Legal News

When Sorry Isn?t Good Enough

By Ashby Jones

What’s an apology worth?

It’s a question the WSJ’s Jess Bravin and Louise Radnofsky asked a few weeks back in a piece about a case pending in front of the U.S. Supreme Court. At issue: whether a congressional apology for an 1893 American-instigated coup in Hawaii conferred property rights on modern-day descendents of native Hawaiians.

The answer, it turns out, is no — delivered today in a resounding 9-0 opinion, penned by Justice Alito. Click here for the WSJ article; here for the opinion.

The opinion overturned a decision by the Hawaii Supreme Court. Last year, the Hawaii court found that the 1993 apology resolution recognized a legally enforceable claim by native Hawaiians on lands taken from the former kingdom. The apology acknowledged a conspiracy by American financiers, sugar planters and missionaries to overthrow the indigenous monarchy.

The Hawaii court had blocked the state government from transferring some 1.2 million acres — 29% of the state’s area — until the dispute was resolved through a “reconciliation” process with the aboriginal people.

The U.S. Supreme Court found that the state justices had committed an error by reading the preamble of the congressional resolution as legally binding. Justice Alito wrote that the resolution had only two “substantive provisions,” and neither one stripped the state government of the property rights in public land it received from the federal government upon statehood in 1959.

Justice Alito said one of the two provisions — an apology to native Hawaiians for depriving them of their rights to self-determination — was “conciliatory” and didn’t represent an effort by Congress to create substantive rights. The second substantive provision stated that the resolution had no effect on claims against the federal government. The Hawaii court inferred that the resolution did recognize claims against the state government. Wrong again, Justice Alito wrote. A disclaimer of claims against one government couldn’t be implicitly read as “an affirmative recognition of claims against another,” he wrote.

Full post as published by Law Blog - WSJ.com on March 31, 2009 (boomark / email).