Issues
Did the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii cloud the State of Hawaii's title to land ceded to it by the federal government, opening these lands up to ownership challenges by Native Hawaiians and preventing the state from selling or otherwise transfer the land?
In 1993, Congress and the President adopted a resolution ("Apology Resolution"), in which the United States apologized for its role in the overthrow of the Kingdom of Hawaii in 1893. Shortly thereafter, the Office of Hawaiian Affairs ("OHA") sought to enjoin a residential development on the Leiali'i land parcel, land owned by the state, but held in trust for Native Hawaiians and the general public. OHA also requested that the state agency in charge of the parcel's development certify that any transfer of the parcel's ownership would not diminish Native Hawaiians' claims to the land. The state agency refused and sent OHA a check for the land, which OHA refused. The Hawaii Supreme Court held that the Apology Resolution had changed the legal relationships of the parties involved, and enjoined further development of the land until the state of Hawaii reconciled with Native Hawaiians. In this case, the Supreme Court must determine whether the Apology Resolution changes the legal duties and obligations of the parties involved, or whether it is simply a statement of regret. This case will have far-reaching implications for land in other states which may have competing claims of ownership by native populations.
Questions as Framed for the Court by the Parties
In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for the United States' role in that overthrow. The question here is whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land-29 percent of the total land area of the State and almost all the land owned by the State-unless and until it reaches a political settlement with native Hawaiians about the status of that land.
Facts
In 1893, the Republic of Hawaii became a territory of the United States, and ceded 1.8 million acres of land to the federal government. When Hawaii became a state, the federal government transferred 1.2 million acres to the State to be held in public trust for Hawaiian citizens. The Hawaii Department of Land and Natural Resources (DLNR) actually manages these lands. However, the Office of Hawaiian Affairs (OHA), which was created in 1978, is responsible for managing twenty percent of the proceeds from those public lands for the benefit of Native Hawaiians.
In 1987, the Hawaiian legislature confronted the problem of a "critical shortage of safe and sanitary housing units which are affordable to lower income residents of the State." The Housing Finance and Development Corporation (HFDC) was charged with developing affordable housing to be sold to private citizens. A land tract known as the Leiali‘i parcel, part of the ceded lands, was rezoned for residential use and the HFDC and a private developer began developing it. Under State law, HFDC was to become the owner of the land, in exchange for nominal consideration paid to the State, plus a payment to OHA of twenty percent of the fair market value of the land.
In 1993, Congress passed and the President signed the "Apology Resolution," an Act "memorializing the one hundredth anniversary of the overthrow of the Hawaiian monarchy." In the resolution, the United States apologized for its role in events one hundred years before.Following passage of the resolution, the OHA requested that the HFDC include a disclaimer preserving the right of Native Hawaiians to the land, whenever it sold part of the Leiali'i parcel. The HFDC refused, because it feared that the proposed OHA provision would make acquiring title insurance impossible for future residents of the housing development, and the sale of the land went forward. HRDC paid the state $1.00 for the land, and tendered a check in the sum of $5,573,604.40, 20% of the fair market value of the Leiali'i parcel, to the OHA. In October 1994, the OHA refused to accept the check.
Shortly thereafter, the OHA and various individuals filed separate lawsuits seeking to enjoin the Leiali'i parcel development project. The plaintiffs argued that in light of the Apology Resolution, development and sale of the Leiali'i land parcel should be postponed until the claims of Native Hawaiians to the land were evaluated. In December of 1994 the HCDCH halted development pending resolution of the lawsuit after expending approximately $31 million on the project.
The Hawaiian trial court found in favor of the State, and held that the Apology Resolution "d[id] not prohibit the sale of ceded lands." OHA appealed to the Hawaii Supreme Court, which reversed the trial court and issued an injunction halting the sale of the property. The court held that the Apology Resolution "transformed the legal landscape and altered the relationship of the parties," and that consequently, an injunction was warranted until the political process could sort out any and all potential claims made by Native Hawaiians for the land. The State appealed this decision to the U.S. Supreme Court, which granted certiorari on October 1, 2008.
Analysis
In this case, the Supreme Court will determine whether the Apology Resolution impaired Hawaii's title to land which the federal government ceded to the state. Initially, the Court must confront the challenge of the Office of Hawaiian Affairs ("OHA") to the Court's jurisdiction. If the Court determines that it does have jurisdiction, it next must determine whether Hawaii owes a fiduciary duty to Native Hawaiians, or, alternatively, whether the Apology Resolution was a simple statement of regret which did not change the legal responsibilities of the state.
Supreme Court Jurisdiction
As an initial matter, OHA argues that the Supreme Court should not review this case at all. Indeed, OHA argues that any decision by the Supreme Court would amount to little more than an advisory opinion. OHA reasons that the decision of the Supreme Court of Hawaii rested on "adequate and independent state grounds- . . . Hawaii's State Constitution, statutes, and case law, most prominently in its common law of trusts." This case, according to OHA, is really about state trust law, and "only tangentially involves . . . the Apology Resolution." Moreover, OHA explains that the relevant federal materials are only meaningful within Hawaii. OHA concedes that the Hawaii Supreme Court relied on fact-finding that it derived from the Apology Resolution, but notes that "[t]here is nothing problematic about a state court's reliance on factual findings from a federal statute."
In response, the state of Hawaii contends that the U.S. Supreme Court does have jurisdiction. Hawaii explains that if "a state court decision appears to rest primarily on federal law, or to be interwoven with federal law, and it contains no ‘plain statement' that it rests on adequate and independent state law grounds," then the Supreme Court has jurisdiction in the case. Hawaii notes that the Supreme Court of Hawaii "did not even suggest that its decision rested on adequate and independent state law grounds, let alone make [a] ‘plain statement' to that effect . . . ." Moreover, Hawaii argues that the judgment of the Hawaiian Supreme Court contradicts federal law (in the form of the Newlands Resolution and subsequent federal enactments, see infra) and thus is reviewable by the U.S. Supreme Court.
Fiduciary Responsibility to Native Hawaiians and the Role of the Apology Resolution
The Office of Hawaiian Affairs interprets the holding of the Supreme Court of Hawaii to be that the state of Hawaii has a fiduciary duty to Native Hawaiians not to sell the ceded lands. Importantly, OHA contends that this duty arises under state law, not federal law. Specifically, OHA points to Article XII, Section 4, of the Hawaii Constitution, which says that the land that the federal government ceded to Hawaii "shall be held by the state as a public trust for Native Hawaiians and the general public." OHA contends that the Supreme Court of Hawaii relied on the Apology Resolution in its reasoning "simply to support the factual premise that Native Hawaiians have unresolved claims to the ceded lands . . ." and not as a statement of federal law.
Hawaii, on the other hand, argues that nothing in the Apology Resolution supports the idea that it cannot transfer the land until it has reached some reconciliation with Native Hawaiians. Indeed, Hawaii argues that "Native Hawaiians have a clear moral basis for asking the political branches to grant them recompense . . . [b]ut Native Hawaiians have no legal claim to the ceded lands that federal law permits any court to recognize." According to Hawaii, the Apology Resolution is just "a straightforward statement of regret" and does not change any legal rights. In support of this contention, Hawaii points to the legislative history of the Apology Resolution. For example, the Senate Report that accompanied the Apology Resolution specified that the Resolution would not change existing law.
Does the Decision of the Hawaii Supreme Court Contradict Federal Law?
The state of Hawaii argues that the decision of the Supreme Court of Hawaii contradicts federal law by violating both the U.S. Constitution and existing congressional enactments. Hawaii contends that the Newlands Resolution, the Organic Act of 1900, and the Admission Act of 1959 all bar any claims by Native Hawaiians to the ceded lands. The Newlands Resolution was signed into law in 1898, and it "vest[ed] absolute and unreviewable title [of Hawaii] to the United States." The Organic Act supplemented the Newlands Resolution by adopting a government for the territory. Hawaii argues that the Organic Act "confirm[ed] the extinguishment of any Native Hawaiian or other claims to the ceded lands." Finally, the Admission Act transferred the United States' title to the land to the state of Hawaii. Hawaii's position is that "Congress has absolute and judicially unreviewable authority to extinguish, with or without just compensation, communal claims to public lands brought on behalf of an entire native group." For these reasons, Hawaii claims that if OHA's interpretation of the Apology Resolution was correct, the Resolution would be unconstitutional. Hawaii reasons that Congress cannot constitutionally rescind title to land which a state obtained upon entry to the Union. Moreover, Hawaii argues that OHA's interpretation of the Apology Resolution violates federalism principles by requiring the state of Hawaii to engage in a reconciliation process with Native Hawaiians.
In response, OHA argues that its interpretation of the Apology Resolution (and the interpretation of the Supreme Court of Hawaii) is legal. Drawing on its contention that the Supreme Court of Hawaii relied on the Apology Resolution only in its factual finding, OHA claims that a state court is not barred from making such a determination. Indeed, OHA says that the Supreme Court of Hawaii did not interpret the Apology Resolution in such a way as to create any new legal responsibilities. Finally, OHA argues that the state of Hawaii did not properly raise its argument concerning the Newlands Resolution and the Admission Act because the argument was not within the scope of the question presented. Moreover, the state did not mention the Newlands Resolution in state court.
Discussion
On January 17, 1893, the Hawaiian Monarchy was overthrown by non-Hawaiian native inhabitants of the island and a Provisional Government was established. Hawaii's then queen, Queen Liliuokalani, was dethroned and imprisoned and forced to relinquish control to the new Provisional Government. The Provisional Government was able to overthrow the Hawaiian monarchy because of the assistance of the United State Minister assigned to Hawaii and of the U.S. naval forces assigned to Hawaii. One hundred years later, the United States apologized for its role in the overthrow of the Hawaiian monarchy in the "Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii" (the "Apology Resolution"), signed into law by President Clinton.
For 61 years Hawaii operated as a Federal territory with the United States owning 1.8 million acres of land on the islands which the Provisional Government ceded to the United States. In 1959, Hawaii became the fiftieth State of the Union and the federal government transferred 1.2 million acres to the State to be held in trust for the benefit of the people of Hawaii. This suit concerns a dispute over who controls the future of that land: the Hawaiian government or Native Hawaiians.
Thirty-two States, writing as amici, point out that "every state admitted into the Union since 1802 has received grants of land from the United States." They note that these lands, held in trust for the benefit of the citizens, play a vital role in supporting state programs and institutions. The States contend that if the Supreme Court finds that later enacted congressional resolutions cloud their titles to these lands and limit their ability to utilize and dispose of these lands, the integrity of these public programs would be put at significant risk. The States read the Apology Resolution as not being inconsistent with the Admission Act that granted Hawaii the "right to own lands free and clear from later actions of Congress." The Apology Resolution was "simply intended to apologize" and therefore did not work to amend the Admission Act, which means that Hawaii maintains unclouded title to the lands it was granted.
The OHA views the Apology Resolution not as a standalone declaration but as a part of an ongoing "reconciliation process" between Native Hawaiians and the United States. The Equal Justice Society notes that the ceded lands hold "unique cultural, spiritual and political significance" for Native Hawaiians. It further notes that Hawaii's government has recommitted to the reconciliation process and to settling the Native Hawaiians' claims to the ceded land numerous times. It concludes that if the sale of the Leiali'i parcel is permitted to move forward it will breach the State's trust obligations, and irreparably harm the reconciliation process.
The United States argues that its ownership of certain lands in Hawaii is put at risk by the Hawaii Supreme Court's decision. The United States argues that the Apology Resolution is solely a public expression of regret "for the events of a century before." The Hawaii Supreme Court, it argues, misconstrues the Apology Resolution as affecting a change in "the body of law" governing the ceded lands the United States acquired in 1898. If this reading is permitted to stand, then the nearly 300,000 acres of land the federal government continues to own in Hawaii would be subject to competing ownership claims as well. Similarly, the "sensitive military and scientific installations" the federal government has placed on lands leased from Hawaii would also be at risk.
Princess Abigail Kinoiki Kekaulike Kawananakoa, a descendent of the Hawaiian royal family, argues that the original transfer of the land from the Hawaiian kingdom to United States was invalid. She notes that Native Hawaiians only developed a system of land ownership in response to pressure from Western countries. However, she argues that the land owned by the Hawaiian monarchy was not private property, and was not able to be passed to a third party; rather, that land could only be passed to a monarch's successor. She concludes that if the Supreme Court upholds the Hawaiian Supreme Court's decision, it will validate an illegal, forced transfer of land, and will end the reconciliation process.
Conclusion
This case will determine whether the Apology Resolution changes the legal duties and obligations of the parties involved or whether it is simply a statement of regret by the federal government. More importantly, the outcome of the case will have far-reaching implications for land in other states which may be subject to competing claims of ownership by natives: the Court's decision will dictate whether natives to a territory have any claim to land in that territory. Finally, the Supreme Court's decision will settle the extent to which a state court may rely on federal law in its fact-finding.
Written by
Edited by
Acknowledgments
Additional Resources
- On the Docket: U.S. Supreme Court News
- Oyez
- Cato Institute article
- Pacific Legal Foundation article
- Inversecondemnation.com: A blog entry about the case, along with further links