Hawaii v. Office of Hawaiian Affairs – Oral Argument – February 25, 2009

Media for Hawaii v. Office of Hawaiian Affairs

Audio Transcription for Opinion Announcement – March 31, 2009 in Hawaii v. Office of Hawaiian Affairs

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 07-1372, Hawaii v. The Office of Hawaiian Affairs.

General Bennett.

Mark J. Bennett:

Mr. Chief Justice, and may it please the Court: A 1993 congressional apology resolution did not alter Hawaii’s right to transfer its public lands or repeal, by implication, prior congressional enactments that had extinguished all competing claims to those lands.

It was, as its sponsor said at the time, a simple apology, and no more.

The lands in question were the former crown and government lands of the Kingdom of Hawaii.

The Republic of Hawaii was the successor in interest in ownership to those lands and was recognized as such by the United States.

The 1898 Newlands Resolution of Annexation recited that the Republic of Hawaii was ceding the absolute fee ownership of those lands to the United States, and that that cession was accepted, ratified, and confirmed.

Once the United States Congress so acted, all competing claims to title were extinguished, and under precedent going back almost 200 years, the determinations by Congress to accept the cession were final and conclusive on any court.

John Paul Stevens:

Excuse me.

Does that proposition settle the question whether your opponents had an equitable interest in the lands?

Mark J. Bennett:

Your Honor, what the Respondents have contended from day one of this case is that they have a property right in this — in the land, and the Newlands Resolution conclusively settled that question.

There is no property interest that could have competed with the United States’ perfect title.

That perfect title was passed to the State of Hawaii in 1959 through the 1959 Hawaii Admission Act, which–

Anthony M. Kennedy:

But would the State of Hawaii, under Hawaii law, be entitled to take the position, if it so chose, that as the new owner of the lands, it has a special duty as a trustee that some other owner might not?

Mark J. Bennett:

–Your Honor, the Admission Act gives the State the right to manage and dispose of the lands according to State law.

So the political branches certainly have the right to decide which lands they are going to use for which of the five purposes–

Anthony M. Kennedy:

But then — then it’s just a question of whether the Hawaiian Supreme Court — assuming that it made the decision that I hypothetically stated — whether the Hawaiian Supreme Court, as opposed to the Hawaiian Legislature, could make the determination of whether or not there is some special trust obligation imposed on the State of Hawaii by reason of its own duties.

Mark J. Bennett:

–But, Your Honor, in this case what Respondents urged was that the Apology Resolution changed the legal landscape and commanded the State to hold these lands possibly in perpetuity without alienation.

The Hawaii Supreme Court specifically found that the Apology Resolution dictated the result here, that plaintiffs claims did not even arise until the Apology Resolution was signed into law by President Clinton.

In addition, the plaintiffs — the Respondents urged upon the Hawaii Supreme Court a property right, a property and ownership interest in these lands.

Even if–

Ruth Bader Ginsburg:

But, General Bennett, if I understand correctly, looking to your question presented, the only thing before us is the effect of the Apology Resolution.

The question presented doesn’t say anything about the Admissions Act or the Newlands Resolution.

So shouldn’t we just stick to the question as you presented it?

Whatever the picture is, does the Apology Resolution have any substantive effect?

Mark J. Bennett:

–Your Honor, that certainly is one question before the Court, but we believe fairly included in that question is the issue of the nature of the State’s sovereign authority.

The question presented talks about whether the Apology Resolution changed in any way the State’s sovereign authority, and that question — certainly anterior and predicate to an intelligent resolution of that question is the nature of the State sovereign.

Ruth Bader Ginsburg:

Why is it necessary?

Why isn’t it sufficient just to say that this resolution has no substantive effect, period, and then remand to the Hawaii Supreme Court?

Mark J. Bennett:

Because, Your Honor, the Hawaii Supreme Court’s decision also rests on a premise foreclosed by Federal law, that is that there are competing claims to title.

Mark J. Bennett:

As late as page 18 of the red brief, Respondents even say now that Native Hawaiians are entitled to these lands as a matter of property law, but they do not say anywhere in the red brief how that property law claim arises or how that property law claim could survive the Newlands Resolution, the Hawaii Organic Act, or the Admission Act.

David H. Souter:

General, the difficulty I have is that not only do they not say so, the Supreme Court of Hawaii didn’t say so either.

And it seems to me that we would be well advised to make sure that we understand the reasoning of the Supreme Court of Hawaii before we start talking about the relationship between the various Federal statutes and whatever this claim may be.

I simply don’t understand the claim myself.

I do understand your point, because I think this much is clear from the Hawaiian opinion: That they think the Apology Resolution seriously affects the claim.

That we can deal with, but once we get out of that, the — the whole case seems murky to me.

Am I missing something?

Mark J. Bennett:

Well, Your Honor, the Hawaii Supreme Court, at page 69a of the appendix for the petition, said that this was a claim seeking an injunction — injunctive relief with regard to property rights.

At page 87a of the petition appendix, the Hawaii Supreme Court said there are questions regarding the title to the State’s ceded lands.

Ruth Bader Ginsburg:

There — there may well be, but then the Hawaii Supreme Court chose its grounds, and it said at one point the resolution dictates the preservation of the ceded lands.

At another place it said that Federal law provides the basis for its decision and that State trust law is interwoven with that Federal law.

It also said that Federal law grounds the decision and provides the governing legal standard.

Now, they could not have been clearer.

They repeated at least five times that their decision rested on the resolution, that everything turned on that resolution having substantive effect.

That’s why they said their decision was driven by Federal law.

And I don’t know why we shouldn’t take the Hawaii Supreme Court at its word repeated so many times.

Mark J. Bennett:

Well, Your Honor, we believe that Respondents’ attempt to trivialize this Court’s jurisdiction — they say, for example, in the brief in opposition that even if this Court were to reverse, the Hawaii Supreme Court will simply reinstate the exact same decision, and presumably they would press upon the Court the exact grounds they’ve pressed for 14 years, that is–

Ruth Bader Ginsburg:

We don’t — we don’t know that for sure.

It may well be, but there is a large — large difference, and if they’re relying on the Federal ground that insulates them from any check by the Hawaii polity, but if they are forced to rely on State law, then it’s up to the people of Hawaii whether they like it or not.

They could change the State statutory law, equitable notions, constitutional law.

But by doing what the Hawaii Supreme Court did, they have taken the case out of the realm of State law, subject to the political check, put it on Federal grounds.

So I think that that’s what — the issue properly before this Court, and not anything about the interpretation of the Admissions Act, which — if it’s implicit in your question, it’s a little hard to see.

Ordinarily, if a party wants us to address the effect of a piece of legislation, they will mention that in the question presented.

Mark J. Bennett:

–Your Honor, I agree that this decision clearly rests on Federal grounds, but we would also suggest that the question presented talks about whether the State’s sovereign authority is stripped, and the State’s sovereign authority, we would submit, is clear.

The United States had perfect title.

The State of Hawaii succeeded to the United States’ perfect title.

Respondents do not suggest anywhere in their pleadings why that is not so, or why they continue to press even with this Court this property right claim to these lands.

And so we would suggest that it would be prudent for the Court to address what we believe is the fairly included question of the nature of the State’s sovereign authority, especially as it would appear to be entirely not subject to contravention by the Respondents–

Anthony M. Kennedy:

Well, I’m not sure it would be prudent when the great bulk of the opinion is based on the Apology Resolution.

And I — I certainly do think you have a powerful argument that the Apology Resolution presents us with a Federal question.

Anthony M. Kennedy:

But the more far-reaching question, as Justice Ginsburg suggests, might not even be very specifically within the question presented, and even if it’s fairly embraced, you used the word “prudent”.

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 it right.

Mark J. Bennett:

–Well, with — with respect, Your Honor, the Court certainly could limit its ruling, but in a case that has gone on for 14 years and which, in virtually every pleading, the Respondents have filed they have asserted essentially that the State lacks title to these lands because the United States lacked title, the overthrow of the Kingdom of Hawaii was illegal, and that that’s the precise reason for 14 years the State has either been through an injunction or, as a practical matter, not been able to alienate its lands, that this Court certainly has the ability for a question that we believe–

Samuel A. Alito, Jr.:

If the Apology Resolution is put aside, I’m not quite sure what is left, other than State-law issues.

Mark J. Bennett:

–Well, what’s left–

Samuel A. Alito, Jr.:

You could — would there be anything to prevent the Hawaiian Legislature from passing a law that says, we have absolute — we have title to these lands, but we are going to impose a five-year moratorium on any transfer of the lands because we want to promote a reconciliation process?

Mark J. Bennett:

–Your Honor, certainly under the terms of the Admission Act, the authority given the political branches for the management and disposition of the lands is broad and would run up against only the Federal common law of trust that the Ninth Circuit says governs–

David H. Souter:

But that’s not what the Hawaiian Supreme Court said, and I’m reading from page 98a of the petition appendix, the concluding portion of the opinion.

“We hold that: (1) the Apology Resolution and related State legislation, give rise to the State’s fiduciary duty. “

The only Federal statute mentioned is the Apology Resolution, and the rest of their reasoning seems to rest upon some kind of State equity law or trust law.

Now, that trust law may ultimately be inconsistent with prior Federal acts, but the only — the only thing they are disclosing right now is — aside from the Apology Resolution, seems to be State trust law.

Mark J. Bennett:

–Well, Your Honor, the Hawaii Supreme Court did say that this is an injunction based on property rights.

The Hawaii Supreme Court did say–

David H. Souter:

But trust law is based on somebody’s property rights.

We don’t know whether they are talking about legal rights or equitable rights, and that’s consistent with the statement I just read to you.

Mark J. Bennett:

–Well, Your Honor, at page 85a of the appendix to the petition, the court said that the Congress recognized that Native Hawaiians had unrelinquished claims to the ceded lands, and as a result of that recognition, the Apology Resolution dictated the entry of this injunction.

We believe that clearly that’s not so, but that this idea of unrelinquished claims is an unrelinquished property right claim.

This is what was urged upon the Hawaii Supreme Court at every stage.

David H. Souter:

But, General, I think — with respect, I still don’t know what the position of the Hawaiian Supreme Court is going to be if this Court rules that the Apology Resolution does not support the proposition that you just read.

I don’t know whether at that point the Hawaiian Supreme Court is going to say, okay, all we’ve got left to deal with now is State trust law, or whether they’ve got to pull another rabbit out of the hat and say, but there is — there is some kind of prior — there is some kind of a — a claim against which prior Federal law could not prevail.

I don’t know.

And I — that’s — that’s why it seems to me, to say the least, imprudent to wade into it at this point.

The one thing we know that seems to have been significant to their decision is the Apology Resolution.

And I think we would be wise to stick to that.

Mark J. Bennett:

Your Honor, what our response would be is a simple one: That the issue of the State’s title would in our view be undisputed.

The United States’ title was perfect and indisputable.

The State’s title is perfect and indisputable.

And this Court has said that one of the functions in — in cases where respondents claim an adequate and independent State-law ground is to remand the case by disabusing the State court of incorrect notions of what Federal law either permits or requires.

Samuel A. Alito, Jr.:

A point on which both you and your adversaries seem to agree is that the Apology Resolution really is not critical to the decision of the Hawaii Supreme Court.

Because if you thought that simply taking the Apology Resolution off the books would provide an acceptable outcome from your point of view, you would be happy with our deciding just that narrow question.

Samuel A. Alito, Jr.:

And your opponent explicitly says that the Apology Resolution wasn’t critical to the decision of the Hawaii Supreme Court.

Isn’t that true?

Mark J. Bennett:

Yes, Your Honor, and they have not asked this Court to affirm.

Samuel A. Alito, Jr.:

And isn’t it true that you don’t think that just saying the Apology Resolution did not change anything would be insufficient?

Mark J. Bennett:

Your Honor, because it seems to us clear that both the Respondents and the Hawaii Supreme Court believe that there are property right claims that Native Hawaiians have, we believe those property right claims are clearly inconsistent with Federal law, the Newlands Resolution, and the Admission Act, and that there is no reason for this Court not to reach such a clear claim.

Stephen G. Breyer:

But they don’t say the — I mean, nothing in the resolution and nothing in the — does anything in the court’s opinion or the resolution say that the claims are valid?

We all know they have claims.

They have been making claims.

Is there anything in any document I have that says the claims are valid claims?

Maybe they are valid, and maybe they are not.

Mark J. Bennett:

The — the only thing is the position of the Respondents, who assert–

Stephen G. Breyer:

Of course, they think they are valid.

[Laughter]

But I mean — so — so since you have normally one group thinks they are valid; another group thinks they are invalid.

Well, here we are.

Let them fight it out.

Mark J. Bennett:

–Well, Your Honor–

Stephen G. Breyer:

And all we can say is that this Resolution of the Apology doesn’t really say who’s right.

And if Hawaii wants to give some more money, or whatever they want to do, to the Native Hawaiians, that’s their affair.

What’s the — what’s the problem?

Mark J. Bennett:

–Well, Your Honor, it is certainly true that the Apology Resolution does not, as Respondents state, recognize the validity of any claims, but Federal law forecloses the validity of any claims.

And we believe that that is a question that is fairly included anterior to the question of whether the resolution stripped Hawaii of its sovereign authority.

It is only natural for the Court to declare what we believe is the indisputable proposition that Hawaii’s sovereign authority is based on–

Stephen G. Breyer:

Could the Hawaiian Legislature pass a law saying the Native Hawaiians had claims?

Those claims, because of the Federal 1950 — whatever it is — are not valid anymore.

But that was pretty unfair to them, and, therefore, what we think we should do is the following.

And then they pass a whole lot of things that they think would be appropriate to do in light of what I just said.

What stops that?

Mark J. Bennett:

–Your Honor, the — the legislature has wide discretion in managing and disposing of the assets of the State.

Ruth Bader Ginsburg:

And the legislature, if it wanted to — as I understand the Admission Act, it lists five purposes; it says any one purpose.

Ruth Bader Ginsburg:

And the legislature, if it so chose, could say, we want this property — the proceeds from this property to be for the exclusive betterment of the conditions of the Native Hawaiians.

They could — it would be up to the legislature to give it all to the Native Hawaiians, wouldn’t it?

Mark J. Bennett:

That would not violate the Admission Act, Your Honor.

Antonin Scalia:

That — that would not?

Mark J. Bennett:

That would not.

Antonin Scalia:

Would it violate the Admission Act if the legislature did not — said — said we are giving it to them because we want to, because we think it’s a good idea.

No, we are giving it to them because we think they have a right to it.

Mark J. Bennett:

Your Honor–

Antonin Scalia:

And we feel that we must give it to them because it’s theirs.

Mark J. Bennett:

–Your Honor, if the–

Antonin Scalia:

Would that violate the Admission Act?

Mark J. Bennett:

–If the legislature believed that it bettered the condition of Native Hawaiians to provide proceeds from land to the Native Hawaiians, the Admission Act gives them that ability to do it.

Antonin Scalia:

Did you answer my question just then?

Mark J. Bennett:

Yes.

I’d — I’d like to–

Antonin Scalia:

Please, let me put my question again.

Let’s assume that the legislature does not say, we want to give it to the Native Hawaiians because we like the Native Hawaiians or because we think they deserve it; but, rather, we think we have to give it to the Native Hawaiians because it’s theirs.

Mark J. Bennett:

–I think that would be contrary to Federal law, Your Honor.

Antonin Scalia:

I think it would be.

Mark J. Bennett:

Your Honor, if I — if I may reserve the remainder of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, General.

Mr. Jay.

William M. Jay:

Mr. Chief Justice, and may it please the Court: Three binding Federal laws make clear that the State of Hawaii has absolute fee title to the lands in the Federal trust.

It also has the power to sell those lands for the purposes Congress set out in the trust instrument.

John G. Roberts, Jr.:

What do you think on the question-presented issue?

Are all of the Federal laws on which the Hawaii Supreme Court relied to say there was a cloud on the title before the court?

William M. Jay:

We think that they have been in the case from the beginning.

They’re — they were clearly pressed in the State supreme court.

And we think they are fairly encompassed in the question presented partly because, as General Bennett said, the — the question’s reference to the State’s sovereign authority, which necessarily includes consideration of the act which made Hawaii a sovereign State, the Admissions Act, is — is a necessary antecedent to resolution of that question.

But also because the Admission — the Apology Resolution, itself, in the preamble on which the Respondents rely extensively, goes into great detail about the Newlands Resolution and the cession of absolute fee and ownership by the Republic of Hawaii to the United States.

Samuel A. Alito, Jr.:

Well, I don’t see what those — where those laws get us.

The — the argument that is made on the other side is that the Native Hawaiians have a moral claim to these lands, not that they have a property right claim to the land.

And if the State of Hawaii, acting through any branch of its government — and that’s not a matter of concern to us — says they have a moral claim to the land and, therefore, there should not be any land transfers for some period of time, what’s inconsistent with Federal law in their doing that?

William M. Jay:

Let me answer that in two steps, Justice Alito.

The first step is that the State supreme court’s permanent injunction, although Respondents are now saying that the claims on which — the unrelinquished claims on which it is based are moral in nature — the permanent injunction is a legal obligation and enforceable by contempt.

And so the State — the State supreme court, by effectively locking up the lands for an indeterminate period of time, has treated them as — as legally valid and has entered relief that is legal in nature.

Antonin Scalia:

Is — is it the function of the Hawaiian Supreme Court to declare moral obligations?

William M. Jay:

Well, Justice–

Antonin Scalia:

Would there be any problem — certainly there is none if the legislature deems there to be a moral obligation and gives the land away on that basis.

But do you — do you think there — there might be some democracy problem if — if the Supreme Court of Hawaii goes around pronouncing moral obligations and giving away land on that basis?

William M. Jay:

–Well, Justice Scalia, that gets to the second half of my answer to Justice Alito as well, which is that the State supreme court is not free, as a matter of State trust law or otherwise, to formulate obligations that don’t relate to the State’s obligation as trustee of the Federal trust–

John Paul Stevens:

–isn’t it perfectly clear that’s a question of State law?

William M. Jay:

–I don’t think so, Justice Stevens, because that State law has to comply with the limitations set out in section 5(f) of the Admissions Act.

To be sure, the political branches operating as trustee of the trust have broad discretion to allocate lands within and among the five purposes set out in section 5(f).

But what the — what the State can’t do and what in particular the State courts can’t do in the name of formulating State trust law is to rely on considerations that are altogether outside the trust.

And in this case, any consideration of the unrelinquished claims of the Native Hawaiians would not — would not be based on their status as one of the beneficiaries of the trust, but on their–

John Paul Stevens:

Let me just — are you saying that the State court couldn’t do it, but the legislature could?

William M. Jay:

–I’m saying that the — no, Justice Stevens.

The — the State court can’t rely, nor, I think, could the State legislature–

John Paul Stevens:

Could the legislature do it?

William M. Jay:

–The legislature could determine that the wisest use of the lands today, the way that would best further — promote the welfare of Native Hawaiians today would be not to sell it.

The legislature certainly could do that, and it could enact a moratorium that was consistent with that view.

But what it can’t do is treat it — and this is the question Justice Scalia asked at the end of General Bennett’s presentation — what the State is not free to do is, based on the claims by Native Hawaiians, not as beneficiaries of the section 5(f) trust, but based on considerations that arose before the Admissions Act was ever enacted, based on — based on their status as competing claimants to the title of the land, give them an equitable, moral, or otherwise claim to lock up the use of the land.

The — the theory that the Respondents advanced in the State supreme court under the name of trust law is that a trustee may not, in furtherance of a trust, engage in an illegal act.

And that’s on Joint Appendix 141a to 143a and other places in the record.

And the illegal act that they contemplate is the continued ownership of the lands by the State of Hawaii.

So, the State cannot, in — in ostensible furtherance of the federal trust, rely on State law principles that presume the illegality of the federal trust or the illegality–

John Paul Stevens:

The State power — the State legislative power to act depends on the validity of its reasoning.

William M. Jay:

–Well, Justice Stevens, the State — the State is given authority to act for particular purposes.

And so, the purpose of the — of the — for which the State acts is necessarily relevant.

William M. Jay:

The State can’t act for a purpose that is not–

Samuel A. Alito, Jr.:

What if it’s the State’s position–

William M. Jay:

–It’s a State–

Samuel A. Alito, Jr.:

–that it’s — it is imposing a moratorium on land transfers because it thinks this is the best way to promote the interests of the Native Hawaiians, and part of their thinking is that there was an inequity done when absolute title was transferred to the United States and then to the State of Hawaii?

Would that be a violation of Federal law?

William M. Jay:

–Well, I think, Justice Alito, that if the State made that determination with respect to the class of Native Hawaiians who are defined in the Admission Act as — as one of the present-day beneficiaries of the trust, and determined that it was — that that was the best way to act for the betterment of Native Hawaiians, which is a permissible trust purpose, that that would be permissible.

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.

David H. 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?

William M. 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.

David H. 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.

William M. Jay:

Well, I wholly agree, Justice Souter, that the State supreme court thought the Apology Resolution had significance and that the Apology Resolution–

Ruth Bader Ginsburg:

More than–

William M. Jay:

–dictated the injunction.

Ruth Bader Ginsburg:

–More than significance.

I am reading the sentence that immediately follows the one that General Bennett brought to our attention on page 85a.

It says,

“Accordingly, the Apology Resolution dictates that the ceded lands should be preserved pending a reconciliation between the United States and the native Hawaiian people. “

It is very clear language — “dictates”.

And that’s why I am really puzzled how this Court has any business wading into any other question other than telling the Hawaii Supreme Court either their right about what the resolution dictates or they are wrong, and that they are wrong because it’s a nice apology, but it’s without substantive effect.

William M. Jay:

Well, I certainly agree, Justice Ginsburg, that the State supreme court thought the Apology Resolution dictated the entry of the injunction, and the — also on page 85a, the State supreme court says that the Apology Resolution gives rise to the — to a fiduciary duty to Native Hawaiians.

And it is — it is that principle that the State supreme court was able to find a fiduciary duty and impose it on the State’s trusteeship obligation, even though that — that fiduciary duty arises outside the section 5(f) trust.

William M. Jay:

And that is why we think that the scope of the State — of the State’s obligation as trustee is within the Court’s review at this stage.

John G. Roberts, Jr.:

Thank you, Mr. Jay.

William M. Jay:

Thank you, Mr. Chief Justice.

John G. Roberts, Jr.:

Mr. Shanmugam.

Kannon K. Shanmugam:

Thank you, Mr. Chief Justice, and may it please the Court: The only issue properly presented in this case is whether the Hawaii Supreme Court concluded that the Apology Resolution created an affirmative federal obligation not to sell ceded lands.

In our view, it did not.

The Hawaii Supreme Court held only that the sale of ceded lands would breach the State’s fiduciary duty to Native Hawaiians under State law.

And it relied on the Apology Resolution only for its recognition that Native Hawaiians have claims to the ceded lands that are currently being addressed through the political process.

John G. Roberts, Jr.:

So, they relied on Federal law to create a fiduciary obligation.

So if we think that Federal law did not create a fiduciary obligation, what should we do?

Kannon K. Shanmugam:

Then the Court should vacate and remand.

But we believe that the better interpretation of the Hawaii Supreme Court’s opinion is that it believed that the source of the fiduciary duty at issue was State law and not Federal law.

To be sure–

John G. Roberts, Jr.:

All Federal law?

In other words, not simply the Apology Resolution but the other Federal provisions?

Kannon K. Shanmugam:

–As the source for fiduciary duty?

John G. Roberts, Jr.:

Do you think those — yes.

Kannon K. Shanmugam:

The source for the fiduciary duty, according to the Hawaii Supreme Court, was State law.

To the extent that the Hawaii Supreme Court relied on–

David H. Souter:

Mr. Shanmugam, on page 99, the State supreme court is saying, inasmuch as the Apology Resolution and related State legislation give rise to a fiduciary duty.

They are saying the Apology Resolution did so, too, not only State law.

Kannon K. Shanmugam:

–They did say at various points in the opinion that the Apology Resolution, together with State law, gave rise to the fiduciary duty.

But I think that if one looks at the critical portion of the Hawaii Supreme Court’s opinion, on pages 31a to 32a, where the Hawaii Supreme Court actually discusses the relevance of the Apology Resolution, the court makes clear that it is relying on it only for the acknowledgment that Native Hawaiians have unresolved claims, and–

Ruth Bader Ginsburg:

Then how to you explain the language, just over and over again — I won’t repeat it — but they said this resolution of ours is dictated by, compelled by, the Apology Resolution?

Without the Apology Resolution, it would be an entirely different case.

And now you seem to be taking what the Hawaii Supreme Court put as the necessary link, the Apology Resolution — before that this would have been impossible — and you are treating it now as sort of window dressing, icing on the cake, really didn’t matter.

But we would disrespect the Hawaii Supreme Court if we didn’t take them at their word and say — using words such as “dictated”, “compelled”.

You — you are treating this as sort of just part of the atmosphere.

Kannon K. Shanmugam:

–Well, it was more than mere window dressing, Justice Ginsburg.

The Apology Resolution really did confirm the factual predicate for Respondent’s State law claims.

Kannon K. Shanmugam:

And I do mean to emphasize that these have been State law claims from the outset.

If you take a look at the original complaint in this case, which is found in the Joint Appendix at pages 34a to 36a, the only source of law on which we rely for the counts at issue here was article 12, section 4–

Ruth Bader Ginsburg:

That’s what you relied on–

Kannon K. Shanmugam:

–of the Hawaii Constitution.

Ruth Bader Ginsburg:

–but it’s not what the Hawaii Supreme Court relied on, and I would repeat the point I made in the prior argument: What’s worrisome about this is they are fastening on a piece of Federal legislation and say, we are compelled to do this because of Federal law.

What that does is it removes it from the Hawaii political process.

If they left Federal law out of it, and they said truly this decision rests on State law, we think that the title belongs with the Native Hawaiians, then they have to answer to the polity.

And here the Hawaii Supreme Court insulates themselves by using the Federal law as a crutch.

Kannon K. Shanmugam:

Let me — let me be clear about this, Justice Ginsburg, if the Hawaii Supreme Court’s opinion is read to construe the Apology Resolution as creating some affirmative duty or obligation as a matter of Federal law, we agree that that would be erroneous.

And if the Court–

Anthony M. Kennedy:

Would you agree that there would be a Federal question if the Hawaiian Supreme Court said the Apology Resolution dictates our result?

Kannon K. Shanmugam:

–No, because we believe that read in context, Justice Kennedy, that that statement is consistent with our theory of the Hawaii Supreme Court’s reliance on the Apology Resolution.

Antonin Scalia:

Well, why doesn’t the Hawaii Supreme Court’s reliance upon Hawaiian law to establish that there is some property right on the part of these Native Hawaiians — why doesn’t that conflict with Federal law?

Kannon K. Shanmugam:

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.

Antonin Scalia:

I don’t care what you call it; it’s a property interest.

Kannon K. Shanmugam:

Well–

Antonin Scalia:

As I read the Federal 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.

Kannon K. 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 ceded lands would be nonjusticiable.

That much was clear as a matter of State law.

Stephen G. Breyer:

You concede — you concede that the Apology Resolution does not say that the Hawaiian people’s claims are valid.

Kannon K. Shanmugam:

The Apology Resolution–

Stephen G. Breyer:

Does it say that?

Yes or no?

Kannon K. Shanmugam:

–does not directly speak to the merits of any underlying claims, whether–

Stephen G. Breyer:

All right, so if that’s so–

Kannon K. Shanmugam:

–or otherwise.

Stephen G. Breyer:

–do you object to a three-sentence per curiam opinion in this case where we say, to the extent that the Hawaii Supreme Court could be read to suggest that the Apology Resolution either resolved or cast a cloud, legally speaking, on the title of the trust land, or suggested in any way that land be enjoined — the sale be enjoined, the court made a mistake; and insofar as it is resting on State law, that’s up to them.

Kannon K. Shanmugam:

I — I think so, with one caveat and I don’t mean to quibble–

John G. Roberts, Jr.:

Do you think you would — you would object to that?

Kannon K. Shanmugam:

–I think we would acquiesce in that with one small quibble, which is that I think that the issue that is being debated here is not whether the Hawaii Supreme Court relied on the Apology Resolution as creating some cloud on title.

Precisely because we conceded below that the underlying claims were nonjusticiable, the Hawaii Supreme Court did not opine on the merits of those underlying claims.

The only issue is whether the Hawaii Supreme Court believed that the Apology Resolution created a fiduciary obligation to essentially preserve and protect the ceded lands, until those underlying–

Stephen G. Breyer:

How could it have done that?

I mean, I didn’t see anything in here that suggests anything like that.

That’s to suggest that the Apology Resolution created an obligation on the part of the State courts to enjoin sales until everything was worked out.

Now, I have read this Apology Resolution about six times, and I certainly didn’t see anything like that.

Where does it say–

Kannon K. Shanmugam:

–Yes.

And we agree that the Apology Resolution cannot be read to create some affirmative duty not to sell the ceded lands, but–

Stephen G. Breyer:

–You agree that the Apology Resolution does not say who’s right about the claim?

Kannon K. Shanmugam:

–No.

There are various — there are various findings in the Apology Resolution that could potentially be relevant to the ultimate disposition of the land.

Stephen G. Breyer:

Like what?

Kannon K. Shanmugam:

It is, after all, significant that Congress–

Stephen G. Breyer:

What?

Kannon K. Shanmugam:

–Congress expressed its support for the reconciliation process, Justice Breyer, and that would provide an obvious boost in the Hawaii Legislature for the ultimate resolution of those claims.

And it’s really for that reason, to get back to Justice Ginsburg’s question, and we feel it’s important.

Ruth Bader Ginsburg:

If — if you took Federal law, the Apology Resolution, out of the picture, the Hawaii Supreme Court could reach the result that it reached, and then we might have questions about its consistency with the Admissions Act and the Newlands Resolution.

But, as Justice Breyer said, if we disabuse them of the notion that there is any Federal compulsion here, then the rest is to be sorted out.

We wouldn’t have to say that they have a good claim under State law, just not address it.

Kannon K. Shanmugam:

Yes.

I think that’s it.

Ruth Bader Ginsburg:

And the political process question I think is really bothersome, that the Hawaii Supreme Court chose to use this Federal crutch.

Ruth Bader Ginsburg:

It seems a very weak reed.

Kannon K. Shanmugam:

And it’s for that reason, Justice Ginsburg, that we freely concede that if the Hawaii Supreme Court had relied on the Apology Resolution as creating some Federal duty, that would be problematic.

John G. Roberts, Jr.:

What about the–

Kannon K. Shanmugam:

We certainly do not–

John G. Roberts, Jr.:

–What about the Newlands Resolution, the Admission Act, and the Organic Law?

Do you acknowledge that if the Hawaii Supreme Court relied on those, that also would be inappropriate?

Kannon K. Shanmugam:

–Well, it’s hard to say because it would depend on how they relied on them, but I think that the critical point–

John G. Roberts, Jr.:

They relied on them the same way you say they relied on the Apology Resolution, to give rise to a fiduciary duty under State law.

Kannon K. Shanmugam:

–Well, I don’t think that those Federal acts could be read as creating a fiduciary duty not to sell the ceded lands.

So I think I would concede that that would be problematic as well.

But I think that the question before the Court according to Petitioners is whether an injunction, even if that injunction were framed solely in terms of State law, might itself contravene the Newlands Resolution by virtue of–

John G. Roberts, Jr.:

So you would have no — just to carry on the opinion-drafting process, you would have no objection to an opinion that said no source of Federal law gave rise to a duty under State law, fiduciary or otherwise; that any further proceedings on remand should be based solely on State law?

Kannon K. Shanmugam:

–Well, I think that that is right in the sense that we certainly think that the Hawaii Supreme Court in the first place intended to rely on a State law of fiduciary duty.

And we would certainly have no problem with and indeed would welcome a remand that afforded the Hawaii Supreme Court the opportunity to do what we think they did in the first place–

Antonin Scalia:

What if they do nothing at all?

Could I get back to Justice Breyer’s three-sentence per curiam, where we just say to the extent that the Supreme Court of Hawaii relied upon the Apology Resolution as creating any — any property entitlement in the Hawaiians, it was in error.

Okay, we send it back to the Hawaiian Supreme Court, and the Hawaii Supreme Court smiles and doesn’t do a blessed thing, leaves — leaves the injunction against any distribution of the land in effect.

What — what happens then?

Kannon K. Shanmugam:

–Well, I don’t think they would do that, Justice Scalia.

Antonin Scalia:

You don’t?

Kannon K. Shanmugam:

On remand, I think that they would consider the issue of whether the injunction could be grounded on State law, which after all was the basis of our complaint from day one in this case.

And there is certainly language–

Antonin Scalia:

Not if we said “to the extent that”.

I mean, if we said it’s — it’s grounded on the proposition that the Apology Resolution creates property rights and that’s wrong, then they’d have to do something.

Kannon K. Shanmugam:

–Well, presumably–

Antonin Scalia:

But if we just said, to the extent that it may be grounded on that, we take no position on whether it’s grounded on that or not–

Kannon K. Shanmugam:

–Presumably, Justice Scalia–

Antonin Scalia:

–why would that require any action on their part?

Kannon K. Shanmugam:

–If the Court were to write that opinion, I assume that the last line of the opinion would be to vacate and remand, and that would eliminate the injunction, and so the Hawaii Supreme Court would have the case once again; and at that point the Hawaii Supreme Court could clarify that the source of the fiduciary duty at issue was State law.

And–

John G. Roberts, Jr.:

No, but it’s not simply a question of the source of the fiduciary duty.

It — presumably, in the course of saying what the Apology Resolution, the Newlands Act, the Organic Act, and the Admission Act had to say, we may well say something to the effect that, because it conveyed perfect title, it’s inconsistent with the cloud of that title, under a fiduciary obligation created by State law or anything else.

Kannon K. Shanmugam:

–And if the Hawaii Supreme Court on remand, Mr. Chief Justice, addressed the merits of any underlying legal claims, then this Court could review the decision, and at that point it might have some sense of, for instance, what those legal claims actually are.

John G. Roberts, Jr.:

But if we told them that these various Federal resolutions, including the Apology Resolution, conveyed title to the State in a particular way that precluded the burdening of the State’s title on the basis of Federal law, then they would have to find a basis under State law that was not inconsistent with the Federal law’s conveying of perfect title.

Kannon K. Shanmugam:

Well, that is presumably always true, but, you know, I think for purposes of the current posture of the case, Mr. Chief Justice, the only Federal issue that is before the Court is the question of whether the Apology Resolution was the source of the underlying obligation.

Ruth Bader Ginsburg:

And do you think–

Kannon K. Shanmugam:

Petitioners did not–

Ruth Bader Ginsburg:

–Do you think that that resolution is distinguishable in any way from the apology that the United States made to the people of Japanese ancestry who were interned after World War II?

The United States did say — what was — I think it was an executive order by President Ford, but it was in no uncertain terms, stated that the United States made a dreadful error, there was never basis for rounding those people up and putting them in interment camps.

Did — is there any difference?

And that, as I understand it, had no substantive effect until Congress passed legislation providing for compensation.

Kannon K. Shanmugam:

–The — the Apology Resolution in this case does not speak directly to the merits of any underlying claims.

What it does do is recognize that the overthrow of the Kingdom of Hawaii was illegal, apologized for the Federal Government’s involvement in that overthrow, and, in the operative provisions of the resolution, expresses support for the reconciliation process.

And it is that expression of support on which the Hawaii Supreme Court critically relied here in informing its application of State law.

Stephen G. Breyer:

So if I said that just in the opinion and said just what you said, and nothing else about the resolution, say we don’t see any other way in which the resolution could have supported this, would that — is that okay with you?

Kannon K. Shanmugam:

Yes, that would be okay, Justice Breyer, and I do think that it would be important for this Court to make clear that to the extent that the Hawaii Supreme Court, in any subsequent remand, relies on the Apology Resolution only for what are essentially factual findings, its acknowledgment that Native Hawaiians have unrelinquished claims, which is undoubtedly true as a factual matter — I don’t hear Petitioners to suggest otherwise — and its recognition that there is an ongoing reconciliation process, that is entirely proper.

And the Hawaii Supreme Court–

John G. Roberts, Jr.:

But then it would also have to just — the opinion we’re drafting would go further, I suppose, and since we are interpreting all these Federal provisions, it may not be sufficient to say that it did not create this obligation and the Hawaiian Supreme Court was wrong to do that, but that it precluded the creation under State law of this type of obligation.

Kannon K. Shanmugam:

–Well, that is essentially–

John G. Roberts, Jr.:

And if the Hawaiian Supreme Court wants to create, under State law, a particular type of fiduciary obligation grounded on the status of the land prior to admission, then it has to run — under the Supremacy Clause, it has to be consistent with the Federal provisions.

Kannon K. Shanmugam:

–But the Hawaii Supreme Court, in the opinion under review, did not ground that duty on any judgment about the validity of the original conveyance of title.

They grounded it–

John G. Roberts, Jr.:

No, I’m not saying they did.

That’s the first question.

I’m not saying they grounded it on Federal law; I’m saying we would have to determine whether Federal law precluded the grounding of a fiduciary duty under the status of the land prior to admission.

Kannon K. Shanmugam:

–But I do think, Mr. Chief Justice, that that is an entirely discrete question from the question presented, and it’s entirely discrete precisely because this argument concerning the Newlands Resolution could have arisen, even if the injunction were, as we believe it was, unambiguously based solely on State law with nary a reference to the Apology Resolution.

And it is precisely–

Ruth Bader Ginsburg:

The Native Hawaiians–

–The Native Hawaiians — they do get 20 percent of the proceeds, correct?

Kannon K. Shanmugam:

–That’s correct.

Ruth Bader Ginsburg:

And what — that comes out of Hawaii legislation?

Kannon K. Shanmugam:

Yes, that’s right.

It comes out of — I think it’s Hawaii Revised Statute 10-13.5, and as a matter of State law they get 20 percent of the revenue from the ceded-lands trust, though the amount of that revenue has itself been the subject of protracted and unresolved litigation.

Ruth Bader Ginsburg:

The — the $5.5 million figure, is that the subject of litigation?

Kannon K. Shanmugam:

The valuation of the Leiali’i parcel was challenged in this litigation, and it remains pending before the trial court.

But, I think, more broadly the important point is that to the extent that the injunction in this case was based on the lack of resolution of underlying claims in the State political process, the Hawaii Legislature could readily resolve those claims without in any way casting any doubt on the validity of the original conveyance of lands to the Federal Government.

Stephen G. Breyer:

It also, I guess, has a — there — in the Admission Resolution, it set up a trust.

They hold it in trust, and there are five purposes in the trust, and only one of those relates to the Native Hawaiians.

Now, I know from the newspapers — I don’t know the merits of it — but the trust that has been set up is the subject of controversy continuously.

So what I don’t see — and I hope we don’t have to get into this — is what the relation between the trust principles as enacted in the legislature is and the trust principles set forth in the Admissions Resolution.

Is there any law going to anything like that?

Kannon K. Shanmugam:

Well, no — but let me say something about that, because I do think that it is relevant to our interpretation of the Hawaii Supreme Court’s opinion.

What the State of Hawaii did with article 12, section 4 of the Hawaii Constitution was essentially to say that, while the State does have some discretion to use the assets in the section 5(f) ceded-lands trust for any of the stated purposes, the State owes a particularly high duty to Native Hawaiians.

The Hawaii Supreme Court has so construed article 12, section 4 in other cases involving the ceded-lands trust.

And, at page 39a of its opinion in this case, the Hawaii Supreme Court plainly relied on that provision as a source of its fiduciary duty, the fiduciary duty that we believe was at issue in this case.

The opinion does not cite that provision in so many words, but it refers to the Hawaii Constitution in a case construing that provision.

Antonin Scalia:

Is the court the trustee?

Kannon K. Shanmugam:

The State is the trustee.

Antonin Scalia:

The State is the trustee.

So I assume it would be up to the State officers to decide to what extent the obligation to the Hawaiians, among the five obligations, should be given precedence.

Is the Supreme Court of Hawaii directing the State officers to give it precedence?

Kannon K. Shanmugam:

Well, article 12, section 4, we would respectfully submit, Justice Scalia, does place Native Hawaiians in something of a privileged position vis-a-vis the other beneficiaries.

And in construing article 12, section 4, the Hawaii Supreme Court was doing, albeit in a somewhat unusual context, what courts do every day, which is essentially to evaluate whether the trustee is acting consistent with the trustee’s obligations under the terms of the trust.

Antonin Scalia:

And saying that the trustee must direct it primarily to — to that among the five ends.

Kannon K. Shanmugam:

All that the Hawaii Supreme Court said was, in light of the very realistic prospect that lands may be returned to Native Hawaiians as part of the reconciliation process that Congress recognized in the Apology Resolution, it would constitute a breach of fiduciary duty to sell those lands for another trust purpose, for the simple reason that once those lands are gone, they are gone forever.

And that is entirely consistent with the general principle of trust law, that a trustee in exercising its discretion–

Antonin Scalia:

And all this comes from the fact that Congress made reference to and approved a so-called reconciliation process?

Kannon K. Shanmugam:

–Well, Congress did support that–

Antonin Scalia:

So in — in perpetuam, this land can’t be transferred because Congress approved the this reconciliation process?

Kannon K. Shanmugam:

–Only until the claims of the Native Hawaiians are resolved.

Kannon K. Shanmugam:

And what is clear–

Antonin Scalia:

I see.

Kannon K. Shanmugam:

–regardless of the degree of reliance upon the Apology Resolution, Justice Scalia, is that the Hawaii Legislature has substantial discretion to act and to act in a way that essentially vacates the terms of the injunction.

So if the Hawaii Legislature either says, we’re going to reach a definitive resolution of the underlying claims of Native Hawaiians by giving them land or additional monetary compensation, or the Hawaii Supreme Court determines that–

Antonin Scalia:

Or denying it to them?

Kannon K. Shanmugam:

–Or denying it to them.

Then presumably, according to the terms of the injunction, it would no longer have any force.

So the Hawaii Legislature remains empowered to act in such a way as to get out from under the terms of the injunction to the extent they are restrictive.

I would note, however, parenthetically, that immediately after this litigation was commenced the Hawaii Department of Land and Natural Resources imposed a unilateral moratorium on the sale of ceded lands.

That moratorium, as an executive matter, has remained in effect during the 14-year pendency of this litigation, even during the considerable period between the trial court’s ruling in favor of Petitioners and the Hawaii Supreme Court’s ruling in our favor.

So there doesn’t seem to be any great impetus on the part of the State to sell ceded lands.

Indeed, Governor Lingle, one of the Petitioners in this case, has recently and repeatedly made statements to the effect that the State has no intention to sell ceded lands.

And if that is really the State’s position — and I would be very interested in my friend General Bennett’s views on the matter — then it would seem that there really is no case or controversy before this Court at all.

Because if the State has no intention to sell ceded lands and the sale of ceded lands was the instigating event for this litigation, there would not necessarily be any real dispute between the parties.

I — I want to say just, you know, one more word–

John G. Roberts, Jr.:

So the decision of the Hawaii Supreme Court would then be vacated?

Kannon K. Shanmugam:

–The petition would be dismissed under Munsingwear.

John G. Roberts, Jr.:

Under Munsingwear.

Kannon K. Shanmugam:

Yes.

John G. Roberts, Jr.:

Well, what’s–

Kannon K. Shanmugam:

If there is, in fact, mootness.

And if there were — if the State — if the State had not intention to sell ceded lands, presumably the underlying dispute would be moot.

Antonin Scalia:

I don’t quite understand.

You mean — you mean a Federal court can enjoin the sale of my house, and there’s nothing I can do about it inasmuch as I do not have any present intention of selling my house–

Kannon K. Shanmugam:

Well, if–

Antonin Scalia:

–except to live under that injunction?

Kannon K. Shanmugam:

–If a Federal court enjoined you from selling your house without any underlying legal authority for doing so, presumably that injunction would be invalid.

But the critical point here–

Antonin Scalia:

No, no.

You — you say there is no controversy, so I — I cannot get its validity adjudicated, right?

Kannon K. Shanmugam:

–Well, here the lawsuit was commenced by Respondents, because Respondents believed that the State was going to imminently sell the Leiali’i parcel.

That was the triggering event for this litigation.

It now appears at — at least possible that the State has no intention to sell even that parcel, and if that were true–

Antonin Scalia:

I don’t think that — I don’t think that the State has to have an immediate intention to sell any particular piece of land in order to object to an injunction against any sale of land by the State in the future.

I — I don’t think it has to wait until it — it wants to sell a particular plot.

Kannon K. Shanmugam:

–Well, it just — it merely suggests that the — that there is no longer an underlying dispute, Justice Scalia.

Because, again–

Antonin Scalia:

Yes, there is.

The State says, I am free to sell the land, and — and the court says, no, you are not.

Isn’t that a dispute?

Kannon K. Shanmugam:

–Well, I — I think that there is — you know, there was a case or controversy as this case came to the Court in the Article III sense precisely because there was a dispute between the parties about–

Anthony M. Kennedy:

Your whole case rests on a cloud on title in favor of your clients.

But you ignore the cloud on title that has been entered against the State.

Kannon K. Shanmugam:

–Well, first of all, our whole theory has never been that there is a cloud on title.

Now, to be sure, we have maintained at various points in this litigation that Native Hawaiians do have potentially valid legal claims, as well as moral and political claims, to the underlying lands.

But we have never argued that the injunction in this case should be based on some assessment of the existence or validity of legal claims.

To the contrary, we have consistently taken the position — and this is clear from our briefs before the Hawaii Supreme Court — that any such underlying claims would be nonjusticiable.

And for that reason all that we were seeking was an injunction to protect these lands until those claims could be resolved through the political process.

That was all that we were seeking below, and the Hawaii Legislature again could readily resolve those underlying claims without in any way casting doubt on the validity of the Newlands Resolution or any other Federal enactment that purports to recognize absolute title–

Ruth Bader Ginsburg:

Can I–

Kannon K. Shanmugam:

–in the ceded lands.

Ruth Bader Ginsburg:

–Can I go back to your — your suggestion that this is a moot case because the government — because the — the governor agrees with your position.

But wasn’t a lot of money already sunk into developing this area of Maui for desperately needed housing?

Kannon K. Shanmugam:

A lot of money was sunk into this parcel, at least according to the record below.

And the State would remain free at a minimum to proceed with the development by simply entering into long-term leases instead of the sale of these parcels of land.

Indeed, there appears to be some suggestion that that is what the State would do in the event that this Court does not vacate the injunction.

And so — and, indeed, in the State of Hawaii it is not uncommon for land to be transferred by means of such long-term leases.

So it isn’t as if the State would be barred from engaging in any development whatsoever.

The terms of the injunction simply prohibit the sale of these lands.

And, again, the State executive has been operating under an effective moratorium on the sale of ceded lands of its own volition during the pendency of this litigation, which suggests at a minimum, regardless of the jurisdictional implications, that there is no great burden on the State from this injunction, which, again, by its terms lasts only as long as the State legislature acts.

Kannon K. Shanmugam:

And I would add one additional point on that score, which is that to the extent that we believe that the Hawaii Supreme Court’s decision rested on a fiduciary duty under State law, the State would, of course, be free to amend its constitution in order to make clear that the State’s fiduciary duty to Native Hawaiians does not run to the extent of requiring this injunction.

But this — there has been no effort to do that, and I would submit that, as a political matter, it would be highly unlikely.

Antonin Scalia:

Mr. Shanmugam, you — you didn’t raise in — in your opposition to the petition the — the question of mootness.

Kannon K. Shanmugam:

Well, the governor’s statements about the lack of an intention to sell ceded lands were only made literally in the days before we filed our brief.

We do refer to them in a footnote in our merits brief, and I think that that would be sufficient to preserve the issue–

Antonin Scalia:

Well, you don’t have to preserve it.

I mean, it’s — it’s an issue of Article III jurisdiction, so we’d have to look into it on our — on our own.

But it does suggest that it is not a very strong string to your bow, if I may put it that way.

Kannon K. Shanmugam:

–Well, I would submit that even if the Court does not believe that this rises to the level of jurisdictional import, that it is at least significant in assessing the — the substantiality of the burden on the State.

That the State through its highest representative appears to be suggesting that the State has no present need to alienate any of these lands.

John G. Roberts, Jr.:

–Mr. Shanmugam, just as a matter of curiosity, do you know what percentage of the Hawaiian population is comprised of Native Hawaiians?

Kannon K. Shanmugam:

I think the most recent figures from the 2000 census are that there are something like 1.2 million people in the State of Hawaii.

And of that number something like 240,000 identify themselves as Native Hawaiians in the way that that phrase is currently defined under State law.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

General Bennett, you have a minute remaining.

Mark J. Bennett:

Thank you, Your Honor.

It is undisputed that Respondents asserted a property-interest claim; that any property-interest claim is in flat contradiction with Federal law; that the State has perfect title to these lands; and that there is no possible reason why this Court should not disabuse the State court of the incorrect notion that the State lacks perfect title.

On the mootness issue, the ASARCO versus Kadish case makes clear that the injunction that has been entered is a present injury.

But, in addition, the governor, who does not control all of the State lands — there are a variety of independent agencies that do — talked about sale but not transfer or exchange, which are other things that are forbidden by this court’s — the State court’s — injunction.

But ASARCO clearly sets out that we have an injury.

But, again, what — the basis of the State court’s decision is a property right interest.

It is now undisputed by counsel that such a property right interest is absolutely inconsistent with Federal law, and there is no reason why in this 14-year-old litigation this Court should not make clear the simple and undisputed fact that, pursuant to the Newlands Resolution, the Organic Act, and the Admission Act, that the State has perfect title.

John G. Roberts, Jr.:

Thank you, General.

The case is submitted.