“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection.” -- US Chief Justice John Marshall, Marbury v. Madison (1803)

by Andrew Walden

All citizens should be alarmed that the Office of Hawaiian Affairs is attempting to use political pressure to force the State of Hawai`i to abandon its “ceded lands” appeal to the US Supreme Court. OHA apparently expects to lose out in any Supreme Court decision. In spite of the fact that 32 other states support Hawai`i’s appeal, OHA does not respect the right to have the case heard before the Supreme Court.

At issue is the Cayetano-era case “OHA vs. Housing and Community Development Corp. of Hawai`i.” The Hawai`i State Supreme Court intervened in last year’s legislative debate over OHA revenues by suddenly choosing to decide this 1994 case. Their January, 2008 decision blocks any sale or transfer of the State’s so-called “Ceded Lands” until a political settlement with an as-yet-non-existent Akaka Tribe is reached.

The 1959 Admission Act for Hawaii mandates: “The lands granted to the State of Hawaii … together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible, for the making of public improvements, and for the provision of lands for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States.”

The original lawsuit was filed under the Cayetano administration in defense of the Waihe`e Administration’s 1990 proposal to build two affordable housing projects – Leiali`i in Lahaina, Maui and Laiopua in North Kona on the Big Island. Clearly these projects fall under “the development of … home ownership on as widespread a basis as possible.” Laiopua also included Kealakehe HS, and both developments included utilities and public roads in line with the Admission Act requirements: “support of the public schools” and “making of public improvements.”

In order to boost Democrat Rep Neil Abercrombie’s chances against Republican Lt Gov. Duke Aiona in the 2010 gubernatorial race, OHA minions and their media servants have been reporting on the ceded lands appeal as if it were a Lingle administration policy which departs from the policy of previous administrations. This is a bald-faced lie rendered obvious by the fact that the case originates in the Cayetano administration’s defense of a decision made under the Waihe`e administration.

In 2007 10,000 Hawai`i residents—including thousands of native Hawaiians—left these islands due to lack of economic opportunity and the high cost of housing. This is a proportionally higher rate of exodus than communist Cuba. Yet OHA continues to grasp control over land use decisions as a means to finance itself. OHA’s actions drive housing costs up and strangle economic opportunity—directly driving the exodus.

Because of OHA’s action in the Leiali`i-Laiopua case, affordable housing in Kona and West Maui has not been built. The native Hawaiians OHA purports to represent suffer because of its actions. Yet the Hawai`i Supreme Court falsely equates a settlement with OHA to a settlement with native Hawaiians. They are in fact opposites.

OHA has--since its creation out of the 1978 State Constitutional Convention--been wrongly claiming revenue which the Admission Act says should go “for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act”. This means Hawaiians of 50% Hawaiian ancestry, not OHA’s “one drop” Hawaiians. Now the Hawai`i Supreme Court has given OHA rights above the other four purposes of ceded lands enumerated in the Admission Act.

Winning passage of the Akaka Bill is OHA’s primary activity. The Bill of Rights does not automatically apply under tribal jurisdiction. Just as OHA seeks to keep the US Constitution from coming to bear on this case, the constitutional rights of future “reservation Hawaiians” will be at risk under Akaka Tribal law. This should be of intense concern to those who value Constitutional rights--yet the ugly possibilities are barely discussed.

In 1995 the corrupt “Broken Trust” trustees of Kamehameha Schools/Bishop Estate commissioned ex-Governor John Waihe`e to investigate relocating KSBE’s legal domicile outside Hawai`i. His recommendation: Relocate to the Cheyenne River Sioux Indian Reservation. The advantage? Cheyenne River is the most “sovereign” of all the Indian reservations. It has its own tribal police force, judiciary, legislature and presidency. It has “government to government” relations with the US and is not subject to any state and many federal laws. Attorney General Margery Bronster explained: "They were into empire building instead of working for the education of Hawaiian children."

The first version of the Akaka Bill was introduced to Congress six months after the Bishop Estate Trustees were forced to resign. Why move to a mainland Indian Reservation, when OHA can build a “Hawaiian” Indian Reservation? The tribal government could easily become a shield for political corruption and organized crime in Hawai`i.

Defending her decision to appeal the ceded lands case to the Supreme Court, Governor Lingle argues that Hawaiian claims on ceded lands are moral rather than legal and must be settled in the legislative arena, not the courts. But the response by native Hawaiians to last year’s legislative debate regarding OHA’s ceded lands revenue settlement begs the question of whether giving money to OHA can ever be a means to settle any debt to Hawaiians.

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