotes from section II B of the brief which I provide by way of example:
No matter what the historical record might show, however nothing in "international law" or any other body of jurisprudence permits any court to invalidate the Newlands Resolution's preclusive effect on any and all claims of preexisting or competing title. First, it is well established that, in cases of conflict, specific federal statues trump preexisting treaties and principles of customary international law. Thus, even if residents were correct in contending that the Newlands Resolution's abrogation of any Native Hawaiian title conflicted with international law in 1898, that conflict would have no bearing on the Resolution's legal validity in U.S. courts.
Nor could respondents have any plausible basis for a judicial challenge to the Newlands Resolution under the Takings Clause of assessing challenges to the Newlands Resolution, a Native Hawaiian polity could have stood in no stronger legal position that the sovereign Indian nations that were displaced or dispossessed by American expansion in the 19th century. As this Court has repeatedly held, "the power of Congress" to extinguish "Indian title based on aboriginal possession … is supreme. The manner, method and time of such extinguishment raise political not justiciable issues."
Under the "Shaloha" administration of Gov. Linda Lingle, history can bear moral witness, and even the state attorney general and his team can manufacture the moral arguments on behalf of Hawaiians. History on its own, however, cannot provide justice for Hawaiians through the courts, and this is their primary argument: "While Native Hawaiians, like other wronged and displaced peoples, have strong moral claims on the political branches of government for recompense, the courts have no role to play in determining whether Congress should have made different or additional provision for Native Hawaiians to compensate them for their grave losses." But really, what does the state hope to gain from overturning the state Supreme Court's findings? And why are they trying to invalidate any court of law in the United States as a venue in which Hawaiians can seek settlement for land claims?
First, they hope to be able to generate revenue for the state of Hawai'i by selling off "ceded lands." In these hard economic times, the selling of lands for "affordable housing," in light of the out-of-control homeless situation on O'ahu alone seems like a no-brainer. But shouldn't we also be asking ourselves as residents, Native Hawaiian or otherwise, what factors led us into this situation?
How did Hawai'i become the third most expensive place to live in the nation? How do the twin dependencies of militarism and tourism, especially luxury housing and resorts for the transient, foreign rich and the resources siphoned off by unplanned growth, contribute to our inability to pay our rent or property taxes or find decent employment outside these "service" industries? What about the kama'aina, local residents? What about the kupa o ka 'aina, those born here for generations?
Second, Hawai'i's media has suggested that the State and Native Hawaiians will rest easy after "final reconciliation [which] will occur after congress passes Sen. Daniel Akaka's Hawaiian Sovereignty bill and the next president signs it into law." This came from a piece published in the June 12, 2008 issue of the Honolulu Star Bulletin. If this language sounds like a done deal, ask yourself: WHY?
It's about delivering more land to the State
Is anyone paying attention to the fact that the real underlying impetus for this appeal is to persuade Hawaiians and others in Hawai'i and the nation that the Akaka bill, when passed, will somehow protect Hawaiian programs, Hawaiian rights, and our claim to the "Ceded Lands"? But really, what the passage of the Akaka bill promises to deliver to the state of Hawai'i is a unique and unheard-of seat at the land settlement table, alongside the federal government, and an appreciable entity—a tribal government, a nation or a Hawaiian corporation—with whom it can negotiate in the near future in order to enact the Final Mahele: namely, to find a way to get as much of the Crown Lands away from Hawaiians through a legal and perpetually binding settlement.
In the mid-19th century, some maka'ainana discovered that a foreigner who had bought some land from their ali'i just after the 1848 Mahele was trying to evict them from their customary dwelling and working place. In a letter to their ali'i, they were puzzled by this situation, and they asked their chief: do we belong to him now? The Hawaiian Islands have but a finite amount of land to buy and sell. And after the last bit of it has been sold to investors living off island, who will we—all of us in Hawai'i, not just Native Hawaiians—belong to then?
Tracking the discourse on both sides is an exercise in frustration. The state's brief is concerned with arguing that the courts are not the appropriate venue in which to discuss the disposition of ceded lands, mostly because it is concerned with the state's sovereign right to title. Furthermore, it hopes by bringing such a bluntly volatile issue to a head, Hawaiians and Hawaiian groups will rush headlong into the corral of the Akaka Bill, which will create institutions that the State of Hawai'i can negotiate with and set in motion a chronology for the settlement of Hawaiian land claims, bringing "history" to an end. The logic here on the part of the state must look somewhat like "you can't continue to complain about the past and injustice if you've made a settlement!" Gone are those pesky moral claims; settlement dismantles arguments for justice.
Hawaiians, on the other hand, speak in moral and historical terms, arguing fiercely that the land and the people are one and that justice, namely the illegal overthrow of their nation by the United States, must be set to rights. These are all things which the brief willingly admits, and therein lies its strength and brilliance.
We should wonder therefore if there can ever be social justice for Hawaiians in their homeland, when the current administration has disclosed in its brief that history has nothing to do with justice and that the courts are not a place which can deliver such a thing. We need to change our strategy in how we approach these aggressors. At the end of the day, our ideas about reconciliation and what we want to see for future generations is not the reconciliation the state and federal governments hope to create. "Reconciliation" for the state and federal government will happen in a boardroom somewhere over some settlement documents between the federal government, the state of Hawai'i and some federally constituted Native Hawaiian governing entity.
So much for social justice. So much for Shaloha.
1 Brief for Petitioners, State of Hawaii v Office of Hawaiian Affairs, p.40-41.
2 Brief for Petitioners, State of Hawaii v Office of Hawaiian Affairs, p.45
3 "Hawaii Supreme Court Ruling Tampers With Federalism." Honolulu Star-Bulletin, June 12, 2008. See also the quote in "State Had No Choice On Ceded Land Appeal," Honolulu Star-Bulletin, May 1, 2008, which says almost the exact same thing, "Reconciliation will occur after Congress approves Senator Daniel Akaka's Hawaiian Sovereignty Bill and it is signed into law."
4 See Bill Meheula's Letter to the Editor, "State Gets it Wrong on Ceded Lands," Honolulu Star-Bulletin, Dec. 15, 2008. Meheula explains in his letter that the title issue, raised by Ms. Lingle, is something that the state Supreme Court's finding has expressly "stayed away from." What does this mean exactly? It means that the title issue has been raised to alarm voters and residents, but really has nothing to do with the state Supreme Court's finding.