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DAY v. APOLIONA

No. 08-16704.

616 F.3d 918 (2010)

Virgil E. DAY; Mel Hoomanawanui; Josiah L. Hoohuli; Patrick L. Kahawaiolaa; Samuel L. Kealoha, Jr., Plaintiffs-Appellants v. Haunani APOLIONA, individually and in her official capacity as Chairperson and Trustee of the Office of Hawaiian Affairs; Rowena Akana; Dante Carpenter; Donald Cataluna; Linda Keawe'ehu Dela Cruz; Colette Y. Pi'ipi'i Machado; Boyd P. Mossman; Oswald Stender; John D. Waihe'e, IV, Trustees of the Office of Hawaiian Affairs of the State of Hawaii sued in their official capacities for declaratory and prospective injunctive relief sued in individual capacities for damages; Clayton Hee; Charles Ota, Former Trustees of the Office of Hawaiian Affairs of the State of Hawaii, sued in their individual capacities for damages, Defendants-Appellees, State of Hawaii, Defendant-Intervenor-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed July 26, 2010.

Attorney(s) appearing for the Case

Walter R. Schoettle (argued), Honolulu, HI, for the plaintiffs-appellants.

Robert G. Klein (argued), Lisa W. Cataldo and Lisa M. Ezra, McCorriston Miller Mukai MacKinnon LLP, Honolulu, HI, for the defendants-appellees.

Mark J. Bennett (argued), William J. Wynhoff, Department of the Attorney General, State of Hawaii, Honolulu, HI, for the intervenor-appellee.

Before: ROBERT R. BEEZER, SUSAN P. GRABER and RAYMOND C. FISHER, Circuit Judges.

OPINION

FISHER, Circuit Judge:

Plaintiffs are "native Hawaiians," defined in section 201(a) of the Hawaiian Homes Commission Act, Pub. L. No. 67-34, 42 Stat. 108 (1921) ("HHCA"), to mean "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778."1 As such they are beneficiaries of a "public trust" created in the Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4...

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