Federal Government suppots State in Ceded Lands Dispute

[harry]

Federal Goverment Backs State In SCOTUS 'Ceded Lands' Case

Ceded Land Case Series
By Robert Thomas, 2/26/2009 12:37:22 PM

Editor's note: Hawaii Attorney General Mark Bennett argued for the State yesterday before the U.S. Supreme Court in the ceded lands case and the U.S. Solicitor General under the Obama administration used 10 minutes of Bennett's 30-minute presentation to endorse the state's position. The transcript of yesterday's oral arguments in the "ceded lands" case is posted here:

http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-1372.pdf


What Issues Are Presented?

Assistant to the Solicitor General William Jay argued for the Obama Administration as amicus curiae, supporting the state's position. His initial argument -- that "three federal laws" (the Newlands Resolution, the Organic Act, and the Admission Act) make it clear that the State of Hawaii has absolute fee simple title to the ceded lands -- was immediately challenged by the Chief Justice as perhaps being beyond the the Question Presented (whether the Apology Resolution had any substantive legal effect). Jay responded that the other issues have been in the case since the start, and were considered by the Hawaii Supreme Court. The Question Presented also posed the issue of the impact on the state's sovereign authority to control the ceded lands. Justice Alito voiced some skepticism:


JUSTICE ALITO: Well, I don't see where this law -- where those laws get us. The -- the argument that is made on the other side is that the Native Hawaiians have a moral claim to these lands, not that they have a property-right claim to the lands.


And if the State of Hawaii, acting through any branch of its government -- and that is not a matter of concern to us -- says they have a moral claim to the land and, therefore, there should not be any land transfers for some period of time, what's inconsistent with Federal law in their doing that?

Tr. at 19-20.


Moral Obligation?

Justice Scalia addressed the "moral obligation" that OHA has been urging as a basis for its claims to the ceded lands:

JUSTICE SCALIA: Is -- is it the function of the Hawaiian Supreme Court to declare moral obligations?

MR. JAY: Well, Justice --

JUSTICE SCALIA: Would there be any problem -- certainly there is noted the legislature deems there to be a moral obligation and gives the land away on that basis. But do you -- do you think there -- there might be some democracy problem if -- if the Supreme Court of Hawaii goes around pronouncing moral obligations and --and giving away land on that basis?

MR. JAY: Well, Justice Scalia I guess the second half to my answer to Justice Alito as well, which is that the State supreme court is not free as a matter of State trust law or otherwise to formulate obligations that don't relate to the State's obligation as trustee of the Federal trust --

Tr. at 20-21.


From Where Do Native Hawaiians Claims Originate?

Responding to Justice Stevens' question about whether the state is free to dictate the duties of a trustee, Jay noted that the state "must comply with the limitations set out in section 5(f) of the Admissions Act," and while the state has broad discretion on how to allocate lands, neither the state legislature nor a state court can "rely on considerations that are all together outside the trust." Tr. at 21.

Jay argued that the state could enact a moratorium, but it would have to be based on the 5(f) trust and Native Hawaiians' status as one of the beneficiaries of the trust, and not as a property claim that they -- and not the state -- has title. In other words, any Native Hawaiian rights regarding the ceded lands come from section 5(f) of the Admission Act.

Justice Souter pointed out his view "that doesn't seem to be what the Supreme Court of Hawaii has done. The Supreme Court of Hawaii, in effect, has said the land is tied up until these people who are currently negotiating, the State, the Native Hawaiians and -- what is it, the United Church of Christ, all come to a -- in effect, a resolution and reconciliation." Tr. at 24.


What Did The Hawaii Supreme Court Rely On?

The Justices then returned to the question of whether the Hawaii Supreme Court based its decision on the Apology Resolution, or on state law:

MR. JAY: Well, I wholly agree, Justice Souter, that the State supreme court thought that the Apology Resolution had significance and that the Apology Resolution --

JUSTICE GINSBURG: More than significance. I am reading the sentence that immediately follows the one that General Bennett brought to our attention on page 85A. It says, "Accordingly, the Apology Resolution dictates that the ceded lands should be preserved pending a reconciliation between the United States and the Native Hawaiian people."

It is very fear language, dictates. And that's why I am really puzzled as how this Court has any business wading into any question other than telling the Hawaii Supreme Court either their right about what the resolution dictates or they are wrong, and they are wrong because it's a nice apology but it's without substantive effect.

MR. JAY: Well, I certainly agree, Justice Ginsburg, that the State supreme court thought the Apology Resolution dictated the entry of the injunction, and the -- also on page 85A the State supreme court says that the Apology Resolution gives rises to the -- to a fiduciary duty to Native Hawaiians.

And it is -- it is that principle that the State supreme court was able to find a fiduciary duty and impose it on the State's trusteeship obligation, even though that fiduciary duty arises outside the section 5(f) trust. And that is why we think that the scope of the State -- of the State's obligation as trustee is within the Court's review at this stage.

Tr. at 26-27.

The merits and amici briefs in the case, and links to media reports and commentary, are posted on our ceded lands page here http://www.inversecondemnation.com/inversecondemnation/cededlands.html


Also See related stories and documents in Hawaii Reporter:

"'Heavy Hitters' Battle in the Nation's Supreme Court Over Rights to Hawaiian Ceded Lands"

"Hawaii Ceded Lands Case: U.S. Supreme Courts Grants Cert Review"

The amicus brief filed by the Pacific Legal Foundation in the case is posted here: http://www.inversecondemnation.com/inversecondemnation/2008/04/cert-petition-2.html

The State's petition is posted here: http://www.inversecondemnation.com/inversecondemnation/2008/04/cert-petition-2.html

The Office of Hawaiian Affairs' Brief in Opposition: http://www.inversecondemnation.com/inversecondemnation/2008/07/brief-in-opposition-in-ceded-lands-cert-petition.html

The brief of 29 states supporting Hawaii is here, and the amicus brief of the New Mexico Commissioner of Public Lands supporting cert is here: http://www.inversecondemnation.com/inversecondemnation/2008/06/another-amicus-brief-supporting-cert-in-ceded-lands-case.html

The Supreme Court's case docket is here: http://www.supremecourtus.gov/docket/07-1372.htm

Robert Thomas is the Hawaii representative for the Pacific Legal Foundation. He helped author an amicus brief supporting the State's arguments. Reach him at mailto:rht@hawaiilawyer.com

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