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

…
Continue Reading Spinning The Ceded Lands Decision

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 subsilentio to ‘cloud’ the title that the United States held in ‘absolutefee’ 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

…
Continue Reading Three Takeaway Points From The “Ceded Lands” Decision

The U.S. Supreme Court held that a Congressional resolution apologizing for the United States’ role in the overthrow of the Hawaiian kingdom was just an apology, and had no legal effect. In an opinion for a unanimous Court authored by Justice Alito, the Court held:

The Supreme Court of Hawaii erred in reading § 3 [of the apology Resolution] as recognizing claims inconsistent with the title held in “absolute fee” by the United States (30 Stat. 750)and conveyed to the State of Hawaii at statehood.

Slip op. at 10.

Jurisdiction

The opinion first made short work of the claim by the Office of Hawaiian Affairs that the Supreme Court had no jurisdiction. OHA asserted that the Hawaii Supreme Court’s opinion (117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008), available here) was not based upon federal law (the Apology Resolution) but was based upon Hawaii trust law.  The Court…

Continue Reading Sorry Seems To Be The Hardest Word: U.S. Had “Absolute Fee Simple” Title To Ceded Lands, Apology Resolution Had No Legal Effect

A unanimous Supreme Court, in an opinion authored by Justice Alito has reversed and remanded the Hawaii Supreme Court in the “ceded lands” case.  The opinion is posted here.

More to follow after a chance to read the opinion, but here’s the short story:

• The Court has jurisdiction under Michigan v. Long, 463, U.S. 1032 (1983).

• The Apology Resolution did not strip the state of its sovereign authority to alienate the lands the United States held in “absolute fee simple” and which were granted to the state upon its admission to the Union.

Disclosure: I helped author an amicus brief supporting the state’s argument.  More background at our “ceded lands” case page.Continue Reading Unanimous SCOTUS: Apology Resolution No Legal Effect