Too Late For "Never Mind" in the Ceded Lands Case

On October 1, 2008, the U.S. Supreme Court agreed to review 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).  That decision held Congress' "Apology Resolution" required the State of Hawaii to reach a political settlement with Native Hawaiians, and prohibited the State from selling, exchanging, or transferring the ceded lands until that political resolution was accomplished. [Disclosure: I filed an amicus brief in the case, supporting the state's petition.]

The Honolulu Advertiser reported about a rally yesterday at the State Capitol urging the Lingle administration to "rescind its U.S. Supreme Court appeal of a state court ruling that bars the state from selling ceded lands until claims of Native Hawaiians are resolved." "Groups oppose ceded-land appeal to U.S. Supreme Court."  This is the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008).

The Hawaii Supreme Court decision is being reviewed by the U.S. Supreme Court by way of a discretionary writ of certiorari, not an "appeal." While this is a technical difference, the difference is critical. "Appeals" are generally taken as a matter of right, but certiorari review is entirely up to the Supreme Court -- in other words, you have to ask the Court to review the lower court's decision, and it most often says no; it usually only says yes when a case will have nationwide impact.

Thus, asking the Supreme Court to make yours one of the 70-90 cases it actually hears out of the 7,000 or more requests it considers each term is a big step, and the petitioning party stakes a lot of its credibility by asking the Court for review. The State of Hawaii, having taken this step -- and being joined by 29 other states in urging the Court to focus on this case -- would be hard-pressed to now just say, in the words of Gilda Radner's SNL character Emily Litella, "never mind."

Visit our ceded lands case page, with the briefs, media reports, and the decision of the Hawaii Supreme Court.