The Senate & House
Twenty-Fourth Legislature
Regular Session of 2008
State of Hawai'i
March 14, 2008
To Senate Committees:
Agriculture and Hawaiian Affairs, Chair Jill N. Tokuda
Water and Land, Chair Clayton Hee
Judiciary and Labor, Chair Brian T. Taniguchi
Ways and Means, Chair Rosalyn Baker
To House Committees:
Water, Land, Ocean, Resources, and Hawaiian Affairs, Chair Ken Ito
Judiciary, Chair Tommy Waters
Finance, Chair Marcus Oshiro
Subject: Testimony in Opposition to SB 2733 SD2 &
HB266 HD2 (Public Trust Lands Settlement)
Chairmen, Chairwomen and members of the committees:
I am Clarence Ku Ching, former Trustee of the Office of Hawaiian Affairs
('86 - '90) and I'm here to present testimony in opposition to SB 2733 SD 2
and HB266 HD2 (Public Trust Lands Settlement).
The recent pronouncement of the Hawai'i Supreme Court in its opinion in the Leali'i (so-called "Ceded Lands") case, and its legal significance, in light of Hawaiian history of the 1890s, must be considered in your deliberations of the subject bills.
The Court said:
"For the reasons discussed infra , we vacate the January 31, 2003 judgment
and remand this case to the circuit court with instructions to issue an
order granting the plaintiffs'*[OHA]* request for an* injunction *against
>the defendants *[HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAI'I
(HCDCH),]* *from selling or otherwise transferring to third parties* (1) the parcel of ceded land on Maui and (2) any ceded lands from the public lands
trust *until the claims of the native Hawaiians to the ceded lands has been
resolved.*"
The Court also cited the so-called *"Apology Resolution"* (United States
Public Law 103-150, 103d Congress Joint Resolution 19, dated November23,
1993) in making its decision.
The relevant parts of the so-called "Apology Resolution" (that the Court
probably considered) state (with emphasis added):
Whereas, the report of a Presidentially established investigation
conducted by former Congressman James Blount into the events surrounding the insurrection and overthrow of January 17, 1893, concluded that the United States diplomatic and military representatives had abused their authority and were responsible for the change in government;
* * *
Whereas, in a message to Congress on December 18, 1893, President Grover
Cleveland reported fully and on the illegal acts of the conspirators, described such acts as an "act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress", and acknowledged that by such acts the government of a peaceful and friendly people was overthrown;
Whereas, President Cleveland further concluded that a "substantial
wrong has thus been done which a due regard for our national character
as well as the rights of the injured people requires we should endeavor to repair" and called for the restoration of the Hawaiian monarchy;
Whereas, the *Provisional Government* protested President Cleveland's call
for the restoration of the monarchy and continued to hold state power and
pursue annexation to the United States;
* * *
Whereas, although the Provisional Government was able to obscure the role
of the United States in the illegal overthrow of the Hawaiian monarchy, it
was unable to rally the support from two-thirds of the Senate needed to
ratify a treaty of annexation;
Whereas, on July 4, 1894, *the Provisional Government declared itself to
be the Republic of Hawaii*;
Whereas, on January 24, 1895, while imprisoned in Iolani Palace, Queen
Liliuokalani was forced by representatives of the Republic of Hawaii to
officially abdicate her throne;
* * *
Whereas, on July 7, 1898, as a consequence of the Spanish-American War,
President McKinley signed the Newlands Joint Resolution that provided for
the annexation of Hawaii;
Whereas, through the Newlands Resolution, the self-declared Republic of
Hawaii ceded sovereignty over the Hawaiian Islands to the United States;
Whereas, the Republic of Hawaii also ceded 1,800,000 acres of crown,
government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government;
Whereas, the Congress, through the Newlands Resolution, ratified the
cession, annexed Hawaii as part of the United States, and vested title to
the lands in Hawaii in the United States;
Whereas, the Newlands Resolution also specified that treaties existing
between Hawaii and foreign nations were to immediately cease and be replaced by United States treaties with such nations;
Whereas, the Newlands Resolution effected the transaction between the
Republic of Hawaii and the United States Government;
Whereas, *the indigenous Hawaiian people never directly relinquished their
claims to their inherent sovereignty as a people or over their national
lands to the United States, either through their monarchy or through a
plebiscite or referendum;
In brief, the Apology Resolution *stated that the overthrow of the Hawaiian
Kingdom was illegal, that there was a "taking" (theft) of the Kingdom's
lands without consent or compensation and that the indigenous Hawaiian
people never relinquished their claims over their national lands.
The Apology Resolution also traces the stolen lands from the Provisional
Government to the Republic of Hawaii to the United States of America and
finally to the so-called "State of Hawaii."
To put it simply, *the national lands of the Hawaiian Kingdom were
stolen*and the so-called "indigenous Hawaiian people" continue to
claim those lands.
No matter how many hands the "stolen lands" go through - its character never changes - and it remains stolen lands.
The State holds these "stolen" lands as a trustee, as the decision of the
Leali'i case infers, and *cannot sell or transfer those lands to third
parties until the claims of the native Hawaiians to the ceded lands has been resolved.
However, let me point out that there are many different entities of
"Hawaiian" and even the Supreme Court of the State of Hawaii may not be
correct "Hawaiian" in labeling the correct Hawaiian entity in law.
The Office of Hawaiian Affairs (OHA) deals with *n*ative Hawaiians (those
Hawaiians defined as having more than 50% of the blood) and *N*ative
Hawaiians (all Hawaiians including less than 50% Hawaiians). In other
words, OHA is concerned with "blooded" or "racial" Hawaiians.
However, the *Apology Resolution* has it partially correct when it says that the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, *without the consent of or
compensation *to the Native Hawaiian people of Hawaii or their sovereign
government.
First of all - *How did the Republic of Hawaii get good title to the
"Ceded Lands" so it could "cede" them to the United States? Well, these
"taken" (stolen) lands, illegally "ceded" - continue to retain the character as "stolen" lands.
Secondly, Who has good title to the "ceded" (stolen) lands? Well, the
Apology Resolution states, and it is clear historically, that the lands were "ceded" (stolen) "without the consent of or compensation to the Native
Hawaiian people of Hawaii or *their sovereign government*."
My opinion is that Congress wasn't exactly correct when it mentioned that
"the Native Hawaiian people of Hawaii" are "owners" of the "ceded" (stolen)
lands.
The lands (attempted to be "ceded") belong to the Hawaiian Kingdom and to
its subjects. However, the subjects of the Hawaiian Kingdom weren't
exclusively "the Native Hawaiian people of Hawaii." The *Hawaiian Kingdom*, including its real subjects -the Hawaiian Nationals - that includes non-blooded or non-racial Hawaiians - are the real holders of title - and this is where the real issue lies.
This is the correct category of "indigenous Hawaiian people" - the Hawaiian Nationals - whose claims need to be remedied - *not the blooded or racial
Hawaiians of OHA.
Therefore, while OHA may represent the blooded or racial Hawaiians - and
definitely not the Hawaiian Nationals - it (OHA) is relegated to being a
"third party" to the situation.
It is my opinion that if these bills are passed out of your respective
committees, that you will be in violation of the finding and judgment of the Hawaii Supreme Court - specifically when it states that the State is
enjoined from* "selling or otherwise transferring (any "ceded" lands) to
third parties."
An alternate way to characterize what you are attempting to do is to
convert "trust" lands to "fee simple" (unless OHA continues to hold these
lands in trust for "the State") in another entity (agency) of the State.
Therefore, I must oppose these potential actions and recommend that these
bills NOT be passed out.
If, after being properly noticed, you knowingly - as I've outlined the relevant facts for you in this testimony - insist on passing these bills out - you may be liable, not only in your ministerial capacities, but also in your personal capacities, of violating the judgment and edict of the Hawai'i Supreme Court.
You will also be joining the initial and subsequent wrongdoers - the
Provisional Government, the Republic of Hawaii and the United States in
complicitly "taking" and "converting" the stolen lands of the Hawaiian
Kingdom - referred to in this testimony as the so-called "ceded" lands - in
direct opposition to a Judgment of the Hawai'i State Supreme Court.
Comments
Twenty-Fourth Legislature
Regular Session of 2008
State of Hawai'i
March 14, 2008
To Senate Committees:
Agriculture and Hawaiian Affairs, Chair Jill N. Tokuda
Water and Land, Chair Clayton Hee
Judiciary and Labor, Chair Brian T. Taniguchi
Ways and Means, Chair Rosalyn Baker
To House Committees:
Water, Land, Ocean, Resources, and Hawaiian Affairs, Chair Ken Ito
Judiciary, Chair Tommy Waters
Finance, Chair Marcus Oshiro
Subject: Testimony in Opposition to SB 2733 SD2 &
HB266 HD2 (Public Trust Lands Settlement)
Chairmen, Chairwomen and members of the committees:
I am Clarence Ku Ching, former Trustee of the Office of Hawaiian Affairs
('86 - '90) and I'm here to present testimony in opposition to SB 2733 SD 2
and HB266 HD2 (Public Trust Lands Settlement).
The recent pronouncement of the Hawai'i Supreme Court in its opinion in the Leali'i (so-called "Ceded Lands") case, and its legal significance, in light of Hawaiian history of the 1890s, must be considered in your deliberations of the subject bills.
The Court said:
"For the reasons discussed infra , we vacate the January 31, 2003 judgment
and remand this case to the circuit court with instructions to issue an
order granting the plaintiffs'*[OHA]* request for an* injunction *against
>the defendants *[HOUSING AND COMMUNITY DEVELOPMENT CORPORATION OF HAWAI'I
(HCDCH),]* *from selling or otherwise transferring to third parties* (1) the parcel of ceded land on Maui and (2) any ceded lands from the public lands
trust *until the claims of the native Hawaiians to the ceded lands has been
resolved.*"
The Court also cited the so-called *"Apology Resolution"* (United States
Public Law 103-150, 103d Congress Joint Resolution 19, dated November23,
1993) in making its decision.
The relevant parts of the so-called "Apology Resolution" (that the Court
probably considered) state (with emphasis added):
Whereas, the report of a Presidentially established investigation
conducted by former Congressman James Blount into the events surrounding the insurrection and overthrow of January 17, 1893, concluded that the United States diplomatic and military representatives had abused their authority and were responsible for the change in government;
* * *
Whereas, in a message to Congress on December 18, 1893, President Grover
Cleveland reported fully and on the illegal acts of the conspirators, described such acts as an "act of war, committed with the participation of a diplomatic representative of the United States and without authority of Congress", and acknowledged that by such acts the government of a peaceful and friendly people was overthrown;
Whereas, President Cleveland further concluded that a "substantial
wrong has thus been done which a due regard for our national character
as well as the rights of the injured people requires we should endeavor to repair" and called for the restoration of the Hawaiian monarchy;
Whereas, the *Provisional Government* protested President Cleveland's call
for the restoration of the monarchy and continued to hold state power and
pursue annexation to the United States;
* * *
Whereas, although the Provisional Government was able to obscure the role
of the United States in the illegal overthrow of the Hawaiian monarchy, it
was unable to rally the support from two-thirds of the Senate needed to
ratify a treaty of annexation;
Whereas, on July 4, 1894, *the Provisional Government declared itself to
be the Republic of Hawaii*;
Whereas, on January 24, 1895, while imprisoned in Iolani Palace, Queen
Liliuokalani was forced by representatives of the Republic of Hawaii to
officially abdicate her throne;
* * *
Whereas, on July 7, 1898, as a consequence of the Spanish-American War,
President McKinley signed the Newlands Joint Resolution that provided for
the annexation of Hawaii;
Whereas, through the Newlands Resolution, the self-declared Republic of
Hawaii ceded sovereignty over the Hawaiian Islands to the United States;
Whereas, the Republic of Hawaii also ceded 1,800,000 acres of crown,
government and public lands of the Kingdom of Hawaii, without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government;
Whereas, the Congress, through the Newlands Resolution, ratified the
cession, annexed Hawaii as part of the United States, and vested title to
the lands in Hawaii in the United States;
Whereas, the Newlands Resolution also specified that treaties existing
between Hawaii and foreign nations were to immediately cease and be replaced by United States treaties with such nations;
Whereas, the Newlands Resolution effected the transaction between the
Republic of Hawaii and the United States Government;
Whereas, *the indigenous Hawaiian people never directly relinquished their
claims to their inherent sovereignty as a people or over their national
lands to the United States, either through their monarchy or through a
plebiscite or referendum;
In brief, the Apology Resolution *stated that the overthrow of the Hawaiian
Kingdom was illegal, that there was a "taking" (theft) of the Kingdom's
lands without consent or compensation and that the indigenous Hawaiian
people never relinquished their claims over their national lands.
The Apology Resolution also traces the stolen lands from the Provisional
Government to the Republic of Hawaii to the United States of America and
finally to the so-called "State of Hawaii."
To put it simply, *the national lands of the Hawaiian Kingdom were
stolen*and the so-called "indigenous Hawaiian people" continue to
claim those lands.
No matter how many hands the "stolen lands" go through - its character never changes - and it remains stolen lands.
The State holds these "stolen" lands as a trustee, as the decision of the
Leali'i case infers, and *cannot sell or transfer those lands to third
parties until the claims of the native Hawaiians to the ceded lands has been resolved.
However, let me point out that there are many different entities of
"Hawaiian" and even the Supreme Court of the State of Hawaii may not be
correct "Hawaiian" in labeling the correct Hawaiian entity in law.
The Office of Hawaiian Affairs (OHA) deals with *n*ative Hawaiians (those
Hawaiians defined as having more than 50% of the blood) and *N*ative
Hawaiians (all Hawaiians including less than 50% Hawaiians). In other
words, OHA is concerned with "blooded" or "racial" Hawaiians.
However, the *Apology Resolution* has it partially correct when it says that the Republic of Hawaii also ceded 1,800,000 acres of crown, government and public lands of the Kingdom of Hawaii, *without the consent of or
compensation *to the Native Hawaiian people of Hawaii or their sovereign
government.
First of all - *How did the Republic of Hawaii get good title to the
"Ceded Lands" so it could "cede" them to the United States? Well, these
"taken" (stolen) lands, illegally "ceded" - continue to retain the character as "stolen" lands.
Secondly, Who has good title to the "ceded" (stolen) lands? Well, the
Apology Resolution states, and it is clear historically, that the lands were "ceded" (stolen) "without the consent of or compensation to the Native
Hawaiian people of Hawaii or *their sovereign government*."
My opinion is that Congress wasn't exactly correct when it mentioned that
"the Native Hawaiian people of Hawaii" are "owners" of the "ceded" (stolen)
lands.
The lands (attempted to be "ceded") belong to the Hawaiian Kingdom and to
its subjects. However, the subjects of the Hawaiian Kingdom weren't
exclusively "the Native Hawaiian people of Hawaii." The *Hawaiian Kingdom*, including its real subjects -the Hawaiian Nationals - that includes non-blooded or non-racial Hawaiians - are the real holders of title - and this is where the real issue lies.
This is the correct category of "indigenous Hawaiian people" - the Hawaiian Nationals - whose claims need to be remedied - *not the blooded or racial
Hawaiians of OHA.
Therefore, while OHA may represent the blooded or racial Hawaiians - and
definitely not the Hawaiian Nationals - it (OHA) is relegated to being a
"third party" to the situation.
It is my opinion that if these bills are passed out of your respective
committees, that you will be in violation of the finding and judgment of the Hawaii Supreme Court - specifically when it states that the State is
enjoined from* "selling or otherwise transferring (any "ceded" lands) to
third parties."
An alternate way to characterize what you are attempting to do is to
convert "trust" lands to "fee simple" (unless OHA continues to hold these
lands in trust for "the State") in another entity (agency) of the State.
Therefore, I must oppose these potential actions and recommend that these
bills NOT be passed out.
If, after being properly noticed, you knowingly - as I've outlined the relevant facts for you in this testimony - insist on passing these bills out - you may be liable, not only in your ministerial capacities, but also in your personal capacities, of violating the judgment and edict of the Hawai'i Supreme Court.
You will also be joining the initial and subsequent wrongdoers - the
Provisional Government, the Republic of Hawaii and the United States in
complicitly "taking" and "converting" the stolen lands of the Hawaiian
Kingdom - referred to in this testimony as the so-called "ceded" lands - in
direct opposition to a Judgment of the Hawai'i State Supreme Court.
I thank you.
Clarence Ku Ching