The state of Hawai'i has the legal right to determine the proper use of its lands. That is the core of this case, not whether it should transfer or sell lands. The state's appeal to the U.S. Supreme Court seeks to preserve the state's right to determine — on behalf of all its citizens — how ceded lands should be used.

In the mid-1980s, a critical lack of affordable housing on the Neighbor Islands prompted former Gov. John Waihee to propose the development and sale of state land near Lahaina and Kona for affordable housing.

This was consistent with the 1959 State Admission Act, which transferred 1.2 million acres of land from the United States to the state for the benefit of all the people of Hawai'i. These lands comprise 29 percent of the total land area of the state and almost all of the lands owned by the state.

The Admission Act and the Hawai'i Constitution both explicitly allow for the sale and transfer of ceded lands and allow them to be used for, among other things, "the development of farm and home ownership on as widespread a basis as possible." That is, of course, the very purpose for which Waihee initiated these projects.

In the 1990s, the Hawai'i Legislature adopted laws in support of the projects, appropriated money, and even determined that the state would pay the Office of Hawaiian Affairs 20 percent of the fair market value of any lands transferred — more than $5 million for the Lahaina project. Notwithstanding these facts, OHA and several individuals sued the state in 1994 to stop the sale of the lands for affordable housing and to stop all other transfers of ceded lands.

OHA and the other plaintiffs claimed that a federal law — the 1993 Apology Resolution — "forever marred" the state's title to its lands, and that the resolution required the state to stop the planned affordable housing projects and prohibited the state from transferring any ceded lands. OHA and the other plaintiffs also claimed that "the state of Hawai'i does not have good, marketable title to the ceded lands."

RESOLUTION CONFUSION

Throughout the almost 15 years this case has been litigated, OHA has misinterpreted the Apology Resolution, because nothing in the resolution explicitly or implicitly extinguished the state's ownership of or rights over the lands granted Hawai'i by Congress in 1959. The resolution itself even stated that Congress had vested the title to the lands in the United States before the United States transferred that title to our state.

The state's major physical asset is our lands. Many of our airports and our harbors were built on these lands. So too was much of the University of Hawai'i, many of our public schools, affordable housing projects, and other buildings. Almost all of our parks and natural area reserves are on these lands. The assertion that the state does not own these lands struck at the heart of our state, whose lands, we believe, are owned by the state for the benefit of all of Hawai'i's people.

The administration of Gov. Benjamin Cayetano vigorously fought OHA's lawsuit. Both the Lingle and the Cayetano administrations took the position that the state does own the ceded lands for the benefit of all the people of Hawai'i, and that the state has the right to transfer land to promote affordable housing.

The state Circuit Court ruled in the state's favor in 2002, after eight years of litigation that had postponed the affordable homes that the Waihee administration had planned.

OHA and the other plaintiffs appealed in 2003, and in January 2008, the Hawai'i Supreme Court decided in their favor. The court ruled that the 1993 Apology Resolution changed the legal landscape, that Congress had recognized — via the Apology Resolution — claims of Native Hawaiians to the state's lands, and that the Apology Resolution "dictates" that the state be stopped from selling or transferring any of the lands "until the claims of the (N)ative Hawaiians to the ceded lands have been resolved." How and when these claims would, in the court's view, be resolved is completely unclear. The very broad ruling prohibited sales or exchanges no matter how important or critical to the state the need or purpose might be.

OWNERSHIP QUESTIONED

This was a devastating ruling for all the people of Hawai'i, as it calls into question the state's ownership of its lands. If this ruling stands, Hawai'i's lands will be worth much less to the state. Also, it will be more expensive for the state to sell bonds to pay for school and other public projects, and it will interfere with the state's ability to use its lands for the benefit of all of Hawai'i's people.

We appealed to the U.S. Supreme Court for two basic reasons: First, we believe the Hawai'i Supreme Court was fundamentally wrong and misconstrued the Apology Resolution; and second, we believe the potential consequences of the decision are extremely harmful to our state.

The U.S. government and 32 other states filed briefs supporting our position that the lands belong to the state of Hawai'i, and that Congress did not strip land rights from the state when it passed the Apology Resolution. Just last week, the Obama administration's acting solicitor general asked the U.S. Supreme Court for permission to argue beside Hawai'i, also asking that the decision of the Hawai'i Supreme Court be reversed.

We believe preserving the state's legal rights to its lands is crucially important for all Hawai'i's citizens, now and in future generations. This does not in any way foreclose the reconciliation process with Native Hawaiians long under way through the legislative and executive branches of government — a reconciliation we support.

Mark Bennett is the state attorney general. He wrote this commentary for The Advertiser.

Reach Mark Bennett at (Unknown address).