ANALYSIS:

The Supreme Court of the United States' decision in Hawai'i v. Office of Hawaiian Affairs

By Moses Haia / Staff Attorney, Native Hawaiian Legal Corporation

Before reviewing and ruling on the merits of the Hawai'i Supreme Court's "ceded" lands decision, the United States Supreme Court was required to determine whether it had jurisdiction.

In order to assert its jurisdiction the United States Supreme Court would have to find that the "ceded" lands decision either rested primarily on federal law or was interwoven with federal law and the adequacy or independence of any state law basis for the decision was not clear from the face of the decision.

Moses Haia

OHA trustees and their legal advisors, understandably concerned with the U.S. Supreme Court's penchant for sanitizing the resulting harsh realities of a U.S. backed overthrow of the Hawaiian Kingdom, argued that the Hawai'i Supreme Court's "ceded" lands decision relied on Hawai'i law, and only incidentally on federal law, including U.S. Public Law 103-150, the "Apology" Resolution, and did not, as such, raise a federal question. Not surprisingly, the United States Supreme Court disagreed, ruling that the Hawai'i Supreme Court's decision relied heavily on the joint "Apology" resolution.

Having asserted its jurisdiction in this matter, the United States Supreme Court was then able to review the merits of the "ceded" lands decision. The sole issue on review was whether the Congress of the United States stripped the State of Hawai'i of its authority to alienate its sovereign territory by passing a joint resolution to apologize for the role that the United States played in overthrowing the Hawaiian monarchy.

Concluding that the apology resolution did not create a cloud on the State's title to ceded lands, the United States Supreme Court reversed the Hawai'i Supreme Court's ruling and sent it back to that Court for further proceedings and consideration.

The United States Supreme Court does not have jurisdiction to decide whether the injunction is nonetheless supported by Hawai'i law. Therefore, its decision means only that the apology resolution does not provide the basis for the Hawai'i Supreme Court's injunction. Therefore, the injunction may be justified on some other basis such as state law.

As such, so long as the Hawai'i Supreme Court can provide an alternative basis for the injunction, the United States Supreme Court's decision does not clear the way for the sale of ceded lands by the State.

In its decision, the Hawai'i Supreme Court states, "[w]e also believe it appropriate to examine related state legislation enacted around the same time that Congress adopted the Apology Resolution. In our view, this preliminary examination is critical to an understanding of the plaintiffs' claim for injunctive relief." Office of Hawaiian Affairs v. Housing and Community Development Corp. of Hawaii, 117 Haw. 174, 190 (2008).

Based on its discussion of related state legislation, the Hawaii Supreme Court concludes that, "the Apology Resolution and related state legislation,…, give rise to the State's fiduciary duty to preserve the corpus of the public lands trust, specifically, the ceded lands, until such time as the unrelinquished claims of the Native Hawaiians have been resolved. Such duty is consistent with the State's 'obligation to use reasonable skill and care' in managing the public lands trust and the Ahuna court's declaration that the State's conduct 'should…be judged by the most exacting judiciary standards." Id. at 193-95.

Accordingly, an alternative state law basis exists for the injunction, or for stopping the sale of ceded lands "until such time as the unrelinquished claims of the Native Hawaiians have been resolved."