In U.S. Supreme Court, Office of Hawaiian Affairs Challenges State's Authority Over Ceded Lands Posted by Pomaikaiokalani on February 27, 2009 at 11:50am In US Supreme Court, Office of Hawaiian Affairs Challenges State's Authority Over Ceded LandsCeded Land Case SeriesBy Robert Thomas, 2/26/2009 12:50:20 PMWashington, D.C. attorney Kannon Shanmugam argued for the Office of Hawaiian Affairs (OHA), a state agency challenging the state administration over land rights.He began by asserting that the issue in the case should be very narrowly drawn: whether the Hawaii Supreme Court's decision was based on the Apology Resolution.He staked OHA's entire argument on the factual issue of whether the Hawaii Supreme Court's decision was based on the state's fiduciary duties to Native Hawaiians under state law, and whether the court only relied on the Apology Resolution as a recognition that Native Hawaiians have political claims.He conceded that if the Hawaii Supreme Court's decision was based on the Apology Resolution, OHA should lose:And it's for that reason, Justice Ginsburg, that we freely concede that if the Hawaii Supreme Court had relied on the Apology Resolution as creating some Federal duty, that would be problematic. That would be not -- Tr. at 36.State Law Only?The Justices questions reflected some skepticism with the argument that the Hawaii Supreme Court's decision was based only state law. 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), if a state decision rests on state and not federal law, the state court must say so plainly.Responding to a question from Justice Souter about whether the Hawaii Supreme Court's decision was based on the Apology Resolution and state law (meaning the case is reviewable), Shanmugam conceded that the Hawaii Supreme Court acknowledged the Apology Resolution "together with State law, gave rise to the fiduciary duty," but argued that the real substance of the Hawaii court's opinion -- the ratio decedendi if you will -- was state law. Justice Ginsburg didn't seem to buy it:Then how to you explain the language, over and over again, I won't repeat it, but they said this resolution of ours is dictated by, compelled by, the Apology Resolution? Without the Apology Resolution it would be an entirely different case. And now you seem to be taking what the Hawaii Supreme Court put as the necessary link, the Apology Resolution, before that this would have been impossible, and you are treating it now as sort of window dressing, icing on the cake, really didn't matter.But we would disrespect the Hawaii Supreme Court if we didn't take them at their word and say --using words such as "dictated," "compelled." You -- you are treating this as sort of just part of the atmosphere.Tr. at 28-29. Shanmugam responded by conceding the Apology Resolution "wasn't window dressing," since it confirmed the "factual predicate" for the state law claims. He agreed that "if the Hawaii Supreme Court's opinion is read to construe the Apology Resolution as creating some affirmative duty or obligation as a matter of Federal law, we agree that that would be erroneous." Tr. at 31.A State/Federal Conflict?Justice Scalia asked if the Hawaii Supreme Court's decision was based on state law alone, whether state law conflicts with federal law. He stated that his view of federal law is that it "extinguished all property rights" in the ceded lands.As I read the Federal law, it extinguished all property rights in these lands; the lands were transferred to the Federal Government; and the Federal Government transferred them in absolute fee without any encumbrances to the State of Hawaii. Now if you are telling me the Hawaii Supreme Court is now finding as a matter of State law that there is a property interest on the part of the Native Hawaiians --I don't care what you call it, equitable or whatever --it seems to me that is flat contradiction of Federal law, and probably is an issue that we ought to address in this opinion.Tr. at 32. The Chief Justice also asked that if the case were to be sent back to the Hawaii Supreme Court, and that court affirmed the injunction under state law, whether state law would violate federal law. Shanmugam responded that the issue was not presented in the case as presently postured. Later, however, the Chief Justice noted that any decision by the Hawaii Supreme Court regarding the state's fiduciary duties must be consistent with federal law under the Supremacy Clause. Tr. at 42.What Remedy?Justice Breyer, joined by the Chief Justice, jumped in asking:[D]o you object to a three-sentence pro curiam opinion in this case where we say, to the extent that the Hawaiian Supreme Court could be read to suggest that the Apology Resolution either resolved or cast a cloud, legally speaking, on the title of the trust land, or suggested in any way that land be enjoined -- the sale be enjoined, the Court made a mistake; and insofar as it is resting on State law, that's up to them.Tr. at 33. Shanmugam responded, "I think we would acquiesce in that with one small quibble." The quibble being that the underlying claims may only be resolved in the political branches, not in court.Breyer responded, "[n]ow I have read this Apology Resolution about six times, and I certainly don't see anything" suggesting it created an obligation to enjoin sales pending a political resolution of Native Hawaiian claims. Interestingly, Shanmugam conceded the point:Yes. And we agree that the Apology Resolution could not be read to create some affirmative duty not to sell the ceded lands.JUSTICE BREYER: You agree that the Apology Resolution does not say who's right about the claim?MR. SHANMUGAM: No. There are various --ere are various findings in the Apology Resolution that could potentially be relevant to the ultimate disposition of the land.Tr. at 34-35. Justice Ginsburg again voiced her skepticism: "And the political process question I think is really bothersome, that the Hawaii Supreme Court chose to use this Federal crutch. It seems a very weak reed."Tr. at 36. Responding to a question from the Chief Justice, Shanmugam agreed that the Court could simply vacate the Hawaii decision as erroneous and remand to the Hawaii Supreme Court:CHIEF JUSTICE ROBERTS: So you would have no -- just to carry on the opinion-drafting process, you would have no objection to an opinion that said no source of Federal law gave rise to a duty under State law, fiduciary or otherwise; that any further proceedings on remand should be based solely on State law?MR. SHANMUGAM: Well, I think that that is right in the sense that we certainly think that the Hawaii Supreme Court in the first place intended to rely on a State law of fiduciary duty. And we would certainly have no problem with and indeed would welcome a remand that afforded the Hawaii Supreme Court an opportunity to do what we think they did in the first place.Tr. at 37. Justice Scalia wondered what would happen if the Supreme Court remanded the case to the Hawaii Supreme Court, "and the Hawaii Supreme Court smiles, and doesn't do a blessed thing. Leaves -- leaves the injunction against any distribution of the land in effect. What -- what happens then?" Tr. at 38. Shanmugam argued that it was unlikely the Hawaii court would do nothing, but would likely vacate the injunction and send the case back to the trial court.Substantive Effect?The Chief Justice compared the Apology Resolution to Congress' resolution apologizing for the internment of Japanese-Americans in World War II, which was a purely symbolic act by Congress. Not until Congress enacted a separate law providing for compensation was there any substantive right. Justice Scalia also questioned the assertion that the Apology Resolution was not simply symbolic. Commenting upon Shanmugam's argument that the Hawaii Supreme Court relied upon Congress' recognition of the need for reconciliation, Justice Scalia noted:JUSTICE SCALIA: And all this comes from the fact that Congress made reference to and approved a so-called reconciliation process?MR. SHANMUGAM: Well, Congress did support that --JUSTICE SCALIA: So in -- in perpetuam, this land can't be transferred because Congress approved the this reconciliation process?MR. SHANMUGAM: Only until the claims of the Native Hawaiians are resolved. And what is clear --JUSTICE SCALIA: I see.Tr. at 46-47.Hawaii Legislature Moots The Question?Shanmugam seemed to refer to a bill working its way through the Hawaii legislature to put a de facto moratorium on the sale or transfer of ceded lands:MR. SHANMUGAM: -- regardless of the degree of the reliance on the Apology Resolution, Justice Scalia, is that the Hawaii legislature has substantial discretion to act and to act in a way that essentially vacates the terms of the injunction. So if the Hawaii legislature either says, we're going to reach a definitive solution of the underlying claims of the Native Hawaiians by giving them land or additional monetary compensation, or the Hawaii Supreme Court determines that --JUSTICE SCALIA: Or denying it to them?MR. SHANMUGAM: Or denying it to them. Then presumably, according to the terms of the injunction, it would no longer have any force. So the Hawaii Legislature remains empowered to act in such a way as to get out from under the terms of the injunction to the extent they are restrictive.Tr. at 47. The argument concluded with questions by the Court of whether the state's recent public statements that it has no intention of selling any ceded lands deprived the Court of article III jurisdiction.Also See related stories and documents in Hawaii Reporter:"'Heavy Hitters' Battle in the Nation's Supreme Court Over Rights to Hawaiian Ceded Lands""Hawaii Ceded Lands Case: U.S. Supreme Courts Grants Cert Review"The amicus brief filed by the Pacific Legal Foundation in the case is posted here: http://www.inversecondemnation.com/inversecondemnation/2008/04/cert-petition-2.htmlThe State's petition is posted here: http://www.inversecondemnation.com/inversecondemnation/2008/04/cert-petition-2.htmlThe Office of Hawaiian Affairs' Brief in Opposition: http://www.inversecondemnation.com/inversecondemnation/2008/07/brief-in-opposition-in-ceded-lands-cert-petition.htmlThe brief of 29 states supporting Hawaii is here, and the amicus brief of the New Mexico Commissioner of Public Lands supporting cert is here: http://www.inversecondemnation.com/inversecondemnation/2008/06/another-amicus-brief-supporting-cert-in-ceded-lands-case.htmlThe Supreme Court's case docket is here: http://www.supremecourtus.gov/docket/07-1372.htmRobert Thomas is the Hawaii representative for the Pacific Legal Foundation. He helped author an amicus brief supporting the State's arguments. Reach him at mailto:rht@hawaiilawyer.comToday in Our Nation...Hawaii's OnlineResource for Businessand Government RecordHawaii ReporterP.O. Box 11664Honolulu, HI 96828Information and SubscriptionPhone: 808-524-4500Fax: 808-524-4594Subscribe@HawaiiReporter.comCity DeskPhone: 808-306-3161Fax: 808-524-4594Tips@HawaiiReporter.comwww.HawaiiReporter.com© 2009 Hawaii Reporter, Inc. | About Us | Terms of Service | Privacy Policy | Limitations of Liability E-mail me when people leave their comments – Follow
Comments