Hawaii Supreme Court ruling tampers with federalism

THE ISSUE Twenty-nine state attorneys general support Hawaii's appeal of a decision that froze the sale or transfer of the state's ceded land.

NO other state has former royal lands that were ceded to it, but 29 state attorneys general have joined Hawaii Attorney General Mark Bennett to ask the U.S. Supreme Court to overturn a ruling that blocks the sale or transfer of ceded land. They understand that failure to do so would set a dangerous precedent infringing on states' rights protected under federalist principles.

Ceded lands amount to 1.2 million acres, encompassing nearly all state-owned lands. Hawaii's Supreme Court ruled in January that a 1993 joint resolution by Congress apologizing for the overthrow of the monarchy a century earlier requires that ceded lands be "preserved" until "a proper foundation for reconciliation between the United States and the native Hawaiian people" is achieved.

The Apology Resolution does not exactly say that, but that was the state high court's interpretation. The resolution does say that Hawaiians never "directly relinquished their claims" to the land, implying that the state is de facto custodian of the lands.

A brief by the 29 state lawyers, prepared by Washington Attorney General Rob McKenna, asserts that Congress meant the resolution to be "a symbolic apology" and nothing more. If that had been the intent, Congress would have tailored it as a concurrent resolution. A joint resolution, which is what the Apology Resolution was, has the same force as a bill enacted by Congress and signed into law by the president. In this case, then-President Bill Clinton provided his signature.

"A state's ability to survive as a sovereign state is seriously undermined if the title to its lands can be singled out and impaired by the federal government," McKenna wrote. Indeed, the Admission Act granted the state "title" to the ceded lands, albeit with the conditions that the land or income from it be used for one of five purposes, including "betterment of conditions for native Hawaiians."

On that basis, the state turns over 20 percent of profits from ceded land to the Office of Hawaiian Affairs. The current case arose after OHA balked at the transfer of Maui acreage to the state affordable housing agency, rejecting a check for $5.8 million in compensation, about one-fifth of the property's value in compliance with the five-purpose formula.

Bennett argues in the state's appeal that "the federal government granted title to Hawaii to most of the previously ceded lands (keeping some 350,000 acres) and mandated that these ceded lands be held by Hawaii in public trust." Final reconciliation will occur after Congress passes Sen. Daniel Akaka's Hawaiian sovereignty bill and the next president signs it into law.