The top attorneys for 29 states are backing the state of Hawai'i in its attempt to shoot down a Hawai'i Supreme Court ruling barring the state from selling or transferring ceded lands until claims by Native Hawaiians to the 1.2 million acres once owned by the Hawaiian government are settled.

The amicus brief was filed June 5 by the attorney general of the state of Washington, and supported by 28 other states and the commonwealth of the Northern Mariana Islands.

On Jan. 31, the Hawai'i Supreme Court ruled against the state of Hawai'i and in favor of the Office of Hawaiians Affairs by denying the state the opportunity to sell the lands.

Hawai'i Attorney General Mark Bennett is seeking to reverse that decision through an appeal to the U.S. Supreme Court, but must first get the U.S. Supreme Court to hear the merits of an appeal. Bennett yesterday said the backing of 29 states on the point could improve the chances that the court will review the Hawai'i decision.

Four of the nine justices need to be convinced to hear the case, Bennett said.

The key issue raised by the amicus brief surrounds Congress' 1993 Apology Resolution, in which Congress acknowledged and apologized for the U.S. role in the 1893 overthrow of the Hawaiian government. The Hawai'i court, in citing the Apology Resolution, said the document "acknowledges only that unrelinquished claims (by Native Hawaiians) exist and plainly contemplates future reconciliation with the United States and the state with regard to those claims."

But the amicus brief said the Hawai'i court misinterpreted the Apology Resolution and that it believes it did not mean for lands given to the state of Hawai'i when it was admitted into the union in 1959 to be frozen.

The brief points out the states' interest in the case, proclaiming "every state admitted into the union since 1802 has received grants of land owned, prior to statehood, by the federal government." Restraining a state from selling, transferring or exchanging state lands "would cause incalculable harm to a state and to the state citizens who benefit from the use and management of state lands," the brief said.

According to Bennett, "the court attributed to Congress powers it doesn't have." Specifically, "Congress doesn't have the power to say to a state to whom it granted lands 'at some point after we granted them, we are taking back an attribute of ownership that we gave you.' "

OHA disagrees with the conclusion reached by the amicus brief.

"The Hawai'i Supreme Court was correct in its analysis that the Apology Resolution confirms that the Hawaiians still have unresolved claims to the lands that were taken from them in 1893 without their consent and without compensation," OHA said in a statement.

"The Hawai'i State Legislature has incorporated the Apology Resolution into state law and provides independent and separate state grounds for the decision. In other decisions, the Hawai'i Supreme Court has held the State of Hawai'i to the highest fiduciary standards in dealing with Native Hawaiians."