“An unrelinquished claim and vested interest…”: A Conversation with John David Waiheʻe III, Former Governor of Hawai‘i, on the U.S. Apology to the Hawaiian People

In light of the recent 30th anniversary of the U.S. Apology to the Hawaiian people, I sat down with former Hawai‘i Governor John Waiheʻe III to discuss its enduring legal implications. In 1993, the U.S. Congress issued the Apology as a joint-resolution, signed into law by President Bill Clinton, “to acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii” (Public Law 103-150, November 23, 1993).

As key context for the Apology Resolution, readers should note that the 100^th anniversary of the U.S.-backed overthrow was not the only mobilizing rationale for the legislation. Its origins are related to an earlier congressional development—the Hawaiian Native Claims Settlement Study Commission Act of 1979, which established a commission that would “conduct a study of the culture, needs, and concerns of the Native Hawaiians.” Congress passed the 1979 legislation in response to Hawaiian activism, with a group called ALOHA (Aboriginal Lands of Hawaiian Ancestry) taking the lead. Louisa Kanoeokalani Makaiwi Rice founded ALOHA in 1972 to mobilize an effort to get reparations from the U.S. government for the illegal overthrow of 1893. She was inspired by Queen Lili‘ūokalani’s autobiography, Hawaii’s Story by Hawaii’s Queen, which describes how the monarch endured the overthrow, and attempted to reclaim the throne.

But that was not all that influenced Rice: the prior year, in 1971, Congress had passed the Alaska Native Claims Settlement Act (ANCSA) to settle aboriginal land title claims with Alaska Natives. The legislation affirmed Alaska Native title to 44 million acres of “public land” for village and regional Native corporations, along with a nearly $1 billion cash settlement—but in exchange for the extinguishment of all aboriginal claims to the other 375 million acres of land and territorial waters claimed by the state. The legislation divided Alaska into twelve distinct regions and mandated the creation of twelve private, for-profit Alaska Native regional corporations and over 200 private, for-profit Alaska Native village corporations subject to state law. Although ANCSA has since been understood as a “mixed blessing”—especially given the forfeiture of Indigenous sovereignty and extensive land claims—the prospect of similar reparations in the Hawaiian context seemed to promise a way to address U.S. involvement in the illegal overthrow of the Kingdom.

In September 1973, under the leadership of its first president, Charles Kauluwehi Maxwell, ALOHA (which came to be ALOHA Association, Inc.) hired attorney Stewart L. Udall as an adviser to help with comparable legislation. Udall had played a role in passing ANCSA when he served as Secretary of the Interior under President Lyndon B. Johnson. Hoping to raise money to finance the legislative effort, the association organized a fundraising telethon, which was filmed in November 1973 in ‘Īolani Palace, the home of Hawaii’s last reigning monarch. By June 1974, ALOHA—with the sponsorship of Hawaii’s congressional delegation—got its bill introduced in both houses of Congress. The proposal was dubbed the Hawaiian Native Claims Settlement Act. However, the bill did not pass.

While the Hawaiian Native Claims Settlement Act did not pass, ALOHA and other Native Hawaiian groups were able to secure the Hawaiian Native Claims Settlement Study Commission Act of 1979. President Jimmy Carter supported the Commission, and Senator Daniel Inouye mobilized to have funds appropriated in order to conduct a study leading up to the report. But, in the end, it was President Ronald Reagan who appointed people to the Commission, and the study was allowed only six months. Kina‘u Boyd Kamali‘i, who had served as Reagan’s 1980 campaign chairperson in Hawai‘i, was appointed as Chair of the Commission, but only two other members were from the islands. Those three were outvoted by the six other commissioners, who in 1983 produced “Report on Culture, Needs and Concerns of Native Hawaiians,” based on information from U.S. Navy historians, that denied U.S. responsibility for the 1893 overthrow of the Hawaiian monarchy, and recommended against reparations. In response, Kamali‘i mounted a second report, “Claims of Conscience: A Dissenting Study of the Culture, Needs and Concerns of Native Hawaiians.” In the minority report, the three dissenting commissioners asserted that the United States was responsible for the 1893 illegal overthrow and asked for congressional hearings to find a just and equitable form of restitution.

That history is part of the little-known genealogy of the 1993 U.S. Apology to the Hawaiian people, which Waihe‘e discusses below. That legislation passed while Waihe‘e was in office, but more than that, it was an outcome he helped initiate. In this interview, he offers important backstory on the Resolution and a critical reassessment of the 2009 U.S. Supreme Court decision regarding the Apology, which ruled that it has no legal effect on Hawai‘i state law. Waihe‘e offers an alternate reading of that outcome and offers a suggestion for what is needed now to revive the Hawaiian people’s unrelinquished claim to their national lands—the Crown and Government Lands of the Kingdom.

J. Kēhaulani Kauanui: For those who are unfamiliar with the Hawaiian case in general and the Apology in particular, could you lay out a genealogy of the resolution from your vantage point as someone who was in political office at the time?

John David Waiheʻe III: The 1993 Apology Resolution traces back to a development a decade prior, with a federal document produced in 1983 by the Native Hawaiian Study Commission’s “Report on Culture, Needs and Concerns of Native Hawaiians.” That report denies U.S. responsibility for the 1893 overthrow. I was serving as lieutenant governor under Gov. George Ariyoshi at the time this all went down, and knew we would need to override the majority report once Reagan left office. In other words, it wasn’t like somebody was sitting around thinking, “Let’s do something nice for the Hawaiians” in the form of an apology. Rather, it was a direct attempt to undo what was done by [George H. W.] Bush and Reagan, as well as lay the foundation for us to establish the fact that there was a pre-existing nation. One of the concerns we had was whether or not programs earmarked for Native Hawaiians—related to education and health, for example—would continue to pass judicial muster in terms of equal protection, and this was one way of trying to do it, by establishing this history.

Kauanui: How did you mobilize that effort?

Waiheʻe: When Clinton ran for president in 1992, I was the chairman of the Democratic Governance Association. So, the strategy was to have something official in the record that would basically overcome that [1983] report. And so that’s why we were already starting to work on the apology resolution. So, we had briefed the congressional delegation that the State of Hawai‘i would be asking them to do this, and the representatives told me, “Well, get your friend Clinton to say he’s going to support it.” Because it was already clear Clinton would sweep Hawai‘i during the election, I told him, “You don’t need to come to Hawai‘i during the campaign, but come afterward.” And he did. Now this was in 1993, soon after he took office.

So, that July, we had this big event in Waikiki we dubbed the “The Speech on the Beach,” held right in front of the Hilton Hawaiian Village. Security was strict, but not like it is now (this is before 9/11). But before [Clinton] went up to the stage, we briefed them on a quick history of Hawai‘i. Norma Wong (who played an essential role in my policy and strategy team) was with me, and we outlined the pressing issues Native Hawaiians were facing. It was then that we pitched the idea of an apology resolution to Clinton and he agreed, saying “You get it to my desk, and I’ll sign it; my administration will support it.”

In the meantime, somehow, Mililani Trask and members of the sovereignty initiative she founded, Ka Lāhui Hawai‘i, figured out how to get in early. And when the President went out to make his speech, they were right in front of the stage with their signs chanting “Justice for Hawaiians!” Classic Clinton, who liked to interact with the crowd, responded by saying something along the lines of “I hope to do well by you, I’ll do my best.” And a few months later he signed the resolution, because immediately after that, the delegates pushed it. Senator [Daniel Kahikina] Akaka introduced it, with Senator Inouye’s backing, along with the rest of the Hawai‘i delegation, and so we got it.

Kauanui: I remember when the Apology Resolution was issued and how crucial it was for the historical record. The stand out was and remains the “whereas” clause that states: “[T]he indigenous Hawaiian people never directly relinquished their claims to their inherent sovereignty as a people or over their national lands to the United States, either through their monarchy or through a plebiscite or referendum.”

However, as you know, in the case Hawaii v. Office of Hawaiian Affairs (556 U.S. 163 (2009)), the U.S. Supreme Court justices unanimously held that the Apology did not restrict the state’s authority to transfer any of the “public lands”—the Hawaiian Kingdom’s Crown and Government Lands erroneously referred to [in the decision]as “ceded lands,” even though they are stolen lands—for private development. The high court reasoned that the language of the resolution did not have any “legal bite” that to create new substantive rights that could limit the actions of the 50th state government’s authority to sell those lands, even though the federal government admitted that the Hawaiian people never relinquished their claims.

Waiheʻe: Right, however, there is much more to the story if we look at the Hawai‘i Supreme Court’s earlier ruling in that same case. I’ll come back to that, but first I want to share a little-known background to that legal case, which actually started with me, when I was in office.

I wanted to build houses, affordable houses. One project was on the island of Maui—we were looking at the entire area behind Lahaina all the way up to Lahainaluna. The lawsuit started because the area we were looking to develop on Maui was considered “public lands,” and my vision was to include lands that could be sold to the individual homeowners. I reasoned that the authority for selling these lands to Hawaiians was enshrined in the Hawaii State Admissions Act, which states in Section 5(f) that there are five purposes for which all “public lands” can be used. One is for the “betterment of…native Hawaiians,” but another is the development of home ownership for people in general, so I considered that the basis for being able to sell the land.

However, right after I left office, attorney William Meheula filed a lawsuit in 1994 (on behalf of the state Office of Hawaiian Affairs and four individual Native Hawaiian plaintiffs) claiming the state should not sell the lands without doing an inventory of all the “public lands.” Incoming governor Linda Lingle inherited the lawsuit, and for a while, we were on the same side of the issue—until it made its way to the State Supreme Court.

Kauanui: So, how did it go from a question of inventory to a question of title regarding these lands in the legal case? And at what stage did the Apology become central to the case?

Waiheʻe: Meheula first challenged the question of land sales with a straightforward claim that these are potentially Native Hawaiian lands, and therefore should not be used [for]anything else except after some kind of inventory to clarify designation. That was his position, and he lost at the district court, and later at the Intermediate Court of Appeals. However, when the case was heard before the Hawai‘i State Supreme Court, the ruling was in favor of Meheula—against the state. But Chief Justice Ronald Moon (whom I appointed and who wrote the opinion) added another rationale: that the language of the Apology Resolution clearly states that Native Hawaiians have not relinquished any claim to those lands, our national lands, and have vested rights in them. That’s a property right. Therefore, no sales are allowed without clearing up the question of land title. So, that was a major shift from a question of policy; we were no longer talking about whether we could build homes for the general public, as well as for Native Hawaiians, but whether Native Hawaiians are entitled to something we had been fighting for but had yet to even articulate in a legal setting, let alone reclaim.

Kauanui: How did you think about this at the time given that you wanted to sell the lands when you were in office?

Waiheʻe: I wanted to originally, but that was when it was a policy question about housing. Here the court was using the Apology in a way we had always hoped. Lingle, on the other hand, was not interested in affirming the vested interest Native Hawaiians (and neither was her Attorney General, Mark J. Bennett). They took the position that this was a dispute about legitimate powers of the executive branch—asserting the power to sell—and appealed the case to the U.S. Supreme Court.

Kauanui: I have published an article on that case and also heard part of the oral arguments presented before the U.S. Supreme Court. And while I did not expect the high court to uphold the Apology to rule that the state could not sell the lands (because that would open up the question [of]title for 1.8 million acres of land in Hawai‘i), I was interested to see what the basis of the ruling would be. Given that the Apology was a joint-resolution of Congress, I figured the court would not dismiss it on grounds that it is “merely” a resolution, since the U.S. government purportedly annexed the Hawaiian islands through a joint-resolution (and I knew the court was not about to “undo” that). I was floored when I read the ruling, that the six verbs in the preambulatory (“whereas”) clauses were not active enough to have “legal bite,” and thus do not prohibit the state from selling our lands.

So, what now, thirty years after the Apology, in light of that ruling?

Waiheʻe: Although the U.S. Supreme Court ruled that the Apology does not itself bind the state, the Hawai‘i Supreme Court said that it does. It is also noteworthy that [Justice] Moon used more than just the Apology for his rationale—he also used past historical and legal precedents, much of which are restated in the “whereas” clauses of the Apology Resolution. So, while the ultimate effect of the “action clause” of the Apology from the Federal perspective did not “over-rule” local executive action, the Hawai‘i Supreme Court could rule (and I believe they did rule) that the same “justifications” that were used for the Apology are binding on the State because of Hawai‘i legal precedents. Moreover, the year following the U.S. Supreme Court ruling, in 2010, the state of Hawai‘i quoted the Apology Resolution and the fact that Native Hawaiians have an unrelinquished claim to their national lands, when the [Hawai‘i state] legislature passed Act 195 (recognizing Native Hawaiians as the indigenous people of Hawai‘i)—so, that language is now part of state policy. And perhaps more importantly, even though the U.S. Supreme Court ruling allows the state to sell these lands, the state still has not. The Apology Resolution is still arguably good law. It just needs to be tested with a new legal case—one that affirms that Native Hawaiians still have a vested interest, a property right, in these lands.

Kauanui: In closing, I want to ask how you would respond to those who would understandably point out that the 50th state is a fraudulent entity. Given the illegality of the U.S. hold on Hawai‘i—how to undertake this important legal work and arena to protect our Kingdom Crown and Government Lands without reifying, legitimizing, or normalizing the authority of the state government?

Waihe‘e: Who is the “real” enemy: the puppet or the puppeteer? Local action can be influenced by law (e.g. the Hawai‘i Supreme Court’s decision is still good law) and by protest (e.g. the land protectors standing at Mauna Kea). The real question is whether we are really free as long as anything we do locally (at the state level) can be undone nationally (at the federal level). We have the means, if we choose to use it, to influence local actions up to a point. We would still be an independent nation except for the U.S. military. I think we tend to focus on the obvious culprit—usually the one closest to us—instead of realizing that all who love Hawai‘i are ultimately only being allowed to operate in the same narrow tunnel. And as a result, we’ve been duped into being divided. As my father used to tell me, we can beat anyone locally and we always lose when outsiders intervene. I have always believed that the real enemy is the creator not the creature.

John Waihe‘e III became the first Native Hawaiian Governor and served two terms from 1986 to 1994. Waihe‘e’s administration created the A-plus after-school-care program, restored more than 16,000 acres of public lands to the Hawaiian Home Lands Trust, and created a committee to help define sovereignty. In 1993, he created the Hawaiian Sovereignty Advisory Commission. In 2011, Governor Neil Abercrombie appointed Waihe‘e At-Large Commissioner for the Native Hawaiian Roll Commission. Waihe‘e rose to prominence during a pivotal era at the beginning of the Hawaiian Renaissance and went on to play a major role in the state Constitutional Convention in 1978, through which he was instrumental in the establishment of the state Office of Hawaiian Affairs. He earned his undergraduate degree at Andrews University in Michigan and was a member of the first graduating class of the William S. Richardson School of Law at the University of Hawai‘i.

J. Kēhaulani Kauanui, Ph.D. is a writer, scholar-activist, and radio producer. She is professor of American studies and affiliate faculty in anthropology at Wesleyan University. Her books include: Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity; Paradoxes of Hawaiian Sovereignty: Land, Sex, and the Colonial Politics of State Nationalism; and Speaking of Indigenous Politics: Conversations with Activists, Scholars, and Tribal Leaders. She is one of the six co-founders of the Native American and Indigenous Studies Association, established in 2008. Kauanui is the recipient of the Western History Association’s 2022 American Indian History Lifetime Achievement Award, given to one individual every year who has served on multiple fronts to advance Indigenous history.