Real Estate & Property Law

Latest Gambit In SCOTUS Ceded Lands Case

By Robert Thomas (inversecondemnation.com)

Here's the latest in the "ceded lands" case, now being briefed in the U.S. Supreme Court. 

The Honolulu Advertiser writes that "OHA looks for some backup," and has drafted a bill, to be considered by the Hawaii Legislature in its upcoming session, that appears to codify the Hawaii Supreme Court decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008), now under review by SCOTUS:

OHA board Chairwoman Haunani Apoliona yesterday said she and her colleagues will lobby lawmakers to pass a bill that would impose a moratorium on the sale of ceded lands until the "unrelinquished claims" of Native Hawaiians to those lands are settled.

Such a moratorium would mirror the language of a January 2008 Hawai'i Supreme Court decision that ordered the state not to sell or transfer ceded lands until claims by Hawaiians to those lands are resolved.

A copy of the proposed draft bill is posted here. The proposed legislation raises many questions: will it have any effect on the Supreme Court's consideration of the issue?  Can it?  Should the legislature insert itself into a complex legal case, and can a state legislature end run the U.S. Supreme Court? Will we see a motion to dismiss for mootness? Would the proposed legislation suffer the same consitutional infirmities as the Hawaii Supreme Court's decision? Does the executive branch have to abide by an unconstitutional statute?

Advertiser columnist David Shapiro adds his thoughts in "Keep status quo on ceded lands," posted at his Volcanic Ash blog.

More about the case, including the briefs and links to commentary and media report on our ceded lands case page.

Full post as published by inversecondemnation on January 13, 2009 (boomark / email).