A ruling by the U.S. Supreme Court gave both sides of the ceded lands dispute some good news. On Tuesday, March 31st the Supreme Court ruled the congressional resolution that apologized for the ousting of the Hawaiian monarch in 1863 did not strip the state of property rights with regard to 1.2 million acres of former crown lands. The unanimous ruling overturned the Hawaii Supreme Court’s previous ruling that used the 1993 Congressional Apology Resolution to prevent the sale of land passed on to Hawaii when it joined the Union and became the 50th state.
This new ruling by the U.S. Supreme Court prevents the OHA from relying on the 1993 Resolution in further court proceedings. Since a resolution is not a law, it comes as little surprise that the U.S. Supreme Court overturned the previous ruling by the Hawaiian Supreme Court. The success of the OHA in selling land should not be dependent on the 1993 Apology Resolution as there are a number of state laws, resolutions, and legal precedents that lend support to its position. Moreover, before the final decision is made by the Supreme Court, ceded land parcels can still be sold off by the state, although this is unlikely. Ceded land sales and transfers would be inadvisable politically as the current state’s Republican government hopes to replace Gov. Linda Lingle with Lt. Gov. James Aiona.
Nonetheless, current state Attorney General Mark Bennett, who lead the appeal of the Hawaiian Supreme Court’s 2008 decision, feels that the U.S. Supreme Court has given the state control over ceded lands. Because the U.S. Supreme Court’s decision ultimately mandates that the Apology Resolution has no effect over the rights of the State of Hawaii, the land that was originally in absolute fee by the United States should now be under the control of the state. The U.S. Supreme Court’s decision clearly supports the argument that there is no implication in the Apology Resolution that Hawaii does not have sovereign right to control its own land. The Republican Party has consistently maintained that the state executive branch has total power to sell or transfer ceded lands according to the 1995 State Admissions Act.
In 2008, the Hawaii Supreme Court created an injunction opposing the sale or transfer of ceded land which constitutes more than a fourth of the land on the islands. This equates to several billion dollars worth of real estate. However, the U.S. Supreme Court’s decision changes nothing of the original arguments. Ultimately, they deemed the Hawaii decision as inaccurate and therefore the argument returns to square one. Both sides of the issue will revisit their original arguments, this time ignoring the Apology resolution. Some believe it will still be possible to halt the sale of ceded lands through legislation pending in the Capitol. Therefore, according to the Supreme Court, the State must still decide the fate of this issue.
Clearly, Native Hawaiians look to protect what they feel is their land. Some government representatives feel that there is a financial responsibility to these Native Hawaiians and that ceded lands should not be sold until these people have been fairly compensated. There is even the possibility that ceded lands be relinquished to family land claims as many would argue that the lands were stolen.
Still, both sides of this issue have solid arguments. According to some, the Admission Act recognizes the legality of the sale and transfer of these lands as does state law and the Hawaiian Constitution. In opposition of this position is the Akaka Bill. This bill has been before congress for nearly nine years and supporters feel there is a hope for this bill to be passed due to endorsement of President Barack Obama. The most current version of the Akaka Bill, presented to Congress on February 4th, seeks to create a process by which Native Hawaiians can gain self-governance, recognizes Native Hawaiians as the indigenous people of Hawaii, and strengthens the trust relationship between Native Hawaiians and a governing body within the U.S. government. However, the bill does not call for a suspension on ceded land sales and transfers and this would have to be an amendment to this or another bill. For example, Senate Bill 1677 calls for two-thirds approval from the Legislature with regards to transactions involving ceded lands. This bill provides an excellent opportunity to legislate the transfer, by sale or otherwise, of ceded lands. Essentially, this bill would ensure that Hawaii, its citizens and government, have final say over transactions involving these lands. Future legislation could also be developed to ensure the protection of ceded lands.
Posted in Maui Real Estate |
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