No. 07-1372 In The Supreme Court Of The United

No. 07-1372 IN THE Supreme Court of the United States STATE OF HAWAII, et al., Petitioners, v. OFFICE OF HAWAIIAN AFFAIRS, et al., Respondents. ON WRIT OF CERTIORARI TO THE SUPREME COURT OF HAWAII BACKGROUND: In 1994, The Office of Hawaiian Affairs and four individual plaintiffs – Pia Thomas Aluli, Jonathan Kamakawiwo‘ole Osorio, Charles Ka‘ai‘ai and Keoki Kamaka Ki‘ili – sued to prevent the State of Hawai‘i from selling “ceded lands.” At that time, the State was preparing to sell approximately fifteen hundred acres of land for two affordable housing projects for the general public. The lawsuit alleged that the State as trustee of the ceded lands should not sell them pending resolution of Native Hawaiian claims to these lands. In 2002, Circuit Court Judge Sabrina McKenna entered judgment in favor of the State and held that it was authorized to sell ceded lands. On January 31, 2008, the Hawai‘i Supreme Court in a unanimous opinion reversed the lower court decision, and held that the Apology Law and similar State legislation required the State to not sell ceded lands pending resolution of Native Hawaiians’ claims to those lands through a political reconciliation process. The Hawai‘i Supreme Court ordered that the case be remanded to the Circuit Court with instructions to issue an order granting the plaintiffs’ request for an injunction against the defendants from selling or otherwise transferring to third parties the specific parcels in question and any other ceded lands until the claims of the Native Hawaiians to the ceded lands have been resolved. The State of Hawai‘i appealed the Hawai‘i Supreme Court decision to the U.S. Supreme Court and on Oct. 1, 2008, the U.S. Supreme Court granted the state’s writ of certiorari petition. Oral arguments are scheduled for Feb. 25. WHAT ARE “CEDED LANDS”? The “ceded lands” are those lands that had been Crown Lands and Government Lands during the Kingdom of Hawai'i. The provisional government that overthrew the Kingdom in 1893 asserted ownership and control of these lands, transferred them to the oligarchic Republic of Hawai‘i in 1894, and the Republic “ceded” these lands to the United States at the annexation of Hawai‘i in 1898. These lands were never added to the public lands of the United States and have always been held in trust. In the 1959 Admission Act, the state accepted responsibility for administering the ceded lands for five trust purposes, including "the betterment of the conditions of native Hawaiians" as defined by the Hawaiian Homes Commission Act of 1920. The Admission Act required the lands to be

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managed and disposed of "in such manner as the constitution and laws" of the state of Hawai'i may provide. In 1978, the people of Hawai'i amended the state Constitution to state clearly that these lands were to be held as a public trust for two trust beneficiaries — Native Hawaiians and the general public. Congress has passed further legislation regarding these lands, including Public Law 103-150 in 1993 (the Apology Law) which stated in part that “[T]he 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;” and Congress’ support for “reconciliation efforts of the State of Hawaii … with Native Hawaiians.”

WHAT DOES THE HAWAI‘I SUPREME COURT CASE SAY? In examining relevant law — including the Admission Act, the state Constitution, and earlier Hawai'i cases — the Hawai‘i Supreme Court found that the state of Hawai'i has a fiduciary duty to Native Hawaiians in relation to the ceded lands. The court said that “the state, as trustee, must adhere to high fiduciary duties normally owed by a trustee to its beneficiaries.” These duties include, the court explained, “the obligation that the trustee deal impartially when there is more than one beneficiary.” The court concluded that although the Apology Law and similar state legislation do not require that ceded lands be turned over to the Native Hawaiian people, they do recognize that Native Hawaiians have unrelinquished claims to the lands. Thus, transfer of the ceded lands by the state to third parties would amount to a breach of trust by favoring the interests of one beneficiary — the general public — over the interests of the other beneficiary — Native Hawaiians. WHAT IS THE POSITION OF THE STATE OF HAWAI‘I’? The Lingle administration filed its brief in the U. S. Supreme Court which argues that Native Hawaiians have no legal claim to the ceded lands. The administration has also incorrectly asserted that the Hawai'i Supreme Court found that the state does not have good title to the ceded lands. In fact, the opinion expressly stayed away from that issue and explained that “the issue of Native Hawaiian title to the ceded lands will be addressed through the political process.” The Apology Law, similar state legislation, and the proposed Akaka Bill all recognize that the overthrow of the Kingdom of Hawai`i was illegal and that the Native Hawaiian people have unnresolved claims to the lands. WHY IS OHA’S POSITION CORRECT? The Hawai'i Supreme Court's decision is firmly based on the Hawai'i State Constitution, statutes, and case law. Our state's highest court correctly interpreted Hawai'i trust law to reach both a legally correct and morally just decision. WHY IS OHA CONCERNED ABOUT THIS APPEAL?

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The case now on appeal before the U.S. Supreme Court is of grave concern. This appeal has the potential to undermine all Native Hawaiian programs and assets as well as undermine the legal basis for Native Hawaiian federal recognition. A far-reaching decision by the U.S. Supreme Court could affect OHA’s ability to carry out its mission of bettering the conditions of Native Hawaiians. Selling or transferring the lands is not a good idea because reparations and reconciliation have not been made yet for the overthrow of the Hawaiian Kingdom. The United States Congress, the Hawai'i legislature and the Hawai'i Supreme Court acknowledged that Native Hawaiians have unrelinquished claims to the ceded lands. Allowing the sale of ceded lands before those claims are resolved would be detrimental because, once those lands are sold, they could no longer be used as part of a final settlement of Native Hawaiian claims. SOURCES: 1) “State court correct in protecting ceded lands,” Jon M. Van Dyke and Melody Kapilialoha McKenzie. The Honolulu Advertiser, Dec. 28, 2008. 2) Press Conference Remarks of OHA Chairperson Haunani Apoliona, January 12, 2008. 3) “OHA Responds To U.S. Supreme Court Case,” Press release, October. 1, 2008. 4) “The Background of the Native Hawaiian Ceded Lands Case,” Kupu‘äina Coalition, stopsellingcededlands.com.