absolute title to the ceded set aside property but merely a defeasible interest which shifts automatically to the State of Hawaii as soon as and whenever the property ceases to be used by the United States for the purposes specified in the instrument setting it aside. Since section 5(e) does not envisage an automatic transfer of property but requires a Presidential determination and an actual conveyance, and since its operation is limited to five years, the State of Hawaii argues that it cannot refer to the defeasible fees of the United States in ceded set aside property, and that section 5(e) must refer to the afteracquired property of the United States or be meaningless.

This contention of the State of Hawaii lacks persuasiveness for at least three reasons: First, the State's argument turns upon the assumption that the title to all of the ceded set aside property is unquestionably of a defeasible nature; if the United States acquired an absolute fee in only some of that property, or if the nature of its interest is doubtful, those considerations in themselves, would constitute a sufficient reason for the existence of section 5(e). It would seem more reasonable to regard the insertion in section 5(c) of the words "if any" as expressing congressional doubt as to whether the title of the United States in the ceded set aside property, or at least in all such property, is defeasible or subject to the type of conditional limitation 30 suggested

80 The limitation referred to in section 5(c) clearly is the interest created by the set aside order. This interest differs substantially from the conventional defeasible fee. Ordinarily a defeasible fee is created by a conveyance which provides that the estate shall automatically expire upon the occurrence of a stated event. Such interest is usually created by the use of words such as "until," "so long as," or "during;" the mere statement of the purpose of the conveyance, however, is normally not sufficient to create a defeasible interest or "to debase the fee." American Law Institute, Restatement of the Law of Property, vol. I, sec. 44 and comments "1" and "m"; American Law of Property, vol. I, sec. 4.13; 2 Powell, The Law of Real Property, par 187, pp. 34, 36; Simes and Smith, The Law of Future Interests (Second Edition), vol. I, sec. 286, pp. 341, 343; Abel et al. v. Girard Trust Co., 365 Pa. 34, 37, 73 A. 2d 682, 684 (1950).

Property set aside for the uses and purposes of the United States did not revert automatically to the possession, use, and control of the Territory of Hawaii as soon as it ceased to be used for the purposes for which it had been set aside, or, generally, for the purposes of the

by the State of Hawaii. Section 5(e) thus would serve the definite purpose of enabling the State of Hawaii to obtain ceded set aside property which became surplus within five years after the admission of Hawaii, should it be determined that the United States holds that property, or a part of it, in fee simple absolute. Second, it is conceivable that, although a specific parcel of property is being used by an agency consistently with the purposes recited in the order pursuant to which it was set aside, it may, as a practical matter, "no longer be needed" within the meaning of section 5(e). Third, even if it should be assumed arguendo that the United States holds a defeasible title to all of that property, as claimed by the State of Hawaii, section 5(e) still would serve the important purpose of providing an administrative machinery in which it can be determined whether United States. Section 91 of the Organic Act of Hawaii provided that such property "may be restored to its previous status by direction of the President” and in some instances this even required an act of Congress (cf. act of July 27, 1954, 68 Stat. 567, and H. Rept. 980, 83rd Cong., 1st sess., pp. 2-4; S. Rept. 927, 83rd Cong., 2d sess., pp. 2–5). Moreover, and presumably as the result of the language of section 91, none of the set aside orders examined by me contains any clauses such as "until," "so long as,” or “during," which normally are required to create a defeasible interest. At best, the orders recited the reason why the property was taken for the uses and purposes of the United States or of a particular department. Consequently, it is by no means certain that the United States acquired less than an absolute fee under section 5(c) in the ceded set aside property.

In this connection it may be pointed out that the discussions in the pertinent committee reports of the property interests retained by the United States pursuant to section 5 do not give any indication that the title of the United States constitutes anything other than the conventional fee simple absolute. To the contrary, the reports state expressly that the section "also retains in effect the President's authority to restore lands to their previous status after admission." H. Rept. 32, 86th Cong., 1st sess., p. 5; S. Rept. 80, 86th Cong., 1st sess., pp. 2-3, see also id. at 19 and 17, respectively. In other words, section 5(e) is the equivalent of the President's authority under section 91 of the Organic Act of Hawaii to restore ceded set aside property to its previous status. The committee reports accordingly would seem to refute the State's theory that section 5(e) has no bearing on ceded set aside property, and that the title acquired in the latter by the United States is defeasible and shifts automatically to the State of Hawaii without Presidential action.

or not the contingency terminating the title of the United States has occurred.

In view of the foregoing considerations, I must answer the first question in the negative. In reaching this conclusion I am aware of the equitable argument made by the State of Hawaii, viz., that it ought to receive the surplus afteracquired property in compensation for the many sacrifices it has made for the United States, in particular for the ceded properties which have been set aside. However, neither the language nor the legislative history of the Hawaii Statehood Act discloses to my satisfaction a congressional purpose to adjust in that statute Hawaii's equitable claims of this nature, however meritorious. It is, of course, still open to the State of Hawaii to seek appropriate legislative action from the Congress which has the special constitutional function under Article IV, section 3, clause 2 of the Constitution of disposing of the property of the United States. Alabama v. Texas, 347 U.S. 272, 273 (1954); United States v. San Francisco, 310 U.S. 16, 29-30 (1940).

Respectfully,

ROBERT F. KENNEDY.

APPENDIX

Section 5 of the Hawaii Statehood Act of March 18, 1959, Public Law 86-3, 73 Stat. 4, 5, as amended by section 41 of the Hawaii Omnibus Act of July 12, 1960, Public Law 86-624, 74 Stat. 422, 48 U.S.C. (Supp. II), c. 3, Note, reads in pertinent part:

"Sec. 5. (a) Except as provided in subsection (c) of this section, the State of Hawaii and its political subdivisions, as the case may be, shall succeed to the title of the Territory of Hawaii and its subdivisions in those lands and other properties in which the Territory and its subdivisions now hold title.

"(b) Except as provided in subsection (c) and (d) of this section, the United States grants to the State of Hawaii, effective upon its admission into the Union, the United States' title to all the public lands and other public property, and to all lands defined as 'available lands' by section 203 of the Hawaiian Homes Commission Act, 1920, as amended, within the boundaries of the State of Hawaii, title to which is held by the United States immediately prior to its admission into the Union. The grant hereby made shall be in lieu of any and all grants provided for new States by provisions of law other than this Act, and such grants shall not extend to the State of Hawaii.

"(c) Any lands and other properties that, on the date Hawaii is admitted into the Union, are set aside pursuant to law for the use of the United States under any (1) Act of Congress, (2) Executive order, (3) proclamation of the President, or (4) proclamation of the Governor of Hawaii shall remain the property of the United States subject only to the limitations, if any, imposed under (1), (2), (3), or (4), as the case may be.

"(d) Any public lands or other public property that is conveyed to the State of Hawaii by subsection (b) of this section but that, immediately prior to the admission of said State into the Union, is controlled by the United States pur

suant to permit, license, or permission, written or verbal, from the Territory of Hawaii or any department thereof may, at any time during the five years following the admission of Hawaii into the Union, be set aside by Act of Congress or by Executive order of the President, made pursuant to law, for the use of the United States, and the lands or property so set aside shall, subject only to valid rights then existing, be the property of the United States.

"(e) Within five years from the date Hawaii is admitted into the Union, each Federal agency having control over any land or property that is retained by the United States pursuant to subsections (c) and (d) of this section shall report to the President the facts regarding its continued need for such land or property, and if the President determines that the land or property is no longer needed by the United States it shall be conveyed to the State of Hawaii.

"(f) The lands granted to the State of Hawaii by subsection (b) of this section and public lands retained by the United States under subsections (c) and (d) and later conveyed to the State under subsection (e), together with the proceeds from the sale or other disposition of any such lands and the income therefrom, shall be held by said State as a public trust for the support of the public schools and other public educational institutions, for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, for the development of farm and home ownership on as widespread a basis as possible for the making of public improvements, and for the provision of lands for public use. Such lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States. The schools and other educational institutions supported, in whole or in part, out of such public trust shall forever remain under the exclusive control of said State; and no part of the proceeds or income from the lands granted under this Act shall be used for the support of any sectarian or denominational school, college, or university.