Wednesday, April 1, 2009

Musings: It Ain't Over Yet

A few rectangles of light on the eastern horizon offered evidence of a sunrise, though the celestial body itself was nowhere in sight when Koko and I went walking this morning. As is typical of the little microclimates in my neighborhood, the street got progressively wetter, with small streams running alongside, as we walked further mauka, where we ran into Farmer Jerry, who told me about a 130-year-old whale that had been killed during a hunt in Alaska, prompting a conversation about maintaining traditional cultural practices in a modern world.

Then we met up with my neighbor Andy, who picked up a mailbox that had been knocked off its post in the night, likely by the same people who broke the rear window out of a car parked on the shoulder, and we got to talking about the harassment encountered by transsexuals and whether animals know if they’re going to be euthanized.

My mind thus stimulated, and disturbed, Koko and I walked the final stretch alone, and in silence, save for the metallic call of the meadowlark and the background chorus of crowing roosters.

State Attorney General Mark Bennett is crowing absolute victory in yesterday’s ruling by the U.S. Supreme Court, taking the definitive position that:

"As a result of this decision, there cannot be a new ruling barring the state from transferring ceded lands.”

In fact, what the decision actually says is:

When a state supreme court incorrectly bases a decision on federal law, the court’s decision improperly prevents the citizens of the State from addressing the issue in question through the processes provided by the State’s constitution. Here, the State Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the State. Respondents defend that decision by arguing that they have both state-law property rights in the land in question and “broader moral and political claims for compensation for the wrongs of the past.” But we have no authority to decide questions of Hawaiian law or to provide redress for past wrongs except as provided for by federal law. The judgment of the Supreme Court of Hawaii is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

And that’s why Sherry Broder and Bill Meheula, who argued on behalf of OHA and four Hawaiian individuals, respectively, are also claiming victory, saying the decision correctly finds that it’s up to the state court to interpret state laws.

Only thing is, now those attorneys can’t rely on the Apology Bill to support their claim that the state can’t sell or transfer some 1.2 million acres of land that was seized, not ceded, in the illegal overthrow of the Hawaiian monarchy.

It’s no surprise that the high court dissed the Apology Resolution. While the U.S. is willing to admit it acted illegally and improperly, actually rectifying that wrong is another story. As UH Hawaiiian Studies professor Lilikala Kame'eleihiwa aptly observed:

Why are we not surprised? If they had ruled otherwise every native nation whose lands have been taken by America would file suit for a return of their lands.

And think what that would do to the American empire. Shudder.

Still, it’s a bit of a stretch for Gov. Lingle and Bennett to claim that the decision unequivocally resolves the issue of who owns the so-called “ceded lands.” As the Star-Bulletin reports today:

"I think it settles an issue that's been up in the air for too many decades," Lingle said. "It's, I think, a definitive commentary on the fact that the state of Hawaii did receive these lands with an unclouded title and that it's best for the state of Hawaii because everybody now recognizes that these lands are owned by the state."

Can the guv really be that out of touch, to believe that “everybody now recognizes that these lands are owned by the state?” (And what about the 400,000 acres that the feds snagged?) Or is she still suffering from the same delusions and denial that prompted her to claim that her Administration had done nothing wrong regarding the Superferry — even after the state Supreme Court twice found that it had?

Meanwhile, the Lege still has its chance to weigh in on the issue, with the Senate today taking testimony on SB 1677, which allows lawmakers to reject such land sales to non-state entities.

"If, as a Legislature, we believe that there should be a new shift in policy or make it clear what our position is on ceded lands, then that's something we will be addressing," said House Majority Leader Blake Oshiro (D, Aiea-Halawa).

The Lege has supported OHA's position. But after seeing the way lawmakers chickened out on the civil unions bill, I wouldn’t expect much leadership or moral fortitude out of this group.

I think Kane Pa of the Reinstated Hawaiian Nation had it right when he called in to KKCR yesterday and said: “This discussion about ceded land is just to confuse people so they support the Akaka Bill.”

In any event, the issue is far from settled, and not even close to being over.

22 comments:

Anonymous said...

the decision is a pretty easy read and understand, perhaps a link to it so people can take a full look? and note the decision was pretty narrow in scope, and unanimous

Katy Rose said...

I think it's important that we make the case that selling the seized lands to the highest bidder is not in our best interest as a society - even for non-Kanaka Maoli.

Joan said...

There is a link to the decision in the sixth paragraph that reads "In fact, what the decision actually says is:"

Anonymous said...

"selling the seized lands to the highest bidder"

Actually it was going to be affordable low income housing.

Katy Rose said...

That's the rap - affordable housing. We're supposed to see that as indisputable proof that selling the lands is in everyone's best interest.

I'm not buying it. It's window dressing.

Anonymous said...

"I'm not buying it. It's window dressing."

That's up to you, but that's really what it was going to be used for. Affordable housing.

Anonymous said...

-..."the issue is far from settled, and not even close to being over."....well said joan. mahalo

Anonymous said...

"Actually it was going to be affordable low income housing."

April 1, 2009 10:37 AM

And? So what? Affordable housing for all the GI families transplanting over here and other transplants because no matter how they spin that laughable terminology: affordable housing, it still does not include the aboriginal inherent owners of the land...the kanakas.
Through obstructionist american policies, they have been strategically sliced out of the pie.

Bubba will get first dibs on a house. Period.

Anonymous said...

The whole affair reeks of mediocre players on the U.S. side:
Bennett (law equivalent of 1st year student)
Lingle (grabby climber with no background or degrees)
U.S. Supreme court justices (appointed by Bush with enough attention span to fit on a thumbnail)

I agree with Joan. Itʻs not over and OHAʻs attorneys were handed some material Iʻm sure they can work with. Or shred some mountain size holes in.

One thing they are unquestionably wrong about: there was never a treaty to cede lands. The land in Hawaii was stolen and still is.
Without that treaty it is all moot.

Anonymous said...

the idea that affordable housing programs don't benefit kanakas is ignorant. and stupid.

line of flight said...

I thought Lilikala's comments were quite disappointing. Name calling (and it wasn't even very clever) seems to petty. Bennett and Lingle and the mainstream media have totally blown the ruling out of proportion. SCotUS said: "You can't use federal law to cloud title to state land." But they didn't address the issue of the state constitution doing that since 1978 -- since its not a federal issue.

I do think the point that a treaty was not ratified between the US and the Republic of Hawai'i has some weight. The problem, however, is that such an argument necessarily implies that the Republic of Hawai'i was a legitimate entity. The U.S. has declared dominion over other territories through domestic law. And, Congress does have a right to admit new states. The problem is that the question of who had title to crown and government lands begins before all of these questions appear. How did the Republic acquire title to the crown and government lands?

The state Supreme Court's intuition on the issue of these lands is right, and now they have another opportunity to make it the law.

Joan said...

line of flight wrote: I thought Lilikala's comments were quite disappointing. Name calling (and it wasn't even very clever) seems to petty.

What does moo niho awa'awa mean, anyway?

Anonymous said...

"the idea that affordable housing programs don't benefit kanakas is ignorant. and stupid."

April 1, 2009 12:42 PM

1st, ignorant and stupid pretty much are the same thing.

2nd, kanakas serve as token recipients with the rest of the recipients being Abercrombieʻs military beneficiaries.

3rd, and this is the most important so pay attention...can you do that? There is no excuse for a single kanaka not having a home in their own lands; the fact that they make up the largest percentage of homeless/houseless in Hawaii is a repugnant and criminal failure on the part of the state to itʻs priority beneficiaries.

No. 3 should make my case in and of itself.

line of flight said...

lizard with an unpleasant bite

Anonymous said...

1st, ignorant and stupid are not the same thing. (thinking they are is ignorant, but not necessarily stupid.)

2nd, kanakas do not serve as token recipients with the rest of the recipients being Abercrombieʻs military beneficiaries. Everyone below a certain income qualifies and benefits. Thinking otherwise is ignorant, probably stupid.

3rd, and this is the most important so pay attention...can you do that? Nobody should be homeless in our society, kanaka or not. Were you paying attention? Do you get that? Programs like affordable housing are meant to help solve that problem. In case you didn't notice, social problems can be hard to solve.

Anonymous said...

"1st, ignorant and stupid pretty much are the same thing."

No. Ignorant simply means lack of factual knowledge. We are all ignorant in many areas. Stupid means the inability to learn, thus staying relatively ignorant regardless of effort.

In other words, ignorance can be fixed, but stupid is forever.

"There is no excuse for a single kanaka not having a home in their own lands."

There are a multitude of reasons, just as there are a multitude of reasons people don't own real property on the mainland...no money...taxed out of it...had to sell to pay debt...etc.

Anonymous said...

I'll bet - without any researched knowledge - that plenty of "old hawaiians" didn't own land but were basically serfs on alii-owned property.

Anonymous said...

"I'll bet - without any researched knowledge - that plenty of "old hawaiians" didn't own land but were basically serfs on alii-owned property."

Not only that but if they walked up to an alii to say something about it they'd have their head cut off.

Anonymous said...

Ah, the good old days of the peaceful, loving Hawaiians...

Anonymous said...

Oh well Joan, time to sign off on this post. Looks like the white rot found your post again and wants to make a day of deciding the difference between ig and stupe.

Anonymous said...

"lizard with an unpleasant bite"

-- ha. i love it. that is awesome. very colorful

Anonymous said...

Mo`o..... not moo....:)