Commentary on the Hawaii v. Office of Hawaiian Affairs Oral Argument

In all of the hullabaloo surrounding Carcieri and Navajo Nation II, you may have forgotten that the Supreme Court heard oral argument in a claim involving the Native Hawaiians, Hawaii v. Office of Hawaiian Affairs. Like the other two cases, the Supreme Court very clearly granted cert in this case in order to reverse. The only real discussion in this case was how far the Court would go in reversing.

The Hawaii Supreme Court held below that a Congressional apology resolution from a few years back had legal effect sufficient to prevent the State from selling Native Hawaiian trust lands. The question presented has to do whether the apology resolution has that legal effect.

The petitioner’s argument started right off with the moderate wing of the Court assuming that the apology resolution has no legal effect. They pressed the Hawaii Attorney General for reasons why the Court should do anything more than simply vacate and remand. In short, the question presented is already answered, probably 9-0.The only real question is whether to allow the Hawaii SCT to reconsider their decision under state law grounds alone, or whether to foreclose even that possibility by holding that federal law prevents the State from having a trust relationship to Native Hawaiians vis a vis this land.

At one point Justice Breyer suggests that the Court issue a 3-sentence per curiam opinion vacating the Hawaii SCT opinion and remanding for determination on the question of whether there are independent state law grounds for the trust responsibility (p. 33). I imagine Ginsburg, Stevens, and Souter, JJ. will agree. But Justice Scalia and Chief Justice Roberts don’t see how there could possibly be any trust relationship because the US granted the land free and clear to the State (pp. 38-39). Alito and Thomas, JJ. are with them.

Justice Kennedy may have betrayed his hand a little on page 10 when he seems to side with the moderates:

It seems prudent for us to confine our decision to the effect of the Apology Resolution and whether or not the Hawaiian Supreme Court got that part of that right.

If so, then a small victory for the Native Hawaiians. We’ll have to see what the opinion looks like. No doubt a 9-0 vacature on the question presented, though.