Real Estate & Property Law

OHA Brief In Ceded Lands Case

By Robert Thomas (inversecondemnation.com)

The Office of Hawaiian Affairs has filed its Brief for the Respondents in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008).

The U.S. Supreme Court is reviewing the Hawaii Supreme Court's decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, 117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008). The Court is considering a single Question Presented:

In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for the United States' role in that overthrow.  The question here is whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land-29 percent of the total land area of the State and almost all the land owned by the State-unless and until it reaches a political settlement with native Hawaiians about the status of that land. 

The Hawaii Supreme Court's decision is here.

OHA's brief asserts that the Hawaii Supreme Court decision was not based on federal law, but that sale of ceded lands would breach state law:

Petitioners sought this Court?s review on the question whether the Apology Resolution "strips Hawaii of its sovereign authority to sell" ceded lands. In doing so, petitioners were operating on an erroneous premise. The Hawaii Supreme Court did not hold that the Apology Resolution imposed an affirmative limitation, under federal law, on the State?s ability to sell ceded lands. Instead, it merely held that, in light of the ongoing reconciliation process, the sale of ceded lands would constitute a breach of the State?s fiduciary duty to Native Hawaiians under state law. That duty is derived from Article XII, Section 4, of the Hawaii Constitution, which served  as the basis of respondents? claims in their initial complaint (and has consistently done so since).

The Hawaii Supreme Court relied on findings in the Apology Resolution, and parallel findings in state law, simply to support the factual premise for its holding: namely, that Native Hawaiians have unresolved claims to the ceded lands that are being addressed through the reconciliation process. There is nothing problematic about a state court?s reliance on factual findings from a federal statute in that manner. And insofar as the Hawaii Supreme Court held that the fiduciary duty at issue emanated from state law, not federal law, there is no merit to petitioners? suggestion that the Hawaii Legislature is somehow disabled from eliminating or alleviating any restraint resulting from the entry of an injunction. Because respondents claimed only that the sale of ceded lands would violate the State?s fiduciary duty under state law, and because there is no dispute in this case about the meaning of the Apology Resolution, this Court lacks jurisdiction, and the petition for certiorari should be dismissed.

Brief at 16-17 (emphasis original).

The merits and amicus briefs, and links to media reports and commentary are posted on our ceded lands page.

Full post as published by inversecondemnation on January 23, 2009 (boomark / email).