HAWAII et al. v. OFFICE OF HAWAIIAN AFFAIRS et al.

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HAWAII et al. v. OFFICE OF HAWAIIAN AFFAIRS
et al.
certiorari to the supreme court of hawaii
No. 07–1372. Argued February 25, 2009—Decided March 31, 2009
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 owner
ship 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, “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 de
clared that nothing in the resolution was “intended to serve as a settle
ment 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 hous
ing 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 de
mand that the payment include a disclaimer preserving any native Ha
waiian 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 Hawai
ians’ claims. The state trial court entered judgment against respond
ents, but the Hawaiian Supreme Court vacated that ruling. Relying on
the Apology Resolution, the court granted the injunction that respond
ents requested, rejecting petitioners’ argument that the Admission Act
and state law give the State explicit power to sell ceded lands.
Held:
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. 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. 171–172.
2. The Apology Resolution did not strip Hawaii of its sovereign au
thority to alienate the lands the United States held in absolute fee and
granted to the State upon its admission to the Union. Pp. 172–177.
(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 over
throw, “recognize[d] and commend[ed] efforts of reconciliation” with na
tive 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. The resolution’s second sub
stantive 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 express disclaimer of claims against one sovereign into
an affirmative recognition of claims against another. Pp. 173–174.
(b) The State Supreme Court’s conclusion that the 37 “whereas”
clauses prefacing the Apology Resolution clearly recognize native Ha
waiians’ “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 Co
lumbia v. Heller, 554 U. S. 570, 578, n. 3. Second, even if the clauses
had some legal effect, they did not restructure Hawaii’s rights and obli
gations, 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, 662. The Apology Resolution re
veals 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, 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. Pp. 175–177.
117 Haw. 174, 177 P. 3d 884, reversed and remanded.
Alito, J., delivered the opinion for a unanimous Court.
Mark J. Bennett, Attorney General of Hawaii, argued the
cause for petitioners. With him on the briefs were Lisa
M. Ginoza, First Deputy Attorney General, Dorothy Sellers,
Solicitor General, William J. Wynhoff, Deputy Attorney
General, Seth P. Waxman, Jonathan E. Nuechterlein, and
Jonathan G. Cedarbaum.
William M. Jay argued the cause for the United States as
amicus curiae in support of petitioners. With him on the
brief were former Solicitor General Garre, Assistant Attor
ney General Tenpas, then-Deputy Solicitor General Joseffer,
Deputy Solicitor General Kneedler, David C. Shilton, and
John Emad Arbab.
Kannon K. Shanmugam argued the cause for respond
ents. With him on the brief were Anna-Rose Mathieson,
Kimberly D. Perrotta, Sherry P. Broder, Jon M. Van Dyke,
Melody K. MacKenzie, William Meheula, and Hayden
Aluli.*
*Briefs of amici curiae urging reversal were filed for the State of Wash
ington et al. by Robert M. McKenna, Attorney General of Washington,
Maureen A. Hart, Solicitor General, and Jay D. Geck, Deputy Solicitor
General, and by the Attorneys General for their respective States as fol
lows: Troy King of Alabama, Talis J. Coldberg of Alaska, Terry Goddard
of Arizona, John W. Suthers of Colorado, Bill McCollum of Florida, Thur
bert E. Baker of Georgia, Lawrence G. Wasden of Idaho, Lisa Madigan of
Illinois, Steve Carter of Indiana, Tom Miller of Iowa, Steve Six of Kansas,
Jack Conway of Kentucky, James D. “Buddy” Caldwell of Louisiana,
Douglas F. Gansler of Maryland, Michael A. Cox of Michigan, Jim Hood
of Mississippi, Jon Bruning of Nebraska, Kelly A. Ayotte of New Hamp
shire, Gary K. King of New Mexico, Roy Cooper of North Carolina, Wayne
Stenehjem of North Dakota, Nancy H. Rogers of Ohio, W. A. Drew Ed
mondson of Oklahoma, Hardy Myers of Oregon, Thomas W. Corbett, Jr.,
of Pennsylvania, Patrick C. Lynch of Rhode Island, Henry D. McMaster
of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff

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166 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS
Opinion of the Court
Justice Alito delivered the opinion of the Court.
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.
I
A
In 1893, “[a] so-called Committee of Safety, a group of pro
fessionals and businessmen, with the active assistance of
of Utah, William H. Sorrell of Vermont, and Bruce A. Salzburg of Wyo
ming; for the Commissioner of Public Lands for the State of New Mexico
by Turner W. Branch; for the Center for Constitutional Jurisprudence by
Anthony T. Caso, John C. Eastman, and Edwin Meese III; for the Grass
root Institute of Hawaii et al. by H. William Burgess and Shannon Lee
Goessling; for the Mountain States Legal Foundation by J. Scott Detamore
and William Perry Pendley; and for the Pacific Legal Foundation et al.
by John H. Findley, Robert H. Thomas, and Ilya Shapiro.
Briefs of amici curiae urging affirmance were filed for the Equal Justice
Society et al. by Eric K. Yamamoto; for the National Congress of Ameri
can Indians by Beth S. Brinkmann, Brian R. Matsui, John E. Echohawk,
and Kim Jerome Gottschalk; for the Native Hawaiian Legal Corp. et al.
by Catherine E. Stetson and Jessica L. Ellsworth; for Abigail Kinoiki
Kekaulike Kawananakoa by George W. Van Buren; and for Samuel L. Kea
loha, Jr., et al. by Walter R. Schoettle and Emmett E. Lee Loy.
Briefs of amici curiae were filed for the Alaska Federation of Natives,
Inc., by David S. Case, Carol H. Daniel, and Riyaz Kanji; for the Asian
American Justice Center et al. by Jonathan M. Cohen, Mark A. Packman,
Karen Narasaki, and Vincent Eng; for Current and Former Hawaii State
Officials by Virginia A. Seitz and Sarah O’Rouke Schrup; for the Hawai‘i
Congressional Delegation by Sri Srinivasan; and for the Sovereign Coun
cils of the Hawaiian Homelands Assembly et al. by Charles Rothfeld,
Andrew J. Pincus, and Thomas W. Merrill.

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John Stevens, the United States Minister to Hawaii, acting
with the United States Armed Forces, replaced the [Hawai
ian] monarchy with a provisional government.” Rice v. Cay
etano, 528 U. S. 495, 504–505 (2000). “That government
sought annexation by the United States,” id., at 505, 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, Govern
ment, or Crown lands, public buildings or edifices, ports, har
bors, 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 appur
tenance 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 re
iterated 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
1 “Crown lands” were lands formerly held by the Hawaiian monarchy.
“Public” and “Government” lands were other lands held by the Hawaiian
government.

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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 the Union, the United States’ title
to all the public lands and other public property within the
boundaries of the State of Hawaii, title to which is held by
the United States immediately prior to its admission into the
Union.” § 5(b), id., at 5. These lands, “together with the
proceeds from the sale or other disposition of [these] lands
and the income therefrom, shall be held by [the] State as a
public trust” to promote various public purposes, including
supporting public education, bettering conditions of native
Hawaiians, developing home ownership, making public im
provements, and providing lands for public use. § 5(f), id.,
at 6. Hawaii state law also authorizes the State to use or
sell the ceded lands, provided that the proceeds are held in
trust for the benefit of the citizens of Hawaii. See, e. g.,
Haw. Rev. Stat. §§ 171–45, 171–18 (1993).
In 1993, Congress enacted a joint resolution “to acknowl
edge the historic significance of the illegal overthrow of the
Kingdom of Hawaii, to express its deep regret to the Native
Hawaiian people, and to support the reconciliation efforts of
the State of Hawaii and the United Church of Christ with
Native Hawaiians.” Joint Resolution to Acknowledge the
100th Anniversary of the January 17, 1893 Overthrow of the
Kingdom of Hawaii, Pub. L. 103–150, 107 Stat. 1513 (herein
after Apology Resolution). In a series of the preambular
“whereas” clauses, Congress made various observations
about Hawaii’s history. For example, the Apology Resolu
tion states that “the indigenous Hawaiian people never di

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rectly relinquished their claims . . . over their national lands
to the United States” and that “the health and well-being of
the Native Hawaiian people is intrinsically tied to their deep
feelings and attachment to the land.” Id., at 1512. In the
same vein, the Apology Resolution’s only substantive sec
tion—entitled “Acknowledgement and Apology”—states
that Congress:
“(1) . . . acknowledges the historical significance of
this event which resulted in the suppression of the in
herent sovereignty of the Native Hawaiian people;
“(2) recognizes and commends efforts of reconciliation
initiated by the State of Hawaii and the United Church
of Christ with Native Hawaiians;
“(3) apologizes to Native Hawaiians on behalf of the
people of the United States for the overthrow of the
Kingdom of Hawaii on January 17, 1893 with the partici
pation of agents and citizens of the United States, and
the deprivation of the rights of Native Hawaiians to
self-determination;
“(4) expresses its commitment to acknowledge the
ramifications of the overthrow of the Kingdom of Ha
waii, in order to provide a proper foundation for rec
onciliation between the United States and the Native
Hawaiian people; and
“(5) urges the President of the United States to also
acknowledge the ramifications of the overthrow of the
Kingdom of Hawaii and to support reconciliation efforts
between the United States and the Native Hawaiian
people.” Id., at 1513.
Finally, § 3 of the Apology Resolution states that “[n]othing
in this Joint Resolution is intended to serve as a settlement
of any claims against the United States.” Id., at 1514.
B
This suit involves a tract of former crown land on Maui,
now known as the “Leiali’i parcel,” that was ceded in “abso

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lute fee” to the United States at annexation and has been
held by the State since 1959 as part of the trust established
by § 5(f) of the Admission Act. The Housing Finance and
Development Corporation (HFDC)—Hawaii’s affordable
housing agency—received approval to remove the Leiali’i
parcel from the § 5(f) trust and redevelop it. In order to
transfer the Leiali’i parcel out of the public trust, HFDC
was required to compensate respondent Office of Hawaiian
Affairs (OHA), which was established to receive and manage
funds from the use or sale of the ceded lands for the benefit
of native Hawaiians. Haw. Const., Art. XII, §§ 4–6.
In this case, however, OHA demanded more than mone
tary compensation. Relying on the Apology Resolution, re
spondent OHA demanded that HFDC include a disclaimer
preserving any native Hawaiian claims to ownership of lands
transferred from the public trust for redevelopment.
HFDC declined to include the requested disclaimer because
“to do so would place a cloud on title, rendering title insur
ance unavailable.” App. to Pet. for Cert. 207a.
Again relying on the Apology Resolution, respondents
then sued the State, its Governor, HFDC (since renamed),
and its officials. Respondents sought “to enjoin the defend
ants from selling or otherwise transferring the Leiali’i parcel
to third parties and selling or otherwise transferring to third
parties any of the ceded lands in general until a determina
tion of the native Hawaiians’ claims to the ceded lands is
made.” Office of Hawaiian Affairs v. Housing and Com
munity Development Corporation of Hawaii, 117 Haw. 174,
189, 177 P. 3d 884, 899 (2008). Respondents “alleged that
an injunction was proper because, in light of the Apology
Resolution, any transfer of ceded lands by the State to
third-parties would amount to a breach of trust . . . .” Id.,
at 188, 177 P. 3d, at 898.
The state trial court entered judgment against respond
ents, but the Supreme Court of Hawaii vacated the lower
court’s ruling. Relying on a “plain reading of the Apology

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Resolution,” which “dictate[d]” its conclusion, id., at 212, 177
P. 3d, at 922, the State Supreme Court ordered “an injunc
tion against the defendants from selling or otherwise trans
ferring to third parties (1) the Leiali’i parcel and (2) any
other ceded lands from the public lands trust until the claims
of the native Hawaiians to the ceded lands have been re
solved,” id., at 218, 177 P. 3d, at 928. In doing so, the court
rejected petitioners’ argument that “the State has the un
doubted and explicit power to sell ceded lands pursuant to
the terms of the Admission Act and pursuant to state law.”
Id., at 211, 177 P. 3d, at 921 (internal quotation marks and
alterations omitted). We granted certiorari. 554 U. S. 944
(2008).
II
Before turning to the merits, we first must address our
jurisdiction. According to respondents, the Supreme Court
of Hawaii “merely held that, in light of the ongoing reconcili
ation process, the sale of ceded lands would constitute a
breach of the State’s fiduciary duty to Native Hawaiians
under state law.” Brief for Respondents 17. Because re
spondents believe that this case does not raise a federal ques
tion, they urge us to dismiss for lack of jurisdiction.
Although respondents dwell at length on that argument,
see id., at 19–34, we need not tarry long to reject it. This
Court has jurisdiction whenever “a state court decision fairly
appears to rest primarily on federal law, or to be interwoven
with the federal law, and when the adequacy and independ
ence of any possible state law ground is not clear from the
face of the opinion.” Michigan v. Long, 463 U. S. 1032,
1040–1041 (1983). Far from providing a “plain statement”
that its decision rested on state law, id., at 1041, the State
Supreme Court plainly held that its decision was “dictate[d]”
by federal law—in particular, the Apology Resolution, see
117 Haw., at 212, 177 P. 3d, at 922. Indeed, the court ex
plained that the Apology Resolution lies “[a]t the heart of
[respondents’] claims,” that respondents’ “current claim for

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injunctive relief is . . . based largely upon the Apology Reso
lution,” and that respondents’ arguments presuppose that
the Apology Resolution “changed the legal landscape and re
structured the rights and obligations of the State.” Id., at
189–190, 177 P. 3d, at 899–900 (internal quotation marks
omitted). The court noted that “[t]he primary question be
fore this court on appeal is whether, in light of the Apology
Resolution, this court should issue an injunction” against
sale of the trust lands, id., at 210, 177 P. 3d, at 920, and it
concluded, “[b]ased on a plain reading” of the Apology Reso
lution, that “Congress has clearly recognized that the native
Hawaiian people have unrelinquished claims over the ceded
lands,” id., at 191, 177 P. 3d, at 901.
Based on these and the remainder of the State Supreme
Court’s 77 references to the Apology Resolution, we have no
doubt that the decision below rested on federal law.2 We
are therefore satisfied that this Court has jurisdiction. See
28 U. S. C. § 1257.
III
Turning to the merits, we must decide whether the Apol
ogy Resolution “strips Hawaii of its sovereign authority to
sell, exchange, or transfer,” Pet. for Cert. i, the lands that
the United States held in “absolute fee,” 30 Stat. 750, and
“grant[ed] to the State of Hawaii, effective upon its admis
sion into the Union,” 73 Stat. 5. We conclude that the Apol
ogy Resolution has no such effect.
2 Respondents argue that the Supreme Court of Hawaii relied on the
Apology Resolution “simply to support its factual determination that
Native Hawaiians have unresolved claims to the ceded lands.” Brief for
Respondents 21. Regardless of its factual determinations, however, the
lower court’s legal conclusions were, at the very least, “interwoven with
the federal law.” Michigan v. Long, 463 U. S. 1032, 1040 (1983). See 117
Haw. 174, 217, 218, 177 P. 3d 884, 927, 928 (2008) (“hold[ing]” that respond
ents’ legal claim “arose” only when “the Apology Resolution was signed
into law on November 23, 1993”); id., at 211, n. 25, 177 P. 3d, at 921, n. 25
(emphasizing that “our holding is grounded in Hawai‘i and federal law”).
See also n. 4, infra.

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A
“We begin, as always, with the text of the statute.” Per
manent Mission of India to United Nations v. City of New
York, 551 U. S. 193, 197 (2007). The Apology Resolution
contains two substantive provisions. See 107 Stat. 1513–
1514. Neither justifies the judgment below.
The Apology Resolution’s first substantive provision uses
six verbs, all of which are conciliatory or precatory. Spe
cifically, Congress “acknowledge[d] the historical signifi
cance” of the Hawaiian monarchy’s overthrow, “recognize[d]
and commend[ed] efforts of reconciliation” with native Ha
waiians, “apologize[d] to [n]ative Hawaiians” for the monar
chy’s overthrow, “expresse[d] [Congress’] commitment to ac
knowledge the ramifications of the overthrow,” and “urge[d]
the President of the United States to also acknowledge the
ramifications of the overthrow . . . .” § 1. Such terms are
not the kind that Congress uses to create substantive
rights—especially those that are enforceable against the co
sovereign States. See, e. g., Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1, 17–18 (1981).3
The Apology Resolution’s second and final substantive pro
vision is a disclaimer, which provides: “Nothing in this Joint
Resolution is intended to serve as a settlement of any claims
against the United States.” § 3. By its terms, § 3 speaks
only to those who may or may not have “claims against the
United States.” The court below, however, held that the
3 The Apology Resolution’s operative provisions thus stand in sharp con
trast with those of other “apologies,” which Congress intended to have
substantive effect. See, e. g., Civil Liberties Act of 1988, 102 Stat. 903, 50
U. S. C. App. § 1989 (2000 ed.) (acknowledging and apologizing “for the
evacuation, relocation and internment” of Japanese citizens during World
War II and providing $20,000 in restitution to each eligible individual);
Radiation Exposure Compensation Act, 104 Stat. 920, notes following 42
U. S. C. § 2210 (2000 ed. and Supp. V) (“apologiz[ing] on behalf of the Na
tion . . . for the hardships” endured by those exposed to radiation from
above-ground nuclear testing facilities and providing $100,000 in compen
sation to each eligible individual).

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only way to save § 3 from superfluity is to construe it as
a congressional recognition—and preservation—of claims
against Hawaii and as “the foundation (or starting point)
for reconciliation” between the State and native Hawaiians.
117 Haw., at 192, 177 P. 3d, at 902.
“We must have regard to all the words used by Congress,
and as far as possible give effect to them,” Louisville &
Nashville R. Co. v. Mottley, 219 U. S. 467, 475 (1911), but that
maxim is not a judicial license to turn an irrelevant statutory
provision into a relevant one. And we know of no justifica
tion for turning an express disclaimer of claims against one
sovereign into an affirmative recognition of claims against
another.4 Cf. Pacific Bell Telephone Co. v. linkLine Com
munications, Inc., 555 U. S. 438, 457 (2009) (“Two wrong
claims do not make one that is right”). The Supreme Court
of Hawaii erred in reading § 3 as recognizing claims incon
sistent with the title held in “absolute fee” by the United
States, 30 Stat. 750, and conveyed to the State of Hawaii at
statehood. See supra, at 167–168.
4 The court below held that respondents “prevailed on the merits” by
showing that “Congress has clearly recognized that the native Hawaiian
people have unrelinquished claims over the ceded lands, which were taken
without consent or compensation and which the native Hawaiian people
are determined to preserve, develop, and transmit to future generations.”
117 Haw., at 212, 177 P. 3d, at 922. And it further held that petitioners
failed to show that the State has the “power to sell ceded lands pursuant
to the terms of the Admission Act.” Id., at 211, 177 P. 3d, at 921 (internal
quotation marks and alterations omitted). Respondents now insist, how
ever, that their claims are “nonjusticiable” to the extent that they are
grounded on “broader moral and political” bases. Brief for Respondents
18. No matter how respondents characterize their claims, it is undeniable
that they have asserted title to the ceded lands throughout this litigation,
see id., at 40, n. 15 (conceding the point), and it is undeniable that the
Supreme Court of Hawaii relied on those claims in issuing an injunction,
which is a legal (and hence justiciable) remedy—not a moral, political, or
nonjusticiable one.

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B
Rather than focusing on the operative words of the law,
the court below directed its attention to the 37 “whereas”
clauses that preface the Apology Resolution. See 107 Stat.
1510–1513. “Based on a plain reading of ” the “whereas”
clauses, the Supreme Court of Hawaii held that “Congress
has clearly recognized that the native Hawaiian people have
unrelinquished claims over the ceded lands.” 117 Haw., at
191, 177 P. 3d, at 901. That conclusion is wrong for at least
three reasons.
First, “whereas” clauses like those in the Apology Resolu
tion cannot bear the weight that the lower court placed on
them. As we recently explained in a different context,
“where the text of a clause itself indicates that it does not
have operative effect, such as ‘whereas’ clauses in federal
legislation . . . , a court has no license to make it do what it
was not designed to do.” District of Columbia v. Heller,
554 U. S. 570, 578, n. 3 (2008). See also Yazoo & Mississippi
Valley R. Co. v. Thomas, 132 U. S. 174, 188 (1889) (“[A]s the
preamble is no part of the act, and cannot enlarge or con
fer powers, nor control the words of the act, unless they
are doubtful or ambiguous, the necessity of resorting to it
to assist in ascertaining the true intent and meaning of the
legislature is in itself fatal to the claim set up”).
Second, even if the “whereas” clauses had some legal ef
fect, they did not “chang[e] the legal landscape and restruc
tur[e] the rights and obligations of the State.” 117 Haw., at
190, 177 P. 3d, at 900. As we have emphasized, “repeals by
implication are not favored and will not be presumed unless
the intention of the legislature to repeal [is] clear and mani
fest.” National Assn. of Home Builders v. Defenders of
Wildlife, 551 U. S. 644, 662 (2007) (internal quotation marks
omitted). The Apology Resolution reveals no indication—
much less a “clear and manifest” one—that Congress in
tended to amend or repeal the State’s rights and obligations

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176 HAWAII v. OFFICE OF HAWAIIAN AFFAIRS
Opinion of the Court
under the Admission Act (or any other federal law); nor does
the Apology Resolution reveal any evidence that Congress
intended sub silentio to “cloud” the title that the United
States held in “absolute fee” and transferred to the State in
1959. On that score, we find it telling that even respondent
OHA has now abandoned its argument, made below, that
“Congress . . . enacted the Apology Resolution and thus . . .
change[d]” the Admission Act. App. 114a; see also Tr. of
Oral Arg. 31, 37–38.
Third, the Apology Resolution would raise grave constitu
tional 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. We have emphasized that “Con
gress cannot, after statehood, reserve or convey submerged
lands that have already been bestowed upon a State.”
Idaho v. United States, 533 U. S. 262, 280, n. 9 (2001) (internal
quotation marks and alteration omitted); see also id., at 284
(Rehnquist, C. J., dissenting) (“[T]he consequences of admis
sion are instantaneous, and it ignores the uniquely sovereign
character of that event . . . to suggest that subsequent events
somehow can diminish what has already been bestowed”).
And that proposition applies a fortiori where virtually all of
the State’s public lands—not just its submerged ones—are
at stake. In light of those concerns, we must not read the
Apology Resolution’s nonsubstantive “whereas” clauses to
create a retroactive “cloud” on the title that Congress
granted to the State of Hawaii in 1959. See, e. g., Clark v.
Martinez, 543 U. S. 371, 381–382 (2005) (the canon of consti
tutional avoidance “is a tool for choosing between competing
plausible interpretations of a statutory text, resting on the
reasonable presumption that Congress did not intend the al
ternative which raises serious constitutional doubts”).
* * *
When a state supreme court incorrectly bases a decision
on federal law, the court’s decision improperly prevents the

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177 Cite as: 556 U. S. 163 (2009)
Opinion of the Court
citizens of the State from addressing the issue in question
through the processes provided by the State’s constitution.
Here, the State Supreme Court incorrectly held that Con
gress, by adopting the Apology Resolution, took away from
the citizens of Hawaii the authority to resolve an issue that is
of great importance to the people of the State. Respondents
defend that decision by arguing that they have both state
law property rights in the land in question and “broader
moral and political claims for compensation for the wrongs
of the past.” Brief for Respondents 18. But we have no
authority to decide questions of Hawaiian law or to provide
redress for past wrongs except as provided for by federal
law. The judgment of the Supreme Court of Hawaii is re
versed, and the case is remanded for further proceedings not
inconsistent with this opinion.
It is so ordered.