DIRECTOR’S
COLUMN – THE 1993 APOLOGY RESOLUTION
by
Melody Kapilialoha MacKenzie
Welina nui ‘oukou e nā hoa makamaka:
In
1993, when Congress passed the Apology Resolution, Public Law 103-150,
acknowledging the 100th anniversary of the overthrow of the Hawaiian
Kingdom and formally apologizing to the Native Hawaiian people for U.S.
involvement in the overthrow, the Hawaiian community was cautiously
optimistic. The Apology Resolution contains strong findings, establishes
a foundation for reconciliation, and calls for a reconciliation process.
It does not, however, require any particular restorative action or even
set forth a process for reconciliation. Thus, some skeptics believed
the Apology Resolution, although having the force of law, was of minimal
value.
Fortunately,
many scholars and advocates saw the significance of the Apology Resolution
and took it seriously. On the academic front, Law Professor S. James
Anaya in his persuasive article on Native Hawaiians and international
human rights law was the first scholar among many to cite the Apology
Resolution for its clear recognition of the right of Native Hawaiians
to self-determination.1
The powerful factual statements in the Apology Resolution have been
utilized as a basis for Congressional findings in other federal legislation,
such as the current version of the Native Hawaiian Education Act, and
some have cited the Resolution as the source for the pending Native
Hawaiian Government Reorganization Act or Akaka Bill, legislation that
could lead to a Native Hawaiian government and federal recognition.
Although
the U.S. Supreme Court in the Rice v. Cayetano decision gave
little attention to the Resolution, addressing it in a single sentence,
the Apology Resolution’s call for reconciliation led to joint Department
of Justice and Interior meetings and hearings in Hawai‘i in 2000. The
subsequent report from Justice and Interior recommended a series of
actions to express a re-commitment to reconciliation. These actions
included new legislation to clarify the political status of Native Hawaiians
and to provide self-determination within the framework of Federal law.
One
important legacy of the Apology Resolution has been its role in helping
to shift the public consciousness, particularly in Hawai‘i, about the
1893 overthrow and subsequent events. Recently, in her article in The
Nation on Hawaiian resistance, Elinor Langer wrote of this change
in perception:
|
The
most remarkable thing about the present moment, in fact, is the
extent to which the illegality of the American takeover is recognized.
Despite the fact that the racial mixture of individuals and families
is such that the question of who is “Hawaiian” can never be satisfactorily
answered; despite the fact that a large proportion of families are
thoroughly integrated into the economic status quo through the employment
of one or more members in the military or tourist industry; despite
the fact that, overall, the citizens of Hawai‘i appear used to and
indeed proud of being Americans, there is a widespread consensus,
strengthened by the Apology Resolution, that the historical sequence
that began with the takeover of the Hawaiian Kingdom and ended with
Hawai‘i’s star on the American flag was wrong, and that the fact
that it started a long time ago does not make it right.2 |
Another
significant impact of the Apology Resolution can be found in the Hawai‘i
Supreme Court’s landmark decision in Office of Hawaiian Affairs
v. Housing and Community Development Corporation of Hawai‘i (OHA v.
HCDCH),3
explained in detail in Ho‘oholo I Mua - Towards Reconciliation?
in this issue of Ka He‘e. In this unanimous opinion, authored
by Chief Justice Ronald Moon, the Court held that the State of Hawai‘i
is prohibited from alienating the “ceded lands” under State control
until the claims of the Native Hawaiian people to the lands have been
resolved. The ceded lands are the approximately 1.8 million acres of
Government and Crown lands of the Hawaiian Kingdom that were ceded by
the Republic of Hawai‘i to the United States through the 1898 Joint
Resolution of Annexation. The State controls about 1.4 million acres
of these lands, with 200,000 acres specifically designated as Hawaiian
Home Lands for native Hawaiian homesteading, and the remaining lands
impressed with a trust in part for the benefit of native Hawaiians.4
Thus, many Hawaiians saw the Hawai‘i Supreme Court’s decision as a positive
and enlightened one.
The
Hawai‘i Court relied heavily upon the findings in the 1993 Apology Resolution
that recognize the unrelinquished claims of the Native Hawaiian people
to the ceded lands. The Court also specifically pointed to Hawai‘i statutes,
including Acts 354 and 359, both passed by the Hawai‘i State legislature
in 1993, recognizing that Hawai‘i’s indigenous people were denied their
lands and promoting restoration of the rights and dignity of Native
Hawaiians. In addition to acknowledging the importance of the 1993 Apology
Resolution and these Hawai‘i laws, the Hawai‘i Supreme Court’s decision
ensures that no transfer of ceded lands will take place until the reconciliation
process occurs.
The
decision also seemed to provide greater momentum to those seeking to
reach a political resolution of Native Hawaiian claims for land and
sovereignty through federal recognition. The Akaka Bill for instance
acknowledges that, “[C]eded lands provide an important foundation for
the ability of the Native Hawaiian community to maintain the practice
of Native Hawaiian culture, language, and traditions, and for the survival
and economic self-sufficiency of the Native Hawaiian people.”5
In
late April, however, the optimism generated by the opinion was somewhat
dampened when the State announced that it would seek U.S. Supreme Court
review of the Hawai‘i Supreme Court’s decision. The U.S. Supreme Court
receives over 8,000 petitions for review every year and grants less
than two percent, but given the continuing negative effects of the Rice
v. Cayetano decision, the Hawaiian community expressed concern.
Of equal concern is that while the litigation continues, the State certainly
cannot be viewed as a partner in the reconciliation process. Thus, the
momentum generated by the Hawai‘i Supreme Court’s decision and the resulting
efforts to move the reconciliation process forward have hit a roadblock.
In
its petition for review to the U.S. Supreme Court, the State challenges
the very nature of the Apology Resolution, arguing that it is a “symbolic
resolution” with no substantive effect on any rights. For Native Hawaiians,
of course, there is more than a little irony here. As one of my students
put it, “If the 1993 Apology Resolution is merely a ‘symbolic resolution,’
then what does that make the 1898 Joint Resolution of Annexation?”
The
Apology Resolution does not require the State or Federal governments
to take any particular actions, but as the Hawai‘i Supreme Court determined,
the Resolution and Hawai‘i statutes with similar findings, when combined
with the State’s trust responsibilities in relation to ceded lands,
establish a powerful mandate. A mandate so potent that a unanimous Hawai‘i
Supreme Court believed a permanent injunction on the sale of ceded lands
was not only appropriate, but necessary, to preserve the trust corpus.
This mandate, resting on Federal law – the 1993 Apology Resolution –
but also having a separate and independent basis in State law, should
withstand the State’s petition for review to the U.S. Supreme Court.
Skeptics
of the 1993 Apology Resolution have been proven wrong. The Apology Resolution
has made a difference – in the public’s understanding and perception
of the events of 1893, in providing a base for other federal legislation
benefiting the Native Hawaiian community, and certainly in its authoritative
use by the Hawai‘i Supreme Court in the OHA v. HCDCH case.
Along
with Sherry Broder, Prof. Jon M. Van Dyke, and Neal Katyal, I am one
of the attorneys representing the Office of Hawaiian Affairs in opposing
the State's petition for certiorari in State of Hawaii v. Office
of Hawaiian Affairs. I would like to thank Moanike‘ala Crowell
for her work on the accompanying article on OHA v. HCDCH in
this issue of Ka He‘e; I have drawn on some of her research
and thoughts in writing this column.
1
S.
James Anaya, The Native Hawaiian People and International Human
Rights Law: Toward a Remedy for Past and Continuing Wrongs, 28
GA. L. REV. 309 (1994).
2 Elinor Langer, Famous
Are the Flowers: Hawaiian Resistance Then--And Now, THE NATION,
April 28, 2008, at 28-29.
3 OHA v. HCDCH, 117 Hawai‘i
174, 177 P.3d 884 (2008).
4 The Hawaiian Homes Commission
Act establishing the homesteading program, and the Admission Act setting
forth the trust purposes for ceded lands, utilize a definition of native
Hawaiian of at least one-half Hawaiian ancestry.
5 H.R. 505/S. 310, 110th Cong.
§ 2(10) (2007).