Real Estate & Property Law

Forbes On The SCOTUS "Ceded Lands" Case

By Robert Thomas (inversecondemnation.com)

Forbes.com posts "Supreme Court Cheat Sheet," summarizing "five business cases" pending in the Supreme Court worth following. Included among those cases are Hawaii's own "ceded lands" case. (Scroll 2/3 down the page .Also included is "In Pictures: Five Cases to Watch," a slideshow.)

The article summarizes the case as follows:

Hawaii v. Office of Hawaiian Affairs

That may be the situation with another history-laden case that pits Hawaii against groups representing native Hawaiians over the status of 1.2 million acres of land, 20% of the island state. In a 2008 ruling, the Hawaii Supreme Court blocked the sale of some of that land to a private developer, saying the state couldn't transfer any property until the Hawaii legislature resolved the question of whether native Hawaiians actually owned it.

The fight stems from the 1898 annexation of Hawaii, which Congress authorized and President McKinley signed after an earlier coup dethroned Queen Lili'Uokalani. Hawaii became a state in 1959, but the Hawaii Supreme Court ruled that a 1993 "Apology Resolution," in which Congress called the overthrow of the monarchy "illegal," reopened the question of who owns the land.

This is a tough one to call. The Supreme Court in 1984 upheld Hawaii's aggressive land-reform law, which forced large landowners to sell to homeowners at court-mandated prices to end, in the words of then-Justice Sandra Day O'Connor, the state's "feudal land tenure system." That contributed to the Roberts court's contentious Kelo decision in 2005, upholding a Connecticut city's condemnation of private property for a commercial project.

The last couple of sentences are a bit off-key. Yes, in 1984, the Supreme Court upheld Hawaii's Land Reform Act against a challenge under the Fifth Amendment's Public Use Clause, Haw. Hous. Auth. v. Midkiff, 467 U.S. 229 (1984), and Midkiff's rationale was used to support the Kelo majority. But the issues in the "ceded lands" case have nothing to do with eminent domain, public use, or Kelo. 

Maybe it's just background, and a reference to the last time that a Hawaii land case -- which are always historically interesting -- was before the Supreme Court.  For a Hawaii land case before the Court with some truly fascinating historical background, see Kaiser Aetna v. United States, 444 U.S. 164 (1979), a case argued and won by my Damon Key colleagues Charlie Bocken and Diane Hastert. That case involved Kuapa Pond, an ancient Hawaiian fishpond on the island of Oahu, and its transformation into Hawaii Kai Marina, and the ancient doctrine of navigational servitudes. It was one of the first regulatory takings cases of the modern era, foreshadowing the Court's decisions in First English, Nollan, and Lucas.

The merits and amici briefs in the "ceded lands" case, and links to media reports and commentary, are posted on our ceded lands page. [Disclosure: I joined an amicus brief supporting the State's arguments.]

Full post as published by inversecondemnation on February 06, 2009 (boomark / email).