Top court takes on ceded lands
At issue is whether governor can sell some of 1.2 million acres
Lingle resolute on ceded land fight
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By Gordon Y.K. Pang
Advertiser Staff Writer
In two days, the U.S. Supreme Court will hear a case to determine whether the state can sell any of the 1.2 million acres once owned by the Hawaiian monarchy.
The land at issue is nearly all the property owned by the state government, an estimated 29 percent of all the land area in Hawai'i.
Both the Lingle administration and the state Office of Hawaiian Affairs, the two opposing sides, say the ramifications of losing the case could be enormous.
The Lingle administration wants the court to affirm the executive branch's authority over the land. Attorney General Mark Bennett said the Hawai'i Su-preme Court's January 2008 decision cast a legal cloud over state ownership to the property, making the case a sovereign rights issue for the state. The attorneys for 29 other states and the U.S. Solicitor General's Office have weighed in on Bennett's side.
But OHA and its supporters say because Native Hawaiians have unresolved claims to those lands, the Hawai'i court was proper in barring the administration from selling any portions of them until those claims are addressed in a legislative setting. What worries OHA and other Native Hawaiian advocates even more is the possibility that the case could lead justices to consider whether Hawaiians-only programs and funding should exist at all.
Supporters of such programs and funding say they are constitutional, arguing that there is a special political relationship between the U.S. and Native Hawaiians, but are nonetheless concerned about the high court debating the difference between that political relationship and a race-based policy.
1.2 million acres
At the heart of the case are 1.2 million acres of what were the crown and government lands owned by the Hawaiian monarchy at the time of the 1893 overthrow. The use of the word "ceded" itself is debated and refers to the fact that the short-lived Republic of Hawai'i "ceded" the lands to the United States as part of the 1898 annexation.
In all, 1.8 million acres were ceded — 400,000 was kept by the U.S. government while 200,000 is now part of the state Department of Hawaiian Home Lands inventory.
The 1959 Admission Act conveyed the 1.2 million acres to the new state in trust to be used for five purposes — one of which is "the betterment of the conditions of native Hawaiians."
The current lawsuit was filed in 1994 by OHA and four Native Hawaiian individuals seeking to stop the sale of ceded lands to developers for two state-sponsored affordable housing projects begun by former Gov. John Waihee. Creating housing opportunities for Hawai'i residents is also among the five purposes listed by the Admission Act.
The key document cited in the lawsuit by OHA and the four individuals was the Apology Resolution adopted by Congress and President Clinton in 1993. The resolution acknowledged and apologized for the U.S. role in the overthrow and expressed support for "reconciliation between the United States and the Native Hawaiian people."
The key issue before the U.S. Supreme Court this week is whether the Apology Resolution, along with subsequent state legislation, can bar the state from selling ceded lands until that reconciliation occurs.
Former Gov. Ben Cayetano, who directly preceded Linda Lingle, says Attorney General Bennett is doing the right thing. Waihee, whom Cayetano replaced as governor, said Bennett should not proceed with the case.
The two men, both lawyers, are uniquely qualified to discuss the case. It was Waihee who initiated the housing projects in question. Cayetano's administration was tasked with defending that he had the right to sell the lands.
'I make No apology'
Waihee points out that one of the five purposes spelled out in the Admission Act was the promotion of home ownership, and that he still believes the Leiali'i project in West Maui was a worthwhile project. "I make no apology for it," he said.
Waihee said what bothers him is that the Lingle administration has chosen to take the fight outside the state when the Hawai'i Supreme Court had already ruled.
"The question about whether the state has the right to sell ceded lands is one issue," Waihee said. "The second is whether or not we should be appealing the Hawai'i Supreme Court decision to the United States Supreme Court."
Hawai'i's ceded lands are a matter that should be dealt with in Hawai'i, he said.
The Lingle administration is only one branch of state government — the Legislature and the judiciary being the others, Waihee said.
"Even with the (state Supreme Court) decision, the state could still sell ceded lands. What the decision was was that the governor or executive branch couldn't," Waihee said. "What is happening here is the executive branch is taking an issue to the federal court to override the state."
The fear he, OHA and other Native Hawaiian interests have is that because Bennett will argue that Native Hawaiians have no legal claim to the land, the justices could decide to take up the larger issue of whether OHA, as well as other Hawaiians-only programs and funds, are valid, Waihee said.
"What you could end up with, in a worst-case scenario, is no Hawaiian entitlements at all," Waihee said. "Do you really want to ask this court, the Bush Supreme Court, a question that could result in the stripping of 100 years of precedence in the state of Hawai'i, and what are the policy consequences of doing that?"
There is no compelling reason for the appeal to the U.S. Supreme Court, Waihee said, since the administration can still transfer lands interagency and even lease lands until Native Hawaiian claims are resolved.
In fact, the Leiali'i project was transferred to the state Department of Hawaiian Home Lands, and 104 single-family affordable housing units were dedicated in 2007.
Meanwhile, the Lingle administration has maintained a self-imposed moratorium on the sale of ceded lands pending the lawsuit and has stated it has no plans to sell any even if it does win the lawsuit.
"I cannot see what they are appealing it for unless it is to divest Native Hawaiians of their claims," Waihee said.
"I think from a broader perspective, (the Lingle administration) is playing with fire, and the whole house could burn."
Bennett, in response to the concerns, said it is "highly unlikely" that the court will look into the larger issue of whether Native Hawaiian programs are a violation of the 14th Amendment regarding equal protection.
"Equal protection was never raised by any of the parties," Bennett said. What's more, he added, the justices have shied away from the issue in the past.
"We believe that while there may be some questions about it, we think it is very unlikely that the opinion of the court will take this question up."
state sovereignty
For Cayetano, it's important that the Lingle administration defend the fundamental right to decide what's best for its land base, adding that he would have appealed to the U.S. Supreme Court as well if he were still governor.
"The issue here goes to the state's sovereignty," Cayetano said. "The state has to maintain its sovereign powers; that's a very compelling interest."
Unlike Waihee, Cayetano says that the U.S. Supreme Court should be the final arbiter in the dispute "because that's the process. When you have the state try to exercise a power and somebody sues and the state court upholds the other side, the state has a duty to go forward to protect the power it has — its sovereign rights."
Cayetano said he supports the bill moving through the Legislature that would require two-thirds approval of both houses of the Legislature before a sale of ceded lands can be made.
As for the concern raised that the larger issue of Hawaiian entitlements could be in danger, Cayetano said that he believes the U.S. Supreme Court's 2000 decision in the Rice v. Cayetano case actually provides validation for OHA and its programs.
The court ruled there that allowing only Native Hawaiians to vote in OHA elections was a violation of the 15th Amendment, which prohibits race-based elections.
Because the decision required that OHA elections be opened to all Hawai'i voters, regardless of their race, it firmed up OHA's case to exist constitutionally by allowing everyone to have a say in its policies via the voting booth, he said.
"Rice, in fact, ironically, has made OHA stronger in terms of the constitution," Cayetano said.
Echoing Bennett's comments, Cayetano said the Rice decision deliberately did not address the concerns raised in the lawsuit regarding Hawaiians-only programs and the 14th Amendment that requires equal rights.
"I frankly don't see the court taking that leap," Cayetano said. "It's not even an issue in this particular amendment. And if the court didn't raise the issue of the 14th Amendment question in Rice ... it's not going to raise the 14th Amendment in this case."
He added: "I'm not Lingle's greatest cheerleader, but I think what they're doing is the right thing. I don't see this as dismantling Hawaiian programs. The guys who argue that have extended that argument almost to absurdity, if you ask me."
Cayetano said if the Lingle administration wins its appeal, "I think the only thing that will happen is that the state maintains its power to alienate or transfer land. That's the only issue I see. How can it dismantle Hawaiian programs? I just don't see it."
Despite such assurances, however, the case has managed to unify nearly the entire spectrum of Native Hawaiian interests against the appeal, from the usually reserved Royal Order of Kamehameha I to Bumpy Kanahele's Nation of Hawai'i. The Kupu'aina Coalition, made up largely of University of Hawai'i law and Hawaiian studies students, has even formed.
Native Hawaiian leaders are bothered that the possibility exists and want Lingle to stop Bennett's appeal.
Gatherings are planned for Wednesday — the day the U.S. Supreme Court will hear oral arguments in the case — not just in Hawai'i but across Mainland cities to protest the appeal and to bring attention to the case.
"This state appeal has the potential to undermine all Native Hawaiian programs and assets as well as undermine the legal basis for Native Hawaiian federal recognition," OHA Chairwoman Haunani Apoliona said Friday on the grounds of 'Iolani Palace. "A far-reaching decision by the U.S. Supreme Court could affect OHA's ability to carry out its mission of bettering the conditions of Native Hawaiians."
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Some local newspaper readership comments:
kaiwikuamookeku wrote:
Neither my Ohana nor I "Ceded" any of my ancestor Ke Ali'i Paiea's crown lands...in fact, 300+ Traditionalist Haw'ns DIED for our lands in Dec 1819 during the "Battle of Kuamo'o" at Keauhou, Kailua-Kona, HI, whereas no native Haw'ns fought & died for our "aina" after the 1893 "Overthrow" except Wilcox's royalist Haw'n patriots. "Ceded" lands = "Stolen" lands, & cowardly "white-eye," Hauole's are still thieves in the night...perhaps, our royal Haw'n Prez Barry Ohana can fix this with an "Executive Order" as ole Prez McKinley fixed the illegal ANNEXATION of the Kingdom of HI without U.S. Constitutional 2/3rd's vote Senate ratification of HI becoming a "territory" of the U.S. in 1900...hehehe.
02/23/2009 4:20:47 a.m.
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shakaboy wrote:
Hawaiians, don't expect anyone affiliated with the state or fed to decide in favor of returning all stolen (ceded) lands to you. the return of these lands would make Hawaiians the envy of all. even the general public wants a piece of the pie. thats fine. but if so, then Hawaii should also open its doors to anyone who wants to live here and give them a piece of the pie too. otherwise, Hawaiians should educate themselves (don't wait for state or fed) and support a leader for their cause instead of just "suck 'em up" or say "ainokea".
02/23/2009 3:01:19 a.m.
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Anakela wrote:
-The word "ceded" is debated alright "stolen" would be more appropriate. Same as the 1893 overthrow, should be correctly titled "Illegal 1893 overthrow." 116 years of colonization cannot alter the dark cloud over ownership, the fake "state" has no legitimate right to stolen goods.
02/23/2009 2:21:02 a.m.
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Comment: Former Governor John Waihee (Squid Juice), an attorney, somehow believes that US Supreme Court has no jurisdiction over the racist agendas of his fellow Drop Breed Hawaiians. Interesting argument for an attorney in the USA! I believe that the essence of the Squid Juice Administration can be extracted from this one line of reasoning ... street corner, my turf, mentality! And, it is precisely why documents, like the US Constitution, were created ... to protect the general public from the brutes!
DOE contracts to be probed
Favoritism, fraud alleged in audit of procurement process
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By Loren Moreno
Advertiser Education Writer
Superintendent Pat Hamamoto has reported possible criminal violations of the state Department of Education's procurement practices to the attorney general's office. The potentially fraudulent actions were found in a recent audit.
State Auditor Marion Higa said DOE contracts were awarded based on favoritism and documents used in the selection of contractors were falsified. In general, Higa said she found "a culture of disregard" for procurement rules and procedures within the DOE.
"If we had known it was going on for certain, we would have stopped it," Hamamoto said. "The only way you can get to it is to bring in a third party to do an audit."
Hamamoto requested the audit of the department's construction procurement practices, saying the DOE has been handling the work only since 2005. The department inherited its current procurement system from another state agency under the Reinventing Education Act of 2004.
Higa's audit covered the the fiscal year from July 1, 2006, to June 30, 2007. Higa said she found widespread circumventing of procurement laws and rules within the DOE and in particular within the Office of School Facilities and Support Services, which handles repair and maintenance of buildings.
"We encountered numerous instances of department personnel manipulating the professional services selection process and awarding contracts to predetermined consultants," Higa said.
In one case, an engineering firm with ties to the DOE was chosen for a $300,000 construction management contract. A high-ranking official in the firm was a former assistant superintendent, Higa said.
The process was led by a department head who hand-picked members for the selection committee, served as its chairman, sent the results and the documents to himself. He then approved the $300,000 contract to the firm.
In addition to alleged ethical or criminal violations, Higa said she found that the DOE was regularly spending large amounts to outsource work that could be handled within the department.
For instance, the department spent some $21 million on management contracts to oversee $160 million in construction work.
Hamamoto said she did not view those contracts to be wasteful, believing that the work could not have been handled by the current staff within the DOE.
"To manage these construction projects in-house, we would have to hire more people. We can't hire people in government," Hamamoto said.
Not only were those contracts wasteful, Higa said, but they were awarded with lack of competition and obvious conflicts of interest involved.
In one case, Higa found that a management consultant was assisting the department in the procurement process while also bidding for work. The consultant was later awarded a $2.4 million contract.
Hamamoto said the DOE inherited a procurement system from the Department of Accounting and General Services that was flawed. But she said most of the problems found in the audit don't stem from lack of procedures or policies.
"We had a lack of internal controls, a lack of enforcement of the policies and procedures," Hamamoto said.
"The enforcement of internal controls of checks and balance was not as strong as we would have liked it to be," she said.
Hamamoto said she requested the audit to examine the DOE's current procurement practices. Because the DOE had not conducted the awarding of construction projects before 2005, she said the department was seeking third-party recommendations to fix its current system.
Higa claims much of the problems stem from a mentality of "just get it done" regardless of procurement laws and procedures.
"Based on the numerous violations and unethical activities we observed during our audit, this mentality is apparently shared by many Office of School Facilities staff involved in procurement," Higa said.
Hamamoto noted that the DOE is under extreme pressure by the public to make sure schools are repaired and maintained quickly and efficiently.
"A lot of it came from just wanting to get the job done. Anything that became a roadblock ... they rather go around it. That's something that has to stop," Hamamoto said.
The DOE is currently engaged in creating "check points" within the process to ensure that contracts are awarded and handled appropriately, Hamamoto said. The DOE also intends to adopt Higa's recommendation to strengthen the procurement process and adopt internal checks and balances, she said.
Comment: Since the DOE cannot teach, administer, or display accountability is it any wonder that fraud extravaganza infest their procurement processes. Please note that the DOE is strongly supported by US Senator Akaka and US Congressman Abercrombie. With that character of leadership, waste, fraud and abuse flourishes.
I have not even addressed the $2+ Billion in state taxes sponged up annually by this lard barrel institution. I do not believe that it a large leap to conclude that the DOE in state of Hawaii equates to massive corruption. Furthermore, who is checking?
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