On Jan. 31, 2008, the Hawai'i Supreme Court enjoined the state from selling ceded lands held in trust until the ongoing reconciliation process between the state, federal government and Native Hawaiians is completed. The Lingle administration has appealed the decision to the United States Supreme Court. This is the first time that the state of Hawai'i will be arguing before the U.S. Supreme Court against a decision of its own Supreme Court on Native Hawaiian matters.

Although this lawsuit was originally filed in 1994 against my administration, I believe that the Lingle administration's appeal, from a public policy perspective, is ill advised.

First, appealing our own Supreme Court's decision in a dispute over laws unique to Hawai'i undercuts our state's sovereignty.

As a sovereign American state, Hawai'i is free to conduct its own internal affairs so long as it does not violate the U.S. Constitution. The interest of Native Hawaiians in the state's trust lands is a circumstance unique to Hawai'i that evolved from our distinctive history.

Essentially, this case was a dispute between two state entities trying to carry out their mandated duties and was ultimately decided by our own Supreme Court's interpreting and enforcing laws unique to Hawai'i.

Nonetheless, the Lingle administration asserts this appeal is justified because our Supreme Court's interpretation of federal law, primarily the 1993 Congressional Apology Resolution, is mistaken, and, therefore, the court improperly restricted the governor's power to sell ceded lands. Actually, the court's decision was based on Hawai'i trust law. However, even assuming the administration is correct, how does that make this controversy anything more than a local dispute?

Our Supreme Court interpreting federal law dealing with a subject unique to Hawai'i in a manner consistent with Hawai'i law is not undermining our sovereignty; it is exercising it. What does undermine our sovereignty is inviting the U.S. Supreme Court to overrule the Hawai'i Supreme Court's interpretation. The policy question here is not whether the state has the power to sell ceded lands but whether the U.S. Supreme Court should decide that issue for the people of Hawai'i.

Second, our Supreme Court's decision does not benefit Native Hawaiians at the expense of the general public.

The Lingle administration contends that forbidding the sale of trust lands negatively impacts the state's ability to sell bonds and also clouds land titles. These are serious concerns, but what is the reality?

Native Hawaiians' unrelinquished interests and claims to income from the public land trust have been disclosed in state bond offerings from before my tenure in office. Notwithstanding these disclosures, the state has consistently enjoyed high bond ratings, the prime factor influencing the marketability of our bonds. Indeed, the state recently completed a successful sale of $227.8 million in general obligation bonds, receiving ratings of Aa2, AA and AA respectively from the top three bond-rating agencies.

Since this case was filed more than a decade ago, the state has voluntarily refrained from selling ceded lands. This voluntary moratorium has not negatively affected the state's economy or bond ratings. Moreover, the current injunction actually allows the state to transfer small remnants, and issue licenses, permits, easements and leases on the ceded lands. Native Hawaiian issues have been affecting land titles in Hawai'i for a long time. It is difficult to fathom how barring the sale of ceded lands adds anything new to the situation. If anything, the opposite should be true.

Third, this appeal has the potential of divesting Native Hawaiians of their un-relinquished interest in the ceded lands trust. This should be of grave concern to all the people of Hawai'i.

In her State of the State address, Gov. Linda Lingle declared that this appeal is not about the original issue in the litigation, the sale of ceded lands. Instead, it is about clearing title to those lands. This is troubling.

Until this appeal, the unrelinquished interest of Native Hawaiians was recognized as a "real" interest in the state's trust lands. This appeal refers to that interest as a "moral claim." What is insidious about this characterization is that it implies some kind of future restitution for past actions. The Native Hawaiian interest is not a debt that needs to be repaid; it is a vital piece of Native Hawaiian sovereignty that has never been relinquished. This distinction is important because Native Hawaiian entitlements are the result of political status and not social obligation.

Furthermore, the issue of title to Hawai'i's trust lands was not addressed by the Hawai'i Supreme Court in this case. Yet, the administration has decided to pursue that issue in this appeal. Shouldn't the court most knowledgeable about Native Hawaiian affairs — the Hawai'i Supreme Court — be the first forum to decide the issue? Instead, it is being raised before the Bush Supreme Court, the court that has been least favorable to Native Hawaiian interests.

What the U.S. Supreme Court will do is anyone's guess, but it could decide to go beyond the original dispute, especially since the administration has made land title an issue. The court could hold that Native Hawaiians do not have a legal interest in our trust lands, and then Native Hawaiian interests would indeed be merely a "moral obligation."

I confess that as a Native Hawaiian, I am very concerned about the Lingle administration's appeal and the direction it has taken. If our kupuna have drilled anything into us, it is that we must protect what little interest we have in these lands, the legacy of our ali'i. For many of us, even if the odds were a million to one that Native Hawaiians might lose their unrelinquished interest in Hawai'i's trust lands, that risk would be too great.

Finally, as a former governor, I am surprised that the Lingle administration, which has staunchly defended Native Hawaiian rights, would take such an appeal and for such an incendiary purpose. I urge Gov. Lingle, whom I respect, and all the good people who advise her, to reconsider the public policy consequences of this appeal and withdraw it. When there is so little to gain, why risk potentially introducing into our island society the most divisive controversy since Hawai'i's trust lands were originally stolen from the Hawaiian Kingdom?

John Waihee was governor of Hawai'i from 1986 to 1994. He wrote this commentary for The Advertiser.

Reach John Waihee at (Unknown address).