Oral Argument in "Ceded Lands" Case - Transcript And Summary

The Supreme Court's courtroom reporter has provided the raw transcript of today's oral arguments in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (cert. granted Oct. 1, 2008. 

The transcript is posted here. 

For a primer/FAQ on appellate oral arguments and what they entail, go here.

While we haven't reviewed it in detail yet, a quick read shows that one of the more interesting parts is the federal government's argument as amicus curiae supporting the state. The argument, presented by Assistant to the Solicitor General William Jay, begins on page 18 of the transcript. 

Three binding Federal laws make clear that the State of Hawaii has absolute fee title to the lands in the Federal trust and also has the power to sell those lands for the purposes Congress set out in the trust instrument.

CHIEF JUSTICE ROBERTS: What do you think on the question-presented issue? Are all of the Federal laws on which the Hawaii Supreme Court relied to say there was a cloud on the title before the court.

MR. JAY: We think that they have been in the case from the beginning, and they -- they were clearly pressed in the State supreme court. And we think they are fairly encompassed in the question presented partly because, as General Bennett said, the -- the questions referenced to the State's sovereign authority, which necessarily includes consideration of the act which made Hawaii a sovereign state, the Admissions Act, is -- is a necessary antecedent to the resolution of that question.

. . . .

JUSTICE SCALIA: Is -- is it the function of the Hawaiian Supreme Court to declare moral obligations?

MR. JAY: Well, Justice --

JUSTICE SCALIA: Would there be any problem -- certainly there is noted the legislature deems there to be a moral obligation and gives the land away on that basis. But do you -- do you think there -- there might be some democracy problem if -- if the Supreme Court of Hawaii goes around pronouncing moral obligations and --and giving away land on that basis?

MR. JAY: Well, Justice Scalia I guess the second half to my answer to Justice Alito as well, which is that the State supreme court is not free as a matter of State trust law or otherwise to formulate obligations that don't relate to the State's obligation as trustee of the Federal trust --

JUSTICE STEVENS: But isn't it perfectly clear that's a question of State law?

MR. JAY: I don't think so, Justice Stevens, because that State law has to comply with the limitations set out in section 5(f)of the Admissions Act. To be sure, the political branches operating as trustee of the trust have broad discretion to allocate lands within and among the five purposes set out in section 5(f).

But what the State can't do and what in particular the State courts can't do in the name of formulating State trust law is to rely on considerations that are all together outside the trust. In this case, any consideration of the unrelinquished claims of the Native Hawaiians would not be based on their status as one of the beneficiaries of the trust.

JUSTICE STEVENS: Are you saying that the State court couldn't do it but the legislature could?

MR. JAY: I'm saying the -- the -- no, Justice Stevens. The State court can't rely, nor, I think, could the State legislature --

JUSTICE STEVENS: Could the legislature do it?

MR. JAY: The legislature could determine that the wisest use of the lands today, the way that would best further -- promote the welfare of Native Hawaiians today would be not to sell it. The legislature certainly could do that and then could enact a moratorium that was consistent with that view.

But what it can't do is treat it -- and this is the question Justice Scalia asked at the end of General Bennett's presentation -- what the State is not free to do is, based on claims by Native Hawaiians, not as beneficiaries of the section 5(f) trust, but based on considerations that arose before the Admissions Act was ever enacted, based on -- based on their status as competing claimants to the title of the land, give them an equitable, moral, or otherwise claim to lock up the use of the land.

The theory that the Respondents advanced in the state Supreme Court under the name of trust law is that a trustee may not, in furtherance of a trust, engage in an illegal act. And that is on Joint Appendix 141A to 143A and other places in the record. And the illegal act they contemplate is the continued ownership of the lands by the State of Hawaii. So, the State cannot, in ostensible furtherance of the federal trust, rely on State law principles that presume the illegality of the federal trust or the illegality --

Tr. at 18-23. The federal government filed an amicus brief (available here) in which it argued 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).

Hawaii Attorney General Mark Bennett argued for the State.

Appearing for OHA was Kannon Shanmugam, a Washington D.C. attorney.

More to follow today, after a chance to digest the transcript. A decision from the Court is expected in a few months.

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.]