Price v. State of Hawaii, 84-2444

• Decision Date: 25 June 1985
• Docket Number: No. 84-2444,84-2444
• Parties: Doctor Nui Loa PRICE, a.k.a. Maui Loa, individually and in his capacity as ancestral chief of the Hou Hawaiians, and Kamuela Price, etc., Plaintiffs, and Hou Hawaiians, a Native Hawaii tribe, Plaintiffs/Appellants, v. STATE OF HAWAII, State of Hawaii, Department of Transportation, a division of the State of Hawaii, State of Hawaii Department of Budget and Finance, division of the State of Hawaii, and George Ariyoshi, in his capacity as Governor of the State of Hawaii, Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 623

764 F.2d 623

Doctor Nui Loa PRICE, a.k.a. Maui Loa, individually and in his capacity as ancestral chief of the Hou Hawaiians, and Kamuela Price, etc., Plaintiffs and Hou Hawaiians, a Native Hawaii tribe, Plaintiffs/Appellants, v. STATE OF HAWAII, State of Hawaii, Department of Transportation, a division of the State of Hawaii, State of Hawaii Department of Budget and Finance, division of the State of Hawaii, and George Ariyoshi, in his capacity as Governor of the State of Hawaii, Defendants/Appellees.

No. 84-2444.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 4, 1985.

Decided June 25, 1985.

Joseph D. Gebhardt, William A. Dobrovir, Dobrovir & Gebhardt, Washington, D.C., Paul McCarthy, Honolulu, Hawaii, for plaintiffs-appellants.

Charlotte Libman, Honolulu, Hawaii, for defendants-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before FARRIS, PREGERSON, and BEEZER, Circuit Judges.

FARRIS, Circuit Judge:

A native Hawaiian tribal body seeks to compel the State of Hawaii to apply the proceeds from a congressionally created land trust to finance the distribution of land for the benefit of native Hawaiians. The Hou Hawaiian tribe appeals the judgment of the U.S. district court for Hawaii, Fong, J., which dismissed their complaint for lack of federal subject matter jurisdiction.

In 1920, Congress created the Hawaiian Home Lands Trust to provide lands for the use and benefit of native Hawaiian people of at least 50 percent native blood. See Hawaiian Homes Commission Act of 1920, Pub.L. No. 67-34, 42 Stat. 108 et seq. (1921). The Home Lands Trust was incorporated into the Constitution of the State of Hawaii when Congress admitted the State into the Union in 1959. See Hawaii Admission Act, P.L. No. 86-3, Sec. 4, 73 Stat. 4, 5 (1959).

Under section 5(f) of the Admission Act, the United States conveyed the bulk of its Hawaiian land holdings to the newly formed State, with the instruction that the lands and all property subsequently conveyed by the United States to the State be held by the State as a public trust. The lands which had already been reserved for disposition by the Hawaiian Homes Commission under the 1920 Act were included in the section 5(f) trust.

Proceeds from the section 5(f) trust are to be devoted to "one or more" of five statutory purposes, one of which is "for the betterment of the conditions of native Hawaiians." 73 Stat. 6. Section 5(f) places no other express limitations on the State's use of the trust fund proceeds.

The Hou Hawaiians sued in federal district court alleging that the State of Hawaii had breached its trust obligations to the United States and to the native Hawaiians by failing to expend any section 5(f) funds "for the betterment of the conditions of native Hawaiians." The Hou also alleged that the State was spending section 5(f) funds on "the maintenance of the State of Hawaii governmental structure," a purpose not authorized by the statute. The Hou requested an accounting of all section 5(f) lands; "just and fair" compensation for the State's prior neglect and a "just and fair portion" of future revenues produced by section 5(f) lands; and the use of the award to secure matching federal funds to implement the Hawaiian Homes Commission Act.

The district court granted the State's motion to dismiss, on the ground that our decision in Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 588 F.2d 1216 (9th Cir.1978), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979) ("Keaukaha I "), compelled a finding that the district court lacked subject matter jurisdiction over the Hous' suit.

Following the dismissal, the United States Secretary of the Interior notified the Hou that it would not intervene in the action at this point. The district court subsequently denied the Hous' Motion for Reconsideration, rejecting the Hous' argument that Keaukaha-Panaewa Community Association v. Hawaiian Homes Commission, 739 F.2d 1467 (9th Cir.1984) ("Keaukaha II "), affected the jurisdictional issue. The Hou timely appeal; we have jurisdiction under 28 U.S.C. Sec. 1291.

I. Do the Hou qualify for Sec. 1362 jurisdiction?

In both their Opening Brief and extensive supplemental briefing submitted at our request, the Hou contend that they are an "Indian tribe or band with a governing body duly recognized by the Secretary of the Interior," 28 U.S.C. Sec. 1362, and hence may bring this suit under Sec. 1362. Because neither the Hou nor their governing body have been "duly recognized" by the Secretary, they do not qualify for Sec. 1362 jurisdiction even if we assume that they are an "Indian tribe or band."

A. Statutes governing tribal recognition.

No statute explicitly details the procedure by which a tribe may become "duly recognized by the Secretary" for purposes of establishing Sec. 1362 jurisdiction. We note, however, that the Secretary must approve the organization or incorporation of a tribe. If the Hou had been formally organized or incorporated as a tribe, they could thus argue that they had been "duly recognized."

The statutes governing the formal organization and incorporation of an Indian tribe, see 25 U.S.C. Secs. 476-477, explicitly do not apply to "any of the Territories, colonies, or insular possessions of the United States [except for] the Territory of Alaska." 25 U.S.C. Sec. 473. In 1934, when Sec. 473 was enacted, Hawaii was such a territory. Therefore, Congress did not originally intend the statutes governing the organization of new Indian tribes to apply to aboriginal groups in Hawaii.

Even if we assume that Secs. 476-477 do apply to Hawaii today because it is now a State, the Hou have neither 1) adopted a constitution and bylaws ratified by majority vote of the adult members of the tribe and approved by the Secretary of the Interior, as required by Sec. 476, nor 2) received a charter of incorporation, pursuant to Sec. 477. Therefore, neither provision provides support for a claim of "recognition by the Secretary of the Interior."

B. Regulations governing tribal recognition.

Nor can the Hou claim "recognition" under the regulations by which the Interior Department's Bureau of Indian Affairs acknowledges tribal existence. See 25 C.F.R. Part 83 (1984). The regulations establish tribal existence as "a prerequisite to the protection, services, and benefits from the Federal Government available to Indian tribes. Such acknowledgment shall also mean that the tribe is entitled to the immunities and privileges available to other federally acknowledged Indian tribes...." 25 C.F.R. Sec. 83.2. However, the regulations are explicitly limited to "only those American Indian groups indigenous to the continental United States...." 25 C.F.R. Sec. 83.3(a). The Hou Hawaiians acknowledge that they have not been "recognized" under these regulations.

C. Factors for determining tribal recognition.

Although no statute or regulation governs recognition of the Hou for purposes of establishing Sec. 1362 jurisdiction, we conclude that the same factors which govern eligibility for federal benefits and "immunities and privileges," see 25 C.F.R. Sec. 83.7, also provide some guidance for the jurisdictional inquiry. These factors, however, do not demonstrate that the Hou or their "governing body" have been "duly recognized" for Sec. 1362 purposes.

1. Historical continuity.

We first examine whether the group petitioning for recognition "has been identified from historical times until the present on a substantially continuous basis, as 'American Indian,' or 'aboriginal.' " 25 C.F.R. Sec. 83.7(a). The importance of a tribe's longstanding existence is underscored by the regulations' exclusion of "associations, organizations, corporations or groups of any character, formed in recent times," 25 C.F.R. Sec. 83.3(c), from eligibility for Bureau of Indian Affairs benefits.

Although native Hawaiians in general may be able to assert a longstanding aboriginal history, the issue before us is whether the particular subgroup seeking recognition--the Hou Hawaiians--can establish that they are a longstanding aboriginal sovereign rather than a recently formed association. To allow any group of persons to "bootstrap" themselves into formal "tribal" status--thereby obtaining the federal economic and legal benefits attendant upon tribal status--simply because they are all members of a larger aboriginal ethnic body would be to ignore the concept of "tribe" as a distinct sovereignty set apart by historical and ethnological boundaries. Cf. F. Cohen, Handbook of Federal Indian Law 5 & n. 17, 229 (1982). Because the Hou ohana was founded in 1974, it does not satisfy the historical requirement for tribal status implicit in Sec. 83.7(a).

2. Longstanding tribal political authority.

The BIA regulations also consider whether "the petitioner has maintained tribal political influence or other authority over its members as an autonomous entity throughout history until the present." 25 C.F.R. Sec. 83.7(c). The Hou have alleged no facts indicating longstanding actual political authority over its members. To contrary effect, the Hou have submitted "Minutes of a General Meeting of the Elder Council" that indicate that their Chief and Elder Council were first elected on January 27, 1985. This recent election was apparently prompted by the Department of Health and Human Services' request that the Hou formalize their political trappings in order for them to obtain Health and Human Services' benefits.

3. Other factors considered in BIA regulations.

The Hou have not alleged that "a substantial portion of the petitioning group inhabits a specific area or lives in a community viewed as American Indian and distinct from other populations in the area...." 25 C.F.R. Sec. 83.7(b). Nor have they alleged that their members obey certain formal "procedures through which the group currently governs its affairs and its members," 25 C.F.R. Sec. 83.7(d)...