Real Estate & Property Law

Final Amicus Brief Supporting the State of Hawaii in Ceded Lands Case

By Robert Thomas (inversecondemnation.com)

The State of Washington, along with 31 others have filed an amicus brief in support of the State of Hawaii in the ceded lands case (available here) which argues:

The amicus curiae states are deeply concerned with the lower court?s conclusion that the Apology Resolution creates or recognizes claims that cloud the title to Hawaii?s state lands. As part of the "solemn agreement" embodied in the admission act, every state admitted into the Union since 1802 has received grants of land from the United States. See Andrus v. Utah, 446 U.S. 500 (1980). The acreage granted to the states is substantial, and the lands and proceeds from the lands support vital state institutions and programs across the nation. "Between 1803 and 1962, the United States granted a total of some 330,000,000 acres to the States for all purposes. Of these, some 78,000,000 acres were given in support of common schools." Lassen v. Arizona ex rel. Arizona Highway Dep't, 385 U.S. 458, 460 n.3 (1967) (citing The Public Lands, Senate Committee on Interior and Insular Affairs, 88th Cong., 1st Sess., 60 (Comm. Print 1963)).

If the decision below is correct?that through a post-statehood resolution like the Apology Resolution the United States recognized claims that cloud title and eliminate authority to sell lands granted at statehood?then the legal force of state admission acts becomes doubtful and state sovereignty can be fundamentally undermined. The practical harm to the amici states would be significant, because the states rely on state lands to fund schools, institutions, and vital state programs. See generally Lassen, 385 U.S. at 460 (addressing grants that impose trust duties affecting granted lands and funds derived from such lands).

The risk of harm to the states, moreover, is quite real if a claim to state lands can be based on a resolution that, on its face, does nothing more than apologize on the 100th anniversary of a significant historic event and urge future conciliation among people. Congress should be free to recognize the historic faults of our nation and to offer an apology without being held to have impliedly created legal rights. An apology, such as the Apology Resolution, should not be held to undermine the grant of lands that formed a sovereign state of the Union.

Brief at 1-2. Illinois, Kansas, and North Carolina have joined since the cert petition stage, and the Northern Mariana Islands has dropped out.  All briefs in the case and the Hawaii Supreme Court's opinion are available on our ceded lands case page here.

Full post as published by inversecondemnation on December 15, 2008 (boomark / email).