Tag Archives: ceded lands

The Rule Change

The effort for Federal recognition of Native Hawaiians for the purposes of creating a governing entity went through three stages, or attempts: The Akaka Bill, direct recognition by the Department of Interior and the rule change.

Dept. of Interior (DOI) Hearings:

https://www.doi.gov/news/pressreleases/interior-considers-procedures-to-reestablish-a-government-to-government-relationship-with-the-native-hawaiian-community

In this latest (and what seems to be the most successful) attempt DOI looked to reestablish government-to-government relationship between Federal government and Native Hawaiian community. On June 18, 2014, the DOI stated,

The Secretary of the Interior (Secretary) is considering whether to propose an administrative rule that would facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community, to more effectively implement the special political and trust relationship that Congress has established between that community and the United States. The purpose of this advance notice of proposed rulemaking (ANPRM) is tosolicit public comments on whether and how the Department of the Interior should facilitate the reestablishment of a government-to-government relationship with the Native Hawaiian community. In this ANPRM, the Secretary also announces several public meetings in Hawaii and several consultations with federally recognized tribes in the continental United States to consider these issues.

Secretary of the Interior, Sally Jewell stated “The Department is responding to requests from not only the Native Hawaiian community but also state and local leaders and interested parties who recognize that we need to begin a conversation of diverse voices to help determine the best path forward for honoring the trust relationship that Congress has created specifically to benefit Native Hawaiians.” Public hearings throughout Hawaii, from June 23 to August 8, 2014, which I wrote about in the Nation magazine, asked 5 “Questions to be Answered:”

  1. Should the Secretary propose an administrative rule to recreate a government-to-government relationship with the Native Hawaiian community?
  2. Should the Secretary assist the Native Hawaiian community in reorganizing its government?
  3. What process should be established for drafting and ratifying a reorganized Native Hawaiian government’s constitution or other governing document?
  4. Should the Secretary instead rely on reorganization through a process established by the Native Hawaiian community and facilitated by the State of Hawaii, to the extent such a process is consistent with Federal law?
  5. If so, what conditions should the Secretary establish as prerequisites to Federal acknowledgment of a government-to-government relationship with the reorganized Native Hawaiian government?
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Prof. Williamson Chang

On September 29th, 2015, the DOI released the rule change. UH Law Professor Williamson Chang released the following statement in response:

The Department of Interior issued its long awaited proposed rule as to a Native Hawaiian Governing body. It was not much. The Federal Government is giving very little. If this is the last word on the federal government and Hawaiians, from the point of view of the United States’ the history of Hawaii ends with a “whimper not a bang”
1. It starts by noting that only the written comments counted, not the vehement oral testimony.
2. It is premised on false history: At page 6 of the long document, it states the Republic of Hawaii ceded its lands to the United States and that Congress passed a joint resolution annexing the Hawaiian Islands. Accordingly, all that follows flows from a flawed premise: The United States acquired the Hawaiian Islands and has jurisdiction. Moreover, it claims that the United States has title to the crown and government lands.
3. Even so, it gives very little. It would make a consenting Native Hawaiian government “just like” a tribe, but not a tribe.
4. The law that applies to tribes would not apply to the Hawaiian entity. Congress would have to explicit[ly] write Hawaiians in to Indian programs—just as it is today. No gain.
5. It admits that the purpose of the proposed rule is to protect Hawaiians from constitutional attacks on Hawaiian-only entitlement programs. The Department of the Interior, however, does not control the U.S. Supreme Court. The Court would still be free to strike down Hawaiian only programs if it so desired.
6. The Hawaiian governing entity gets no lands by this proposal
7. The proposal does not affect Federal holdings or title to the Crown and Government lands.
8. There is to be no compensation for past wrongs.
9. The rule limits the Hawaiian government to Hawaiians only.
10. Only one Hawaiian government can establish a relationship with the Federal Government under this proposal.
11. It precludes federal recognition of a restored Kingdom of Hawaii, or Provisional Government that would become a State either as a Kingdom or any other.
12. The Hawaiian Government cannot be in violation of “federal laws” such as the prohibition on ‘titles” in the U.S. Constitution—thus no quasi-Kingdom either.
In summary—and this is from a very brief reading. I may be in error, I may have overlooked various important sections, but in the name of getting this to you as soon as possible. Here is the link to the proposal, its supporting documents and frequently asked questions.

The Notice of Proposed Rulemaking read:

The U.S. Department of the Interior is proposing to create an administrative procedure and criteria that the Secretary of the Interior would apply if the Native Hawaiian community forms a unified government that then seeks a formal government-to-government relationship with the United States.  Under the proposal, the Native Hawaiian community — not the Federal government — would decide whether to reorganize a Native Hawaiian government, what form that government would take, and whether it would seek a government-to-government relationship with the United States.

The proposal, which takes the form of a Notice of Proposed Rulemaking (NPRM), builds on more than 150 Federal statutes that Congress has enacted over the last century to recognize and implement the special political and trust relationship between the United States and the Native Hawaiian community.  The NPRM comes on the heels of a robust and transparent public comment period as part of an Advance Notice of Proposed Rulemaking (ANPRM) process that began last year and included public meetings.  More than 5,000 members of the public submitted written comments to the ANPRM, and they overwhelmingly favored creating a pathway for re-establishing a formal government-to-government relationship.

Members of the Hawai’i Congressional delegation predictably responded in favor of the rule change, as did Governor Ige. Rep. Tulsi Gabbard’s statement was perhaps the most substantive:

Many indigenous groups in the U.S. have the right of self-determination, and today’s announcement acknowledges that that right also belongs to the Native Hawaiian people, one of the largest native communities in the country. These rules incorporate over 5,000 public comments submitted to the Department of Interior (DOI), and should they be adopted, the Native Hawaiian community will have the option to re-establish a unified government and self-determine their future relationship with the federal government. I encourage all interested parties to submit their comments to DOI during the 90-day public review period to ensure a collaborative final ruling.

The list of candidates for delegate to the constitutional convention was released by Na’i Aupuni the next day. It can be viewed here, but prominent candidates included John Aeto, Keoni and Louis Aagard, OHA trustee Rowena Akana, former Mayor Dante Carpenter, Prof. Williamson Chang, Jade Danner, Prof. Lilikala Kame’eleihiwa, Senator Brickwood Galleria, Adrian Kamali’i, Sovereignty leader Dennis “Bumpy” Kanahele, Colin Kippen, Prof. Daviana McGregor, former OHA administrator Clyde Namu’o, and Native Hawaiian Legal Corp. director Moses Haia, among many others.

There is a question of whether the rule change gives the kind of legal protection that was the point of Federal recognition, or if it is merely a Federal sanction of a process already happening. The Hawai’i Independent ran a story questioning the validity of the rule change:

“We have to remember that this process started with the State of Hawai‘i, not the Hawaiian people,” [Andre] Perez told The Independent over the phone. “Hawaiians did not initiate or pass Act 195, which created Kana‘iolowalu. The state legislature did, and gave the governor the power to appoint members to the commission. True self-determination does not come with a state-initiated, state-controlled process like this.”

Keanu Sai happened to speak to my class the day after the rule change. As I pondered the question of whether this was a victory for the Fed Rec set, it seemed to have no effect on Sai’s view that it was simply more Federal legislation inapplicable in foreign (Hawaiian) territory.

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Interview with George Cleveland, reconciliation advocate and grandson of President Grover Cleveland

This is the third in my interview series. In the first two posts, I speak with publisher Ikaika Hussey and “super-teacher” Amy Perruso. I met George Cleveland through Kahu Dr. Kaleo Patterson, with whom Cleveland has done work on reconciliation, a topic about which I’m very keen.
‘Umi Perkins: Can you tell us (as briefly or extended as you like) about your background? I understand you went to prep school in my wife’s hometown, for instance.
George Cleveland: I was born and raised in Baltimore, Maryland. A wonderful town even though back then people used to cringe when you said you are from Baltimore. ​

George Cleveland often stands in as President Cleveland for historical reenactments

​It was a pretty sheltered upbringing that changed a lot when I got out of town and went to boarding school in Lenox, Massachusetts. It was an unusual school in that it was extremely culturally diverse for that time; the late 1960’s. We had what became the only seriously successful program for Native Americans in an eastern prep school. Interesting that at that time, there were around 8 prep/boarding schools in Lenox. Now there are none. Without significant endowments, even the oldest school couldn’t make it through the 70’s.
I lived in Boston for a couple of years after high school and moved to New Hampshire. Among other things, I worked as a professional clown, was backman on a lobster boat and sold waterbeds. College and I never seemed to get along too well.​
How did it come to be that Grover Cleveland’s grandson is so young and spry in 2015?
​Who me?? My family stretched out the generations. Grover Cleveland was born in 1837. He married my grandmother in the White House in 1886. She was 21… Grover knew her prenatally as she was the daughter of his law partner in Buffalo, NY. My father was born in 1897. He met and married my mother in 1943 when she was teaching his children from his first marriage. We dropped two generations.​
​Oddly, I am always asked what he was like. He died in 1908, so our paths did not cross. My grandmother died in 1948, so I just missed knowing her.
I like to remind people that I had TWO sets of grandparents. My maternal grandparents were from a tiny village in Scotland. My grandfather went to sea when he was 14 and worked his way up to captain.​
I find it interesting that you, like Lorrin Thurston’s grandson (who is still alive) seem to side with your grandfather. You’ve said things to that effect.

​Well…he was right!

It can be a little tricky siding with someone from that long ago whom you did not know personally. But…it is my understanding that my grandparents and Queen Liliuokalani admired each other. And I know that one of the first things Grover tried to do when he came back into office in 1893 was to get the overthrow overthrown. AND I know that not seeing the Kingdom reinstated was one of the big disappointments of his life. ​

​When I speak as part of Grover’s ohana, I try and keep it to what I know from historical record and not what I think he thought. That being said, it is my understanding that when news reached him that the Queen would not be reinstated, he said something to the effect of, “So, Hawai’i is ours.” ​I see this simple statement as sadness that “manifest destiny” and greed had won out over what was just and right.

–there is a bit of irony that I am writing this only two days before Liliuokalani’s birthday and on the day when President Obama is about to officially rename Mt. McKinley in Alaska.
Like you, I have some illustrious ancestors, though no presidents:). A great-granduncle of mine is Lew Wallace, for instance, the man who wrote Ben Hur. My grandfather’s name is Wallace Perkins, after that line of the family. I’ve become somewhat obsessed with him. How much do  you think ancestry shapes us?

​That is a really tough question to answer. Would I still be a nice guy if a grandfather had been a serial killer? How would that guilt and shame inform my life choices? How hard would it be to move beyond those feelings? Would my life involve atoning for that?

I don’t know what it’s like NOT to be the grandson of a President. It has been a burden at times, but I’m way beyond that now.

Somewhere ALL of our ancestors did things we may not be proud of. Maybe the simple answer is to learn from their mistakes and do what we can to make the world more livable for more people. Do it because it’s the right thing to do and not an offshoot of ancestral guilt or shame.

I’m a White Anglo Saxon Protestant of Northern European and Celtic descent as far back as the Dark Ages. I think it’s safe to say that this race has done more to impact this planet than anything since the Big Bang. So much potential has been misplaced…
What’s your plan? (vague question, I know) – by that I mean what has driven you in life?
​Sheesh… This has changed a lot over the years and will probably change a few more times. ​
​I’d like to be a simple beacon to help people off the rocks…​
Can you talk about your work on reconciliation (which is how we came to meet)?

​Around 10 years ago when I was first contacted by Kaleo Patterson and Ha’aheo Guanson, I knew next to nothing about Hawai’i and its history. When I first visited (2006?) I was incredibly honored to stay with people like Kekuni Blaisdell and Meleanna Meyer. The things they showed me; the people I met, melded into my soul.

Kumu John Lake’s halau did a presentation for me. I sat in a chair and watched slackjawed as Kumu John translated for me in my ear. It was quite simply one of the most profound experiences of my life.

Reconciliation. It’s that which makes us able to move forward unshackled. It’s a vital process whether from one person to another or one people to another.​
​It would be presumptuous of me to say what I think is right for the Hawaiian people. ​BUT…I DO have some thoughts. The United States has done a bang up job of banging up Hawai’i; probably more than any other country. I believe the US has a moral obligation to continue and COMPLETE the removal of all potentially dangerous ordnance from Hawaiian lands and waters. And all the junk that goes with it. I haven’t been there, but I’d like to see substantial effort (money) put into doing whatever is necessary to get Kaho’olawe back together.
I love space exploration, but that doesn’t mean putting a telescope on a sacred site. If I have to pee in New York City, I don’t do it on the steps of St. Patrick’s Cathedral.
Reconciliation isn’t just about trying to mitigate and correct past wrongs by governments and armies. Reconciliation includes reaching out to friends, neighbors, strangers, smelly people and seeing what we can do for them right NOW. Just be there for someone in some kind of helpful way.
Promote peace. One of my great mentors defined “peace” as “the absence of emotional urgency”. It works for me. –when I let it!
What are your thoughts on history? I know you were the keynote speaker at National History Day, for example, which my students participate in.
​What is more important than history? It’s what we are as individuals and as humans. Even if you have no idea of your lineage, you still have history. It informs our present and our future.
There are some GREAT history teachers out there at the middle and high school levels. They are trying to teach history not as a linear progression of dates to be memorized, but as a living thing that is with us now. These teachers are doing what I see you trying to do, Umi. I have a good friend in Buffalo, NY who is trying to teach the teachers how to better befriend history; he takes them on field trips all summer.
I think it’s important for people to realize that NO ONE has a boring history. I work in a senior center. We have many participants who saw horrible and dramatic action in battle. We have many participants who saw incredible life changing events on the homefront. Some of those homefront stories are pretty dramatic too.
National History Day is a tremendous program. But as I said when I spoke to a group there, how many who have won History Day awards will get the same reception when they get home as the football team ​
​would?? Will the mayor recognize their feat? Will they ride through their village on the fire truck? Gotta fix that…​

Any final thoughts – for Hawaiians or others?
​My final thoughts are ones of gratitude for the patience and understanding shown to me by the people I’ve met who are working FOR Hawai’i. Not just for preservation, but for continuation.
The spiritual nature of things is more palpable in Hawai’i than any place I’ve ever been.
I have very close friends in Hawai’i, even if it’s only a Facebook friendship at times. AND, I’ve gotten flamed a few times for hanging out with and agreeing with some of them!
I send much Aloha to all of them, to all your readers, and to you, Umi. Mahalo for all you are doing.

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Response to Gerald Smith’s “Host Culture in Hawaiʻi is just a Myth”

Gerald Smith was right and wrong in his Civil Beat article “Host Culture in Hawaiʻi is just a Myth.” Hawaiians may not be the “host” culture, and it’s true as he says, that neither Hawaiians nor other non-indigenous groups are here by choice, nor by invitation. In fact, Kamehameha II gave the first group of foreigners to ask permission, the Congregationalist missionaries in 1820, a probationary period of one year. The deadline for reviewing their stay was neglected and within a generation they were entrenched in government and the economy. I often wonder if the term “host culture” is merely a convenient one for the tourism industry, as it creates the impression – a questionable one – that tourist are welcome guests. Smith is wrong, however, on several counts. His claim that “Many Native Hawaiians would like us all to leave and restore the kingdom that was taken away by the United States,” is unsupported by any evidence. Just as the Hawaiian Kingdom never ejected even its most troublesome residents, the Hawaiian movement has not called for non-Hawaiians “all to leave.”

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Kūkaniloko march opposing Stryker brigade, 2006. Thatʻs me looking in the wrong direction as usual. Photo by Michael Puleloa

What is problematic is Smith’s assertion that everyone in Hawaiʻi is equal in the eyes of the law. Putting aside the quite valid claims of independence advocates for the moment, the State of Hawaiʻi recognized Hawaiians as the Indigenous people of Hawaiʻi in 2011. Over one hundred pieces of Federal legislation, beginning with the 1921 Hawaiian Homes Commission Act do the same. To simply brush aside these forms of recognition that Hawaiians are unique in the eyes of the law, is troublingly close to what has been called “white indigeneity.” What can be said of narratives of white indigeneity is that they are widespread. Such claims are seen in New Zealand, Australia, the US and elsewhere. What cannot be said is that they are taken seriously. I happened to observe the phenomenon in the New Zealand parliament: one conservative member cited the respected historian Michael King to support his contention that pakeha (Caucasians) were Indigenous. To this another member asked if the “honorable member” was familiar with the UN definition of Indigenous.

Smith establishes his kamaʻāina credentials by stating that he observed the attack on Pearl Harbor. If this is the case, he certainly did not take Hawaiian history in school, even if he went to school here, as it wasnʻt required until the 1970s. So one is left to wonder where his understanding of Hawaiian history comes from. Likely its from Gavan Daws’s Shoal of Time, still the most read general history of Hawaiʻi. The book’s chapter on Statehood is entitled “Now we are all Haoles.”

Smith’s contention that “the people who live here voted to become a state, so some will never accept their fate.” was roundly and very publically critiqued on its 50th anniversary in 2009, with very little in the way of counter- arguments.  The link in his article that ostensibly supports this “fact” takes the reader to history.com – as Hawaiian history is not well-known in Hawaiʻi, citing an external source does not inspire confidence in the reader. This was taken into consideration by the UN; in 1996 the Star bulletin headline read “UN may find statehood illegal.” It was even tacitly recognized by the local majority. There are fireworks in Waikiki every Friday, but none on the 50th anniversary of statehood. Apparently Friday is a more important event.

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Abstract for Kuleana: A Genealogy of Native Tenant Rights

This may be the shortest post yet, but Iʻve purposely avoided posting any of my dissertation here on the umiverse. As Iʻm basically done now, I thought Iʻd at least post the abstract here for you r consideration. I plan to convert it to a book as soon as humanly possible.

During the period of the privatization of land in Hawaiʻi (1840 – 1855), kuleana, usually translated as “native tenant rights,” constituted both a right to, and responsibility over, land for Hawaiians. The 1850 Kuleana Act provided a means for makaʻāinana to divide out these rights and gain a fee simple title to the lands under their cultivation. Using a hybrid genealogical method, I argue that these rights were elided by gathering rights in the period since the 1890s. By debating the extent of gathering rights, courts have been able to appear liberal, while obscuring the profound rights of Kānaka Maoli embedded in Hawaiʻi’s land tenure system. The 1850 Kuleana Act was a continuation of the process begun with the 1848 Māhele, which I contend was misconstrued by twentieth century scholars. This contributes to the confusion over native tenant rights. I examine both the foundations of the introduced system of land law (the ideas of dominium, eminent domain and property itself), and responses to kuleana rights – the Land Court, 1895 Land Act, and legal cases such as Dowsett v. Maukeala. In examining its foundations, I use a concept I call theoretical encounter, which attempts to apprehend the meeting of ideas. In analyzing the responses to kuleana, I use the framework of legal pluralism, which acknowledges the simultaneous existence of multiple legal regimes. In examining the question of the alienation of Hawaiians from land, I find that a technique called erasure allowed for a radical forgetting of place. Central to the debate over kuleana lands is the notion of a deadline on claims to such lands. I problematize the idea of a deadline on claims, opening questions over the continued existence of kuleana in the present day.

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Making Sense of the Ceded Lands: A Historical Assessment

This article was published in the Hawaiʻi Independent during the US Supreme Court case regarding the ceded lands in 2009. Iʻm posting it here because there is no link to it on the Independent website:

A recent Honolulu Advertiser article stated that the State’s title to Hawaiʻi’s ceded lands was not in dispute in the current struggle over those lands. In her State of the State address, governor Linda Lingle said that the case was not over the State’s right to sell ceded lands, but over the title to such lands. Many assert that Hawaiians’ claim to the ceded lands is merely moral, not legal. Who is right? In this article I review the history of the ceded lands and make the case that, contrary to Lingle’s claim, Hawaiians have a legal claim to these lands.

The “Ceded” lands are the combined government and Crown (the monarch’s private) lands originally divided during the Māhele of 1848. The word ceded is often put in quotes because the term means “transferred, typically by treaty” – as there was no treaty of annexation, the very existence of “ceded” lands is questionable. These lands were taken by the government of the Republic of Hawai‘i (the formalized version of the overthrow-created Provisional Government), then transferred to the US government upon annexation. Many have pointed out that the State has never made in inventory of these lands, nor kept track of which were originally public and which private.

Confiscation of the ceded lands by the US Federal government began immediately after annexation. On September 28, 1899, an executive order issued by President McKinley suspended any transactions pertaining to the public lands of Hawai‘i by the Republic of Hawai‘i.  This was after annexation but before the Organic Act that created the territorial government. It was in response to a report recommending that the current sites of Schofield Barracks and Fort Shafter on the island of Oʻahu be obtained through condemnation procedures. Five such executive orders were issued between 1898 and 1900 securing land for military purposes, and, according to the dissenting report of the Native Hawaiians Study Commission, “the military has made extensive use of Hawai‘i’s public lands ever since.”

In 1900, the Organic Act, which contained the provision that ceded the lands to the territorial government and charged it with their maintenance and management. In 1921, just under 200,000 acres were carved out of these lands, creating the Hawaiian Home Lands trust. These were some of the poorest agricultural lands out of the ceded lands, as sugar growers and ranchers retained the prime public lands. When Hawai‘i became a state in 1959, these lands were again transferred to the newly created state government. The Federal government “set aside” 287, 078 acres of public lands, of which 60,000 acres were used by the military. An additional 28,000 acres were obtained in fee through purchase or condemnation. 117,000 acres were held under permits and licenses. 87,000 of these acres were retained by the military, while 30,000 of these acres were obtained through leases of $1 for each lease for 65 years.

Upon statehood in 1959, the 5(f) provision in the Statehood Act named five purposes for the ceded lands, including the betterment of the conditions of Native Hawaiians. The proportion of revenue from these lands to be conveyed to Hawaiians was disputed in court for decades. Originally set at twenty percent, then struck down, negotiations are ongoing over a settlement for neglected payments to the Office of Hawaiian Affairs. Abuses of the ceded and Hawaiian Home Lands abounded. Included in this acreage is Mākua valley, used since World War II as a live fire military training area. The Hawai‘i state government has withdrawn 13,000 acres from the Hawaiian Homes trust through Governor’s Executive Orders (GEOs), primarily for game reserves, forest conservation, military, airports, and public services.

Title to the ceded lands, however, is a more contentious issue. Supreme court cases in 1864 and 1910 made the private Crown lands look more like public lands, reinforcing the government’s claim to them. As UH law professor Jon Van Dyke points out, however, in his book Who Owns the Crown Lands of Hawaiʻi,these lands have several potential breaks in the chain of title, which create a strong Hawaiian claim to these lands. Van Dyke recommends that they become the basis of a Hawaiian governing entity, presumably created by the Akaka bill.

Then there is the issue of title to the Hawaiian Kingdom government lands, acquired from a government that President Grover Cleveland described as owing its existence to the armed intervention of the United States. In real estate law, it is never what you claim to own, but what the previous owner can prove they owned, that is the basis for determining title. This seriously weakens the State’s claim, as the Federal government twice – in 1893 and 1993 with the apology resolution – denied the legitimacy of the Provisional Government, and by extension, the Republic of Hawaiʻi, the source of its title.

The State of Hawaiʻi may in fact have eminent domain, the right to confiscate lands, but they arenʻt claiming to have gained title through eminent domain. Unlike Britain and other countries, in US law, the government does not have any special rights as a land owner other than eminent domain, which, incidentally is not in the US constitution, but only asserted by the supreme court. Thus, the State’s assertion of title to the ceded lands is necessarily through their transfer from the Republic of Hawaiʻi. A final note: in Hawaiian Kingdom land law (which essentially continued after the overthrow, otherwise Kamehameha Schools and the Big Five wouldn’t own their land), the government did have special rights – called dominium – and all makaʻāinana were part of the government where land rights were concerned. These “native tenant rights,” at least theoretically, still exist today, and allow native Hawaiians to divide out the interest (or rights) and claim parcels out of government or private lands. They are not, as is commonly believed, gathering rights, but the right to a fee-simple parcel of land. This means no one owns their land absolutely as all original land titles contain the provision “ua koe ke kuleana o na kanaka” – reserving the rights of native tenants. So Lingle is right that this case is about title to ceded lands, she is wrong about who holds that title. The Hawaiian claim to the ceded lands is as much legal as it is moral.

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The OHA Ceded Lands Settlement

After decades of “negotiations,” OHA and the State have reached an agreement over the revenue from the so-called “Ceded lands.” (See my article from the Hawaiʻi Independent: Making Sense of the Ceded Lands: An Historical Assessment for an overview of these lands). There are a couple of ways to look at this settlement – one “inside” and one “outside.” Jon Osorio alluded to this in his article anticipating the settlement. An inside view looks at it from the perspective of OHA and other state insiders. From this perspective, the settlement has potential. The $200 million value of the lands may underestimate the potential value of these lands, as they are downtown and waterfront. It settles a long-standing claim for Hawaiians without affecting future claims, either to further revenue or to sovereignty itself (this is Abercrombie in his liberal mode – an article in a Big Issand newspaper questions which Abercrombie weʻre seeing at different moments). $200 million increases OHAs net worth by approximately 50% (a little more actually). Itʻs been said that OHA is now being forced into the role of land manager, but that began years ago with the acquisitions of Waimea Valley and Waokeleopuna on Hawaiʻi Island, a fact that seems to have been left out of the discourse surrounding this settlement. In my view, OHA, as the de facto (if not de jure) Hawaiian government should have land as a primary asset – after all, to be Hawaiian is to be of this land. While more radical Hawaiians make very valid arguments as to OHAʻs authority, and the fact that this is a transfer, basically, from the state to itself, the mainstream Hawaiians are moving ahead. In their view these are real gains for Hawaiians.

However, there is another view, which Iʻm calling “outside” only in the sense that most of those who hold them are outside of the corridors of power. In this view, OHAʻs legitimacy is undermined not just by the illegality of the overthrow itself, but of the US governmentʻs own recognition of this illegality. Some point out that the lands granted are, first of all, backfill. They are not a part of the original island of Oʻahu. One not-too-radical group called it “a dump.” Even Richard Fassler noted the environmental problems with the site, the costs of cleanup, and how the state is likely glad to be rid of it.

The bigger issue for outsiders is the giving up of the claim itself. Claims are always a tricky matter. In New Zealand, for instance, the question has arisen as to whether the settlement of claims ever actually satisfies the claim. Many Maori say claims are never fully satisfied. And that may be the case here – certainly it is the case for future claims, but considering that Hawaiʻi Courts already awarded OHA billions in revenue (which was never paid), it is hard to argue that $200 million settles it. It is, as with many such things, not least the Akaka Bill, better than nothing. And nothing is what Hawaiians have had for decades (under the Democrats, it should be noted) – nothing but a claim.

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