Thanks to @georgettedeemer, the Communications Director of the Hawaii House of Representatives for getting word out that the Hawaii House has passed S.C.R. No. 40, a resolution “Urging the Governor and the Attorney General to withdraw the appeal to the United States Supreme Court of the Hawaii State Supreme Court decision, Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawaii, 117 Hawaii 174 (2008).” It is being reported that the measure passed, but with 23 “with reservations” and two no votes.
This of course involves the “ceded lands” case. [Disclosure: we filed an amicus brief in the case, supporting the State’s arguments.] This resolution is symbolic, since the Lingle Administration has never appeared to possess any inclination to withdraw the state’s request for SCOTUS review, especially after expending a huge amount of legal capital to get the Court to consider the case, including having 29 states and the federal government join as amicus parties supporting the state’s argument (as we noted here and here). Nonetheless, the “withdraw the appeal” canard somehow got started, and now apparently has reached a point where it has a life of its own. Even if within the realm of the possible, the Court is hearing oral arguments in the case in less than 38 hours, so it remains highly unlikely that the Lingle Administration will have a last-minute change of heart.
Interestingly, the numerous “Whereas” clauses in S.C.R. No. 40 set forth a long list of events but conspicuously omit the single most critical event that resulted in the ceded lands issue ending up in the U.S. Supreme Court: OHA’s successful argument in the Hawaii Supreme Court that Congress’ 1993 Apology Resolution was more than simply a hortatory statement of apology, but instead had some substantive legal effect. Instead, S.C.R. No. 40 repeats the fiction that the Hawaii Supreme Court case dealt exclusively with state trust law:
WHEREAS, on January 31, 2008,the Hawai‘i State SupremeCourt in Office of Hawaiian Affairs v. Housing Community DevelopmentCorporation of Hawaii (117 Hawaii 174), interpreted the State’s trustobligation in relation to ceded lands under state law and enjoined the Statefrom selling or otherwise transferring to third parties any ceded lands from thepublic lands trust until the claims of the Native Hawaiian people to the cededlands have been resolved.
Isn’t “fiction” too strong a word? No, because as we noted in this post, the Hawaii Supreme Court plainly based its decision on the Apology Resolution. How do we know? Because it said so:
Theprimary question before this court on appeal is whether, in light ofthe Apology Resolution, this court should issue an injunction torequire the State, as trustee, to preserve the corpus of the cededlands in the public lands trust until such time as the claims of thenative Hawaiian people to the ceded lands are resolved.
Office of Hawaiian Affairs, 117 Haw. at 210, 177 P.3d at 929 (emphasis added).
Finally, even if there were some doubt that the Hawaii Supreme Court said one thing but did another, what is important is that in order to avoid U.S. Supreme Court review under Michigan v. Long,463 U.S. 1032 (1983), the Hawaii Supreme Court opinion must have contained a “plain statement” that its decision rested on independent and adequate state grounds. It did not.
Formore about the ceded lands case, including the Hawaii Supreme Courtdecision under review, all of the merits and amicus briefs, and links to media reports and commentary, visitour ceded lands page.