How to Say Sorry: Fulfilling the United States’ Trust Obligation to Native Hawaiians by Using the Canons of Construction to Interpret the Apology Resolution



The Marshall Trilogy—a series of U.S. Supreme Court cases that became the legal foundation of the unique, government-to-government relationship between Indian tribes and the U.S. federal government—established a special doctrine known as the “Indian Canons of Construction.” The Canons became a powerful tool in treaty and statutory construction, providing that (1) the courts must interpret laws liberally and construe ambiguities in favor of tribes and (2) congressional intent must be clear if tribal rights and sovereignty are to be impinged in any way. In tracing the evolution of the doctrine, this Article argues that the Canons do not necessitate the narrow classification of federally recognized tribes. Instead, the Canons are rooted in the recognition of a special, government-to-government trust relationship equally applicable to all Indigenous groups—including Native Hawaiians and other Pacific Islanders—and should, therefore, be reclassified as the “Indigenous Canons.” Had the Supreme Court utilized the more broadly construed “Indigenous Canons” when it interpreted the 1991 Apology Resolution, it would have rightly created a strong framework to better protect Native Hawaiian claims to self-determination.

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