Kauanui: I remember when the Apology Resolution was issued and how crucial it was for the historical record. The stand out was and remains the “whereas” clause that states: “[T]he indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”
However, as you know, in the case Hawaii v. Office of Hawaiian Affairs (556 U.S. 163 (2009)), the U.S. Supreme Court justices unanimously held that the Apology did not restrict the state’s authority to transfer any of the “public lands”—the Hawaiian Kingdom’s Crown and Government Lands erroneously referred to [in the decision]as “ceded lands,” even though they are stolen lands—for private development. The high court reasoned that the language of the resolution did not have any “legal bite” that to create new substantive rights that could limit the actions of the 50th state government’s authority to sell those lands, even though the federal government admitted that the Hawaiian people never relinquished their claims.
Waiheʻe: Right, however, there is much more to the story if we look at the Hawai‘i Supreme Court’s earlier ruling in that same case. I’ll come back to that, but first I want to share a little-known background to that legal case, which actually started with me, when I was in office.
I wanted to build houses, affordable houses. One project was on the island of Maui—we were looking at the entire area behind Lahaina all the way up to Lahainaluna. The lawsuit started because the area we were looking to develop on Maui was considered “public lands,” and my vision was to include lands that could be sold to the individual homeowners. I reasoned that the authority for selling these lands to Hawaiians was enshrined in the Hawaii State Admissions Act, which states in Section 5(f) that there are five purposes for which all “public lands” can be used. One is for the “betterment of…native Hawaiians,” but another is the development of home ownership for people in general, so I considered that the basis for being able to sell the land.