The State has filed the final brief in the “ceded lands” case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert.granted Oct. 1, 2008), available here. The State argues that the Office of Hawaiian Affairs’ (and a majority of its amici’s) argument urging the Court to dismiss certiorari are “as baseless now as when respondents unsuccessfully raised it in opposition to certiorari.” Brief at 1.
Respondents argue at length that the State’s trust obligations towards the ceded lands (which run to all the people of Hawaii, not just Native Hawaiians) arise from state law, even though respondents elsewhere concede that the “ceded-lands trust was established by federal law — and is therefore … a “federal trust.'” Resp. Br. at 47. But no matter how the trust is characterized, the essential point is that respondents argued below — and the Hawaii Supreme Court held — that the legal determinations in the Apology Resolution are integral to their breach-of-trust claim. Having persuaded the court to adopt that conclusion on these federal legal grounds, respondents can hardly be heard now to disavow those same federal grounds as an essential basis for the challenged injunction.
Brief at 9 (footnote omitted). The State also argues that the Apology Resolution does not repeal the federal bar on Native Hawaiian claims to the ceded lands:
Respondents’ brief is a case study in perverse characterizations. As discussed, they first try to avoid this Court’s jurisdiction altogether by implausibly recharacterizing as “factual” the core legal propositions the Hawaii Supreme Court derived from the Apology Resolution….To illustrate why respondents must resort to that improbable argument, however, we first review the Supremacy Clause defense they wish to avoid meeting on its legal merits. See. Pet. Br. 31-46.
As noted, the Hawaii Supreme Court accepted respondents’ position that, under the Apology Resolution, the overthrow of the Kingdom was illegal, the Republic’s cession of these lands was therefore illegitimate, and the title the United States transferred to the State in the Admission Act was “clouded” as a result. See pp. 7-8, supra. Respondents stopped short of asking the Court to rule definitively that the Native Hawaiian community owns the ceded lands outright because existing state precedent deemed that ultimate question nonjusticiable. J.A. 128a. That ultimate question, respondents conceded, would have to be resolved out of court, as part of the “reconciliation process.”
. . .
They elaborated: “Just as a person who knowingly possesses stolen goods is not free to alienate those goods, but must try to return them to their rightful owner, the State is no longer free to transfer or sell the Ceded Lands.” J.A. 136a. The court granted the requested injunction.
The Apology Resolution could not support — let alone “dictate[]” (Pet. App. 85a) — this train of legal reasoning unless it repeals at least two prior congressional enactments: (i) Congress’s 1898 decision in the Newlands Resolution to accept “the absolute fee and ownership” to these lands from the Republic of Hawaii and (ii) Congress’s 1959 decision in the Admission Act to transfer to the State “the United States’ title” to all lands “that were ceded to the United States by the Republic of Hawaii.”
Brief. at 12-14 (footnotes omitted).
Oral arguments in the case are set for 10 am EST, February 25, 2009. The merits and amici briefs in the case, and links to media reports and commentary, are posted on our ceded lands page. [Disclosure: I helped author an amicus brief supporting the State’s arguments.]