Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 1, 1 January 2009 — The first solvo has heen fired [ARTICLE+ILLUSTRATION]

The first solvo has heen fired

The State's opening brief in the ceded lands case pending in the U.S. Supreme Court (State v. OHA) has perhaps set the stage for a crucial battle over the nature and legitimacy of the United States' hegemony over the Native Hawaiian people and the Hawaiian Islands. The battle will be joined when the State and the individual plaintiffs file their answering briefs, followed by the State's reply brief. The essential charge of the opening brief is that the Hawai'i Supreme Court erred in holding that the Apology Resolution (AR) imposes a duty on the state administration

and the Legislature to achieve a settlement with Native Hawaiians regarding ownership of Hawai'i's ceded lands; therefore, the judieial injunction against transfer of state lands until such settlement is reached is invalid. The state argues that the very language of the AR indicates that Congress had no intention of settling any Native Hawaiian claims to ownership of the fonner "crown lands." The state claims that the United States acquired clear, complete title to the crown lands when they were transferred to it by annexation of the Hawaiian Islands through the Newlands Resolution of 1898. The brief then claims that the same absolute title was transferred to the State of Hawai'i through the Statehood Admission Act. Therefore, the state asserts that it has complete authority to retain, develop or dispose of those lands as the sovereign government of the state, as long as its actions comport with the five declarations of the Admission Act

regarding the use of those lands. It is difficult to argue against the state's assertions if you confine yourself only to the language of the two resolutions. But Native Hawaiian scholars and historians assert that the Newlands Resolution is invalid as an instrument of annexation. Those historians contend that under the United States Constitution territories ean only be annexed by treaty, and there was no treaty of annexation. The attempt to approve a treaty between the Provisional Government of Hawai'i and the United States failed of approval when first introduced in Congress and the Newlands Resolution was an artifieial device concocted to obviate any need to ratify a treaty. Additionally, those scholars argue that historically, and as a matter of International Law, the sovereignty of the Native Hawaiian peoples was never "extinguished" or surrendered. Our counsel, and counsel for the private plaintiffs lon Osorio, Charles Ka'ai'ai and others will file answering briefs and the issues will be joined. But the real danger here lies in briefs filed by "friends of the court" in support of

the state. Arch-conservative organizations such as the Pacific Legal Foundation, the Cato Institute, and the Center for Equal Opportunity have already been heard from, and there will be more to follow. Their bare bones argument is that, notwithstanding any of the historical facts regarding the overthrow and the "annexation," the Equal Protection Clause of the U.S. Constitution forecloses any programs or benefits designed exclusively for Native Hawaiians. The danger in the arguments posed by the friends is that they ean give the notoriously conservative Supreme Court an excuse to examine those issues without the benefit of a trial court record on legality as raised by Native Hawaiian scholars. In conclusion, we need to examine Governor Lingle's declaration that Native Hawaiians have only a "moral" elaim or right to the ceded lands. Even if she is correct, there is still a pressing need to address that elaim and arrive at a solution that resolves it based on the historical facts whieh, though disputed, I believe militate in favor of Native Hawaiians. E3

LEO 'ELELE ■ TRUSTEE MESSAGES

Walter M. Heen TrustEE, O'ahu