Supreme Court opinion on State's Ceded Lands appeal

opinion given by the Supreme Court on the issue of the sale of ceded lands as reported by the New York Times on March 31st seems very straight forward and their decision was predictable given the narrowness of the question presented. As it was earlier reported last October: If, as the “Question Presented” to the Supreme Court asks, “whether this symbolic [Apology] 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,” was really the narrow focus of the appeal, then the U.S. Supreme Court should simply ask that the Hawaii Supreme Court revisit the case without the Apology Resolution. If the “Question Presented” was really the focus of this appeal, the case would then be retried without the Apology Resolution, which based upon the previous documents (Acts 340, 354 and 359), the Hawaii Supreme Court decision would likely remain unchanged. These three documents: Act 340 (1993), “An Act Relating to the Island of Kaho’olawe,” Act 354 (1993) and Act 359 (1993), “An Act Relating to Hawaiian Sovereignty,” were passed in the spring of 1993 by the Hawaii State Legislature, commemorating the 100th anniversary of the overthrow of the Kingdom of Hawaii. It was only after the State of Hawaii enacted these into law did the U.S. Congress in November 1993, pass a “Joint Resolution recounting the events [relating to the overthrow] in some detail and offer an apology to the native Hawaiian People,” thus the Apology Resolution. On page 13 of the slip opinion, Justice Alito who delivered the opinion of the court, writes: “whereas” clauses like those in the Apology Resolution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, “where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation . . . , a court has no license to make it do what it was not designed to do.” Since the Newlands Resolution, like the Apology Resolution was a joint resolution, and both carry these grand declarations of the “whereas” clauses– could it then not be argued that the “Joint Resolution to provide for Annexing the Hawaiian Islands to the United States,” (Newlands Resolution) has the same operative effect as the Apology Resolution? If this were to be argued in the Hawaii Supreme Court, how should the people be prepared to benefit or be injured from this analogy– to press the point– if the Apology Resolution is invalidated, then so too, might not the Newlands Resolution also be held to the same inoperative considerations of the law? What this Supreme Court case seems to have ruled upon is that the political question of “ownership” over these crown lands is something that individual states need to decide upon. That there will be no federal recognition of the Apology Resolution as a “clear and manifest” statement on amending the Admissions Act is what appears most evident in this ruling, and that any change of the Admission Act is– and will likely be– a consequence determined by the state legislature, i.e., the people of Hawaii. The ruling is certainly not a victory for the current administration of the State of Hawaii as the Wall Street Journal and the Los Angeles Times suggest, misrepresenting this trial as if Native Hawaiians were submitting the Apology Resolution as a restitution case with the Supreme Court. Rather, the opinion of the courts was more of an articulation of the principles of democracy as laid out by the 10th Amendment of the Constitution, whereby, “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” At least the Honolulu Advertiser, was more on point when it wrote, “Yesterday’s decision was fairly narrow. In its 15-page unanimous ruling, the Supreme Court determined that the Apology Resolution signed by President Bill Clinton in 1993 did not change the state’s legal rights to manage the ceded lands in any way.” Although this ruling does not strip the state of its authority to sell or transfer about 1.2 million acres of land, it also does not prevent OHA from challenging efforts by the State or individual plaintiffs from further attempts at chiseling away at Native Hawaiian entitlements. In other words, except for the Supreme Court’s gift of metaphorically diminishing the Newlands Resolution to little more than further “clouding” the legitimacy of “annexation,” this appeal maintains the ongoing debate over who really owns the crown lands of Hawai’i. Unless it is Attorney General Mark Bennett’s strategy to walk blindly into this paradoxical dilemma, isn’t it possible that parties will keep the Newland’s Resolution out of this trial– or avoid another trial altogether? Depending on the Supreme Court’s formal judgement, this case may also just fade out with a whimper, at least until another trial initiated by Bill Burgess or the Grassroot Institute resurfaces to once again challenge Native Hawaiian entitlements.]]>

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