Civil Rights Organizations File Brief in Lawsuit Over Lands Held in Trust for Native Hawaiians

EJS and the Japanese American Citizens League (JACL) today filed a legal brief (download PDF here) with the U.S. Supreme Court in a case that will determine whether the State of Hawai‘i can fulfill its constitutional responsibility as trustee of lands meant to serve Hawai‘i’s indigenous people.

The case, State of Hawaii v. Office of Hawaiian Affairs, revolves around attempts by the Hawai‘i state government to sell land that by the state constitution and federal law must be managed and used partly for the benefit of Native Hawaiians.

At the heart of the case is the State’s longstanding commitment to reconciliation with its Native peoples for historic injustice and continuing modern-day harms. Integral to that commitment is a process for the partial return of certain Hawaiian lands to a representative of the Native Hawaiian people.

The case is now before the U.S. Supreme Court because the Hawai‘i state Supreme Court ruled against the state government’s intended sale of the lands in question and the state government is appealing that decision.

The brief says that the U.S. Supreme Court should affirm the state supreme court’s decision because the dispute over the lands is a state matter and is rooted in the State’s reconciliation commitment to Native Hawaiians.

“The governor’s attempted sale of ceded lands undermines the will of the Hawai‘i citizenry and its policymakers,” said brief co-author Eric Yamamoto, a professor of law at the University of Hawai‘i and a board member of the Equal Justice Society. “And by reneging on a key aspect of the State’s reconciliation commitment, the attempted sale would breach the State’s trust obligation to hold those unique lands until the Hawaiian peoples’ unrelinquished claims are mutually resolved.”

“This is a case about reparatory justice. What’s at stake in this case is whether a state, through its people, will live up to its commitment to reconciliation under law to heal the continuing wounds of historic wrongs,” said brief co-author Susan Serrano, also a law professor at the University of Hawai‘i.

“The situation in this case is all too similar to much of American history where the government ignores the sovereign rights of an indigenous people, in this case, Native Hawaiians,” said Floyd Mori, national president of the JACL. “The JACL stands firmly behind the rights of inheritance that the Native Hawaiians rightfully deserve and are legally due. Japanese Americans are well aware of the great social cost that results when government ignores and then tramples over the law of the land in an action that creates a grave injustice in overlooking the rights of a specific minority. When a wrong is perpetrated, government needs to step back and do what is just.”

The lands in question, commonly referred to as “ceded lands,” are approximately 1.2 million acres of land once owned by the sovereign Kingdom of Hawai‘i and eventually ceded to the State of Hawai‘i as part of the 1959 Admissions Act. Revenues from the use of the Public Land Trust, as the body of land has come to be known officially, must be used for five purposes, one of which is the betterment of conditions of native Hawaiians through the programs of the Office of Hawaiian Affairs.

The “ceded lands” hold unique cultural, spiritual and political significance for the Native Hawaiian people – they are not exchangeable or replaceable. Those lands, which belonged to the last Hawaiian monarch and the sovereign Hawaiian nation, were taken by the United States upon annexation in 1898 and were transferred to the State upon statehood in 1959 in trust partly for the benefit of Hawai‘i’s indigenous people.

In 1994, the Office of Hawaiian Affairs and four individual plaintiffs sued to prevent the State from selling ceded lands; specifically in that case, 500 acres in Lāhaina, Maui and 1,000 acres in Kona, Hawai‘i.

The Hawai‘i Supreme Court’s January 2008 opinion, written by Chief Justice Ronald Moon, said in part, “We believe… that the Apology Resolution… and the related state legislation, give rise to the State’s fiduciary duty to preserve the corpus of the public land trust, specifically, the ceded lands, until such time as the unrelinquished claims of the native Hawaiians have been resolved.”

In April 2008, the State appealed the case to the U.S. Supreme Court, and last October, the court decided to hear the case.

Over the last thirty years, the three branches of Hawai‘i’s government and its voting citizenry collectively acknowledged the State’s significant role in perpetuating historic injustice for Native Hawaiians arising out of the illegal overthrow of the Hawaiian nation and taking of Hawaiian lands by forces including agents of the United States.

As a response to historic harms, State legislation expressly committed the State to reconciliation. The partial return of “ceded lands” to a representative of the Hawaiian people (such as the Office of Hawaiian Affairs) is a key part of that commitment

As recognized by the Hawai‘i Supreme Court and Congress, Hawaiians have both a unique attachment and “unrelinquished claims” to those former Hawaiian lands. But before resolving Hawaiian claims to those ceded lands, the State is attempting to sell them.

The EJS and JACL are arguing to the Supreme Court that the Hawai‘i governor’s unilateral attempt to sell ceded lands undercuts the heart of the State’s reconciliation commitment.