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The Honolulu Advertiser
Posted on: Friday, November 21, 2008

Ceded lands appeal should be withdrawn

By Evan Silberstein

We have come to another critical moment in the evolution of the relationship between our state, our nation and the Native Hawaiian people. As the global community is taking major strides in recognizing the rights of indigenous peoples, many among us have been infused with a new vision of possibility. With the pending changes in Washington, D.C., one change on the minds of many in Hawai'i is a renewed call for federal recognition of Native Hawaiians. Yet, at this time of great hope, a dark cloud hangs over the promise of reconciliation that recognition may offer.

A post-election discussion to address this and other issues was recently held at William S. Richardson School of Law (Live footage available at http://uhm-nativehawaiianlaw.blogspot.com.) The speakers, Senate President Colleen Hanabusa, a non-Native Hawaiian who represents Wai'anae, and Esther Kia'aina, a Native Hawaiian who has worked at a federal level on issues of import for Native Hawaiians, were asked what the recent federal, state and local elections could mean to Native Hawaiians. The prevailing mood of the discussion, although inspiring, was of great concern over the state's appeal of OHA v. HCDCH, now pending before the U.S. Supreme Court.

At issue in the case is the lands transferred at statehood and the state's fiduciary duty to not only use a portion of the proceeds from the control of these ceded lands to benefit Native Hawaiians, but whether the state can sell or transfer the lands. At the center of the legal controversy is the Hawai'i Supreme Court's reliance upon the Apology Resolution of 1993, passed by both houses of Congress and signed by President Clinton, and myriad other state laws that acknowledge the disenfranchisement of Native Hawaiians by the United States.

Although we are standing on the precipice of a major movement in the process of reconciliation, the Lingle administration has decided to risk that delicate relationship by filing this appeal. It is in the midst of such a dangerous injury occurring that I call upon all people of Hawai'i to ask the governor to withdraw the appeal that is before the high court before this important relationship is subjected to any further outside scrutiny, misunderstanding and potential pain.

Gov. Linda Lingle will need not look far for precedent. The recent decision to stay the evictions of the people of Kahana Valley Cultural Living Park is a perfect example of "a cooler heads prevailing" perspective that is needed. It takes courage to make the right decision in the face of adversity and it is to be applauded. In Kahana, the administration temporarily yielded to the Legislature to come up with a workable solution to the challenge and leaders of the Legislature have vowed to do that. It is this example of sound judgment, governmental proficiency and compassion that the administration should draw upon in allowing Congress to take on the issue of recognition of Native Hawaiians.

If she were to look beyond the shores of O'ahu or even the pending developments at the nation's capital, Lingle would find guidance and strength from a recently passed international resolution before the United Nations General Assembly, the Declaration on the Rights of Indigenous Peoples. One hundred forty-three nations agreed that:

  • Indigenous peoples have the right to the lands, territories and resources that they have traditionally owned, occupied or otherwise used or acquired.

  • Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or traditional occupation or use, as well as those that they have otherwise acquired.

  • States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

    Although we may not be bound by law to withdraw the appeal or even to follow the principles of this declaration, ponder for a moment what such clear and convincing guidance tells us. Or perhaps the more appropriate question to ask is: What can Gov. Lingle do?

    Evan Silberstein is a student at University of Hawai'i's William S. Richardson School of Law. He wrote this commentary for The Advertiser.