In January 2008, our Hawai'i Supreme Court issued a unanimous decision, authored by Chief Justice Ronald Moon, holding that the state is prohibited from selling or transferring any of the 1.2 million acres of "ceded" lands until the unrelinquished claims of Native Hawaiians to those lands have been resolved through the political process.

Gov. Linda Lingle's administration has criticized this decision and has sought review from the United States Supreme Court, but its criticism and those of others have missed a crucial element of the decision — the state's trust duty to administer the ceded lands for the benefit of both Native Hawaiians and the general public.

The "ceded" lands are those lands that had been the Crown Lands and Government Lands during the Kingdom of Hawai'i and were later "ceded" by the Republic of Hawai'i to the United States as part of the 1898 annexation. These lands were never added to the public lands of the United States and have always been held in trust. In the 1959 Statehood Admission Act, the state accepted responsibility for administering the ceded lands for five trust purposes, including "the betterment of the conditions of Native Hawaiians." The Admission Act required the lands to be managed and disposed of "in such manner as the constitution and laws" of the state of Hawai'i may provide.

In 1978, the people of Hawai'i amended the state Constitution to state clearly that these lands were to be held as a public trust for two trust beneficiaries — Native Hawaiians and the general public.

Although much attention has been focused on the Hawai'i Supreme Court's interpretation of the 1993 Congressional Apology Resolution, it is really the court's reliance on Hawai'i trust law that led to its ultimate conclusion. In examining relevant law — including the Admission Act, the state Constitution, and earlier Hawai'i cases — our Supreme Court found that the state of Hawai'i has a fiduciary duty to Native Hawaiians in relation to the ceded lands. The court said that "the state, as trustee, must adhere to high fiduciary duties normally owed by a trustee to its beneficiaries." These duties include, the court explained, "the obligation that the trustee deal impartially when there is more than one beneficiary."

The Hawai'i Supreme Court found that the facts recounted in the Apology Resolution and similar state legislation put the state, as trustee of the ceded lands, on notice that Native Hawaiians have unresolved claims to the ceded lands. The court concluded that although the Apology Resolution and similar state legislation do not require that ceded lands be turned over to the Native Hawaiian people, they do recognize that Native Hawaiians have unrelinquished claims to the lands. Thus, transfer of the ceded lands by the state to third parties would amount to a breach of trust by favoring the interests of one beneficiary — the general public — over the interests of the other beneficiary — Native Hawaiians.

In this light, the Hawai'i Court's determination that "the Apology Resolution and related state legislation, give rise to the state's fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved," makes absolute sense.

In deciding whether an injunction was appropriate, the court stated: "Obviously, without an injunction, any ceded lands alienated from the public lands trust will be lost and will not be available for the future reconciliation efforts." Importantly, the court recognized that monetary compensation in lieu of the lands themselves would be inadequate given the inextricable link between Native Hawaiians and their land. The court thus called for a moratorium on the transfer of these lands "pending final resolution of Native Hawaiian claims through the political process." (Emphasis added.) Similar moratoria have been issued in Alaska while the claims of Alaska natives were being sorted out, in New Zealand while a process to resolve the Maori claims was being established, and in Arizona to protect lands claimed by the Pueblo Indians.

Recently, the Lingle administration filed its brief in the U. S. Supreme Court which argues that Native Hawaiians have no legal claim to the ceded lands. This position is inconsistent with the Apology Resolution, similar state legislation, and the proposed Akaka Bill, all of which recognize that the overthrow of the Kingdom of Hawai'i was illegal and that the Native Hawaiian people have unresolved claims to the lands. The administration has also incorrectly asserted that the Hawai'i Supreme Court found that the state does not have good title to the ceded lands. In fact, the opinion expressly stayed away from that issue and explained that "the issue of Native Hawaiian title to the ceded lands will be addressed through the political process."

Clearly, our Supreme Court looked at both the legal and equitable issues involved in this case and sought to strike a balance. Although it declined to rule on the ultimate claims of Native Hawaiians to the ceded lands, the court has protected the lands from dissipation until a political resolution can be achieved. As the court stated:

"In this case, Congress, the Hawai'i state Legislature, the parties, and the trial court all recognize (1) the cultural importance of the land to Native Hawaiians, (2) that the ceded lands were illegally taken from the Native Hawaiian monarchy, (3) that future reconciliation between the state and the Native Hawaiian people is contemplated, and (4) once any ceded lands are alienated from the public land trust, they will be gone forever."

The Hawai'i Supreme Court's decision is firmly based on Hawai'i's Constitution, statutes and case law, and our state's highest court correctly interpreted Hawai'i trust law to reach both a legally correct and morally just decision.


Jon M. Van Dyke teaches constitutional law and international law at the University of Hawai'i-Manoa's William S. Richardson School of Law and is the author of "Who Owns the Crown Lands of Hawai'i?" Melody Kapilialoha MacKenzie is an assistant professor at the William S. Richardson School of Law, where she teaches Native Hawaiian Law courses and is the author of the "Native Hawaiian Rights Handbook." In their private capacities, Van Dyke and MacKenzie are part of the team of lawyers representing the Office of Hawaiian Affairs in the State v. OHA case now pending before the United States Supreme Court. They wrote this commentary for The Advertiser.