by Andrew Walden

The US Supreme Court agreed October 1 to hear the State of Hawai`i’s appeal, in State of Hawai`i et al. v. Office of Hawaiian Affairs.

The State is asking the High Court to overturn the Hawai`i State Supreme Court’s January, 2008 decision holding that the United States Congress in the 1993 “Apology Resolution” had forbidden the State from selling or exchanging any of the State’s approximately 1.2 million acres of so-called “Ceded Lands”, unless and until a political settlement was reached with Native Hawaiians. The State argued to the High Court that the United States Congress had done no such thing and that Congress has no power to try to control the sale of lands belonging to a sovereign state.

The “ceded lands” were the property of the government of the Hawaiian Kingdom. When the Kingdom was overthrown by the Hawaii Republic in 1893, these lands remained government-owned. The Republic transferred the lands to the US Government when Republic authorities agreed to annexation by the US in 1898. When Hawaii was admitted as a State, the Admission Act transferred these lands to the newly-created State government.

The State and OHA will file briefs over the next several months, an October 1 news release from the office of State Attorney General Mark Bennett stated, “the Court will likely hold oral argument on the case in Washington D.C. in January or February 2009. A decision will likely come from the Court by June 2009.”

Bennett said. “We believe the Hawaii Supreme Court was incorrect in its holding that the Congress, in the Apology Resolution, barred the State of Hawaii from selling or transferring Ceded Lands, as the Congress had expressly granted Hawai`i that right in the 1959 Hawai`i Admission Act….Hawai`i’s Ceded Lands are held by the State for the benefit of all of Hawaii’s citizens, and for a number of purposes, including for the betterment of the conditions of native Hawaiians. We believe that prudent management of those lands for the benefit of all of Hawaii’s citizens must include, on occasion, the right to sell or exchange land.”

The so-called Office of Hawaiian Affairs had sued in 1994 to block use of ceded lands to construct affordable housing on Maui. In a transparently political move the Hawai`i State Supreme Court suddenly ruled on the 14-year-old case earlier this year as the legislature debated a proposed settlement regarding ceded lands revenues owed to OHA.

The promotion of home and farm ownership is one of the five purposes of ceded lands enumerated in the 1959 Admission Act. The other four are: Support of public education, Betterment of the conditions of native Hawaiians as defined in the Hawaiian Homes Commission Act of 1920, Public improvements, and Provision of lands for public use.

The Hawaiian Homes Commission Act of 1920, authored by Hawaii Territorial Representative Prince Jonah Kuhio Kalanianaole created the Department of Hawaiian Homelands for the benefit of native Hawaiians, defined as those people who have 50% or greater Hawaiian ancestry. Since OHA purports to represent all persons with even “1 drop” Hawaiian blood, it is not immediately clear why OHA has any claim to revenues from the ceded lands.

The broader question is the meaning of “benefit.” OHA certainly does not “benefit” individual Hawaiians when it acts to block construction of drug treatment facilities on Kaua`i. Such moves serve only to “benefit” the trustee class by expanding its ability to control land use decisions and thereby extract multi-million dollar “settlement” payments.

Hawai`i County councilman Angel Pilago, now one of the two candidates for Hawai`i County mayor was the plaintiff in the 1995 Hawai`i Supreme court “PASH” decision which established OHA Trustee’s ability to extract such “settlements” from any land owner in the State. Some people still foolishly believe that PASH is an anti-development decision. Wrong. PASH is a system by which developers can legally buy off anti-development activists. It is a pro-development decision, but one which serves to promote only those developers which make the appropriate “settlements.” It places power in the hands of criminals such as convicted drug dealer Ralph Palikapu Dedman. Dedman, backed by Pilago and ousted Hawai`i County Councilman Bob Jacobson, served as point men in efforts to exert power of the land use decisions of others—most recently at Punalu`u, Ka`u. Fortunately this led to the defeat of Jacobson on September 20 as it will for Pilago on November 4.

Those who collect the ‘settlement” payoffs enrich themselves while strangling the economy and promoting only the largest developments with the greatest ability to “settle” with OHA’s activists. Smaller businesses have to meet ever-greater regulatory barriers and are unable to make the requisite payoffs. The resulting lack of economic opportunity causes Hawai`i residents—including Hawaiians—to leave Hawai`i. Ten thousand left in 2007. Approximately 50% of Hawaiians now live outside of Hawai`i. This compares to only about 20% of Cubans who have left Castro’s socialist disaster.

As was clearly revealed in the angry testimony of Hawaiians against the OHA settlement, during the last Legislative session, OHA Trustees do not have the support of the Hawaiians they claim to represent.

Fortunately, Hawai`i is an American state and the US Supreme Court will soon step in to rectify problems that most of Hawai`i’s craven political elite are afraid to even acknowledge. After years of venality, political correctness, and cowardice, there is nobody else left to solve our problems.