FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

THE HOU HAWAIIANS, a Native

Hawaiian Tribal Ohana; NUI LOA

PRICE, Dr., individually and in his

capacity as Chief of the Hou

Hawaiians, aka Maui Loa;

KAMUELA PRICE, individually and

in his capacity as member of the

Elder Council of the Hou

Hawaiians,

Plaintiffs-Appellants,

v. BENJAMIN CAYETANO, in his

capacity as Governor of the State

No. 98-15402

of Hawaii; MICHAEL WILSON, in his

D.C. No. capacity as Director of the

CV-97-00303-HG

Department of Land and Natural

Resources of the State of Hawaii OPINION

and Chairman of the Board of

Land and Natural Resources;

CHRISTOPHER YUEN; WILLIAM

KENNISON; LYNN McCRORY;

MICHAEL NEKOBA; COLBERT

MATSUMOTO, in their capacities as

members of the Board of Land

and Natural Resources of the State

of Hawaii; KAZU HAYASHIDA, in

his capacity as Director of the

Department of Transportation of

the State of Hawaii and Chairman

of the Transportation Commission;

JULLIET AIU; JAN AMII; WALTER

ARAKAKI; LESTER FUSHIKOSHI;

DENNIS HOKAMA; RICHARD KIBE;

MILLICENT KIM; DAVID RAE;

ALFRED WONG; NORMAN TSUJI;

WADSWORTH YEE, in their

capacities as members of the

Commission of Transportation of

the State of Hawaii; JERRY

MATSUDA, in his capacity as acting

head of the Airports Division of

the Department of Transportation

of the State of Hawaii; CLAYTON

HEE, in his capacity as Trustee and

Chairman of the Board of Trustees

of the Office of Hawaiian Affairs

of the State of Hawaii; ADELAIDE

DESOTO; ABRAHAM AIONA; MOSES

KEALE; HAUNANI APOLIONA; BILLIE

BEAMER; ROWENA AKANA; HANNAH

SPRINGER; COLLETTE MACHADO, in

their capacities as Trustees of the

Office of Hawaiian Affairs of the

State of Hawaii; KALI WATSON, in

his capacity as Director of the

Department of Hawaiian Home

Lands and Chairman of the

Hawaiian Homes Commission;

WONDA MAE AGPALSA; KAREN

HOLT; ROCKNE FREITAS; THOMAS

KAULUKUKUI, JR.; LLEWELLYN

KUMALAE; ANN NATHANIEL;

PATRICIA SHEEHAN; JOHN TOMOSO,

in their capacities as members of

the Hawaiian Homes Commission;

THE STATE OF HAWAII; JANET RENO,

in her capacity as Attorney

General of the United States of

America; and BRUCE BABBITT, in

his capacity as Secretary of the

United States Department of the

Interior,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Hawaii

Helen Gillmor, District Judge, Presiding

Argued and Submitted

April 26, 1999--Honolulu, Hawaii

Filed June 4, 1999

Before: Jerome Farris, John T. Noonan, and Susan P. Graber,

Circuit Judges.

Opinion by Judge Noonan

OPINION NOONAN, Circuit Judge: The Hou Hawaiians, Nui Loa Price, and Kamuela Price (collectively the Hou) brought this suit against several federal and state officials in their official capacities. The district court denied the Hou's motion for summary judgment and dismissed their complaint against all defendants. This case is another episode in legal warfare going back twenty years, which has from time to time come to this court.

See, e.g., Rice v. Cayetano, 146 F.3d 1075 (9th Cir. 1998); Han v. United States Department of Justice, 45 F.3d 333 (9th Cir. 1995); Price v. Akaka (Price V), 3 F.3d 1220 (9th Cir. 1993); Price v. Hawaii (Price IV), 939 F.2d 702 (9th Cir. 1991); Price v. Akaka (Price III), 928 F.2d 824 (9th Cir. 1991); Price v. Hawaii (Price II), 921 F.2d 950 (9th Cir. 1990); Price v. Hawaii (Price I), 764 F.2d 623 (9th Cir. 1985). We rely on the history and holdings of those cases in reaching a decision here. Nonetheless, as certain of the issues raised are new, we publish this opinion affirming the district court in order to further delineate the respective rights and responsibilities of the parties. THE CLAIM AGAINST THE FEDERAL DEFENDANTS Section 5 of the Hawaii Admission Act, Pub. L. No. 86-3, 73 Stat. 4 (1959), granted to the State of Hawaii most of the lands there held by the United States and declared that the lands should be held as a public trust. The Act specified five purposes of the trust and stated that the lands should be held for one or more of the five specified purposes as the constitution and laws of Hawaii should provide. The Act added: "their use for any other object shall constitute a breach of trust for which suit may be bought by the United States." Pub. L. No. 86-3, 73 Stat. 4 S 5(f) (1959). The Hou contend that this final phrase imposed a duty upon the United States to sue the State of Hawaii if the state breached the trust. The Hou contend that federal failure to act amounts to such an abuse of discretion and such a failure to carry out the policy of the statute that mandamus lies to compel the United States to bring suit. [1] The immediate obstacle to this contention is the sovereign immunity of the United States. That immunity has not been waived by section 5. That immunity has not been waived by the mandamus statute, 28 U.S.C. S 1361. See Washington Legal Found. v. United States Sentencing Commission , 89 F.3d 897, 901 (D.C. Cir. 1996). The Administrative Procedure Act, 5 U.S.C. S 702, waives immunity only for claims alleging that an official's actions "were unconstitutional or beyond statutory authority." Swan v. Clinton, 100 F.3d 973, 981 (D.C. Cir. 1996). Under section 5, the United States has no duty to prosecute the State of Hawaii. See Han, 45 F.3d at 337. The federal enforcement policy is not "so inadequate as to be beyond the limits of [the federal defendants' ] discretion." Id. at 338. The bar is absolute and fatal to the claim against the federal defendants. THE CLAIMS AGAINST THE STATE DEFENDANTS Section 4 of the Hawaii Admission Act provides:"As a compact with the United States relating to the management and disposition of the Hawaiian home lands, the Hawaiian Homes Commission Act, 1920, as amended, shall be adopted as a provision of the Constitution of [the State of Hawaii]." Pub. L. No. 86-3, 73 Stat. 4 S 4 (1959). The Hawaiian Homes Commission Act (the HHCA) was accordingly made part of that constitution. See Haw. Const. art. XII,S 1. The HHCA, S 207 provides that the Department of Hawaiian Homelands (DHHL) "is authorized to lease to native Hawaiians the right to the use and occupancy of a tract or tracts of Hawaiian home lands," and DHHL "shall, whenever tracts are available, enter into such a lease with any applicant who, in the opinion of the department, is qualified to perform the conditions of such lease." Pub. L. No. 67-34, 42 Stat. 108 S 207 (1921). One of the five purposes specified by section 5(f) of the Admission Act is "the betterment of the conditions of native Hawaiians, as defined in the [HHCA]." Pub. L. No. 86-3, 73 Stat. 4 S 5(f) (1959). A "native Hawaiian" is "any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the [HHCA]. " Haw. Rev. Stat. S 10-2. The Hou contend that the state defendants have violated and will continue to violate section 5 of the Admission Act by not giving priority to the betterment of the native Hawaiians by funding homesteads for them. To remedy the claimed violations, the Hou seek an injunction compelling the state defendants to expend income from the section 5 lands for no other purpose than providing each eligible native Hawaiian with a homestead. Alternatively, the Hou ask that income from section 5 be devoted exclusively to satisfying the $600 million settlement that the state made in 1995 with DHHL in satisfaction of previous breaches of trust. [2] To the extent that these alternative demands seek compensation for past wrongs, they meet the inexorable barrier of the Eleventh Amendment as interpreted by Ex Parte Young, 209 U.S. 123 (1908), as we have said in earlier litigation by the Hou. See, e.g., Price IV, 939 F.2d at 706. Recasting the demand for redress of past wrongs by asking for a restriction of present spending does not alter the functional effect of this attempted levy upon the purse of the state. The Eleventh Amendment stands in the way. The Office of Hawaiian Affairs (OHA) did not plead the Eleventh Amendment and, in response to a question of the district court, its lawyer stated that OHA was not invoking it. On appeal, OHA's brief now obliquely appears to seek the amendment's shelter. [3] Established in 1978 by Article XII, S 5 of the state constitution, OHA is said to be "a separate entity independent of the executive branch." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Standing Comm. Rep. No. 59 at 644. That independence does not make it a private entity or a separate sovereignty. OHA has received the property of the state and performs functions of the state. For purposes of the Eleventh Amendment, it is the state. The failure of OHA to plead the amendment in its answer and its lawyer's disavowal in the district court do not operate to confer jurisdiction here.

The Eleventh Amendment "partakes of the nature of a jurisdictional bar," which we are bound to observe. Edelman v. Jordan, 415 U.S. 651, 678 (1974); see Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1282 (9th Cir. 1979). The OHA defendants are immune from suit in federal court for alleged past wrongs. [4] To the extent that the Hou's request is for an injunction requiring future funding of homesteads from section 5 lands, the selection of beneficiaries eligible for such homesteads, and the elimination of requirements unduly burdening possible beneficiaries, no inexorable jurisdictional barrier is encountered. We have held that Hawaii does not escape the trust imposed on section 5 lands by transferring them to any department, including OHA, to be administered. See Price III, 928 F.2d at 827. The trustees have federal obligations and may be sued in federal court under S 1983 if they have breached their trust. See id. Nonetheless, because section 5 does not demand that the state "deal with its property in any particular manner," a challenge to the management of section 5 land is not a federally cognizable claim. Price II, 921 F.2d at 956. [5] The Hou take comfort in footnote 1 of the just-cited opinion, which reads: "This case does not involve the administration of the Hawaiian home lands." Id. at 955 n.1. This case does. But we are still bound by the determination of Price II that the state is not to be treated as a private trustee in the management of the property entrusted to it. A stated grievance in the Hou's complaint is that OHA has "wrongfully been accumulating income from the Trust Lands while inadequate funds have been allocated for the provision of infrastructure for implementation of HHCA." This charge disputes the priorities of OHA, a matter within its management prerogative. The requirements for the award of homesteads and priorities among possible beneficiaries are of a similar character. In compliance with its fiduciary obligations, OHA could not ignore the beneficiaries of the trust in favor of nonbeneficiaries, or take no steps to identify the beneficiaries, but it is entitled to determine in a fair and reasonable way the beneficiaries who qualify for homesteads. For the forgoing reasons, the judgment of the district court is AFFIRMED.