Day v. Apoliona

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 purposes — -for public schools, development of farm and home ownership, public improvements, and the provision of land for public use — are not limited to Native Hawaiians.

Id.

The plaintiffs in this case, whom we call “Day” after the first-named of them, are Native Hawaiians, defined under federal law as “descendants] of not less than one-half part of the blood of the races inhabit

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ing the Hawaiian Islands previous to 1778.” Hawaiian Homes Commission Act, Pub.L. No. 67-34, 42 Stat. 108 (1921) (“HHCA”);

see generally Rice v. Cayetano,

528 U.S. 495, 507 , 120 S.Ct. 1044 , 145 L.Ed.2d 1007 (2000).

1

Based on the Admission Act and state law, these Native Hawaiians contend that the defendants, current and former trustees of the state’s Office of Hawaiian Affairs (“OHA”), have not properly considered ethnic 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 maintained. 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 justify a district court or a three-judge panel of this court disregarding 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

I. PROCEDURAL HISTORY

State law assigns to the OHA the promotion of “[t]he betterment of conditions of Native Hawaiians ... [and] Hawaiians.” 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

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it uses to fund projects that do not meet the § 5(f) restrictions.

See generally Rice,

528 U.S. at 508-09 , 120 S.Ct. 1044 .

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 be expended only for the betterment of the conditions of ‘native Hawaiians.’ ”

5

Such expenditures, the amended complaint 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, in-junctive, and declaratory relief; and attorneys’ fees.

The district court

sua sponte

dismissed the amended complaint. 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 violation enforceable under § 1983. The court additionally concluded that the Equal Protection allegations failed to state a claim and dismissed the state law claims as a matter of discretion.

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 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, pursuant 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, 107 S.Ct. 3054 , 97 L.Ed.2d 550 (1987). We review such a dismissal

de novo. Adams v. Johnson,

355 F.3d 1179, 1183 (9th Cir.2004).

7

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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. § 1988 ,

see Price v. Akaka,

3 F.3d 1220 (9th Cir.1993)

(“Akaka II”); Keauk-aha-Panaewa Cmty. Ass’n v. Hawaiian Homes Comm’n,

739 F.2d 1467 (9th Cir. 1984)

(“Keaukaha II”).

We have repeatedly applied this latter holding.

8

The district court concluded, however, that

Akaka IPs

holding is no longer good law because it has been effectively overruled by

Gonzaga University v. Doe,

536 U.S. 273 , 122 S.Ct. 2268 , 153 L.Ed.2d 309 (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: “[Wjhere 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 over-ruled.”

Miller v. Gammie,-

335 F.3d 889, 900 (9th Cir.2003) (en banc). But, this is simply not one of those instances.

Gonza-ga

and' other recent Supreme Court cases concerning § 1983 rights have not so changed the law that it is now irreconcilable 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 dismissed 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 relevant lands and income from them

shall be held by said State as a public trust

for the support of the public schools and other public educational institutions, for the betterment of the conditions 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 provision of lands for public use. Such

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lands, proceeds, and income shall be managed and disposed of for one or more of the foregoing purposes in such manner as the constitution and laws of said State may provide, and

their use for any other object shall constitute a breach of trust for which suit may be brought by the United States.

73 Stat. at 6 (emphasis added).

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 , 101 S.Ct. 1531 , 67 L.Ed.2d 694 (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 private 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’ enforceable 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 discuss 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 eomingling § 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 determined 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 identified 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” element of § 1983 in

Suter v. Artist M.,

503 U.S. 347 , 112 S.Ct. 1360 , 118 L.Ed.2d 1 (1992), which concluded that there was no enforceable right in the provisions of the Adoption Act of 1980 requiring states to meet certain prerequisites before receiving federal reimbursement 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 citing to

Akaka I:

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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 perform his duties as trustee; (b) to enjoin the trustee from committing a breach of trust; [and] (c) to compel the trustee to redress a breach of trust.” Restatement 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 beneficiaries 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).

Akaka IPs

reliance on trust law was not unique. Unifying 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 procedural as well as substantive implications.

Akaka I’s

discussion of standing, quoted earlier, drew on the funds’ status as a trust.

9

See Aka-ka 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

*1034

law principles 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 (concluding 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 common law of trusts.

Id.

(“There is no free floating federal common 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 circumstances. No doubt that would not present insuperable difficulties, 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

Thus,

Altaica II

constitutes an integral part of our § 5(f) jurisprudence. A change in its holding would have substantive, 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 , 117 S.Ct. 1353 , 137 L.Ed.2d 569 (1997), and

Gonzaga,

536 U.S. 273 , 122 S.Ct. 2268 — 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,

492 F.3d 1094, 1103-06 (9th Cir.2007). Nevertheless, neither “undercuts] the theory or reasoning underlying

[Akaka II

] in such a way that the cases are clearly irreconcilable.”

11

Miller,

335 F.3d at 900 . Wheth

*1035

er 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

IFs 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 , 117 S.Ct. 1353 (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 , 117 S.Ct. 1353 . And,

Blessing

drew those factors from two cases decided prior to

Akaka II: Wright v. City of Roanoke Redevelopment and Housing Authority,

479 U.S. 418, 430-32 , 107 S.Ct. 766 , 93 L.Ed.2d 781 (1987) and

Wilder v. Virginia Hospital Ass’n.,

496 U.S. 498, 509-12 , 110 S.Ct. 2510 , 110 L.Ed.2d 455 (1990), the latter of which discussed all three factors later summarized by

Blessing.

Not surprisingly, then,

Akaka IBs

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 benefit the plaintiff,” and that “the statute ... unambiguously impose a binding obligation on the States.”

Blessing,

520 U.S. at 340—41, 117 S.Ct. 1353 ;

Akaka II,

3 F.3d at 1224-25 . Because it is based on routinely enforced principles of trust law,

Akaka IT

s holding is also not “clearly irreconcilable” with the second

Blessing

requirement that a right be concrete enough to enforce.

For similar reasons, we conclude that

Akaka II

is also not clearly irreconcilable with

Gonzaga,

536 U.S. 273 , 122 S.Ct. 2268 . Although

Gonzaga

arguably shifted the focus of § 1983 analysis 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 un

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ambiguously conferred right is enforceable by § 1983.” 536 U.S. at 282 , 122 S.Ct. 2268 . In other words, “broader or vaguer ‘benefits’ or ‘interests’ ” are not enforceable under § 1983.

Id.

at 283, 122 S.Ct. 2268 . 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 , 122 S.Ct. 2268 (quoting

Cannon v. Univ. of Chicago,

441 U.S. 677 , 692 n. 13, 99 S.Ct. 1946 , 60 L.Ed.2d 560 (1979)). In other words, “ ‘rights-creating’ language [is] critical to showing the requisite congressional intent to create new rights.”

Id.

at 287, 122 S.Ct. 2268 (citing

Alexander v. Sandoval,

532 U.S. 275, 288-89 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 (2001)).

As applied to the Admission Act, these three holdings neither dramatically change the law on which

Akaka II

relied nor create an irreconcilable conflict with the

Akaka II

reasoning. Like

Blessing, Gon-zaga

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 , 112 S.Ct. 1360 (alterations and quotation marks omitted) (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 observation as its first holding, stating that because “Section 1983 provides a remedy only for the deprivation of ‘rights, privileges, 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 , 122 S.Ct. 2268 .

For similar reasons, Gonzaga’s second holding, recognizing the overlap between implied right of action cases and § 1983 cases, also did not undercut

Akaka II .

At issue in

Gonzaga

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 , 122 S.Ct. 2268 (citing

Wilder,

496 U.S. at 508 -09 & n. 4, 110 S.Ct. 2510 ), and

Suter,

which “appeared] to disavow” that notion,

id.

(citing

Suter,

503 U.S. at 363-64 , 112 S.Ct. 1360 ).

Gonzaga

explicitly adopted the approach of

Suter ,

the case with which

Akaka II

was primarily concerned.

Suter

also previewed Gonzaga’s third holding with regard to clear statutory language.

12

Prior to

Gonzaga, Suter

held

*1037

that rights must be conferred “unambiguously” by statutory language.

See Suter,

503 U.S. at 358, 363 , 112 S.Ct. 1360 . Specifically,

Suter

held that the statute at issue, the Adoption Act, did not create enforceable rights because, “[c]areful examination of the language ... does not unambiguously confer an enforceable right upon the Act’s beneficiaries.”

Id.

at 363 , 112 S.Ct. 1360 .

Gonzaga

quoted this holding with approval, summarizing it as a recognition that “[s]ince the [Adoption] Act conferred no specific, individually enforceable rights, there was no basis for private enforcement, even by a class of the statute’s principal beneficiaries.” 536 U.S. at 281 , 122 S.Ct. 2268 ;

see also id.

at 283, 122 S.Ct. 2268 (approving

Suter'

s reasoning);

id.

at 287 122 S.Ct. 2268 (emphasizing the need for statutory language that confers-

individual

entitlements).

13

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

ITs holding that the Admission Act’s language clearly creates an individual right. The state nevertheless argues that

Akaka ITs

reasoning is irreconcilable with Gonzaga’s command to identify unambiguous statutory language. Even if we had authority to com sider that question, we would see no such resounding conflict.

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 balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the. critical matters involved in the judicial decision.”

Willv. Michigan Dep’t of State Police,

491 U.S. 58, 65 , 109 S.Ct. 2304 , 105 L.Ed.2d 45 (1989) (quoting

United States v. Bass,

404 U.S. 336, 349 , 92 S.Ct. 515 , 30 L.Ed.2d 488 (1971));

see, e.g., Gregory v. Ashcroft,

501 U.S. 452, 460 , 111 S.Ct. 2395 , 115 L.Ed.2d 410 (1991) (regarding federal preemption of states’ authority to choose their own officers);

Atascadero State Hosp. v. Scan-lon,

473 U.S. 234, 242 , 105 S.Ct. 3142 , 87 L.Ed.2d 171 (1985) (regarding abrogation of states’ sovereign immunity);

Pennhurst,

*1038

State School and Hospital v. Halderman,

465 U.S. 89, 99 , 104 S.Ct. 900 , 79 L.Ed.2d 67 (1984) (same);

South Dakota v. Dole,

483 U.S. 203, 207 , 107 S.Ct. 2793 , 97 L.Ed.2d 171 (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 precedent shows that statutory cross-references, references to established legal principles, and other devices that, when followed to their sources, supply a clear message, can suffice to create a right.

As discussed above,

supra

note 12,

Gon-zaga

cites with approval

Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103 , 110 S.Ct. 444 , 107 L.Ed.2d 420 (1989), a case in which the Supreme Court concluded that a statute created rights by structural implication.

See Gonzaga,

536 U.S. at 285 , 122 S.Ct. 2268 .

Gonzaga

makes no mention of

Livadas v. Bradshaw,

512 U.S. 107, 133-34 , 114 S.Ct. 2068 , 129 L.Ed.2d 93 (1994), but that case reaches a conclusion similar to that of

Golden State.

Both

Golden State

and

Livadas

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 interpretation of a vague, ambiguous, or incomplete statutory provision is no less binding than a rule that is based on the plain meaning of a statute.”

Golden State,

493 U.S. at 112 , 110 S.Ct. 444 (quoted in

Livadas,

512 U.S. at 134 , 114 S.Ct. 2068 ). 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 IPs

analysis is reconcilable with Gonzaga,’s clear statement rule. Under the

Golden State

principle,

Akaka II’s

analysis — based on judicial 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 statutory 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 beneficiaries 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 interpretation 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, 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001) (quoting

Morissette v. United States,

342 U.S. 246, 263 , 72 S.Ct. 240 , 96 L.Ed. 288 (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, 121 S.Ct. 2271 (analyzing the history and context of the term “judicial review” before reaching 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

*1039

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

Gonzaga .

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 different inquiry than that involved in determining whether a private right of action can be implied from a particular statute. 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 , 122 S.Ct. 2268 (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 , 121 S.Ct. 1511 , 149 L.Ed.2d 517 (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 disavow 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).

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 precedents cannot stand.

CONCLUSION

We thus reaffirm what we have already held and reaffirmed: 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 complains: 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 policymaking environment. Cases related to the OHA’s expenditure 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, All

F.3d 1048, 1052-53 (9th Cir.2007) (citing cases). Absent further foundational issues with Day’s claim,

*1040

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.

1

. Hawaii state law similarly defines the term "Native Hawaiians.” Hawaii separately defines the term "Hawaiians” as any descendants — 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 obligation 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.

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 , 120 S.Ct. 1044 . OHA receives twenty percent of the revenue 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 , 120 S.Ct. 1044 . 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,

*1030

as Day challenges only the use of funds managed by the OHA.

4

. The complaint, first filed in 2005, refers to the Native Hawaiian Government 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).

5

. The three social service programs named in the complaint are the Native Hawaiian Legal Corporation, the Na Pua No'eau Education Program, 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 complaint 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 dismissal of the complaint as to those defendants.

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

*1031

present the defendants, as trustees, with a conflict with the Native Hawaiians whose interests they have a fiduciary obligation 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.

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).

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—27, 120 S.Ct. 1044 (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 , 120 S.Ct. 1044 . 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 relevant 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 individuals 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 multiple beneficiaries), and § 391 (regarding which beneficiaries may sue to enforce the terms of a public charitable trust)).

10

. Courts have frequently looked to the common law of trusts to guide resolution of two sets of related claims: those concerning the federal government’s management of Indian assets for which the government has a fiduciary duty,

see United States v. Mitchell,

463 U.S. 206, 226 , 103 S.Ct. 2961 , 77 L.Ed.2d 580 (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,

155 Ariz. 484 , 747 P.2d 1183, 1186-87 (1987);

County of Skamania

v.

State,

102 Wash.2d 127 , 685 P.2d 576, 579-80 (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 betterment” 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 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 reconsider

Akaka II

in light of

City of Rancho Palos Verdes v. Abrams,

544 U.S. 113 , 125 S.Ct. 1453 , 161 L.Ed.2d 316 (2005). But,

Abrams

does not address

*1035

whether a statute creates an enforceable right, as the defendants did not dispute that point.

Id.

at 120-21 , 125 S.Ct. 1453 . Instead,

Abrams

concerned whether a § 1983 remedy for an acknowledged enforceable right was foreclosed by the availability of other remedies.

Id.

Hawaii suggests that

Abrams

requires a change in

Keaukaha IT

s related conclusion: that the public remedy in § 5(f) does not foreclose private 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 , 101 S.Ct. 2615 , 69 L.Ed.2d 435 (1981) and

Smith v. Robinson,

468 U.S. 992 , 104 S.Ct. 3457 , 82 L.Ed.2d 746 (1984), both of which pre-dated

Akaka II

and

Keaukaha II. See Abrams,

544 U.S. at 121 , 125 S.Ct. 1453 .

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. Gonzaga'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 , 101 S.Ct. 1531 , 67 L.Ed.2d 694 (1981),] that unless Congress speaks with a clear voice, and manifests an unambiguous 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

*1037

to enforceable rights.” 536 U.S. at 280 , 122 S.Ct. 2268 (citations and alterations omitted; emphasis added). Furthermore,

Gonzaga

cited with approval

Golden State Transit Corp. v. City of Los Angeles,

493 U.S. 103 , 110 S.Ct. 444 , 107 L.Ed.2d 420 (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 , 122 S.Ct. 2268 ;

Golden State,

493 U.S. at 111-12 , 110 S.Ct. 444 .

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 jurisprudence, 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.

14

. We emphasize once more that we are expressing no view concerning the merits of the expenditure challenges.