The U.S. Supreme Court held that a Congressional resolution apologizing for the United States’ role in the overthrow of the Hawaiian kingdom was just an apology, and had no legal effect. In an opinion for a unanimous Court authored by Justice Alito, the Court held:
The Supreme Court of Hawaii erred in reading § 3 [of the apology Resolution] as recognizing claims inconsistent with the title held in “absolute fee” by the United States (30 Stat. 750)and conveyed to the State of Hawaii at statehood.
Slip op. at 10.
Jurisdiction
The opinion first made short work of the claim by the Office of Hawaiian Affairs that the Supreme Court had no jurisdiction. OHA asserted that the Hawaii Supreme Court’s opinion (117 Haw. 174, 177 P.3d 884 (Jan. 31, 2008), available here) was not based upon federal law (the Apology Resolution) but was based upon Hawaii trust law. The Court held it had jurisdiction because there was “no doubt” the Hawaii Supreme Court based its decision on federal law. How did the Court know? OHA had argued federal law, and the Hawaii Supreme Court said it relied on federal law:
Although respondents dwell at length on that argument, see id., at 19–34, we need not tarry long to reject it. This Court has jurisdiction whenever “a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Michigan v. Long, 463 U. S. 1032, 1040–1041 (1983). Far from providing a “plain statement” that its decision rested on state law, id., at 1041, the State Supreme Court plainly held that its decision was “dictate[d]” by federal law—in particular, the Apology Resolution, see 117 Haw., at 212, 177 P.3d, at 922. Indeed, the court explained that the Apology Resolution lies “[a]t the heart of [respondents’] claims,” that respondents’ “current claim for injunctive relief is . . . based largely upon the Apology Resolution,” and that respondents’ arguments presuppose that the Apology Resolution “changed the legal landscape and restructured the rights and obligations of the State.” Id., at 189–190, 177 P. 3d, at 899–900 (internal quotation marks omitted). The court noted that “[t]he primary question before this court on appeal is whether, in light of the Apology Resolution, this court should issue an injunction” against sale of the trust lands, id., at 210, 177 P.3d, at 920, and it concluded, “[b]ased on a plain reading” of the Apology Resolution, that “Congress has clearly recognized that the native Hawaiian people have unrelinquished claims over the ceded lands,” id., at 191, 177 P.3d, at 901.
Slip op. at 6-7 (emphasis original). As we noted here and here, OHA’s argument flew in the face of reality and was impossibly weak. As we noted here, the argument appeared to be a rear-guard action designed to keep SCOTUS from ruling against OHA on a wider rationale.
Apology, Nothing More
On the merits, the Court held the “whereas” clauses relied upon by the Hawaii Supreme Court were not the meaningful part of the Apology Resolution. The two “substantive provisions” of the Apology Resolution did not justify the injunction imposed by the Hawaii Supreme Court, and SCOTUS held that the resolution was simply an apology, because:
Such terms are not the kind that Congress uses to create substantive rights—especially those that are enforceable against the sovereign States.
Slip op. at 8. In footnote 3, the Court contrasted apologies that are meant to have substantive effect, such as the apology for the internment of Japanese-Americans in World War II and the apology to people exposed to radiation from above-ground nuclear testing. Both apologies provided for restitution or compensation.
The Court also rejected the argument that Congress intended in the Apology Resolution to only prohibit claims against the federal government. OHA argued that the language “[n]othing in this Joint Resolution is intended to serve as a settlement of any claims against the United States,” implied that claims against the State of Hawaii were valid. The Court held it did not have
judicial license to turn an irrelevant statutory provision into a relevant one. And we know of no justification for turning an express disclaimer of claims against one sovereign into an affirmative recogni-tion of claims against another.
Slip op. at 9.
State Has “Absolute Fee Simple” Title to Ceded Lands
The Court also rejected the Hawaii Supreme Court’s reliance on the “whereas” clauses in the Apology Resolution “for at least three reasons.”
First, “whereas” clauses have no operative effect, and are just preamble.
Second, even if the clauses had some legal effect, they did not change the rights and obligations of the state under the Admission Act:
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. On that score, we find it telling that even respondent OHA has now abandoned its argument, made below, that “Congress . . . enacted the Apology Resolution and thus . . . change[d]” the Admission Act. App.114a; see also Tr. of Oral Arg. 31, 37–38..
Slip op. at 11. This is perhaps the most key part of the case, since the Court put to rest all claims that the federal government’s title to the “ceded lands” was somehow less than perfect because it took title from the Republic of Hawaii.
Third, the Apology Resolution would raise “grave constitutional concerns” if it was Congress’ attempt to affect or unwind the terms by which Hawaii entered the Union in 1959.
The Court’s opinion is posted here. Disclosure: I helped author an amicus brief supporting the state’s argument. More background at our “ceded lands” case page.