Ka Wai Ola - Office of Hawaiian Affairs, Volume 15, Number 8, 1 August 1998 — THE APOLOGY BILL "WHAT IS IT GOOD FOR?" [ARTICLE+ILLUSTRATION]

THE APOLOGY BILL "WHAT IS IT GOOD FOR?"

' ' ■ ■ ■ 1 7% , - ^ by Alan Murakami Litigation Director, Native Hawaiian Legal Corporation

This monlh as the state ohserves the 100th >ear annivetsar)' of tix : > ,<ing of the Ameiiean Flag at lolani Palaee — signaling the annexation of Hawai'i, — the Hawaii Advisory Committee to the U.S. Commission on Civil Rights will hold a hearing on the fatleral govemment's apology to the Hawaiian people. In 1898, the U.S. Congress passed the Newlands Resolution, whieh many have presumed to be the legal basis for annexing Hawaii to the United States. In 1993, President Bill Clinton signed Public Law 103-150 or commonly known as the .Apology Bill, whieh expresses a formal U.S. apology for the improper role thLs nalion took in assisting witli tlie 1893 overthrow of the Hawaiian Kingdom. The Apology Bill acknowledges and apologizes for the illegal overthrow of the Kingdom of Hawaii in 1893- lt recognizes that one of the results of the overthrow was the "suppression of the inherent sovereignty of the Native Hawaiian people." The bill then calls for the United States and its President to work toward and support reconciliation efforts with the Native Haw:iiian people. The Hawaii Advisory Committee will use this opportunity on August 22nd to explore how the U.S. has implemented this polia' and to gather facts on the status of tlie civil rights of native Hawaiians. "lt has been five years since the Apology Bill was signed into law. lt is still not clear however what has been done to provide a proper foundation foi; and to support reconciliation efforts, if any, between the United States and Native Hawaiian people. In fact it is not even clear what the intent behind the language "reconciliation efforts really is," the Hawaii Advisory Committee explained in a recent proposal. Since tlie Apology Bill was signed by President Bill Clinton on Nov. 23, 1993, there have been position papers, resolutions, legal briefs and news articles that cite or use the Apology Bill to different ends: • As a legal (kfense, to challenge traffic tickets and citations such as driving without a license. • As a legal defense for those seeking protection from the current judicial system such as Jack Gonzales, former head of the state Campaign Spending Commission, who was eventually convicted in Washington State of fraud and moneylaundering.

• ,As the basis for a lawsuit filed by Perfect Title co-founder, Keanu Sai against President Clinton. • As one of the reasons why fonner Circuit Judge Daniel Heely denied the state's request to sell ceded lands in a housing development in Lahaina and the Big lsland. • As the official version of historical events leading up to the overthrow of the Hawaiian monarchy and showing what role the United States played in supporting the overthrow. The hearing's timing is not lost on sovereignty supporters who consider the Apolog\' Bill a basis for declaring that Hawai'i's current form of government is illegal and consequently, invalid. Many others, however, remain puzzled or conhised about tlie Apology Bill and have questioned the net effect of the measure. Critics of the Apology Bill such as Tliurston Tvigg-Smith and U.S. District Judge Samuel P King sav that Congress executed a grave error when it adopted the joint resolution that led to the Apology Bill. "Tliis was essentially a cynical action by an uninterested Congress, equivalent to apologizing to George 111 for the Ameiiean Revolution. The mischief caused by thls ill-consid-ered resolution ... will plague us for many more years," King said in an April 12, 1998 Honolulu Advertiser article. An explicit disclaimer in the bill pointedly declares tliat the bill is not intended "to serve as a settlement of any claims against the United States." Federal Judge David Ezra concludes in a footnote in a recent opinion (Rice v. Gayetano): "While the United States expressed its deep regret to tlie Native Hawaiian people for tlie federal government's participation in the overthrow of the Kingdom of Hawaii, and pledged to support reconciliation efforts, that bill did not create any substantive rights.... The Apology Bill does not establish a 'policy' of reconciliation; it simply pledges U.S. support for such efforts." But University of Hawaii law professor, Jon Van Dyke, appears to disagree, observing that in the Apology Bill, "the U.S. Congress and the president committed themselves topursue a 'reconciliation' between the United States and the Native Hawaiian people." April 12, 1998 Honolulu Advertiser. Given the tug of war on the Apology Bill's purpose, the Hawaii Advisory Committee wiil attempt to focus on tlie status

of the civil rights of Hawaiians, how the bill has affected those rights and what steps tlie federal and state governments have taken to address the policy of reconciliation. The role of the Hawaii Advisory Committee, as with ail other state advisor\' committees, is to promote education on the civil rights of people in their respective states. The committee was established pursuant to enabling legislation whieh seeks to advise the U.S. Commission on Civil RighLs on matters pertaining to discrimination or denials of equal protection of the laws because of race, color, religion, sex, nahonal origin, age, disability, or the administration of justice, and to aid tlie Commission in its statutory obligation to serve as a national clearinghouse for information on those subjecLs. Professor Van Dyke notes that other native people in America have successfully achieved various levels of self-deter-mination. He believes that "the continuing struggle of the native Hawaiian people to attain these same goals presents the fundamental human and civil rights challenge facing our community today." Charles Maxwell, the HAC chair, is enthusiastic about tlie upcoming hearing, stating: "As we approach tlie new millennium, the Hawaii Advisory Committee is anxious to study and examine new ways to preserve and protect the civil righLs of all minorities and Native Hawaiian peopie," The committee will be inviting a broad scope of inquiry from academicians, attomeys, advocates for Hawaiian self-determi-nation and redress, govemment officials, and the general publie. Acxordingly, the committee will tnvite input from those knowledgeable about developmenLs since the passage of the Apology Bili, including representatives from federal and state agencies charged with responsibilities to Native Hawaiians. That inquiry will include progress reports on actions taken on recommendations the HAC made in 1991 to federal and

state officials in its landmark report, "A Broken Trust: The Hawaiian Homelands Program: Seventy Years of Fatlure of the Federal and State Govemments to Protect the Civil Rights ofNativeHawaiians." N0TE: The author is a member of the Hawaii Advisory Committee.