At the end of last month the United States Supreme Court (USSC) unanimously reversed the decision of the Hawaii Supreme Court (HSC) in Office of Hawaiian Affairs (OHA) et al vs. State of Hawaii.
The HSC had held that under the authority of the Apology Resolution adopted in 1993 by the Congress the State could not make a disposition of the former crown lands that were ceded to the United States when Hawaii became a territory without settling the claims of OHA on behalf of native Hawaiians.
The opinion of Justice Samuel Anthony Alito, Jr. speaking for the USSC found that the HSC had erred in its reliance on the Apology Resolution as having substantive significance to support its conclusion.
The USSC made it clear that the Apology Resolution was merely an expression of regret without substantive legal effect. The court said it would “raise grave constitutional concerns” if any act of Congress purported to cloud Hawaii’s title to the ceded lands so long after its admission to the Union. The USSC carefully disclaimed any ruling as to Hawaiian law, but as the HSC opinion was based on its misreading of the Apology Resolution, the case was remanded back to the HSC for proceedings consistent with the USSC opinion.
The USSC opinion was relatively narrow. Let’s review what it did and did not do.
The opinion considered in depth why the 1993 Apology Resolution should not be found to have substantive effect. It specifically distinguished measures such as the 1986 Civil Liberties Act apologizing to citizens of Japanese origin for World War II treatment and providing indemnity noting that when Congress wished to have a substantive benefit it so provided.
It noted that Federal law such as the Apology Resolution should not affect the conditions that established the Hawaiian state. It may have been inferred that neither should State law, but that was unsaid.
It did not address at all the questions as to whether benefits for Native Hawaiians were forms of racial discrimination. It appears implicit that the USSC is not sympathetic to the racial preference claims of the Hawaiian community.
A number of comments about the case have been heard.
Representative Neil Abercrombie said that we should not let a Native Hawaiian case go to the USSC . His view that if it begins in Hawaii it should be kept here seems inconsistent with his support for the Akaka Bill and is basically inconsistent with the concept of appeals in the legal system
The OHA chair, Haunani Apoliona, said that the USSC decision was favorable although that remark is hard to square with the fact that the opinion was in direct contravention of the arguments made by OHA.
A Washington Think Tank with an eye on the Akaka Bill offered the observation that Congress should refrain from inflaming racial divisions and instead treat all Hawaiians, regardless of race, with the legal equality to which they are entitled.
When the HSC acts following remand of the case to it, the legal phase of the question about the state’s ownership and right to alienate the ceded lands may end. It seems tenuous that the HSC will be able to find a legally sustainable ground needed to support any injunction against disposition of the lands, particularly after the wrist slapping the court received from the USSC, but the court has slipped out of tight holes before.
When the litigation subsides then the political games will begin. Anxious to appease the native Hawaiian activists some officials are saying that the ceded lands must never be sold or transferred. But economic reality is a powerful force. In these difficult financial times the revenue available from a disposition of state owned land may become irresistible. Measures being considered by the legislature would require transfers of ceded lands to be approved by the legislature and to impose a moratorium on such transfers. The fate of these bills is presently unknown.
An historical perspective is interesting. The ceded lands were owned by the governments of Hawaii. Following the annexation of Hawaii by America these lands were conveyed in the Organic Act to the Territory of Hawaii. At the time the population of Hawaii was about half of Polynesian descent with the remainder of various ethnicity. The Organic Act specified that the lands were to be held for “inhabitants” of Hawaii.
No racial or citizenship requirement was stated. About 60 years later when Hawaii became a State the lands were conveyed under the Admissions Act which provided that the land and its proceeds are to be held in trust for five purposes one of which is for the benefit of the “native Hawaiians as that term was used in the Hawaiian Homes Commission Act.”.
The Admission Act made no allocation among the five purposes, but this provision has been construed by our legislature as requiring that 20% of the proceeds are to be given to the Office of Hawaiian Affairs. Since the Homes Commission Act provides benefits only for persons having 50% or more Hawaiian blood and the OHA is intended to serve all persons having any Hawaiian lineage there is already a disconnect.
The political appeal of aiding those of Polynesian ancestry is apparent, and it is evident our legislature seems comfortable in interpreting laws to prefer them. This proclivity may have the effect of returning the issues to the courts. We will wait and see.
Walter Lewis is a retired attorney living on Kauai
