Cert Petition in Ceded Lands Case

In a very short (17 page) petition, the State of Hawaii has asked the U.S. Supreme Court to review a decision by the Hawaii Supreme Court regarding "ceded lands."  The petition argues that by basing its decision in Office of Hawaiian Affairs v. Housing and Community Dev. Corp. of Hawaii, No. 25570 (Jan. 31, 2008) on the "Apology Resolution," the Hawaii Supreme Court "effectively insulated its decision from any political check at the state level," an error only the U.S. Supreme Court can correct.  The cert petition is posted here.

The petition was filed filed by heavy-hitter Seth Waxman, a former U.S. Solicitor General, so despite its brevity, it should be taken seriously.  It asks the Court to review a single question: 

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.

Petition at (i).  The petition notes, but does not focus on, a key point -- the ceded lands are supposed to be held in trust by the State "for the benefit of all citizens of Hawaii."   

First, the practical impact of this decision is enormous: it bars the State from prudently managing, for the benefit of all citizens of Hawaii, more than 1.2 million acres of State-owned land-29 per cent of the total land area of the State and almost all the land owned by the State.

Petition at 11 (emphasis added).  This point has been glossed over in recent decisions on ceded lands, and this petition gives the U.S. Supreme Court an opportunity to correct it. The petition obviously does not suggest that the usual route to SCOTUS review -- the "circuit split" -- is present, since the case presents facts and law that are unique, and have not expressly arisen in another case.  Instead, it argues that the Hawaii Supreme Court grossly misinterpreted federal law and that there is no other remedy available:

Absent review by this Court, this injunction will continue to hold the State hostage to the Hawaii Supreme Court's deeply flawed analysis of federal law.  The error and the injury in this case are unmistakable, and only this Court has the power to correct them. It should exercise that power.

Petition at 17.  Download the entire petition here.

Update: Pacific Legal Foundation filed an amicus brief in support of the State of Hawaii, available here.

Comments

[H. William Burgess]

The State’s 4/29/08 petition in OHA v. HCDC commendably gives three excellent reasons for the U.S. Supreme Court to grant cert.

“First, the practical impact of this [the Hawaii Supreme Ct] decision is enormous: it bars the State from prudently managing, for the benefit of all citizens of Hawaii, more than 1.2 million acres of State-owned land-“

Second, the decision raises serious federalism concerns.

Third, only the U.S. Supreme Court can correct the problem.

As Robert Thomas says, The petition notes, but does not focus on, a key point -- the ceded lands are supposed to be held in trust by the State "for the benefit of all citizens of Hawaii."

It is the failure of the State to focus on that key point that is missing. The state posits the question to the high Court as an issue of federal statutory interpretation. That would prevent a lasting solution and merely invite a new Congress and a new administration to enact a new apology and a more specific direction to the State not to sell, exchange or transfer its ceded lands trust lands until the supposed claims of Native Hawaiians to those lands have been satisfied.

I view this as a timely opportunity, on behalf of all the people of Hawaii, to ask the U.S. Supreme Court to provide a lasting solution before Hawaii self-destructs. This can be accomplished if the Supreme Court answers the right questions:

1. Whether Congress has the power to require or permit the State of Hawaii, as Trustee of the Ceded Lands Trust (also sometimes referred to as the §5(f) trust and the “Public Land Trust”), to discriminate between its citizens on the basis of race.

2. Whether Congress has the power to re-write history?

3. Whether Congress has the power to create a creditor and a debtor race.

These questions could be asked in an amicus brief, but would be more likely to be addressed, if non-ethnic Hawaiian citizens move to intervene in the Supreme Court because the State AG failed to fulfill his duty as parens patriae to ask these questions on behalf of all the people of Hawaii.