The Background of the Native Hawaiian "Ceded" Lands Case

On January 31, 2008, the Hawai'i Supreme Court, in The Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawai'i ("OHA v. HCDCH"), ruled that the State of Hawai'i can not sell Hawaii's ceded lands until the unrelinquished rights of Native Hawaiians are resolved. Click here to read the Hawai'i Supreme Court's decision.

On April 30, 2008, the Lingle Administration, through Attorney General Mark Bennett, announced that it filed papers asking the Supreme Court of the United States to review our Hawai'i Supreme Court's decision in the OHA v. HCDCH case for the purpose of over-turning that decision.

In other words the Lingle Administration wants to be able to sell ceded lands before resolving the unrelinquished claims of Native Hawaiians. This is a bad idea because, reparations and reconciliaiton has not been made yet for the overthrow of the Hawaiian Kingdom. The United States Congress, the Hawai'i legislature and the Hawai'i Supreme Court acknowledged that Native Hawaiians have unrelinquished claims to the ceded lands, (lands that belonged to the Hawaiian Kingdom government before 1893 overthrow). Allowing the sale of ceded lands before those claims are resolved is detrimental because it reduces the bargaining power of the Native Hawaiiam community to resolve these claims.

Click here to read the Lingle Administration's first filing to the U.S. Supreme Court asking it to take the case. The Lingle Administration basically argues that, the State has a right to sell public lands and that the Hawai'i Supreme Court mis-used the 1993 Apology Resolution in its ruling. What is important to realize is that the history of Hawai'i's public lands are unique in comparison with all other states. So, even though other state governments might support the Lingle Administration, Hawai'i is different from all other states.

The lawyers for the Office of Hawaiian Affairs and the four individual plaintiffs, filed a response brief to the U.S. Supreme Court suggesting that the high Court not accept the case for review. This is not an unusual thing to do since the high Court only chooses to hear a few cases each year; declining to review significantly more cases than it accepts. Additionally, OHA's and the four other individual plaintiffs' lawyers argued that since the U.S. Supreme Court generally cannot rule on issues of State law, the State Supreme Court should be the final interpreter of Hawai'i State law.

The Lingle Administration replied to the response brief with its own papers arguing again that the U.S. Supreme Court should hear the case.

On October 1, 2008, the U.S. Supreme Court decided to hear the ceded lands. Again, the Lingle Administration is hoping to sell ceded lands without having to first resolve the claims of Native Hawaiians. Click here to read article form Honolulu Star Bulletin.