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Friday, June 14, 2024 | Back issues
Courthouse News Service Courthouse News Service

Hawaii Land Question May Be Resolved

HONOLULU (CN) - Hawaii legislators must decide whether to approve a $200 million settlement and conveyance of Native Hawaiian homelands to the Office of Hawaiian Affairs, for the use and benefit of the people of Hawaii.

Gov. Neil Abercrombie and Attorney General David Louie, in partnership with OHA, proposed the settlement in November 2011 and are beginning to issue executive orders for parcels throughout the Hawaiian Islands.

The OHA represents Hawaiians both legally and culturally in the settlement, which would include conveyance of 30 acres of oceanfront parcels in Honolulu's Kaka'ako Waterfront Park and Fisherman's Wharf.

The proposed settlement gives the state continued easements and ground and water rights. That's because part of the Kaka'ako area may be part of a High-Capacity Transit Corridor railroad that is still in litigation in Federal Court. Plaintiffs in that complaint say the city failed to conduct historic preservation surveys where known Native Hawaiian burials are known to exist.

Abercrombie signed the proposed settlement in November, and recently posted executive orders to cede parcels on the islands, with limitations.

"The settlement has no effect on claims that might be made related to overthrow or sovereignty, or claims related to ceded lands receipts for future periods, which are currently governed by Act 178 (2006)," the governor said in a statement. "Pursuant to that Act, OHA's current annual share of ceded lands receipts is $15.1 million. The settlement only applies to claims for ceded lands receipts that the State collected between 1978 and 2012."

A separate settlement was proposed in 2008 between OHA and Hawaii's former Gov. Linda Lingle. It did not pass in the Legislature.

The Hawaii Supreme Court stated that "the sale of ceded lands would constitute a breach of the State's fiduciary duty to Native Hawaiians under state law."

The legal battle over Hawaiian homelands is long-running and wrought with emotion and was last ruled on by the U. S. Supreme Court in 2009.

Writing for a unanimous court, Justice Samuel Alito remanded the issue to the state, to avoid retroactively clouding Hawaii's title to its sovereign lands, saying it was not a federal question.

Alito described the inception of the litigation this way: "In 1893, '[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.' 'That government sought annexation by the United States,' which the United States granted," (citations omitted).

Writing for the court, Alito ruled: "This case presents the question whether Congress stripped the State of Hawaii of its authority to alienate its sovereign territory by passing a joint resolution to apologize for the role that the United States played in overthrowing the Hawaiian monarchy in the late 19th century. Relying on Congress' joint resolution, the Supreme Court of Hawaii permanently enjoined the State from alienating certain of its lands, pending resolution of native Hawaiians' land claims that the court described as 'unrelinquished.' We reverse."

Hawaii was admitted to the union in 1959. "Under the Admission Act, with exceptions not relevant there, 'the United States grant[ed] to the State of Hawaii, effective upon its admission into the Union, the United States' title to all the public lands and other public property within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union,'" Alito wrote. These lands, 'together with the proceeds from the sale or other disposition of [these] lands and the income therefrom, shall beheld by [the] State as a public trust' to promote various public purposes, including supporting public education ,bettering conditions of Native Hawaiians, developing home ownership, making public improvements, and providing lands for public use. Hawaii state law also authorizes the State to use or sell the ceded lands, provided that the proceeds are held in trust for the benefit of the citizens of Hawaii." (Citations omitted; brackets in original.)

Alito found that "the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and 'broader moral and political claims for compensation for the wrongs of the past.' But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion." (Citation omitted.)

Abercrombie said in his statement that if the Legislature approves it, "this agreement will finally and completely resolve any and all claims relating to OHA's share of ceded land receipts under article XII, sections 4 and 6 of the State Constitution, from November 7, 1978 to July 1, 2012."

If approved, leases to the land will be passed to OHA. Once those leases expire, it is OHA who will decide how to proceed, consistent with Hawaii Community Development Authority's master plans and zoning rules.

OHA Chairwoman Colette Machado said: "OHA will hold many community meetings for the public to provide its input. OHA's Board of Trustees agreed to move forward with this proposal because we believe it is good for native Hawaiians. We are grateful to the Governor for working hard to make this happen."

OHA has scheduled 12 public meetings in February to inform and take comment from the public on Oahu, Maui, Molokai, Kauai, Lanai and the Big Island.

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