S.Ct.: Hawaii case takes on "rights-creating verbs"

The Supreme Court unanimously held that a 1993 Congressional resolution apologizing for the 1893 overthrow of the Hawaiian monarchy did not limit that Hawaii’s authority to sell land subject to ongoing claims by native Hawaiians.

Citing the Court’s Section 1983 jurisprudence, the Court emphasized that the operative verbs used by the resolution (such as “recognizes” and “urges”) are “not the kind [of terms] that Congress uses to create substantive rights” against states.  Hawaii v. Office of Hawaiian Affairs, No. 07-1372 (Mar. 30, 2009).

 

                In 1893, Hawaii was invaded and annexed by the U.S. In 1959, it was admitted to the Union, and its lands ceded to the State of Hawaii. In 1993, Congress passed an Apology Resolution that recognized the illegality of that invasion and its harmful impact on the people of Hawaii. Pub. L. 103–150. Plaintiffs claimed, and the state’s high court held, that the Resolution gave rise to a fiduciary duty on the part of the state to preserve lands held in public trust pending resolution of unrelinquished land claims by native Hawaiians.  177 P.3d 884 (Haw. 2008). The U.S. Supreme Court held that this decision was based on federal law, and therefore subject to its review.

 

                Writing for the Court, Justice Alito began his analysis this way:

The resolution’s first substantive provision uses six verbs, all of which are conciliatory or precatory. Specifically, Congress “acknowledge[d] the historical significance” of the Hawaiian monarchy’s overthrow, “recognize[d] and commend[ed] efforts of reconciliation” withnative Hawaiians, “apologize[d] to [n]ative Hawaiians” for the monarchy’s overthrow, “expresse[d] [Congress’s] commitment to acknowledge the ramifications of the overthrow,” and “urge[d] the President of the United States to also acknowledge the ramifications of the overthrow . . . .” §1. Such terms are not the kind that Congress uses to create substantive rights—especially those that are enforceable against the cosovereign States. See, e.g., Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17–18 (1981).

(Emphasis added.) Pennhurst is a Section 1983 case, which held that a federal “bill of rights” for developmentally disabled persons was “intended to be hortatory, not mandatory.”

 

                Justice Alito gave other reasons for rejecting  the state court’s interpretation of the Apology Resolution, including that (1) it would work an implied repeal of the absolute grant of lands to the state in the 1959 Admission Act, (2) the Resolution’s 37 “whereas” clauses, like “whereas” clauses in legislation generally, have no substantive effect, and (3) the Resolution’s proviso that it should not be construed as a settlement of any claims against the U.S. cannot be taken to imply positive recognition of any claims against the state.

 

The Court’s focus on the particular verbs used by Congress here is similar to the demand for “rights-creating” language” in Gonzaga University v. Doe, 536 U.S. 273 (2002). Courts of appeals applying Gonzaga have sometimes focused more on the nouns in statutory provisions, and sometimes focused more on verbs and sentence structure.  Compare, e.g., Watson v. Weeks, 436 F.3d 1152 (9th Cir. 2006) (relying on “focal term” “individuals” to find enforceable rights under Medicaid provision), with Newark Parents Ass'n v. Newark Public Schools, 547 F.3d 199 (3d Cir. 2008) (finding use of “individuals” insufficient because No Child Left Behind provisions are structured so as to make state agencies the “the primary subject”) (summary). Lower courts could look to this decision in applying Gonzaga, and accordingly give more weight to verb choice and sentence structure and less weight to nouns like “individual” and “family.”