Apology Resolution - Practical Legal Effect

Practical Legal Effect

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.