Hawaii Ceded Lands Case

Latest Updates – March 31, 2009

• The opinion of the unanimous court is posted here

• Summary of the decision: Sorry Seems To Be The Hardest Word: U.S. Had “Absolute Fee Simple” Title To Ceded Lands, Apology Resolution Had No Legal Effect

• Three Takeaway Points From The “Ceded Lands” Decision

• Spinning The Ceded Lands Decision (links to commentary and media reports)

Oral Argument posts

• Summary of 2/25/2009 oral arguments

• Summary of the State’s argument

• Summary of OHA’s argument

• Summary of Obama Administration’s argument

• Argument To SCOTUS: “Don’t Taze Me, Bro!” — What Was Really Going On In The “Ceded Lands” Oral Arguments?

Summary of the Issues

The U.S. Supreme Court will be 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 agreed to review the following Question Presented:

In the Joint Resolution to Acknowledge the 100th Anniversary of theJanuary 17, 1893 Overthrow of the Kingdom of Hawaii, Congressacknowledged and apologized for the United States’ role in thatoverthrow.  The question here is whether this symbolic resolutionstrips Hawaii of its sovereign authority to sell, exchange, or transfer1.2 million acres of state land-29 percent of the total land area ofthe State and almost all the land owned by the State-unless and untilit reaches a political settlement with native Hawaiians about thestatus of that land. 

The Hawaii Supreme Court’s decision is here.

The U.S. Supreme Court’s case docket in Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008) is here. 

The Court’s order granting cert in this case and nine others is posted here.

The Court will hear oral arguments on February 25, 2009.

Briefs (Merits Stage)

• Brief for Petitioners (State of Hawaii, et al.)

• Brief for the Respondents (Office of Hawaiian Affairs, et al.)

• Brief for the United States as Amicus Curiae Supporting Petitioners

• Pacific Legal Foundation, the Cato Institute, and the Center for Equal Opportunity amicus supporting Petitioners

• State of Washington and 31 other states amicus supporting Petitioners

• Mountain States Legal Foundation amicus supporting Petitioners

• Commissioner of Public Lands for the State of New Mexico amicus supporting Petitioners

• Center for Constitutional Jurisprudence amicus supporting Petitioners

• Grassroot Institute of Hawaii and the Southeastern Legal Foundation amicus supporting Petitioners

• Alaska Federation of Natives, Inc. amicus supporting Respondents

• Equal Justice Society and Japanese American Citizens League amicus supporting Respondents

• Abigail Kinoiki Kekaulike Kawananakoa amicus supporting Respondents

• National Congress of American Indians amicus supporting Respondents

• Hawaii Congressional Delegation amicus supporting Respondents

• Current and Former Hawaii State Officials amicus supporting Respondents

• NativeHawaiian Legal Corporation, Association of Hawaiian Civic Clubs, HawaiiMaoli, Native Hawaiian Chamber of Commerce, Ilioulaokalani Coalition,Council for Native Hawaiian Advancement and I Mua Group amicus supporting Respondents

• AsianAmerican Justice Center, the National Coalition for Asian PacificAmerican Community Development, Inc., Organization of ChineseAmericans, Inc., the Asian Law Caucus, the Asian American Institute,the Asian and Pacific Islander American Health Forum, and the AsianPacific American Legal Center amicus supporting Respondents

• SovereignCouncils of the Hawaiian Homelands Assembly, Na A Ahuhiwa, the NativeHawaiian Bar Association, Hui Kakoo Aina Hoo Pulapula, and Ahahui OHawaii amicus supporting Respondents

• Native Hawaiians, Samuel L. Kealoha, Jr., Virgil Emmitt Day, Jr., Patrick Kahawaiolaa, Josiah L. Hoohuli, and Mel Hoomanawanui amicus supporting Respondents

Briefs (Petition Stage)

• State of Hawaii’s Petition for Writ of Certiorari

• Pacific Legal Foundation’s Brief Amicus Curiae supporting Petitioner

• Amicus brief of 29 states supporting Petitioner

• Amicus brief of New Mexico Commissioner of Public Lands supporting Petitioner

• The Office of Hawaiian Affairs’ Brief in Opposition

Commentary

• “Ceded Lands” Case Debate: Did The Hawaii Supreme Court Rewrite The Terms By Which Hawaii Became The 50th State? – summary and video of Federalist Society debate at the University of Hawaii Law School (Feb. 12, 2009)

• Legal Information Institute’s Summary Of “Ceded Lands” Case

• USSG’s Motion To Participate In Oral Argument In The “Ceded Lands” Case – inversecondemnation.com

• New SG Unlikely To Alter Fed Gov’t’s SCOTUS Arguments In Ceded Lands Case – inversecondemnation.com

• History helps to illuminate Hawaiian ceded lands case (The Garden Island)

• State court correct in protecting ceded lands (op-ed by OHA’s attorneys, Honolulu Advertiser)

• Op-Ed Previewing OHA Arguments In SCOTUS Ceded Lands Case: Independent and Adequate State Grounds? (inversecondemnation.com – commentary on above op-ed)

• Too Late For “Never Mind” in the Ceded Lands Case (inversecondemnation.com)

• Legal muscle lines up against Hawaiians on ceded lands (David Shapiro, Volcanic Ash blog)

• Lingle’s stance on ceded lands justified (David Shapiro, Honolulu Advertiser)

• OHA says state’s newest Ceded Lands brief stakes out harder line (Planet Kauai)
  

• The ceded lands dilemma (David Shapiro, Volcanic Ash blog)

• Ceded lands controversy pits reason against reason (Jerry Burris, Akamai Politics blog)

• State has not changed position on ceded lands (Gov. Lingle and AG Bennett, Honolulu Star-Bulletin op-ed)

• Hawaiians, ‘aina inextricably linked (Honolulu Advertiser op-ed by “Princess Abigail Kinoiki Kekaulike Kawananakoa . . . the great grand-niece of King Kalakaua and Queen Kapi’olani, and the heir to the Kalakaua Dynasty”)

Media reports:

• Who Owns 1.2 Million Acres in Hawaii? Waxman, Williams & Connolly Headed to SCOTUS to Find Out – The AmLaw Daily (Feb. 5, 2009)

• Supreme Court Cheat Sheet – Forbes.com (Feb. 5, 2009)

• Ceded lands bills moving forward – allhawaiinews.com (Feb. 4, 2009)

• ‘Heavy Hitters’ Battle in the Nation’s Supreme Court Over Rights to Hawaiian Ceded Lands – Hawaii Reporter (Feb. 5, 2009)

• More join ceded lands fight – Honolulu Advertiser (Jan. 30, 2009)

• OHA looks for some backup – Honolulu Advertiser (Jan. 13, 2009)

• Justice Department supports state in ceded-lands dispute – Honolulu Advertiser (Dec. 19, 2008)

• Anger on ceded-land stance escalates – Honolulu Advertiser (Dec. 11, 2008)

• State taking new tack in ceded-lands battle – Honolulu Advertiser report on State’s merits brief (Dec. 6, 2008)

• State’s response to OHA comments in above story – Lingle, AG take issue with OHA comments in ceded land story – Honolulu Advertiser (Dec. 6, 2008)

• Groups oppose ceded-land appeal – Honolulu Advertiser (Nov. 24, 2008)

• Hawaiian sovereignty will nullify Supreme Court ruling – Honolulu Star-Bulletin editorial (Nov. 26, 2008)

• Honolulu Star-Bulletin editorial: Court should reverse freeze on land sales

• Honolulu Star-Bulletin editorial: Hawaii Supreme Court ruling tampers with federalism

• The Honolulu Advertiser reported on the Hawaii Supreme Court’s decision in Hawaii court bars state from selling ceded lands

• The Honolulu Star-Bulletin report about the petition is posted here

• The Advertiser’s report on the cert grant

• The Star-Bulletin’s report on the cert grant is here