Washington, D.C.: OHA Trustees on the steps of the U.S. Supreme Court with OHA attorney Kannon Shanmugam, at center. - Photo: Crystal Kua

Mālama Kuleana

Cautious optimism follows
Supreme Court hearing

By Crystal Kua and Liza Simon / Ka Wai Ola

WASHINGTON – Office of Hawaiian Affairs Trustees were cautiously optimistic that the U.S. Supreme Court would come back with a favorable ruling following oral arguments before the nine justices last month.

The oral arguments came in the appeal brought by the State Administration after the Hawai'i Supreme Court last year ruled that the state could not sell or transfer ceded lands to third parties until the unrelinquished claims to the land by Native Hawaiians have been resolved.

And while wintry weather greeted hundreds who waited on the court steps outside hoping to get a seat to listen to the arguments, justices peppered both sides with probing questions about the case.

Native Hawaiians from Hawai'i and the U.S. Continent wait in line in sub-freezing temperatures for a seat to hear oral arguments before the U.S. Supreme Court. - Photo: Crystal Kua

That included Justice Ruth Bader Ginsburg, who returned to the bench after undergoing surgery for pancreatic cancer but showed no sign of slowing down:

"Without the Apology Resolution it would be an entirely different case. And now you seem to be taking what the Hawai'i 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 Hawai'i 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," Justice Ginsburg told OHA attorney Kannon Shanmugam.

With that, Shanmugam replied: "Well, it was more than mere window dressing, Justice Ginsburg. The Apology Resolution really did confirm the factual predicate for Respondent's State law claim."

Justice Samuel Alito seemed to have boned up on issues related to the appeal by asking state Attorney General Mark Bennett, "Would there be anything to prevent the Hawaiian Legislature from passing a law that says, we have absolute – we have title to these lands, but we are going to impose a five-year moratorium on any transfer of these lands because we want to promote a reconciliation process?"

O'AHU | In Honolulu, OHA Chairperson Haunani Apoliona addresses reporters gathered for a press conference in the OHA boardroom via video link from Washington, D.C., after the courtroom arguments had concluded. - Photo: Blaine Fergerstrom

Dozens of Native Hawaiians traveled to the U.S. capital to wait in at times below-freezing temperatures in hopes of gaining entry to the courtroom proceedings.

The interest went far beyond Hawai'i.

A group of students from Texas who had studied the case were also hoping to get in, along with a line of other hopeful observers stretching along the sidewalk.

During a news conference via video link between the OHA offices in Washington, D.C., and Honolulu, OHA attorney Sherry Broder said: "It's too early to know what direction the justices are headed. Anything at this point is speculative."

At the same time, Broder acknowledged that it appears the justices are not particularly interested in broadening the scope of the case. She noted there was no mention of equal rights protection contained in the14th amendment of the Constitution, used in previous court challenges seeking to dismantle all Hawaiians-only programs.

OHA Trustee Walter Heen agreed that it was a good sign that early indications were that 14th amendment concerns would likely not play a part in the justices' decision. "This augurs well for the retention of the inherent right of Native Hawaiians to continue in their quest for social and political justice," Heen said. "I am fairly satisfied that the U.S. Supreme Court does not seem inclined to go beyond the Apology Resolution as the crux of the appeal."

O'AHU | In Honolulu, OHA Trustees John Waihe'e IV, Walter Heen and Oswald Stender speak to reporters at a press conference in the OHA boardroom after the courtroom arguments had concluded in the nation's capital. - Photo: Blaine Fergerstrom

The U.S. Solicitor General took the state's side in the courtroom. "But this is no surprise in light of the fact that he is an appointee of the Bush administration," said Heen. President Obama's pick for Solicitor General, Elena Kagan, had not taken office as of Feb. 25.

Speaking from the podium at the Washington, D.C., OHA press conference, OHA Chairperson Haunani Apoliona also took a moment to recognize the legal and community support for OHA's position. She listed the authors of the friend-of the-court briefs filed on OHA's behalf. She also mentioned that representations of the Royal Order of Kamehameha and the Hawaiian Civic Clubs had accompanied OHA to the nation's capital to be present at the U.S. Supreme Court.

Meanwhile, Attorney General Mark Bennett told reporters, "I think the argument went well for the state."