Doesn't the '93 Apology Resolution trump the Morgan Report?
Genesis of the Apology Bill
The Apology Bill of '93 was passed with only one hour of debate on the Senate floor with only five senators participating, three opposed (Slade Gorton, Hank Brown, John C. Danforth) and two in favor (Akaka and Inouye). It passed the house on November 15 with no debate at all. Senator Inouye, wrapping up the debate, said:
- "As to the matter of the status of Native Hawaiians, as my colleague from Washington knows, from the time of statehood we have been in this debate. Are Native Hawaiians Native Americans? This resolution has nothing to do with that."--Senator Inouye
The 1993 Apology Resolution, U.S. Public Law 103-150, was voted on with no debate over the merits of the wheras clauses, no presentation of any evidence, and cannot be considered as a decision against the Morgan Report - in fact, had the Morgan Report been easily available in 1993 to the Congress, the Apology Resolution surely would not have passed.
Furthermore, as described by Senator Inouye, the Apology Resolution was mere a "simple apology", and has a disclaimer at the end in Section 3:
- Section 3. Disclaimer. Nothing in this Joint Resolution is intended to serve as a settlement of any claims against the United States.
Inouye also made very clear the intent of the Apology Resolution, with several pointed statements decrying any use of it for the purposes of declaring independence, or asserting any support for a restoration of sovereignty:
- Mr. INOUYE. Mr. President, before proceeding with my remarks, I will respond to the statement of my distinguished colleague from Washington.
- To suggest that this resolution is the first step toward declaring independence for the State of Hawaii is a painful distortion of the intent of the authors. To suggest that this resolution is intended to expel non-Hawaiians from the State of Hawaii is something that even the most severe critics of this resolution in Hawaii would not even consider.
- Mr. INOUYE. Mr. President, may I once again say that the suggestion that this resolution was the first step toward declaring independence or seceding from the United States is at best a very painful distortion of our intent.
- The whereases were placed in the resolution for a very simple reason: So that those who are studying this resolution or those students of history in years to come can look back and say that is the way it was in Hawaii on January 17, 1893.
- To suggest that we are attempting to restore the Kingdom, Mr. President, I find it most difficult to find words to even respond to that.
The real consequences
As a token resolution, with no evidence presented, no debate on the merits, and an explicit disclaimer of its use in claims against the U.S., Public Law 103-150 cannot possibly be considered as an official finding of the Congress that trumps the Morgan Report. If anything, it merely illustrates how stealth legislation can be passed through Congress regardless of the merits or existing evidence to the contrary, and will certainly be interesting to "students of history" as an example of the relative ease of historical revisionism regarding the Hawaiian Revolution.
For a more thorough review of the historical inaccuracies of U.S. Public Law 103-150, please read Hawaii Divided Against Itself Cannot Stand, by Bruce Fein.
A note on "whereas"
The word "whereas" is defined as:
- whereas n.
- An introductory statement to a formal document; a preamble.
- A conditional statement.
In terms of the Apology Bill, this clearly indicates that the clauses in the whereas section are not findings of fact, but conditions upon which the apology is given.
Seeing as those conditions are provably false, one can only conclude that no apology was really given.
When Congress does engage of findings of fact, it is explicit. For example, the Partial Birth Abortion Ban Act of 2003 clearly indicated its findings of fact by labeling them as such, not by making them "whereas" clauses:
- SECTION 1. SHORT TITLE.
- This Act may be cited as the "Partial-Birth Abortion Ban Act of 2003"
- SEC. 2 FINDINGS
- The Congress finds and declares the following:
Certainly, by no stretch of the imagination, despite the assertions of Professor of International Law Francis A. Boyle in his 1993 biased interpretation of "the so-called whereas clauses", can the Apology Resolution whereas clauses be asserted to be findings of fact or law.
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 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.
In an response to the State of Hawai'i Appeal of the Arakaki Decision, the plaintiffs offered this information regarding the usage of the Apology Resolution whereas clauses:
- 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.