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.
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.
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
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.
P. O. Box 944
Hilo, Hawai’i 96721
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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