FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIRGIL E. DAY; MEL
HOOMANAWANUI; JOSIAH L.
HOOHULI; PATRICK L.
KAHAWAIOLAA; SAMUEL L.
KEALOHA, JR.,
Plaintiffs-Appellants
v.
HAUNANI APOLIONA, individually
and in her official capacity as
Chairperson and Trustee of the
Office of Hawaiian Affairs;
ROWENA AKANA; DANTE
CARPENTER; DONALD CATALUNA; No. 08-16704
LINDA KEAWE’EHU DELA CRUZ;
COLETTE Y. PI’IPI’I MACHADO; D.C. No.
BOYD P. MOSSMAN; OSWALD 1:05-CV-00649-
STENDER; JOHN D. WAIHE’E, IV, SOM-BMK
Trustees of the Office of Hawaiian OPINION
Affairs of the State of Hawaii
sued in their official capacities for
declaratory and prospective
injunctive relief sued in individual
capacities for damages; CLAYTON
HEE; CHARLES OTA, Former
Trustees of the Office of Hawaiian
Affairs of the State of Hawaii,
sued in their individual capacities
for damages,
Defendants-Appellees,
STATE OF HAWAII,
Defendant-Intervenor-Appellee.
10687
10688 DAY v. APOLIONA
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Argued and Submitted
October 13, 2009—Honolulu, Hawaii
Filed July 26, 2010
Before: Robert R. Beezer, Susan P. Graber and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
10690 DAY v. APOLIONA
COUNSEL
Walter R. Schoettle (argued), Honolulu, Hawaii, for the
plaintiffs-appellants.
Robert G. Klein (argued), Lisa W. Cataldo and Lisa M. Ezra,
McCorriston Miller Mukai MacKinnon LLP, Honolulu,
Hawaii, for the defendants-appellees.
DAY v. APOLIONA 10691
Mark J. Bennett (argued), William J. Wynhoff, Department of
the Attorney General, State of Hawaii, Honolulu, Hawaii, for
the intervenor-appellee.
OPINION
FISHER, Circuit Judge:
Plaintiffs are “native Hawaiians,” defined in section 201(a)
of the Hawaiian Homes Commission Act, Pub. L. No. 67-34,
42 Stat. 108 (1921) (“HHCA”), to mean “any descendant of
not less than one-half part of the blood of the races inhabiting
the Hawaiian Islands previous to 1778.”1 As such they are
beneficiaries of a “public trust” created in the Hawaii Admis-
sion Act, Pub. L. No. 86-3, 73 Stat. 4 (1959) (“Admission
Act”). They contend that the trustees of the Office of Hawai-
ian Affairs (“OHA”), a Hawaii state agency that administers
a portion of the public trust’s proceeds, breached the trust.
Plaintiffs appeal from the district court’s grant of summary
judgment to the OHA trustees. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
I. BACKGROUND
A. The § 5(f) Trust
The Admission Act granted to the State of Hawaii title to
most of the federal government’s public land within the state.
Id. § 5(b)-(e), 73 Stat. at 5-6. Section 5(f) of the Admission
Act requires the state to hold much of that land and profits
from it in “public trust” (the “§ 5(f) trust”) for five enumer-
ated purposes. Id. § 5(f), 73 Stat. at 6. One such purpose is
1
We use the term “native Hawaiian” in this way throughout the opinion.
By contrast, we use the term “Hawaiian” to include any descendant of the
indigenous peoples of the islands of Hawaii, regardless of proportional
ancestry. Cf. Haw. Rev. Stat. § 10-2.
10692 DAY v. APOLIONA
“for the betterment of the conditions of native Hawaiians, as
defined in the Hawaiian Homes Commission Act.” Id. The
other purposes — for public schools, development of farm
and home ownership, public improvements and the provision
of land for public use — are not limited to native Hawaiians.
Id. After setting forth these purposes, § 5(f) further specifies
that the trust “shall be managed and disposed of for one or
more of the foregoing purposes in such manner as the consti-
tution and laws of said State may provide, and their use for
any other object shall constitute a breach of trust.” Id. Hawaii
has provided that a portion of the § 5(f) trust’s proceeds shall
be administered by OHA.
B. OHA’s Portion of the § 5(f) Trust
OHA is a Hawaii state agency that administers a portion of
the § 5(f) trust’s proceeds as well as some other funds. See
generally Haw. Rev. Stat. ch. 10. In particular, state law enti-
tles OHA to receive “[t]wenty per cent of all funds derived
from” the § 5(f) trust, Haw. Rev. Stat. §§ 10-3, 10-13.5, and
requires this portion of the § 5(f) trust’s proceeds to “be held
and used [by OHA] solely as a public trust for the betterment
of the conditions of native Hawaiians.” Id. § 10-3.2 State law
thus appears to limit OHA’s uses of § 5(f) trust proceeds to
only one of the five purposes enumerated in the federal stat-
ute. See Day v. Apoliona, 496 F.3d 1027, 1029 (9th Cir. 2007)
(“Day I”) (“OHA receives a portion of the § 5(f) trust monies,
which it is to devote ‘to the betterment of the conditions of
[n]ative Hawaiians.’ ” (quoting Haw. Rev. Stat. § 10-3)).
2
Under state law, OHA’s authority to use § 5(f) trust funds is also nar-
rower than OHA’s general authority, which includes promoting “the bet-
terment of the conditions of native Hawaiians . . . [and] Hawaiians.” Haw.
Rev. Stat. § 10-3 (emphasis added); see also id. § 10-2 (defining “native
Hawaiian” and “Hawaiian”).
DAY v. APOLIONA 10693
C. The Challenged Expenditures
Plaintiffs challenge four projects on which the OHA trust-
ees have spent parts of its 20-percent share of the § 5(f) trust’s
proceeds.
1. The Akaka Bill. OHA used § 5(f) trust money to lobby
for and support the proposed Native Hawaiian Government
Reorganization Act of 2007, commonly referred to as the
“Akaka Bill” after Senator Daniel Akaka of Hawaii, one of its
chief proponents. The Akaka Bill would create a process
through which the United States could recognize a governing
entity for Hawaii’s indigenous people. See Native Hawaiian
Government Reorganization Act of 2007, S. 310, 110th Cong.
(2007). The governing entity would have the power to estab-
lish its own criteria for citizenship. Id. § 7(c)(2)(B)(iii)(I)(aa).
Initially, however, it would be governed by an “interim gov-
erning council,” id. § 7(c)(2)(A), to be elected by “adult mem-
bers of the Native Hawaiian community who elect to
participate in the reorganization of the Native Hawaiian gov-
erning entity and are certified to be Native Hawaiian,” id.
§ 7(c)(1)(A). For the purposes of the Akaka Bill, the term
“Native Hawaiian” includes (essentially) any direct descen-
dant of the indigenous people of Hawaii. Id. § 3(10). This def-
inition is broader than the class of “native Hawaiians” (like
plaintiffs) comprised only of individuals with “not less than
one-half part” indigenous Hawaiian lineage. See HHCA
§ 201(a).
The Akaka Bill would expressly empower both the United
States government and the State of Hawaii to negotiate and
enter agreements with the Native Hawaiian governing entity
regarding “the transfer of lands, natural resources, and other
assets, and the protection of existing rights related to such
lands or resources” and “the exercise of governmental author-
ity over any transferred lands, natural resources, and other
assets, including land use.” Akaka Bill § 8(b)(1)(A)-(B).
10694 DAY v. APOLIONA
2. Native Hawaiian Legal Corporation (“NHLC”).
NHLC identifies itself as “a non-profit corporation that spe-
cializes in Hawaiian land and Hawaiian rights issues.” OHA
used § 5(f) trust money to fund a contract with NHLC, under
which NHLC agrees to render a range of legal services
including “[a]ssertion and defense of quiet title actions,” pro-
tection of water rights, “[p]reservation of Native Hawaiian
Land Trust entitlements” and preservation of traditional prac-
tices and culturally significant places. The contract does not
restrict NHLC to providing legal services to “native Hawai-
ians.” Its recitals explain that OHA “has established a pro-
gram whereby all Hawaiians can receive” certain legal
services and that “the program is intended to better the condi-
tions of all Hawaiians.” In addition, the contract defines “Ha-
waiian” to include not only “native Hawaiians” under the
HHCA (like plaintiffs) but also any descendant of the aborigi-
nal peoples inhabiting the Hawaiian islands in 1778, without
regard to proportional ancestry.
3. Na Pua No’eau Education Program (“Na Pua”). Na
Pua identifies itself as “a Hawaiian Culture-based Education
Resource Center within the University of Hawaii . . . that pro-
vides educational enrichment program activities to Hawaiian
children and their families.” OHA used § 5(f) trust money to
fund a contract with Na Pua. Na Pua does not appear to
restrict the services it provides under the contract to “native
Hawaiians” either generally or under the OHA contract.
4. Alu Like, Inc. Alu Like is a nonprofit service organiza-
tion that strives to help Hawaiians achieve social and eco-
nomic self-sufficiency by providing early childhood
education, services to the elderly, employment preparation
and training, library and genealogy services, specialized ser-
vices for at-risk youth and information and referral services.
OHA used § 5(f) trust money to fund a contract with Alu
Like. Alu Like does not appear to restrict its services to “na-
tive Hawaiians” either generally or under the OHA contract.
DAY v. APOLIONA 10695
D. Procedural History
Plaintiffs originally challenged these four OHA expendi-
tures as a violation of (1) Admission Act § 5(f), enforceable
under 42 U.S.C. § 1983; (2) the Equal Protection Clause of
the Fourteenth Amendment; and (3) a state law duty of fidel-
ity, see Haw. Rev. Stat. § 10-16(c). See Day I, 496 F.3d at
1030. The district court dismissed the complaint. Id. Plaintiffs
did not contest the dismissal of the Equal Protection claims or
the discretionary dismissal of the state law claims, but
appealed the court’s ruling that they failed to allege any
Admission Act § 5(f) violation enforceable under § 1983. See
id. On appeal we reversed and remanded, holding that “each
native Hawaiian plaintiff, as a beneficiary of the trust created
by § 5(f), has an individual right to have the trust terms com-
plied with, and therefore can sue under § 1983 for violation
of that right.” Id. at 1039. We left it “to the district court . . .
to determine in the first instance not only whether [plaintiffs’]
allegations are true, but also whether the described expendi-
tures in fact violate § 5(f).” Id.
On remand, the district court entered summary judgment in
defendants’ favor on the § 1983 claim. It held that each of the
challenged expenditures was consistent with at least one of
the five trust purposes enumerated in § 5(f). The district court
implicitly concluded that the OHA trustees may, as a matter
of federal law, spend § 5(f) money for any of the five enumer-
ated purposes, rejecting plaintiffs’ argument that federal law
requires the OHA trustees to spend the portion of the § 5(f)
trust they administer only for one particular § 5(f) purpose,
namely the betterment of the conditions of native Hawaiians.
The district court further found that the OHA trustees were
“simultaneously and redundantly” entitled to qualified immu-
nity because plaintiffs failed to establish any violation of fed-
eral law, let alone a clearly established one.
The State of Hawaii participated as amicus curiae in the
district court proceedings from an early stage and successfully
10696 DAY v. APOLIONA
moved for intervenor status during the first appeal. Hawaii
filed an answering brief in this appeal proposing an alterna-
tive basis for affirming summary judgment.3
II. STANDARD OF REVIEW
A district court’s statutory interpretation is a question of
law we review de novo. See Beeman v. TDI Managed Care
Servs., 449 F.3d 1035, 1038 (9th Cir. 2006). We also review
de novo a district court’s grant or denial of summary judg-
ment in a § 1983 action. See Pinard v. Clatskanie Sch. Dist.
6J, 467 F.3d 755, 763 (9th Cir. 2006).
III. DISCUSSION
Plaintiffs allege that the OHA trustees have violated plain-
tiffs’ federal rights under § 5(f) and 42 U.S.C. § 1983 by
spending trust proceeds for impermissible purposes. In partic-
ular, plaintiffs contend they have a federal right, enforceable
under § 1983, to require that the trust funds be managed “in
such manner as the . . . laws of [Hawaii] may provide,” that
the laws of Hawaii require the OHA trustees to spend the por-
tion of the § 5(f) funds they manage only “for the betterment
of the conditions of native Hawaiians” (and not for any of the
other purposes enumerated in § 5(f)) and that the OHA trust-
ees have violated that requirement by spending § 5(f) funds
on the four challenged expenditures. In the alternative, plain-
tiffs argue that, even if there is no violation of federal law so
long as OHA trustees spend § 5(f) trust proceeds for any of
the five purposes enumerated in § 5(f), these expenditures still
demonstrate a breach of trust under federal law. Neither argu-
ment has merit.
3
Plaintiffs incorrectly contend that Hawaii no longer has intervenor sta-
tus in this appeal and that its Answering Brief should be stricken. Nothing
in the order granting Hawaii’s motion to intervene in the previous appeal
suggests it was entitled to party status only for a limited purpose. See Day
v. Apoliona, 505 F.3d 963, 966 (9th Cir. 2007) (“Day II”) (“Hawaii could
have and should have intervened earlier . . . .”).
DAY v. APOLIONA 10697
A. Federal Law Does Not Oblige the OHA Trustees To
Use Trust Proceeds Only for Native Hawaiians
The district court implicitly rejected plaintiffs’ first argu-
ment — that the OHA trustees, as a matter of federal law,
must spend the portion of the § 5(f) trust they manage only
“for the betterment of the conditions of native Hawaiians.”
We agree with the district court. Alleged violations of state
laws regarding the management and disposition of § 5(f)
funds are not necessarily breaches, under federal law, of the
§ 5(f) trust itself.
[1] Plaintiffs’ contrary argument is based on the following
text in the statute:
The [§ 5(f) trust] shall be held by [Hawaii] as a pub-
lic trust for the support of the public schools and
other public educational institutions, for the better-
ment of the conditions of native Hawaiians, . . . for
the development of farm and home ownership on as
widespread a basis as possible[,] for the making of
public improvements, and for the provision of lands
for public use. Such lands, proceeds, and income
shall be managed and disposed of for one or more of
the foregoing purposes in such manner as the consti-
tution and laws of said State may provide, and their
use for any other object shall constitute a breach of
trust . . . .”
Admission Act § 5(f).4 The Admission Act ceded certain
4
In full, this part of the statute ends “. . . use for any other object shall
constitute a breach of trust for which suit may be brought by the United
States.” Admission Act § 5(f) (emphasis added). Our caselaw nonetheless
interprets § 5(f) to create a private right of action for a breach of the fed-
eral trust. See e.g., Day I, 496 F.3d at 1031-40; Price v. Akaka, 3 F.3d
1220 (9th Cir. 1993); Keaukaha-Panaewa Cmty. Ass’n v. Hawaiian
Homes Comm’n, 739 F.2d 1467 (9th Cir. 1984). Although recent Supreme
10698 DAY v. APOLIONA
property owned by the United States in the former territory of
Hawaii to the new State of Hawaii to be held in public trust.
See Admission Act § 5(b)-(e). The natural and logical reading
of the quoted passage is that Congress, in transferring valu-
able assets from the United States to Hawaii, wanted to assure
that those assets would be used for public benefits as spelled
out in the five enumerated purposes. Use for any other pur-
pose would be a breach of trust, a violation of federal dimen-
sion. So long as trust funds are used for “one or more” of the
enumerated purposes, however, Congress intended to leave
the manner in which the trust is managed in Hawaii’s sover-
eign control.
Plaintiffs read the statute not simply as permitting Hawaii
to decide, through state law, the manner in which the trust
shall be managed, but investing any such discretionary, state-
provided rules or restrictions with the status of federal law.
According to plaintiffs, to the extent Hawaii law restricts the
OHA trustees’ spending authority over their portion of § 5(f)
trust funds to uses benefitting only native Hawaiians, failure
to comply with those restrictions violates not just state law but
also § 5(f) itself. This construction of the statute does not
withstand analysis.
[2] First, the only “breach of trust” § 5(f) refers to is “use”
of funds “for any other object,” referring to the enumerated
spending purposes. Id. (emphasis added). It does not encom-
pass any other restrictions under state law. Second, we find it
implausible that Congress gave Hawaii discretion to choose
Court cases cast some doubt on this holding, we have held that they do not
“undercut the theory or reasoning underlying the prior circuit precedent in
such a way that the cases are clearly irreconcilable,” Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc), so the holding remains bind-
ing on our three-judge panels. See Day I, 496 F.3d at 1034-38 (discussing
the effect of recent Supreme Court cases on the private right of action
under § 5(f)).
DAY v. APOLIONA 10699
how to manage the trust yet provided for federal intervention
to enforce those choices, whatever they might be.
[3] Our reading is consistent with several of our cases
assuming or suggesting that, as a matter of federal law, the
only restriction that the statute places on § 5(f) trustees,
including the OHA trustees with respect to the portion of the
§ 5(f) trust they administer, is that they use trust funds for
enumerated purposes. In Price v. Akaka, 928 F.2d 824, 826
(9th Cir. 1991) (“Akaka I”), we assumed that § 5(f) did not
require compliance with state law restrictions on the OHA
trustees when we explained that “[t]he fact that the [OHA]
trustees may, consistently with § 5(f), spend the income for
purposes other than to benefit native Hawaiians does not
deprive [native Hawaiian beneficiaries] of standing to [sue
under § 1983 for enforcement of the trust conditions].” Simi-
larly in Price v. Akaka, 3 F.3d 1220, 1222 n.3 (9th Cir. 1993)
(“Akaka II”), we treated the question “[w]hether the trustees
breached their fiduciary duties under Chapter 10 of the
[Hawaii Revised Statutes]” as “a matter of state law which we
do not reach.” And when we considered this case in a previ-
ous appeal we noted that “neither our prior case law nor our
discussion today suggests that as a matter of federal law
§ 5(f) funds must be used [by OHA trustees] for the benefit
of [n]ative Hawaiians or Hawaiians, at the expense of other
beneficiaries.” Day I, 496 F.3d at 1033 n.9 (emphasis added).
[4] Accordingly, we affirm the district court’s dismissal of
plaintiffs’ claims to the extent they contend that the OHA
trustees violated federal law by spending for enumerated pur-
poses other than “for the betterment of the conditions of
native Hawaiians.” So long as OHA trustees spend § 5(f)
funds on any of the five enumerated purposes, they have not
breached their federal trust obligations.
B. The OHA Trustees Had Discretion To Contribute
§ 5(f) Trust Funds to the Challenged Projects
Plaintiffs contend in the alternative that, even if OHA trust-
ees may spend for any of the § 5(f) trust purposes, they
10700 DAY v. APOLIONA
breached the trust under federal law because each of the chal-
lenged projects was not restricted to one or more of the enu-
merated purposes. This argument is unpersuasive. Although
the trustees are obliged to spend only for trust purposes, they
have broad discretion to decide how to serve those purposes.
The district court properly found that each of the challenged
expenditures is sufficiently directed to one or more trust pur-
poses to fall within the range of permissible spending.
1. Legal Standard
[5] We begin with the text of the statute. Section 5(f) of the
Admission Act establishes a public trust and the purposes for
which it may be used and then provides an express and nar-
row enforcement mechanism, specifying that “use for any
other object shall constitute a breach of trust.” Admission Act
§ 5(f). To establish a breach of trust under that section, there-
fore, plaintiffs must prove that trust funds were used for a pur-
pose not enumerated in § 5(f).5
5
As a corollary, the Admission Act does not impose upon the trustees
all of the obligations trustees may generally be subject to under the com-
mon law of trusts. Cf. Price v. Hawaii, 921 F.2d 950, 955 (9th Cir. 1990)
(holding that the state as manager of a public trust is not “manacle[d]” by
“all provisions of the common law of trusts” and therefore is not required
to keep trust funds segregated from nontrust funds or to abide by common
law prudent-investment requirements); id. at 956 (reading the trust so as
to “assure that the federal courts will not become involved in the micro
management of the government of the State”). As previously noted,
§ 5(f)’s narrow enforcement mechanism is consistent with the historical
context in which the trust was created and with Congress’ interest as set-
tlor: to ensure the trust would be used for the enumerated purposes while
leaving control of the “manner” of its use to the state. See Admission Act
§ 5(f). This narrow interpretation of what may constitute a breach of the
trust under federal law is also consistent with general trust law principles,
which recognize that the inquiry into breach of trust depends in each case
on the terms of the trust and the settlor’s intent. See Restatement (Third)
of Trusts § 50(2) (“[W]hat may constitute an abuse of discretion by the
trustee . . . depend[s] on the terms of the discretion . . . and on the settlor’s
purposes in granting the discretionary power and in creating the trust.”)
(emphasis added). Although § 5(f) limits the scope of any cause of action
for breach of trust under federal law, we express no opinion about the
OHA trustees’ obligations Hawaii state law may have imposed in regulat-
ing the manner in which the trust shall be managed.
DAY v. APOLIONA 10701
The parties dispute what showing is necessary to establish
that an expenditure is a “use for any other [nontrust] object.”
Id. To resolve this dispute, we look to the common law of
trusts. See Day I, 496 F.3d at 1033-34; Akaka I, 928 F.2d at
826-27; Price v. Hawaii, 921 F.2d 950, 955 (9th Cir. 1990).
[6] Generally, a trustee’s “power is discretionary except to
the extent its exercise is directed by the terms of the trust or
compelled by the trustee’s fiduciary duties.” Restatement
(Third) of Trusts § 87 cmt. a. Because § 5(f) establishes broad
“purposes” and does not direct specific expenditures, § 5(f)
trustees “ha[ve] discretion (i.e., [are] to use fiduciary judg-
ment)” to determine whether a particular use of trust funds
serves one or more of the trust purposes. Id. Plaintiffs them-
selves have conceded that the trustees have broad discretion
in determining what qualifies as use for a trust purpose.
[7] “When a trustee has discretion with respect to the exer-
cise of a power, its exercise is subject to supervision by a
court only to prevent abuse of discretion.” Id. § 87. In the
context of the narrow federal inquiry into whether an expendi-
ture is a use for a trust purpose, an abuse of discretion occurs
when a trustee “has acted unreasonably — that is, beyond the
bounds of a reasonable judgment.” Id. § 87 cmt. c. We there-
fore examine the challenged expenditures to determine
whether any of them is beyond the bounds of a trustee’s rea-
sonable judgment that the project in question would serve
§ 5(f) trust purposes.
Plaintiffs urge that an expenditure is outside the bounds of
a reasonable judgment unless it is “in the sole interest of . . .
beneficiaries; provided that such expenditures may provide a
collateral benefit to non-beneficiaries, but only so long as the
primary benefits are enjoyed by . . . beneficiaries, and the col-
lateral benefits do not detract from nor reduce the benefits
enjoyed by the . . . beneficiaries.” For example, they contend
that projects that do not distinguish between “native Hawai-
ians” and “Hawaiians” cannot be a use “for the betterment of
10702 DAY v. APOLIONA
the conditions of native Hawaiians” unless they ultimately
direct more dollars or services to native Hawaiians than to
others.
[8] We reject such a rule because nothing in the trust’s
terms or purposes either requires the kind of comparative
analysis plaintiffs propose or suggests that Congress intended
to prohibit expenditures whose benefits may extend beyond
the trust’s purposes. Absent express standards, courts apply
“ ‘a general standard of reasonableness,’ taking account of
other terms and purposes of the trust.” Restatement (Third)
Trusts § 87 cmt. c. Under this standard, although the trustees
must reasonably act in pursuit of trust purposes and no others,
they are not required to ensure that a given expenditure will
provide only “collateral benefits” to nonbeneficiaries or pur-
poses not listed in the trust. Cf. Akaka II, 3 F.3d at 1226
(granting OHA trustees qualified immunity where they “rea-
sonably believed that [funding] a referendum to determine
Hawaiian opinion” on whether to expand the definition of
“native Hawaiian” was for the “betterment of the conditions
of native Hawaiians” without any showing that native Hawai-
ians would benefit more than or differently from non-native
Hawaiians). The trustees need only ensure that each expendi-
ture “is one that would . . . be accepted as reasonable by per-
sons of prudence.” Restatement (Third) Trusts § 87 cmt. c.
2. Application
Applying this standard, we affirm the district court’s grant
of summary judgment to the OHA trustees. The district court
ably analyzed and rejected plaintiffs’ argument that the chal-
lenged expenditures are outside the bounds of a reasonable
judgment of a trustee acting to pursue § 5(f)’s purposes.
[9] Akaka Bill. The trustees had discretion to use § 5(f)
funds to lobby for enactment of the Akaka Bill. Although it
is possible that the processes the Akaka Bill envisions could
dilute some benefits that native Hawaiians currently enjoy to
DAY v. APOLIONA 10703
the exclusion of other Hawaiians, a trustee could reasonably
conclude that the bill’s benefits to the conditions of native
Hawaiians outweigh any drawback and therefore choose to
use trust proceeds to support it. See, e.g., Akaka Bill
§ 8(b)(1)(A), (B), (F) (proposing to authorize the newly
formed governing entity to negotiate matters such as the
transfer and management of land and natural resources and
“grievances regarding assertions of historical wrongs”). As
the district court concluded, “[e]ven if the Akaka Bill is
intended to benefit Hawaiians in general, the OHA trustees
would not be unreasonable or arbitrary in viewing the Akaka
Bill as also benefitting native Hawaiians.”
[10] NHLC. The trustees had discretion to use § 5(f) funds
for the NHLC contract. Among the “substantive areas” in
which the contract requires NHLC to provide legal represen-
tation to Hawaiians is the “[p]reservation and perpetuation of
traditional and customary practices [and] [p]rotection of cul-
turally significant places, including burial sites and material
culture.” Under a general standard of reasonableness, it was
within the trustees’ broad discretion to determine that expand-
ing the provision of legal services of this kind will “better[ ]
. . . the conditions of native Hawaiians.” Admission Act § 5(f).6
[11] Na Pua. So too was it reasonable for the trustees to
fund the Na Pua contract. Na Pua is an educational center
within the University of Hawaii, which the parties agree is “a
public educational institution.” The record shows that OHA
gave Na Pua § 5(f) money to provide educational services to
Hawaiians that would “connect [their] learning and education
to [their] Hawaiian identity.” A reasonable trustee could view
this contract as serving at least two of the § 5(f) purposes —
6
The district court also concluded that the NHLC contract serves other
§ 5(f) purposes. Because it was within the trustees’ discretion to determine
that the NHLC contract serves to better the conditions of native Hawai-
ians, we do not reach the question whether it also serves other § 5(f) pur-
poses.
10704 DAY v. APOLIONA
“support[ing] . . . public schools and other public educational
institutions” and “betterment of the conditions of native
Hawaiians.” Nothing in § 5(f) suggests that it would be unrea-
sonable to consider Na Pua a “public educational institution”
even though it serves only Hawaiian students, and a trustee
could reasonably believe that native Hawaiians will benefit
from additional funding for education directed to Hawaiian
culture and identity. As the district court found, “[n]ative
Hawaiians stand to benefit if Hawaiian identity in general is
preserved and pride in Hawaiian identity fostered.”
[12] Alu Like. Finally, the OHA trustees had discretion to
fund the Alu Like contract. That contract obligates Alu Like
to provide “a comprehensive system for beneficiaries [includ-
ing native Hawaiians and Hawaiians] to receive information,
referrals, . . . case management, personal financial manage-
ment, and emergency fund assistance” consistent with a pro-
posal that Alu Like submitted to OHA. As the district court
found, the trustees could have reasonably determined that the
conditions of native Hawaiians would benefit from Alu Like’s
efforts to “help[ ] Hawaiians and native Hawaiians achieve
social and economic self-sufficiency.”
[13] In summary, there is no triable issue as to whether the
OHA trustees had discretion to use § 5(f) funds for the chal-
lenged expenditures. Each was within the trustees’ broad dis-
cretion to serve the trust purposes. Plaintiffs have failed to
establish a violation of any federal statutory right, and the
trustees are entitled to summary judgment on all of plaintiffs’
§ 1983 claims.
C. Qualified Immunity
Because we affirm the district court’s grant of summary
judgment on the merits, we do not reach its alternative hold-
ing that the OHA trustees are “simultaneously and redun-
dantly . . . entitled to qualified immunity.”
DAY v. APOLIONA 10705
D. Hawaii’s Alternative Argument in Support of Sum-
mary Judgment
We also do not reach the State of Hawaii’s alternative argu-
ment in support of summary judgment, except insofar as it
raises a jurisdictional issue. To the extent Hawaii contends
that plaintiffs lack standing under its theory of the case, we
disagree. Hawaii points out that the state spends far more each
year on public education — one of the enumerated trust pur-
poses — than it receives from the trust, and argues that this
deprives any trust beneficiary of standing to bring a claim for
breach of trust for lack of injury. In short, Hawaii contends
that no beneficiary of the § 5(f) trust can claim to be injured
so long as the federally mandated purposes collectively are
receiving more from the state than the § 5(f) trust produces.
This argument fails because, as we have previously held,
the § 5(f) obligations bind OHA trustees even after funds have
been directed to OHA by the state. See Akaka I, 928 F.2d at
827 (“So long as § 5(f) trust income remained in the hands of
the state, as it did when transferred from the § 5(f) corpus to
the OHA corpus, the § 5(f) obligations applied.”); cf. Akaka
II, 3 F.3d at 1222 (“[T]he issue here is whether the [OHA]
trustees breached their fiduciary duties under the Admission
Act by expending trust funds for purposes other than those set
out in § 5(f).”). How Hawaii spends other, nontrust money on
trust purposes is irrelevant. Although § 5(f) gives Hawaii con-
siderable flexibility to choose the manner in which it shall
manage the trust, it cannot ignore the fundamental principle
of trust law that a trustee’s obligations (however broad or nar-
row they may be) apply with respect to the particular property
or money in the corpus. Those obligations generally cannot be
discharged through the use of property or money outside the
corpus. Cf. Akaka I, 928 F.2d at 826 (“Because the OHA
share of ‘public trust’ income at issue in this case derives
directly from the § 5(b) lands, § 5(f)’s limitation on uses
applies to that income.” (emphasis added)); Restatement
(Third) of Trusts § 2 (“Definition of Trust”) (“A trust, as the
10706 DAY v. APOLIONA
term is used in this Restatement . . . is a fiduciary relationship
with respect to property . . . subjecting the person who holds
title to the property to duties to deal with it for the benefit of
charity or for one or more persons, at least one of whom is not
the sole trustee.” (emphasis added)).
IV. CONCLUSION
[14] We hold that, although § 5(f) permits Hawaii to
impose further rules and restrictions on management of the
§ 5(f) trust, it does not require the state and its agents to abide
by those rules and restrictions as a matter of federal law.
Those alleged violations are actionable under state law, if at
all. We therefore affirm the district court’s summary judg-
ment in favor of the OHA trustees. The trustees have estab-
lished as a matter of law that each of the challenged
expenditures constitutes a “use” “for one or more of the
[§ 5(f)] purposes” and that is sufficient to defeat plaintiffs’
§ 1983 claim under federal law for breach of the § 5(f) trust.
AFFIRMED.