The Office of Hawaiian Affairs and its attorney are hailing Tuesday's U.S. Supreme Court decision that sends the ceded lands case back to a Hawai'i court.

"The case is headed back to Hawai'i and will be decided by the state's highest court where it rightfully belongs," said OHA Chairperson Haunani Apoliona. "As we have consistently said for months, this case should never have been taken outside the state of Hawai'i."

"While we would have preferred an outright dismissal of the petition, the result in this case is workable," Apoliona added.

The ruling is workable because while it reversed the Hawaii Supreme Court's reliance on the federal Apology Resolution, there is "adequate and independent state grounds for a decision such as the one that the Hawai'i Supreme Court made" in its unanimous Jan. 31, 2008, ruling favoring OHA and four individual plaintiffs, said OHA attorney Sherry Broder. She pointed to the state Supreme Court's reliance on state laws, the state constitution and previous court rulings.

Meanwhile, state Attorney General Mark Bennett said earlier this week that he believes the U.S. Supreme Court opinion is the end of the line for OHA's 15-year-old case. He said that the unanimous opinion by the nation's nine justices "makes clear the point made throughout the last three administrations that the State of Hawai'i though the Admission Act holds the fee-simple title to the trust lands for the benefit of all Hawai'i including Native Hawaiians." While reiterating that the state has no immediate plans to sell ceded lands, Bennett said: "It's always been our position that state law allows the sale of ceded lands, but the position of the Hawai'i Supreme Court decision has been that the (U.S.) Apology Resolution trumps state law. Now that trump card has been removed."

OHA had pressed for an outright dismissal of the state's appeal filed last year. The state, meanwhile, had urged the U.S. Supreme Court to decide the case once and for all.

On March 31, a unanimous U.S. Supreme Court took aim at the U.S. Apology Resolution cited in the Hawai'i court's ban. The Hawai'i court ruling prohibited ceded land sales or transfers to third parties while the unrelinquished claims of Native Hawaiians to those lands are pending. When a state supreme court incorrectly bases a decision on federal law, the court's decision improperly prevents the citizens of the state from addressing the issue in the question through the processes of the state's constitution."

Many Native Hawaiian lawmakers welcomed the opinion as a bolstering their role in crafting several ceded lands bills still alive in the Legislature this session. "This has bought us some time. We've got a little reprieve so now we have craft policy related to ceded lands that can withstand constitutional scrutiny and at the same time protect Native Hawaiian interests," said Sen. J Kalani English (D-Hāna, East Maui, Moloka'i, Lāna'i).

"Basically, (the ruling) did not make a call either way, but said don't use the Apology Resolution to reach a conclusion. However, this doesn't mean that the same (injunction on ceded lands sales) can't be reached by using other means such as case law or legislative action," said English, adding that it's understandable that parties on opposite sides of the case hailed the Supreme Court decision. The state got the Hawai'i court's injunction overturned for now and OHA should be happy that the ruling was narrow and no additional challenges to Hawaiian entitlement programs became issues in the case, said English. "In the meantime, the fact that several ceded lands bills are still moving means the Legislature may even impose moratorium (on ceded land sales), even if it's only stop-gap measure until next session," said English.

Sen. Clayton Hee (D-Kahuku, Lā'ie, Ka'a'awa) said the Supreme Court decision is no victory for Native Hawaiians because it places another hurdle in the way of settling ceded lands claims after decades of attempts to do so. "This lawsuit was first filed in 1993, because the state proposed then to alienate public land trusts for a development that included market housing, golf courses, shopping centers and some affordable housing. Now unfortunately, what's getting lost is there were remedies that existed back then and have always existed, said Hee who said he favors Senate bill 1085, which would place a five-year moratorium on the sale of ceded lands, after which two-thirds approval by the Legislature would be required. Hee said the five-year period would accommodate the implementation of the Akaka Bill. "The Hawai'i court will punt to the Legislature, as it has always done. So the Legislature can respond responsibly with the moratorium for the purpose of reconciliation (as described in the Akaka Bill)," Hee said, noting that U.S. Sen. Akaka has said Congress is poised to pass the bill and President Obama has said he will sign it.

Rep. Mele Carroll (D-East Maui, Moloka'i, Lāna'i) asks that supporters of Native Hawaiian interests respond to the U.S. Supreme Court decision by urging lawmakers to support the ceded lands bills before the end of the legislative session on May 7. In a written release, Carroll, the chair of the Legislative Hawaiian Caucus said, "The Legislature has an opportunity to pass a law where we can set policy to ensure that 'ceded lands' are not sold or transferred until the state fulfills its fiduciary responsibility and moral obligation to native Hawaiians."

The Supreme Court decision will not take effect until about 25 days after it was issued on March 31. In the interim, Bennett said he hoped to meet with OHA attorneys to discuss "technical matters" related to the decision. He declined to elaborate on details of the state's legal strategy once the state Supreme Court resumes deliberations on the case. "In the meantime, we may ask (the state's trial court) to lift the injunction (barring sales or transfers of ceded lands), but we would not proceed to do anything inconsistent with the injunction. This case was never about plans to sell ceded lands, but as a technical matter, the Circuit Court has authority to dissolve or modify the injunction," he said.

Bennett also said he would be testifying at hearings for ceded lands legislation. He said the state favored Senate bill 1677, which would require two-thirds of the Legislature to disapprove any proposed ceded lands sale or transfer, because "the disapproval process is already in place." (The House Finance Committee amended SB 1677 last night, removing the two-thirds disapproval requirement; the bill would require a majority vote by both houses to disapprove proposed sales or transfers, which is a lower hurdle to overcome.) He declined to say what the state's strategy would be if the state reaffirmed its earlier injunction, though he said this could have the effect of making the state a target of 14th amendment challenges, which guarantees equal protection.

The announcement of the U.S. Supreme Court decision on ceded lands coincided with Gov. Linda Lingle's appearance before the Senate Ways and Means Committee, where she asked lawmakers to back her proposed $278 million cuts in wages and benefits for public workers as a way to balance the state budget for the next biennium and boost Hawai'i's economic recovery. Lingle said after the hearing that the budget crisis would not warrant the reversal of her stated position of no ceded lands sales. As an aside, she referred to the recent drop in property values and said that it would not be wise even from an economic perspective to enhance revenue with land sales. But, she said, a court decision reaffirming the state's clear title to public lands is an indirect boost to the economy because it removes a necessary caveat that otherwise clouds the state's bond rating important to funding of public works projects.

Lingle's previous statements to this effect have been dismissed in the past by supporters of the ceded lands moratorium, including Hee, the state senator, who said the state has made public statements regarding its high bond rating.

Apoliona, the OHA Chairperson, said OHA trustees aim to "protect these national ands from being extracted and we will do legislatively and judicially all we can to, at the end of the day, arrive at that conclusion."

"Tomorrow's a new day," she added. "It's coming back to the state Supreme Court. We're not done."