In two days, the U.S. Supreme Court will hear a case to determine whether the state can sell any of the 1.2 million acres once owned by the Hawaiian monarchy.

The land at issue is nearly all the property owned by the state government, an estimated 29 percent of all the land area in Hawai'i.

Both the Lingle administration and the state Office of Hawaiian Affairs, the two opposing sides, say the ramifications of losing the case could be enormous.

The Lingle administration wants the court to affirm the executive branch's authority over the land. Attorney General Mark Bennett said the Hawai'i Su-preme Court's January 2008 decision cast a legal cloud over state ownership to the property, making the case a sovereign rights issue for the state. The attorneys for 29 other states and the U.S. Solicitor General's Office have weighed in on Bennett's side.

But OHA and its supporters say because Native Hawaiians have unresolved claims to those lands, the Hawai'i court was proper in barring the administration from selling any portions of them until those claims are addressed in a legislative setting. What worries OHA and other Native Hawaiian advocates even more is the possibility that the case could lead justices to consider whether Hawaiians-only programs and funding should exist at all.

Supporters of such programs and funding say they are constitutional, arguing that there is a special political relationship between the U.S. and Native Hawaiians, but are nonetheless concerned about the high court debating the difference between that political relationship and a race-based policy.

1.2 MILLION ACRES

At the heart of the case are 1.2 million acres of what were the crown and government lands owned by the Hawaiian monarchy at the time of the 1893 overthrow. The use of the word "ceded" itself is debated and refers to the fact that the short-lived Republic of Hawai'i "ceded" the lands to the United States as part of the 1898 annexation.

In all, 1.8 million acres were ceded — 400,000 was kept by the U.S. government while 200,000 is now part of the state Department of Hawaiian Home Lands inventory.

The 1959 Admission Act conveyed the 1.2 million acres to the new state in trust to be used for five purposes — one of which is "the betterment of the conditions of native Hawaiians."

The current lawsuit was filed in 1994 by OHA and four Native Hawaiian individuals seeking to stop the sale of ceded lands to developers for two state-sponsored affordable housing projects begun by former Gov. John Waihee. Creating housing opportunities for Hawai'i residents is also among the five purposes listed by the Admission Act.

The key document cited in the lawsuit by OHA and the four individuals was the Apology Resolution adopted by Congress and President Clinton in 1993. The resolution acknowledged and apologized for the U.S. role in the overthrow and expressed support for "reconciliation between the United States and the Native Hawaiian people."

The key issue before the U.S. Supreme Court this week is whether the Apology Resolution, along with subsequent state legislation, can bar the state from selling ceded lands until that reconciliation occurs.

Former Gov. Ben Cayetano, who directly preceded Linda Lingle, says Attorney General Bennett is doing the right thing. Waihee, whom Cayetano replaced as governor, said Bennett should not proceed with the case.

The two men, both lawyers, are uniquely qualified to discuss the case. It was Waihee who initiated the housing projects in question. Cayetano's administration was tasked with defending that he had the right to sell the lands.

'I MAKE NO APOLOGY'

Waihee points out that one of the five purposes spelled out in the Admission Act was the promotion of home ownership, and that he still believes the Leiali'i project in West Maui was a worthwhile project. "I make no apology for it," he said.

Waihee said what bothers him is that the Lingle administration has chosen to take the fight outside the state when the Hawai'i Supreme Court had already ruled.

"The question about whether the state has the right to sell ceded lands is one issue," Waihee said. "The second is whether or not we should be appealing the Hawai'i Supreme Court decision to the United States Supreme Court."

Hawai'i's ceded lands are a matter that should be dealt with in Hawai'i, he said.

The Lingle administration is only one branch of state government — the Legislature and the judiciary being the others, Waihee said.

"Even with the (state Supreme Court) decision, the state could still sell ceded lands. What the decision was was that the governor or executive branch couldn't," Waihee said. "What is happening here is the executive branch is taking an issue to the federal court to override the state."

The fear he, OHA and other Native Hawaiian interests have is that because Bennett will argue that Native Hawaiians have no legal claim to the land, the justices could decide to take up the larger issue of whether OHA, as well as other Hawaiians-only programs and funds, are valid, Waihee said.

"What you could end up with, in a worst-case scenario, is no Hawaiian entitlements at all," Waihee said. "Do you really want to ask this court, the Bush Supreme Court, a question that could result in the stripping of 100 years of precedence in the state of Hawai'i, and what are the policy consequences of doing that?"

There is no compelling reason for the appeal to the U.S. Supreme Court, Waihee said, since the administration can still transfer lands interagency and even lease lands until Native Hawaiian claims are resolved.

In fact, the Leiali'i project was transferred to the state Department of Hawaiian Home Lands, and 104 single-family affordable housing units were dedicated in 2007.

Meanwhile, the Lingle administration has maintained a self-imposed moratorium on the sale of ceded lands pending the lawsuit and has stated it has no plans to sell any even if it does win the lawsuit.

"I cannot see what they are appealing it for unless it is to divest Native Hawaiians of their claims," Waihee said.

"I think from a broader perspective, (the Lingle administration) is playing with fire, and the whole house could burn."

Bennett, in response to the concerns, said it is "highly unlikely" that the court will look into the larger issue of whether Native Hawaiian programs are a violation of the 14th Amendment regarding equal protection.

"Equal protection was never raised by any of the parties," Bennett said. What's more, he added, the justices have shied away from the issue in the past.

"We believe that while there may be some questions about it, we think it is very unlikely that the opinion of the court will take this question up."

STATE SOVEREIGNTY

For Cayetano, it's important that the Lingle administration defend the fundamental right to decide what's best for its land base, adding that he would have appealed to the U.S. Supreme Court as well if he were still governor.

"The issue here goes to the state's sovereignty," Cayetano said. "The state has to maintain its sovereign powers; that's a very compelling interest."

Unlike Waihee, Cayetano says that the U.S. Supreme Court should be the final arbiter in the dispute "because that's the process. When you have the state try to exercise a power and somebody sues and the state court upholds the other side, the state has a duty to go forward to protect the power it has — its sovereign rights."

Cayetano said he supports the bill moving through the Legislature that would require two-thirds approval of both houses of the Legislature before a sale of ceded lands can be made.

As for the concern raised that the larger issue of Hawaiian entitlements could be in danger, Cayetano said that he believes the U.S. Supreme Court's 2000 decision in the Rice v. Cayetano case actually provides validation for OHA and its programs.

The court ruled there that allowing only Native Hawaiians to vote in OHA elections was a violation of the 15th Amendment, which prohibits race-based elections.

Because the decision required that OHA elections be opened to all Hawai'i voters, regardless of their race, it firmed up OHA's case to exist constitutionally by allowing everyone to have a say in its policies via the voting booth, he said.

"Rice, in fact, ironically, has made OHA stronger in terms of the constitution," Cayetano said.

Echoing Bennett's comments, Cayetano said the Rice decision deliberately did not address the concerns raised in the lawsuit regarding Hawaiians-only programs and the 14th Amendment that requires equal rights.

"I frankly don't see the court taking that leap," Cayetano said. "It's not even an issue in this particular amendment. And if the court didn't raise the issue of the 14th Amendment question in Rice ... it's not going to raise the 14th Amendment in this case."

He added: "I'm not Lingle's greatest cheerleader, but I think what they're doing is the right thing. I don't see this as dismantling Hawaiian programs. The guys who argue that have extended that argument almost to absurdity, if you ask me."

Cayetano said if the Lingle administration wins its appeal, "I think the only thing that will happen is that the state maintains its power to alienate or transfer land. That's the only issue I see. How can it dismantle Hawaiian programs? I just don't see it."

Despite such assurances, however, the case has managed to unify nearly the entire spectrum of Native Hawaiian interests against the appeal, from the usually reserved Royal Order of Kamehameha I to Bumpy Kanahele's Nation of Hawai'i. The Kupu'aina Coalition, made up largely of University of Hawai'i law and Hawaiian studies students, has even formed.

Native Hawaiian leaders are bothered that the possibility exists and want Lingle to stop Bennett's appeal.

Gatherings are planned for Wednesday — the day the U.S. Supreme Court will hear oral arguments in the case — not just in Hawai'i but across Mainland cities to protest the appeal and to bring attention to the case.

"This state appeal has the potential to undermine all Native Hawaiian programs and assets as well as undermine the legal basis for Native Hawaiian federal recognition," OHA Chairwoman Haunani Apoliona said Friday on the grounds of 'Iolani Palace. "A far-reaching decision by the U.S. Supreme Court could affect OHA's ability to carry out its mission of bettering the conditions of Native Hawaiians."