State's Argument In SCOTUS "Ceded Lands" Case

The transcript of today's oral arguments in the "ceded lands" case is posted here.

Hawaii Attorney General Mark Bennett argued for the State.  He began by asserting that the Apology Resolution did not alter the state's right to transfer the lands, and that it was, "as its sponsor said at the time, a simple apology, and no more." He argued that the Apology Resolution did not cloud the state's perfect title to the ceded lands, title that was derived from the United States' title, transferred to the state in the Admissions Act.

Equitable Interest?

Justice Stevens started off the questioning, asking whether that proposition addresses OHA's claims to an "equitable" interest in the ceded lands. Bennett responded by pointing out that "from day one in this case," OHA argued that it has a property right in the land. Justice Kennedy asked hypothetically whether under Hawaii law, the state as new owner of the land could determine that it has new trust duties, to which Bennett responded that the Admission Act gives the state the right to determine what happens to the law according to Hawaii law, and that the political branches may determine how the lands will be used consistent with the five purposes set out in the Admission Act.  Justice Kennedy then asked whether there was a difference if the Hawaii legislature made that decision, or whether it was the Hawaii Supreme Court. Bennett pointed out that OHA argued -- and the Hawaii Supreme Court held -- that the Apology Resolution prohibited the state from exercising its Admissions Act duties.

Apology Resolution

Justice Ginsburg asked whether the inquiry should be limited to the Question Presented (whether the Apology Resolution had any substantive legal effect), and whether the Court should say no more than the Resoltion is symbolic and just stop there. Bennett argued that included within that question is the issue of whether the Apology Resolution could -- or did -- affect the state's sovereign authority to determine disposition of the ceded lands. Justice Souter joined in, stating that the Court should understand the rationale of the Hawaii Supreme Court's opinion and that "this much is clear from the Hawaiian opinion: That they think the Apology Resolution seriously affect the claim. That we can deal with, but once we get out of that, the -- the whole case seems murky to me."

Justice Ginsburg addressed that issue, noting that the Hawaii Supreme Court:

[C]ould not have been clearer. They repeated five times that their decision rested on the resolution, that everything turned on the resolution having substantive effect. That's why they said that their decision was driven by Federal law.  And I don't know why we shouldn't take the Hawaii Supreme Court at its word repeated so many times.

Tr. at 8. This is the "independent and adequate state grounds" issue, which OHA has been pressing since the petition stage, arguing that the Hawaii Supreme Court's decision rested on state law grounds, and that SCOTUS has no jurisdiction. Under Michigan v. Long, 463 U.S. 1032 (1983), however, if a state decision rests on state and not federal law, the state court must say so plainly. Justice Kennedy seemed to agree with Justice Ginsburg, noting "I certainly do think you have a powerful argument if the Apology Resolution presents us with a Federal question." He continued, perhaps foreshadowing the Court's opinion: "It seems prudent for us to confine our decision to the effect of the Apology Resolution and whether or not the Hawaiian Supreme Court got that part of it right." Tr. at 10. Justice Alito  seemed to agree, and then Justice Souter pointed out that the Hawaii Supreme Court's opinion rested on the Apology Resolution and "some kind of State equity law or trust law. Now, that trust law may ultimately be inconsistent with prior Federal acts, but the only -- the only thing they are disclosing right now is -- aside from the Apology Resolution, seems to be State trust law."

Justice Souter asked what would happen if the Supreme Court ruled the Apology Resolution did not support the Hawaii Supreme Court's injunction:

I don't know whether at that point the Hawaiian Supreme Court is going to say, okay, all we have got left to deal with now is State trust law, or whether they've got to pull another rabbit out of hat and say, but there is -- there is some kind of -- of prior -- there is some kind of a -- a claim against which prio Federal law could not prevail.

Tr. at 13.  He concluded that he didn't know, so it would be "impurdent to wade into it at this point."  Justice Alito pressed the point of whether the state would be satisfied with a ruling from the U.S. Supreme Court that the Apology Resolution was simply symbolic and had no substantive legal effect.  Bennett stuck to his argument that the Court must also consider the property claims of OHA, and that those claims are "clearly inconsistent with Federal law, the Newlands Resolution, and the Admission Act, and that there is no reason for this Court not to reach such a clear claim."

Native Hawaiian Allocation?

Justice Scalia's interest was piqued by Bennett's assertion that if the Hawaii Legislature decided to allocate all of the proceeds from the ceded lands to the exclusive betterment of the conditions of Native Hawaiians, "[t]hat would not violate the Admission Act." Tr. at 17.  Justice Scalia asked:

Please, let me put my question again. Let's assume that the legislature does not say, we want to give it to the Native Hawaiians because we like the Native Hawaiians or because we think they deserve it; but, rather, we think we have to give it to the Native Hawaiians because it's theirs.

Tr. at 18. Bennett responded: "I think that would be contrary to Federal law, Your Honor," to which Justice Scalia replied, "I think it would be."

Bennett reserved the remainder of his time for rebuttal, and the argument turned to the Obama Administration, which argued in favor of the state. We will digest those arguments and those of OHA's in separate posts.

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.]