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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

“Unlike Bulgo, in this case there is no evidence in the record that any company, other than Superferry, met the definition provided by section 2 when Act 2 was enacted.”

Sierra Club v. Dep’t of Transportation, No. 29035 slip op. at 36 (March 16, 2009) (emphasis added)

If you take away nothing else from the 124 pages of majority and concurring and dissenting opinions in the second “Hawaii Superferry” case, remember that sentence.  It’s the key to the case and understanding the Hawaii Supreme Court’s recent willingness to put teeth into judicial review of legislation. In Superferry II, the court faced an interesting jurisprudential issue: whether Act 2, a statute most everyone who was paying attention just knew was designed to cover a single private entity was nonetheless a “general” law under the provision which requires that legislative power over state and county lands…

Continue Reading Hawaii Superferry II: Rooting Out Pretext In Legislative Actions

DeathStar2 The saga of the Hawaii Superferry has always seemed to be touched by George Lucas.

A certain segment of Hawaii’s population has from the get-go considered the interisland vehicle ferry as nothing less than the Death Star: a whale-killer, a transporter of invasive alien species, and harbinger of a militarized imperialist government. (Others don’t view it so malignantly, just as a much needed and long overdue alternative to interisland transportation, or as a refutation of Hawaii’s reputation as a horrid place to conduct a business…but work with me here).

If Superferry I — in which the Hawaii Supreme Court dealt what seemed to be a crippling blow to the Lingle administration’s fast-track environmental exemption was Episode IV — then the Legislature’s reaction to the decision by passing Act 2 seemed like The Empire Strik[ing] Back.

We now have reached what appears to be the end of the tale, however…

Continue Reading A Lucasesque View Of The Superferry Saga

We’ve read all 124 pages of the Hawaii Supreme Court’s opinion (warning: massive pdf) and the concurring and dissenting opinion in the “Hawaii Superferry” case, Sierra Club v. State Dep’t of Transportation, No. 29035 (March 16, 2009), and will post about it soon.

In the meantime, enjoy the media scrum which includes reports from the Honolulu Advertiser, the Honolulu Star-Bulletin, and commentary from the always-insightful David Shapiro.

Or for you wonky types, visit our Superferry page (with briefs and media links to Superferry Part I), review the archive of our live blog of the December 18, 2008 oral argument, or view the briefs of the parties.Continue Reading Coming Attraction: Superferry Part II

At first, it was a bit odd to see Washington, D.C. attorney Kannon Shanmugam, counsel for the Office of Hawaiian Affairs in the “ceded lands” case immediately concede in oral argument that the U.S. Supreme Court should rule against OHA — and hold the Apology Resolution was simply a symbolic statement of regret — if the Hawaii Supreme Court’s decision relied on it. Responding to a question from Justice Ruth Bader Ginsburg, he stated: 

Let me — let me be clear about this, Justice Ginsburg,if the Hawaii Supreme Court’s opinion is read to construe the ApologyResolution as creating some affirmative duty or obligation as a matterof Federal law, we agree that that would be erroneous. And if the Court–

Tr. at 31.  Later, Shanmugam again conceded the point:

Andit’s for that reason, Justice Ginsburg, that we freely concede that ifthe Hawaii Supreme Court had relied on the Apology Resolution…

Continue Reading Argument To SCOTUS: “Don’t Taze Me, Bro!” — What Was Really Going On In The “Ceded Lands” Oral Arguments?

This continues our summary of today’s oral arguments in the “ceded lands” case. The summary of the state’s argument is posted here, the summary of OHA’s argument is posted here, and the transcript is posted here.

What Issues Are Presented?

Assistant to the Solicitor General William Jay argued for the Obama Administration as amicus curiae, supporting the state’s position. His initial argument — that “three federal laws” (the Newlands Resolution, the Organic Act, and the Admission Act) make it clear that the State of Hawaii has absolute fee simple title to the ceded lands — was immediately challenged by the Chief Justice as perhaps being beyond the the Question Presented (whether the Apology Resolution had any substantive legal effect).  Jay responded that the other issues have been in the case since the start, and were considered by the Hawaii Supreme Court. The Question Presented also posed…

Continue Reading Federal Goverment’s Arguments In SCOTUS “Ceded Lands” Case

This continues our summary of today’s oral arguments in the “ceded lands” case. The summary of the state’s argument is posted here, and the transcript is posted here.

Washington, D.C. attorney Kannon Shanmugam argued for OHA. 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…

Continue Reading OHA’s Argument In SCOTUS “Ceded Lands” Case

The transcript of today’s oral arguments in the “ceded lands” case is posted here.

Hawaii Attorney General Mark Bennett argued for the State.  He began by asserting that the Apology Resolution did not alter the state’s right to transfer the lands, and that it was, “as its sponsor said at the time, a simple apology, and no more.” He argued that the Apology Resolution did not cloud the state’s perfect title to the ceded lands, title that was derived from the United States’ title, transferred to the state in the Admissions Act.

Equitable Interest?

Justice Stevens started off the questioning, asking whether that proposition addresses OHA’s claims to an “equitable” interest in the ceded lands. Bennett responded by pointing out that “from day one in this case,” OHA argued that it has a property right in the land. Justice Kennedy asked hypothetically whether under Hawaii law, the state as…

Continue Reading State’s Argument In SCOTUS “Ceded Lands” Case