by Andrew Walden
A June 1, 2026, lawsuit by political gadfly Eric Ryan seeks to open Hawaiian Homelands to non-Hawaiians.
He will lose because the Office of Hawaiian Affairs lost the ‘Ceded Lands Case’ in 2009.
Confused?
Good. That means you are paying attention.
Keep reading.
In 2009, the US Supreme Court’s ‘Ceded Lands’ ruling in Hawaii v Office of Hawaiian Affairs held that the 1993 Hawaii ‘Apology Resolution’ had no legal effect.
Based in part on the Apology Resolution, OHA, in 1994, brought suit to block construction of affordable housing on parcels of ceded land in Lahaina (4,813 units) and Kailua Kona (4,263 units) proposed by the Housing and Community Development Corporation of Hawaiʻi (HCDCH).
Fifteen years later, the US Supreme Court ruled the State has the right to proceed with the projects. They had of course long been abandoned -- leading directly to the high cost of housing which is today driving Native Hawaiians to leave Hawaii.
That is one irony.
By rejecting OHA’s ceded lands grab, SCOTUS in 2009 saves DHHL from Eric Ryan in 2026.
That is another irony.
The High Court’s 2009 decision was based in part on a reading of law which clearly elevates the Admission Acts of the various states above other laws.
The Admission Act raises the stakes. A court considering DHHL is not evaluating an ordinary state housing program. It is evaluating a congressional-statehood settlement that has been embedded in Hawaii's constitutional structure since admission to the Union.
For Hawaii this means special protection for Hawaiian Homelands.
Inclusion of the 1921 Hawaiian Homes Commission Act in the 1959 Hawaii Admission Act, transfers the Hawaiian Homelands program from Federal to State jurisdiction.
The elements of the Supreme Court ruling which give special weight to a state’s Admission Act are woven throughout the decision but are stated most clearly on page 11. Writing for the unanimous court, Justice Alito cites Idaho v. United States, a 2001 case revolving around ownership of Idaho’s ‘submerged land’ riverbeds, which the Court ruled had been granted to Idaho in its Admission Act:
“[T]he consequences of admission are instantaneous, and it ignores the uniquely sovereign character of that event…to suggest that subsequent events somehow can diminish what has already been bestowed. …"
Alito continues:
“…the Apology Resolution would raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that 'Congress cannot, after statehood, reserve or convey … lands that have already been bestowed on a State.'…And that proposition applies a fortiori where virtually all of the State’s public lands—not just its submerged ones—are at stake. In light of those concerns, we must not read the Apology Resolution’s nonsubstantive “whereas” clauses to create a retroactive “cloud” on the title that Congress granted to the State of Hawaii in 1959.
The High Court’s holding any suggestion “that subsequent events somehow can diminish what has already been bestowed” would ignore “the uniquely sovereign character of” a state’s admission--places a very high burden on any who would claim that DHHL, the ceded lands revenues stream, or any other aspect of the Hawaii Admission Act can be challenged on the basis of racial discrimination.
Interestingly this parallels judicial history in regard to Indian tribes. No court has ever overturned Congressional recognition of a tribe—although the courts have asserted the right to review such recognitions. Likewise the High Court is not absolutely forswearing review of a State’s admission act but is placing a very high bar against any after-the-fact rewrite.
Ryan’s named defendants include State officials such as DHHL Director Kali Watson and Federal Officials such as Interior Secretary Douglas Burgum.
Perhaps Ryan hopes to split the defendant Trump Administration from the State of Hawaii in this case. The Trump Administration has recently delivered mixed messages on Hawaiian recognition. Shaky tyros at work, or something deeper?
Ryan’s chisel-in-the-crack is politics. The Court deals in law. Even if the State has to go it alone.
The very first sentence of Ryan’s lawsuit shows that Indian Law is its blind spot: “In the United States, government does not distribute public land by bloodline.”
Has Ryan really not heard of tribal recognition?
The US government “distributes public land by bloodline” by first relabeling “bloodline” as tribal membership and then distributing land to the tribe.
In Morton v. Mancari, 1974, the Supreme Court held that preferences for tribal members are political not racial classifications and therefore legal.
Why is this relevant?
A lot has happened since 2009.
Specifically, Hawaiians moved to Indian Country; thankfully, without forming a tribal government.
Acts of Congress do not evaporate because of a change in administrations.
The Biden-era US Department of Interior, in a January 16, 2025 legal memorandum, explains:
“Congress enacted … many statutes that … explicitly extend to the Native Hawaiians many of the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities . . . . All of these enactments reflect the special legal and political status of the Native Hawaiian Community.”
One of the laws cited by DOI is the Native Hawaiian Education Act, 20 U.S.C. § 7512(12)(8) which states:
"Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to whom the United States has established a trust relationship."
Therefore, as with any housing program operated exclusively for tribe members by Indian tribes or Alaskan native corporations, DHHL does not practice “affirmative action.” It serves those of Native Hawaiian ancestry because they are a specific political class, not a racial group.
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