Reliance on apology concerns judges


POSTED: Thursday, February 26, 2009

Several U.S. Supreme Court justices suggested yesterday that they might overturn the Hawaii Supreme Court's decision prohibiting the sale of ceded lands and send the case back to the Hawaii court to decide the issue based solely on state law.

;[Preview]    Hawaii Attorney General Disagrees With OHA Ceded Land

Hawaii's attorney general is asking the high court to overturn a state court decision blocking the state from selling or transferring land that once belonged to the Hawaiian monarchy.

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But it was less clear whether the justices would go further and say native Hawaiians do not have any legal claims to the lands.

Kannon Shanmugam, an attorney for the Office of Hawaiian Affairs, said OHA would welcome a remand to the state's highest court because the Hawaii justices intended to rely on state law in issuing its order prohibiting the sale or transfer of the lands that once belonged to the Hawaiian kingdom.

State Attorney General Mark Bennett, who argued on behalf of Gov. Linda Lingle's administration that the justices should lift the Hawaii court's order, said he thought the justices were “;sympathetic”; to his position that the 1993 Apology Resolution passed by Congress did not require the state court to issue the ban.

“;I'm cautiously optimistic we're going to prevail in the case,”; he said.

Sherry Broder, an OHA attorney, declined to comment about which way the justices would rule or how they might stand on the issue based on yesterday's arguments.

But she said OHA had previously requested that the justices either throw out the state's request to overturn the high court's decision or send the case back to the high court for further proceedings.

A decision overturning the Hawaii court's opinion, though, would be at least a temporary setback for OHA, which wants the ceded lands left intact as a possible source for a settlement of native Hawaiian claims to the lands.

The nine-member U.S. Supreme Court held a one-hour hearing on the fate of ceded lands - about 1.2 million acres, or about 30 percent of the land in the state that was annexed to the United States in 1898 and transferred to the state upon statehood.

The justices adjourned without issuing a ruling, which is expected sometime before the end of June.

The state is asking the court to overturn last year's Hawaii Supreme Court decision that prohibits the state from selling or transferring the lands until a resolution of “;unrelinquished claims”; by native Hawaiians to the ceded lands.

The Hawaii court cited state laws but also said the Apology Resolution “;dictates”; that the ceded lands must be preserved until the resolution.

During the arguments, Ruth Bader Ginsburg, a justice thought to be sympathetic to the OHA cause, questioned the Hawaii court's reliance on the Apology Resolution, which removes the issue from “;the Hawaii political process.”;

“;Here the Hawaii Supreme Court insulates themselves by using the federal law as a crutch,”; she said.

Ginsburg was one of two who dissented to the Rice v. Cayetano 7-2 decision by the U.S. Supreme Court in 2000 striking down the native Hawaiians-only voting provisions for OHA trustees.

Despite contrary language in the Hawaii court's decision, Shanmugam tried to minimize the Hawaii court's reliance on the Apology Resolution and contended the Hawaii court relied on state law.

“;You would have no objection to an opinion that said no source of federal law gave rise to a duty under state law, fiduciary or otherwise; that any further proceedings on remand should be based solely on state law?”; Chief Justice John Roberts asked.

“;Well, I think that that is right in the sense that we certainly think that the Hawaii Supreme Court in the first place intended to rely on a state law of fiduciary duty,”; Shanmugam replied. “;And we should certainly have no problem with and indeed would welcome a remand.”;

Roberts noted, though, that any ruling based on state law would still have to be “;consistent”; with other federal laws.

Some justices, however, wondered if they could merely send back the case to the Hawaii court without declaring, as Bennett is asking, that the state has good, legal clear title to the ceded lands.

“;It seems prudent for us to confine our decision to the effect of the Apology Resolution and whether or not the Hawaiian Supreme Court got that part of that right,”; Justice Anthony Kennedy said.

But Justice Antonin Scalia, a leading conservative justice, suggested that even if the Hawaii court froze ceded-land sales and transfers based solely on state law, it would be a “;flat contradiction”; of federal law, and the issue should probably be addressed in a ruling by the justices.

William Jay, assistant solicitor general of the Justice Department, sided with the state and argued that federal laws “;make clear”; that the state has absolute fee title to the ceded lands and can sell those lands in accordance to purposes established by Congress.

After the hearing, OHA trustees expressed hope that the court would provide them with some vindication.

OHA Trustee Colette Machado said on the courthouse steps that the bottom line is fair compensation for the lands taken away from the Hawaiian kingdom.

“;We want justice to be done,”; Machado said, wiping away tears. “;We stand for our queen, who went home empty-handed, and from there the overthrow took place and she was imprisoned.”;

Native Hawaiians have been following the case closely, fearing that a ruling by the justices could undermine their claims to the lands and jeopardize native Hawaiian programs. A protest coinciding with the arguments drew about 200 to the state Capitol starting at about 4 a.m. yesterday.


The Associated Press contributed to this report.