The uproar among the Native Hawaiian community over the Lingle administration's position on ceded lands grows louder, even as former Gov. Ben Cayetano says that the state's position has not shifted since he was governor.

The 'Ilio'ulaokalani Coalition said it will hold a Dec. 26 rally at the state Capitol and Washington Place to protest the state's appeal to the U.S. Supreme Court seeking to overturn a Hawai'i Supreme Court ruling in January temporarily barring the state from transferring or selling ceded lands pending unresolved claims by Native Hawaiians.

The organization, made up of Native Hawaiian cultural practitioners and kumu hula, is directing its ire squarely at Gov. Linda Lingle.

"She's undermining the whole foundation of the independence or federal recognition (movement) by kicking the lands right out from under Native Hawaiians," said Vicky Holt Takamine, the coalition's president.

Ceded lands are the 1.2 million acres once owned by the Hawaiian government and subsequently taken over by the U.S. as a result of the 1898 annexation. Those lands were then passed to the state and designated for five purposes, including but not exclusively for, the betterment of Native Hawaiians. They make up a bulk of state-owned lands and 29 percent of the state's land mass.

The original lawsuit brought by four Native Hawaiians and the Office of Hawaiian Affairs in 1994 sought to temporarily halt the sale of about 1,500 acres in Lahaina and Kona to private interests to finance affordable-housing projects for moderate- and low-income families regardless of whether they have Hawaiian blood, until Hawaiian claims to the lands had been resolved.

A major reason for the contentiousness in the case is that the two sides are focused on separate yet related arguments.

The Lingle administration is fighting to re-establish its authority and exclusive right to control the ceded lands pie.

OHA and its supporters want to make sure that pie isn't cut up before claims they have are resolved.

What is angering Native Hawaiians is a legal brief filed by Bennett last week that states emphatically that while Native Hawaiians may have a "moral" claim to ceded lands, they have no legal claim to ownership.

Bennett's position is backed by Cayetano, who said yesterday that the state has always believed Native Hawaiians did not have a legal claim.

"I think Bennett did everybody a favor by really clarifying the legal from the moral," Cayetano said.

But Bill Meheula, attorney for the four plaintiffs, said that for Bennett to say there is no legal claim is inconsistent with the findings of the nation's 1993 Apology Resolution, which found that the overthrow was illegal and that "the indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States." The Hawai'i Supreme Court simply ruled that the state cannot sell ceded lands until those claims are resolved, he said.

The U.S. Supreme Court is scheduled to hear oral arguments on the case Feb. 25.

TITLE UNQUESTIONED

The state's argument is that the 1993 Apology Resolution passed by Congress and signed by former President Bill Clinton, while acknowledging the U.S. role in the overthrow, does not call into question the state's title to the ceded lands.

Not only did the Admission Act — which created the state — and other legislation establish the state's title to the lands, but "there are now no competing claimants to title that prevent the state from using and selling the ceded lands in accordance with the Admission Act, the Hawai'i Constitution and state statutes," Bennett said.

The state should be allowed as much flexibility as possible in managing the ceded lands to meet its mandate to the beneficiaries of the state — who are both Hawaiians and Native Hawaiians — as listed in the Admission Act, he said.

Bennett's position is supported by 29 states that filed a brief in support of his appeal to the U.S. Supreme Court.

Native Hawaiians may have a moral but not any legal claim to the ceded lands, Bennett said.

"Our position in court has always been these are not questions the court can adjudicate," Bennett said.

Such arguments should be made to the legislative branch, which is why the Lingle administration has supported federal recognition through the Akaka bill, which would create an entity that would represent Native Hawaiians in negotiating for its claims, Bennett said.

HAWAIIANS PUT AT RISK?

But Meheula, OHA and other Native Hawaiian interests said Bennett's argument flies in the face of its support for the Akaka bill and a settlement of how much Hawaiians should receive as its share of revenues derived from the ceded lands.

Meheula and OHA said the brief filed by Bennett indicates a switch in the state's position, citing the Newlands Resolution, an 1898 congressional act that led to Hawai'i's annexation.

Meheula said that for the state to now take the position that Native Hawaiians have a moral but not legal claim to ceded lands "makes a mockery of the Apology Resolution and the Akaka bill because (they) found that the overthrow was 'illegal.' "

OHA and his clients agree that the ceded land claims must be resolved through the political process, and all that's being sought by the lawsuit is an injunction on the sale of ceded lands until a resolution is complete, he said.

"The issue is, given the state Legislature's current commitment to reconciliation with Native Hawaiians, whether the state as trustee of the ceded lands will violate its fiduciary duties if it sells ceded lands before the Native Hawaiian claim is resolved," Meheula said. The Hawai'i Supreme Court believed it would, he said.

OHA attorney Sherry Broder said the state's position "puts Native Hawaiians at great risk."

The Apology Resolution clearly states that the overthrow was illegal and that the land was taken without consent or compensation, Broder said.

"That means something," she said. "To us, it forms the basis of information that is useful to the state of Hawai'i in determining its conduct and how to behave as a trustee in relationship to those lands."

That's especially important at a time when Native Hawaiians have made inroads toward reconciliation and are seeking federal recognition in Congress through the Akaka bill, Broder said. "Even the Department of Interior established an office of Native Hawaiian Affairs," she said.

By taking a strong position against Native Hawaiian claims, "it seems that the purpose of this appeal is to try to create a situation where Hawaiians come to the negotiating table with nothing if the argument is their claims are totally extinguished."

Broder said OHA and Meheula's clients never asked the courts to decide ownership of the ceded lands.

"All we asked for was just that the public lands from the Native Hawaiian kingdom not be sold during this process of reconciliation," she said.

Bennett, however, said it was the plaintiffs who first raised the issue of title by bringing the lawsuit in the first place.

DIFFERING VIEWS

Cayetano said he agrees with Bennett. "Looking at it from the Western law point of view, the state owns the land and any claims the Hawaiians have is a moral claim," he said.

"I don't think there's any question in my mind that most people in Hawai'i think that there should be some recompense for what happened," he said.

But the same could be said for what happened as a result of the American Revolution, he said.

H. William Burgess, an attorney who has challenged Hawaiians-only programs and benefits, said he does not believe the administration has changed its position.

"They've always walked a tightrope trying very much to curry favor with the Native Hawaiians but also trying not to, not too obviously, abandon the highest principles of the democracy of the United States," he said.

"The governor and the attorney general are just doing everything possible to buy the support of the Hawaiians," he said, pointing to the administration's attempt to settle a dispute over how much OHA should receive from the proceeds derived from the use of ceded lands as well its support of the Akaka bill.

Bennett said the state's position is not contrary to either the Apology Resolution or the Akaka bill. Those two documents "contemplate negotiations between the state, the United States and a Native Hawaiian governing entity," he said. "Neither contemplates a lawsuit that says the state's title to its land is bad or clouded."

OHA trustee Rowena Akana said it is "preposterous" that the administration could say Hawaiians have only a moral claim to the ceded lands.

"The governor knows that the state has been financed on the backs of Hawaiians since its inception," Akana said. "To take a position now that we do not have a legal claim to ceded lands is a slap in the face for all of us who have supported her for the past six years."