New SG Unlikely To Alter Fed Gov't's SCOTUS Arguments In Ceded Lands Case

Several people have wondered whether the change in presidential administrations may alter the federal government's position supporting the State of Hawaii in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008). 

Unlikely, according to this post from the law blog at the Wall St. Journal:

The SG makes hundreds of strategic decisions about which lower-court decisions the government should or should not appeal to the Supreme Court, which can accelerate—or derail—an issue and help shape the Court's docket to an administration's taste.

But when a case is granted and the Court looks to the solicitor general's office for its measured views, says former deputy AG Lawrence Wallace, "The dialogue is with the Court. And the Court has traditions that have to be honored."

Some background. On December 11, 2008, the Solicitor General filed an amicus brief for the United States in the ceded lands case, supporting the State's position, arguing:

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). The brief is available here. That brief was submitted by Gregory Garre, President Bush's SG.

President Obama gets to select his own team, and has chosen Elena Kagan as the new SG.  She, in turn, has chosen Neal Katyal as her principal deputy (as noted by Charley Foster at Planet Kauai). Professor Katyal was, until then, counsel for the Office of Hawaiian Affairs in the ceded lands case. President Obama has also said that he would support the Akaka Bill, a proposal to recognize the sovereignty of native Hawaiians. These facts led some to speculate that the new SG might change the federal government's strong support for the State's position.

One final interesting note: on January 29,2009, the new SG sought leave from the Supreme Court to participate in oral argument and for divided argument (meaning that the federal government has asked for face time with the Justices, and to take some time out of a party's argument, presumably the State's).

The merits and amici briefs in the case, and links to media reports and commentary, are posted on our ceded lands page. [Disclosure: I joined an amicus brief supporting the State's arguments.]