Friday, November 14, 2008

Ceded Lands case commentary

Today, the Honolulu Advertiser printed a commentary in its editorial section and titled it, "Resolve claims before selling ceded lands: It's a matter of simple justice and fairness for Native Hawaiians."  

Very little attention has been given to the ceded lands case since the Supreme Court of the United States chose to review the case (October 1) presented to the Court by the Lingle Administration earlier this year.  Now that the U.S. Presidential election is over, we may start to see more coverage on this issue.  If not within the next month, I'd be surprised if we don't begin to see more coverage by the new year.  Oral arguments at the Supreme Court on this ceded lands case are anticipated sometime in February or possibly March of 2009.  

It's a regular practice for newspapers to edit submissions to their editorial-opinion pages.  Editing is very necessary because submissions could have mis-spellings, bad grammar, or could be completely un-organized making the submission difficult to read easily. Unfortunately, the editing process can sometimes inadvertently alter the authors intended message or perhaps change the intended emphasis. The commentary described above appears to not have been edited much, but I thought it might be useful to post the original submission to the Honolulu Advertiser to better capture the author's intended message before it was edited.  To the reader, it may, or may not, make much of a difference, but I see that there are certain things the author emphasized in the original.  The original submission is below.

A Matter of Simple Justice?

Five years ago, (February 25, 2003) the Honolulu Advertiser reported that Governor Lingle described Native Hawaiian federal recognition as being, "just about fairness, justice and treating all indigenous people in our country the same." The next day, Governor Lingle was also quoted as saying that federal recognition is a "matter of simple justice" when she testified before Congress in support of the Akaka bill.

Whether the state should be selling ceded lands, lands belonging to the Hawaiian Kingdom and eventually transferred to the State of Hawai'i, before reaching a settlement with Native Hawaiians, is also a matter of simple justice and fairness.

I recently explained the ceded lands situation to someone who did not quite understand the conflict between the Lingle administration's view that the state can sell ceded lands and our highest state court's landmark decision placing a moratorium on such sales. I asked this person to imagine that the two of us were married, but the marriage did not work out. As a result, we apologized to each other for the difficulty and hurt inflicted and agreed to get a divorce. In the process of getting a divorce I began selling personal property that she brought into the marriage in addition to selling the personal property we owned together, both before we established a complete inventory of the property and before a determination was made as to who would get what. I kept the money from those sales but she felt she had a claim to those property items sold. After realizing the unfairness of my actions, she sought the opinion of an independent third party to help us resolve our dispute. Much to my disappointment, the independent third party declared that it was not right for me to dispose of those items and any remaining items until the two of us resolved the issues of who would get which items. Fairness required that I discontinue selling those items.

Although a failed marriage may not be the absolute best analogy to describe the situation we are in regarding the ceded lands, the person I spoke with immediately understood that this ceded lands issue is indeed a matter of simple justice and fairness. Ceded lands, to which the state legislature and Congress have recognized that Native Hawaiians have a claim, should not be sold before those claims have been resolved.

Our highest court correctly acknowledged that selling lands, to which Native Hawaiians have a claim, results in the further loss of lands. By reducing those lands, Native Hawaiians will be disadvantaged in negotiating a settlement; Native Hawaiians will have less bargaining power. The court continued to explain that, preventing the state from selling lands until Native Hawaiian claims are resolved, "would help in leveling the playing field during the pendency of settlement negotiations and reconciliation." In other words, a moratorium on ceded land sales, until claims are resolved, provides for fairness in negotiations.

Native land claims and federal recognition are no strangers to each other. Indigenous groups in the continental United States have settled land claims with state and local governments, coinciding with their federal recognition process. Although it may be unintentional, it is nothing short of unusual that the Lingle administration would support Native Hawaiian federal recognition efforts (which may result in a settlement agreement regarding ceded lands) on the one hand, yet undermine those very same efforts by selling ceded lands with the other hand. In the interests of justice, a settlement should be reached before any ceded lands are sold.

Other comments made by Governor Lingle are equally awkward and confusing. The Advertiser, on February 25, 2003, also reported that our governor asked lawmakers "not to let the courts unravel decades of work in Congress to help Native Hawaiians through land, health, education and housing programs." Here however, the Lingle administration stands to unravel work, on the state and federal level by selling ceded lands to which Native Hawaiians have claims. Today, it is actually our state Supreme Court, that seeks to prevent the unraveling of "decades of work" to help Native Hawaiians.

Although these issues can often be confusing, it is clear that we as a community do justice a gross disservice if we allow ceded lands to be sold before resolving the issues and claims that arise from those lands.

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