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February 5, 2009 4:48 PM

Who Owns 1.2 Million Acres in Hawaii? Waxman, Williams & Connolly Headed to SCOTUS to Find Out

Posted by Zach Lowe

The Am Law Daily is almost guaranteed to write about any U.S. Supreme Court case in which the briefs mention the Louisiana Purchase and the western world's first approaches to Hawaii in the late 1700s. So we were interested to learn that Hawaii's state government and a state agency that represents Native Hawaiians will argue before the Supreme Court on Feb. 25 over who owns 1.2 million acres of prime land in Hawaii--including a strip in Maui.

(A brief SCOTUS interruption: We're sure you've heard by now, but here's an update on Justice Ruth Bader Ginsburg's condition from the Legal Times, an Am Law Daily sibling publication. Ginsburg, 75, had surgery today for a recently discovered case of pancreatic cancer.)

The Hawaii Supreme Court found in favor of the Native Hawaiians, ruling that the state government could not sell the Maui land to a private developer without compensating Native Hawaiians or fully considering their claims to the land. It based its ruling on Hawaii's state constitution and a piece of 1970s state legislation that recognized the right of Native Hawaiians to about 20 percent of the state's land. The rules say the government can only sell the land for five reasons--including that the sale will somehow benefit Hawaii's native peoples.

The state appealed to the U.S. Supreme Court and retained Seth Waxman, the former solicitor general and current Wilmer Culter Pickering Hale and Dorr partner, to argue the case. The Office of Hawaiian Affairs, the agency fighting for the native peoples, has retained Williams & Connolly partner Kannon Shanmugam, who served as assistant to the solicitor general after Waxman's tenure ended. (Interesting fact: Shanmugam was Williams & Connolly's first lateral hire in 22 years when he moved to the firm last October.)

Waxman and Hawaii's attorney general, Mark Bennett, claim that the U.S. took rightful ownership of all public Hawaiian land when they annexed Hawaii as a territory in 1898--five years after a group of American businessmen orchestrated the overthrow of Hawaii's last monarchy. Congress restated that claim when the U.S. admitted Hawaii as a state in 1959, the Waxman-Hawaii brief says. (This is the brief that details how the U.S. claimed ownership of lands in the Louisiana Purchase--catnip to history nerds like us).

The Williams & Connolly team says the state constitution, amended in the late 1970s, guarantees the Native Hawaiians' rights to a claim on the land. A quick sale, even for one of the five approved purposes (such as building more public housing), would cut short an ongoing state process of sorting out Native claims--and possibly short change the native population.

Also at issue: The U.S. officially apologized to Hawaii for the government's role in the 1893 coup; the apology, issued in 1993, recognized the right of Native Hawaiians to the land. Whether that apology has any legal impact is part of the argument.

Interestingly, the Obama administration filed papers last week supporting Hawaii's position and asking the court for ten minutes of argument time. Obama, of course, was born in Hawaii. The brief, filed by acting Solicitor General Edwin Kneedler, says the U.S. has key interests (including military bases) on the disputed land; there appears to be some disagreement over whether the Pearl Harbor base is on the 1.2 million acres at issue. 

Also interesting: this is a sequel of sorts for Waxman and the Hawaii attorney general's office. In 2004, Hawaii retained Waxman for a cert petition asking the Court to review Hawaii's right to cap the amounts big oil companies charge gas station owners. The Supremes ruled unanimously in Hawaii's favor. Waxman says Bennett will be the one arguing before the high court.

The case also brings in claims of moral law. The Williams & Connolly brief includes this sentence: "Regardless whether Native Hawaiians have legal claims to ceded land, however, they clearly have broader moral and political claims." It will be interesting to hear what the justices make of this.

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It seems nobody dares to speak up. Where and who are all those people with their heads in the sand.
I am standing with the State and the US Government. Those people could have spoken up in 1959 whe they voted to become part of the USA. It is done and it is final. We are the USA and proud of it.

Many polls say that most of us here in Hawaii don't think native Hawaiians have a special relationship with the U.S. and should just be treated like any other race. I agree. Hawaiian history is nothing like that of Indian tribes. Most of the reticent public here is just asleep on this issue as the movement grows to enormous proportions. The politicians are beholden to a 25% voting block.

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