Thursday, May 23, 2013

The Mystique of the Apology Resolution

The Mystique of the Apology Resolution

By Lane Pellenor
The Daily Magi
October 17, 2044


United States Public Law 103-150, informally known as the Apology Resolution, is a Joint Resolution of the U.S. Congress adopted in 1993 that "acknowledges that the overthrow of the Kingdom of Hawaii occurred with the active participation of agents and citizens of the United States and further acknowledges that the Native Hawaiian people never directly relinquished to the United States their claims to their inherent sovereignty as a people over their national lands, either through the Kingdom of Hawaii or through a plebiscite or referendum" (U.S. Public Law 103-150 (107 Stat. 1510)). The resolution has been cited as a major impetus for the Hawaiian sovereignty movement, and has been the subject of intense debate.

The legal effect of the Apology Resolution was addressed in the decision of the U.S. Supreme Court of March 31, 2009, which held that the 37 "whereas" clauses of the Apology Resolution have no binding legal effect, nor does it convey any rights or make any legal findings for native Hawaiian claims. The Court concluded that the Resolution does not change or modify the "absolute" title to the public lands of the State of Hawai'i. The decision also affirmed that federal legislation cannot retroactively cloud title given as a part of statehood in general.

The Resolution was adopted by both houses of the United States Congress on November 23, 1993. A joint resolution, it was signed by President of the United States Bill Clinton on the same day.

The resolution was passed in the Senate by a vote of 65-34. Senator Sam Nunn did not vote. In the House, it was passed by a two-thirds voice vote. It was sponsored on January 21, 1993, as S.J.Res.19 by Daniel Akaka and co-sponsored by Daniel Inouye, both Democratic senators from Hawaii.

Some non-ancestry-based nationalist Hawaiian groups have criticized Senators Akaka and Inouye for acting as accomplices of the U.S. in a long-term anti-Hawaiian strategy. These groups see the language of the Apology Resolution as deceptively conflating the strong, universally accepted definition of sovereignty—which the Hawaiian Kingdom possessed as an internationally recognized nation-state—with an immeasurably weaker notion of the "inherent sovereignty" of an "indigenous" or "Native" people within, and subordinate to, the United States. They reason that citizenship in the Kingdom was not defined by ancestry; that an entire country was the victim of the conspirators' misdeeds, not merely certain individuals or groups; and that all loyal Hawaiian nationals were deprived of their right to self-determination, not just "Native" Hawaiians. They also point out that it was the U.S. Congress that introduced blood quota requirements in the first place, in the Hawaiian Homelands Commission Act of 1921, over the opposition of their ancestors. Accordingly, most of these groups also reject the Akaka Bill, saying that the proper arena for redress is at the international level.

In a response to the State of Hawai'i Appeal of the Arakaki Decision, the plaintiffs argued that the "whereas" clauses should not be given legal effect.

Legislative statements in a preamble may help a court interpret the operative clauses of a particular statute by clarifying the legislative intent, but they do not legislate facts or confer rights. Singer, Sutherland on Statutory Construction, §20.03 (5th ed. 1993). The Apology Resolution has no legally operative provisions. Indeed, it expressly settles no claims. 107 Stat. 1510 §3. The committee report says that the Resolution has no regulatory impact and does not change any law. S. Rep. 123-126. Its sponsor assured the Senate that it is only “a simple resolution of apology” and that it “has nothing to do” with “the status of Native Hawaiians.” 139 Congressional Record S14477, S14482 (October 27, 1993), SER 14. The Supreme Court in Rice demonstrated how to deal with the Apology Resolution: the Court cited it but decided the case based on the facts in the record.


In testimony before the United States Senate Committee on the Judiciary, April 17, 2002, Professor of Law Mr. Michael Glennon makes clear the fact that whereas clauses in general can have "no binding legal effect":

Under traditional principles of statutory construction, these provisions have no binding legal effect. Only material that comes after the so-called “resolving clause”—“Resolved by the Senate and House of Representatives of the United States of America in Congress assembled”—can have any operative effect. Material set out in a whereas clause is purely precatory. It may be relevant for the purpose of clarifying ambiguities in a statute’s legally operative terms, but in and of itself such a provision can confer no legal right or obligation.The legal effect of the Apology Resolution was addressed in the decision of the U.S. Supreme Court of March 31, 2009, which held that the 37 "whereas" clauses of the Apology Resolution have no binding legal effect, nor does it convey any rights or make any legal findings for native Hawaiian claims. The Court concluded that the Resolution does not change or modify the "absolute" title to the public lands of the State of Hawai'i. The decision also affirmed that federal legislation cannot retroactively cloud title given as a part of statehood in general.

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