Posted on: Wednesday, November 21, 2001

Use of ceded lands under dispute in trial

By David Waite
Advertiser Courts Writer

The state has a clearly established legal right to do what it wants with ceded lands, so long as it is for the good of the public, an attorney for a state housing agency told Circuit Judge Sabrina McKenna yesterday.

But attorneys for the Office of Hawaiian Affairs, and a group of Native Hawaiians who are challenging the state's right to sell or trade ceded lands that once belonged to the Hawaiian monarchy, said the state has never resolved Native Hawaiian ownership claims and therefore does not have legal title to the land.

Those were the central themes made during opening arguments in the case that was sparked by the state's intent to build two affordable housing projects on ceded land.

The Housing and Community Development Corp. of Hawai'i wants to build the housing in Leiali'i near Lahaina on Maui and at the Laiopua project in North Kona on the Big Island.

OHA and the individual Hawaiians are asking for a court order that would bar further sale of ceded lands until the issues of ownership and valuation are resolved.

The case revolves around approximately 1.4 million acres of Kingdom of Hawai'i lands that were turned over to the federal government when Hawai'i was annexed by the United States in 1898 and were placed back under state control when Hawai'i became a state in 1959.

OHA attorney Sherry Broder said an apology adopted by Congress on the 100th anniversary of the overthrow of the Hawaiian monarchy makes it clear that the lands were taken improperly from the kingdom, which never received payment.

When Hawai'i became a state in 1959, the "trust responsibility" of ensuring that ceded lands would be used for the betterment of Native Hawaiians was transferred from the federal government to the state, Broder said.

The lawsuit challenging the state's right to sell ceded lands was filed in November 1994 after Earl Anzai, who was then an attorney providing legal advice to OHA, told OHA board members that a legal challenge to the plans for the two low-cost housing projects would put a "cloud on the title" on the lots under the proposed homes, Broder said.

Anzai is now the state attorney general.

McKenna said she will rule later on a request by Broder to call Anzai as a witness in the case.

As predicted, work on the housing projects came to a halt after the lawsuit was filed.

Broder, who said scores of states across the country have resolved property claims filed by Indian tribes, argued that international law also protects the property rights of indigenous peoples.

But in his opening statement, John Komeji, a private attorney hired by the state to defend HCDC, said the international laws cited by Broder are in draft form before the United Nations and that the United States has never endorsed them.

He said Hawai'i laws and the state constitution take precedence over the international laws.

Komeji said the Hawai'i Supreme Court twice has considered the state's right to dispose of ceded lands, ruling both times that the state was fully empowered to dispose of the lands if the result was for the greater public good.

In addition, former state Attorney General Margery Bronster issued a ruling in 1995 that the state could sell or trade ceded lands if a public benefit were to be derived, Komeji said.

He said OHA officials had from 1989 to 1994 to raise issues about the state's right to sell the land for the two housing projects, but was concerned only with what its share of the proceeds from the sale would be.

He said OHA is attempting to "re-litigate" a matter that has already been decided by the Hawai'i Supreme Court.

The jury-waived trial is expected to last about three weeks.