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inside scoop about Hawaiian Lands case

March 6th, 2009

Lanny Sinkin wrote:

Below are two commentaries on the recent oral argument at the U.S.  Supreme Court in the Kingdom Lands case.  The second piece arrived  without information on the author.  I am told that Keanu Sai is the  author of that piece.
  
I have attached a transcript of that oral  argument as well.

Aloha,

Lanny

WHAT REALLY HAPPENED AT THE U.S. SUPREME  COURT
By Leon  Siu
February 27, 2009
 
Washington, D.C.,  USA
 
Reading the newspaper accounts of the State of Hawaii v.  the Office of Hawaiian Affairs oral arguments at the Supreme Court I asked  myself, were they in the same courtroom that I was? Hawaii papers put a phony,  positive spin on what actually went down. The stories were written with the  kind of provincial slant… home-town-team, win-or-lose, they’re-our-boys and  we’re-darn proud-of- ‘em and we-love- ‘em.
 
Well, we do love ‘em,  but those of us who were there saw a very different picture than the hometown  news reported. The fact is, the state and OHA choked.
 
Hawaii’s  little league ball teams do much better in rallying and coming through  in the clutch in their world-series encounters. But the State and OHA got  dirty lickins playing in this big league, world-series-  level of court. They performed like a bunch of amateur scam artists, but in  nice suits.
 
In essence, the Supreme Court justices appeared not  just skeptical, they seemed to be downright annoyed at the state’s convoluted  arguments and manipulative efforts to have the federal court undo the results  of 14 years of dragging through the state courts.
 
The justices  took their line of questioning way outside the expectations and comfort zone  of both the state and OHA. Neither party was prepared to (or wanted to)  address the issue of title except to reinforce the state’s claim to  so-called “perfect title” as “a given.” So they did some fancy footwork to try  to dodge the title issue; which did not amuse or make any points with  the court. Neither was the court pleased when the state and OHA tried to steer  the justices back to the actual narrow question on deck about state’s  rights.
 
The state’s whole case is built upon the premise that  the State of Hawaii has “indisputable perfect title” to the “ceded lands.”  Well guess what? If their title was “indisputable” and “perfect” why are they  in court? And why have they been in court over this issue for 14 years?  Because there is a dispute! There is a question of  title!
 
The injunction leveled against the State of Hawaii by the  State Supreme Court in January 2008 caused the State to run crying to the U.S.  Supreme Court saying, “No fair, no fair! The Apology Law would force us to  give Hawaiians back the lands stolen from them over 100 years ago! It’s ours  fair and square because the U.S. gave it to us! The Apology means nothing. We  have “perfect title!”

[Ironically, this is the very Apology Law  that the state embraces in their support the Akaka Bill. But that’s another  story.]
 
The Apology Law undermines the state’s “perfect title”  claim. The State Court ordered the injunction because the Apology Law  clearly shows that there is a dispute — a big one! The  Apology Law flatly says that the seizure of Hawaii was illegal and that  the native Hawaiians never gave up their claims (title) to the lands of  Hawaii.
 
These two glaring admissions of fact, framed within this  federal Apology Law (USPL 103-150) don’t merely suggest a problem of  land title; they cast serious doubt on the very legitimacy of the State of  Hawaii. How can something that results from an illegal act now be considered  legal, or in this case, perfect?
 
The illegality of the  initial act (the seizure of the lands of Hawaii) means that anything else  based on that illegal act is likewise, illegal; and that means the State of  Hawaii and its construct, OHA are illegal entities. That means the only valid,  lawful claimant to the lands and jurisdiction of the Hawaiian Islands is,  after all these years, the still-existing Hawaiian Kingdom.
 
That  is why the state claimed right off the bat that it had “indisputable” “perfect  title.” The state was desperately trying to keep the court from inquiring  about any other option regarding title by eliminating that, first off, as a  point of contention. But the court’s refusal to wear such blinders was  unnerving to the state. You could almost hear the state attorney general  saying to the court, “focus! focus!”

But just because the state  took a beating, doesn’t mean OHA fared much better.
 
Probably the  most egregious action that day was by OHA when it chose to agree with the  state’s “perfect title” position and by doing so, failing to present the  Native Hawaiians’ un-relinquished claims as a challenge to the state. They  virtually abandoned the Native Hawaiian land claim implicit in the Apology  Law! By doing so, they virtually abandoned the Native Hawaiians; the clients  they purport to represent!
 
At best it was a stupid legal  maneuver; at worst it was a shameful betrayal.
 
OHA never  challenged the state’s “perfect title” claim and argued instead that according  to state laws, the state had a “fiduciary duty,” sort of a moral obligation,  to take care of the Native Hawaiians.
 
That led Justice Ginsburg  to ask, “The Native Hawaiians — they do get 20 percent of the proceeds,  correct?” And the OHA attorney to answer, “That’s correct…as a matter of State  law they get 20 percent of the revenue from the ceded-lands trust…” (we all  looked incredulously at each other…since when?) Then he clarified,  “…though the amount of that revenue has itself been the subject of protracted  and unresolved litigation.”  Oh, so we get 20%, but not yet! The  check’s in the mail…

Later, Justice Kennedy stated to the OHA  attorney: “Your whole case rests on a cloud on the title in favor of your  clients. But you — you ignore the cloud on the title that has been entered  against the State.”
 
So, OHA’s strategy is: don’t press for the  Native Hawaiian’s outstanding claim on the land, but instead, shift to begging  for handouts from the state because, according to “state law,” the state has a  “fiduciary duty” to take care of Native Hawaiians. OHA in essence was making a  pitch (in the Supreme Court of the United States!) for a welfare claim,  not a land claim!
 
In my opinion, both the state  and OHA were way out of their league in this court. But you can’t blame them.  They had a flimsy case to begin with; one in which they are trying to defend a  situation that resulted from a long series of illegal actions. It’s very hard  to defend a string of lies.
 
Two good things came from this: 1)  the state and OHA have proven they have nothing to stand on, and 2) there is  now a gaping doorway for the Hawaiian Kingdom to walk through, assert itself  and claim its rightful title the lands of Hawaii.

 
Malama  pono,
Leon

The Myth of Ceded Lands and the State of  Hawai`i’s

Claim to Perfect  Title
 

  
 

In the recent Ceded lands  hearing at the Supreme Court in Washington, D.C., on

February 25, 2009, Attorney  General Mark Bennett repeatedly asserted in the hearings

that the State of Hawai`i  has perfect title to over one million acres of land that were

transferred to the United  States government upon annexation in 1898 and then transferred

to the State of Hawai`i in  1959. This is an incorrect statement. This falsehood, however,

is not based on arguments  for or against the highly charged Hawaiian sovereignty

movement; rather, it is a  simple question to answer since ownership of land is not a

matter of rhetoric but  dependent on a sequence of deeds in a chain of title between the

party granting title and the  party receiving title. In fact, the term “perfect title” in real

estate terms means “a title  that is free of liens and legal questions as to ownership of the

property. A requirement for  the sale of real estate.”

 

What determines a perfect  title is a chain of title that doesn’t have a missing link. Here in

Hawai`i all titles originate  from the Hawaiian Kingdom government whether by Royal

Patents or Land Commission  Awards and all subsequent conveyances between

individuals are registered  at the Bureau of Conveyances located at the corner of

Punchbowl and Beretania  Streets on the ground floor of the Kalanimoku Building. An

example of a chain of title  would be the Hawaiian Kingdom government to Joe Smith,

Joe Smith to Alex White,  Alex White to Alapa`i, Alapa`i to Yao Wong, Yao Wong to

Jonathan Judd. If there is  no record of the deed between Alapa`i and Yao Wong there is a

break in the chain of title  and therefore Jonathan Judd cannot claim to have a perfect title,

which is a “requirement for  the sale of real estate.”

 

For so-called Ceded Lands,  being the Hawaiian Kingdom government and Crown lands,

the chain of title is  supposedly from the Hawaiian Kingdom government and Queen

Lili`uokalani to the  Provisional government, the Provisional government to the Republic

of Hawai`i, the Republic of  Hawai`i to the United States, the United States to the State of

Hawai`i. In this chain,  however, there are two missing links and not just one. On January

17, 1893, the Provisional  government seized control of the Government and Crown lands

without conveyance, but  through revolt, and after investigating the revolt, President

Cleveland reported to the  Congress on December 18, 1893 that the Provisional

government was neither  de facto  (a successful  revolution), nor de  jure (the lawful  

government), but  self-proclaimed (committing the crime of high treason). On November

13, 1893, U.S. Ambassador  Albert Willis began to negotiate with the Queen, on behalf of

President Cleveland, to  grant amnesty for these criminals and an agreement to restore the

Hawaiian Kingdom government  was concluded with the condition that the Queen grant

amnesty after the government  was restored.

 

The other missing link is  that there is no record of conveyance from the so-called

Republic of Hawai`i to the  United States when the Hawaiian Islands were supposedly

annexed in 1898. According  to the Merriam-Webster Dictionary, the term cede is “to

yield or give up by treaty.”  In order for countries to cede territory to the United States it

must be made by treaty, e.g.  Louisiana Purchase from France in 1803, or the Alaska

Purchase from Russia in  1867. For Hawai`i, there are two failed treaties of cession, the

first in 1893 and the other  in 1897, but the first was permanently withdrawn from the

Senate by Cleveland in March  of 1893, and the second was not able to be ratified by the

Senate because of protests  by the Queen and Hawaiian subjects. Instead, the United

States enacted a  Congressional joint resolution proclaiming that the Hawaiian Islands had  

been annexed. The joint  resolution of annexation is not a treaty or conveyance from the

so-called Republic of  Hawai`i. It is a unilateral declaration that was used to seize and

occupy the Hawaiian Islands  during the Spanish-American War. The United States today

could no more annex Iraq by  a joint resolution than it could annex the Hawaiian Islands

by joint resolution in 1898.  Congressional laws have no effect beyond the borders of the

United States.

 

If there is no record of a  deed from the Hawaiian Kingdom government and the Queen to

the Provisional government  transferring Government and Crown lands, there is a break in

the chain of title and  therefore the State of Hawai`i cannot claim to have a perfect title,  

which is a “requirement for  the sale of real estate.” As far as the term “Ceded lands,”

there is no such thing  because the Government and Crown lands were never “yielded or

given up by treaty” to the  United States in the first place. Confusing cession for

occupation is tantamount to  confusing adoption for kidnapping. This is not a case of

semantics, but ignorance of the legal  and political history of Hawai`i.


Lanny  Sinkin
P. O. Box 944
Hilo, Hawai’i 96721
(808) 936-4428
lanny.sinkin@gmail.com

Attorney at  Law
Ali’i Mana’o Nui by appointment of Ali’i Nui Mo’i Edmund Keli’i Silva,  Jr.


 

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