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 No. 06-16625
CARPENTER; DONALD CATALUNA;
LINDA KEAWE’EHU DELA CRUZ; D.C. No.
CV-05-00649-SOM
COLETTE Y. PI’IPI MACHADO; BOYD
P. MOSSMAN; OSWALD K. STENDER; OPINION
JOHN D. WAIHEE, IV, Trustees of
the Office of Hawaiian 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.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, District Judge, Presiding
9425
9426 DAY v. APOLIONA
Argued and Submitted
June 5, 2007—Honolulu, Hawaii
Filed August 7, 2007
Before: David R. Thompson, Marsha S. Berzon, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge Berzon
9428 DAY v. APOLIONA
COUNSEL
Walter R. Schoettle, Honolulu, Hawaii, for the plaintiffs-
appellants.
Robert G. Klein, Honolulu, Hawaii, for defendants-appellees
Apoliona, et al.
Charleen M. Aina, Deputy Attorney General, Honolulu,
Hawaii, for defendants-appellees Hee and Ota.
William J. Wynhoff, Deputy Attorney General, Honolulu,
Hawaii, for amicus curiae, State of Hawaii.
OPINION
BERZON, Circuit Judge:
The Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4
(1959) (“Admission Act”) granted Hawaii title to most of the
federal government’s public land within the state, id. at
§ 5(b)-(e), 73 Stat. at 5-6, and required the state to hold that
land and profits from it in “public trust” for five purposes, id.
at § 5(f), 73 Stat. at 6. One such purpose is “for the betterment
of the conditions of Native Hawaiians.” Id. The other pur-
poses — 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.
The plaintiffs in this case, whom we call “Day” after the
first-named of them, are Native Hawaiians, defined under fed-
eral law as “descendant[s] of not less than one-half part of the
blood of the races inhabiting the Hawaiian Islands previous to
1778.” Hawaiian Homes Commission Act, Pub. L. No. 67-34,
42 Stat. 108 (1921) (“HHCA”); see generally Rice v. Caye-
tano, 528 U.S. 495, 507 (2000).1 Based on the Admission Act
1
Hawaii state law similarly defines the term “Native Hawaiians.”
Hawaii separately defines the term “Hawaiians” as any descendants —
DAY v. APOLIONA 9429
and state law, these Native Hawaiians contend that the defen-
dants, current and former trustees of the state’s Office of
Hawaiian Affairs (“OHA”), have not properly considered eth-
nic distinctions in spending the assets of the Admission Act
trust (“§ 5(f) trust”). To enforce their asserted right to ensure
that the § 5(f) trust funds are spent in accordance with the
Admission Act’s specifications, Day filed suit under 42
U.S.C. § 1983.
A considerable line of precedent in this circuit holds that
Native Hawaiians, as beneficiaries of the § 5(f) trust, have a
right under the Admission Act that is enforceable by § 1983.
The district court, however, held to the contrary, taking the
view that recent Supreme Court cases have so undermined our
prior case law that suits like this one may no longer be main-
tained. After a careful comparison of our prior cases with the
recent Supreme Court § 1983 cases on which the district court
relied, we cannot agree that there is a conflict sufficient to jus-
tify a district court or a three-judge panel of this court disre-
garding well-established precedent. We therefore reverse the
district court’s dismissal of the case and, without expressing
any opinion of the merits of Day’s allegations, remand for
further proceedings.2
regardless of exact ancestry or “blood” quantum — of certain aboriginal
peoples inhabiting the Hawaiian Islands in 1778. Haw. Rev. Stat. § 10-2.
We use the terms “Native Hawaiian” and “Hawaiian” as they are defined
in federal and state law, respectively.
2
No standing issue has been raised. We do, of course, have an obliga-
tion to consider Article III standing independently, as we lack jurisdiction
when there is no standing. See Bernhardt v. County of L.A., 279 F.3d 862,
868 (9th Cir. 2002). Day’s allegations, however, are analogous to those in
Price v. Hawaii, 764 F.2d 623 (9th Cir. 1985), in which we concluded that
Native Hawaiians alleging a breach of the § 5(f) trust for failure to spend
funds for the betterment of Native Hawaiians had standing to do so. Id. at
630; see also Price v. Akaka, 928 F.2d 824, 826-27 (9th Cir. 1991)
(“Akaka I”). We are bound by the two Price cases on the standing issue,
and so do not consider the matter further.
9430 DAY v. APOLIONA
I. PROCEDURAL HISTORY
State law assigns to the OHA the promotion of “[t]he bet-
terment of conditions of Native Hawaiians . . . [and] Hawai-
ians.” Haw. Rev. Stat. § 10-3. To effectuate this assignment,
OHA receives a portion of the § 5(f) trust monies, which it is
to devote “to the betterment of the conditions of Native
Hawaiians,” id. at § 10-3(1).3 The agency receives other funds
as well, which it uses to fund projects that do not meet the
§ 5(f) restrictions. See generally Rice, 528 U.S. at 508-09.
In this case, Day alleges that OHA misspent § 5(f) trust
funds in two ways: (1) by lobbying in favor of a federal bill
(the “Akaka Bill”) “that purports to create a Native Hawaiian
Governing Entity to be established by persons . . . without
regard to the blood quantum requirements set out under
HHCA,”4 and (2) by supporting three social service programs
whose “funds are not subject to the limitation that they may
3
The § 5 grant included approximately “200,000 acres [formerly] set
aside [as “Hawaiian homelands” to benefit Native Hawaiians] under the
Hawaiian Homes Commission Act and almost 1.2 million additional acres
of land.” Rice, 528 U.S. at 507. OHA receives twenty percent of the reve-
nue from the 1.2 million additional acres. Haw. Rev. Stat. § 10-13.5. A
different agency, the Department of Hawaiian Home Lands, administers
the 200,000 acres that were set aside by the HHCA. Haw. Rev. Stat. § 26-
17; see generally Rice, 528 U.S. at 509. We have not previously decided
whether the HHCA lands may be used for the purposes specified in § 5(f)
or only for the more restricted uses specified in the HHCA. See Admission
Act § 4, 73 Stat. at 5; Keaukaha-Panaewa Cmty. Ass’n v. Hawaiian
Homes Comm’n, 588 F.2d 1216, 1218-19 & n.2 (9th Cir. 1979)
(“Keaukaha I”); see also Akaka I, 928 F.2d at 826 n.1 (“A ‘compact’
between Hawaii and the United States strictly limits the manner in which
Hawaii may manage the homelands and the income they produce.”). We
do not decide that question today either, as Day challenges only the use
of funds managed by the OHA.
4
The complaint, first filed in 2005, refers to the Native Hawaiian Gov-
ernment Reorganization Act of 2005, S. 147, 109th Cong. (2005). In the
current Congress, a largely identical bill has been introduced as the Native
Hawaiian Government Reorganization Act of 2007, S. 310/H.R. 505,
110th Cong. (2007).
DAY v. APOLIONA 9431
be expended only for the betterment of the conditions of
‘native Hawaiians.’ ”5 Such expenditures, the amended com-
plaint alleges, are inconsistent with the purposes listed in
§ 5(f) and constitute a violation of (1) the Admissions Act and
the HHCA, enforceable by 42 U.S.C. § 1983; (2) the Equal
Protection Clause of the Fourteenth Amendment; and (3) a
state common law statutory duty of fidelity, see Haw. Rev.
Stat. § 10-16(c)). Day seeks an accounting; monetary, injunc-
tive, and declaratory relief; and attorneys’ fees.
The district court sua sponte dismissed the amended com-
plaint. Ruling on an argument raised not by the defendants but
by the state of Hawaii in an amicus curiae brief, the court held
that the complaint failed to allege any Admission Act viola-
tion enforceable under § 1983. The court additionally con-
cluded that the Equal Protection allegations failed to state a
claim and dismissed the state law claims as a matter of discre-
tion. See 28 U.S.C. § 1367(c)).
Day does not contest the dismissal of his Equal Protection
claims or the discretionary dismissal of the state claims. He
also does not contest the dismissal of all claims against the
two defendants, Clayton Hee and Charles Ota, who are former
rather than current trustees.6 We thus consider only whether
5
The three social service programs named in the complaint are the
Native Hawaiian Legal Corporation, the Na Pua No’eau Education Pro-
gram, and Alu Like, Inc. In their motions for summary judgment before
the district court, the parties submitted a substantial amount of information
about the activities of these programs and the grants they received from
OHA. As we do not rule on those motions, the additional facts — disputed
or not — are irrelevant to this appeal.
6
Before dismissing the amended complaint, the district court granted
summary judgment in favor of the former trustees on the basis of the
§ 1983 statute of limitations. The court allowed Day to amend the com-
plaint to address the issue, however, and defendants Hee and Ota were
again named in the amended complaint. As noted, the dismissal of the
claims against Hee and Ota is no longer contested. We affirm the dis-
missal of the complaint as to those defendants.
9432 DAY v. APOLIONA
Day’s Admission Act cause of action against the remaining
defendants, all current trustees, rests on a right enforceable
under § 1983.
Dismissal of a § 1983 claim for the lack of an enforceable
right amounts to dismissal for failure to state a claim, pursu-
ant to Federal Rule of Civil Procedure 12(b)(6). See Bollard
v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 950-51
(9th Cir. 1999); United States v. Stanley, 483 U.S. 669, 691
n.7 (1987). We review such a dismissal de novo. Adams v.
Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004).7
II. ANALYSIS
The question in this case, whether a violation of § 5(f) of
the Admission Act is enforceable via § 1983, is not new to
this court. Over the last two decades, we have established the
broad contours of Native Hawaiians’ right to sue for breach
of the state’s § 5(f) trust obligations and held that § 5(f) does
not create an implied private right of action for breach of the
§ 5(f) trust, see Keaukaha I, 588 F.2d 1216, but does create
a right enforceable via 42 U.S.C. § 1983, see Price v. Akaka,
3 F.3d 1220 (9th Cir. 1993) (“Akaka II”); Keaukaha-Panaewa
Cmty. Ass’n v. Hawaiian Homes Comm’n, 739 F.2d 1467 (9th
7
On appeal, as before the district court, the defendants take no position
with regard to the § 1983 right because, as their attorney explained at oral
argument, doing so could present the defendants, as trustees, with a con-
flict with the Native Hawaiians whose interests they have a fiduciary obli-
gation to forward. The state, as amicus, alone argues that the complaint
was properly dismissed. “Generally, we do not consider on appeal an issue
raised only by an amicus.” United States v. Gementera, 379 F.3d 596, 607
(9th Cir. 2004) (quoting Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.
1993)). Here, however, the issue addressed by the state is at the heart of
the district court’s order. Day, therefore, advisedly, addressed the question
in his opening brief. Except where noted, the amicus brief does not go
beyond the scope of Day’s argument.
DAY v. APOLIONA 9433
Cir. 1984) (“Keaukaha II”). We have repeatedly applied this
latter holding.8
The district court concluded, however, that Akaka II’s hold-
ing is no longer good law because it has been effectively
overruled by Gonzaga University v. Doe, 536 U.S. 273
(2002). There are indeed circumstances in which a district
court or a three-judge panel of this court can disregard circuit
precedent because of intervening Supreme Court authority:
“[W]here intervening Supreme Court authority is clearly
irreconcilable with our prior circuit authority[,] . . . a three-
judge panel of this court and district courts should consider
themselves bound by the intervening higher authority and
reject the prior opinion of this court as having been effectively
overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). But, this is simply not one of those instances.
Gonzaga and other recent Supreme Court cases concerning
§ 1983 rights have not so changed the law that it is now irrec-
oncilable with our prior cases. The Miller standard is thus not
met, and we (and the district court) are bound by our earlier
precedent. Therefore, the district court should not have dis-
missed the case for failure to allege a right enforceable under
§ 1983.
A. Breach of trust actions under the Admission Act
Before explaining our conclusion regarding the impact of
Gonzaga, we set the scene by describing our existing case law
regarding the enforcement of the § 5(f) trust by beneficiaries
in some detail.
Section 5(f) of the Admissions Act provides that the rele-
vant lands and income from them
8
See Hou Hawaiians v. Cayetano, 183 F.3d 945, 948 (9th Cir. 1999);
Price v. Hawaii, 939 F.2d 702, 706 (9th Cir. 1991); Price v. Hawaii, 921
F.2d 950, 954-56 (9th Cir. 1990); Price v. Akaka, 915 F.2d 469, 472 (9th
Cir. 1990); Ulaleo v. Paty, 902 F.2d 1395, 1397 (9th Cir. 1990); Price v.
Hawaii, 764 F.2d 623, 628 (9th Cir. 1985).
9434 DAY v. APOLIONA
shall be held by said State as a public trust for the
support of the public schools and other public educa-
tional institutions, for the betterment of the condi-
tions of Native Hawaiians, as defined in the
Hawaiian Homes Commission Act, 1920, as
amended, for the development of farm and home
ownership on as widespread a basis as possible for
the making of public improvements, and for the pro-
vision 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 man-
ner as the constitution and laws of said State may
provide, and their use for any other object shall con-
stitute a breach of trust for which suit may be
brought by the United States.
73 Stat. at 6 (emphasis added).
[1] Prior to Gonzaga, we twice explicitly held that because
it creates a trust, § 5(f) also creates a right enforceable under
§ 1983 by the trust’s beneficiaries. In Keaukaha II, we
reached that conclusion by relying on “a presumption that a
federal statute creating enforceable rights may be enforced in
a section 1983 action.” 739 F.2d at 1470 (citing Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 51 (1981)
(White, J. dissenting in part)). Our primary concern was
whether the § 1983 remedy was foreclosed by the statute’s
public remedy. Earlier, in Keaukaha I, 588 F.2d 1216, we had
concluded that the Admission Act did not create a implied pri-
vate cause of action in part because the Act allowed the
United States to sue for breach of trust. Id. at 1223-24. But in
Keaukaha II, we concluded that the public remedy did not
foreclose a § 1983 action because of the presumption in favor
of a § 1983 remedy where a statute creates enforceable rights.
739 F.2d at 1470.
Keaukaha II recognized that “[t]here remains a question . . .
whether the Admission Act created a federal ‘right’ enforce-
DAY v. APOLIONA 9435
able under section 1983.” Id. at 1471. While we observed that
“[t]he Admission Act clearly mandates establishment of a
trust for the betterment of native Hawaiians,” we did not dis-
cuss the question in any detail, because “[t]he defendants
[did] not seriously contend that plaintiffs have no enforceable
rights.” Id.
Our next substantive discussion of the issue was in Akaka
I, 928 F.2d at 826-27. Akaka I considered Native Hawaiians’
claim that OHA trustees violated § 5(f) by comingling § 5(f)
trust funds with other funds, and by not spending the trust
funds to benefit Native Hawaiians or to serve the other § 5(f)
purposes. Id. at 826. We did not directly address the question
of whether the statute created an enforceable right. But we
did discuss the plaintiffs’ rights, in explaining why they
had standing even though the trustees could legally spend
the § 5(f) funds for purposes other than to benefit Native
Hawaiians:
We recently considered this very question, and deter-
mined that allegations such as those Price has made
are sufficient to show an ‘injury in fact.’ See Price
[v. State of Hawaii, 764 F.2d 623, 630 (9th Cir.
1985) ]. In addition, allowing Price to enforce § 5(f)
is consistent with the common law of trusts, in which
one whose status as a beneficiary depends upon the
discretion of the trustee nevertheless may sue to
compel the trustee to abide by the terms of the trust.
Akaka I, 928 F.2d at 826-27.
Drawing directly on Akaka I, we explicitly returned in
Akaka II, 3 F.3d 1220, to the enforceable rights question iden-
tified in Keaukaha II. That case addressed an issue similar to
the one at bar: whether Keaukaha II had been effectively
overruled by the Supreme Court’s analysis of the “rights” ele-
ment of § 1983 in Suter v. Artist M., 503 U.S. 347 (1992),
which concluded that there was no enforceable right in the
9436 DAY v. APOLIONA
provisions of the Adoption Act of 1980 requiring states to
meet certain prerequisites before receiving federal reimburse-
ment for certain expenses related to adoption and foster care
services. See Akaka II, 3 F.3d at 1224-26.
Akaka II held that Keaukaha II had not been so overruled.
We explained why § 5(f) created an enforceable right by cit-
ing to Akaka I:
The instant case involves a public trust, and under
basic trust law principles, beneficiaries have the right
to “maintain a suit (a) to compel the trustee to per-
form his duties as trustee; (b) to enjoin the trustee
from committing a breach of trust; [and] (c) to com-
pel the trustee to redress a breach of trust.” Restate-
ment 2d of the Law of Trusts, § 199; see also id.
§ 200, comment a. We have accordingly held that
“allowing Price to enforce § 5(f) is consistent with
the common law of trusts, in which one whose status
as a beneficiary depends upon the discretion of the
trustee nevertheless may sue to compel the trustee to
abide by the terms of the trust.” Akaka I, 928 F.2d
at 826-27.
Our decisions in Keaukaha II, 739 F.2d at 1472,
and Akaka I, 928 F.2d at 828, holding that beneficia-
ries of the public trust created by Congress may
bring a § 1983 claim are consistent with the Supreme
Court’s decision in Suter. Congress enacted the
Admission Act, a federal public trust, which by its
nature creates a federally enforceable right for its
beneficiaries to maintain an action against the trustee
in breach of the trust. As a beneficiary, Price may
therefore bring a § 1983 action under the Hawaii
Admission Act against the trustees.
Id. at 1224-25 (internal parenthetical omitted).
DAY v. APOLIONA 9437
[2] Akaka II’s reliance on trust law was not unique. Unify-
ing most of our § 5(f) case law is the understanding that
because they are designated as a “public trust,” § 5(f) funds
are governed by a set of trust law principles that have proce-
dural as well as substantive implications. Akaka I’s discussion
of standing, quoted earlier, drew on the funds’ status as a trust.9
See Akaka I, 928 F.2d at 826-27. Furthermore, although we
have as yet said little on the merits of § 5(f) claims, we have
strongly suggested, if not explicitly held, that trust law princi-
9
In a concurring opinion in Rice v. Cayetano, Justice Breyer expressed
concern that the relationship between OHA and Native Hawaiians was not
analogous to a trust for an Indian tribe. See Rice, 528 U.S. at 524-257
(Breyer, J. concurring). Justice Breyer noted that, unlike a trust for an
Indian tribe, the lands ceded in the Admission Act are to benefit “all the
people of Hawaii,” not simply Native Hawaiians. Id. at 525. Furthermore,
unlike an Indian trust, OHA has “funding . . . from several different
sources” other than § 5(f) trust funds. Id.
Justice Breyer’s characterization of OHA is accurate. The differences he
describes between Indian trusts and the OHA, however, while perhaps rel-
evant to the question at issue in Rice — about election of OHA officials
— are not pertinent to this case or our prior applications of trust principles
to § 5(f) claims for two reasons. First, at issue in this case and our prior
related cases is only a portion of the OHA funds, those funds covered by
§ 5(f) and denominated by federal statute as held in “public trust.” At issue
in Rice, on the other hand, was the election of officials who managed all
of OHA’s assets, including funds that are not covered by § 5(f).
Second, in contrast with the Hawaiian governor’s apparent position in
Rice, this case is not based on any implicit assumption that Native
Hawaiians and Hawaiians are the only intended beneficiaries of the § 5(f)
trust. Our discussions of standing, rights of action, and the scope of the
§ 5(f) restrictions have arisen in cases brought by Native Hawaiian indi-
viduals and groups. But neither our prior case law nor our discussion
today suggests that as a matter of federal law § 5(f) funds must be used
for the benefit of Native Hawaiians or Hawaiians, at the expense of other
beneficiaries. For example, our holding in Akaka I that Native Hawaiians
have standing to sue to enforce the § 5(f) trust draws on the common law
regarding trusts that, like this one, have multiple potential beneficiaries or
are defined as “public.” See Akaka I, 928 F.2d at 827 (citing Restatement
2d of the Law of Trusts, § 214(1), comment a (regarding the rights of mul-
tiple beneficiaries), and § 391 (regarding which beneficiaries may sue to
enforce the terms of a public charitable trust)).
9438 DAY v. APOLIONA
ples guide the merits of any § 5(f) claims. If nothing else, the
words “public trust” in the Admission Act “betoken the
State’s duty to avoid deviating from section 5(f)’s purpose.”
Price v. Hawaii, 921 F.2d at 955-56. But see id. at 955 (con-
cluding that because the Hawaii Admission Act “confers a
broad authority upon the State,” it does not impose any duties
on the state regarding the management of the § 5(f) funds).
And we have implied that the “body of law [applicable] for
the purpose of enforcing” this duty likely draws on the com-
mon law of trusts. Id. (“There is no free floating federal com-
mon law of trusts, but we have no doubt that we would have
the power to formulate a body of law for the purpose of
enforcing the Act if that were appropriate under the circum-
stances. No doubt that would not present insuperable difficul-
ties, since the common law of trusts is well developed in this
country and speaks with a good deal of uniformity across the
length and breadth of the land.” (citations omitted)).10
10
Courts have frequently looked to the common law of trusts to guide
resolution of two sets of related claims: those concerning the federal gov-
ernment’s management of Indian assets for which the government has a
fiduciary duty, see United States v. Mitchell, 463 U.S. 206, 226 (1983),
and those related to states’ management of land granted to them in trust
by the United States, see Branson Sch. Dist. RE-82 v. Romer, 161 F.3d
619, 637 (10th Cir. 1998); United States v. 111.2 Acres of Land, 293 F.
Supp. 1042, 1049 (E.D. Wash. 1968), aff’d by, 435 F.2d 561 (9th Cir.
1970) (per curiam, adopting the district court opinion); Kadish v. Ariz.
State Land Dep’t, 747 P.2d 1183, 1186-87 (Ariz. 1987); County of Ska-
mania v. State, 685 P.2d 576, 579-80 (Wash. 1984) (en banc).
Although we do not address the merits of Day’s claims, we note for the
sake of example and clarity that the common law of trusts offers guidance
on two of the issues that Day’s claims present: (1) how a court should
determine whether activities funded by the trust funds are “for the better-
ment” of Native Hawaiians, and (2) whether trust funds can be spent in
a way that serves Native Hawaiians, but also, incidentally, benefits other
individuals. One treatise suggests:
To the extent to which the trustee has discretion, the court will
not control his exercise of it as long as he does not exceed the
limits of the discretion conferred upon him. . . . Even where the
trustee has discretion, however, the court will not permit him to
abuse the discretion. This ordinarily means that so long as he acts
DAY v. APOLIONA 9439
Thus, Akaka II constitutes an integral part of our § 5(f)
jurisprudence. A change in its holding would have substan-
tive, as well as procedural, impact.
With the context set, we turn to the sole issue in this case:
whether Akaka II remains the law of this circuit.
B. The effect of recent Supreme Court cases
After Akaka II was decided, two Supreme Court cases —
Blessing v. Freestone, 520 U.S. 329 (1997), and Gonzaga,
536 U.S. 273 — summarized, explained, and, on some points,
refined the law regarding when a statute creates a right
enforceable under § 1983. The two cases are now the natural
starting point for analysis of the issue. See generally Ball v.
Rodgers, No. 04-16963, ___ F.3d ___, 2007 WL 2034043, at
*6-7 (9th Cir. July 17, 2007). Nevertheless, neither “under-
cut[s] the theory or reasoning underlying [Akaka II ] in such
a way that the cases are clearly irreconcilable.”11 Miller, 335
not only in good faith and from proper motives, but also within
the bounds of a reasonable judgment, the court will not interfere;
but the court will interfere when he acts outside the bounds of a
reasonable judgment.
Austin W. Scott & William F. Fratcher, 3 The Law of Trusts § 187 (4th
Ed. 2001).
11
The state of Hawaii, as amicus, also suggests that we should recon-
sider Akaka II in light of City of Rancho Palos Verdes v. Abrams, 544 U.S.
113 (2005). But, Abrams does not address whether a statute creates an
enforceable right, as the defendants did not dispute that point. Id. at 120-
21. Instead, Abrams concerned whether a § 1983 remedy for an acknowl-
edged enforceable right was foreclosed by the availability of other reme-
dies. Id. Hawaii suggests that Abrams requires a change in Keaukaha II’s
related conclusion: that the public remedy in § 5(f) does not foreclose pri-
vate enforcement. But that question is beyond the scope of this appeal. It
is raised only in the amicus brief and was not addressed by the district
court. See United States v. Gementera, 379 F.3d 596, 607-08 (9th Cir.
2004). We further note that with regard to alternative remedies, Abrams
simply applies two Supreme Court cases, Middlesex County Sewerage
Authority v. National Sea Clammers Association, 453 U.S. 1 (1981) and
Smith v. Robinson, 468 U.S. 992 (1984), both of which pre-dated Akaka
II and Keaukaha II. See Abrams, 544 U.S. at 121.
9440 DAY v. APOLIONA
F.3d at 900. Whether or not we would reach the same result
as the Akaka II panel today, neither Blessing nor Gonzaga so
affected the reasoning of Akaka II that the case has lost its
binding force.
Blessing, for one, did not change the law relevant to Akaka
II’s analysis. The Court in Blessing listed three factors to use
in identifying which statutes create rights enforceable under
§ 1983:
First, Congress must have intended that the provision
in question benefit the plaintiff. Second, the plaintiff
must demonstrate that the right assertedly protected
by the statute is not so vague and amorphous that its
enforcement would strain judicial competence.
Third, the statute must unambiguously impose a
binding obligation on the States.
520 U.S. at 340-41(citations and quotation marks omitted).
But while this “test” has since evolved into an analytical
touchstone, see, e.g., Sanchez v. Johnson, 416 F.3d 1051,
1056-57 (9th Cir. 2005), Blessing did not create these factors
from scratch. Rather, Blessing succinctly summarized three
factors that the court had “traditionally looked at . . . when
determining whether a particular statutory provision gives rise
to a federal right.” 520 U.S. at 340. And, Blessing drew those
factors from two cases decided prior to Akaka II: Wright v.
Roanoke Redevelopment and Housing Authority, 479 U.S.
418, 430-32 (1987) and Wilder v. Virginia Hospital Ass’n.,
496 U.S. 498, 509-12 (1990), the latter of which discussed all
three factors later summarized by Blessing.
Not surprisingly, then, Akaka II’s reasoning is consistent
with the three factors summarized in Blessing. By discussing
the beneficiaries’ rights and the corollary duties of trustees
implied by the word “trust,” the opinion addresses implicitly
— and reasonably — the first and third factors in Blessing:
that “Congress . . . intended that the provision in question
DAY v. APOLIONA 9441
benefit the plaintiff,” and that “the statute . . . unambiguously
impose a binding obligation on the States.” Blessing, 520 U.S.
at 340-41; Akaka II, 3 F.3d at 1224-25. Because it is based on
routinely enforced principles of trust law, Akaka II’s holding
is also not “clearly irreconcilable” with the second Blessing
requirement that a right be concrete enough to enforce.
[3] For similar reasons, we conclude that Akaka II is also
not clearly irreconcilable with Gonzaga, 536 U.S. 273.
Although Gonzaga arguably shifted the focus of § 1983 anal-
ysis more than Blessing, it did not so change § 1983 law as
to create an irreconcilable conflict with Akaka II.
Clarifying a source of potential tension in earlier cases,
Gonzaga enunciated three holdings concerning identification
of § 1983 rights. First, the Supreme Court made clear that
nothing “less than an unambiguously conferred right is
enforceable by § 1983.” 536 U.S. at 282. In other words,
“broader or vaguer ‘benefits’ or ‘interests’ ” are not enforce-
able under §1983. Id. at 283. Second, Gonzaga mandated that
“implied right of action cases should guide the determination
of whether a statute confers rights enforceable under § 1983,”
because the two inquiries “overlap in one meaningful respect
— in either case we must first determine whether Congress
intended to create a federal right.” Id. Third, Gonzaga offered
guidance for discerning the relevant congressional intent,
emphasizing that “[f]or a statute to create such private rights,
its text must be ‘phrased in terms of the persons benefited.’ ”
Id. at 284 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677,
692 n.13 (1979)). In other words, “ ‘rights-creating’ language
[is] critical to showing the requisite congressional intent to
create new rights.” Id. at 287 (citing Alexander v. Sandoval,
532 U.S. 275, 288-89 (2001)).
As applied to the Admission Act, these three holdings nei-
ther dramatically change the law on which Akaka II relied nor
create an irreconcilable conflict with the Akaka II reasoning.
9442 DAY v. APOLIONA
Like Blessing, Gonzaga largely repeats rather than undercuts
the law upon which Akaka II rested.
Suter, for example, stated that the key inquiry in § 1983
cases is “whether the [statutory] language in question created
‘enforceable rights, privileges, or immunities within the
meaning of § 1983. . . . Section 1983 speaks in terms of
‘rights, privileges, or immunities,’ not violations of federal
law.” 503 U.S. at 357 (alterations and quotation marks omit-
ted) (emphasis in original). Akaka II quoted this holding, and
applied it by recognizing the right of beneficiaries to enforce
trust obligations. 3 F.3d at 1224-25. Rather than suggesting an
alternative form of analysis, Gonzaga repeated Suter’s obser-
vation as its first holding, stating that because “Section 1983
provides a remedy only for the deprivation of ‘rights, privi-
leges, or immunities secured by the Constitution and laws’ of
the United States. . . . it is rights, not the broader or vaguer
‘benefits’ or ‘interests,’ that may be enforced under the
authority of that section.” 536 U.S. at 283.
For similar reasons, Gonzaga’s second holding, recogniz-
ing the overlap between implied right of action cases and
§ 1983 cases, also did not undercut Akaka II. At issue in Gon-
zaga was an apparent conflict between Wilder, a case which
suggested that “implied private right of action cases have no
bearing on the standards for discerning whether a statute
creates rights enforceable by § 1983,” Gonzaga, 536 U.S. at
283 (citing Wilder, 496 U.S. at 508-09 & n.4), and Suter,
which “appear[ed] to disavow” that notion, id. (citing Suter,
503 U.S. at 363-64). Gonzaga explicitly adopted the approach
of Suter, the case with which Akaka II was primarily con-
cerned.
Suter also previewed Gonzaga’s third holding with regard
to clear statutory language.12 Prior to Gonzaga, Suter held that
12
We note that it is not self-evident that Gonzaga’s third holding,
regarding statutory language, applies to § 5(f) of the Admission Act. Gon-
DAY v. APOLIONA 9443
rights must be conferred “unambiguously” by statutory lan-
guage. See Suter, 503 U.S. at 358, 363. Specifically, Suter
held that the statute at issue, the Adoption Act, did not create
enforceable rights because, “[c]areful examination of the lan-
guage . . . does not unambiguously confer an enforceable right
upon the Act’s beneficiaries.” Id. at 363. Gonzaga quoted this
holding with approval, summarizing it as a recognition that
“[s]ince the [Adoption] Act conferred no specific, individu-
ally enforceable rights, there was no basis for private enforce-
ment, even by a class of the statute’s principal beneficiaries.”
536 U.S. at 281; see also id. 283 (approving Suter’s reason-
ing); id. at 287 (emphasizing the need for statutory language
that confers individual entitlements).13
zaga’s primary concern was the creation of enforceable rights by statutes
enacted under the Spending Clause of the Constitution, art. 1, § 8, cl. 1.
Although much of Gonzaga’s discussion is in general terms, the Court
introduced its analysis with the observations that “[w]e made clear [in
Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)),]
that unless Congress speaks with a clear voice, and manifests an unambig-
uous intent to confer individual rights, federal funding provisions provide
no basis for private enforcement. . . . Since Pennhurst, only twice have we
found spending legislation to give rise to enforceable rights.” 536 U.S. at
280 (citations and alterations omitted; emphasis added). Furthermore,
Gonzaga cited with approval Golden State Transit Corp. v. City of Los
Angeles, 493 U.S. 103 (1989), which held — in contrast with Gonzaga’s
focus on statutory language — that a non-Spending Clause statute could
create rights by structural implication. See Gonzaga, 536 U.S. at 285; Gol-
den State, 493 U.S. at 111-12.
We do not pursue this possible distinction further, however. Doing so
would entail a determination of the constitutional basis for the enactment
of § 5(f) and a comparison of that basis with the Spending Clause jurispru-
dence, issues that have not been briefed. Instead, we assume that the third
prong of Gonzaga is fully applicable to § 5(f).
13
“In response to the Court’s reasoning in Suter, Congress enacted 42
U.S.C. § 1320a-2, sometimes called the “Suter fix”. See Watson v. Weeks,
436 F.3d 1152, 1158 (9th Cir. 2006); ASW v. Oregon, 424 F.3d 970, 977
n.11 (9th Cir. 2005). Section 1320a-2 did not change the analysis in Suter
applicable here and thus has no pertinence to the issues in this case.
9444 DAY v. APOLIONA
As Suter was decided before and discussed in Akaka II, and
Gonzaga on this point simply reaffirms Suter, we are not at
liberty to disagree with Akaka II’s holding that the Admission
Act’s language clearly creates an individual right. The state
nevertheless argues that Akaka II’s reasoning is irreconcilable
with Gonzaga’s command to identify unambiguous statutory
language. Even if we had authority to consider that question,
we would see no such resounding conflict.
[4] In accordance with Gonzaga’s emphasis on statutory
language, Akaka II’s analysis is based on the Admission Act’s
explicit use of the term “trust.” The opinion’s conclusion that
the word “trust” refers unambiguously to a body of law
describing the rights of individual beneficiaries to enforce the
§ 5(f) terms with regard to any particular expenditure of the
§ 5(f) funds may not be the only reasonable conclusion, but
it is certainly colorable, and thus, reconcilable with Gonzaga.
Gonzaga’s emphasis on an unambiguous conferral of rights
is essentially a clear statement rule that, like such rules in
other contexts, reflects the principle that, “[i]n traditionally
sensitive areas, such as legislation affecting the federal bal-
ance, the requirement of clear statement assures that the legis-
lature has in fact faced, and intended to bring into issue, the
critical matters involved in the judicial decision.” Will v.
Michigan Dep’t of State Police, 491 U.S. 58, 65 (1989) (quot-
ing United States v. Bass, 404 U.S. 336, 349 (1971)); see, e.g.,
Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (regarding fed-
eral preemption of states’ authority to choose their own offi-
cers); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242
(1985) (regarding abrogation of states’ sovereign immunity);
Pennhurst State School and Hospital v. Halderman, 465 U.S.
89, 99 (1984) (same); South Dakota v. Dole, 483 U.S. 203,
207 (1987) (regarding imposition of conditions on states
under Spending Clause statutes). But Gonzaga does not signal
that comprehensive statutory enunciation of a right and of its
beneficiaries is always essential. Instead, Supreme Court pre-
cedent shows that statutory cross-references, references to
DAY v. APOLIONA 9445
established legal principles, and other devices that, when fol-
lowed to their sources, supply a clear message, can suffice to
create a right.
As discussed above, supra note 12, Gonzaga cites with
approval Golden State Transit Corp., 493 U.S. 103 (1989), a
case in which the Supreme Court concluded that a statute cre-
ated rights by structural implication. See Gonzaga, 536 U.S.
at 285. Gonzaga makes no mention of Livadas v. Bradshaw,
512 U.S. 107, 133-34 (1994), but that case reaches a conclu-
sion similar to that of Golden State. Both Golden State and
Lividas recognized a principle that could conflict with some
readings of Gonzaga: “A rule of law [regarding the rights
imposed by a statute] that is the product of judicial interpreta-
tion of a vague, ambiguous, or incomplete statutory provision
is no less binding than a rule that is based on the plain mean-
ing of a statute.” Golden State, 493 U.S. at 112 (quoted in
Lividas, 512 U.S. at 134 ). But unless and until the Supreme
Court says otherwise, we must assume that this principle from
Golden State is consistent with Gonzaga and remains good
law.
Once Gonzaga is understood in light of the Golden State
line of cases, it becomes clear that Akaka II’s analysis is rec-
oncilable with Gonzaga’s clear statement rule. Under the
Golden State principle, Akaka II’s analysis — based on judi-
cial interpretation of the term “trust” — is undoubtedly sound.
Akaka II relies on a much more straightforward, language-
based statutory analysis than did Golden State.
Furthermore, the term “trust,” when paired with the statu-
tory reference to “breach of trust” actions and in light of the
common law consequences that attached to the use of the
term, is reasonably read to indicate plainly that the trustees
have a duty not to breach the trust and that the trust’s benefi-
ciaries have corresponding rights to enforce it with regard to
each expenditure of § 5(f) funds. Indeed, Akaka II is nothing
more than a straightforward application of a statutory inter-
9446 DAY v. APOLIONA
pretation rule that the Supreme Court discussed in the context
of another clear statement analysis:
Where [a legislature] borrows terms of art in which
are accumulated the legal tradition and meaning of
centuries of practice, it presumably knows and
adopts the cluster of ideas that were attached to each
borrowed word in the body of learning from which
it was taken and the meaning its use will convey to
the judicial mind unless otherwise instructed.
INS v. St. Cyr, 533 U.S. 289, 312 n.35 (2001) (quoting Moris-
sette v. United States, 342 U.S. 246, 263 (1952) and applying
the rule to confirm that a statutory limitation on “judicial
review” is not a “clear” limitation on courts’ authority to issue
writs of habeas corpus); see also id. at 311-12 (analyzing the
history and context of the term “judicial review” before reach-
ing a conclusion about its meaning).
C. The district court’s analysis
Our analysis of this issue differs not only in result but also
in approach from that of the district court. The district court
held that after Gonzaga, Akaka II’s reaffirmance that § 5(f)
established a right enforceable under § 1983 was no longer
good law, because that conclusion is irreconcilable with the
Ninth Circuit’s earlier holding in Keaukaha I that there was
no implied private right of action under the Admission Act.
This conclusion was based on a misunderstanding of Gon-
zaga.
The court read Gonzaga to equate the availability of an
implied private right of action with the availability of a right
enforceable under § 1983. But Gonzaga endorsed no such
equation. To the contrary, Gonzaga stressed that “whether a
statutory violation may be enforced through § 1983 is a differ-
ent inquiry than that involved in determining whether a pri-
vate right of action can be implied from a particular statute.
DAY v. APOLIONA 9447
But the inquiries overlap in one meaningful respect — in
either case we must first determine whether Congress
intended to create a federal right.” Gonzaga, 536 U.S. at 283
(quotation marks and citation omitted). In other words, under
Gonzaga, the inquiry into whether there is a federal right is
the same in the context of private rights of action and § 1983
rights. Id. The inquiry into whether there is a private right of
action is different, however, from the inquiry of whether there
is a private right enforceable through § 1983 because an
implied private right of action requires “not just a private right
but also a private remedy.” Alexander v. Sandoval, 532 U.S.
275, 286 (2001); see generally Price v. City of Stockton, 390
F.3d 1105, 1109 n.3 (9th Cir. 2004).
Keaukaha I’s holding that the Admission Act created no
implied private right of action is thus fully consistent with
Akaka II, after Gonzaga as before. The former did not dis-
avow the existence of a private right; to the contrary,
Keaukaha I suggested there was such a right, but held that
there was no private right of action because the statute created
no remedy for the right. 588 F.2d at 1223-24 (concluding that
the plaintiffs were part of the class for whose benefit the
Admission Act was enacted, but finding no congressional
intent to create a remedy for violations of the act).
[5] Because it is based on a misreading of Gonzaga, the
district court’s conclusion that Gonzaga so conflicts with this
court’s precedents as to require deviation from those prece-
dents cannot stand.
CONCLUSION
[6] We thus reaffirm what we have already held and reaf-
firmed: that each Native Hawaiian plaintiff, as a beneficiary
of the trust created by § 5(f), has an individual right to have
the trust terms complied with, and therefore can sue under
§ 1983 for violation of that right. Violations of this right may
include, at minimum, wrongs of the type of which Day com-
9448 DAY v. APOLIONA
plains: expenditure of funds for purposes not enumerated
under § 5(f). We leave to the district court to interpret those
§ 5(f) purposes to determine in the first instance not only
whether Day’s allegations are true, but also whether the
described expenditures in fact violate § 5(f). In doing so, we
recognize the sore lack of judicial guidance on this point and
the uncertainty that lack of guidance has injected into the poli-
cymaking environment. Cases related to the OHA’s expendi-
ture of funds for Native Hawaiians have reached our court on
numerous prior occasions, but we and the district court have
shed little light on the merits of § 5(f) claims. See generally
Arakaki v. Lingle, 477 F.3d 1048, 1052-53 (9th Cir. 2007)
(citing cases). Absent further foundational issues with Day’s
claim, today’s affirmance of our existing precedent should
permit much-needed elucidation of the substance of § 5(f).14
AFFIRMED in part, REVERSED in part, and
REMANDED.
14
We emphasize once more that we are expressing no view concerning
the merits of the expenditure challenges.