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State and OHA spar before U.S. Supreme Court


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POSTED: Wednesday, February 25, 2009

WASHINGTON >> A congressional resolution apologizing for the overthrow of the Kingdom of Hawaii in 1893 does not strip the state of its authority to sell or transfer any of about 1.2 million acres of land, Hawaii Attorney General Mark Bennett told the U.S. Supreme Court today.

Bennett and Kannon K. Shanmugam, representing the state’s Office of Hawaiian Affairs, argued against each other in the state’s appeal of a Hawaii state Supreme Court ruling blocking any sale of land conveyed to the state as part of the 1959 act that led to Hawaii becoming the 50th state.

After years of legal wrangling, the state court last year halted sales of the “ceded lands” until Native Hawaiian claims to those lands are put to rest.

The state court’s decision, rested in part on a joint congressional resolution acknowledging and apologizing for the role that the United States played in the overthrow of the Kingdom of Hawaii on Jan. 17th, 1893.

Bennett stressed two points. First, the resolution marking the 100th anniversary of the overthrow was an apology that did not change who had proper title to the lands in question.

“;It was, as the sponsor said at the time, a simple apology, and no more,” Bennett said.

But he also urged the court to go a step further and confirm the state’s sovereign authority over the land. Several justices voiced a reluctance to do so.

“Why is it necessary? Why isn’t it sufficient just to say that this resolution has no substantive effect, period,” asked Justice Ruth Bader Ginsburg.

The Office of Hawaiian Affairs sued the state to prevent it from selling some of the property in question. Speaking for the office, Shanmugam discounted the apology resolution’s effect on the state court’s decision. He said that state law created the fiduciary duty ensuring that interests of native Hawaiians were properly addressed.

The state court made clear that it was relying on the apology resolution only for the acknowledgment that native Hawaiians had unresolved claims, he said.

Ginsburg didn’t seem to agree though.

She said the Hawaii Supreme Court stated that its decision was “dictated by” the apology resolution. Those representing native Hawaiians in the legal battle were “treating it now as sort of window dressing, icing on the cake, really didn’t matter.”

Shanmugam replied it was more than window dressing. The resolution confirmed the factual predicate that lands were illegally taken away. But he said the original lawsuit only focused on state law.

Ginsburg said she was concerned that the state court used the federal law as its basis for its decision, and that it used the federal law as a crutch. “What that does is it removes it from the Hawaii political process.”

Some legal analysts say a ruling against the state of Hawaii could set a precedent for other native populations to make claims to lands they once inhabited. A decision in the case is not expected until June.