On March 31, 2009, the Supreme Court of the United States reversed the Hawaiʻi Supreme Court and rendered a decision on a case between the State of Hawaiʻi and OHA relating to the transfer of ceded lands.
In that decision, the US Supreme Court discusses the 1993 ‘Apology’ Resolution, as well as makes references to Hawaiian Sovereignty. The following are quotes from the US Supreme Court decision:
“In 1893, ‘[a] so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawai‘i, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government.’ ‘That government sought annexation by the United States’ (Newlands Resolution).”
“Pursuant to the Newlands Resolution, the Republic of Hawai‘i ‘cede[d] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind’ and further ‘cede[d] and transfer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining’ (hereinafter ceded lands).”
“The Newlands Resolution further provided that all ‘property and rights’ in the ceded lands ‘are vested in the United States of America.’” “Two years later, Congress established a government for the Territory of Hawai‘i. … The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in ‘absolute fee’ under that resolution.”
“In 1959, Congress admitted Hawai‘i to the Union (hereinafter Admission Act). Under the Admission Act, with exceptions not relevant here, ‘the United States grant[ed] to the State of Hawai‘i, effective upon its admission into the Union, the United States’ title to all the public lands and other public property within the boundaries of the State of Hawai‘i, title to which is held by the United States immediately prior to its admission into the Union.’”
“Hawai‘i state law also authorizes the State to use or sell the ceded lands, provided the proceeds are held in trust for Hawaiian citizens. In 1993, Congress’ joint Apology Resolution “apologize[d]” for this country’s role in overthrowing the Hawaiian monarchy, and declared that nothing in the resolution was ‘intended to serve as a settlement of any claims against the United States.’”
“In 1993, Congress enacted a joint resolution ‘to acknowledge the historic significance of the illegal overthrow of the Kingdom of Hawai‘i, to express its deep regret to the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawai‘i and the United Church of Christ with Native Hawaiians.’ Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawai‘i, … (hereinafter Apology Resolution).”
“Turning to the merits, we must decide whether the Apology Resolution ‘strips Hawai‘i of its sovereign authority to sell, exchange, or transfer’ the lands that the United States held in “absolute fee” and “grant[ed] to the State of Hawai‘i, effective upon its admission into the Union”. We conclude that the Apology Resolution has no such effect.”
“The Apology Resolution did not strip Hawai‘i of its sovereign authority to alienate the lands the United States held in absolute fee and granted to the State upon its admission to the Union.”
“The resolution’s first substantive provision uses six verbs, all of which are conciliatory or precatory. Specifically, Congress ‘acknowledge[d] the historical significance’ of the monarchy’s over-throw, ‘recognize[d] and commend[ed] efforts of reconciliation’ with native Hawaiians, ‘apologize[d] to [n]ative Hawaiians’ for the overthrow, ‘expresse[d] [Congress’s] commitment to acknowledge the ramifications of the overthrow,’ and ‘urge[d] the President … to also acknowledge [those]ramifications’.”
“Such terms are not the kind that Congress uses to create substantive rights – especially those that are enforceable against the cosovereign States.”
“The Apology Resolution’s second and final substantive provision is a disclaimer, which provides: ‘Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.’ By its terms, speaks only to those who may or may not have ‘claims against the United States.’”
“The State Supreme Court, however, read [this] as a congressional recognition – and preservation – of claims against Hawai‘i. There is no justification for turning an express disclaimer of claims against one sovereign into an affirmative recognition of claims against another.”
The US Supreme Court concluded, “First, ‘whereas’ clauses like those in the Apology Resolution cannot bear the weight that the lower court placed on them. As we recently explained in a different context, ‘where the text of a clause itself indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation …, a court has no license to make it do what it was not designed to do.’”
“Second, even if the ‘whereas’ clauses had some legal effect, they did not ‘chang[e] the legal landscape and restructur[e] the rights and obligations of the State.’”
“The Apology Resolution reveals no indication – much less a ‘clear and manifest’ one – that Congress intended to amend or repeal the State’s rights and obligations under Admission Act (or any other federal law); nor does the Apology Resolution reveal any evidence that Congress intended sub silentio to ‘cloud’ the title that the United States held in ‘absolute fee’” and transferred to the State in 1959.”
“Third, the Apology Resolution would raise grave constitutional concerns if it purported to ‘cloud’ Hawaii’s title to its sovereign lands more than three decades after the State’s admission to the Union. We have emphasized that ‘Congress cannot, after statehood, reserve or convey submerged lands that have already been bestowed upon a State.’”
A later Hawaiʻi Supreme Court case noted (in 2014,) “The US Supreme Court reversed this court, holding that the Apology Resolution did not confer substantive rights or have a substantive legal effect. Thus, the Apology Bill cannot serve to support a fundamental right to nation-building”. (SCWC-29794)
It’s interesting to note the Supreme Court’s repeated references to the Republic of Hawai‘i, Annexation, Territory, Newlands Resolution, Admission Act, State, etc.
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