29 states urge U.S. Supreme Court to hear Hawaii ceded lands case

By Chris Rizo | Jun 8, 2008

Mark Bennett

HONOLULU (Legal Newsline)-Twenty-nine states have asked the U.S. Supreme Court to accept an appeal by Hawaii Attorney General Mark Bennett, who wants the high court to overturn a recent state court decision that prevents Hawaii from selling or transferring ceded lands.

The attorney general filed the Petition for a Writ of Certiorari on Jan. 31 to reverse a decision by the Hawaii Supreme Court in a case between the Office of Hawaiian Affairs and the Housing and Community Development Corporation of Hawaii.

In that case, the state justices ruled that the 1993 Congressional Apology Resolution prohibits the state from selling, exchanging or transferring any of the more than 1.2 million acres of ceded land until it reaches a settlement with native Hawaiians.

Urging the U.S. justices to hear the case, Washington Attorney General Rob McKenna wrote for his and the other states that the Hawaii Supreme Court "misconstrued" the Apology Resolution.

The congressional resolution acknowledges the 100th anniversary of the overthrow of the Kingdom of Hawaii and apologizes for the U.S. government's role in abolishing Hawaii's monarchy.

"Notwithstanding express language showing that Congress had simply adopted a symbolic apology, the Hawaii court held that the Apology Resolution singled out and diminished the state's title to lands received at statehood," McKenna wrote.

In the brief, McKenna said: "A question of federal law of the magnitude presented by this case concerning the legal interests of a sovereign state in its state lands merits the attention of this court."

Ceded lands account for about 29 percent of Hawaii's total land area and almost all state-owned lands. Currently, the state receives millions annually in rents from tenants of the land.

When Hawaii was annexed by the United States in 1898, lands formerly held by the monarchy were ceded to the United States and later transferred in trust to the state.

The lands' purposes include for the support of public schools and other public education institutions, for the betterment of conditions of native Hawaiians, for the development of farm and home ownership, for public improvements; and for public use of the lands.

The U.S. Supreme Court could decide by October if it will consider the case and a decision could be made by June 2009.

From Legal Newsline: Reach reporter Chris Rizo by e-mail at chrisrizo@legalnewsline.com.

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