U.S. DOJ Submits Amicus Curiae Brief in Support of the State’s Position in Ceded Lands Case

On December 11, 2008, the U.S. Department of Justice (“DOJ”) submitted a Brief for the United States as Amicus Curiae Supporting Petitioners in the Ceded Lands Case. The DOJ’s position is that the judgment of the Supreme Court of Hawaii should be reversed; i.e., the injunction on the sale of ceded lands by the State should be lifted.

The DOJ frames the question as follows:

[W]hether federal law required or permitted the Supreme Court of Hawaii to enjoin the State of Hawaii from selling lands that the United States obtained in absolute fee upon the annexation of Hawaii in 1898 and granted to the State, to hold in trust, upon its admission to the Union.

The DOJ identifies two issues that “implicate significant federal interests”:

1. “The State’s title to the trust lands derives from the 1898 Act of Congress annexing Hawaii; the State holds the lands pursuant to a federal trust; and the United States is empowered to enforce the trust’s requirements”; and
2. “[T]he United States owns approximately 300,000 acres of land in Hawaii, acquired in the 1898 annexation; maintains sensitive military and scientific installations on trust lands leased from the State; and engages in other land transactions with the State.”

The DOJ summarizes its argument as follows:

The Supreme Court of Hawaii misread the Apology Resolution to reverse a century’s worth of federal law and policy governing the United States’ 1898 annexation of Hawaii and its acquisition and treatment of ceded lands. The Apology Resolution did not change that body of law, or any existing law. Nor did it take the dramatic and disruptive step of stripping the State’s authority to sell, exchange, or transfer lands held in the federal trust, which would have been a significant intrusion on the State’s authority in this important sphere. Instead, Congress opted simply to express regret for the events of a century before.

First, “the United States accepted those lands, it took absolute title, irrespective of their history” and “that the United States’ perfect title extended to the entire cession.” The DOJ argues that “when the United States acquires territory, determination of the ceding sovereign’s ability to pass valid title is a matter for the political Branches, bound up with the powers to recognize governments and make treaties”; therefore, “[n]either [the Supreme Court] nor other court may second-guess those determinations, in a title suit or otherwise.” The DOJ argues that ceded lands are governed by the Admissions Act, which "gives the State authority to sell trust lands, as do the state constitution and statutes.” By the terms of the Admissions Act, "[t]he state court was not free to limit that authority and the State’s important interests, especially when doing so would be inconsistent with the federal trust and with the State’s underlying federal-law title to the trust corpus.”

Second, the DOJ argues that “[t]he Apology Resolution did not alter these well settled principles or intrude on state authority in the manner found by the state supreme court.” The Apology Resolution, according to the DOJ's argument, “simply expressed the Nation’s regret for past events and support for efforts to seek 'reconciliation' in the future” and that “Congress made no substantive change in the law[.]”

The gist of the DOJ’s argument is that the transfer of land from the Kingdom of Hawaii, to the Republic of Hawaii, to the United States, and finally to the State of Hawaii resulted in fee simple ownership by the State with unclouded title, limited only by the terms of the Admissions Act.