State appeals "ceded" lands case

The state attorney general's office has a news release and a petition for writ of certiori (both PDF) " that the State has asked the United States Supreme Court to review and overturn a Hawai'i Supreme Court decision which held that the State cannot sell or transfer ceded lands."

Star-Bulletin reports:
Hawaii has a "sovereign right" to sell and transfer lands previously owned by Hawaii's kingdom, the state told the U.S. Supreme Court yesterday in an effort to lift a legal ban on the property deals until claims by native islanders are resolved.

In papers filed in Washington, D.C., state Attorney General Mark Bennett urged the nation's highest court to overturn a Hawaii Supreme Court decision that led to an injunction freezing any transaction of former royal land pending compensation to native Hawaiians.

Bennett contends Hawaii gained the right to manage more than 1.2 million acres of ceded lands, or about 29 percent of the islands' total land area, when it became a state through the Admission Act of 1959. He said the state court's unanimous ruling on Jan. 31 misinterpreted the Apology Resolution, which Congress passed and President Clinton signed into law in 1993 to acknowledge the illegal overthrow of Hawaii's monarchy.

Labeling the apology "symbolic," Bennett disputed the court's 5-0 decision that the resolution serves as a bar on the sale, exchange or transfer of ceded lands by the state.

OHA, which originally brought the case, is "disappointed" by the state's appeal, and "OHA attorney Jon Van Dyke called the ruling 'well-researched' and said he believes the U.S. Supreme Court is unlikely to take up the case..."

Advertiser reports:
The state has appealed a major Hawai'i Supreme Court decision that blocks the state from selling or transferring former Hawaiian monarchy lands.

State Attorney General Mark Bennett yesterday filed paperwork in Washington, D.C., asking the U.S. Supreme Court to reverse the unanimous state court decision, issued Jan. 31.

That decision held that the state cannot transfer ownership of 1.4 million acres of former monarchy lands, now called ceded lands, pending resolution of claims by Native Hawaiians to those lands or revenues they produce.

The Hawai'i opinion, written by Chief Justice Ronald Moon, was based in large part on language in a Congressional Apology Resolution passed in 1993 to mark the 100th anniversary of the overthrow of the Hawaiian kingdom.

Moon wrote that the Apology Resolution and related state legislation impose upon the state a "fiduciary duty to preserve the corpus of the public land trust, specifically the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved."

Bennett, however, said the Moon opinion "is based on a wholly incorrect reading of the legal effect of the Apology Resolution" and unfairly blocks the state from "prudently managing" the ceded lands.

The decision "strips the state of its basic sovereign right to control and manage the lands it owns," Bennett said in a news release.

The Hawai'i Supreme Court opinion reversed a lower court ruling from Circuit Judge Sabrina McKenna in a suit filed against the state by the Office of Hawaiian Affairs and four individual plaintiffs of Native Hawaiian ancestry.

Here's the court's opinion placing an injunction on the sale or transfer of so-called ceded lands, which were never actually ceded.

Posted: Wed - April 30, 2008 at 08:39 AM    
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Published On: Apr 30, 2008 08:40 AM
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