by Robert H. Thomas www.InverseCondemnation.com

What to make of 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), beyond the narrow holding that the Apology Resolution had no legal effect? Think about these points, if you will:

• You can't unwind statehood - Here's the heart of the brief opinion (unanimous opinions usually are short): "the Apology Resolution [does not] reveal any evidence that Congress intended sub silentio to 'cloud' the title that the United States held in 'absolute fee' and transferred to the State in 1959." Slip op. at 11. This case challenged the State's title to the ceded lands because the federal government's title, which it transferred to the state at statehood was somehow less than absolute. That argument has now been put to rest: the federal government had "absolute fee" title to the lands ceded to it by the Republic of Hawaii. Statehood is "a uniquely sovereign" event, and means something.

• "I always feel like somebody's watching me..." - The argument has been made that the ceded lands case -- and the issue of native Hawaiian rights generally -- is solely a local matter, and the distant (mainland) government really has no understanding of the issues, and has no business getting involved. These arguments have been made in op-eds, blog posts, and even in the briefs of the parties and amici. In our federal system, however, state supreme courts are subject to further review when they purport to make a ruling based in whole or in part on federal constitutional and statutory law. Rulings by the Hawaii Supreme Court based on federal law are subject to review if they misinterpret or misapply federal law, and rulings based on state law are subject to review if they violate superior provisions of the U.S. Constitution.

• Don't rub the bottle if you don't want the genie to come out - There's going to be a lot of blamestorming and finger pointing about who is responsible for the decision in this case: the Lingle Administration for petitioning the Court for review; the Bush II Administration for supporting the state; the Obama Administration for continuing to support the state; the Office of Hawaiian Affairs for making the arguments it did, the Hawaii Supreme Court for accepting them without dissent. Footnote 4 on page 9 of the slip opinion makes clear the unanimous Supreme Court's thinking on the subject (Identifying information added in parenthesis):

'''The (Hawaii State Supreme) court below held that respondents (OHA) "prevailed on the merits" by showing that "Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands, which were taken without consent or compensation and which the native Hawaiian people are determined to preserve, develop, and transmit to future generations." 117 Haw., at 212, 177 P. 3d, at 922.

And it (Hawaii State Supreme Court) further held that petitioners (State of Hawaii) failed to show that the State has the "power to sell ceded lands pursuant to the terms of the Admission Act." Id., at 211, 177 P. 3d, at 921 (internal quotation marks and alterations omitted).

Respondents (OHA) now insist, however, that their claims are "nonjusticiable" to the extent that they are grounded on "broader moral and political" bases. Brief for Respondents 18. No matter how respondents characterize their claims, it is undeniable that they have asserted title to the ceded lands throughout this litigation, see id., at 40, n. 15 (conceding the point), and it is undeniable that the Supreme Court of Hawaii relied on those claims in issuing an injunction, which is a legal (and hence justiciable) remedy—not a moral, political, or nonjusticiable one.

(emphasis added).

The Court remanded the case to the Hawaii Supreme Court "for further proceedings not inconsistent with" the opinion, so there will be more to come.

More background at our "ceded lands" case page: http://www.inversecondemnation.com/inversecondemnation/cededlands.html