twenty three years ago this court decided that native hawaiians have the right to sue in federal or forcible provisions of section five ask why in which an act which creates a trust in favor of the beneficia that holding state has almost every single one of those cases challenge that holding and almost in every single case when they challenged it the orders shall be held by the state as a public trust dot dot dot for the purpose for the betterment of the conditions of native hawaiians as defined in hawaiian homes commission back nine hundred twenty one and the part of her hand for other paragraphs that's what's causing me the problem is that there are other purposes you know looting purposes that benefit more that is needed or if you look back to section b what's granted under section b the united states grants to the state of hawaii permissible uses for that money one of which is for the betterment only of native hawaiians then where is the breach of the trust if that money is used for example for the benefit of education in a state which benefits both native hawaiians and other residents of the state one of the permitted purposes is for the publics  for the support of the public schools that is one of the permitted purpose there's fear reading that is that could include beneficiaries besides native hawaiians could and that should include everyone right that's public public public not the support of public schools that is that is of support of of hawaiians who are not native hawaiians but and this is where i'm having problems with your theory here because if it's  officers of the state for spending this money for one of the other purposes that is for public schools that would be fine but all of this income from the five f lands that is not and not including income from one homelands but again come from the rest of it a portion of that income is given to ohio and the only two purposes for the existence of o are the betterment of the condition of hawaiians and the betterment of the condition of native hawaiian look so let me move to the only the only legal purpose for which oh i can use this money is for the betterment of the condition of native hawaiians don't you have to look at the wall in order to find th money to ohio that does not satisfy the use or is still subject to the restrictions and five f and the only one of those possible uses that oh i can use the proper money for is the betterment of the when hawaii spends money on line right it's only concerned with ultimately that the money not to be spent on one of the five purposes but oh i has not spent money for public schools i given in one nine hundred fifty nine to the state of hawaii for the purpose in trust for the native people in part for native people and when you say well it could be used for one or more of the five purposes this and that and they could use it all for and one other the purpose i am yes i'm asking you to i'm asking you to share with their words of motions for summary judgment on both sides all of the evidence was there and if the court had ruled a contract well the state promises to provide certain services to private individuals in exchange for which the federal government promises to give the state funds in contract law when such and a range ment is made promises to pay a promise to pay b money in exchange for which b promises to provide services to see the first one who receives the benefit of the exchange of promises between the two others see is called a third party indian trust yes is right where we have found forcible federal rights created by treaty and we have basically found that the united states was in essence the trustee and if the trustee had not an create a federal law a common law of trust but it's not necessary because everybody knows what the law of trust is when congress creates a trust they know what they're doing with us today side what their duty is to that  peculiar situation well it's peculiar situation because nobody else raised the issue to the court when often this you know maybe the court should have asked on off on the merits and i'm sure that defendants would be more than happy if the court affirmed on the grounds that have been raised five that says the vision does not benefit any class now or than all of the citizens of of hawaii it is clear however that the homelands were to continue to be used for the benefit of native coins as defined by the commission and therefore the trust provision as that carry the state and what guns a guy has done has made it very clear guns a gay and blessing have made it clear that simply being a mess and actually sued are frankly but but those cases i made it very clear that simply being part of a d i don't think there's anything that indicates that when you come to the court with something that isn't a spending clause case which of course this is that there's something different analysis that applies as to whether you have a right and and know i think there are two different concepts because what what guns are you guys telling us is that in order to have a private right of action in order to have a private right ok in order to have a private right under the statute you have to find that private don't we still look to the trust document in my analogy of the treaty in order to determine what the clearly defined right is that the treaty has granted to the beneficiary indian cry you know indian law is obviously a very complex area that the ninth circuit deals with more than any other other circuit so i know i'm getting into areas that are way over my head but within your competence so you know i have in the past of delta's mitchell one mitchell two white mountain contract on ceded land or whatever they call it there and that was only for the benefit of the lumber company so what that that didn't stand up to the colorado case that i that i worked on i don't remember the site now but under section five f which is clearly federal but doesn't go very far in telling us what the prestes obligations booklet thank you for giving me an opportunity to respond to that question too and i should have already been very much into the defendant's  district court went to went on then of course you don't get to that i mean it would also be a possibility i'm sure the defendants are eager dark you that even if you somehow either take my question first or or god forbid rule against me on we represent a wide people who have benefited by the court's rulings before and we're in a very difficult position with respect to the argument that really seeks to undo the rights of work created over time by the ninth circuit candidly i don't think that intervention has a right as a right it is a correct analysis i think the way they did it is correct they came in as an amicus with a separate issue that sort of fully advocated he issued it is obviously central wealth and that's where the state comes in i mean the state can fully and vigorously argue that and they have other reasons for doing it because like this case i wanted it i yes i think i think the district court should have the benefit of our givens fully briefed and be able to take a look at what our federal questions and try to extricate them from the state law questions which i think of basically trust the speculation that he draws from that that that's probably not you know within any purpose other than to benefit the broader hawaiian community and the state as a whole so i think community benefit from the expenditure of ceded land trust funds and that should be sufficient there's a lot some things in there i disagree with but on this point i agree with everything and exit the only part that i don't agree with the scale kawan that yes there should be an applied right right off the back so we don't even need to get into the eighty three but that congress wanted to get rid of the b i a d and and they didn't want to deal with native people anymore at that time so they just say ok we've got obligations to native people we want to turn it all over to the state we're going to gives the state got all of all of the land the public land in the state of hawaii except what was just a federal government was specifically using for national parks military bases and other and other federal installations this is not the case and in any other state the other states only get a certain number of sections for township of public land and then they are supposed to use it for schools and education and then public purview uses but you know why there is an additional  trust requirement that it be used to better the condition of the native people and this is where the indian law comes in because and it's only in hawaii where the state has got the obligation of of the trust o native people and and so to say that after twenty five years of litigation that the state has no duty to the native people that in forcible right it is just well it may have a duty and it may have any duty doing force it says may therefore in there then that's all told me within your discretion whether they want to or not and and then president reagan said he thought the white homes program was unconstitutional and he didn't want to have anything to do with it and so i mean this proceeds for a purpose that is not set forth in section five yeah that is specifically for the betterment of the condition of hawaiians and some of this distrust money it's admitted that some of this trust money was