For background, I did first year law in chancery court time in Florida when any flaw in pleadings was fatal to your case.

So, here’s my Thinking Things Hawaiian brief:

This Hawaiian ceded lands case, which has the state of Hawaii and the state Office of Hawaiian Affairs fighting over land rights to Hawaiian crown lands, has emotional and political overtones that can - and do - impact court decisions. Courts are not immune to social overtones — think integration, cross-color marriage, homosexual activity or adultery in your house. Once no-nos.

How much emotional and political overtone vibrates with the Supreme Court of the United States(SCOTUS) if ceded lands should go there a second time if our state justices should again deny state control based strictly on state law and not the Apology Resolution?

I read: not much. In fact, it might trigger the decision the Office of Hawaiian Affairs dreads — whether we can designate benefits for Hawaiians that are not available for all citizens of Hawaii.

The political and emotional trend here is for some negotiation on Hawaiian issues, including use of that land ceded to all of us in Hawaii upon statehood.

We want to think we’re compassionate about bad things that happened to indigenous people many-years-ago. That’s good, but is it legally right to exclude non-Hawaiians?

Probably not, strictly interpreted, because the U.S. never recognized Hawaiians under any tribal treaty as special. They just became part of America in 1959.

That’s our law, and some argue it runs against international norms established in modern times by the U.N. Generally, our traditional law trumps other law, except where our Congress has a treaty to say otherwise. If I were to argue this case for the state, I’d stick with our constitution. Fixing an alleged flawed annexation isn’t what the high court justices will entertain. I find it silly and non-scholarly when Lilikala Kameeleihiwa of the University of Hawaii’s Hawaiian Studies Center says Hawaiians were “born from the union of Papahanaumoku and Wakea, earth mother and sky father, and have lived in these islands for over 100 generations, and will always have the moral right to the lands of Hawaii now and forever, no matter what any court says.”

That is like a westerner saying all our babies came from storks for 100 centuries and so we have a special duty to preserve storks. Papahanaumoku and Wakea? That won’t go far at SCOTUS. Her other argument: “To deny us the right to our ancestral land, especially the so-called ceded or stolen lands, is to perpetuate cultural genocide upon the Hawaiian people.”

Bad scholarship and won’t fly in court.

Genocide? Who’s been intentionally killed? Also, we have very few non-mixed Hawaiians today, almost none practicing total subsistence farming or fishing.

Much of the revenue from ceded lands does go to the Office of Hawaiian Affairs, a state agency that can be argued before SCOTUS already contravenes existing decisions on racial discrimination.

So if I were Office of Hawaiian Affairs attorney Sherry Broder, I’d advise: “Let’s hang this one up because the state isn’t looking at ceded land sales anyway, and we could end up prodding Supreme Court of the United States into scuttling OHA.”

Bob Jones is a MidWeek columnist. Reach him at mailto:BanyanHouse@hula.net

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