Posted on: Saturday, May 23, 2009 Honolulu Advertiser
No Ceasing Ceded-Lands Fight
UH professor believes recent agreement fails to resolve all concerns
By Gordon Y.K. Pang
Advertiser Staff Writer
University of Hawai'i-Manoa Hawaiian Studies Professor Jonathan K. Osorio will continue the legal fight to block the state from selling ceded lands, even as the Lingle administration, the Office of Hawaiian Affairs and three other plaintiffs in the case appear to be close to a settlement.
OHA and four Native Hawaiians, including Osorio, sued to bar the state from selling ceded lands until claims by Hawaiians to those lands are resolved. The U.S. Supreme Court on March 31 ruled the Hawai'i Supreme Court erred in relying on the 1993 Congressional Apology Resolution as the legal basis for a moratorium, essentially agreeing with the plaintiffs.
The high court sent the case back to the Hawai'i court, although lawyers for the state and OHA have different opinions as to what the Hawai'i justices are allowed to do.
In an action designed to remove the uncertainty of an impending Hawai'i Supreme Court ruling, lawmakers this month passed Senate Bill 1677, requiring the governor to obtain a two-thirds approval of both houses of the Legislature before being able to sell any of the 1.2 million acres of ceded lands.
The Lingle administration, OHA and three of the four individual plaintiffs have agreed to the settlement. Attorney General Mark Bennett said last week he expects Gov. Linda Lingle to sign the bill, formally signaling that an agreement has been reached.
Osorio, however, said in a statement to The Advertiser he is not part of the settlement and that he believes the two-thirds approval requirement in SB 1677 does not go far enough to resolve the concerns he and other Native Hawaiians have raised.
"Until Hawaiian claims to crown and government lands have been resolved, their sale must be prevented by the strongest law possible," Osorio said.
"As a kanaka maoli historian, I know that our people held substantial estates in the lands that were protected by the laws of the Hawaiian Kingdom," he said. "This fact, coupled with the numerous governmental admissions of our unrelinquished claims to our crown and government lands require not merely a cautionary approach to the sale of these lands but the injunction that the Hawai'i Supreme Court so wisely ordered."
The ceded lands, which comprise nearly all the lands now owned by the state, were under the control of the monarchy at the time of the 1893 overthrow and transferred to the state under the 1959 Admission Act.
Attorney Bill Meheula, who first took the case to the Hawai'i Circuit Court in 1994 on behalf of Osorio, Pia Thomas Aluli, Charles Ka'ai'ai and Keoki Maka Kamaka Ki'ili, has withdrawn as Osorio's attorney. Osorio is now being represented by attorneys Yuklin Aluli, Dexter Kaiama and Mililani Trask.
"He wants to pursue a full injunction in the courts," Aluli said, adding that she and Osorio believe the Hawai'i Supreme Court can come to a new decision blocking the sale of the lands "based on state law grounds. We have a body of law in Hawai'i that would support the same outcome."
Osorio, a renowned musician and until last year director of the Kamakakuokalani Center for Hawaiian Studies at UH-Manoa, expressed his view on the proposed settlement in an e-mail sent to supporters last month.
"I am trying to hold onto a position of law that I can believe in, even if I don't completely trust the process," Osorio wrote. As for OHA's decision to settle the case, Osorio wrote: "I hope they understand how much they have betrayed not just the interests of the nation but their own interests, because they are not willing to fight."
OHA and the Lingle administration view the settlement as a compromise that will get each side at least close to its desired result without risking the uncertainty of an impending Hawai'i Supreme Court decision.
The Lingle administration has stated repeatedly that it has no desire to sell any ceded lands but believes it must have the ability to dispose of the lands as it sees fit. Meanwhile, OHA gets a near-ironclad assurance that lands won't be sold until Native Hawaiian claims are settled.
Bennett said after the bill is signed, the parties agreeing to the settlement will petition the Hawai'i Supreme Court to dismiss the case, including Osorio's claim.
OHA administrator Clyde Namu'o pointed out the "without prejudice" provision in the agreement allows for OHA and all other parties to sue again. "It leaves it open for future lawsuits," he said.
Namu'o said it's likely OHA would seek to block the state if it tried to sell ceded lands in the future, either with a two-thirds majority of the Legislature or not.
Kekuni Blaisdell, convenor of the Kanaka Maoli Tribunal Komike, called Osorio "a heroic figure" for the Hawaiian independence movement for deciding to continue with the case.
"These are our national lands," Blaisdell said, lands that were seized illegally and subsequently subject to a series of illegal transfers. "It was a thief transferring the goods to someone else."
Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.
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