From the Hawaiian Reporter (via How Appealing):
The state of Hawaii and state Office of Hawaiian Affairs have contracted two of the nation’s top legal “heavy hitters” to back their respective side in a case being presented to the U.S. Supreme Court later this month over who has the right to sell the state’s “ceded lands” or crown lands left by Hawaiian royalty to the state.State attorney general Mark Bennett, Hawaii’s top state law enforcement officer, will present oral arguments himself on the state’s behalf in Hawaii v. Office of Hawaiian Affairs, No. 07-1372, but the state’s written brief is being prepared by Former Solicitor General of the United States, Seth Waxman, who is considered to be the “lawyer’s lawyer” on the most important cases before the Court.
Local attorneys consulted for this story say the Solicitor General’s office is deemed the “Tenth Justice” as its views on certain cases are taken extremely seriously by the Court. They say hiring Waxman demonstrates the state is serious about pursuing this case.
See more about Waxman here: http://www.wilmerhale.com/seth_waxman/
Not to be outdone, the Office of Hawaiian Affairs (OHA), which opposes the state in this case, has hired its own legal powerhouse.
Georgetown University Law Professor Neal Katyal was the attorney for OHA until a few days ago, but he had to withdraw as legal counsel after being appointed by President Barack Obama as the Assistant Solicitor General. Replacing him is Kannon K. Shanmugam, a former Assistant Solicitor General.
See more about him here: http://www.wc.com/attorney-KannonShanmugam.html
The federal government under the Bush administration filed an amicus brief supporting the State’s arguments.
Obama’s administration is also backing the state of Hawaii and in fact will use 10 minutes of Bennett’s 30 minutes of oral arguments to present the United States government’s position.
See the recent Obama filing here: Obama filed brief on behalf of state in ceded lands dispute
Twenty-nine states that filed amicus briefs or friend of the court briefs on the state’s behalf asserting: “The Supreme Court of Hawaii misconstrued the 1993 Apology Resolution…. 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.”
As local attorney Robert Thomas notes in his Hawaii Reporter article: “The twenty-nine amicus states and commonwealth ask the Court to grant the petition for two reasons. First the rule of law adopted by the Hawaii court conflicts with this Court’s holding regarding lands granted to the states. This Court’s decisions recognize that land cannot be taken from a state after it is granted at statehood. The Hawaii court’s ruling to the contrary is inconsistent with the plan of federalism in the Constitution. Second, the case involves a gross misapplication of federal law to impair the title to the majority of land owned by a sovereign state. 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.”
The question before the US Supreme court being posed later this month is “In the Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Congress acknowledged and apologized for the United States’ role in that overthrow. The question here is whether this symbolic resolution strips Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land-29 percent of the total land area of the State and almost all the land owned by the State-unless and until it reaches a political settlement with native Hawaiians about the status of that land.”
For more information on this case, see:
The amicus brief filed by the Pacific Legal Foundation in the case is posted here: http://www.inversecondemnation.com/inversecondemnation/2008/04/cert-petition-2.html
The State’s petition is posted here: http://www.inversecondemnation.com/inversecondemnation/2008/04/cert-petition-2.html
The Office of Hawaiian Affairs’ Brief in Opposition: http://www.inversecondemnation.com/inversecondemnation/2008/07/brief-in-opposition-in-ceded-lands-cert-petition.html
The brief of 29 states supporting Hawaii is here, and the amicus brief of the New Mexico Commissioner of Public Lands supporting cert is here: http://www.inversecondemnation.com/inversecondemnation/2008/06/another-amicus-brief-supporting-cert-in-ceded-lands-case.html
The Supreme Court’s case docket is here: http://www.supremecourtus.gov/docket/07-1372.htm
Turtle Talk 