Wednesday, December 3, 2008


SMOKE AND MIRRORS: The old illusionist trick, when the scantily clad woman goes into a box and the magician sticks swords through it, conjures up an image similar to what Kanaka Maoli Hawaiians must feel like.

Whether it’s dimwitted xenophobic Ken Conklin’s racist screeds or our D.C. fab four and their Akaka bill seeking to steal the land base “one last time fair and square” the daggers keep coming, fast and furious.

But though the bikini-attired assistant is long gone from the box when the swords are plunged through predetermined slots, kanaka are not so lucky.

And tomorrow a sword slung by the state of Hawai`i could deal the final fatal wound to any thought of decolonialization. Because that is when the Supreme Court of the U.S. (SCOTUS) takes up* State of Hawai`i et. al.vs Office of Hawaiian affairs et. al.

For those haven’t heard even though the Hawai`i Supreme Court (SCOHI) put the kibosh on the state’s ability to sell the land that the U.S,. stole in 1893 and gave to the state in 1959 (thinking no one would notice they stole it 66 years before) to keep “in trust” for native Hawaiians the state has appealed and the racist and reactionary Amerikan high court has agreed to hear the case at the behest of Governor Linda Lingle’s henchman, the corrupt Attorney General Mark Bennett of Superferry and various other ignoble infamies.

The basis of the appeal to the feds is that the SCOHI supposedly based their decision to forestall the sale until the issues of the U.S. and State acknowledged theft are dealt with by the State, was the 1993 U.S. “Apology Bill” that the U.S. Congress passed. It acknowledges the series of events through which the governor seemed to believe the land belonged to the state to do with what they pleased by stretching restrictions on its use beyond all recognition

But the appeal- and the press accounts of it- have all centered around whether the apology bill had any force of law which is 180 degrees off from what is at the center of the case.

In the brief in opposition the respondents to the state’s appeal, the attorneys point out that the SCOTUS has no business in the matter to begin with and show how, although the SCOHI did cite the apology bill it did so for the facts contained and more importantly because it verified three other 1993 acts of the Hawai`i State legislature.

Those three laws and another passed in 1997 make up the acknowledged chronology of legal events leading up to the land grab by the state.

The question the brief attempts to answer is

Whether the Hawaii Supreme Court acted within its authority in relying upon Hawaii’s laws and Constitution, as well as principles of trust law and the 1993 federal Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, to impose an injunction on the sale or transfer of the lands conveyed in trust to the State of Hawaii until the ongoing reconciliation process between the state and federal governments and native Hawaiians is completed?

The answer shows that plainly the basis for the SCOHI action lays in the facts contained in the apology bill- facts based on the Hawaii state statures- not in the nature of the apology bill and whether it is “binding” or “advisory”.

We’re not hopeful for the outcome here- U.S. courts, especially the SCOTUS have routinely ignored the law when it comes to indigenous peoples’ rights on the mainland and here in the islands.

When the land base for any sovereign indigenous group is gone so is much of the impetus for any sovereignty movement.

This judicial end-around could well be that death blow. For all the SCOTUS’ ballyhooing of “states rights” that only goes when the states’ decisions are “wing-nut” right.

Over the past few months the wise-guys and the American judges in their pockets have been out in force trying to ignore the actual legal chain of events that cloud title to all the lands they stole.

Although you hear the term “ceded lands” used by these agents of theft the real term used for over 100 years in the kanaka community is “stolen lands”.

So here, reprinted below, is the answer- in a nutshell (albeit a rather long one) to the question of the legal paper trail for a large chunk of the kanaka claims of sovereignty over these lands that were never rightfully “ceded” by anyone- except perhaps from Americans to Americans.

A careful reading lays out how, through a convoluted paper trail designed to obscure if not hide the theft, we come to this day, when a national seal of approval by the American courts to finalize the theft by dubbing it legal, is upon us.

Although we urge anyone interested to read the entire brief, here’s the gist of it with some citations and other extraneous material deleted.


The unanimous decision of the Hawaii Supreme Court in this case mentioned seven different sources of law: four Acts of the Hawaii legislature, two Acts of the United States Congress, and the carefully-crafted body of state trust law as applied to Hawaii’s Public Lands Trust. Petitioners’ claim before this Court is limited to the assertion that the decision below misread one of the two federal acts, the 1993 Apology Resolution, a Resolution that was enacted after three of the four Hawaii laws at issue in the case and that duplicated those very laws.

The 1993 Hawaii statutes that form the essence of the Hawaii Supreme Court’s decision in this., case were a long-overdue reaction to the overthrow of the Kingdom of Hawaii exactly one hundred years earlier, in 1893. In 1.898, when Hawaii was annexed, the Republic of Hawaii "ceded all former Crown, government, and public lands to the United States."

However, the United States treated these lands as separate from other public lands,
requiring their revenues "to be ’used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes.’ (quoting from the Annexation Resolution). In 1899, the U.S. Attorney General opined that the Annexation Resolution had placed these lands (about 1.8 million acres) in a "special trust" for the benefit of Hawaii’s people. Hawaii-Public Lands,

Subsequently, in the 1959 Hawaii Admission Act, (the "Admission Act"),
Congress stated five purposes for which the lands in the trust could used. One of these was "for the betterment of the conditions of native Hawaiians" Id., Section 5(f). Congress also affirmed that it would be up to the State of Hawaii to determine how to manage these lands: "Such lands, proceeds and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust. (emphasis added.) In 1978, the people of Hawaii clarified the State’s trust obligation to native Hawaiians during a Constitutional Convention, and the Office of Hawaiian Affairs (OHA) was created to manage proceeds derived from the lands held in trust and designated for the benefit of native Hawaiians.

In the spring of 1993, the year marking the 100th anniversary of the overthrow of the Kingdom of Hawaii, the Hawaii State Legislature passed three related statutes:

The first was Act 340 (1993), "An Act Relating to the Island of Kaho’olawe." It established the Kaho’olawe Island Reserve Commission, and stated that the island of Kaho’olawe (which had been used by the Navy for training purposes, and was in the process of being returned from the federal government to the State) "shall be held in trust as part of the public land trust; provided that the State shall transfer management and control of the island and its waters to the sovereign native Hawaiian entity upon its recognition by the United States and the State of Hawaii."

The second was Act 354 (1993), "An Act Relating to Hawaiian Sovereignty." It set forth the facts of the 1893 overthrow and 1898 annexation, and stated that the Hawaii State Legislature "has also acknowledged that the actions by the United States were illegal and immoral, and pledges its continued support to the native Hawaiian community by taking steps to promote the restoration of the rights and dignity of native Hawaiians."

The third was Act 359 (1993), "An Act Relating to Hawaiian Sovereignty." Its Findings section again provided the facts related to the 1893 overthrow and the 1898 annexation, emphapasizing that the activities taken by U.S. diplomatic and military representatives to support the overthrow of the Kingdom occurred "without the consent of the native Hawaiian people or the lawful Government of Hawaii in violation of treaties between the two nations and of international law," and characterizing these acts as "illegal." The Act went on to observe that the 1898 annexation of Hawaii was "without the consent of or compensation to the indigenous people of Hawaii or their sovereign government," and that as a result of the annexation, "the indigenous people of Hawaii were denied the mechanism for expression of their inherent sovereignty through self-government and selfdetermination, their lands, and their ocean resources." The Act declared its main purpose to be to "facilitate the efforts of native Hawaiians to be governed by an indigenous sovereign nation of their own choosing,", and outlined a process designed to
promote that goal.

Only after the State of Hawaii enacted these three statutes into law did the United States Congress, in November 1993, pass "a Joint Resolution recounting the events [relating to the overthrow] in some detail and offering an apology to the native Hawaiian people." Rice, 528 U.S. at 505 (citing Apology Resolution). The Apology Resolution’s findings directly mirrored those of the three statutes that Hawaii had just recently passed.

Following the above spate of state and federal legislation, four years later the Hawaii Legislature enacted Act 329 (1997), "An Act Relating to the Public Land Trust," which was designed to clarify the proper management of the lands in the Trust. The Act stated that "the events of history relating to Hawaii and Native Hawaiians, including those set forth in [the federal Apology Resolution] continue to contribute today to a deep sense of injustice among many Native Hawaiians and others." Id. It explained that "the people of Hawaii, through amendments to their state constitution, the acts of the legislature;, and other means, have moved substantially toward [a] reconciliation." In addition, the Act identified its "overriding purpose" as "to continue this momentum, through further executive and legislative action in conjunction with the people of Hawaii, toward a comprehensive, just, and lasting resolution." Id. Importantly, the Act also stated that Congress’ Apology Resolution provided a correct recounting of "the events of history relating to Hawaii and Native Hawaiians."

The fact findings set forth in these four Hawaii statutes--the three from 1993, preceding the Apology Resolution, and the fourth postdating it in 1997- were repeatedly and directly relied upon by the Hawaii Supreme Court in the opinion upon which certiorari is sought.

Although at one point the Hawaii Supreme Court characterized Respondents as relying "largely" upon the Apology Resolution, Respondents referred repeatedly to these state grounds below, and, of course, the Hawaii Supreme Court explicitly relied on these sources of State law at every turn. The Opening Brief filed by the Office of Hawaiian Affairs in the Hawaii court referred, for instance, to Act 340 (1993) (codified as Hawaii Revised Statutes, sec. 6K-9) at pages 35-36 and 38; to Act 359 (1993) at pages 2, 4, 11, 15, 26, 34, 35, and 38; and to Act 329 (1997) at pages 2-3, 11, 15, 22, 26, 35, and 38-39 (and both Acts 359 (1993) and 329 (1997) were attached to the Opening Brief as appendices). The first sentence in the Individual Plaintiffs’ Opening Brief to the Hawaii Supreme Court stated: "The central issue in this case is whether, in light of the admissions in Act 354 (1993), Act 359 (1993) and the Apology Resolution (collectively referred to as the "1993 Legislation"), the State would breach fiduciary duties if it sold ceded lands before the Hawaiians’ claim to ownership of the ceded lands is resolved." Thereafter, "1993 Legislation" was cited 30 times in Individual Plaintiffs’

Opening and Reply Briefs. Both Act 354 (1993) and Act 359 (1993) were included in the appendices of the Opening Brief filed by the Individual Plaintiffs. In combination with Hawaii judicial precedent and Hawaii trust law, the Hawaii statutes provided an explicit, independent state-law basis for the court to enjoin the State of Hawaii from selling the lands held by the State in the Public Land Trust until the claims of native Hawaiians are addressed and the ongoing reconciliation process is completed.

Basic common law principles of Hawaii trust law provided the Hawaii court with the authority to protect the trust corpus, and the factual findings of the Hawaii statutes (like those of the federal Apology Resolution, which mirrored them) reaffirmed the need to ensure that the corpus remains when a settlement is reached as to these claims.

Accordingly, both the text and reasoning of the Hawaii Supreme Court’s opinion provide independent and adequate--indeed, crucial and central—state grounds supporting the Hawaii court’s holding and its remedy.

* clarifies earleir post saying "hears" the case.

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