556 U.S. 163 (2009), 07-1372, Hawaii v. Office of Hawaiian Affairs

Docket Nº:07-1372
Citation:556 U.S. 163, 129 S.Ct. 1436, 173 L.Ed.2d 333, 77 U.S.L.W. 4236
Party Name:HAWAII, et al., Petitioners, v. OFFICE OF HAWAIIAN AFFAIRS, et al.
Case Date:March 31, 2009
Court:United States Supreme Court

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556 U.S. 163 (2009)

129 S.Ct. 1436, 173 L.Ed.2d 333, 77 U.S.L.W. 4236

HAWAII, et al., Petitioners,



No. 07-1372

United States Supreme Court

March 31, 2009

Argued February 25, 2009


[129 S.Ct. 1437] Syllabus[*]

After the overthrow of the Hawaiian monarchy in 1893, Congress annexed the Territory of Hawaii pursuant to the Newlands Resolution, under which Hawaii ceded to the United States the "absolute fee" and ownership of all public, government, and crown lands. In 1959, the Admission Act made Hawaii a State, granting it "all the public lands . . . held by the United States," §5(b), and requiring these lands, [129 S.Ct. 1438] "together with the proceeds from [their] sale . . ., [to] be held by [the] State as a public trust," §5(f). Hawaii state law also authorizes the State to use or sell the ceded lands, provided the proceeds are held in trust for Hawaiian citizens. In 1993, Congress' joint Apology Resolution "apologize[d]" for this country's role in overthrowing the Hawaiian monarchy, §1, and declared that nothing in the resolution was "intended to serve as a settlement of any claims against the United States," §3.

The "Leiali'i parcel," a Maui tract of former crown land, was ceded to the United States at annexation and has been held by the State since 1959 as part of the Admission Act §5(f) trust. Hawaii's affordable housing agency (HFDC) received approval to remove the parcel from the trust and redevelop it upon compensating respondent Office of Hawaiian Affairs (OHA), which manages funds from the use or sale of ceded lands for the benefit of native Hawaiians. After HFDC refused OHA's demand that the payment include a disclaimer preserving any native Hawaiian claims to lands transferred from the trust for redevelopment, respondents sued to enjoin the sale or transfer of the Leiali'i parcel and any other of the ceded lands until final determination of native Hawaiians' claims. The state trial court entered judgment against respondents, but the Hawaiian Supreme Court vacated that ruling. Relying on the Apology Resolution, the court granted the injunction that respondents requested, rejecting petitioners' argument that the Admission Act and state law give the State explicit power to sell ceded lands.


1. This Court has jurisdiction. Respondents argue to no avail that the case does not raise a federal question because the State Supreme Court merely held that the sale of ceded lands would constitute a breach of the State's fiduciary duty to Native Hawaiians under state law. The

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Court has jurisdiction whenever "a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law." Michigan v. Long, 463 U.S. 1032, 1040, 103 S.Ct. 3469, 77 L.Ed.2d 1201. Far from providing a plain statement that its decision rested on state law, the state court plainly held that the decision was dictated by federal law, particularly the Apology Resolution. Pp. 1442 -1443.

  1. The Apology Resolution did not strip Hawaii of its sovereign authority to alienate the lands the United States held in absolute fee and granted to the State upon its admission to the Union. Pp.1443 -1445.

(a) Neither of the resolution's substantive provisions justifies the judgment below. The first such provision's six verbs—i.e., Congress "acknowledge[d] the historical significance" of the monarchy's overthrow, "recognize[d] and commend[ed] efforts of reconciliation" with native Hawaiians, "apologize[d] to [them]" for the overthrow, "expresse[d] [the] commitment to acknowledge [the overthrow's] ramifications," and "urge[d] the President . . . to also acknowledge [those] ramifications," §1—are all conciliatory or precatory. This is not the kind of language Congress uses to create substantive rights, especially rights enforceable against the cosovereign States. See, e.g., Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17-18, 101 S.Ct. 1531, 67 L.Ed.2d 694. The resolution's second substantive provision, the § 3 disclaimer, by its terms speaks only to those who may or may not have "claims against the United States." The State Supreme Court, however, read § 3 as a congressional recognition—and preservation—of claims against Hawaii. There is no justification for turning an [129 S.Ct. 1439] express disclaimer of claims against one sovereign into an affirmative recognition of claims against another. Pp. 1443-1444.

(b) The State Supreme Court's conclusion that the 37 "whereas" clauses prefacing the Apology Resolution clearly recognize native Hawaiians' "unrelinquished" claims over the ceded lands is wrong for at least three reasons. First, such "whereas" clauses cannot bear the weight that the lower court placed on them. See, e.g., District of Columbia v. Heller, 554 U.S. ___, ___, n. 3, 128 S.Ct. 2783, 171 L.Ed.2d 637. Second, even if the clauses had some legal effect, they did not restructure Hawaii's rights and obligations, as the lower court found. "[R]epeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest." National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, ___, 127 S.Ct. 2518, 168 L.Ed.2d 467. The Apology Resolution reveals no such intention, much less a clear and manifest one. Third, because the resolution would raise grave constitutional concerns if it purported to "cloud" Hawaii's title to its sovereign lands more than three decades after the State's admission to the Union, see, e.g., Idaho v. United States, 533 U.S. 262, 280, n.9, 121 S.Ct. 2135, 150 L.Ed.2d 326, the Court refuses to read the

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nonsubstantive "whereas" clauses to create such a "cloud" retroactively, see, e.g., Clark v. Martinez, 543 U.S. 371, 381-382, 125 S.Ct. 716, 160 L.Ed.2d 734. Pp. 1443 -1445.

117 Hawai'i 174, 177 P.3d 884, reversed and remanded.


Mark J. Bennett, Attorney General, Honolulu, HI, for petitioners.

William M. Jay, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Kannon K. Shanmugam, Washington, DC, for respondents.

William Meheula, Winer Meheula & Devens LLP, Honolulu, HI, Hayden Aluli, Honolulu, HI, Kannon K. Shanmugam, Counsel of Record, Anna-Rose Mathieson, Kimberly D. Perrotta, Sarah F. Teich, Williams & Connolly LLP, Washington, DC, Sherry P. Broder, Jon M. Van Dyke, Honolulu, HI, Melody K. MacKenzie, Kailua, HI, for respondents.

Mark J. Bennett, Attorney General, Lisa M. Ginoza, Dorothy Sellers, William J. Wynhoff, State of Hawaii, Honolulu, HI, Seth P. Waxman, Counsel of Record, Jonathan E. Nuechterlein, Jonathan G. Cedarbaum, Judith E. Coleman, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C., for petitioners.


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Alito, J.

This case presents the question whether Congress stripped the State of Hawaii of its authority to alienate its sovereign territory by passing a joint resolution to apologize for the role that the United States played in overthrowing the Hawaiian monarchy in the late 19th century. Relying on Congress' joint resolution, the Supreme Court of Hawaii permanently enjoined the State from alienating certain of its lands, pending resolution of native Hawaiians' land claims that the court described as "unrelinquished." We reverse.



In 1893, "[a] so-called Committee of Safety, a group of professionals and businessmen, [129 S.Ct. 1440] with the active assistance of

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John Stevens, the United States Minister to Hawaii, acting with the United States Armed Forces, replaced the [Hawaiian] monarchy with a provisional government." Rice v. Cayetano, 528 U.S. 495, 504-505, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). "That government sought annexation by the United States," id., at 505, 120 S.Ct. 1044, which the United States granted, see Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States, No. 55, 30 Stat. 750 (hereinafter Newlands Resolution). Pursuant to the Newlands Resolution, the Republic of Hawaii "cede[d] absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind" and further "cede[d] and transfer[red] to the United States the absolute fee and ownership of all public, Government, or Crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the Government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining" (hereinafter ceded lands). 1 Ibid. The Newlands Resolution further provided that all "property and rights" in the ceded lands "are vested in the United States of America." Ibid.

Two years later, Congress established a government for the Territory of Hawaii. See Act of Apr. 30, 1900, ch. 339, 31 Stat. 141 (hereinafter Organic Act). The Organic Act reiterated the Newlands Resolution and made clear that the new Territory consisted of the land that the United States acquired in "absolute fee" under that resolution. See §2, ibid. The Organic Act further provided:

"[T]he portion of the public domain heretofore known as Crown land is hereby declared to have been, on [the effective date of the Newlands Resolution], and prior thereto, the property of the Hawaiian government, and

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to be free and clear from any trust of or concerning the same, and from all claim of any nature whatsoever, upon the rents, issues, and profits thereof. It shall be subject to alienation and other uses as may be provided by law." §99, id., at 161; see also § 91, id., at 159.

In 1959, Congress admitted Hawaii to the Union. See Pub. L. 86–3, 73 Stat. 4 (hereinafter Admission Act). Under the Admission Act, with exceptions not relevant here, "the United States grant[ed] to the State of Hawaii, effective upon its admission into...

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