This was posted by Keanu Sai on the Hawaiian Society for Law and Politics listserve today:
Here’s my mana`o on the so-called ceded lands case and the SCOTUS decision. 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 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.” So before the court could remove the cloud it had to get around the fact that there was no treaty of cession, even from the so-called republic of Hawai`i. To do this, the court stated, “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, but rather a unilateral claim to land. 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, which by its own statement, is a deed from the grantee to the grantee, when title could only be conveyed from a grantor. The reason why OHA did not challenge the State’s ownership of the so-called ceded lands and practically agreed with Bennett about the State’s claim to fee ownership in the oral hearing before the SCOTUS, is that it would throw a monkey wrench in the 20% revenues of ceded lands to OHA under the State of Hawai`i constitution, as well as 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.
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)!!!! And this is right up the alley for HSLP members to either appropriately respond to the these questions or point out where the answers can be retrieved. 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.”
Keanu Sai, Ph.D
P.O. Box 2194
Honolulu, HI 96805-2194
Website http://www2.hawaii.edu/~anu/
