Tuesday, March 31, 2009

Apology Resolution has no Legal Effect on Admission Act.

Hawaii v. OHA (SCOTUS March 31, 2009)

Background.  In 1893, the Hawaiian Kingdom was replaced with the Republic of Hawaii.  Under the Newlands Resolution of 1898, Congress proclaimed that the Republic of Hawaii ceded Government and Crown Lands to the federal government in fee.  In 1900, the Territory of Hawaii was established and Congress passed the Organic Act of 1900, which "made clear that the new Territory consisted of the land that the United States acquired in 'absolute fee.'"  In 1959, Congress admitted Hawaii to the Union through the Admissions Act.  The Admissions Act stated that "the United States grant[ed] to the State of Hawaii . . . the United States' title to all the public lands and other public property within the boundaries of the State of Hawaii[.]"  Admission Act § 5(b).  Public lands were held in trust to promote public purposes like the betterment of Native Hawaiians, developing home ownership, and public education.  Admission Act § 5(f).  Under state law, the State could alienate these lands provided that the proceeds went to those purposes.  In 1993, Congress passed the Apology Resolution.

Former crown lands on Maui were held by the State.  The Housing Finance and Development Corporation (HFDC) was permitted to remove the parcel and sell them to develop affordable housing.  The HFDC was required to compensate the Office of Hawaiian Affairs funds from the sale of those lands.  OHA sued for an injunction on the alienation of the lands on the grounds that there was a cloud on the title for Hawaiian ownership rights.  The trial court ruled against OHA, but the Hawai'i Supreme Court vacated.  According to the HSC, a "plain reading of the Apology Resolution . . . dictat[ed]" the vacation.  The HSC ordered an injunction on all ceded lands until the claims of the Native Hawaiians were resolved.  The State appealed to the Supreme Court of the United States (SCOTUS).

Federal Question Jurisdiction Found.  The SCOTUS first held that it had appellate jurisdiction to review the HSC's opinion.  The SCOTUS can review a state supreme court case when "a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion."  Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).  According to the SCOTUS, the HSC provided no plain statement that its decision rested on state law grounds.  As a matter of fact, the SCOTUS counted 77 references to the federal Apology Act and noted that the HSC's decision was "dictated" by the federal law.  Having relied so heavily on the pronouncements of the Apology Act, it was clear to the SCOTUS that the HSC did not come to its decision on independent state law grounds thereby exposing its decision to appellate review in Washington.

All Apologies.  Justice Alito, writing for an unanimous court, characterized the issue as whether the Apology Resolution deprived Hawai'i of its power to alienate state lands "that the United States held in absolute fee and granted to the State of Hawaii effective upon its admission into the Union."  The SCOTUS ruled that the Apology Resolution had no effect on the State's powers.  Congress, according to the SCOTUS, used verbs that were "conciliatory or precatory."  In the Resolution, Congress acknowledged, apologized, expressed commitment, recognized, and commended things.  "Such terms," according to the SCOTUS, "are not the kind that Congress uses to create substantive rights."

The State owns Ceded Lands in "Absolute fee."  The SCOTUS noted that the Admission Act required the State to hold ceded lands in trust for the public--including the betterment of Native Hawaiians--but held them in fee.  The Apology Resolution did not change that.  The SCOTUS gave three reasons why the Apology Resolution had no bearing on the Admission Act.  First, the HSC relied too much on the "whereas" clauses in the Resolution--clauses that have no operative effect.  See District of Columbia v. Heller, 554 U.S. ___, ___ n. 3 (2008).  Even if the clauses did have a legal effect, it would essentially repeal that portion of the Admission Act that gave the title in fee.  Implicit repeals are "not favored and will not be presumed unless clear and manifest."  Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 664, 662 (2007).  Finally, the SCOTUS reasoned that if the Apology Resolution did indeed affect the title to the ceded lands, it would have been a retroactive cloud on the title.  "Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State."  Idaho v. United States, 533 U.S. 262, 280 n. 9 (2001).  According to the SCOTUS, the same concept applies to "all of the State's public lands--not just its submerged ones[.]"

Knocked Back to Hawai'i on Remand.  The issue is not quite over.  The SCOTUS reversed the judgment of the HSC and remanded for further proceedings.  This means that the HSC will have a chance to write an opinion that comes to the same conclusion--the State cannot alienate ceded lands--but on independent state grounds.  That way it presents no federal question and could be shielded from federal review.  Then again, the SCOTUS could always review it to see if the opinion violates the Admission Act or the United States Constitution.  Perhaps the key to a review-proof opinion lies in the adoption of the homegrown standard for a permanent injunction.

So what just Happened?  It is unclear how far the implications behind this opinion go.  Reading it narrowly, the SCOTUS reviewed a simple federal question: whether the Apology Resolution had any legal effect on the Admission Act.  The answer was, without a doubt, no.  It relied primarily on statutory construction.  But in answering the question, the SCOTUS determined that, under the Admission Act, the State received the ceded lands in "absolute fee" in 1959.  It never, however, explored what "absolute fee" really means.  Not only does the Admission Act convey title in "absolute fee," but title is held in a public trust.  The uses of the land must be for certain public uses ranging from education to Native Hawaiians.  So does this mean that OHA can bring a breach-of-trust action against the State for the alienation of lands?  If so, does that mean that, as part of the remedy in such an action, it can enjoin it all over again?  These questions are also federal ones since they call on a court to interpret the terms of the Admission Act head on.  Perhaps in the next round.

No comments: