Jess Bravin & Louise Radnofsky / Wall Street Journal – 2009-03-15 21:25:09

http://online.wsj.com/article/SB123682336964803763.html

WASHINGTON (March 13, 2009) — Lawyers typically warn clients never to apologize for anything, since a plaintiff could seize upon the remorse as an admission of liability. But what happens when governments apologize?

A century after a cabal of American sugar planters, financiers and missionaries overthrew the Kingdom of Hawaii, Congress said it was sorry. The U.S. Supreme Court soon will decide whether that apology meant anything — from a legal standpoint, at least.

The Hawaii Supreme Court thought it did. Last year, that court cited the 1993 Apology Resolution to block the state from transferring any of the 1.2 million acres of land — some 29% of Hawaii’s total — received from the federal government upon statehood in 1959. Those lands once belonged to the Hawaiian crown or its subjects, and were confiscated by the Americans without compensation.

The resolution, which calls for “reconciliation between the United States and the Native Hawaiian people,” acknowledges that native Hawaiians never relinquished claims to the land. The court interpreted this to mean that Congress intended there to be an amicable settlement of the land claims, which would be impossible if the state disposed of the disputed land.

“Generally, when a joint resolution…has emerged from legislative deliberations and proceedings, it is treated as law,” Hawaii Chief Justice Ronald Moon wrote for a unanimous court.

Hawaii’s government appealed to the U.S. Supreme Court, which heard arguments last month. The state concedes that indigenous Hawaiians “have a clear moral basis” for asking the state’s government for compensation, but argues that they have no legal claim to the land.

The Justice Department and 32 states filed briefs backing that position. Upholding the Hawaii Supreme Court’s ruling could discourage Congress from making similar apologies for other historic wrongs, the Justice Department warned, adding that the Apology Resolution was only symbolic.

But Hawaii’s congressional delegation is at odds with the state government, and insists the resolution is supposed to have teeth. “Federal courts have interpreted [apologies] to shape national obligations under federal law,” the four lawmakers, all Democrats, said in a friend of the court brief.

In recent years, government apologies for official wrongs have proliferated. In 1988, Congress apologized to Japanese-Americans for their internment during World War II, and in 1990 approved an expression of “deep regret to the Sioux people” for the 1890 Wounded Knee Massacre. Seven states have apologized for forced sterilization of disabled, poor and minority residents in the early 20th century. Five states have apologized for slavery.

But the Hawaii case might be the first where an apology resolution received legal weight, says Eric Miller, a law professor at Saint Louis University who has worked on campaigns seeking redress for African-Americans. Governments on rare occasion have paid restitution, but only through separate legislation.

Prof. Miller worries that if the Hawaii opinion stands, future apologies might be rarer still. The “process doesn’t necessarily get off the ground if people are going to be punished for it,” he says.

Rep. Steve Cohen (D., Tenn.) says the Bush administration raised fears of legal liability over the slavery apology he introduced into Congress. He is considering adding language stating that the apology isn’t intended to affect the debate over possible slavery reparations, a step that might be “politically necessary to pass such a resolution,” he says.

While its legal impact is unclear, the 1993 Apology Resolution minces few words in describing the U.S. acquisition of Hawaii.

In 1893, American diplomat John Stevens participated in a “conspiracy to overthrow the Government of Hawaii,” it states. The coup d’état was “a violation of treaties between the two nations and of international law.”

The Americans eventually forced Queen Liliuokalani to abdicate and declared themselves rulers of a new Republic of Hawaii.

The indigenous population soon was swamped by settlers from the mainland. In recent decades, Hawaii has grown more sensitive to aboriginal concerns. In 1978, it created the Office of Hawaiian Affairs, an autonomous agency run by and for aboriginals’ descendants.

A year after the Apology Resolution, the agency filed suit over the claims, leading to the high-court case. “The Western concept of land ownership was very foreign to Hawaiians,” says Hawaiian Affairs Administrator Clyde Namuo. In traditional culture, “property is not a commodity that is bought and sold but it is used to benefit people who live and reside on the land.”

Write to Jess Bravin at jess.bravin@wsj.com and Louise Radnofsky at louise.radnofsky@dowjones.com

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