Arakaki v. Lingle , 477 F.3d 1048 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARL F. ARAKAKI; EVELYN C. 
ARAKAKI; EDWARD U. BUGARIN;
SANDRA P. BURGESS; PATRICIA A.
CARROLL; ROBERT M. CHAPMAN;
MICHAEL Y. GARCIA; TOBY M.
KRAVET; JAMES I. KUROIWA;
FRANCES M. NICHOLS; DONNA
MALIA SCAFF; JACK H. SCAFF;
ALLEN TESHIMA; THURSTON TWIGG-
SMITH,
Plaintiffs-Appellants,
ANTHONY SANG, SR., State Council
of Hawaiian Homestead No. 04-15306
Associations (SCHHA); STATE
D.C. No.

COUNCIL OF HAWAIIAN HOMESTEAD
ASSOCIATIONS, CV-02-00139-SOM/
Intervenors-Appellees, KSC
v. OPINION
LINDA C. LINGLE, in her official
capacity as Governor of the State
of Hawaii; HAUNANI APOLIONA,
Chairman, and in her official
capacity as trustee of the Office of
Hawaiian Affairs; ROWENA AKANA,
in his official capacity as trustee
of the Office of Hawaiian Affairs;
DONALD CATALUNA, in his official
capacity as trustee of the Office of
Hawaiian Affairs; LINDA DELA
CRUZ, in her official capacity as

1573
1574 ARAKAKI v. LINGLE
trustee of the Office of Hawaiian 
Affairs; CLAYTON HEE, in his
official capacity as trustee of the
Office of Hawaiian Affairs;
COLETTE Y. MACHADO, in her
official capacity as trustee of the
Office of Hawaiian Affairs;
CHARLES OTA, in his official
capacity as trustee of the Office of
Hawaiian Affairs; OSWALD K.
STENDER, in his official capacity as
trustee of the Office of Hawaiian
Affairs; JOHN D. WAIHEE, IV, in
his official capacity as trustee of
the Office of Hawaiian Affairs;
UNITED STATES OF AMERICA; JOHN
DOES, 1 through 10; GEORGINA 
KAWAMURA, in her official capacity
as Director of the Department of
Budget and Finance; RUSS SAITO,
in her official capacity as
Comptroller and Director of the
Department of Accounting and
General Services; PETER YOUNG, in
his official capacity as Chairman
of the Board of Land and Natural
Resources; SANDRA LEE KUNIMOTO,
in her official capacity as Director
of the Department of Argiculture;
TED LIU, in his official capacity as
Director of the Department of
Business, Economic Development
and Tourism; RODNEY HARAGA, in

ARAKAKI v. LINGLE 1575
his official capacity as Director of 
the Department of Transportation;
QUENTIN KAWANANAKOA, member
of the Hawaiian Homes 
Commission,
Defendants-Appellees.

On Remand from the United States Supreme Court
Filed February 9, 2007
Before: Melvin Brunetti, Susan P. Graber, and Jay S. Bybee,
Circuit Judges.
Opinion by Judge Bybee
ARAKAKI v. LINGLE 1579
COUNSEL
H. William Burgess, Honolulu, Hawaii, for the plaintiffs-
appellants.
Sherry P. Broder, Honolulu, Hawaii; Girard D. Lau, Charleen
M. Aina, Office of the Attorney General of Hawaii, Honolulu,
Hawaii; Jon M. Van Dyke, William S. Richardson School of
Law, Honolulu, Hawaii; Aaron P. Avila, U.S. Department of
Justice, Washington, D.C.; Thomas A. Helper, Office of the
U.S. Attorney, Honolulu, Hawaii, for the defendants-
appellees.
Walter R. Schoettle, Honolulu, Hawaii; Robert Klein, Hono-
lulu, Hawaii; Philip W. Miyoshi, McCorriston Miller Mukai
MacKinnon LLP, Honolulu, Hawaii, for the intervenors-
appellees.
Le’a Malia Kanehe, Native Hawaiian LegalCorp., Honolulu,
Hawaii, for the amici curiae.
OPINION
BYBEE, Circuit Judge:
In this case we are called on, yet again, to hear a challenge
to state programs restricting benefits to “native Hawaiians” or
1580 ARAKAKI v. LINGLE
“Hawaiians.” See, e.g., Carroll v. Nakatani, 342 F.3d 934 (9th
Cir. 2003); Arakaki v. Hawaii, 314 F.3d 1091 (9th Cir. 2002);
Han v. U.S. Dep’t of Justice, 45 F.3d 333 (9th Cir. 1995) (per
curiam); Price v. Akaka, 3 F.3d 1220 (9th Cir. 1993); Price
v. Hawaii, 764 F.2d 623 (9th Cir. 1985); Hoohuli v. Ariyoshi,
741 F.2d 1169 (9th Cir. 1984); Keaukaha-Panaewa Cmty.
Ass’n v. Hawaiian Homes Comm’n, 588 F.2d 1216 (9th Cir.
1978); see also Rice v. Cayetano, 528 U.S. 495 (2000).
Plaintiffs in this case are citizens of the State of Hawaii
who allege that various state programs preferentially treat per-
sons of Hawaiian ancestry, in violation of the Fifth and Four-
teenth Amendments, 42 U.S.C. § 1983, and the terms of a
public land trust. Plaintiffs brought suit against the Depart-
ment of Hawaiian Home Lands (“DHHL”), the Hawaiian
Homes Commission (“HHC”), the Office of Hawaiian Affairs
(“OHA”), various state officers, and the United States. Plain-
tiffs claim standing to sue as taxpayers and as beneficiaries of
the public land trust. In a series of orders, the district court
held that Plaintiffs lacked standing to raise certain claims and
that Plaintiffs’ remaining claims raised a nonjusticiable politi-
cal question, and dismissed the entire lawsuit. Arakaki v.
Lingle, 305 F. Supp. 2d 1161 (D. Haw. 2004) (“Arakaki VI”);
Arakaki v. Lingle, 299 F. Supp. 2d 1129 (D. Haw. 2003)
(“Arakaki V”); Arakaki v. Lingle, 299 F. Supp. 2d 1114 (D.
Haw. 2003) (“Arakaki IV”); Arakaki v. Cayetano, 299 F.
Supp. 2d 1107 (D. Haw. 2002) (“Arakaki III”); Arakaki v.
Cayetano, 299 F. Supp. 2d 1090 (D. Haw. 2002) (“Arakaki
II”); Arakaki v. Cayetano, 198 F. Supp. 2d 1165 (D. Haw.
2002) (“Arakaki I”). The district court also issued three
unpublished orders, dated December 16, 2003, January 26,
2004, and May 5, 2004, which this opinion will address.
In a prior opinion, we affirmed in part and reversed in part.
Arakaki v. Lingle, 423 F.3d 954 (9th Cir. 2005). The Plaintiffs
filed a petition for certiorari, which the Supreme Court
denied. Arakaki v. Lingle, 126 S. Ct. 2861 (2006). On the
state’s petition for certiorari, however, the Supreme Court
ARAKAKI v. LINGLE 1581
granted the petition, vacated our prior judgment and
remanded for further consideration in light of DaimlerChrys-
ler Corp. v. Cuno, 547 U.S. ___, 126 S. Ct. 1854 (2006).
Lingle v. Arakaki, 126 S. Ct. 2859 (2006). On reconsideration,
we again affirm in part and reverse in part, although on differ-
ent grounds. In the interest of clarity for all interested parties,
we are issuing a complete opinion in support of our judgment
following remand from the Supreme Court.
We hold that Plaintiffs lack standing to sue the federal gov-
ernment and that the district court therefore correctly dis-
missed all claims to which the United States is a named party
or an indispensable party. However, we reverse the district
court’s finding that Plaintiffs have demonstrated standing as
state taxpayers to challenge those programs that are funded by
state tax revenue and for which the United States is not an
indispensable party. In light of the Supreme Court’s decision
in DaimlerChrysler, we now hold that Plaintiffs, as state tax-
payers, lack standing to bring a suit claiming that the OHA
programs that are funded by state tax revenue violate the
Equal Protection Clause of the Fourteenth Amendment.
Although it is not clear that any Plaintiffs have standing in
any other capacity to challenge the OHA programs, we
remand to the district court for further proceedings. Finally,
if any Plaintiffs are able to establish standing, their challenge
to the appropriation of tax revenue to the OHA does not raise
a nonjusticiable political question. We therefore affirm in
part, reverse in part, and remand.
I. BACKGROUND
A. Historical Context
After the arrival of Captain Cook in 1778, the western
world became increasingly interested in the commercial
potential of the Hawaiian Islands. The nineteenth century saw
a steady rise in American and European involvement in the
islands’ political and economic affairs. As the resistance of
1582 ARAKAKI v. LINGLE
the native Hawaiian government mounted, American com-
mercial interests eventually succeeded, with the complicity of
the U.S. military, in overthrowing the Hawaiian monarchy
and establishing a provisional government under the title of
the Republic of Hawaii. See Rice, 528 U.S. at 500-05.
In 1898, President McKinley signed a Joint Resolution to
annex the Hawaiian Islands as a territory of the United States.
30 Stat. 750. This resolution, commonly referred to as the
Newlands Resolution, provided that the Republic of Hawaii
ceded all public lands to the United States and that revenues
from the lands were to be “used solely for the benefit of the
inhabitants of the Hawaiian Islands for educational and other
public purposes.” Id. Two years later, the Hawaiian Organic
Act established the Territory of Hawaii and put the ceded
lands in the control of the Territory of Hawaii “until otherwise
provided for by Congress.” Act of Apr. 30, 1900, ch. 339,
§ 91, 31 Stat. 159.
B. The Public Land Trust and the Hawaiian Homes
Commission Act
Shortly after the establishment of the Territory, Congress
“became concerned with the condition of the native Hawaiian
people.” Rice, 528 U.S. at 507. Declaring its intent to
“[e]stablish[ ] a permanent land base for the beneficial use of
native Hawaiians,” Congress enacted the Hawaiian Homes
Commission Act, 1920. Act of July 9, 1921, ch. 42,
§ 101(b)(1), 42 Stat. 108 (“HHCA”). The HHCA set aside
200,000 acres of lands previously ceded to the United States
for the creation of loans and leases to benefit native Hawai-
ians. These lands were to be leased exclusively, including by
transfer, to native Hawaiians for a term of 99 years at a nomi-
nal rate of one dollar per year. Id. § 208(1), (2) & (5). The
HHCA defines “native Hawaiian” as “any descendant of not
less than one-half part of the blood of the races inhabiting the
Hawaiian Islands previous to 1778.” Id. § 201(7).
 ARAKAKI v. LINGLE 1583
In 1959, Hawaii became the 50th State in the union. Under
the Hawaii Statehood Admission Act, Congress required
Hawaii to incorporate the HHCA into its state Constitution,
with the United States retaining authority to approve any
changes to the eligibility requirements for the HHCA leases.
Act of March 18, 1959, Pub. L. No. 86-3, § 4, 73 Stat. 5
(“Admission Act”). See HAW. CONST. art. XII, §§ 1-3. In
return, the United States granted Hawaii title to all public
lands within the state, save a small portion reserved for use of
the Federal Government. Id. § 5(b)-(d), 73 Stat. 5. The
Admission Act further declared that the lands, “together with
the proceeds from the sale or other disposition of any such
lands and the income therefrom, shall be held by [the State]
as a public trust for the support of the public schools, . . . the
conditions of native Hawaiians” and other purposes. Id. § 5(f),
73 Stat. 6. The land granted to Hawaii included the 200,000
acres previously set aside under the HHCA and an additional
1.2 million acres.
The Hawaii Constitution expressly adopted the HHCA and
declared that “the spirit of the Hawaiian Homes Commission
Act looking to the continuance of the Hawaiian homes proj-
ects for the further rehabilitation of the Hawaiian race shall be
faithfully carried out.” HAW. CONST. art. XII, § 2. Because the
HHCA’s purposes include support of public education, the
Constitution also provides that lands granted to Hawaii under
the Admission Act will be held in “public trust for native
Hawaiians and the general public.” Id. § 4; see Arakaki v.
Hawaii, 314 F.3d 1091, 1093 (9th Cir. 2002).
The HHCA established a Department of Hawaiian Home
Lands (“DHHL”), to be headed by an executive board known
as the Hawaiian Homes Commission (“HHC”). Act of July 9,
1921, ch. 42, § 202(a), 42 Stat. 108. By statute Hawaii created
both the Department of Hawaiian Home Lands and the
Hawaiian Homes Commission. Together, DHHL/HHC
administer the 200,000 acres set aside by the HHCA, and
DHHL/HHC’s beneficiaries are limited to “native Hawai-
1584 ARAKAKI v. LINGLE
ians,” as defined in the Act. The DHHL is funded in substan-
tial part by state revenue; although the record is not clear on
this point, this revenue likely derives from both tax and non-
tax sources.
C. The Office of Hawaiian Affairs
In 1978, Hawaii amended its Constitution to establish the
Office of Hawaiian Affairs to “ ‘provide Hawaiians the right
to determine the priorities which will effectuate the better-
ment of their condition and welfare and promote the protec-
tion and preservation of the Hawaiian race, and . . . [to] unite
Hawaiians as a people.’ ” Rice, 528 U.S. at 508 (quoting 1
Proceedings of the Constitutional Convention of Hawaii of
1978, Committee of the Whole Rep. No. 13, p. 1018 (1980)).
OHA holds title to all property “held in trust for native
Hawaiians and Hawaiians,” except for the 200,000 acres
administered by DHHL/HHC; OHA thus controls the 1.2 mil-
lion acres ceded by the United States in the Admission Act.
The term “native Hawaiians” has the same blood quantum
requirement as under the HHCA; by contrast, the term “Ha-
waiians” is broader and simply refers to any persons
descended from inhabitants of the Hawaiian Islands prior to
1778. HAW. REV. STAT. § 10-2. OHA’s statutory purposes
include “[a]ssessing the policies and practices of other agen-
cies impacting on native Hawaiians and Hawaiians,” “con-
ducting advocacy efforts for native Hawaiians and
Hawaiians,” “[a]pplying for, receiving, and disbursing, grants
and donations from all sources for native Hawaiian and
Hawaiian programs and services,” and “[s]erving as a recepta-
cle for reparations.” HAW. REV. STAT. § 10-3(4)-(6).
OHA administers funds received from two principal
sources. First, OHA receives a 20 percent share of any reve-
nue generated by the 1.2 million acres of lands held in public
trust. HAW. REV. STAT. § 10-13.5 (1993). Second, OHA
receives revenue from the state general fund, which derives
from tax revenue and other, non-tax, sources.
ARAKAKI v. LINGLE 1585
D. The Proceedings
The Plaintiffs (some of whom qualify as “Hawaiians”)
allege that they are citizens of Hawaii, taxpayers of the state
of Hawaii and of the United States, and beneficiaries of a pub-
lic land trust created in 1898. The Complaint alleges three
causes of action. First, Plaintiffs allege that the various pro-
grams of the OHA and DHHL/HHC violate the Equal Protec-
tion Clause of the Fourteenth Amendment and the equal
protection component of the Due Process Clause of the Fifth
Amendment. Second, they make these same allegations under
42 U.S.C. § 1983. Third, they claim that the administration of
the OHA and the DHHL/HHC constitutes a breach of the pub-
lic land trust.
The district court dismissed Plaintiffs’ claims on grounds of
standing and political question. With respect to the DHHL/
HHC, the court ruled that the United States was an indispens-
able party to the lease eligibility requirements, but that Plain-
tiffs had no standing to sue the United States. Arakaki IV, 299
F. Supp. 2d at 1120-25. Because “any challenge to the lessee
requirements of the Hawaiian Home Lands lease program set
up by the HHCA, a state law, necessarily involves a challenge
to the Admission Act,” all claims against the DHHL/HHC
were dismissed. Id. at 1126, 1127.
The district court took a slightly different route with respect
to OHA. The court dismissed the breach of trust claim on the
ground that Plaintiffs had not pleaded a breach of trust claim
that is cognizable under the common law of trusts. Arakaki II,
299 F. Supp. 2d at 1103. Finding that Plaintiffs had state tax-
payer standing to sue OHA, the court declined to dismiss
OHA because, unlike DHHL/HHC, “[n]othing in the Admis-
sion Act requires the creation of OHA or governs OHA’s
actions.” Arakaki IV, 299 F. Supp. 2d at 1127. The court lim-
ited the Plaintiffs’ taxpayer challenge, however, to OHA pro-
grams funded from taxes, as opposed to programs funded
from other sources. Arakaki II, 299 F. Supp. 2d at 1100-01;
1586 ARAKAKI v. LINGLE
Arakaki IV, 299 F. Supp. 2d at 1122-24. In a subsequent deci-
sion, however, the district court dismissed all claims against
OHA on the ground that they were barred by the political
question doctrine. The court observed that, although Congress
has plenary authority to recognize Indian tribal status, it has
given Hawaiians some, but not all, of the privileges that go
with formal tribal status. Because resolving Plaintiffs’ equal
protection claims would require the court to determine Hawai-
ians’ political status in order to determine the appropriate
level of scrutiny, the court declined to decide Hawaiians’ cur-
rent political status “in recognition of the continuing debate in
Congress” and the principle that “this is a political issue that
should be first decided by another branch of government.”
Arakaki VI, 305 F. Supp. 2d at 1173.
Plaintiffs appeal the dismissal of all their claims.
II. STANDARD OF REVIEW
Standing is a legal issue subject to de novo review. Bruce
v. United States, 759 F.2d 755, 758 (9th Cir. 1985). In ruling
on a FED. R. CIV. P. 12(b)(6) motion to dismiss for lack of
standing, we must construe the complaint in favor of the com-
plaining party. Hong Kong Supermarket v. Kizer, 830 F.2d
1078, 1080-81 (9th Cir. 1987). As the district court noted,
whether dismissal on political question grounds is jurisdic-
tional or prudential in nature, and thus whether it is properly
classified under Rule 12(b)(1) or 12(b)(6), is unclear. Com-
pare Schlesinger v. Reservists Comm. to Stop the War, 418
U.S. 208, 215 (1974) (presence of a political question, like
absence of standing, deprives court of jurisdiction), with
Goldwater v. Carter, 444 U.S. 996, 1000 (1979) (“the
political-question doctrine rests in part on prudential concerns
calling for mutual respect among the three branches of Gov-
ernment”). Either way, we review the district court’s dis-
missal de novo. See, e.g., Decker v. Advantage Fund, Ltd.,
362 F.3d 593, 595-96 (9th Cir. 2004) (dismissal under Rule
12(b)(6) reviewed de novo); Luong v. Circuit City Stores,
ARAKAKI v. LINGLE 1587
Inc., 368 F.3d 1109, 1111 n.2 (9th Cir. 2004) (dismissal for
lack of subject matter jurisdiction, pursuant to Rule 12(b)(1),
reviewed de novo).
III. PLAINTIFFS’ STANDING TO CHALLENGE THE
DHHL/HHC LEASES
Plaintiffs claim standing to challenge the DHHL/HHC
leases as land trust beneficiaries, and as state taxpayers. We
find that neither theory confers standing to challenge the lease
requirements or the appropriation of state revenue in support
thereof. The district properly dismissed all claims against the
DHHL/HHC and the United States.
A. Plaintiffs’ Standing as Land Trust Beneficiaries
Plaintiffs challenge the public lands trust administered by
DHHL/HHC because it prefers native Hawaiians in the lease
eligibility criteria for the 200,000 acres set aside in the HHCA
and incorporated into the Hawaii Constitution through the
Admission Act. The Plaintiffs argue that as members of the
class of “native Hawaiians and general public,” HAW. CONST.
art. XII, § 4, they are trust beneficiaries, and may sue the
trustee when the trustee’s actions violate the law. See
RESTATEMENT (SECOND) OF TRUSTS §§ 166, 214. Plaintiffs
allege that the trustees—including DHHL/HHC and the
United States—have enforced the provisions of the trust in
violation of the Fifth and Fourteenth Amendments.
1. The United States as Trustee
Plaintiffs argue that the trust obligations of the United
States arise through two acts, the Newlands Resolution and
the Admission Act. Plaintiffs claim the trust was first estab-
lished in 1898 by the Newlands Resolution with the United
States as trustee. Congress, according to Plaintiffs, then vio-
lated its duties as trustee by discriminating on the basis of
race when it enacted the HHCA in 1921 and again in the
1588 ARAKAKI v. LINGLE
Admission Act when it required Hawaii to incorporate the
HHCA into its Constitution. Alternatively, Plaintiffs argue
that the United States became a trustee as a result of the
Admission Act.1
The history of the land trust does not support either of
Plaintiffs’ theories. The United States is not currently a trustee
of the lands in question by virtue of either the Newlands Res-
olution or the Admission Act. The Newlands Resolution
recited that the Government of the Republic of Hawaii ceded
“the absolute fee and ownership of all public Government, or
Crown lands.” Newlands Resolution, 30 Stat. 750 (1898). It
further provided that existing U.S. laws regarding public lands
would not apply to Hawaiian lands, but that Congress “shall
enact special laws for their management and disposition: Pro-
vided, That all revenue from or proceeds of the same . . . shall
be used solely for the benefit of the inhabitants of the Hawai-
ian Islands for educational and other public purposes.” Id.
Although this passage did not specifically use the word
“trust,” the Attorney General of the United States subse-
quently interpreted it “to subject the public lands in Hawaii to
a special trust.” Hawaii — Public Lands, 22 Op. Att’y Gen.
574, 576 (1899).
Assuming, arguendo, that the Attorney General was right
to construe the Newlands Resolution as establishing a trust,
and assuming further that the United States became a trustee,
the United States’ status as trustee was expressly subject to
future revision. The Resolution specifically provides that “the
United States shall enact special laws for [the] management
1
The district court concluded that Plaintiffs had waived the Newlands
Resolution theory, and addressed only the Admission Act theory. Arakaki
II, 299 F. Supp. 2d at 1101. Plaintiffs deny the waiver. However, this court
can affirm the district court’s dismissal on any ground supported by the
record, even if the district court did not rely on the ground. See, e.g., Livid
Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 950 (9th Cir.
2005). In the interest of being thorough, we therefore address both theo-
ries.
ARAKAKI v. LINGLE 1589
and disposition” of public lands. The Attorney General con-
strued this provision as “vest[ing] in Congress the exclusive
right, by special enactment, to provide for the disposition of
public lands in Hawaii.” Id. The Newlands Resolution thus
contemplated that Congress would enact subsequent rules to
govern the ceded lands.
[1] Congress enacted such rules in the HHCA and the
Admission Act. Any trust obligation the United States
assumed in the Newlands Resolution for the lands at issue
here was extinguished by Congress when it created the
DHHL/HHC in the HHCA and granted it control of defined
“available lands.” Act of July 9, 1921, ch. 42, §§ 202, 204,
and 207; see id. § 204(a) (“Upon the passage of this Act, all
available lands shall immediately assume the status of Hawai-
ian home lands and be under the control of the department to
be used and disposed of in accordance with the provisions of
this Act.”). Any lingering doubt over the United States’ role
as trustee was eliminated entirely in the Admission Act when
the United States “grant[ed] to the State of Hawaii, effective
upon its admission in the Union, the United States’ title to all
the public lands and other public property, and to all lands
defined as ‘available lands’ by section 203 of the Hawaiian
Homes Commission Act . . . title which is held by the United
States immediately prior to its admission into the Union.”
Pub. L. No. 86-3, § 5(b), 73 Stat. 4.
[2] Our discussion here also resolves Plaintiffs’ claim that
the Admission Act established the United States’ obligations
as a trustee. The Admission Act unambiguously requires that
land be held in public trust, but by the State of Hawaii, not the
United States. Nothing in the Admission Act suggests that the
United States would serve as a co-trustee with the State. Nor
does the fact that the United States must consent to changes
in the qualifications of lessees under the trust make the United
States a co-trustee. See Pub. L. No. 86-3, § 4, 73 Stat. 4. Con-
gress might have made the United States a co-trustee; instead
it reserved to the United States the right to bring suit for
1590 ARAKAKI v. LINGLE
breach of trust, id. § 5(f), a provision at odds with the sugges-
tion that the United States remains a trustee. We conclude, as
we noted in Keaukaha-Penaewa Cmty. Ass’n v. Hawaiian
Homes Comm’n, 588 F.2d 1216, 1224 n.7 (9th Cir. 1978), that
“[t]he United States has only a somewhat tangential supervi-
sory role of the Admission Act, rather than the role of trust-
ee.”
2. The United States as an Indispensable Party
Although the United States cannot be sued on Plaintiffs’
trust beneficiary theory, Plaintiffs nevertheless argue that they
may at least sue the state defendants on the same theory.
Plaintiffs point to several cases in which we have held that
native Hawaiians, as trust beneficiaries, could bring suit under
42 U.S.C. § 1983 against the State to enforce the terms of the
trust. E.g., Price v. Akaka, 928 F.2d 824 (9th Cir. 1990);
Keaukaha-Panaewa Cmty. Ass’n v. Hawaiian Homes
Comm’n, 739 F.2d 1467 (9th Cir. 1984); see also Price v.
Akaka, 3 F.3d 1220, 1223-25 (9th Cir. 1993). Those cases
involved claims that the state was improperly administering
the trust and sought to enforce the trust’s terms.
We believe that this argument is disposed of easily. Those
cases differ from the present challenge in a fundamental way:
although those previous § 1983 cases have involved suits to
enforce the express terms of the trust, this suit, by contrast,
asks the court to prohibit the enforcement of a trust provision.
That is, Plaintiffs now raise a § 1983 claim that is unique in
that it does not seek to enforce the substantive terms of the
trust, but instead challenges at least one of those terms as con-
stitutionally unenforceable.
[3] We have recently held that in any challenge to the
enforceability of the lease eligibility requirements, the United
States is an indispensable party. In Carroll v. Nakatani, 342
F.3d 934 (9th Cir. 2003), a non-native Hawaiian citizen chal-
lenged the homestead lease program administered by DHHL/
ARAKAKI v. LINGLE 1591
HHC. The plaintiff sued the relevant state actors, but failed to
sue the United States. We held that Section 4 of the Admis-
sions Act “expressly reserves to the United States that no
changes in the qualifications of the lessees may be made with-
out its consent.” Carroll, 342 F.3d at 944. We reasoned that
because the qualifications for the DHHL/HHC leases cannot
be modified without the United States’ approval, the United
States is an indispensable party to any lawsuit challenging the
DHHL/HHC leases, and the Plaintiff’s failure to sue the
United States meant that his injury was not redressable. Id. at
944.
[4] Here, unlike in Carroll, Plaintiffs properly named the
United States as a party. Carroll’s logic nonetheless applies.
Plaintiffs lack standing to sue the United States, but the
United States is an indispensable party to any challenge to the
lease eligibility requirements. Plaintiffs therefore cannot
maintain their challenge to the lease eligibility requirements
against the State. Accordingly, the district court properly dis-
missed the Plaintiffs’ trust beneficiary claim against the state
defendants.
B. Plaintiffs’ Standing As State Taxpayers
Plaintiffs also challenge the DHHL/HHC lease eligibility
programs in their capacity as state taxpayers. The question is
whether our decision in Carroll bars Plaintiffs’ equal protec-
tion challenge in their capacity as taxpayers, just as it barred
Plaintiffs’ suit in their capacity as trust beneficiaries. In par-
ticular, we must decide whether Plaintiffs have standing to
challenge Hawaii’s spending of tax revenues on the lease pro-
gram.2 This is a more complicated question.
2
Plaintiffs do not limit their challenge to the expenditure of state tax
revenues; instead, they challenge all state spending on the lease program,
whether funded by taxes, bonds, the proceeds of a settlement, or other
non-tax revenues. The district court held that, if Plaintiffs could bring their
equal protection claims against DHHL/HHC based on their taxpayer status
1592 ARAKAKI v. LINGLE
The standing doctrine, like other Article III doctrines con-
cerning justiciability, ensures that a plaintiff’s claims arise in
a “concrete factual context” appropriate to judicial resolution.
Valley Forge Christian Coll. v. Ams. United For Separation
of Church & State, Inc., 454 U.S. 464, 472 (1982). Standing
ensures that, no matter the academic merits of the claim, the
suit has been brought by a proper party. The “ ‘irreducible
constitutional minimum of standing’ ” requires that a plaintiff
allege that he has suffered concrete injury, that there is a
causal connection between his injury and the conduct com-
plained of, and that the injury will likely be redressed by a
favorable decision. United States v. Hays, 515 U.S. 737, 742-
43 (1995) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)).
Plaintiffs have alleged that Hawaii has supported the lease
program through tax revenues, a point that Hawaii does not
dispute. Arakaki II, 299 F. Supp. 2d at 1098. Hawaii’s taxing
and spending in support of the lease program is not mandated
by the Admission Act or any other federal law. The Admis-
sion Act requires Hawaii to adopt the HHCA and forbids
Hawaii to change the lease eligibility requirement without the
consent of the United States; but neither the Admission Act
nor the HHCA, as incorporated by the Hawaii Constitution,
mandates the expenditure of state funds, much less the expen-
diture of state tax revenues. Pub. L. No. 86-3, § 4, 73 Stat. 4.
Section 5(f) of the Admission Act does provide that proceeds
from the sale or other disposition of the lands shall be paid
at all, they could challenge only those avenues of state funding that actu-
ally derived from taxes, rather than from other sources. Because we con-
clude, like the district court, that Carroll precludes Plaintiffs’ challenge to
Hawaii’s spending on the lease program regardless of the source of the
state’s funds, we need not decide here whether the district court correctly
limited the scope of Plaintiffs’ state taxpayer challenges. We limit our dis-
cussion to Plaintiffs’ challenge to Hawaii’s spending of tax revenues on
the lease program and address the general question regarding the scope of
standing as a state taxpayer in Part IV.A.3, infra.
ARAKAKI v. LINGLE 1593
into the trust for the identified purposes, but nothing suggests,
much less requires, that the State of Hawaii expend tax reve-
nues to support the lease program. Any tax revenues Hawaii
has appropriated to DHHL/HHC, then, resulted from deci-
sions by the Hawaii Legislature.
Plaintiffs’ taxpayer-based claims might be construed as a
limited challenge to the lease program: Plaintiffs challenge
the lease program to the extent that Hawaii has—independent
of any federal obligation, including the Admission Act—
engaged in taxing and spending in support of the DHHL/HHC
program. Under this theory, unlike their trust beneficiary the-
ory, Plaintiffs would not challenge the lease eligibility
requirements directly, nor would they implicate any substan-
tial rights belonging to the United States. Thus, Plaintiffs
might argue, even if they cannot seek to enjoin the native
Hawaiians-only rule directly, they can seek to enjoin further
state funding of a provision that allegedly violates the Equal
Protection Clause. Plaintiffs’ remedy, presumably, would be
an injunction against spending state tax revenues, but not an
order directing changes in the lease criteria.
[5] Plaintiffs’ theory, though game, ultimately fails under
Carroll. The only ground Plaintiffs have alleged for enjoining
the state from spending is that the spending is for purposes
prohibited by the Equal Protection Clause. Any remedy that
Plaintiffs seek—for example, an injunction against expendi-
ture of tax revenues for the lease program—demands that the
district court decide whether the lease eligibility criteria are
constitutional. The lease criteria are found in the HHCA
which is adopted by Article XII of the Hawaii Constitution.
We held in Carroll, however, that “Article XII of the Hawai-
ian Constitution cannot be declared unconstitutional without
holding [Section 4] of the Admissions Act unconstitutional.”
Carroll, 342 F.3d at 944. Our decision in Carroll effectively
holds that any challenge to Article XII is a challenge to Sec-
tion 4 of the Admission Act, and no challenge to the Admis-
1594 ARAKAKI v. LINGLE
sion Act may proceed without the presence of the United
States as a defendant.
[6] As state taxpayers, Plaintiffs have no basis for suing the
United States. They claim no status that would distinguish
them from any number of other persons who also do not qual-
ify for the Hawaiian Home Lands leases. The Court has “re-
peatedly refused to recognize a generalized grievance against
allegedly illegal government conduct as sufficient for stand-
ing.” Hays, 515 U.S. 743. Moreover, “[t]he rule against gen-
eralized grievances applies with as much force in the equal
protection context as in any other.” Id.; see Allen v. Wright,
468 U.S. 737, 751 (1984). Federal taxpayer standing which,
notably, Plaintiffs do not assert, is simply one instance of the
assertion of a generalized grievance. See Frothingham v. Mel-
lon, 262 U.S. 447, 487-88 (1923) (“The administration of any
statute, likely to produce additional taxation to be imposed
upon a vast number of taxpayers, the extent of whose several
liability is indefinite and constantly changing, is essentially a
matter of public and not of individual concern.”).
[7] We hold that Plaintiffs cannot avoid the implications of
Carroll by limiting their claims to state spending in support
of the lease program and then alleging their state taxpayer sta-
tus. Even if Plaintiffs were to have standing as state taxpayers
—a possibility we address in Part IV and hold is foreclosed
by the Supreme Court’s decision in DaimlerChrysler—that
status cannot supply standing against the United States. See,
e.g., Frothingham, 262 U.S. at 486-87 (citing Crampton v.
Zabriskie, 101 U.S. 601, 609 (1880)); W. Mining Council v.
Watt, 643 F.2d 618, 631 (9th Cir. 1981). Accordingly, we
conclude that Plaintiffs lack standing to sue the United States,
and that the United States remains an indispensable party to
any challenge to the DHHL/HHC lease eligibility criteria. We
affirm the district court’s dismissal of all claims against the
United States and DHHL/HHC.
ARAKAKI v. LINGLE 1595
IV. PLAINTIFFS’ STANDING TO CHALLENGE
OHA’S PROGRAMS
As with DHHL/HHC, Plaintiffs allege two theories of
standing to challenge OHA: they challenge the appropriation
of state tax revenue based on their status as state taxpayers,
and they challenge the appropriation of trust revenue to OHA
based on their alleged status as trust beneficiaries. Relying in
large measure on our decision in Hoohuli v. Ariyoshi, 741
F.2d 1169 (9th Cir. 1984), the district court held that Plaintiffs
had standing to sue OHA as state taxpayers. Arakaki II, 299
F. Supp. 2d at 1094-98. The court further held, however, that
Plaintiffs lacked standing to challenge state funding of OHA
that did not originate in taxes, specifically, any revenue that
OHA received from lease rentals, settlements, or state bonds.
Id. at 1100-01. With respect to the trust revenue claim, the
district court dismissed the breach of trust claim on the
ground that Plaintiffs had not pleaded a trust claim that was
cognizable under the common law of trusts. Id. at 1103.
OHA contends that the district court must be reversed in
light of DaimlerChrysler Corp. v. Cuno, 126 S. Ct. 1854
(2006), and because the United States is an indispensable
party under Carroll. Plaintiffs allege that the district court
erred by restricting the scope of their challenge to OHA pro-
grams directly funded by taxes. We address each of these con-
tentions in turn. We conclude that DaimlerChrysler
effectively overrules Hoohuli, and Plaintiffs, accordingly, do
not have standing as state taxpayers to challenge the appropri-
ation of state revenue to OHA. We need not reach the issue
of whether or not the United States is an indispensable party
under Carroll, nor need we discuss whether or not the district
court properly limited the scope of Plaintiffs’ challenge.
Finally, we conclude, as we did in the prior section, that
Plaintiffs cannot prevail on their trust beneficiary theory of
standing because the United States remains an indispensable
party to a suit challenging the trust, and Plaintiffs have no
standing to sue the United States.
1596 ARAKAKI v. LINGLE
A. Plaintiffs’ State Taxpayer Standing
1. The Vitality of Hoohuli
[8] In Hoohuli, residents of Hawaii and a taxpayers’ group
brought suit under 42 U.S.C. § 1983 for damages and injunc-
tive relief to challenge programs administered by OHA to the
extent those programs favored “Hawaiians.” 741 F.2d at
1172. We held that at least some of the individual plaintiffs
had standing to seek an injunction prohibiting the “appropriat-
ing, transferring, and spending” of taxpayers’ money from the
state treasury’s general fund. Id. at 1180. The plaintiffs
alleged that they had “been burdened with the necessity to
provide more taxes to support [a class composed of Hawai-
ians]” and that this was sufficient to sustain a “good-faith
pocketbook action set forth in Doremus [v. Board of Educa-
tion, 342 U.S. 429, 434 (1952)].” Id. (internal quotations
omitted). In our original opinion, we held that Hoohuli
remained the law of the circuit, and that Justice Kennedy’s
opinion in ASARCO v. Kadish, 490 U.S. 605 (1989), while
persuasive, did not receive the requisite five votes to overrule
Hoohuli. See Arakaki, 423 F.3d at 967-69. Since we issued
our original opinion, the Supreme Court decided Daimler-
Chrysler, 126 S. Ct. 1854, which now effectively overrules
Hoohuli. See id. at 1864 & n.4 (noting that Arakaki and Hoo-
huli were inconsistent with the five circuits to have decided
this issue and agreeing with those circuits).
In order to satisfy the case or controversy requirement of
Article III, a plaintiff must demonstrate an injury in fact, a
causal relationship between the injury and the conduct com-
plained of, and redressability. Lujan, 504 U.S. at 560. In tax-
payer suits, these requirements are particularly difficult to
satisfy. The Court has hesitated to recognize federal taxpayer
standing because an injunction prohibiting spending on any
given program may only remotely affect the parties’ tax bill
and redress the alleged injury. As the Court wrote in Froth-
ingham v. Mellon, a federal taxpayer’s “interest in the moneys
ARAKAKI v. LINGLE 1597
of the Treasury . . . is shared with millions of others . . . and
the effect upon future taxation, of any payment out of the
funds, is so remote, fluctuating and uncertain, that no basis is
afforded for [judicial review].” 262 U.S. at 487.
The Court re-articulated this view in DaimlerChrysler, in
which the plaintiffs alleged that a state tax credit violated the
Commerce Clause. Plaintiffs claimed standing by virtue of
their status as Ohio taxpayers, alleging that the franchise tax
credit provided to DaimlerChrysler “depletes the funds of the
State of Ohio to which the Plaintiffs contribute through their
tax payments and thus diminishes the total funds available for
lawful uses and imposes disproportionate burdens on them.”
126 S. Ct. at 1862 (internal quotations and brackets omitted).
The Court held that plaintiffs did not have standing because
their injury as taxpayers was not “concrete and particularized
but instead a grievance the taxpayer suffers in some indefinite
way in common with people generally.” Id. (citation and
internal quotations omitted). The injury was “ ‘conjectural or
hypothetical’ in that it depends on how legislators respond to
a reduction in revenue, if that is the consequence of the cred-
it.” Id. “[E]stablishing redressability,” the Court held, “re-
quires speculating that abolishing the challenged credit will
redound to the benefit of the taxpayer because legislators will
pass along the supposed increased revenue in the form of tax
reductions.” Id. at 1863. According to the Court, the limita-
tions on standing in federal taxpayer cases “applied with undi-
minished force to state taxpayers.” Id.
DaimlerChrysler plainly undermines Hoohuli’s standing
principles. Under Hoohuli, plaintiffs had to meet a three-part
test for state taxpayer standing: (1) taxpayer status, (2) the
funds in question were appropriated from the state’s general
funds, and (3) the state was spending the funds for an unlaw-
ful purpose. 741 F.2d at 1180. We did not require that the tax-
payer prove that his tax burden would be lightened by the
cancellation of the challenged expenditure. See also Cammack
1598 ARAKAKI v. LINGLE
v. Waihee, 932 F.2d 765, 769 (9th Cir. 1991) (noting that
“Hoohuli, the leading case on this issue in the circuit, does not
require that the taxpayer prove that her tax burden will be
lightened by elimination of the questioned expenditure”).
[9] DaimlerChrysler, by contrast, requires that state tax-
payers establish a particularized, concrete injury that is
redressable by the court’s judgment. As the Supreme Court
observed, the Plaintiffs’ alleged injury is speculative if redress
ultimately depends on how the legislature responds to the
court’s judgment. See DaimlerChrysler, 126 S. Ct. at 1862-
63. But the “[f]ederal courts may not assume a particulate
exercise of . . . state fiscal discretion in establishing standing.”
Id. at 1864. The Court concluded that “state taxpayers have no
standing under Article III to challenge state tax or spending
decisions simply by virtue of their status as taxpayers.” Id. at
1864 (footnotes omitted).
2. Application of DaimlerChrysler
Applying the reasoning of DaimlerChrysler to the facts of
the case at hand, we conclude that Plaintiffs do not have
standing as state taxpayers to challenge the appropriation of
state revenue to OHA. Plaintiffs argue that they meet the test
for standing under DaimlerChrysler because (1) their injury
is concrete and particularized, (2) the depletion of the state
treasury is actual and ongoing, and (3) the injury they suffer
is redressable through declaratory and injunctive relief. We
address each contention in turn.
[10] First, Plaintiffs maintain that because they “are
required to pay taxes to support racial discrimination against
themselves,” they suffer a particularized injury that “is not
shared by people in general or by Hawaii state taxpayers gen-
erally, but only by [taxpayers] . . . who lack the favored
[native-Hawaiian] ancestry” and benefit from OHA programs.
But Plaintiffs do not allege that they have suffered any harm
apart from the fact that they are taxpayers and do not like
ARAKAKI v. LINGLE 1599
OHA’s programs. Plaintiffs’ argument, taken to its logical
conclusion, would significantly expand state taxpayer Article
III standing by allowing a taxpayer to challenge any govern-
mental expenditure he does not like and for which he has not
applied: Expenditures from the common fisc for veteran’s
benefits could be challenged by any taxpayer who had not
served in the military; welfare benefits could be challenged by
any individual not on welfare; educational expenditures could
be invalidated by a suit brought by an individual who does not
have children in the public school system. Under Plaintiffs’
theory, even the Ohio taxpayers in DaimlerChrysler could
argue that while all Ohio taxpayers bore the burden of the
depletion of funds from the fisc, taxpayers who were
employed by DaimlerChrysler received a benefit in the form
of a paycheck and thus a taxpaying non-employee suffers a
particularized injury. We think that the Court’s reasoning in
DaimlerChrysler extends to such creative arguments. As the
Court noted, conferring standing on state taxpayers “simply
because their tax burden gives them an interest in the state
treasury would interpose the federal courts as virtually contin-
uing monitors of the wisdom and soundness of state fiscal
administration, contrary to the more modest role Article III
envisions for federal courts.” DaimlerChrysler, 126 S. Ct. at
1864 (internal quotations omitted). We decline to play such a
role and accordingly reject Plaintiffs’ contention that they suf-
fer a particularized injury.
[11] Second, Plaintiffs assert the injury they suffer is “ac-
tual, imminent and ongoing” as the State Legislature contin-
ues to appropriate sums from the General Fund for OHA.
They contrast this with the Supreme Court holding in Daim-
lerChrysler, which they characterize as involving a tax rebate
that was a “conjectural” depletion of the state treasury. How-
ever, the plaintifs misapprehend what we look to when deter-
mining whether the injury is “conjectural or hypothetical. As
the Supreme Court noted, a plaintiff’s injury is “conjectural
or hypothetical” when it “depends on how legislators
respond” to a change in revenue. DaimlerChrysler, 126 S. Ct.
1600 ARAKAKI v. LINGLE
at 1862. Plaintiffs here overlook the fact that whether or not
their injury is redressable is entirely speculative. It is not cer-
tain that even if all funding for OHA were terminated, that the
Legislature would pass the savings on to the Plaintiffs in the
form of tax breaks or refrain from spending the funds on pro-
grams benefitting yet another subgroup of the Hawaiian popu-
lation to which Plaintiffs do not belong. The flow of funds
from the treasury to support OHA is actual and concrete; what
the Legislature would do with those funds absent OHA is
speculative.
[12] Third, Plaintiffs assert that their injury is redressable
through declaratory or injunctive relief. For the reasons stated
above, any benefit that would accrue to Plaintiffs from an
injunction or declaratory judgement is speculative. Plaintiffs
argue that the Supreme Court has allowed individuals who
can allege a distinct and palpable injury to themselves to sue
and invoke the public interest even if the injury is shared by
a large class of other potential litigants. However, these cases
are readily distinguishable and involved core functions of our
democracy, such as voting, see Baker v. Carr, 369 U.S. 186
(1962) (involving a justiciable question of voting district
apportionment); see Harper v. Va. State Bd. of Elections, 383
U.S. 663 (1966) (striking down a poll tax), or issues of eco-
nomic liberty outside the taxation context, see McGowan v.
Maryland, 366 U.S. 420 (1961) (involving harm from eco-
nomic loss and fines from Sunday Closing Laws). The Court
has consistently denied both federal and state taxpayers stand-
ing under Article III to object to a particular expenditure of
funds simply because they are taxpayers. See, e.g., Valley
Forge, 454 U.S. 464 (denying standing to taxpayers to chal-
lenge conveyance of government land to a private religious
college); Reservists Comm., 418 U.S. 208 (denying taxpayers
standing to challenge members of Congress’ membership in
armed forces reserve units); United States v. Richardson, 418
U.S. 166 (1974) (denying taxpayer standing to force publica-
tion of the receipts and expenditures of the CIA); Doremus v.
Bd. of Educ., 342 U.S. 429 (1952) (holding that the rationales
ARAKAKI v. LINGLE 1601
for rejecting federal taxpayer standing apply with equal force
to state taxpayer suits); Ala. Power Co. v. Ickes, 302 U.S. 464,
478 (1938) (holding that “the interest of a taxpayer in the
moneys of the federal treasury furnishes no basis” to argue
that a federal agency’s practices are unconstitutional). The
Court has allowed some Establishment Clause challenges to
federal spending to go forward, but this is a narrow exception,
not the rule. The Court has declined to extend this exception
to other areas. See, e.g., DaimlerChrysler, 126 S. Ct. at 1864-
65; Bowen v. Kendrick, 487 U.S. 589, 618 (1988) (“Although
we have considered the problem of standing and Article III
limitations on federal jurisdiction many times since [Flast],
we have consistently adhered to Flast and the narrow excep-
tion it created to the general rule against taxpayer standing
. . . .”); Flast v. Cohen, 392 U.S. 83 (1968) (creating an
exception for Establishment Clause challenges to the general
standing bar for taxpayer suits).
[13] In sum, we hold that these “state taxpayers have no
standing under Article III to challenge [Hawaii] state tax or
spending decision simply by virtue of their status as taxpay-
ers.” DaimlerChrysler, 126 S. Ct. at 1864. Although it
appears to us that there are no plaintiffs who have standing to
challenge the OHA funding, we are unwilling to make that
final judgment on this record before us. Accordingly, we
remand to the district court for further proceedings.
3. The United States as an Indispensable Party
OHA argues that even if Plaintiffs have taxpayer standing,
under Carroll the United States is also an indispensable party
to any equal protection challenge to its programs. The district
court rejected the argument on the ground that DHHL/HHC
and OHA have distinct origins. In contrast to DHHL/HHC,
“[n]othing in the Admission Act requires the creation of OHA
or governs OHA’s actions.” Arakaki IV, 299 F. Supp. 2d at
1127.
1602 ARAKAKI v. LINGLE
[14] The district court is correct with respect to OHA’s
expenditure of tax revenue. OHA was created nearly twenty
years after Hawaii’s admission to the union. In 1978, Hawaii
amended its Constitution to add Sections 5 and 6—creating
OHA and defining its duties—to Article XII. See HAW.
CONST. art. XII, §§ 5-6. The Constitution does not provide for
OHA’s funding, which is provided by statute. See, e.g., HAW.
REV. STAT. §§ 10-3(1) (“A pro rata portion of all funds
derived from the public land trust shall be funded in an
amount to be determined by the legislature.”), 10-13.5
(“Twenty per cent of all funds derived from the public land
trust . . . shall be expended by [OHA] . . . .”). Unlike the lease
eligibility requirement imposed by the HHCA and adminis-
tered by DHHL/HHC, the United States has no right to con-
sent or withhold consent to the creation of OHA or its
administration of programs for native Hawaiians or Hawai-
ians. Because Plaintiffs can prevail against OHA “without
holding [Section 4] of the Admissions Act unconstitutional,”
nothing “requires the participation of . . . the United States.”
Carroll, 342 F.3d at 944. We decline to extend Carroll to
claims against OHA concerning tax revenue.
B. Plaintiffs’ Trust Beneficiary Standing
[15] Plaintiffs allege, as an independent basis for standing,
that as trust beneficiaries they may sue OHA because OHA
receives trust revenues. Although the United States is not an
indispensable party to a challenge to the appropriation of tax
revenue, see Part IV.A.3, supra, this is not true with respect
to OHA’s receipt of trust revenue. We have previously held
that the expenditure of trust revenue is governed by the
Admission Act. Price v. Akaka, 928 F.2d 824, 827 (9th Cir.
1990). Any challenge to the expenditure of trust revenue
brought by alleged trust beneficiaries must challenge the sub-
stantive terms of the trust, which are found in the Admission
Act. For the reasons we explained in Part III.A.2, supra, the
United States is an indispensable party to any challenge to the
Admission Act. Accordingly, although the United States is
ARAKAKI v. LINGLE 1603
not an indispensable party with respect to challenges to
OHA’s expenditure of tax revenue, it remains indispensable
with respect to challenges to the expenditure of trust revenue.
[16] Plaintiffs’ attempt to challenge OHA’s expenditure of
trust revenue thus suffers from the same fatal flaw as its chal-
lenge to the DHHL/HHC lease eligibility requirements. The
United States is an indispensable party to the challenge to the
expenditure of trust revenue, and yet Plaintiffs cannot estab-
lish standing to sue the United States either as taxpayers or as
trust beneficiaries. See Parts III.A.2 and III.B., supra. Plain-
tiffs therefore cannot proceed with that claim. We do not
reach the issue whether Plaintiffs’ breach of trust claim is oth-
erwise cognizable under the common law of trusts, which was
the basis of the district court’s dismissal of the breach of trust
claim against OHA. Rather, we affirm the dismissal on the
alternative ground that Plaintiffs cannot demonstrate standing
to sue an indispensable party.
V. POLITICAL QUESTION
The final question is whether, assuming any Plaintiffs have
standing to bring a cause of action against the state defen-
dants, that cause of action presents a nonjusticiable political
question. The district court reasoned that in order to rule on
Plaintiffs’ equal protection claims, the court would have to
determine what level of scrutiny to apply. Compare Grutter
v. Bollinger, 539 U.S. 306, 328-33 (2003) (applying strict
scrutiny to uphold race-conscious admissions policy at state
university law school), and Gratz v. Bollinger, 539 U.S. 244,
270-75 (2003) (striking down race-conscious undergraduate
admissions policy at state university under strict scrutiny),
with Morton v. Mancari, 417 U.S. 535 (1974) (applying ratio-
nal basis, rather than strict scrutiny, to employment preference
that benefitted members of Indian tribe because it furthered
Indian self-government), and Alaska Chapter, Associated
Gen. Contractors of Am., Inc. v. Pierce, 694 F.2d 1162 (9th
Cir. 1982) (applying rational basis test to native Alaskans
1604 ARAKAKI v. LINGLE
based on the federal government’s “special obligation” to
Indians). The district court reasoned that although Congress
has plenary authority over Indian affairs, it “has not yet
clearly recognized Hawaiians as being equivalent to Indians
or Indian tribes for purposes of the [Mancari] analysis.”
Arakaki VI, 305 F. Supp. 2d at 1172. Noting that “Congress
has begun to include Hawaiians as beneficiaries in bills pro-
viding services to Native Americans” and had pending before
it the “Akaka Bill” that would “equate Hawaiians to Indians
and/or Indian tribes,” the court observed that “Congress is still
speaking on the issue.” Id. at 1173. The district court con-
cluded that Congress “should make the decision as to whether
Hawaiians should be treated as Indians for purposes of the
[Mancari] analysis” and, “in recognition of the continuing
debate,” the court would “defer[ ] to Congress.” Id. at 1173,
1174. We hold that these claims do not raise a nonjusticiable
political question. We therefore reverse the district court’s
dismissal on political question grounds.
Chief Justice Marshall explained in Marbury that
“[q]uestions, in their nature political, or which are, by the
constitution and laws, submitted to the executive, can never
be made in this court.” Marbury v. Madison, 5 U.S. (1
Cranch) 137, 170 (1803). The Court announced the modern
formulation of the political question doctrine in Baker v.
Carr:
Prominent on the surface of any case held to involve
a political question is found [1] a textually demon-
strable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judi-
cially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding
without an initial policy determination of a kind
clearly for nonjudicial discretion; or [4] the impossi-
bility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate
branches of government; or [5] an unusual need for
ARAKAKI v. LINGLE 1605
unquestioning adherence to a political decision
already made; or [6] the potentiality of embarrass-
ment from multifarious pronouncements by various
departments on one question.
369 U.S. 186, 217 (1962); see Alperin v. Vatican Bank, 410
F.3d 532, 537-40 (9th Cir. 2005), cert. denied, 126 S. Ct.
1141 and 126 S. Ct. 1160 (2006); EEOC v. Peabody W. Coal
Co., 400 F.3d 774, 784 (9th Cir. 2005), cert. denied, 126
S. Ct. 1164 (2006); Kahawaiolaa v. Norton, 386 F.3d 1271,
1275 (9th Cir. 2004).
[17] We have recently addressed the political question doc-
trine in the context of a challenge to the executive’s failure to
recognize Hawaiians as federal Indian tribes in Kahawaiolaa,
386 F.3d 1271. In that case, native Hawaiians alleged that the
Department of Interior had violated the equal protection com-
ponent of the Fifth Amendment in regulations limiting recog-
nition of new tribes to “ ‘those American Indian groups
indigenous to the continental United States’ ”—which meant
that “native Hawaiians are excluded from eligibility to peti-
tion for tribal recognition under the regulations.” Id. at 1274
(quoting 25 C.F.R. § 83.3(a)). The district court dismissed the
suit against the Department of Interior, in part because matters
of tribal recognition raise nonjusticiable political questions.
We disagreed with the district court on this point. We noted
that “[i]f the question before us were whether a remedy would
lie against Congress to compel tribal recognition, the answer
would be readily apparent. . . . a suit that sought to direct
Congress to federally recognize an Indian tribe would be non-
justiciable as a political question.” Id. at 1275-76. We found,
however, that the plaintiffs did not seek tribal recognition;
rather, they wanted the Department of Interior to allow them
to apply for recognition “under the same regulatory criteria
applied to indigenous peoples in other states.” Id. at 1276. We
concluded that the plaintiffs’ suit was not barred by the politi-
cal question doctrine.
1606 ARAKAKI v. LINGLE
In order to stay our hand in this case, we must determine
that the resolution of Plaintiffs’ equal protection claims
against OHA would interfere with the constitutional duties of
one of the political branches, whether that duty has been exer-
cised or not. The district court and the state defendants locate
that “textually demonstrable constitutional commitment of the
issue” in Article I, Section 8, Clause 3 of the U.S. Constitu-
tion: “The Congress shall have Power . . . To regulate Com-
merce . . . with the Indian Tribes.” The Court has observed
that “Congress possesses plenary power over Indian affairs,
including the power to modify or eliminate tribal rights.”
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343
(1998). Thus, the “questions whether, to what extent, and for
what time [Indians] shall be recognized and dealt with as
dependent tribes requiring the guardianship and protection of
the United States are to be determined by Congress, and not
by the courts.” United States v. Sandoval, 231 U.S. 28, 46
(1913).
Here, no party seeks to compel Congress to recognize the
tribal status of Hawaiians. Instead, OHA argues that if Con-
gress has treated Hawaiians as a tribe, then under the author-
ity of Mancari, OHA would have to demonstrate only a
rational connection between its Hawaiian preferences and its
programs. Plaintiffs argue that Congress’ failure, so far, to
recognize Hawaiians’ tribal status does not prevent the courts
from deciding whether OHA’s Hawaiian-preference violates
the Equal Protection Clause of the Fourteenth Amendment.
Effectively, the district court found that it could not rule on
the equal protection claim until it could determine the appro-
priate level of scrutiny, and it could not determine the level
of scrutiny until Congress decided to grant or not to grant
tribal status to Hawaiians.
[18] Nothing in the claims Plaintiffs have asserted or the
remedy they seek invites the district court to exercise powers
reserved to Congress or to the President. The district court has
not been asked to declare tribal status where Congress has
ARAKAKI v. LINGLE 1607
declined. Instead, it is asked to interpret the implications of
past congressional action or inaction for equal protection anal-
ysis. Indeed, courts are frequently called upon to “scrutiniz[e]
Indian legislation to determine whether it violates . . . equal
protection.” Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73,
84 (1977). The fact that Congress enjoys “plenary power . . .
in matters of Indian affairs ‘does not mean that all federal leg-
islation concerning Indians is . . . immune from judicial scru-
tiny.’ ” Id. at 83-84 (quoting Brief of the Secretary of the
Interior). In general, “the political question doctrine does not
bar adjudication of a facial constitutional challenge even
though Congress has plenary authority, and the executive has
broad delegation, over Indian affairs.” Kahawaiolaa, 386 F.3d
at 1276.
In the exercise of its power to regulate commerce with Indi-
ans and recognize their sovereign status, Congress might be
able to alter the relative burdens of proof and persuasion
shouldered by Plaintiffs and OHA in this case.3 But Congress
has no obligation to exercise its Article I, Section 8, Clause
3 powers in any particular way. That it has, so far, declined
to do so does not excuse the district court from hearing the
case. Congress does not have a constitutionally committed
power to set the level of scrutiny for those claiming native
American status; it has the constitutionally committed author-
ity to regulate affairs with native Americans, and the courts
then determine which level of scrutiny is warranted by Con-
gress’ action or inaction. See, e.g., Three Affiliated Tribes of
Fort Berthold Reservation v. Wold Eng’g, 476 U.S. 877, 882
(1986); United States v. Antelope, 430 U.S. 641, 645-46
(1977); Mancari, 417 U.S. at 553 n.24.
3
We couch this in the conditional because the Court in Rice suggested
that it remains “a matter of some dispute . . . whether Congress may treat
the native Hawaiians as it does the Indian tribes.” 528 U.S. at 518. Like
the Court, “[w]e can stay far off that difficult terrain” in this appeal. Id.
at 519.
1608 ARAKAKI v. LINGLE
Moreover, we note that even if Congress had treated
Hawaiians or native Hawaiians as a tribe, the district court
would still have to determine whether OHA’s classification
was based on race or on tribal status. As we observed in
Kahawaiolaa:
As Rice illustrates, an “Indian tribe” may be clas-
sified as a “racial group” in particular instances . . . .
We reject the notion that distinctions based on Indian
or tribal status can never be racial classifications
subject to strict scrutiny. . . . Government discrimi-
nation against Indians based on race or national ori-
gin and not on membership or non-membership in
tribal groups can be race discrimination subject to
strict scrutiny.
386 F.3d at 1279 (citing Adarand Constructors v. Pena, 515
U.S. 200, 227 (1995)). This, too, is a determination properly
left to the courts. Id.
[19] Assuming that some Plaintiffs have standing, Plain-
tiffs’ claims squarely and exclusively raise a Fourteenth
Amendment claim. The courts must therefore determine the
proper level of scrutiny. We do not require further action by
Congress to inform that determination. To deny the federal
courts their authority to adjudicate an equal protection claim
simply because Congress expressed its intent with less than
complete lucidity is to expand the political question doctrine
beyond its historical limits. In doing so, it would restrict judi-
cial authority in unprecedented ways; such an expansive inter-
pretation subverts the very separation of powers that the
political question doctrine is designed to protect. Although the
Supreme Court was able to postpone consideration of those
equal protection questions of “considerable moment and diffi-
culty,” Rice, 528 U.S. at 518-19, we do not have that luxury.
ARAKAKI v. LINGLE 1609
VI. PLAINTIFFS’ REMAINING MISCELLANEOUS
ARGUMENTS
Plaintiffs make several additional arguments on appeal,
none of which is meritorious. Plaintiffs contend that the dis-
trict court erred in striking its Counter Motion for Summary
Judgment of December 15, 2003. The district court cited mul-
tiple grounds in its December 16, 2003 unpublished Order for
striking the motion, including: the motion was not a true
counter motion because it raised numerous issues not raised
in the motion which it purportedly countered; it was untimely;
and the motion was not filed in the proper round of summary
judgment rounds, as scheduled by the district court in a previ-
ous order.
[20] We review for abuse of discretion challenges to pre-
trial management. Navellier v. Sletten, 262 F.3d 923, 941 (9th
Cir. 2001). “The district court is given broad discretion in
supervising the pretrial phase of litigation.” Johnson v. Mam-
moth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992)
(citation and internal quotation marks omitted). Plaintiffs have
not demonstrated that the district court’s management of the
summary judgment phase of this trial constituted an abuse of
discretion. The district court’s December 16, 2003 Order is
affirmed. Similarly, we are unpersuaded by Plaintiffs’ conten-
tion that the district court’s pretrial management warrants the
reassignment of this case to another judge and their request is
denied.
[21] Plaintiffs also appeal the district court’s May 5, 2004
unpublished Order awarding roughly $5300 in costs to select
defendants on the ground that imposing such costs will have
a “chilling effect” on civil rights litigation. We review an
award of costs for abuse of discretion. Evanow v. M/V Nep-
tune, 163 F.3d 1108, 1113 (9th Cir. 1998). Plaintiffs have not
demonstrated that the award of such modest costs, divided
among multiple plaintiffs, constitutes an abuse of discretion.
The district court’s May 5, 2004 Order is affirmed.
1610 ARAKAKI v. LINGLE
[22] Finally, Plaintiffs seek reversal of the district court’s
January 26, 2004 unpublished Order denying Plaintiffs’
motion to compel discovery. A district court’s discovery rul-
ings are reviewed for an abuse of discretion. United States v.
Fisher, 137 F.3d 1158, 1165 (9th Cir. 1998). Again, we find
no abuse of discretion, and the order is affirmed.
VII. CONCLUSION
The district court’s orders are variously affirmed or
reversed as follows.
Arakaki I, 198 F. Supp. 2d 1165 (D. Haw. 2002), is
affirmed in part and reversed in part. We reverse the court’s
holding that Plaintiffs have standing to challenge the appro-
priation of state tax revenue to OHA. We reverse the holding
that Plantiffs have standing as taxpayers to challenge the
appropriation of tax revenue to DHHL/HHC. We affirm the
denial of standing to challenge the settlement of past claims
against OHA. We affirm the denial of standing to challenge
the issuance of bonds and the denial of standing to challenge
all other spending that does not originate in tax revenue. The
remaining issues addressed in that order are not on appeal.
Arakaki II, 299 F. Supp. 2d 1090 (D. Haw. 2002), is
affirmed in part and reversed in part. We reverse Plaintiffs’
standing to challenge the appropriation of state tax revenue to
the OHA. We reverse the grant of standing to challenge the
appropriation of tax revenue to DHHL/HHC. We affirm the
denial of standing to sue as trust beneficiaries. We affirm the
denial of the motion to dismiss the tax revenue claim against
OHA under the political question doctrine. We reverse the
denial of the motion to dismiss the tax revenue claim against
DHHL/HHC. The remaining issues in that order are not on
appeal.
Arakaki III, 299 F. Supp. 2d 1107 (D. Haw. 2002), is
affirmed on different grounds. Arakaki IV, 299 F. Supp. 2d
ARAKAKI v. LINGLE 1611
1114 (D. Haw. 2003), and Arakaki V, 299 F. Supp. 2d 1129
(D. Haw. 2003), are affirmed. Arakaki VI, 305 F. Supp. 2d
1161 (D. Haw. 2004), is reversed. All remaining orders in this
case are affirmed.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.