Dr. Sai: Legal Fiction in the SCOTUS Decision

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Date: Fri, 3 Apr 2009
From: "Keanu Sai, Ph.D."
Subject: Legal Fiction in the SCOTUS Decision

Aloha mai kakou:

On more than a few occasions, I have been asked to share my views of the recent decision by the U.S. Supreme Court regarding the Ceded Lands case. Especially because my Ph.D. is in Political Science and that I specialized in International Relations and Public Law, with particular emphasis on the legal status of the Hawaiian Islands since the eighteenth century to the present. My expertise is also in Hawaiian land tenure and title research, and if anyone is interested in understanding what actually took place with Perfect Title company and my so-called felony conviction of attempted theft of land you can download “Establishing an acting Regency…”, pages 1-25, which will also be published together with my dissertation in book form. I also have an article titled “The Myth of Ceded Lands and the State’s Claim to Perfect Title” on page 12 of the April 2009 issue of Ka Wai Ola newspaper. So here are my thoughts on the recent decision by the U.S. Supreme Court.

When the case was initiated in 1994, Bill Meheula and Hayden Aluli represented four native Hawaiians, Pia Aluli, Jon Osorio, Charles Ka`ai`ai and Keoki Ki`ili, to block the transfer of title from the State of Hawai`i to C. Brewer, a developer of the Leali`i (Lahaina, Maui) and Kealakehe (Kona, Hawai`i) housing projects (Kealakehe was later transferred to the Hawaiian Homes called La`iopua). The argument was that the 1993 Apology resolution placed a cloud on title, until reconciliation and settlement took place between native Hawaiians and the State over the overthrow. OHA was not initially a part of the suit. In fact, OHA was a party with the State and the developers, where a percentage of the revenues from the sales would go to OHA as part of the 20% revenues derived from ceded lands. Bill approached the Trustees in September of 1994 and stated that the apology resolution changed the circumstances and that if OHA did not sue the State with Bill's clients they would be sued for breach of trust. OHA joined in with the suit against the State and both filed suits in November. With OHA entering, the case became much more complicated. When the case was finally heard in 2002, it was because of OHA that the State won because of certain legal doctrines, one of which was the doctrine of estoppel. The circuit court stated that the suit cannot be maintained because OHA was estopped [precluded] from suing the State because of the agreement it previously had with the State and the reliance of the State on that agreement to develop and sell the property. The case was then appealed to the Hawai`i Supreme Court whereby the 1993 Apology resolution overrode the estoppel position of the circuit court decision. The Hawai`i Supreme Court reversed the trial court decision and issued an moratorium on the sale or transfer of Leali`i and other Ceded Lands. The case then went to the Supreme Court of the United States (SCOTUS), which did two things: (1) it removed the cloud on the State's title; and (2) affirmed that the Apology resolution was just an apology and nothing else.

In order to remove the State's cloud on title, the SCOTUS had to first create a “legal fiction,” which according to Black's Law Dictionary, is an “assumption of fact made by court as basis for deciding a legal question. A situation contrived by the law to permit a court to dispose of a matter.” Another definition of legal fiction is “An assumption that something occurred or someone or something exists which, in fact, is not the case, but that is made in the law to enable a court to equitably resolve a matter before it.” And according to Encyclopedia Britannica, it is “a rule assuming as true something that is clearly false. A fiction is often used to get around the provisions of constitutions and legal codes that legislators are hesitant to change or to encumber with specific limitations.” Legal fictions are used by Courts to promote fairness and equity in cases that come before them. It’s not supposed to be used to promote and maintain fraud. Therefore, in order for the Court to remove the cloud of title of the State of Hawai`i and get around the fact that there was no treaty of cession transferring Government and Crown lands (aka ceded lands), even from the so-called republic of Hawai`i, it had to create a legal fiction. In the synopsis of the SCOTUS decision on page 1, this is how the Court created the legal fiction.

“After the overthrow of the Hawaiian monarchy in 1893, Congress annexed the Territory of Hawaii pursuant to the Newlands Resolution, under which Hawaii ceded to the United States the "absolute fee" and ownership of all public, government, and crown lands. In 1959, the Admission Act made Hawaii a State, granting it "all the public lands...held by the United States," §5(b), and requiring these lands, "together with the proceeds from [their] sale...[to] be held by [the] State as a public trust," §5(f).”

The legal fiction lies in the fact that a Congressional joint resolution is not a conveyance from a grantor to a grantee as with a treaty of cession or a deed transferring property, but rather a unilateral claim to a foreign country’s territory. The Court even reinforced the unilateral aspect of the Newlands Resolution when it stated “under which Hawaii ceded to the United States the absolute fee.” In other words, the Court created a legal fiction that contrived a deed of cession, under and by virtue of the Newlands Resolution, which is the same as a grantee who did not receive any lands from a grantor, contrived a deed for himself. But why didn’t OHA challenge the State’s ownership and in the oral hearing before the SCOTUS practically agreed with Bennett about the State's claim to fee ownership? Well the reason is quite apparent, because if it did challenge the State's ownership of the so-called Ceded Lands, it would no doubt include challenging the 20% revenues of Ceded Lands that goes to OHA as prescribed by the 1978 State of Hawai`i Constitution. It would also throw a monkey wrench in the ongoing negotiation of settlement of past revenues owed to OHA since 1978, which was settled by agreement with the Lingle administration on January 19, 2008, but killed by the 2008 State Legislature. The settlement is still being negotiated. The legal fiction of a contrived deed of cession by a joint resolution, however, did not in any way remove the cloud of title over the State of Hawai`i, and from a land title abstractor’s position, if there was no treaty ceding Hawaiian territory to the United States, the State of Hawai`i cannot claim to have any more title to the Government and Crown lands in 1959 than the United States could in 1898 by a joint resolution. There is no such thing as Ceded lands except in “Legal Fiction.”

From the beginning of the case, it appears that the inclusion of OHA in the suit clearly complicated the initial complaint brought up by Pia Aluli, Jon Osorio, Charles Ka`ai`ai and Keoki Ki`ili, but the positive aspect of the case, however, is that it has opened a dialogue for people to begin to ask the right questions and become more eleu (aware)!!!! Like Thomas Pynchon stated in his book Gravity's Rainbow, “If they can get you asking the wrong questions, they don't have to worry about answers.” Of foremost importance, however, is how to remedy a complex problem that has severe legal, political and economic ramifications. This is precisely what has driven my work for the past fifteen years and the completion of my dissertation titled “American Occupation of the Hawaiian Kingdom: Beginning the Transition from Occupied to Restored State.” We are on the path to recovery.

Mahalo,

Keanu Sai, Ph.D.

Posted: Fri - April 3, 2009 at 01:45 PM

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