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.