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 pitsHawaii against groups representing native Hawaiians over the status of1.2 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 aprivate developer, saying the state couldn’t transfer any propertyuntil the Hawaii legislature resolved the question of whether nativeHawaiians actually owned it.
Thefight stems from the 1898 annexation of Hawaii, which Congressauthorized and President McKinley signed after an earlier coupdethroned Queen Lili’Uokalani. Hawaii became a state in 1959, but theHawaii Supreme Court ruled that a 1993 “Apology Resolution,” in whichCongress called the overthrow of the monarchy “illegal,” reopened thequestion of who owns the land.
This is a tough one to call. TheSupreme Court in 1984 upheld Hawaii’s aggressive land-reform law, whichforced large landowners to sell to homeowners at court-mandated pricesto end, in the words of then-Justice Sandra Day O’Connor, the state’s”feudal land tenure system.” That contributed to the Roberts court’scontentious Kelo decision in 2005, upholding a Connecticut city’scondemnation 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 loko kuapa fishpond on the island of Oahu, its transformation into Hawaii Kai Marina, and the even more 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.]