Posted on: Friday, December 6, 2002

Judge allows ceded lands sales

By Vicki Viotti
Advertiser Staff Writer

The Native Hawaiian rights movement suffered another blow yesterday when a circuit judge ruled that the state can sell ceded lands for a public purpose without it constituting a breach of trust.

However, an attorney representing opponents to the sale said the state faces legal hurdles before any of the land can change hands, including an appeal before the Hawai'i Supreme Court.

The decision by Circuit Judge Sabrina McKenna concerns ceded land on Maui and the Big Island where the state had planned to develop affordable housing projects. The case — which is unrelated to the ongoing dispute over revenue owed to the Office of Hawaiian Affairs from the state's use of ceded lands — concerns land on Maui and the Big Island where the state had planned to develop affordable housing projects.

Ceded lands are nearly 2 million acres of former crown and government lands transferred to the state under the 1959 Admission Act, to be held in trust for public benefits, including improving the lot of Native Hawaiians.

Judge McKenna's opinion acknowledges that thousands of acres have been sold since statehood, and that since the late 1970s with the creation of the Office of Hawaiian Affairs, some revenue from these lands has been earmarked for OHA.

State land officials later established a moratorium on sales to avoid diminishing the revenue stream to OHA, according to the opinion, but former Gov. Ben Cayetano lifted the moratorium for the housing projects in this case.

OHA joined by a group of Native Hawaiians represented by attorney William Meheula, sued in 1994 to block the projects — in Leiali'i near Lahaina and at the La'i'opua project in North Kona — in which the ceded lands would be sold to the Housing and Community Development Corp. of Hawai'i for development.

In the decision yesterday, McKenna denied their request for a court order that would bar further sale of ceded lands until the issues of ownership and valuation are resolved.

Sherry Broder, the attorney representing OHA in the case, did not return calls seeking comment.

Haunani Apoliona, chairwoman of the OHA board of trustees, said the judge "erred" in her decision but took hope in the judge's call to lawmakers "to enact legislation that gives effect to the right of Native Hawaiians to benefit from the ceded land trust."

Meheula said the plaintiffs plan to appeal McKenna's decision to the state's high court, but added he couldn't predict when that might happen. He maintained that the Congressional Apology Resolution of 1993 acknowledged the illegality of the overthrow of the Hawaiian monarchy and throws the state's ownership of former crown lands in question.

"We're disappointed with the decision, and we disagree with the decision," he said.

"The basic case is that the Apology Resolution has admitted that ceded lands were taken illegally. That means that the U.S. does not have good title to the land, and they shouldn't be allowed to sell it."

State attorneys yesterday were consulting with the newly inaugurateted Gov. Linda Lingle on a response to the decision.

In court hearings a year ago, Broder had argued that international law also protects the property rights of indigenous peoples. At that time, John Komeiji, a private attorney hired by the state to defend Housing and Community Development Corp., countered that the state's laws and constitution take precedence over those international laws, which are in draft form before the United Nations and never endorsed by the United States.

Komeiji declined yesterday to comment on the decision.

Among her findings, McKenna disputed the claim that there is a legal cloud over ceded land title because of the overthrow, calling it "a non-justiciable political question" that can't be decided by the court.

McKenna also dismissed the plaintiff's argument that Native Hawaiian land rights are comparable to Native American claims and thus should be given the same treatment in this case.

"Cases dealing with recognition of Native American claims or fiduciary duties with respect to land or assets are based on federal statutes or treaties that allow such claims," she wrote.

Meheula said appealing the decision may have to wait until the second part of the case — a trial to set a fair market value for the land — takes place. That trial is necessary because under law, OHA is entitled to 20 percent of the proceeds from a sale of ceded lands, Meheula said.

Attorneys for title insurance companies have indicated through court filings that no title insurance would be issued for the land transactions until the state wins this case on appeal, Meheula said, so nobody expects immediate land transfers to take place.

Reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.