U.S. Supremes rule against Native Hawaiians’ land claims
Gale Courey Toensing
WASHINGTON– The U.S. Supreme Court has ruled that Congress’ apology for overthrowing the Hawaiian monarchy in 1893 bears no moral, political or legal weight in stopping the State of Hawaii from selling 1.2 million acres of land seized during the illegal regime change before resolving land claims by Native Hawaiians.
The ruling was issued March 31, six weeks after the high court heard arguments in State of Hawaii v. Office of Hawaiian Affairs.
The state petitioned the case in the U.S. Supreme Court last year after the Hawaii Supreme Court issued an injunction prohibiting the state from selling or transferring “ceded lands” held in trust until Native Hawaiians’ claims to the land have been resolved.
The Hawaiian court based its decision on the Apology Resolution, passed by Congress in 1993 on the 100th anniversary of the destruction of the Hawaiian Nation. The apology acknowledged the illegality of the U.S. government’s actions in overthrowing Hawaii’s sovereign government, creating a “provisional government” and five years later passing the Newlands Resolution, which annexed Hawaii as a U.S. territory.
Although the high court’s ruling accepts the Newlands Resolution narrative that Hawaii ceded all public, government and crown lands to the U.S. in “absolute fee,” the congressional apology recognized that “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.”
The high court reversed the Hawaii Supreme Court’s decision and remanded it back “for further proceedings not inconsistent with this opinion.”
“The State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the state. Respondents (the Office of Hawaiian Affairs) defend that decision by
arguing that they have both state-law property rights in the land in question and ‘broader moral and political claims for compensation for the wrongs of the past.’ But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law,” Justice Samuel Alito wrote for the court.
Both the state of Hawaii and the OHA claimed the high court’s ruling as a victory.
“We consider the court’s decision to be a favorable one. While we would have preferred an outright dismissal of the petition, the result in this case is workable,” said Haunani Apoliona, OHA Board of Trustees chairperson.
The OHA is a state agency created in 1978 “with a mandate to better the conditions of both Native Hawaiians and the Hawaiian community in general,” according to its Web site.
The agency launched the case in 1994 – a year after the Apology Resolution – in an effort to stop the state from selling public lands to a developer. In 2002, a Hawaii state court ruled that Hawaii could sell the lands, but in January 2008, the Hawaii Supreme Court reversed that ruling, contending that the Apology Resolution prohibited the state from selling or transferring any land unless and until a political settlement was reached with Native Hawaiians.
“From the day the Hawai’i Supreme Court issued its unanimous decision prohibiting the sale and the transfer of ceded lands to third parties until the claims to those lands by the Native Hawaiian people were resolved, the Board of Trustees believed that the state Supreme Court ruled correctly,” Apoliona said. “Now the case is headed back to the Hawai’i Supreme Court where it belongs. This case should never have been taken outside of the state of Hawai’i.”
Hawaii Attorney General Mark Bennett, who argued the state’s case in front of the U.S. Supreme Court, said he was “very pleased with the nine to nothing ruling by the Supreme Court in our favor. The ruling addressed our two points on appeal. The first, that the apology resolution does not in any way affect the state’s legal rights, and, second, that the state has the same absolute deed title to the public lands that the United States had, and the Supreme court confirmed that very clearly in its opinion. The state owns these lands in fee for the benefit of all of the people of Hawaii.”
Native Hawaiians, who seek the restoration of Hawaii’s sovereignty and self determination as a nation state, refute that claim.
“If the Apology Resolution has no teeth in the court of the conqueror, then how is it that the Newlands Resolution that unilaterally annexed Hawaii does?” said J. Kehaulani Kauanui, associate professor of American Studies and Anthropology at Wesleyan University.
“This (ruling) is a legal fiction to cover up the fact that the U.S. government accepted the stolen lands from the Republic of Hawaii government that confiscated these lands after the overthrow of the Hawaiian Kingdom. The Republic of Hawaii could not have ceded these lands in “absolute fee” to the United States because they were stolen. The U.S. government accepted the stolen goods and cannot prove title because they were stolen without Hawaiian people’s consent and without compensation.”
The state of Hawaii and the OHA support the passage of the Akaka Bill, named after U.S. Sen. Daniel Akaka, which would grant federal recognition to Native Hawaiians and place the public lands in trust under the federal government.
The senator issued the following statement in response to the U.S. Supreme Court ruling.
“I will continue to monitor the case as it is taken back up by the state courts. I still believe the best way forward is through direct negotiations between the state and federal governments and a federally recognized Native Hawaiian government. For these issues to be resolved, Native Hawaiians need a seat at the table. Mainland indigenous people have this opportunity and Native Hawaiians deserve the same chance.”
But Hawaiian nationalists reject federal recognition as a resolution to their quest for sovereignty.
“The Akaka Bill is the final nail in the coffin; the U.S. government knows it does not have any legitimate title to these stolen lands. Hence, the only way the U.S. will ever be able to secure its claim is by constituting a Hawaiian governing entity to give up the claim to them,” Kauanui said.
Those affiliated with the Hawaiian nationalist movement must “continue to draw attention to the pathological hypocrisy of U.S. Empire and insist on the legal validity of the Hawaiian claim to independent nationhood.”