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Thursday, February 05, 2009
US Solicitor General backs State in Ceded lands Case
By Andrew Walden @ 3:29 PM :: 5192 Views

Not a single news outlet in Hawaii other than and has seen fit to report this news. 

Acting US Solicitor General Edwin S Kneedler, a Bush administration holdover, January 29 filed a motion asking to participate in the oral arguments February 25 before the US Supreme Court in support of the State of Hawaii position in the ceded lands case.  He has been granted 10 minutes of Hawaii Attorney General Mark Bennett’s 30 minutes of oral arguments to present the United States government’s position.

In requesting the opportunity to be heard before the Court, Kneedler pointed out several areas in which "the United States has a significant  interest":

"whether federal law required or permitted the Supreme Court of Hawaii to enjoin the State of Hawaii from transferring lands that the United States obtained in fee simple absolute upon the annexation of Hawaii in 1898...."

"...interpretation of the Acts of Congress (such as the Apology resolution) that may bear on the State's title to the trust lands."

"...the legal issues in this case could bear on the United States' title to its own lands (in Hawaii) as well."  (This refers to 330,000 acres of military and other federal properties located on the 1898 ceded lands which were not transferred to the State in the 1959 Admission Act.)

"...the proper implementation of Section 5(f) of the Admission Act...." 

Section 5(f) designates the five purposes for which the Ceded lands may be used.  It reads:

The lands ... 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 schools and other educational institutions supported, in whole or in part out of such public trust shall forever remain under the exclusive control of said State; and no part of the proceeds or income from the lands granted under this Act shall be used for the support of any sectarian or denominational school, college, or university.

Note the phrase:  "...the development of farm and home ownership on as widespread a basis as possible...."  It is of course absolutely impossible to do this without being able to sell ceded lands.  Moreover, the claim by the misnamed Office of Hawaiian Affairs to authority over ceded lands would hinder all five of these purposes.  the case before the US Supreme Court stems from OHA's 1995 decision to sue to block construction of affordable housing in Lahaina, Maui and Kailua-Kona, Hawai`i on ceded lands. 

Also note: "...the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920...."  This refers to those with 50% Hawaiian ancestry, not the 'one-drop' Hawaiians which OHA claims to represent.  There is in fact nothing in the Admission Act which gives OHA any claim on the ceded lands.  

The Obama administration has nominated Elena Kagan, an Obama Chicago crony who is now dean of Harvard Law School, to replace Kneedler.  She is awaiting confirmation, a process which could take months.  She has selected Prof. Neal Katyal of Georgetown as her deputy. 

Katyal successfully represented Osama bin-Laden's driver Salim Ahmed Hamdan before the US Supreme Court.  The case, Hamdan v Rumsfeld, decided in June, 2006, ruled the former system of military tribunals illegal, forcing Congress to enact a revised system of military tribunals.  This was a milestone in the progress towards granting US constitutional rights to foreign illegal enemy combatants whose battlefield operations are conducted in violation of the Geneva Convention.  When nominated, the al-Qaeda terrorist's former lawyer had to resign as counsel before the Supreme Court for the Office of Hawaiian Affairs in the ceded lands case.  Ironically the OHA position in the ceded lands case is a step towards the creation of the Akaka Tribe which will deny US constitutional rights to those Hawaiians who make the mistake of becoming tribal citizens.

RELATED:  Akaka Bill Reading list


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