The Supreme Court today restored Hawaii's authority to sell 1.2 million acres of state land without resolving prior claims by native Hawaiians.
"The state Supreme Court incorrectly held that Congress, by adopting the Apology Resolution, took away from the citizens of Hawaii the authority to resolve an issue that is of great importance to the people of the state," Justice Samuel Alito wrote for the court in a unanimous decision, which reversed and remanded the case.
In 1994, the Office of Hawaiian Affairs and four native Hawaiians filed a lawsuit to prevent the state from selling public land to residential developers.
In 2002, a state court ruled that Hawaii could sell the lands. But in January, the Hawaii Supreme Court reversed the ruling, contending that Congress' 1993 Apology Resolution prohibited the state from selling or exchanging any of its land unless and until a political settlement was reached with native Hawaiians.
Hawaii Attorney General Mark Bennett (R) asked the U.S. Supreme Court to hear the case. Attorneys general of 29 other states filed a friend-of-the-court brief, agreeing with state officials who contend that the Apology Resolution should be construed as strictly symbolic.
During oral arguments before the court in February, Bennett urged the justices to go beyond addressing the effect of the apology resolution and consider who had proper ownership of the ceded land.
Justice Ruth Bader Ginsburg expressed reservations about doing so. "Why is it necessary? Why isn't it sufficient just to say that this resolution has no substantive effect, period?" she asked during the arguments.
Meanwhile, Justice Antonin Scalia seemed to be leaning in the opposite way.
"As I read federal law, it extinguished all property rights in these lands," Scalia argued at the time. "If you are telling me the Hawaii Supreme Court is now finding as a matter of state law that there is a property interest on the part of the native Hawaiians -- I don't care what you call it, equitable or whatever -- it seems to me that is flat contradiction of federal law, and probably is an issue that we ought to address in this opinion."
Today's opinion did not "venture in that direction," said Matthew Fletcher, director of Michigan State University's Indigenous Law Center.
"While the court imagined during oral argument -- in particular, Justice Scalia -- that it could rule that under no circumstances under federal or state law could the Office of Hawaiian Affairs prevent the sale of the land by the state, it did not venture in that direction, leaving it to the state court to decide," he said.
Fletcher added, "The case on remand to the Hawaii Supreme Court will be about whether there is an independent state law ground for the outcome reached below. I suspect both parties to the case are reasonably pleased with the result -- which is a remand."
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