The Hawaii Federalist Society sponsored a debate today at the University of Hawaii Law School on issues in the ceded lands case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008).
One one side, U.H. lawprof Carl Christensen, arguing that the Hawaii Supreme Court's decision enjoining the State from doing anything with the ceded lands until such time that a political settlement is reached with Native Hawaiians is correct. On the other, Ilya Shapiro, a Senior Fellow at the Cato Institute's Center for Constitutional Studies and Editor-in-Chief of the Cato Supreme Court Review, arguing that the Apology Resolution was hortatory and had no legal effect. [Disclosure: we filed an amicus brief in the case, supporting the State's argument; Mr. Shapiro and the Cato Institute joined our brief.]
U.H. lawprof David Callies moderated. The question presented:
The Hawaii Supreme Court blocked the sale of 1.2 million acres of land (29 percent of the state's total area) based on a joint resolution that Congress passed in 1993 to apologize for the 1893 overthrow of the Kingdom of Hawaii. This issue is now before the U.S. Supreme Court. Was it correct, or did the Hawaii Supreme Court rewrite the terms by which Hawaii became the 50th state? Further, was the Apology Resolution itself based on a slanted view of history, the propagation of which may yet lead to the creation of race-based state government via the Akaka Bill?
Professor Callies summarized: according to the State, HAWSCT improperly misinterpreted the Apology Resolution and interfered with the State's ability to alienate land; according to OHA, HAWSCT was correct, and its opinion rested on state law grounds meaning that SCOTUS has no jurisdiction to review. The format was 10 minute opening statements by each debater, followed by answers to written audience questions, followed by 1 minute closing arguments.
Thanks to Kupuaina Coalition for posting the video:
If you do not have time to watch the entire debate, posted below is a written summary. I was not able to attend in person, but followed along on the live webcast. Two of my Damon Key colleagues -- Matt Evans and Christi-Anne Kudo Chock -- did attend in person (our thanks to both of them). Our collective efforts at note-taking follows:
Ilya Shapiro
Mr. Shapiro began by noting that in Rice v. Cayetano, SCOTUS held that "Native Hawaiian" was a racial classification, and prohibited exclusive voting; he also noted language from the infamous "separate but equal" case, Plessy v. Ferguson, 163 U.S. 537 (1896). Despite Rice and other decisions, OHA continues to view the issue through a "racial lens" -- and attempts to hold land for benefit of one racial class.
He discussed the nature of the Apology Resolution, which was based on an inaccurate -- or at least controversial -- view of history. The Apology Resolution did not address sovereign powers or the ability to own or alienate land, and is merely "hortatory" or "aspirational." To support that conclusion, Shapiro cited the legislative history of the Apology Resolution and comments from Sen. Inouye. He looked to the text of the Apology Resolution, which uses words like "recognizes" and "urges," to conclude that it does not -- and could not -- change the law as it existed then, and even if it did, it would have been unconstitutional. He argued that the "OHA-veto" is an affront to the Equal Protection Clause, and that HAWSCT's decision violated both state sovereignty and federal law. He distinguished Native Hawaiians from Indians, as defined under federal Indian law, arguing that Native Hawaiians simply do not fit in under that definition because federal Indian law is based on political classifications while "Native Hawaiian" is race-based. Further, Congress cannot make tribes out of whole cloth.
Carl Christensen
Professor Christensen opened by asserting that most of the issues Mr. Shapiro spoke of are simply not part of the case; the equal protection issue is not before SCOTUS, for example. He discussed the history of the overthrow, stressing its unlawful nature and violation of treaties that were in existence at the time, as well as international law. He noted that the Apology Resolution itself described this historical context.
Christensen next reviewed the procedural history of case, arguing that the Apology Resolution "became law in 1993" and of utmost importance are the "factual admissions" by the United States in the Apology Resolution. He also asserted that HAWSCT relied not only on the Apology Resolution, but also on "related state legislation," and that HAWSCT's decision rested on state law grounds. At no point in its opinion did HAWSCT say that its decision was based solely on the Apology Resolution. Instead, the importance of the Apology Resolution in the decision (and, indeed, why the court chose to discuss it at length) is in its recitation of the historical facts.
He also discussed existing state law and legislation which recognized the state’s public policy in favor of reconciling claims with Native Hawaiians. Christensen agreed that Congress cannot retroactively and unilaterally change the terms of the Admission Act, but argued that is not at issue in the case. He stressed the imporance of the difference between a legally cognizable claim and a moral claim, and asked a rhetorical question: can a moral claim be converted into a legally cognizable claim, justiciable by the court, via the political process? Christensen's answer: "Yes, it can," and in fact, Congress has done so before. He listed examples.
He continued: it doesn’t matter that Native Hawaiians have no legal claim under federal law; but that does not mean they do not have any claim at all, and that HAWSCT has jurisdiction to hear their moral claims. Since Native Hawaiians currently have no legal remedy under federal law, they challenged the political process of state law, using their moral claims as ammunition.
Questions
(We did not note every question asked by audience members, only those we though most interesting.)
Q: Why can’t Native Hawaiians be included under federal Indian law?
Christensen: What is a "tribe?" SCOTUS has never addressed this or held that the administrative rules are constitutionally required for inclusion under the federal Indian law.
Shapiro: Native Hawaiians simply do not fit as the laws and regulations are currently written.
Q: Hawaii was annexed by the Newlands Resolution. Was that also "hortatory?" And if so, then isn't title to these lands necessarily clouded long before this case?
Shapiro: The critical fact here is not that the Apology Resolution is a "resolution" as opposed to an Act; instead, the difference is that the operative clauses of the Apology Resolution do not have any legal effect, whereas other Resolutions, like the Newlands Resolution, do contain operative clauses intended to have legal effect. The Apology Resolution did not create any substantive rights, unlike other apology resolutions such as the Japanese-American WWII internment apology and subsequent legislation.
Christensen: Both the Newlands Resolution and the Apology Resolution are of similar dignity; but again, that’s not really the issue here.
Q: In 1893, even non-Hawaiians (by blood) were considered citizens of the Kingdom of Hawaii. At what point did they lose their "standing" to be included in the current "Native Hawaiian" definition?
Christensen: Perhaps any federal legislation such at the Akaka Bil might include as "Native Hawaiians" those persons who can establish that their ancestors were citizens of Kingdom of Hawaii pre-1983; non-blood Hawaiians not necessarily precluded yet.
Shapiro: It would certainly be a novel idea to establish such a "tribe" consisting of all those whose ancestors were citizens of the Kingdom of Hawaii, regardless of Hawaiian blood, however, there might be problems with that, and at the very least, it might be a slippery slope.
Q: Can a federal court with no understanding of Hawaiian culture, history and law rule on an issue of state law?
Shapiro: This is a legal case, not historical debate, and state law cannot cloud title on already annexed land. In this case, federal and state law cannot be separated.
Christensen: The question is whether federal law is essential to decision; if not, then SCOTUS cannot review because there is no federal law law to review – or, if state decides to do as Section 5(f) of the Admission Act allows it to do and not follow federal law, the state can do that.
The case is scheduled for oral argument before the U.S. Supreme Court on February 25, 2009. For more about the case, including the Hawaii Supreme Court decision under review, all of the merits and amicus briefs, and links to media reports and commentary, visit our ceded lands page.