Spinning The Ceded Lands Decision

Here's a collection of the reports and commentary beginning to come in about the U.S. Supreme Court's unanimous opinion in the "ceded lands" case, Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 31, 2009):

• When Sorry Isn't Good Enough - The Wall Street Journal law blog summarizes the opinion, and links to the WSJ story on the decision.

• Supreme Court backs Hawaii in land dispute - The New York Times weighs in with a short summary of the case.  The only oddity: "Hawaii Attorney General Mark Bennett (R) asked the U.S. Supreme Court to hear the case."  Yes, Bennett serves in a Republican administration, but Hawaii's Attorney General is not an elected position, so it's strange to see the use of party designation usually reserved for elected officials.

• Apology Resolution has no Legal Effect on Admission Act -  Maui attorney Ben Lowenthal's take on the decision: "The issue is not quite over.  The SCOTUS reversed the judgment of the HSC and remanded for further proceedings.  Does this mean that the Hawaii courts will have another chance to examine the issue?  This means that the HSC will have a chance to write an opinion that comes to the same conclusion--the State cannot alienate ceded lands--but on independent state grounds.  That way it presents no federal question and could be shielded from federal review. Then again, the SCOTUS could always review it to see if the opinion violates the Admission Act or the United States Constitution.  Perhaps the key to a review-proof opinion lies in the adoption of the homegrown standard for a permanent injunction."

• Rep. Neil Abercrombie's Reaction to Ruling - Via KGMB comes current Representative and governor-hopeful Neil Abercrombie's reaction. He seems to assert that what happens in Hawaii should stay in Hawaii: "This case should never have gone to the U.S. Supreme Court. Every time we let a Native Hawaiian case go that far in the court system, we remove the decision from where it needs to happen." The rationale underling this meta-message (Hawaii has a different way of doing things that outsiders can't understand) in another context was used to justify Jim Crow laws and only makes sense if you think federal law -- including the equal protection clause -- isn't supreme. It also seems to conflict with the congressman's support for the federal Akaka Bill.

• Senate President Hanabusa doubts state law supports a ceded lands injunction - Charley Foster at the Planet Kauai law blog notes the comments from the Hawaii Senate president that the Hawaii Supreme Court on remand may have a hard time finding a basis in current state law for an injunction preventing the sale or transfer of ceded lands.  Not that it's not in state law mind you; it's just that its the legislature's kuleana, she says.

• Ceded lands - what's next? - More from Planet Kauai, suggesting the Hawaii Supreme Court exercise caution on remand, lest a new ruling based on state law be seen "obviously and patently a post-hoc improvisation to justify the court's imposition of its own policy preferences."

• Hawaii, Wilmer Hale Beat Out Williams & Connolly in SCOTUS Land Case - The AmLaw Daily, living up to its standard as the People magazine of the legal publishing world, sees the ceded lands case as a battle between two Biglaw firms.  Who wins?  The D.C. lawyers, that's who.

• OHA applauds U.S. Supreme Court's ceded-lands decision - If at first you need to double-check that you landed on the right page, don't worry, we did also. Yes, OHA says this about the decision it lost 9-0: "'We are pleased with the U.S. Supreme Court's decision to remand the case to the Hawaii Supreme Court, as we had suggested in our brief and at oral argument,' said Haunani Apoliona, chairperson of the OHA Board of Trustees. 'We consider the Court's decision to be a favorable one. While we would have preferred an outright dismissal of the petition, the result in this case is workable.'"  As we predicted here, this seems like a case of "don't taze me, bro!"

• Court Embraces the Spirit of Aloha - Ilya Shapiro of the Cato Institute -- who boldly predicted a unanimous court -- posts his thoughts.  Disclosure: I helped author the brief which we filed along with the Cato Institute.

• U.S. Supreme Court rules state has authority to sell ceded lands - The Honolulu Advertiser has a good collection of statements and links to previous reports on the case.