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Notes from the SCOTUS on the
State of Hawaii V. OHA [SOH]
From the Oral
arguments-
OHA’s view of Hawaiian
claims:
MR. SHANMUGAM: [Attorney for
OHA] The Hawaii Supreme Court relied on Hawaii law only for the
existence of a fiduciary duty, and that fiduciary
duty has repeatedly been recognized by the Hawaii Supreme Court.
That duty gives Native Hawaiians an equitable or a beneficial
interest in these lands.
JUSTICE SCALIA:I don't
care what you call it; it's a property interest.
MR. SHANMUGAM: Well
-
JUSTICE SCALIA: As I read
theFederal law, it extinguished all property rights in these
lands; the lands were transferred to the Federal
Government; and the Federal Government transferred them in absolute
fee without any encumbrances to the State of Hawaii. Now, 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 in flat
contradiction of Federal law, and probably is an issue that we ought to
address in this opinion.
MR. SHANMUGAM: There are two
separate issues, Justice Scalia. The first is what was the source
for the injunction in this case. And the source of the injunction
was Respondents' instant claims for breach of fiduciary
duty.
Now, to be sure, we were
arguing that there would be a breach of the fiduciary duty to
Native Hawaiians precisely because Native Hawaiians have
underlying claims to the lands. And it's those
underlying claims that trigger all of these additional Federal
issues that Petitioners are now seeking to inject into the case.
But I think that the critical point for purposes of this
Court's review at this
stage is that in the Hawaii Supreme Court,we
freely and
repeatedly conceded that any underlying claims to the
cededlands
would be nonjusticiable.
[In other words, Hawaiians
have no legal claims to the Crown lands]
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Mr. Jay:…But for the State to
-- to act on considerations that are wholly extrinsic to the trust,
to treat the Native -- the claims of Native Hawaiians as
valid, even though they are -- and to assume a duty to the
Native Hawaiians that has nothing to do with the State's
obligations as trustee of the section 5(f) trust, we think that
would be impermissible.
JUSTICE SOUTER: But that
doesn't seem to be what the Supreme Court of Hawaii has done. The
Supreme Court of Hawaii, in effect, has said the land is tied up
until these people who are currently negotiating, the State, the
Native Hawaiians and what is it, the United Church of Christ, all come to a -- in effect, a
resolution and a reconciliation.
Whatever that
means, it does not
sound to me as though it is the recognition of a legal title
claim or indeed the validity, so far as courts are
concerned with validity, of any claim the Native Hawaiians are
making. They are just saying, no more land transfers until these
people sit down and make up their differences.
Isn't that all the court is
saying at this point?
MR. JAY: Well, the court said,
Justice Souter, that there is a fiduciary obligation not to make
these land transfers at any time until this indeterminate point in
the future at which reconciliation is achieved.
But to say -- to say that that
-- that they are not thereby pronouncing on the validity of
the title -- I think that's inconsistent with the Newlands
Resolution.
JUSTICE SOUTER: But doesn't --
isn't the fact that you and I are having this exchange a pretty
good indication that we don't know what they -- they meant exactly
by that? The only thing that we can be sure of is that that thought
the Apology Resolution had some legal significance. They said, you
know, it's required after the Apology Resolution. We can say you are right or you are
wrong, and I think we know what --what we are
talking about. But to go beyond that, it seems
to me, that we are wading into an argument that you and I can't
settle here.
[In other words the Validity
of title is not been decided]
From the
Opinion:
In 1893, “[a] so-called
Committee of Safety, a group of professionals and businessmen, with
the active assistance of John Stevens, the United States
Minister to Hawaii, acting with the United States Armed
Forces, replaced the [Hawaiian] monarchy with a
provisional government.”
[Speaks for itself]
United States, No. 55, 30 Stat.
750 (hereinafter Newlands Resolution). Pursuant to the Newlands
Resolution, the Republic of Hawaii “cede[d] absolutely
and without reserve to the United States of America all rights of
sovereignty of whatsoever kind” and further “cede[d] and
transfer[red] to the United States the absolute fee and ownership
of all public, Government, or Crown lands,
[Ok “Republic” is defined in
the first paragraph “Replaces” and the republics rights of
sovereignty of whatsoever kind is what becomes the legal basis for
what follows. “Replaces “is not a term of legitimate
transfer of power and title]
1“Crown lands” were lands formerly held by the
Hawaiian monarchy. “Public” and “Government” lands were
other lands held by the Hawaiian government.
[This footnote is interesting
in that there are no arguments where the legal origins of title
come from: the Mahele]
“Turning to the merits, we
must decide whether the Apology Resolution “strips Hawaii of
its sovereign authority to sell, exchange, or transfer” (Pet. for
Cert. i) the lands”
[This is the only question
before the court and does not affect Hawaiian claims to the trust.
Nor did they quash any ability to bring a claim]
“But we have no
authority to decide questions of Hawaiian law or to
provide redress for past wrongs except as provided for by
federal law. The judgment of the Supreme Court of Hawaii is
reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.”
Why does the court refer the
“Hawaiian Law” and Not State law? It at least recognizes the law
beginning in 1839 and including the Mahele. The State’s
perfect Title can only exist if they do not go further back then
1893. | 