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Excerpted From: Ian Falefuafua Tapu, How to Say Sorry: Fulfilling the United States' Trust Obligation to Native Hawaiians by Using the Canons of Construction to Interpret the Apology Resolution, 44 New York University Review of Law and Social Change 445 (2020) (270 Footnotes) (Full Document)

IanFalefuafuaTapuAs a child, one of the first lessons you learn--whether in the home, on the playground, or at school--is how to say “sorry.” According to one dictionary definition, an apology is “an admission of error or discourtesy accompanied by an expression of regret.” As we age, and as our life experiences expand, so too does our understanding of the concept of an apology. In whatever permutation “sorry” may take, it is a fixture of the human experience. If love is considered to be the architect that helps to build healthy connections in a complex social system, then apologies are the doctors that heal damaged, fragile, and broken relationships.

Traditionally, apologies have been utilized in all cultures and societies as a means to facilitate dispute resolution and reconstruction, affirm human relationships, and diffuse conflict. Saying “sorry” at recess for cutting someone in line at the swings, apologizing for an accident that occurred while in surgery, and issuing a presidential declaration apologizing to a population for their abhorrent mistreatment illustrate varying forms of the same act. In a legal setting, statistics have shown that apologies can facilitate settlement and dissuade victims from bringing a lawsuit, especially in the field of medical malpractice, which in turn saves money and time for both parties. A nation's apology represents a formal attempt to acknowledge and redress “a severe and long-standing harm against an innocent group.”

Yet not all apologies have the same meaning and import. Leading attorneys and legal scholars have framed apologies under a legal lens as “not synonymous with an admission of guilt or fault,” and, in fact, have advised parties to exploit the ambiguities of apologetic language to their advantage.

“[C]orporate executives and directors of institutions have resisted apologizing for fear of personal exposure to liability, but also because they risk breaching fiduciary duties to their constituencies.” And, as this Article makes clear, the complexities and intricacies inherent to the act of apologizing are especially pronounced in a nation's apology to a large class of people, such as its Indigenous population.

In the United States, while colonization has impacted all Indigenous peoples, the federal government has established a hierarchy that legally situates groups differently. The principles of Federal Indian Law guide and inform the rights of those Native peoples who are able to meet the narrow requirements of federal recognition. As one example, the Supreme Court concluded in Morton v. Mancari that federally recognized tribes have a “unique legal status” and that the Bureau of Indian Affairs' employment preference for Indians constitutes a political preference rather than one that is “racial in nature.” Unlike Native Americans, however, the Indigenous peoples who inhabit the unincorporated territories of the United States exist within the legal fiction created by the Insular Cases, which dictates Congress' plenary role in choosing how the Constitution is to apply to the territories. Native Hawaiians, however, fall under a legal gray area: on the one hand, they are not federally recognized and, on the other, Hawai'i is not a territory of the United States.

In 1993, the United States federal government passed the Apology Resolution “to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawai'i” and to express a commitment “to provid[ing] a proper foundation for reconciliation between the United States and the Native Hawaiian people.” The Joint Resolution garnered sweeping bipartisan support in both Houses, passing the Senate by a roll call vote of 65 to 34. While the historic moment marked “the first step in the healing process,” the Apology Resolution became a hollow expression of reconciliation that failed to materialize into institutional changes--like the rights to self-determination and self-governance--for Native Hawaiians.

Using the Apology Resolution as a case study, this Article will analyze how government-issued apologies to Indigenous peoples that are not treated as legitimate in judicial interpretation amount to nothing short of empty rhetoric that undermine concrete and substantive reconciliation efforts. Currently, the Federal Indian Law principles of the Canons of Construction (“the Canons”) have been narrowly utilized by the U.S. Supreme Court to interpret legislation and treaties involving only federally recognized Indian tribes. This Article contends that the Canons should be expanded in scope to include legislation and treaties on behalf of those Indigenous peoples who are not and cannot be classified as “Native American.” The Supreme Court's use of the Canons in interpreting the Apology Resolution would neither dilute nor alter established precedent under Federal Indian Law, but would in fact more directly align our country's jurisprudence with the goals of restorative and reparative justice for formerly colonized Indigenous peoples. And more importantly, it would lead to the kinds of reconciliation efforts sought by Native Hawaiians and the Hawai'i Supreme Court, based on the legislative language and intent of the Apology Resolution.

Part II of this Article sheds light on the complex and “schizophrenic” nature of Federal Indian Law and, more specifically, analyzes the historical evolution of the Canons of Construction. While the Canons have been utilized by the Court as a tool to preserve tribal sovereignty, their applicability and scope may be limited when competing canons are at play. Moreover, this Part will illustrate that the judicial interpretation mechanism is not based on Indian status or the special designation of federal recognition, but instead on the federal government's historical trust relationship with its Indigenous population, which includes Native Hawaiians and the Indigenous peoples of the Pacific.

Part III will explore and critique the conflict between two schools of jurisprudential thinking--legal formalism and legal realism. In particular, this Part will explore the limitations of traditional legal theories in capturing the full gravamen of the continuing and systemic impacts of colonization on Indigenous peoples. It argues that courts can and should better align their decision-making values with the international human rights principle of self-determination by leveraging the “contextual legal analysis” developed by University of Hawai'i law professor Kapua'ala Sproat.

Part IV will specifically elucidate the historical and special trust relationship between the United States and Native Hawaiians and make the case that this relationship demands that the Court apply the same Canons for Native Hawaiians as it does for Indians.

Finally, Part V of this Article describes the historical underpinnings of the Apology Resolution and illustrates its potential to cement true reconciliation efforts for Native Hawaiians if viewed through the lens of the Canons. This Article posits that the Canons of Construction directly comport with a restorative justice framework that embodies self-determination for Indigenous peoples, including Native Hawaiians.

[. . .]

There is a “degree of consensus on the modern Supreme Court supporting the overall force and applicability” of the Indian Canons of Construction in our present judicial system. These Canons recognize that Native peoples today are the product of colonialism and that self-determination is at the root of any Indigenous movement. The scope of the Canons can and should be expanded to include those Indigenous populations that may not have the ability, resources, or political capital to gain federal recognition. Expansion of the Canons to include all Indigenous peoples has the potential to catalyze lasting protections for Native Hawaiian claims.

The Indigenous Canons comport and align with the contextual legal analysis framework by supporting Native Peoples' path toward self-determination. Through the Canons' tenets--a liberal interpretation with ambiguities resolved in favor of Indigenous groups--Native peoples will be able to achieve any one of the four realms or values articulated by Professor Sproat: cultural integrity, lands and natural resources, social welfare and development, and self-government. The re-envisioned Indigenous Canons would--alongside contextual legal analysis--yield lasting results for Native Hawaiian and other Indigenous peoples, especially those from the United States territories.

J.D., University of Hawai'i William S. Richardson School of Law, 2020; A.B., Dartmouth College, 2008.

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