The "Ceded" Lands Dispute: What does blood quantum have to do with it?

Itʻs been a while since there has been any public movement on the "ceded" lands issue. Many of you have been very supportive of Kupuʻainaʻs efforts earlier this year and last year. We wanted to share with you an update regarding a recently scheduled event that we think you might be interested in.

Most of the plaintiffs (Office of Hawaiian Affairs and four individuals) in the case that sought to stop the sale of so-called "ceded" lands have settled their claims with the State of Hawaiʻi. There is one sole plaintiff who is determined to have this case go all the way through, Dr. Jonathan Osorio.

On Thursday, October 1, 2009, Dr. Osorio will be joined by attorneys Naiwi Wurdeman and Yuklin Aluli in a panel discussion hosted by Ka Huli Ao Center for Excellence in Native Hawaiian Law at 12:45 at the William S. Richardson School of Law. This discussion panel will also be live-streamed at www.KaHuliAo.com.

Because seating is limited, Ka Huli Ao requires RSVPs by 9/27/2009 to nhlawctr@hawaii.edu

For more information on Ka Huli Ao Center for Excellence in Native Hawaiian Law, you can visit its blog at www.KaHuliAo.com or its law school website at www.law.hawaii.edu/kahuliao

Proceed with caution when reading/hearing some local media reports

You may have heard by now that the United States Supreme Court has ruled on the "ceded" lands case. Unfortunately, several local media outlets do not explain the Supreme Court ruling adequately and, in my opinion, may inadvertently mis-lead the public.

Upon first glance, anyone might come to the conclusion that the State of Hawai'i can sell ceded lands. But, Kupu‘āina reads the opinion differently. When the Hawai'i Supreme Court made its landmark ruling last year placing a moratorium on the sale of "ceded" lands, it did so using both the 1993 Apology Resolution AND relevant state law. When the U.S. Supreme Court came out with its ruling this morning, it only ruled on the 1993 Apology Resolution and not state law. In fact, at the end of its decision, the U.S. Supreme Court made it clear that it has no authority to decide questions of Hawai'i state law or to provide redress for past wrongs except as provided for by federal law. The U.S. Supreme Court sent the case back down to the Hawai'i Supreme Court to proceed in a manner that is consistent with the U.S. Supreme Court's ruling.

The Attorney General Mark Bennett, sought to take this "ceded" lands case out of the Hawai'i Supreme Court. Now, however, the U.S. Supreme Court has put the case back into the hands of the State Supreme Court.

This morning there are two good interviews on the KGMB website that is helpful to people who want to understand today's ruling.
There is an interview with

• Clyde Namuo (OHA Administrator) http://tr.im/Namuo090331 and


• Colleen Hanabusa (Hawaii Senate President http://tr.im/Hanabusa090331.

Clyde Namuo explains how this ruling is exactly what the Office of Hawaiian Affairs hoped for once the Supreme Court decided to take up the case. Generally, the reason is because the ruling puts the case back into State court. Senator Hanabusa also explains why, the State, still can't sell "ceded" lands at this time. Hanabusa's statements are contrary to today's Honolulu Advertiser headline which reads, "US Supreme Court says state can sell ceded lands." This headline was later changed to read, "U.S. Supreme Court rules state has authority to sell ceded lands."

Kupu‘āina encourages the public to read the U.S. Supreme Court's short opinion on this issue rather than rely only on media reports. You can access the opinion at www.supremecourtus.gov/opinions/08slipopinion.html

Kupu‘āina Live! Webcast #15

Webisode #15 2003-03-23 Kupu‘āina Live!

In today's Kupu‘āina Live! We explain why the recent SuperFerry ruling isn't something to necessarily worry about in drafting "ceded" lands legislation. We also talk about what we consider to be a "sneaky" change in the language of SB 1677, that most people don't know about.




Mahalo for your support.

The rumor was true!

Last week, we wrote about a rumor we heard regarding an unexpected change regarding Senate Bill 1677.

Finally, the information has been made available online. If you haven't read the original SB 1677, you might not notice the difference. SB 1677 originally required a two-thirds approval for the sale of "ceded" lands. Media reports and capitol insiders suggested that a two-thirds approval is difficult to achieve so a two-thirds approval effectively prevents the sale of "ceded" lands. But recently, the State House of Representatives' Water, Land & Ocean Resources Committee (WLO) and the Judiciary Committee (JUD) have changed the language of SB 1677. Instead of requiring a two-thirds approval for the sale of lands, now, a two-thirds dis-approval is needed to stop the sale of lands. Below is the relevant changed language.

     (2) Making proposed sales or exchanges of state lands subject to legislative disapproval by:
          (A) The adoption of a resolution by a two-thirds majority vote of either the senate or the house of representatives; or
          (B) The adoption of a concurrent resolution passed by simple majority vote of both houses of the legislature.

This change in the House, after SB 1677 already passed the Senate, means that this bill will most likely need to be brought to conference for the Senate and House to discuss the bill, assuming SB 1677 is passed out of the House Finance Committee (FIN).

It is very disappointing that the two committees, WLO and JUD, changed the language. A good amount (the majority actually) of testimony supported 1677 before the language of a two-thirds majority dis-approval was made.

As of the time of this posting, SB 1677 has not yet been scheduled for a hearing with the FIN committee. We will keep you updated.

What's going on at the capitol?

As we wrote last week, SB 1677 was heard in joint committee with Water, Land & Ocean Resources (WLO) and Judiciary (JUD).

Late last night, Kupu‘āina received a credible tip that the language of SB 1677 was being revised. Instead of requiring a two-third majority approval vote for the sale of "ceded" lands, reportedly, the revised version would allow sales but require a two-thirds dis-approval vote of the legislature.

A two-thirds dis-approval vote is a VERY BAD idea and the exact opposite of what is proposed in SB 1677. Local newspapers have reported, and legislative insiders have said, that a two-thirds approval is difficult to achieve. Acknowledging this, we can conclude that a two-thirds approval vote is difficult and therefore, sales of "ceded" lands will be difficult. However, if only a two-thirds disapproval is required to prevent sales of "ceded" lands, then we can conclude that, since a two-thirds majority vote is difficulty to achieve, then it will be difficult to stop a sale of "ceded" lands.

I spoke with a few people this morning. Apparently, a few others have heard the same thing. Information isn't available online yet. Mark Bennett testified in opposition to this bill, yet it was passed. No indication was given at the committee hearings on 3/13/09 that the changes made to Bill 1667 included a "two-thirds disapproval."

As we get more information, we'll be sure to keep you updated.

We Need You To Send E-mails to the House This Time

We previously asked you to send e-mails to the Senate. We now need you to send e-mails supporting SB 1085, to the State House of Representatives.

E-mails should be sent to HAWtestimony@capitol.hawaii.gov and reps@capitol.hawaii.gov Please include kupuaina@gmail.com in the BCC (Blind Carbon Copy). We'll appreciate it and it gives us some idea how many e-mails the Representatives get.

We have templates for you to use if you don't know what to write in an e-mail. Please pick ONE of the templates below.

     Template 1     Template 2     Template 3     

We also have a special template for our supporters who do not live in Hawai‘i. CLICK HERE for the special out-of-Hawai‘i template.

In addition, please do not forget about our Just 5 Minutes a Day Campaign. Learn more by CLICKING HERE.

Mahalo for your continued support. Please encourage family, friends and co-workers to support these efforts.

Lastly, don't forget to watch our Live-Streaming webcast, Kupu‘āina Live! at 5:30 pm Mondays at StopSellingCededLands.com

Legislative Updates Senate Bills 1085 and 1677

If you've been keeping up with us on Twitter, you may have seen that on Friday, the House Committees on Water, Land & Ocean Resources (WLO) and Judiciary (JUD) passed Senate Bill 1677. You can find the status of SB 1677 by going to tinyurl.com/SB1677stat or CLICKING HERE.

Three people spoke to the committee:

• UH West O‘ahu Chancellor Gene Awakuni,


• Attorney General Mark Bennet, and


• Derek Kauanoe of the Kupu‘āina Coalition

Chancellor Awakuni did not testify for or against SB 1677 but expressed concern that the current language of the bill was too broad and could affect the UH O‘ahu campus, which he says does not sit on ceded lands. He expressed a desire to see the language narrowed in such a way so as to not impact the West O‘ahu campus in a manner that was not intended.

AG Mark Bennett, testified in opposition of SB 1677. From what I can recall, he emphasized that in the history of the State of Hawai‘i, no governor has abused authority in a way that "ceded" lands have been sold in substantial portions. I also remember Mark Bennett describing support for the current method of selling "ceded" lands in the legislature. If I understand correctly, the current process requires a two-thirds opposition of the state legislature. SB 1677 would require a two-thirds majority vote for a sale of "ceded" lands. From what I remember, he also commented that as a practical matter, SB 1677 does not make sense.

Derek Kauanoe testified in support of SB 1677 but expressed concern that it did not adequately reflect the public policy of the Legislature as declared in Senate Concurrent Resolution 40 (SCR 40). You can check out SCR 40 at http://tinyurl.com/09SCR40stat. SCR 40 declared the public policy of the State of Hawai‘i is to honor the decision of the Hawai‘i Supreme Court. In addition, SCR 40 also provided that appealing to the U.S. Supreme Court "is detrimental to the interests of all of the people of Hawai‘i and to the ongoing reconciliation process between the State and the Native Hawaiian people." Kauanoe also urged the two committees to adopt key language in SB 1085. You can check out SB 1085 by going to tinyurl.com/09SB1085stat. Generally, Kauanoe asked that SB 1677 be revised to better reflect SB 1085.

The committees passed SB 1677 with amendments, however, we're still waiting to see what specific amendments are being added.

I noticed today, that some time in the late afternoon yesterday (3/13/09) that the House Committee on Hawaiian Affairs has scheduled a hearing for SB 1085 on Wednesday, March 18, 2009 at 9am in room 329. Mahalo goes out to Representative Mele Carroll for scheduling a hearing and giving more than 48 hours notice on this. This prompt scheduling provides people with a good amount of time to write testimony, for or against the bill, and the opportunity to meet the deadline as well.

In our opinion, SB 1085 is a better bill than SB 1677 for a few reasons:

• SB 1085, unlike SB 1677, is a re-affirmation of the Hawai‘i Supreme Court's "ceded" lands case opinion


• SB 1085, unlike SB 1677, also re-affirms the need for reconciliation with Native Hawaiians


• SB 1085, unlike SB 1677, places an actual moratorium (freeze) on the sale of ceded lands


• SB 1085, unlike SB 1677, provides a comprehensive process for the sale of ceded lands once the moratorium (freeze) is lifted.


• SB 1085, unlike SB 1677, is consistent with the Hawai‘i Legislature's expressed public policy found in Senate Concurrent Resolution 40.

We urge everyone to send e-mail testimonials to HAWtestimony@capitol.hawaii.gov in support of SB 1085. Over the next day or so, we will be putting together a more complete e-mail list in addition to a few templates for people to send through e-mail. Mahalo for your support and please don't forget to watch Kupu‘āina Live! on Monday at 5:30pm at our website stopsellingcededlands.com.