An Alternative View in the Ceded Lands Debate

In October of 2008, the U.S. Supreme Court held that the Apology Resolution does not bar the sale of ceded lands (i.e., lands formerly owned by Hawaii's monarchs). See U.S. Supreme Court Holds that Apology Resolution Does not Bar Sale of Ceded Lands.

Such a case allows armchair judges to flex their intellectual muscles, ergo, Professor Jon Van Dyke's book entitled, Who Owns the Crown Lands of Hawai'i?, released in 2008. I recently came across a well thought critique of Professor Van Dyke's book by Paul M. Sullivan, Esq., entitled, A Very Durable Myth: A Critical Commentary on Jon Van Dyke's Who Owns the Crown Lands of Hawai'i?, 31 U. Haw. L. Rev. 341 (2008).

Sullivan's primary critique is that Professor Van Dyke's book presents the ceded lands issue as a legal question, "Who Owns the Crown Lands of Hawai'i?" However, what Professor Van Dyke is really doing is advocating for, in Sullivan's words, "Who should own Hawai'i's Crown Lands?" Sullivan's critique is summarized by the following excerpt:

[W]hile the book speaks much of law and history, it advocates a political change. One might grumble that it lacks the rigorous discipline and balance of a legal treatise or a work of historical scholarship, but that is not the book's purpose, and its real shortcoming is not that it is unscholarly, but that its advocacy does not withstand probing examination. What the book proposes is a giveaway of state and federal public property in a race-conscious manner in order to radically change a 160 year old race-neutral land reform program with which the United States had nothing to do, conducted by a foreign government-the Kingdom of Hawai'i-pursuant to its own validly-enacted laws, which achieved very legitimate objectives for the kingdom and its populace largely through the benevolent supervision of a visionary monarch. Professor Van Dyke's book simply does not show that either the federal government or the State of Hawai'i has any reason or any authority to pursue such an endeavor.

The book does show that there was some unfairness in the kingdom's original division of its lands, but this unfairness consisted for the most part of individual acts of misfeasance, fraud or favoritism, both by native leaders and some immigrants, contrary to the law of the kingdom, toward individual claimants or groups of claimants and had nothing to do with the racial background or ancestry of any of the participants or any action or inaction by the United States. It also shows that nearly all of the lands distributed in the original partition went into native hands (noble or commoner), and while a significant part eventually found its way thence, over time, into the hands of American and European immigrants, a great part of the most valuable of lands of the kingdom remains under Native Hawaiian control today. Ironically, it even shows that contrary to the book's own thesis, Native Hawaiians do not have and never had any valid claim to the Crown Lands or other ceded lands, before or after the termination of the monarchy in 1893.

Sullivan's critique is concise, to the point, and a welcome addition to the debate.

See Ceded Lands for more on this topic.