William Perry Pendley

In 1993, Congress adopted an “Apology Resolution” expressing regret to “Native Hawaiians” for the federal government’s role in ending the Hawaiian monarchy. There was one problem: nearly every paragraph was either false or misleading, including one stating that “Native Hawaiians” were targets of any American mischief—in fact, since creation of the Hawaii Kingdom in 1810, there never was a race-based government. More significantly: why was Congress apologizing for ending a monarchy and moving toward republican government? As U.S. Senator Hank Brown (R-CO) put it: “We ought to be clear that we are not here apologizing for democracy or the concept of private property.”

Senator Daniel Inouye (D-HI) said his only purposes were “to educate . . . the American public on events [and] provide for reconciliation between the United States and the native Hawaiian people.” Senator Slade Gorton (R-WA) was dubious. What were the bill’s “ramifications,” he asked, other than “divid[ing] the citizens of [] Hawaii . . . into two distinct groups, Native Hawaiians and all other citizens.” “[I]s this,” continued Gorton, “some form of claim, some form of different [] treatment for those who can trace a single ancestor back to 1778 in Hawaii . . . ?” No, responded Inouye; Native Hawaiians’ objective was “simple:” “we believe that our country is big enough and great enough to recognize wrong and admit it.”

Turns out, Gorton was right; Inouye was wrong. Armed with Congress’s Apology, the Office of Hawaiian Affairs (OHA), which receives a portion of the income from state lands to benefit Native Hawaiians, challenged Hawaii’s affordable housing authority’s plan to use a 500-acre parcel in West Maui. By state law, OHA would receive 20 percent of the land’s value, nearly $6 million. OHA refused the check; instead, it demanded a disclaimer on the deed that the conveyance did not waive or diminish Native Hawaiians’ claims to the land.

In December 2001, a trial court rejected OHA’s claim that the Apology Resolution bars Hawaii from selling its lands. In January 2008, Hawaii’s Supreme Court reversed, holding that the Resolution prohibits the State from selling, exchanging, or transferring 1.2 million acres of State land—almost all of the State’s land and nearly one-third of Hawaii—until it reaches a political settlement on the “unrelinquished [land] claims” of Native Hawaiians. On October 1, 2008, the U.S. Supreme Court granted Hawaii’s petition for review.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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