Thu 12 Mar, 2009
Tags: Apologies, Hawaii, Native Americans, Reparations
The U.S. Supreme Court is poised to rule on the issue of whether apologies issued to Hawaii give native Hawaiians a legal claim to lands seized in the 19th century.
The Court will have to judge whether an apology was a mere statement of regret, or whether, even without additional language, the apology creates legal responsibilities.
The case has important implications for native Hawaiians and for other groups, such as native Americans, which may have historic claims to seized territory. It also bears directly on the politics and legal implications of the growing number of state and federal apologies for the nation’s history of slavery and discrimination.
The U.S. apologizes for the annexation of Hawaii
In 1893, the Kingdom of Hawaii was overthrown by private American interests with the backing of a U.S. official and U.S. marines. Despite protests by Queen Liliuokalani, who was imprisoned, within five years the U.S. had annexed Hawaii and claimed 1.8 million acres belonging to the Hawaiian crown or its subjects as federal land. In 1959, when Hawaii became the fiftieth state in the Union, 1.2 million acres reverted to the state government to be held in trust.
In 1993, the U.S. Congress recognized the 100th anniversary of the Hawaiian monarchy’s overthrow with a resolution apologizing to native Hawaiians for that event, and calling for “reconciliation between the United States and the Native Hawaiian people.” In its apology, Congress said the U.S. had participated in a “conspiracy to overthrow the Government of Hawaii,” and found this to be “a violation of treaties between the two nations and of international law.”
Meanwhile, the Hawaiian state legislature declared U.S. actions surrounding the overthrow to be “illegal and immoral,” declaring that neither native Hawaiians nor their rightful government had agreed to cede the land.
Hawaii v. Office of Hawaiian Affairs
Last year, the Supreme Court of Hawaii cited the U.S. apology in enjoining the state from selling any of the 1.2 million acres at issue while the claims of native Hawaiians to the land are resolved. The court found unanimously that the congressional apology amounted to an acknowledgment “that the Native Hawaiians have unrelinquished claims over the ceded land” and that the apology “contemplates future reconciliation” among the U.S., the state of Hawaii, and native Hawaiians. Taking the 1993 federal and state statements together, the court concluded that the state has a fiduciary duty to preserve the land while an amicable resolution to the claims is pursued.
The State of Hawaii appealed to the U.S. Supreme Court, which heard oral arguments last month in Hawaii v. Office of Hawaiian Affairs. The state wants the freedom to sell land under its control. Not surprisingly, it argues that the congressional apology was meant only to acknowledge the history and to apologize for it, and not to affect the state’s legal obligations.
Mere statement of regret or basis for legal claims?
The congressional apology to native Hawaiians specifically said, in section 3:
Nothing in [this resolution] is intended to serve as a settlement of any claims against the United States.
This language seems to parallel the disclaimers in many apologies for slavery discrimination, which usually seek to expressly reject the possibility that an apology could be used to advance legal claims, such as reparations for slavery. The language of this apology, however, seems to be less clear: the Hawaiian Supreme Court found that the language contemplates a future settlement of claims by native Hawaiians, while the State of Hawaii argues that this provision was intended, at best, neither to advance nor to deny those claims.
These conflicting interpretations may hinge on language unique to this apology, but there is a much broader issue at stake.
Advocates for slavery apologies frequently argue that an apology cannot, by implication, create substantive legal rights, and apology opponents frequently insist that their concern is that courts could find a right to slavery reparations in the mere act of apologizing. It is significant, therefore, that the Supreme Court of Hawaii seems to have found a substantive legal right, by implication, in the 1993 congressional apology—despite the legislative history, which expressly says that the apology “will not result in any changes in existing law.”
The Justice Department, in its amicus brief, suggested that if the Supreme Court upholds the ruling, it will discourage similar apologies from Congress for other historic wrongs. However, the four members of Hawaii’s congressional delegation filed their own amicus brief with the Court, opposing the state’s position and arguing that federal courts have, in the past, found that apologies have changed legal obligations, and that the Court ought to do so here, as well.
This case also has implications for the settlement of claims beyond those of native Hawaiians and the descendants of slaves. There have been seven amicus briefs filed on behalf of the petitioner, and ten on behalf of the respondent. These include a brief filed by the United States, a brief filed by thirty-two other U.S. states, and briefs raising issues involving native Americans, Alaska natives, and race-based preferences.