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).