For our nation's Founders, the division of sovereign power between federal and state governments was not designed simply or even primarily to insulate the states from federal power. It was designed so that the states might serve as an independent check on the federal government, preventing it from expanding its powers against ordinary citizens. And it was designed so that decisions affecting the day-to-day activities of ordinary citizens would continue to be made at a level of government close enough to the people so as to be truly subject to the people's control.



Hawaii v. Office of Hawaiian Affairs (2009). The case began when Hawaii proposed to sell property in order to build much needed residential housing. The funds from the sale would have gone to the Office of Hawaiian Affairs (OHA) to be used for the benefit of Native Hawaiians. Nonetheless, OHA and others sued to stop the sale, claiming that the state was required to hold on to the land until it settled the "unresolved claims of Native Hawaiians." The source for OHA's claim was the 1993 Apology Resolution passed by Congress and signed by President Clinton. This resolution apologized for the role the United States government in the overthrow of the Hawaiian monarchy in 1893, and noted that some Native Hawaiians had yet to be reconciled with this event—including the loss of land that was eventually deeded to the state. According to the Hawaii Supreme Court, this resolution had the effect of revoking the state's authority to sell the property.

This was an important question for all of the states. Beginning with the Northwest Ordinance, Congress has included a grant of land to new states as they were admitted into the union. Generally, these grants were intended to provide the new states with income for essential services - especially public schools. The grants did not restrict the power of the states to sell the land. Indeed, the terms of the grant assumed that the land would bring income to the state.

Hawaii was no different. In the Act of Admission, the federal government granted the state title to 1.2 million acres of land for the state to use to support public education, home ownership, public lands, and the support of native Hawaiians.

CCJ, joined by former Attorney General Edwin Meese III, filed an amicus brief in the case. Prepared primarily by CCJ attorney Tom Caso, with the able assistance of Chapman law student Edward Reid, we argued in the brief that whatever the effect of the Apology Resolution, Congress had no authority to revoke a state's sovereignty over its own lands. New states are admitted to the union on an "equal footing" with the original 13 states, and all have sovereignty over state lands that cannot be revoked by the federal government.

The United States Supreme Court agreed. Writing for a unanimous court, Justice Alito noted that OHA's interpretation of the apology resolution "would raise grave constitutional concerns." Congress simply does not have the authority to "reserve or convey ... lands that have already been bestowed upon a state."

Download the full CCJ brief here: Amicus Brief, Hawaii et al. v. Office of Hawaiian Affairs