Federal Government in Ceded Lands Case: Sorry Seems To Be The Hardest Word

In a significant development and unexpected move, the Solicitor General has filed in the U.S. Supreme Court an amicus brief on behalf of the United States strongly supporting the State of Hawaii's position in the ceded lands case, asserting the Apology Resolution was "hortatory, not substantive," and that the ceded lands trust is supposed to benefit all, not just one of five classes of beneficiaries. 

The brief is available here. The Court generally pays special attention to arguments made by the SG (who is sometimes known as the "tenth Justice"), especially its amicus positions.

The brief makes the point that the United States had undisputed and unclouded title to the ceded lands, and that interest was conveyed to the State in 1959 at statehood:

The Supreme court of Hawaii misread the Apology Resolution to reverse a century's worth of federal law and policy governing the United States' 1898 annexation of Hawaii and its acquisition and treatment of ceded lands the Apology Resolution did not change that body of law, or any existing law.  Nor did it take the dramatic and disruptive step of stripping the State's authority to sell, exchange, or transfer lands held in the federal trust, which would have been a significant intrusion on the State's authority in this important sphere.  Instead, Congress opted simply to express regret for the events of a century before.

Brief of United States at 8 (emphasis original).  On the aspect of whether the lands were ceded to the United States illegally and are therefore clouded by unresolved claims, the brief argues:

Respondents' purported cloud arises from the manner in which the Republic of Hawaii acquired the crown and government lands. But when the United States accepted those lands, it took absolute title, irrespective of their history, as the Newlands Resolution plainly stated. The Organic Act (as well as contemporaneous legislative and executive interpretations) confirmed that the United States' perfect title extended to the entire cession. Respondents' theory depends on the notion that if the Republic of Hawaii acquired the land illegitimately, it could not give the United States perfect title. But ever since the Louisiana Purchase, this Court has held that when the United States acquires territory, determination of the ceding sovereign's ability to pass valid title is a matter for the political Branches, bound up with the powers to recognize governments and make treaties. Neither this Court nor other court may second-guess those determinations, in a title suit or otherwise.

Brief at 9. The brief also asserts:

Any judicially imposed freeze on transfer of trust assets would necessarily contradict Congress's authorization to the State to sell or otherwise dispose of lands to promote the trust purposes, including home ownership, and intrude on that important state authority. A freeze on sales otherwise authorized by state law, based on asserted land claims of native Hawaiians, contradicts the federal scheme even more directly. First, it effectively promotes one of the trust purposes—the welfare of native Hawaiians—over the other four purposes that under both federal and state law are eligible to benefit from the trust, see p. 3, supra. Second, it does so based on asserted claims by, and perceived "fiduciary" duties to, native Hawaiians that are external to the federal trust.

Brief at 21. Visit our ceded lands page for all the briefs, commentary on the case, and media reports. [Disclosure: we filed an amicus brief supporting the State's position.]