SUBHEAD: Will the Supreme Court rule against the people of Hawaii and for the government apparatus?
By AP Staffon 25 February 2009 in Honolulu Star Bulletin
Image above: OHA organized demonstration on issue in 2008 http://www.oha.org/kwo/loa/2008/12/story04.php
After years of legal wrangling, the state court last year halted sales of the “ceded lands” until Native Hawaiian claims to those lands are put to rest.
The state court’s decision, rested in part on a joint congressional resolution acknowledging and apologizing for the role that the United States played in the overthrow of the Kingdom of Hawaii on Jan. 17th, 1893.
Bennett stressed two points. First, the resolution marking the 100th anniversary of the overthrow was an apology that did not change who had proper title to the lands in question.
"It was, as the sponsor said at the time, a simple apology, and no more,” Bennett said.
But he also urged the court to go a step further and confirm the state’s sovereign authority over the land. Several justices voiced a reluctance to do so.
“Why is it necessary? Why isn’t it sufficient just to say that this resolution has no substantive effect, period,” asked Justice Ruth Bader Ginsburg.
The Office of Hawaiian Affairs sued the state to prevent it from selling some of the property in question. Speaking for the office, Shanmugam discounted the apology resolution’s effect on the state court’s decision. He said that state law created the fiduciary duty ensuring that interests of native Hawaiians were properly addressed.
The state court made clear that it was relying on the apology resolution only for the acknowledgment that native Hawaiians had unresolved claims, he said.
Ginsburg didn’t seem to agree though.
She said the Hawaii Supreme Court stated that its decision was “dictated by” the apology resolution. Those representing native Hawaiians in the legal battle were “treating it now as sort of window dressing, icing on the cake, really didn’t matter.”
Shanmugam replied it was more than window dressing. The resolution confirmed the factual predicate that lands were illegally taken away. But he said the original lawsuit only focused on state law.
Ginsburg said she was concerned that the state court used the federal law as its basis for its decision, and that it used the federal law as a crutch. “What that does is it removes it from the Hawaii political process.”
Some legal analysts say a ruling against the state of Hawaii could set a precedent for other native populations to make claims to lands they once inhabited. A decision in the case is not expected until June.
End of Star Bulletin story
Docket Item # 07-1372: State of Hawaii vs Office of Hawaiian Affairs
Below is a history of the case from the U.S. Supreme Court website.The link has contact information about aall parties, their representatives and friends of the court.
| No. 07-1372 | ||||
| Title: |
| |||
| Docketed: | May 2, 2008 | |||
| Lower Ct: | Supreme Court of Hawaii |
| Case Nos.: | (25570) |
| Decision Date: | January 31, 2008 |
| Questions Presented |
| ~~~Date~~~ | ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~ |
| Apr 29 2008 | Petition for a writ of certiorari filed. (Response due June 2, 2008) |
| May 7 2008 | Order extending time to file response to petition to and including July 2, 2008, for all respondents. |
| Jun 2 2008 | Brief amicus curiae of Pacific Legal Foundation filed. |
| Jun 2 2008 | Brief of respondents Office of Hawaiian Affairs, et al. in opposition filed. |
| Jun 2 2008 | Brief amicus curiae of Commissioner of Public Lands for the State of New Mexico filed. |
| Jun 2 2008 | Brief amici curiae of Washington, et al. filed. |
| Jul 14 2008 | Reply of petitioners Hawaii, et al. filed. |
| Jul 16 2008 | DISTRIBUTED for Conference of September 29, 2008. |
| Oct 1 2008 | Petition GRANTED. |
| Nov 6 2008 | Letter from counsel for the petitioners consenting to the filing of amicus curiae briefs, in support of either or neither party, filed. |
| Nov 12 2008 | The time within which to file the joint appendix and petitioners' brief on the merits is extended to and including December 4, 2008. |
| Nov 12 2008 | The time within which to file respondents' brief on the merits is extended to and including January 21, 2009. |
| Dec 1 2008 | Letter from counsel for the respondents consenting to the filing of amicus curiae briefs in support of either or neither party filed. |
| Dec 4 2008 | Joint appendix filed. Statement of costs received. |
| Dec 4 2008 | Brief of petitioners Hawaii, et al. filed. |
| Dec 8 2008 | SET FOR ARGUMENT ON Wednesday, February 25, 2009. |
| Dec 11 2008 | Brief amicus curiae of United States filed. |
| Dec 11 2008 | Brief amicus curiae of Mountain States Legal Foundation filed. |
| Dec 11 2008 | Brief amici curiae of Pacific Legal Foundation, et al. filed. |
| Dec 11 2008 | Brief amici curiae of Grassroot Institute of Hawaii, et al. filed. |
| Dec 11 2008 | Brief amicus curiae of Center for Constitutional Jurisprudence filed. |
| Dec 11 2008 | Brief amici curiae of Washington, et al. filed. |
| Dec 11 2008 | Brief amicus curiae of Commissioner of Public Lands for the State of New Mexico filed. |
| Dec 19 2008 | CIRCULATED. |
| Dec 31 2008 | Record received from the Supreme Court of Hawaii. (1 box) |
| Jan 8 2009 | Record received from the First Circuit Court of Hawaii. (11 boxes) |
| Jan 12 2009 | The time within which to file respondents' brief on the merits is extended to and including January 22, 2009. |
| Jan 22 2009 | Brief of respondents Office of Hawaiian Affairs, et al. filed. (Distributed) |
| Jan 28 2009 | Brief amici curiae of Native Hawaiians, Samuel L. Kealoha, et al. filed. (Distributed) |
| Jan 29 2009 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. |
| Jan 29 2009 | Brief amici curiae of Native Hawaiian Legal Corporation, et al. filed. (Distributed) |
| Jan 29 2009 | Brief amici curiae of Asian American Justice Center, et al. filed. (Distributed) |
| Jan 29 2009 | Brief amicus curiae of Hawai'i Congressional Delegation filed. (Distributed) |
| Jan 29 2009 | Brief amicus curiae of Abigail Kinoiki Kekaulike Kawananakoa filed. (Distributed) |
| Jan 29 2009 | Brief amici curiae of Sovereign Councils of the Hawaiian Homelands Assembly, et al. filed. (Distributed) |
| Jan 29 2009 | Brief amicus curiae of Alaska Federation of Natives, Inc. filed. (Distributed). |
| Jan 29 2009 | Brief amici curiae of Current and Former Hawaii State Officials filed. (Distributed) |
| Jan 29 2009 | Brief amici curiae of Equal Justice Society, and Japanese American Citizens League filed. (Distributed) |
| Jan 29 2009 | Brief amicus curiae of National Congress of American Indians filed. (Distributed) |
| Feb 3 2009 | Corrected Petition Appendix A filed. (Distributed) |
| Feb 6 2009 | Reply of petitioners Hawaii, et al. filed. (Distributed) |
| Feb 20 2009 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. |
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