Ka Wai Ola - Office of Hawaiian Affairs, Volume 26, Number 2, 1 February 2009 — Countering some arguments [ARTICLE+ILLUSTRATION]

Countering some arguments

Governor Lingle recently stated that Hawaiians have no legal elaim to Hawai'i's ceded lands but only a "moral elaim." She did not, however, explain how the moral elaim is somehow less than the legal elaim. In my estimation, she is asserting a distinction without a difference. Hawaiians' elaim of ownership is based on the fact that the United States violated international law when it conspired with the resident "bandits" to overthrow the sovereign govermnent of the Hawaiian

Islands and assume ownership of the crown and government lands. The illegality of that acquisition colors and undennines any elaim of ownership by the provisional government, the republic, the United States and the State of Hawai'i. In any system of modem jurisprudence one cannot elaim ownership of illegally obtained property against the elaim of the rightful owner. If a thief gives, or sells, you a stolen article you acquire no legal right to refuse to retum that article to the rightful owner. Simply put, you cannot get good legal title from a thief. The claims of Native Hawaiians, the lineal descendants of the owners, have a far better elaim of ownership than the United States or the State of Hawai'i. And with ownership comes the right of possession. But some argue that, notwithstanding that basic rule of law, the United States Supreme Court, in an early case involving the transfer of land has stated that when land is transferred to the nahonal govemment it will not look behind the title to see how

that land was acquired. They analogize that decision to our ceded lands situation and say, "Therefore, the State of Hawai'i's elaim of legal title is valid." Of course, the United States govermnent has never been willing to submit to the jurisdiction of any intemational court of justice, so its argument has never been tested against the international law rules relating to govemment overthrow. Moreover, there is nothing to prevent the State from saying that, "regardless of that rule, when it comes to the lands of this state, we will look beyond the naked title to see how that title was acquired." In fact, the govemor's stance now seems in opposition to her earlier position in whieh she seemed wilhng to acknowledge Hawaiians' legal elaim. One ean engage in a long debate about "moral" claims, of course. Do they have any effect in law, or should they inlluenee the outcome of a debate over a "legal right?" The govemor now seems to be saying that the moral elaim of Hawaiians ean have no effect on the issue of title to ceded lands.

Her statement disregards the fact that mueh of the law, civil and criminal, that governs our lives is based on moral considerations. Indeed, the entire body of the law of equity is essentially based on moral considerations. "He who seeks equity must do equity" is one of equity's fundamental precepts. And certainly the most respected precept is that, "One who comes into the court of equity must eome with elean hands." Courts have never hesitated to apply equity rules in a case where such is required to prevent an obvious injustice. Whether you consider Hawaiians' elaim to ceded lands as being legal or moral, the issue is the centerpiece to reconciliation. There ean be no quieting of Hawaiians' elaim for justice until the issue is determined, whether on a legal or a moral basis, and the land is divided between the state and a Native Hawaiian govemment, whether "reorganized" or "reinstated." It appears that either through the Akaka Bill or otherwise the issue is getting closer to resolution. S

Walter M. Heen Vice Chair, TrustEE, O'ahu