WHAT REALLY HAPPENED AT THE U.S. SUPREME COURT
By Leon Siu
February 27, 2009
Washington, D.C., USA
Reading the newspaper accounts of the State of Hawaii v. the Office of Hawaiian Affairs oral arguments at the Supreme Court I asked myself, were they in the same courtroom that I was? Hawaii papers put a phony, positive spin on what actually went down. The stories were written with the kind of provincial slant - home-town-team, win-or-lose, they're-our- boys and we're-darn proud-of- 'em and we-love- 'em.
Well, we do love 'em, but those of us who were there saw a very different picture than the hometown news reported. The fact is, the state and OHA choked.
Hawaii's little league ball teams do much better in rallying and coming through in the clutch in their world-series encounters. But the State and OHA got dirty lickins playing in this big league, world-series- level of court. They performed like a bunch of amateur scam artists, but in nice suits.
In essence, the Supreme Court justices appeared not just skeptical, they seemed to be downright annoyed at the state's convoluted arguments and manipulative efforts to have the federal court undo the results of 14 years of dragging through the state courts.
The justices took their line of questioning way outside the expectations and comfort zone of both the state and OHA. Neither party was prepared to (or wanted to) address the issue of title except to reinforce the state's claim to so-called "perfect title" as "a given." So they did some fancy footwork to try to dodge the title issue; which did not amuse or make any points with the court. Neither was the court pleased when the state and OHA tried to steer the justices back to the actual narrow question on deck about state's rights.
The state's whole case is built upon the premise that the State of Hawaii has "indisputable perfect title" to the "ceded lands." Well guess what? If their title was "indisputable" and "perfect" why are they in court? And why have they been in court over this issue for 14 years? Because there is a dispute! There is a question of title!
The injunction leveled against the State of Hawaii by the State Supreme Court in January 2008 caused the State to run crying to the U.S. Supreme Court saying, "No fair, no fair! The Apology Law would force us to give Hawaiians back the lands stolen from them over 100 years ago! It's ours fair and square because the U.S. gave it to us! The Apology means nothing. We have "perfect title!"
[Ironically, this is the very Apology Law that the state embraces in their support the Akaka Bill. But that's another story.]
The Apology Law undermines the state's "perfect title" claim. The State Court ordered the injunction because the Apology Law clearly shows that there is a dispute -- a big one! The Apology Law flatly says that the seizure of Hawaii was illegal and that the native Hawaiians never gave up their claims (title) to the lands of Hawaii.
These two glaring admissions of fact, framed within this federal Apology Law (USPL 103-150) don't merely suggest a problem of land title; they cast serious doubt on the very legitimacy of the State of Hawaii. How can something that results from an illegal act now be considered legal, or in this case, perfect?
The illegality of the initial act (the seizure of the lands of Hawaii) means that anything else based on that illegal act is likewise, illegal; and that means the State of Hawaii and its construct, OHA are illegal entities. That means the only valid, lawful claimant to the lands and jurisdiction of the Hawaiian Islands is, after all these years, the still-existing Hawaiian Kingdom.
That is why the state claimed right off the bat that it had "indisputable" "perfect title." The state was desperately trying to keep the court from inquiring about any other option regarding title by eliminating that, first off, as a point of contention. But the court's refusal to wear such blinders was unnerving to the state. You could almost hear the state attorney general saying to the court, "focus! focus!"
But just because the state took a beating, doesn't mean OHA fared much better.
Probably the most egregious action that day was by OHA when it chose to agree with the state's "perfect title" position and by doing so, failing to present the Native Hawaiians' un-relinquished claims as a challenge to the state. They virtually abandoned the Native Hawaiian land claim implicit in the Apology Law! By doing so, they virtually abandoned the Native Hawaiians; the clients they purport to represent!
At best it was a stupid legal maneuver; at worst it was a shameful betrayal.
OHA never challenged the state's "perfect title" claim and argued instead that according to state laws, the state had a "fiduciary duty," sort of a moral obligation, to take care of the Native Hawaiians.
That led Justice Ginsburg to ask, "The Native Hawaiians -- they do get 20 percent of the proceeds, correct?" And the OHA attorney to answer, "That's correct - as a matter of State law they get 20 percent of the revenue from the ceded-lands trust" (we all looked incredulously at each other - since when?) Then he clarified, "though the amount of that revenue has itself been the subject of protracted and unresolved litigation." Oh, so we get 20%, but not yet! The check's in the mail. Yeah, right.
Later, Justice Kennedy stated to the OHA attorney: "Your whole case rests on a cloud on the title in favor of your clients. But you -- you ignore the cloud on the title that has been entered against the State."
So, OHA's strategy is: don't press for the Native Hawaiian's outstanding claim on the land, but instead, shift to begging for handouts from the state because, according to "state law," the state has a "fiduciary duty" to take care of Native Hawaiians. OHA in essence was making a pitch (in the Supreme Court of the United States!) for a welfare claim, not a land claim!
In my opinion, both the state and OHA were way out of their league in this court. But you can't blame them. They had a flimsy case to begin with; one in which they are trying to defend a situation that resulted from a long series of illegal actions. It's very hard to defend a string of lies.
Two good things came from this: 1) the state and OHA have proven they have nothing to stand on, and 2) there is now a gaping doorway for the Hawaiian Kingdom to walk through, assert itself and claim its rightful title the lands of Hawaii.
Imua! Let's go get 'um!
Malama pono,
Leon
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We should remember that OHA does NOT represent the Kanaka Maoli. They are a State agency that receives the proportioned share of the Public trust land's REVENUE to use for the betterment of the native Hawaiians. They do NOT represent the Kanaka Maoli; they represent their constituents who vote in the elections of the trustees. In this case, it's the entire community of the ipso facto State of Hawai'i. I hope that in itself makes things transparently clear. Their actions conform to their master, the State of Hawai'i. The 80% of the REVENUES go for the other intended purposes. Come on gang! Let's focus on the issues as they are.
Prior to the creation of OHA, there were no revenues used for the betterment of the native Hawaiians. Since its creation, the legislature determined that 20% of the REVENUES would be used for the betterment of the native Hawaiians. Since 1978, the state has not given OHA the 20% due to it. This is what the state's settlement with OHA is about. If the State were to retroact what they owe OHA, it would bankrupt the State today. Get the picture?
Now going to the case with the USSC, one can see the folly of the left hand fighting wioth the right hand to clarify what the third party which is not represented in this case, which are the Hawai'i nationals of the Kingdom of Hawai'i. This U.S. internal bickering is trying not to go to the scene of the crime which would expose their guilt and criminal actions that invalidates the Newlands Resolution and all the subsequent internal U.S. laws.
This then becomes an international issue that should be settled at the Hague. The U.S. doesn't want the Hawai'i nationals to press on this point because the U.S. would automatically lose this case because of the cover-up it has done countless times. If we don't speak up; then it means we are compliant and willingly subjugate ourselves to the bully, U.S.A. and that the U.S. has legitimate control of Hawai'i and it's people.
If you don't know the dangers of the Akaka Bill by now; you never will and remain in your comatose state forever, blissfully happy with your lot and watch your rights disappear before your very eyes. In this case, remain stupid and blissfully happy in an ethereal state of mind. Like Peter Pan in Never, Neverland; you may believe you can fly as an American; flunking geography and political science and common sense.
People forget that America is over 2,000 miles away. If you want to be American, go there with my blessings and be happy. While here in Hawai'i, the laws of occupation take precedent. We have our own nation, constitution, laws, territory, and people. We are a foreign country to the U.S.A. Go to their internal laws and see what they write to include Hawai'i. Its unique situation differs from all their States in what the U.S. grants Hawai'i through the Newlands Resolution, Organic Act, and the Statehood Amissions Act. Did you know that the Hawaiian Homes Commission Act of 1920 had set aside lands that are not part of the public trust lands? What the U.S. grants other states and any new states, does not affect Hawai'i and what it granted Hawai'i doesn't affect other states already established or any new ones. Thus the situation is unique. Ever wonder why?
Turpie Resolution of 1894 gave us a loophole thanks to President Cleveland and the arrogant over-confident Congress:
Resolved, That of right-it-belongs wholly (totally) to the people (bona fide citizens) of the Hawaiian Islands to establish and maintain their own form of Government and domestic policy; that the United States ought in no wise to interfere with, and that any intervention in the political affairs of these islands by any other Government will be regarded as an act unfriendly to the United States. Remember the Ku'e Petitions of 1897? The people spoke(about 98% of them) against annexation to the U.S.A.
As is printed in the Honolulu Advertiser in 12 March 2000: Justice memo shows U.S. never legally annexed Hawaii. According to Steven T. Newcomb who wrote what we already knew: "...(annexation) is premised upon an erroneous article of faith rather than historical legal fact. ...to by-pass the treaty process (the only way for annexation to be lawful) the Newlands Resolution was passed by simple majority instead of ratifying a treaty with 2/3rds vote as demanded by the U.S. Constitution. The 1988 memo fails to identify any provision in the U.S. Constitution or any principle in international law which could have provided a legal basis for the United States to acquire Hawaii by joint resolution. ...Congressman Ball characterized the (joint resolution as) 'a deliberate attempt to do unlawfully that which cannot be lawfully done.'
The Justice Department memo...conclusions. No Annexation of the Hawaiian Islands ever legally occurred in 1898. The 'Territory of Hawaii' was not established in 1900, despite congressional legislation purporting (stating) the contrary. The statehood vote was an attempt to hide an illegal act that began in 1893, with U.S. (major) complicity. ..."
Newcomb is Director of the Indigenous Law Institute and a research fellow at the Fourth World Center for the Study of Indigenous Law and Politics. Now, if you don't believe what we've been saying for a 116 years, listen to this person with more academic credits to his name who is supporting what all of us have been saying all this time. If you don't believe us; believe him!!! Any questions????
Yes Uncle Tane I realize all that you say, I'm coming from a devil's advocate stance and how the outside will look in. There is no working entity to recognize if there is no unity with Kanaka Maoli. I say take all the leaders of each individual groups, have them be responsible for divisions of governement and they all get together and lead together. Without a lead there are no unison in followers. Maoliworld can be a group too other than what I have seen listed (people, groups, organization) in various forums. Already Maoliworld has 3000 + members.
Yep that is what was to happen. By proving no title however, the fed and state court could also use OHA as a "clearing house" since it is already a supposedly working entity for the benefit of native hawaiians. Irregardles of the title being clouded there is a system (OHA) who could manage it and ALL of it.
If OHA doesn't manage it then you still have the PUKA. The key is needed for the door even though there is a PUKA. Having the key to the door makes a claim. So who has the right key now? Which group, which
person(s), etc.?
I understand that there are those on the list who would want to see OHA out of the game but if there isn't a working entity in the amount of "fact finding" whom do you think the fed and state court would agree on as
far as caretaker of these lands? Do it by counties and District them? This would still have it in the SYSTEM.
psshh, OHA just sold us out. bascially what they said is that the thieves have perfect title. they choked. thier suppose to be for kanaka maoli but choked.
IMHO this is just the beginning of one of the biggest wars over land that this generation of Hawaiians has seen and IMHO we should not mistakenly believe that they will stop. (They won't.)
"The state's whole case is built upon the premise that the State of Hawaii has "indisputable perfect title" to the "ceded lands." Well guess what? If their title was "indisputable" and "perfect" why are they in court? And why have they been in court over this issue for 14 years? Because there is a dispute! There is a question of title!"
Obviously some at OHA are fighting for their paychecks which are correlated to some land holdings and/or transactions. Perhaps some independent non-OHA-related attorneys preferably who are Hawaiian by nationality too will step in and assert the rights to some title of some kupuna and/or their legal heirs and/or on behalf of their kupuna as their legal heirs.
Yes, assert our rights by having someone represent kanaka maoli and kupuna as legal heirs. Despite the case for the past fourteen years, at least the State of Hawaii is consistent in the things, ideas and concepts they want the media and po'e abroad to believing that they have "clear title" to seized lands. As the supreme justice descibed, why is there a protest if the State of Hawaii have clear titile?
Don't allow yourself to believe that Linda Lingle, her bandits and OHA is there for you. You sell out yourself and your kupuna by settling for less. For those po'e dealing behind closed doors, shame on you selling out your own people! Money can buy comfort, however can't replace na kupuna and right the HEWA. One hundred and sixteen years of illegal occupation. The U.S. needs to deoccupy our islands!
Replies
Prior to the creation of OHA, there were no revenues used for the betterment of the native Hawaiians. Since its creation, the legislature determined that 20% of the REVENUES would be used for the betterment of the native Hawaiians. Since 1978, the state has not given OHA the 20% due to it. This is what the state's settlement with OHA is about. If the State were to retroact what they owe OHA, it would bankrupt the State today. Get the picture?
Now going to the case with the USSC, one can see the folly of the left hand fighting wioth the right hand to clarify what the third party which is not represented in this case, which are the Hawai'i nationals of the Kingdom of Hawai'i. This U.S. internal bickering is trying not to go to the scene of the crime which would expose their guilt and criminal actions that invalidates the Newlands Resolution and all the subsequent internal U.S. laws.
This then becomes an international issue that should be settled at the Hague. The U.S. doesn't want the Hawai'i nationals to press on this point because the U.S. would automatically lose this case because of the cover-up it has done countless times. If we don't speak up; then it means we are compliant and willingly subjugate ourselves to the bully, U.S.A. and that the U.S. has legitimate control of Hawai'i and it's people.
If you don't know the dangers of the Akaka Bill by now; you never will and remain in your comatose state forever, blissfully happy with your lot and watch your rights disappear before your very eyes. In this case, remain stupid and blissfully happy in an ethereal state of mind. Like Peter Pan in Never, Neverland; you may believe you can fly as an American; flunking geography and political science and common sense.
People forget that America is over 2,000 miles away. If you want to be American, go there with my blessings and be happy. While here in Hawai'i, the laws of occupation take precedent. We have our own nation, constitution, laws, territory, and people. We are a foreign country to the U.S.A. Go to their internal laws and see what they write to include Hawai'i. Its unique situation differs from all their States in what the U.S. grants Hawai'i through the Newlands Resolution, Organic Act, and the Statehood Amissions Act. Did you know that the Hawaiian Homes Commission Act of 1920 had set aside lands that are not part of the public trust lands? What the U.S. grants other states and any new states, does not affect Hawai'i and what it granted Hawai'i doesn't affect other states already established or any new ones. Thus the situation is unique. Ever wonder why?
Turpie Resolution of 1894 gave us a loophole thanks to President Cleveland and the arrogant over-confident Congress:
Resolved, That of right-it-belongs wholly (totally) to the people (bona fide citizens) of the Hawaiian Islands to establish and maintain their own form of Government and domestic policy; that the United States ought in no wise to interfere with, and that any intervention in the political affairs of these islands by any other Government will be regarded as an act unfriendly to the United States. Remember the Ku'e Petitions of 1897? The people spoke(about 98% of them) against annexation to the U.S.A.
As is printed in the Honolulu Advertiser in 12 March 2000: Justice memo shows U.S. never legally annexed Hawaii. According to Steven T. Newcomb who wrote what we already knew: "...(annexation) is premised upon an erroneous article of faith rather than historical legal fact. ...to by-pass the treaty process (the only way for annexation to be lawful) the Newlands Resolution was passed by simple majority instead of ratifying a treaty with 2/3rds vote as demanded by the U.S. Constitution. The 1988 memo fails to identify any provision in the U.S. Constitution or any principle in international law which could have provided a legal basis for the United States to acquire Hawaii by joint resolution. ...Congressman Ball characterized the (joint resolution as) 'a deliberate attempt to do unlawfully that which cannot be lawfully done.'
The Justice Department memo...conclusions. No Annexation of the Hawaiian Islands ever legally occurred in 1898. The 'Territory of Hawaii' was not established in 1900, despite congressional legislation purporting (stating) the contrary. The statehood vote was an attempt to hide an illegal act that began in 1893, with U.S. (major) complicity. ..."
Newcomb is Director of the Indigenous Law Institute and a research fellow at the Fourth World Center for the Study of Indigenous Law and Politics. Now, if you don't believe what we've been saying for a 116 years, listen to this person with more academic credits to his name who is supporting what all of us have been saying all this time. If you don't believe us; believe him!!! Any questions????
The KEY is unity and this is where we are STUCK.
If OHA doesn't manage it then you still have the PUKA. The key is needed for the door even though there is a PUKA. Having the key to the door makes a claim. So who has the right key now? Which group, which
person(s), etc.?
I understand that there are those on the list who would want to see OHA out of the game but if there isn't a working entity in the amount of "fact finding" whom do you think the fed and state court would agree on as
far as caretaker of these lands? Do it by counties and District them? This would still have it in the SYSTEM.
It does not surprise me.
IMHO this is just the beginning of one of the biggest wars over land that this generation of Hawaiians has seen and IMHO we should not mistakenly believe that they will stop. (They won't.)
"The state's whole case is built upon the premise that the State of Hawaii has "indisputable perfect title" to the "ceded lands." Well guess what? If their title was "indisputable" and "perfect" why are they in court? And why have they been in court over this issue for 14 years? Because there is a dispute! There is a question of title!"
Obviously some at OHA are fighting for their paychecks which are correlated to some land holdings and/or transactions. Perhaps some independent non-OHA-related attorneys preferably who are Hawaiian by nationality too will step in and assert the rights to some title of some kupuna and/or their legal heirs and/or on behalf of their kupuna as their legal heirs.
Aloha~~ Lana
Don't allow yourself to believe that Linda Lingle, her bandits and OHA is there for you. You sell out yourself and your kupuna by settling for less. For those po'e dealing behind closed doors, shame on you selling out your own people! Money can buy comfort, however can't replace na kupuna and right the HEWA. One hundred and sixteen years of illegal occupation. The U.S. needs to deoccupy our islands!
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